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District Court 23 February 2018

R v Vo

[2018] NSWDC 81

Drugs
CRIMINAL LAW SENTENCE FORM1 SUPPLY PROHIBITED DRUG OFFENDER RETAINS SUPPORT OF HIS FAMILY SIGNIFICANT PERIOD IN CUSTODY ALREADY.

Citation: R v Vo [2018] NSWDC 81
Court: District Court of New South Wales
Date: 23 February 2018
Judge(s): Berman SC DCJ

Background

The offender appeared for sentencing on one charge of supplying a prohibited drug (methylamphetamine), with two further offences to be taken into account on a Form 1 (a procedural mechanism allowing related charges to be considered at sentencing without separate convictions). The principal offence arose from an incident on 23 November 2016, when police observed the offender discard a plastic bag containing 15.2 grams of methylamphetamine with a purity of 68.5% from a parked car.

The more serious Form 1 matter involved the offender driving another man to a location where that man supplied 10.25 grams of heroin to an undercover police operative in exchange for $4,000. The offender committed this second supply offence while already on bail for the principal charge. A further Form 1 matter concerned possession of prepaid cards in another person's name.

The offender had been in full-time custody for one year and ten days by the time of sentencing, following a refusal of bail after the heroin supply arrest. He had pleaded guilty at the earliest opportunity and retained strong family support, including from his parents and sister, who were present in court.

  • What form of custodial sentence was appropriate given the nature of the offending and the offender's personal circumstances?
  • Whether the time already served in custody, combined with prospects for rehabilitation, supported referral for assessment for an Intensive Corrections Order (ICO) rather than continued full-time imprisonment.
  • What weight should be given to the early guilty plea, the offender's drug dependency history, and his family support network in determining the appropriate sentence.

Decision

Berman SC DCJ accepted that a custodial sentence was required, but turned to the question of its form. Having regard to the period already served (just over one year), the judge considered that a total sentence likely falling below two years could be imposed, which opened the possibility of an ICO. An ICO is a community-based order that allows an offender to serve a sentence of imprisonment in the community under strict supervision, rather than in full-time custody.

The judge placed significant weight on the offender's retained family support, his son's presence in the family home, a job offer upon release, and his reported abstinence from drugs during custody. His Honour concluded that an ICO would provide more meaningful rehabilitation prospects than release on parole, and that the offender was not someone whose prospects should be abandoned.

The early guilty plea was noted as a factor contributing to the decision to pursue a different sentencing form, though the judge declined to quantify it as a separate discount. The contemplated sentence, depending on the ICO assessment outcome, fell in the range of 12 to 18 months' imprisonment. The Crown did not oppose the ICO referral.

Orders Made

  • The offender was granted bail for the purpose of assessment as to suitability to serve a sentence of imprisonment by way of an Intensive Corrections Order.
  • The offender was required to reside at a specified address.
  • The offender was required to use no illegal drugs whatsoever.
  • The offender was directed (not as a formal bail condition) to contact the Fairfield Probation and Parole office within seven days of release to facilitate the ICO assessment process.
  • A backup offence in the section 166 sequence was withdrawn by consent.
  • Formal remarks on sentence were reserved to the next occasion.

Key Takeaways

  • The District Court found that where an offender has already served a substantial period in pre-sentence custody, a sentence of under two years may be available, which in turn opens the pathway to an ICO rather than continued full-time imprisonment.
  • Strong and consistent family support, combined with demonstrated abstinence from drugs during custody and concrete post-release plans, weighed heavily in favour of rehabilitation-focused sentencing.
  • An ICO was preferred over parole as a sentencing mechanism because it was considered to offer a more structured and intensive framework for rehabilitation.
  • A guilty plea at the earliest opportunity was treated as one of several cumulative factors informing the sentencing approach, rather than being quantified as a standalone percentage discount.
  • Committing a further supply offence while on bail for an earlier supply charge was identified as an aggravating feature of the overall offending.

Legislation and Cases Referenced

Legislation:
- Form 1 procedure under NSW criminal sentencing legislation (specific Act not cited in the judgment)
- Section 166 of the relevant criminal procedure legislation (referenced in relation to the withdrawn backup offence)

Cases cited: None cited in the judgment.