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District Court 10 March 2017

R v Hunt

[2017] NSWDC 96

Drugs
CRIMINAL LAW SENTENCE FORM 1 POSSESSION OF A PROHIBITED DRUG SUPPLY PROHIBITED DRUG

Citation: R v Hunt [2017] NSWDC 96
Court: District Court of New South Wales
Date: 10 March 2017
Judge(s): Berman SC DCJ

Background

The defendant pleaded guilty at an early stage to knowingly taking part in the supply of a prohibited drug, specifically 28 grams of methylamphetamine. She also sought to have six related offences taken into account on a Form 1 at sentence. Those offences included two possession charges, two further charges of knowingly taking part in supply, and two supply charges.

The defendant was a street-level supplier who assisted an associate by putting buyers in contact with him and on occasion supplying drugs on his behalf. She had been supplied methylamphetamine by that associate and would onsell in smaller quantities. At arrest, she was also found in possession of drugs she intended to supply.

The matter had been adjourned on a previous occasion to allow the defendant the opportunity to demonstrate rehabilitation rather than merely promise it. Her progress was uneven: she continued using drugs for a period, entered a residential rehabilitation program (William Booth House) in late October 2016, but left after three months rather than the expected nine. Importantly, she contacted her lawyer and the Probation and Parole Service immediately upon leaving, and drug tests conducted from that point onwards returned negative results.

  • Whether the defendant's drug supply activities reached the threshold of "trafficking to a substantial degree," which would ordinarily require a full-time custodial sentence absent exceptional circumstances
  • Whether, given the sentence likely to be imposed, the defendant was eligible for assessment for an intensive corrections order (ICO) as an alternative to full-time custody
  • What weight to give the defendant's rehabilitation progress, early guilty plea, and Form 1 offences when determining the appropriate sentence

Decision

His Honour found that the defendant's conduct was serious. She was actively involved in the drug trade, not merely a peripheral participant, and her initial attempt to minimise her role was noted and rejected. The court acknowledged, however, that she had since recognised the full extent of her wrongdoing.

On the trafficking threshold question, the court was not satisfied that the defendant had been trafficking to a substantial degree. This meant the court was not required to find exceptional circumstances before considering a sentence other than full-time imprisonment. The Court of Criminal Appeal's longstanding position on substantial drug traffickers was acknowledged, as was an unresolved question about whether the availability of ICOs affects that rule, though the court did not need to resolve that question on the facts.

Taking into account the Form 1 offences and the early guilty plea, the court determined that a custodial sentence was required but that it was likely to be two years or less. A sentence at that length made the defendant eligible for consideration of an ICO. Her demonstrated sobriety, including multiple negative drug tests, and the personal significance of reconnecting with her children were factors noted in her favour.

The court adjourned sentencing to 12 May 2017 to allow for preparation of an ICO suitability report. His Honour made plain to the defendant that the outcome remained contingent on her continued drug-free conduct and the assessment process.

Orders Made

  • The defendant was referred for preparation of a report assessing her suitability for an intensive corrections order
  • The matter was adjourned to 12 May 2017
  • The reporting condition while on bail was deleted

Key Takeaways

  • The District Court confirmed that the Court of Criminal Appeal's rule requiring full-time custody for substantial drug traffickers (absent exceptional circumstances) did not apply where the court was not satisfied the defendant had trafficked to a substantial degree.
  • An unresolved question remains as to whether the availability of intensive corrections orders modifies the substantial trafficking rule; the court expressly declined to resolve it in these proceedings.
  • Where a likely custodial sentence falls at or below two years, the sentencing court may refer the matter for an ICO suitability assessment as an alternative to full-time imprisonment.
  • Demonstrated rehabilitation progress, including verified negative drug tests and prompt engagement with supervision authorities after a program lapse, carried meaningful weight in the court's exercise of sentencing discretion.
  • Form 1 offences and an early guilty plea were each treated as relevant considerations in arriving at the final sentence length.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the provided text. The offences fall under New South Wales drug supply and possession laws.

Cases:
- No specific cases were cited by name in the judgment, though the court referred to the established sentencing principles of the Court of Criminal Appeal regarding full-time custody for substantial drug traffickers.