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District Court 14 September 2018

R v Rede

[2018] NSWDC 444

Drugs
CRIME DRUG SUPPLY INTENSIVE CORRECTIONS ORDER FAILURE TO COMPLY WITH ASSESSMENT

Citation: [2018] NSWDC 444
Court: District Court of New South Wales
Date: 14 September 2018
Judge(s): Wilson SC DCJ

Background

The offender was charged with supplying methylamphetamine on three or more separate occasions within a 30-day period, contrary to section 25A(1) of the Drug Misuse and Trafficking Act 1985. The three transactions occurred between 31 May and 9 June 2016 in the Redfern and Waterloo area, each involving the sale of approximately 3.4 to 3.5 grams of methylamphetamine at approximately 79 per cent purity to an undercover registered source for $650 per transaction. All three exchanges were captured on concealed video recording devices.

The offender was arrested on 13 September 2016 and pleaded guilty on 23 March 2017 in the Downing Centre Local Court. Two further matters (goods in custody and entering enclosed land, both from February 2017) were placed on a Form 1 notice and taken into account at sentencing. Two additional Form 1 charges relating to goods in custody and entering enclosed land were noted by the Court as carrying relatively minor maximum penalties.

At a prior sentencing occasion, the Court had referred the offender for assessment as to his suitability for an intensive corrections order (ICO), an alternative to full-time custody under which an offender serves a prison sentence in the community under strict supervision. The ICO assessment report, however, found the offender unsuitable, which brought the matter back for final sentencing.

Legal Issues

  • What was the appropriate objective seriousness of the principal drug supply offence under section 25A(1) of the Drug Misuse and Trafficking Act 1985?
  • What weight should be given to mitigating factors, including the guilty plea, remorse, rehabilitation prospects, and addiction history?
  • Whether a sentence of full-time custody was required, having regard to the failed ICO assessment and the submission by defence counsel that a suspended sentence was available.
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the head sentence.

Decision

Objective Seriousness

The Court assessed the principal offending as falling just below the mid-range of objective seriousness. The three separate transactions, the offender's active role in supplying the drugs, and the higher-than-average purity of the methylamphetamine were relevant considerations. The relatively small quantity per transaction and the unsophisticated methodology supported placing the offending below the mid-range (at [24]-[26]).

Mitigating Factors and Subjective Circumstances

The Court accepted a 25 per cent discount for the guilty plea entered at a relatively early stage (at [7], [51]). No aggravating circumstances were established, and remorse was accepted as a mitigating factor, though the Court approached the subjective evidence with caution given the offender did not give sworn evidence at the sentencing hearing (at [27]-[29], [38]). The Court found the offender's prospects of rehabilitation were positive, noting his participation in drug and alcohol counselling and his positive attitude (at [40]). The offender's prior record was not regarded as sufficiently significant to deprive him of leniency to which he would otherwise be entitled (at [37]).

Full-Time Custody

The ICO assessment report found the offender unsuitable due to the assessor's inability to verify his proposed accommodation and his unreliability, including changing address three times and being absent during scheduled home visits (at [44]). Both parties accepted that the section 5 threshold for imprisonment was met. The Court rejected defence counsel's submission that a suspended sentence was appropriate, finding it would not adequately reflect the objective seriousness of the offending (at [49]-[50]).

Special Circumstances

The Court found special circumstances existed, warranting a non-parole period shorter than the statutory default ratio. This was the offender's first period of full-time custody, and his demonstrated engagement with rehabilitation supported an extended parole period in the community (at [52]).

Orders Made

  • The offender was convicted of ongoing supply of a prohibited drug (methylamphetamine) contrary to section 25A(1) of the Drug Misuse and Trafficking Act 1985, together with the Form 1 matters.
  • A head sentence of 12 months imprisonment was imposed, reflecting a 25 per cent reduction for the guilty plea.
  • A non-parole period of 8 months was imposed, commencing 12 September 2018 and expiring 11 May 2019.
  • The offender was to be released on parole on 11 May 2019, subject to good behaviour during the parole period.

Key Takeaways

  • Under section 25A(1) of the Drug Misuse and Trafficking Act 1985, three or more drug supply transactions within 30 consecutive days for financial reward can attract a maximum of 20 years imprisonment, with no standard non-parole period applying; the sentencing court must assess objective seriousness across all the circumstances rather than placing the offence on a fixed scale (at [23]-[26]).

  • A favourable rehabilitation profile and low re-offending risk may lead a court to consider an ICO as an alternative to full-time custody, but an unfavourable suitability assessment by Community Corrections, including an inability to verify accommodation and demonstrated unreliability, can eliminate that option entirely (at [40]-[44]).

  • The District Court confirmed that a suspended sentence will not necessarily be available where the objective seriousness of the offending warrants full-time custody, even where the head sentence falls within the range permitting suspension (at [49]-[50]).

  • Special circumstances justifying an extended parole period can be established where the offender has no prior experience of full-time custody and has demonstrated genuine engagement with rehabilitation programs (at [52]).

  • Where an offender does not give sworn evidence at a sentencing hearing to corroborate matters in pre-sentence reports, the court may approach the subjective case with caution and scrutiny, given the hearsay nature of that material (at [29]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- R v McNaughton (2006) 66 NSWLR 566