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District Court 24 March 2017

R v Meenesh Kumar

[2017] NSWDC 64

Drugs
CRIMINAL LAW DRUG OFFENCE SUPPLY PROHIBITED DRUG LOWER RANGE OF OBJECTIVE SERIOUSNESS DISCOUNT FOR GUILTY PLEA NO PREVIOUS CONVICTIONS

Citation: R v Meenesh Kumar [2017] NSWDC 64
Court: District Court of New South Wales
Date: 24 March 2017
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to one charge of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He had agreed to act as a courier for a man known as "Jay," collecting and transporting what he believed to be approximately one kilogram of a prohibited drug from Hornsby to the city, in exchange for payment of between $1,000 and $3,000.

Police intercepted the offender while he was driving along Pennant Hills Road and searched his vehicle. They found a bag containing 522.6 grams of dimethylsulfone, a substance used as a cutting agent to dilute prohibited drugs. Dimethylsulfone is not itself a prohibited drug. Police also found $1,250 in cash, which the offender initially denied knowledge of before making admissions in a second police interview.

The offender was also charged with dealing with property suspected to be proceeds of crime in relation to the cash found on him. That offence was taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without a separate conviction).

  • Whether the offender could be sentenced for supplying a prohibited drug when the substance actually transported was not a prohibited drug, but he genuinely believed it was
  • On what factual basis the sentence should be determined, given the Crown could not prove beyond reasonable doubt that the offender had agreed to deliver more than an indictable quantity of a specific prohibited drug
  • How to assess the objective seriousness of the offence in the absence of evidence about the identity or purity of the drug the offender believed he was carrying
  • What weight to give to the various mitigating factors, including guilty plea, assistance to authorities, prior good character, remorse, and low likelihood of reoffending
  • Whether a sentence of full-time imprisonment was necessary, or whether the sentence could properly be suspended

Decision

Hatzistergos DCJ confirmed that the offence of supply under s 25(1) can be established where an offender agrees to supply a substance he genuinely believes to be a prohibited drug, even if the substance turns out not to be one. The sentencing court was therefore required to sentence the offender on the basis of his agreement and belief, not on the nature of what was actually transported.

The court assessed the objective seriousness of the offence as falling in the lower range. The offender's role was that of a courier or transporter only, with no involvement in selling, no evidence of substantial participation in drug trafficking, and remuneration that was transactional rather than profit-based. Because the Crown could not establish the identity or purity of the drug the offender believed he was carrying, the court was limited to sentencing on what was proven beyond reasonable doubt. The offender knew he was agreeing to transport an indictable quantity of an unknown prohibited drug.

In assessing mitigating factors, the court gave weight to the offender's guilty plea, his assistance to law enforcement authorities, the absence of prior convictions, his prior good character as supported by character references, his genuine remorse, and his low likelihood of reoffending with reasonable prospects of rehabilitation. Pre-sentence custody was also taken into account.

The court concluded that full-time imprisonment was not necessary to satisfy the purposes of sentencing in this case. Applying s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court suspended the entire sentence and released the offender on a good behaviour bond.

Orders Made

  • The offender is convicted
  • The offender is sentenced to a term of 16 months' imprisonment
  • Execution of the whole sentence is suspended for 16 months (pursuant to s 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999)
  • The offender is released on a good behaviour bond for 16 months (pursuant to s 12(1)(b))
  • The Form 1 offence (dealing with property suspected to be proceeds of crime) is taken into account in imposing the sentence

Key Takeaways

  • A conviction for supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 does not require that the substance actually transported be a prohibited drug; it is sufficient that the offender believed it was one and agreed to supply it.
  • Where the Crown cannot prove beyond reasonable doubt the identity or purity of the drug an offender believed they were carrying, the sentencing court is confined to the facts actually established, which may limit the assessed seriousness of the offence.
  • The District Court placed the offence in the lower range of objective seriousness, treating courier or transporter status, absence of involvement in selling, and transactional (rather than profit-based) remuneration as relevant factors in that assessment.
  • Substantial mitigation was found in the combination of a guilty plea, assistance to law enforcement, no criminal history, prior good character, genuine remorse, and low risk of reoffending, all of which supported a non-custodial outcome.
  • Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend a sentence of imprisonment in full where full-time custody is not required to serve the purposes of sentencing.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
- Crimes Act 1900 (NSW) s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 10(1)(b), 12(1), 21A(2), 21A(3), 22, 23(1), 23(2), 24(a), 32(1)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Cicciarello v R [2009] NSWCCA 272
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Panetta v R [2016] NSWCCA 85
- R v Borkowski (2009) 195 A Crim R 152; [2009] NSWCCA 102
- R v Cheikh; R v Hoete [2004] NSWCCA 448
- R v Gu [2006] NSWCCA 104
- R v Khamas (1989) 108 A Crim R 499; [1999] NSWCCA 436
- R v Leroy [1984] 2 NSWLR 441
- R v Lo [2003] NSWCCA 313
- R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Shi [2004] NSWCCA 135
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Webb (2004) A Crim R 167; [2004] NSWCCA 330
- R v Yaghi (2002) 133 A Crim R 490; [2002] NSWCCA 490