Citation: R v Jones [2018] NSWDC 439
Court: District Court of New South Wales
Date: 7 December 2018
Judge(s): Berman SC DCJ
Background
The offender, Jade Jones, was found by police in June 2017 sitting in a parked car at Warners Bay. Officers, who had observed what appeared to be a drug transaction, searched the vehicle and discovered a locked box containing four mobile phones, resealable bags, and 45.62 grams of MDMA. The apparent "transaction" they had witnessed turned out to involve a bag of McDonald's food, not drugs. The offender pleaded guilty to supplying a prohibited drug.
While on bail pending sentence, police executed a search warrant at the offender's premises in March 2018 and found a pill press, chemicals, metal dyes, and related equipment. The offender eventually surrendered to police and admitted he had been using the equipment to grind down low-quality MDMA pills and repress them. He spent 73 days in pre-sentence custody.
Mr Jones had no prior convictions. He had experienced a difficult childhood marked by neglect due to his mother's bipolar affective disorder, an ADHD diagnosis that went untreated, and the onset of drug use from age 18. The sentencing proceedings turned on whether the matter could be resolved by an intensive corrections order (ICO) rather than full-time imprisonment, and whether the offender's prospects of rehabilitation justified an adjournment under section 11 of the relevant legislation.
Legal Issues
- Whether the offending, which reflected significant involvement in drug dealing, warranted full-time imprisonment or could be addressed by an ICO
- Whether the offender's personal circumstances, including his neglected childhood, drug dependency, and absence of prior convictions, supported a finding of good prospects for rehabilitation
- Whether the nature of ICOs as currently administered means they can still be characterised as "a sentence of considerable severity" as described in earlier Court of Criminal Appeal authority
- Whether a section 11 remand (an adjournment of sentencing to assess an offender's progress) was appropriate in the circumstances
Decision
His Honour accepted the Crown's submission that the offending demonstrated significant involvement in drug dealing. The offender possessed a substantial quantity of MDMA and had the equipment and knowledge to manufacture pills, pointing to a commercial operation rather than mere personal use. The court noted that, had sentencing proceeded on the day, a full-time custodial sentence was virtually certain.
However, the court identified meaningful prospects of rehabilitation. The offender had no prior convictions, had entered early guilty pleas warranting a 25 per cent discount, had engaged with a drug counsellor, and had a concrete job offer and family responsibilities. His Honour acknowledged some scepticism about statements in the pre-sentence report in which Mr Jones denied supplying drugs to others, but accepted that Mr Jones had since come to recognise the broader harm caused by his conduct.
On the question of ICOs, the court noted that the characterisation by Simpson J in Robertson v R that "an ICO is a sentence of considerable severity" was made in the context of how ICOs operated at that time. His Honour observed, without deciding the point, that the same characterisation does not necessarily apply given the way ICOs may now be served.
The court declined to proceed to final sentence, instead imposing a section 11 remand to assess Mr Jones' rehabilitation over the following months. The conditions were designed to test whether the offender could remain drug-free and demonstrate genuine rather than merely promised reform.
Orders Made
- Section 11 remand imposed, with the matter adjourned to 6 March 2019 (for a progress review) and 10 October 2019 (for sentence)
- Offender subject to supervision by the Probation and Parole Service
- Prohibition on the use of any illegal drugs
- Mandatory urinalysis at least fortnightly, with results to be provided to the court; leave granted to seek relaxation of testing frequency if all results are clean and costs become prohibitive
- Offender required to take up the identified job offer or provide a satisfactory explanation for not doing so
- Updated sentencing assessment report ordered for 6 March 2019
Key Takeaways
- The District Court declined to impose a final sentence and instead used a section 11 remand to monitor rehabilitation, demonstrating that demonstrated (not merely promised) reform can be a decisive factor in determining whether full-time imprisonment is warranted.
- A neglected childhood, untreated ADHD, drug dependency, absence of prior convictions, and early guilty pleas were each treated as relevant mitigating factors, though none individually displaced the seriousness of commercial-scale drug supply.
- The court flagged, without resolving definitively, that the description of an ICO as "a sentence of considerable severity" from Robertson v R [2017] NSWCCA 205 may require revisiting given changes to how ICOs are now administered.
- Where a pre-sentence report records statements inconsistent with remorse, a court may still find genuine remorse if the offender gives credible evidence of changed understanding at the sentencing hearing, though such inconsistencies will be scrutinised carefully.
- Community safety was identified as the ultimate purpose of sentencing, with the court noting it can be promoted either through deterrent punishment or through sentences focused on rehabilitation, depending on the individual circumstances.
Legislation and Cases Referenced
Cases:
- Robertson v R [2017] NSWCCA 205 (characterisation of ICO as a sentence of considerable severity)
Legislation:
- Section 11 remand provisions (specific Act not identified in the judgment text)