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District Court 25 January 2017

R v Hill

[2017] NSWDC 464

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUGS NOT ISOLATED OFFENCE MID RANGE OBJECTIVE SERIOUSNESS

Citation: R v Hill [2017] NSWDC 464
Court: District Court of New South Wales
Date: 25 January 2017
Judge: Tupman DCJ

Background

The offender, a 35-year-old IT technician, appeared for sentence in the District Court after pleading guilty in the Local Court to one count of supplying a prohibited drug, methylamphetamine (commonly known as ice), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 15 years imprisonment.

Police stopped the offender's vehicle in Cromer on 10 February 2016 after observing it at an address connected to both break and enter offences and suspected drug supply activity. A search of the offender and his vehicle located 9.3 grams of methylamphetamine with an estimated street value of $4,000, digital scales, 50 empty resealable bags, multiple mobile phones containing drug-related text messages, and $865 in cash.

The offender admitted to a psychologist that he had been supplying the drug to friends and acquaintances to fund his own daily ice addiction, which by the time of the offence had persisted for over a decade. He was released on bail after arrest and used that period to engage seriously in drug rehabilitation.

  • Whether the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (requiring that no sentence other than imprisonment be imposed unless a full-time custodial sentence is inappropriate) was crossed
  • The appropriate level of objective seriousness for a supply offence of this scale and nature
  • Whether the sentence should be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, having regard to the offender's rehabilitation, remorse, and subjective circumstances
  • The quantum of the guilty plea discount to apply, following R v Thomson and Houlton

Decision

Tupman DCJ assessed the objective seriousness of the offence as falling just below the mid-range for offences chargeable under s 25(1). The quantity of 9.3 grams (approximately three times the indictable quantity) was relatively low, but the presence of scales, resealable bags, and drug-related text messages elevated the seriousness. Mitigating factors included that the offender supplied only to known users and did not seek to expand his market, and that the supply was driven by his own addiction rather than commercial profit.

Her Honour found that the s 5 threshold was crossed, making a term of imprisonment the appropriate penalty. Absent the plea of guilty, a head sentence of two years would have been warranted. Applying a 25% discount for the early guilty plea entered in the Local Court, consistent with R v Thomson and Houlton, the sentence was reduced to 18 months.

Despite finding that imprisonment was called for, her Honour determined that suspension of the sentence under s 12 was appropriate, given the totality of the offender's subjective circumstances. The offender had strong family support, stable employment, an almost clear prior record (one minor matter from 2000), genuine remorse, and had completed a formal drug rehabilitation program and continued psychological treatment of his own volition. He had remained drug-free since at least September 2016.

Her Honour found the offender's prospects of rehabilitation to be excellent, and that supervision by Probation and Parole was not required. The effect of the suspended sentence was that the offender would serve the 18-month term in the community, with revocation and full imprisonment the consequence of any non-trivial breach of the good behaviour bond.

Orders Made

  • Convicted of supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985
  • Sentenced to 18 months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, upon entering a good behaviour bond for the duration of the term, with no additional conditions
  • Backup charge of possession of a prohibited drug withdrawn and dismissed
  • No further order under s 10A of the Crimes (Sentencing Procedure) Act 1999 in relation to goods in custody
  • $865 in cash forfeited pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989, by consent

Key Takeaways

  • The District Court confirmed that a supply offence involving 9.3 grams of methylamphetamine, accompanied by scales, bulk packaging, and drug-related communications, crosses the s 5 threshold for a term of imprisonment, even where the supply was motivated by addiction rather than commercial gain.
  • Supply to fund one's own addiction, limited to known users and without market expansion, can place an offence just below the mid-range of objective seriousness under s 25(1) of the Drug Misuse and Trafficking Act 1985.
  • A 25% discount applied to reflect the utilitarian value of an early guilty plea entered in the Local Court, consistent with the Court of Criminal Appeal's guidance in R v Thomson and Houlton.
  • Suspension under s 12 remained available even where the s 5 threshold was crossed, where the combination of genuine rehabilitation, completed treatment, strong community ties, stable employment, and an almost clear prior record justified serving the term in the community.
  • Excellent prospects of rehabilitation, demonstrated through concrete post-offence conduct rather than mere assertion, carried significant weight in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 11, 12, 10A
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383 (Court of Criminal Appeal, on guilty plea discounts)