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District Court 14 December 2018

R v Awad

[2018] NSWDC 534

Drugs
CRIMINAL SENTENCE MDMA SELLING DRUGS OUTSIDE DANCE FESTIVAL DEEMED SUPPLY SUBJECTIVE MATTERS

Citation: R v Awad [2018] NSWDC 534
Court: District Court of New South Wales
Date: 14 December 2018
Judge(s): King SC DCJ

Background

The offender, a 25-year-old man (aged 23 at the time of the offence), appeared for sentencing after pleading guilty to supplying an indictable quantity of a prohibited drug, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. The offence occurred on New Year's Eve 2016 at a dance festival held at the Hordern Pavilion in Moore Park, Sydney.

Police observed the offender hand an item from a satchel bag to an unknown male who then walked away quickly. Officers approached the offender and, upon searching him, found 36 capsules of MDMA with a total weight of 2.15 grams, along with two mobile phones. The offender cooperated with police, voluntarily disclosing the drugs including those in his satchel.

The offender was originally committed for trial in June 2017 but entered a plea of guilty when the matter came before the District Court in March 2018. He was sentenced in December 2018.

  • Whether the quantity of MDMA (2.15 grams) was properly characterised as supply under the deeming provision in section 29 of the Drug Misuse and Trafficking Act 1985
  • Where the offending fell on the scale of objective seriousness
  • What discount was appropriate for the guilty plea, given it was entered after committal for trial
  • Whether the matter crossed the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 requiring a term of imprisonment
  • What weight to give the offender's subjective circumstances, including his letter of apology, employment, and prior criminal history

Decision

The court accepted that the 36 capsules of MDMA fell within the deeming provision under section 29 of the Drug Misuse and Trafficking Act 1985. The quantity involved was plainly inconsistent with personal consumption, and the court found that the offender attended the festival with the purpose of supplying the capsules to others, even though no individual act of supply was directly observed.

The court placed the offending at the lower end of the range of objective seriousness. The maximum penalty for the offence is 15 years imprisonment and/or 2,000 penalty units, but there is no standard non-parole period attached to this offence.

On the plea discount, the court allowed 15% for the utility of the plea. The late timing of the plea, entered only after committal for trial, meant the offender was not entitled to the full 25% discount that an early guilty plea would attract. The court gave limited weight to the letter of apology, noting that expressions of remorse in correspondence to the court carry less weight than evidence on oath and are harder to assess for sincerity. The fact that the offender was charged with possession of cocaine less than two months after the festival offence further undermined the claimed contrition.

The court concluded the offending did not cross the threshold under section 5, which requires a sentence of imprisonment only where no other sentence is appropriate. Having assessed the offender's rehabilitation prospects and reoffending risk as low, the court imposed a Community Corrections Order. The court also noted a change in the nature of Intensive Correction Orders (ICOs) under newer legislative provisions, observing that ICOs had effectively been downgraded from a significant penalty to something resembling an unsupervised bond for low-to-medium risk offenders.

Orders Made

  • The offender was convicted and sentenced to a Community Corrections Order of two years' duration
  • Standard conditions applied: no offences to be committed during the order, and the offender must report to the court if required in the event of a breach
  • No additional conditions were imposed
  • A backup charge of possessing a prohibited drug was withdrawn and dismissed

Key Takeaways

  • The District Court applied the deeming provision under section 29 of the Drug Misuse and Trafficking Act 1985, finding that possession of 36 MDMA capsules at a dance festival was consistent only with supply, not personal consumption.
  • A plea entered after committal for trial attracted only a 15% discount for utility, rather than the 25% available for an early guilty plea.
  • Letters of apology addressed to a court carry limited evidential weight, particularly where subsequent offending undermines the claimed remorse.
  • Under section 5 of the Crimes (Sentencing Procedure) Act 1999, imprisonment is not mandated unless no other sentence is appropriate. Here, the lower end objective seriousness and low reoffending risk meant a Community Corrections Order was sufficient.
  • The sentencing judge expressed the view that legislative changes to ICOs had diminished their practical severity, rendering them comparable to an unsupervised bond for lower-risk offenders, a consideration that informed the choice of sentence in this case.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), sections 25(1) and 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5 and 9

Cases:
No cases were cited in the judgment.