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District Court 11 May 2018

R v Widjaja

[2018] NSWDC 544

Drugs
CRIME SENTENCE DEEMED SUPPLY OF PROHIBITED DRUGS NO EVIDENCE OF ACTUAL SUPPLY PRIOR GOOD CHARACTER MALE AGED 54 YEARS

Citation: R v Widjaja [2018] NSWDC 544
Court: District Court of New South Wales
Date: 11 May 2018
Judge(s): Neilson DCJ

Background

The offender, a 54-year-old Indonesian-born Australian permanent resident, was arrested in December 2015 when police executed a search warrant at his large nine-bedroom home in Maroubra, which he was renting to students. Officers located 64.39 grams of methylamphetamine and 232.2 grams of 1,4-butanediol in the upstairs common living area, along with 177.9 grams of gamma-Butyrolactone in the kitchen. There was no evidence of actual drug dealing: no deal bags, no scales, no ledgers, no unexplained cash, and no drug-related messages on any mobile phone.

The offender pleaded guilty to two counts of deemed supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985, and asked the court to take a further possession offence into account on a Form 1. His case was that the drugs were for communal personal use by himself and those sharing the house, rather than for supply to others.

The offender's drug use had begun around 2010 following the breakdown of his marriage and the effective loss of contact with his two sons. He had maintained voluntary urine drug screening since his arrest and continued under the care of a clinical psychologist throughout the proceedings.

  • What was the appropriate sentence for two counts of deemed supply of prohibited drugs where the quantities were above the indictable threshold but below the commercial quantity, and where there was no evidence of actual supply?
  • Whether the two sentences should be served concurrently or cumulatively, given the drugs were found on the same occasion at the same premises.
  • Whether an Intensive Correction Order (ICO) was an appropriate sentencing disposition given the offender's personal circumstances, rehabilitation progress, and low risk of reoffending.
  • What discount, if any, applied for a late guilty plea entered after the date originally fixed for trial.

Decision

Neilson DCJ found that both offences arose from a single course of conduct: the drugs were found at the same premises on the same occasion and reflected communal possession and use. Imposing cumulative or partially cumulative sentences would have risked double-punishing the offender, so concurrent sentences were appropriate.

His Honour assessed the appropriate head sentence for each count at two years' imprisonment, then applied a 10 percent discount for the late guilty plea, rounding down in the offender's favour to arrive at a head sentence of one year and nine months on each count.

The court accepted that the offender was a person of prior good character, that no aggravating factors were present, and that the Crown itself conceded this. The single prior matter on record dated from 2008 and had been dealt with by way of a section 10 bond, apparently connected to the same marital breakdown.

Neilson DCJ was satisfied the case was suitable for an Intensive Correction Order (ICO). The clinical psychologist's assessment described the offender's risk of reoffending as negligible, the Community Corrections report placed it at low to medium, and the offender had demonstrated sustained engagement with treatment. The court accepted that the offender was genuinely remorseful and unlikely to reoffend.

Orders Made

  • The offender was convicted on each of the two counts in the indictment.
  • Each count attracted a sentence of one year and nine months' imprisonment, to be served by way of Intensive Correction Order (ICO), commencing 11 May 2018, with sentences on each count to be served concurrently.
  • The offender was directed to report to the Community Corrections Office in Sydney City on Monday 14 May 2018.
  • The drugs were ordered to be destroyed.
  • The backup charges contained in the section 166 certificate were dismissed.

Key Takeaways

  • Where all drugs are found on a single occasion at a single premises and reflect a common course of conduct, a sentencing court may impose wholly concurrent sentences to avoid double punishment.
  • Under the deemed supply provisions of the Drug Misuse and Trafficking Act 1985, the Crown need not prove actual supply: possession of a quantity above the indictable threshold is sufficient. However, the absence of any indicia of dealing (no scales, no cash, no ledgers, no deal bags) remained relevant to the overall sentencing assessment.
  • A late guilty plea entered after the date fixed for trial still attracted a discount, though at a reduced rate: the District Court applied 10 percent and rounded down in the offender's favour.
  • Sustained post-arrest rehabilitation, including voluntary drug testing and ongoing psychological treatment, can support a finding of good prospects of rehabilitation and suitability for an ICO in place of full-time custody.
  • Prior good character, combined with an identified personal crisis as the context for offending and no aggravating factors, were significant considerations in the sentencing court's decision to impose a non-custodial disposition.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29, 166

Cases cited: None cited in the judgment.