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District Court 6 July 2018

R v Burns

[2018] NSWDC 200

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUGS A SERIES OF UNFORTUNATE EVENTS.

Citation: R v Burns [2018] NSWDC 200
Court: District Court of New South Wales
Date: 6 July 2018
Judge: Berman SC DCJ

Background

Police arrested the offender in the early hours of Saturday 26 November in Potts Point, an area known to them for drug sales and procurement. Officers observed a man approach the offender's hire car, enter the front passenger seat, and exchange $250 for a small resealable bag of cocaine. When police stopped both men, they found the purchased cocaine on the buyer and, in the offender's car, 11 further bags of cocaine and a bag of MDMA.

In a police interview conducted shortly after arrest, the offender admitted supplying the cocaine and possessing the remaining drugs. He told police he had purchased 20 bags of cocaine for $4,400 intending to supply friends without profit at a party hosted by an acquaintance. He said some bags had already been given away and some used with his partner, leaving the bags police found.

The court expressed uncertainty about whether this account was truthful, noting several features that raised suspicion: the location was known for street drug dealing, the offender was driving a hire car, the only corroboration of the party came from the offender himself, and a series of coincidences undermined his explanations. The matter was adjourned to allow the offender to obtain supporting evidence.

  • Whether the facts established that the offender was a commercial drug dealer supplying the public, or someone supplying a limited number of friends without profit.
  • What findings of fact the court should make about the purpose and extent of the supply, given contested and partly uncorroborated evidence.
  • What sentence was appropriate, taking into account the offender's plea of guilty, drug use history, subsequent bail breach, personal circumstances, and the seriousness of the offence.

Decision

The court ultimately accepted the offender's account of the party and his intended use of the cocaine, assisted by an uncontested affidavit from the party's host. That witness confirmed he knew the offender was bringing cocaine to supply to friends at the party and that he himself intended to purchase some. Because the Crown did not seek to cross-examine this witness, the court accepted his evidence and sentenced the offender on the basis that the cocaine was intended for a limited, known group rather than for open commercial supply.

The court emphasised that this factual finding did not render the offence minor. It remained a serious matter, and the court noted that drug use and dealing cause real harm to the community. The offender's account of a "series of unfortunate events," including his need for a hire car, a casino win the previous night, and the death of a key witness, was noted with scepticism, though the court ultimately could not determine whether the explanation was false.

The offender's personal circumstances were mixed. He had no deprived upbringing and no ready excuse for his conduct. However, he had pleaded guilty at the earliest opportunity, had engaged with drug counselling through an organisation called The Cabin, had returned negative drug tests throughout the remand period, and was supported by his employer, partner, and family. A bail breach involving drug use during the remand period was noted and accepted in context, given the explanation provided and uncontested by the Crown. The court expressed cautious optimism that reoffending was unlikely, but found a custodial sentence was nonetheless required.

Orders Made

  • Conviction and fine of $1,000 for the offence of driving while suspended (the original section 10 bond revoked).
  • For the supply of a prohibited drug: a custodial sentence of two years or less referred for assessment for an Intensive Corrections Order (ICO).
  • Matter adjourned to 31 August 2018 for ICO suitability assessment.
  • Forfeiture order made by consent.
  • Form 1 matters taken into account in sentencing.

Key Takeaways

  • Where an offender supplies drugs to a limited, known group without profit, the District Court treated that factual finding as significantly reducing the seriousness of the offence compared to open commercial dealing, though the offence remained serious.
  • Acceptance of a contested factual account depended here on the Crown's decision not to cross-examine supporting witnesses, which allowed the court to accept affidavit evidence without challenge.
  • A guilty plea at the earliest opportunity was treated as a significant mitigating factor, contributing (alongside other circumstances) to the court's decision to explore a non-full-time custodial option.
  • Drug use in breach of bail conditions during the remand period did not preclude an ICO referral but was a factor weighed in the overall sentencing exercise.
  • The District Court applied scepticism to a series of coincidental explanations without making adverse findings of fact, instead acknowledging genuine uncertainty and sentencing on the basis most favourable to the offender where evidence was uncontested.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 (bond in lieu of conviction, referenced in relation to the prior driving offence)

Cases cited: None cited in the judgment text or metadata.