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District Court 8 September 2017

R v Cardamis

[2017] NSWDC 399

Drugs
CRIME SENTENCE DRUG SUPPLY 10.39 GRAMS COCAINE NIL PRIOR OFFENCES STRONG SUBJECTIVE CASE

Citation: R v Cardamis [2017] NSWDC 399
Court: District Court of New South Wales
Date: 8 September 2017
Judge(s): Neilson DCJ

Background

The offender pleaded guilty to one charge of supplying 10.39 grams of cocaine at Surry Hills on 3 September 2016, an offence under section 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 15 years imprisonment and a fine of 2,000 penalty units. Two further offences were placed on a Form 1 to be taken into account at sentencing: a separate supply of 0.75 grams of cocaine and deemed supply of 4.4 grams of MDMA (ecstasy).

Police observed the offender driving in Surry Hills late at night and, after following his vehicle, stopped him near the Beresford Hotel. A search of his car revealed 14 small resealable bags of cocaine (totalling 10.39 grams at 57.5% purity) and eight bags of ecstasy (4.4 grams at 62.5% purity) in the driver's door compartment. A second mobile phone found with the drugs contained messages consistent with drug supply arrangements.

The offender was 30 years old at sentencing, with no criminal history. He was employed in the technology sector, and a clinical psychologist reported that he had begun using cocaine and MDMA after falling in with a new social group at age 28, initially using cocaine to assist concentration with work deadlines.

  • Whether the offender's drug supply activities amounted to "trafficking" such that full-time imprisonment was required under the long-standing principle in R v Clark
  • Whether exceptional or sufficient mitigating circumstances existed to justify a non-custodial or community-based sentence
  • What starting point and discount applied, and whether an Intensive Correction Order (ICO) was appropriate

Decision

Neilson DCJ acknowledged the established sentencing principle from R v Clark that persons substantially involved in drug supply or trafficking must ordinarily receive full-time custodial sentences absent exceptional circumstances. The Crown submitted the offender fell into this category. The court considered the offender's conduct, which included an actual supply to a customer, possession of drugs packaged for further supply, and a dedicated drug phone, as conduct consistent with trafficking.

However, the court found the offender's subjective case to be strong. He had no prior criminal history whatsoever, pleaded guilty at the earliest opportunity, demonstrated genuine remorse, and had undergone psychological intervention. The clinical psychologist's report indicated the offender had developed problematic drug use after mixing with a new social group, and the court accepted this as background context, noting (without excusing the conduct) a familiar pattern of drug use leading to supply.

Neilson DCJ assessed a starting sentence of 18 months imprisonment and applied a 25% discount for the utilitarian value of the early guilty plea and the remorse it reflected. This produced a sentence of 13.5 months, rounded down to 13 months (one year and one month). The court found that the strong subjective case, including the suitability assessment for an ICO prepared by Community Corrections, justified the sentence being served in the community by way of an Intensive Correction Order rather than full-time imprisonment.

The court's reasoning reflected the approach in Robertson v R [2017] NSWCCA 205 and EF v R [2015] NSWCCA 36, which have clarified the operation of the Clark principle and the circumstances in which a non-full-time custodial sentence may be appropriate for drug supply offending.

Orders Made

  • The offender was convicted of supplying 10.39 grams of cocaine on 3 September 2016 at Surry Hills.
  • Sentenced to imprisonment for one year and one month, to be served by way of Intensive Correction Order (ICO) in the community.
  • The offender was directed to report to the Community Corrections Office in Sydney City within seven days.
  • The Form 1 offences (supply of 0.75 grams of cocaine and supply of 4.4 grams of MDMA) were taken into account at sentencing.
  • Two further charges (sequences 5 and 6) were withdrawn and dismissed.
  • A drug destruction order was made.

Key Takeaways

  • The long-standing Clark principle, requiring full-time imprisonment for those substantially involved in drug trafficking, remains operative in the District Court, but it does not operate as an absolute rule when a compelling subjective case is made out.
  • A sentence of imprisonment served by way of an ICO can, in appropriate circumstances, satisfy the need for punishment and denunciation in a drug supply matter, even where the conduct displayed hallmarks of trafficking.
  • No prior criminal history, an early guilty plea, genuine remorse, and engagement with psychological support were collectively sufficient here to justify departure from a full-time custodial sentence.
  • A 25% discount applied where the offender pleaded guilty at the earliest available opportunity, reflecting both the utilitarian value of the plea and the remorse it demonstrated.
  • The District Court rounded the discounted sentence downward to a whole number of months, consistent with sentencing authority on the mechanics of applying plea discounts.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Clark (NSWCCA, 15 March 1990, unreported)
- EF v R [2015] NSWCCA 36
- Robertson v R [2017] NSWCCA 205