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District Court 23 February 2018

R v Swanton

[2018] NSWDC 90

Drugs
CRIMINAL LAW SENTENCE FORM 1 OFFENDER HAS BEEN SUBJECT TO S11 BOND SUPPLY PROHIBITED DRUG 1,4

Citation: R v Swanton [2018] NSWDC 90
Court: District Court of New South Wales
Date: 23 February 2018
Judge(s): Berman SC DCJ

Background

The offender was arrested on 27 April 2015 after police searched her and the vehicle she was travelling in. Officers found a plastic water bottle containing 375 grams of 1,4-Butanediol, 101.9 grams of GBL, a small quantity of methylamphetamine, 1.99 grams of MDMA, 4.8 grams of ketamine, and $1,905 in cash. Police also found drug ledgers, syringes, empty satchels, and other paraphernalia consistent with an active drug supply operation.

Despite being granted bail for those offences, the offender was searched again on 13 May 2015. On that occasion, police found 8.81 grams of methylamphetamine in multiple resealable bags, a further $775 in cash, a small quantity of Valium, more empty bags, and another drug ledger.

The offender pleaded guilty to three counts of supplying a prohibited drug (1,4-Butanediol, MDMA, and methylamphetamine), with further offences including possession of ketamine, possession of a restricted substance, and two counts of dealing with property suspected to be proceeds of crime listed on a Form 1 (offences taken into account at sentence without a separate finding of guilt).

  • What sentence was appropriate for a serious, multi-drug supply offender whose criminal conduct was aggravated by offending while on bail?
  • Whether the offender's demonstrated post-arrest rehabilitation and compliance with urinalysis conditions justified referral for assessment for an Intensive Correction Order (ICO) rather than immediate full-time custody.
  • What discount applied to the sentence given the guilty plea and time already spent in custody?

Decision

His Honour described the offending as significantly more serious than typical drug supply matters before the court, citing two aggravating features: the variety and volume of drugs involved, and the offender's commission of the second set of offences while on bail for the first. The judge noted he could not recall a case of comparable criminality that had not resulted in full-time custody.

Despite that assessment, the court found the offender had undergone a remarkable and credible change since her arrest. When the matter was first listed for sentence on 26 May 2017, the offender was already demonstrating rehabilitation through employment, character references, and early engagement with drug treatment. However, her assertion that she had ceased using drugs was not yet supported by evidence, and the matter was adjourned under section 11 of the Crimes (Sentencing Procedure) Act for a period during which she was required to undergo fortnightly urinalysis.

His Honour noted the offender returned as the first person to have completed urinalysis every fortnight throughout the entire adjournment period, with no indication of any drug use. The court accepted her expressions of remorse as genuine. These factors, combined with the absence of opposition from both the Crown and defence to an ICO assessment, led his Honour to refer the offender for an ICO suitability assessment rather than impose immediate full-time custody. The court indicated a final sentence of two years or less was likely. A 15% discount was applied for the guilty plea, and nine days of pre-sentence custody were noted.

Orders Made

  • The offender was referred for assessment as to suitability to serve her sentence by way of an Intensive Correction Order.
  • The matter was adjourned to 20 April 2018 for the finalisation of sentence.

Key Takeaways

  • The District Court treated offending while on bail and the breadth of drug types involved as significant aggravating factors capable of distinguishing an otherwise common category of offence.
  • Consistent, verified compliance with a court-ordered urinalysis program across an extended adjournment period carried considerable weight in the sentencing court's assessment of rehabilitation.
  • Under section 11 of the Crimes (Sentencing Procedure) Act, a court may adjourn proceedings to allow an offender to demonstrate behavioural change before the final sentence is imposed.
  • A referral for ICO assessment does not equate to an ICO being granted; it is a preliminary step, and the court confirmed that a sentence of two years or less would be the likely range before such a referral is appropriate.
  • Privileged personal background did not operate as mitigation. His Honour specifically observed the offender had no social disadvantage to explain her serious drug dealing, though genuine remorse and post-arrest conduct were given substantial weight.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 11 (adjournment for rehabilitation assessment)

Cases:
No cases were cited in the judgment text or metadata.