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District Court 14 November 2018

R v Morrish

[2018] NSWDC 535

DrugsPublic order & justice offences
CRIMINAL LAW SENTENCE FORM 1 INDICIA OF DRUG SUPPLY

Citation: R v Morrish [2018] NSWDC 535
Court: District Court of New South Wales
Date: 14 November 2018
Judge: Judge W Hunt

Background

The offender appeared for sentencing on a principal charge of knowingly taking part in the supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act. The charge arose from events on 15 December 2017, when police discovered three zip-lock bags containing a total of 14.79 grams of methamphetamine in a bag the offender had left in a taxi on arriving at Miranda police station to report for bail.

Also in the bag were three mobile phones, $200 cash, ATM withdrawal receipts, and 100 small resealable bags. The offender initially denied ownership of the bag, then claimed it had simply been given to him, and ultimately exercised his right to silence during police interview.

A further offence of resisting a police officer in the execution of duty was listed on a Form 1 (a procedure under which an additional offence is taken into account at sentencing for the principal charge without a separate conviction being recorded). That offence arose during the same attendance at the police station, when the offender briefly resisted arrest after becoming agitated about what he believed was a duplicate warrant.

  • What was the appropriate objective seriousness of the supply offence, given the quantity of drug and the surrounding circumstances?
  • What weight should be given to the offender's personal circumstances, criminal history, and the Form 1 offence?
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory default ratio.
  • How to calculate the sentence having regard to pre-sentence custody, parole revocation, and short sentences served concurrently while bail-refused.

Decision

Judge Hunt characterised the offence as sitting at the top of the low range of objective seriousness. The weight of 14.79 grams was roughly three times the indictable quantity but remained towards the lower end of the 5-to-250 gram range. While the presence of three phones and 100 resealable bags constituted indicia of supply, the court found no evidence of a sophisticated or commercial operation, describing the offender as a user and street-level dealer. Aggravation arose from the offender being on both bail and section 9 bonds at the time.

The court noted that subsequent legislative amendments had reclassified offences of this type as Table 1 matters, making them likely to be dealt with in the Local Court. That legislative change was treated as a relevant indicator of the perceived seriousness of such offending, and the court had regard to the jurisdictional limits that would have applied in that forum.

The offender received a 25 per cent utilitarian discount for his early guilty plea. Mitigating factors included the absence of evidence of substantial harm, no finding of planned or organised activity, and some remorse. The court accepted that deemed supply is marginally less serious than actual supply. The offender's difficult early childhood, exposure to domestic violence, and psychological conditions including severe depression and severe anxiety were weighed against a criminal history that denied leniency and guarded, rather than good, prospects of rehabilitation.

Special circumstances were found on three bases: the need for drug rehabilitation, the principle of totality across the sentence, and the risk of institutionalisation given the offender's increasing periods in custody. The court adopted the reasoning in Jinnette v R that extending the parole period to assist reintegration also serves a protective function for the community.

Orders Made

  • Principal offence (knowingly take part in supply of prohibited drug): convicted and sentenced to 15 months imprisonment, commencing 14 August 2019 and expiring 13 November 2019.
  • Non-parole period of 10 months, with earliest release to parole on 13 June 2019.
  • Special circumstances found, resulting in a parole period of 5 months rather than the standard one-third.
  • Form 1 offence (resist officer in execution of duty) taken into account.
  • Possessing a prohibited drug charge (on the 166 certificate, as a back-up to the supply charge) withdrawn and dismissed.

Key Takeaways

  • The District Court treated the offender as a user and street-level dealer rather than a commercial supplier, placing the offence at the top of the low range of seriousness despite indicators of supply such as multiple phones and resealable bags.
  • Subsequent legislative amendments reclassifying comparable offending as a Local Court matter were accepted as relevant context in assessing objective seriousness, even though those amendments did not apply at the time of the offence.
  • Special circumstances justifying an extended parole period can rest on a combination of factors: the rehabilitation needs of the offender, totality, and the risk of institutionalisation where a young offender is spending increasing periods in custody.
  • Following Jinnette v R, an extended period of supervised parole may be framed not only as beneficial to the offender but as a protective measure for the community, by creating greater opportunity to establish a law-abiding life.
  • Calculating pre-sentence custody required care where the offender had served short sentences during the period of bail refusal: credit was reduced by the days attributable to those separate sentences.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 5, s 9

Cases
- Bugmy v R [2013] HCA 37
- Jinnette v R [2012] NSWCCA 217