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District Court 18 October 2018

R v Aston (No 2)

[2018] NSWDC 428

Drugs
CRIME SENTENCE DRUG FREE DURING THAT PERIOD

Citation: R v Aston (No 2) [2018] NSWDC 428
Court: District Court of New South Wales
Date: 18 October 2018
Judge(s): Neilson DCJ

Background

The offender was intercepted by a drug detection dog at the entrance to the "Knockout Circuz Dance Party" at Sydney Olympic Park on 10 December 2016. Police found 115 brown tablets marked with a "MasterChef" logo concealed in his underwear. The tablets contained 3,4-methylenedioxyamphetamine (3,4MDA), a synthetic amphetamine derivative similar to but more potent than MDMA, with a total weight of 33 grams at 7.5% purity.

The offender told police immediately upon interception that a man of Middle Eastern appearance outside the venue had asked him to carry the tablets inside in exchange for a promised payment of $600. He pleaded guilty to a charge of supplying a prohibited drug, the supply being "deemed" under the relevant legislation because he had the quantity on his person.

The offender was a man in his early twenties whose history of drug addiction had begun shortly after leaving school. He had also been called up for breach of two existing good behaviour bonds relating to prior driving offences. By the time of sentencing, he had spent three months and seven days in custody and had remained drug-free throughout that period.

  • What sentence was appropriate for deemed supply of 3,4MDA in the circumstances, taking into account the offender's personal history, drug addiction, and the manner in which he came to possess the drugs?
  • Whether the offender's account of receiving the drugs from a stranger should be accepted on the balance of probabilities, or whether the more likely inference was that the drugs were his own property intended for resale.
  • What, if any, weight should be given to the offender's time in custody, his rehabilitation progress, and his prospects of continued drug-free living?
  • What orders were appropriate for the breach of two existing section 9 bonds (good behaviour bonds)?

Decision

Neilson DCJ accepted the offender's account that he had agreed to carry the tablets into the venue at the request of an unidentified man, in exchange for the promise of $600. The court noted that the offender gave this explanation immediately and consistently when first approached by police, which lent it credibility. The court also observed that the offender had consumed illicit drugs before arriving at the venue, which was consistent with impaired judgement at the time he agreed to the arrangement.

The Crown argued that the court could not be satisfied on the balance of probabilities that the offender's version was true, suggesting instead that he owned the drugs and intended to sell them himself. The court rejected that submission, finding the contemporaneous and consistent account given to two separate officers persuasive. Having heard and observed the offender give evidence, His Honour found him credible.

On the question of sentence, the court gave significant weight to the offender's youth, his long history of drug addiction, his genuine remorse, his drug-free period in custody, and his expressed commitment to rehabilitation. The court considered that a full-time residential drug rehabilitation program was a central component of any appropriate sentence, and that an Intensive Correction Order (ICO) served in the community, incorporating mandatory attendance at the Bridge program at William Booth House in Surry Hills, was the right outcome rather than further full-time imprisonment.

In relation to the two breached section 9 bonds, the court revoked both bonds and imposed short periods of imprisonment that had already been served during the offender's time in custody, so no further custody was required for those matters.

Orders Made

  • Bond breach (charge H61391802): Bond revoked; 49 days imprisonment, commencing 14 July 2018 and expiring 31 August 2018 (already served).
  • Bond breach (charge H61391804): Bond revoked; 48 days imprisonment, commencing 1 September 2018 and expiring 18 October 2018 (already served).
  • Deemed supply of 3,4MDA: Convicted; sentenced to imprisonment for one year and nine months, to be served by way of an Intensive Correction Order (ICO) in the community, commencing 18 October 2018.
  • ICO conditions included: no further offending; supervision by a Community Corrections Officer; mandatory participation in the Bridge drug and alcohol rehabilitation program at William Booth House, Surry Hills for a minimum period determined by a Community Corrections Officer; approved residential arrangements; abstention from illicit drugs and unprescribed medication; and compliance with any further rehabilitation or mental health referral required by a Community Corrections Officer.
  • Possession charge (H62341170, sequence 1): Dismissed.

Key Takeaways

  • The District Court accepted that a contemporaneous and consistent account given by an offender to multiple police officers at the time of arrest can be sufficient to displace the prosecution's alternative inference on the balance of probabilities, even where the offender's story might otherwise appear improbable.
  • Where an offender carries drugs into a venue at a stranger's request in exchange for payment, the charge of deemed supply applies regardless of whether the offender owned the drugs or intended to profit further from their distribution.
  • Significant mitigating weight was given to the offender's youth, his underlying drug addiction, his drug-free period in pre-sentence custody, and his demonstrated commitment to rehabilitation when determining the form and length of the sentence.
  • An ICO incorporating a mandatory residential rehabilitation program was treated as capable of addressing both the punitive and rehabilitative objectives of sentencing in circumstances involving a young, drug-dependent offender with limited criminal antecedents for serious drug offences.
  • Pre-sentence custody can be applied to satisfy penalties for breached bonds, such that no additional period of imprisonment needs to be served for those ancillary matters.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (section 9 bonds, Intensive Correction Orders)

Cases:
- Parente v R [2017] NSWCCA 284