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District Court 12 April 2019

R v Ross

[2019] NSWDC 115

Drugs

Citation: R v Ross [2019] NSWDC 115
Court: District Court of New South Wales
Date: 12 April 2019
Judge: Grant DCJ

Background

The offender, a 40-year-old woman with a 20-year history of methamphetamine use, appeared for sentencing on two charges under the Drugs Misuse and Trafficking Act 1985: supply of a prohibited drug (methamphetamine) on an ongoing basis under s 25A, and a separate charge of supply under s 25(1). The s 25(1) charge was dealt with on a Form 1 (meaning it was taken into account in sentencing but not separately punished).

The ongoing supply charge arose from four controlled purchases by an undercover police operative between 6 and 20 March 2018, totalling 3.38 grams of methamphetamine sold for $1,200. All transactions occurred at the offender's home, where her 11-year-old son also resided. One transaction took place in the child's presence. The supply charge arose from the discovery of 11.41 grams of methamphetamine and $1,720 cash in the offender's handbag when she was arrested on 8 August 2018.

The offender pleaded guilty at the earliest opportunity and had been on remand for approximately eight months and five days by the time of sentencing. The central question for the court was what sentence was appropriate in light of her addiction, deprived background, and participation in rehabilitation programs while in custody.

  • Whether full weight should be given to the offender's 20-year addiction to methamphetamine as a factor reducing moral culpability
  • Whether the effects of profound childhood deprivation remained relevant mitigating factors at sentencing
  • Whether the threshold for imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed
  • Whether a Community Correction Order (CCO) was an appropriate alternative to a full-time custodial sentence
  • The appropriate discount for an early guilty plea

Decision

Grant DCJ assessed the objective seriousness of the offences as below the mid-range (for the ongoing supply) and at the lower end (for the deemed supply). Aggravating features included that the offending occurred for financial gain, took place in a home shared with a child, and occurred while the offender was subject to multiple s 9 bonds and on bail.

The court found that the offender's moral culpability was significantly reduced by her long-standing addiction. Relying on R v Day and R v Pham, His Honour accepted that a user-dealer who traffics to fund a personal habit bears lesser objective criminality than one motivated purely by greed. The court also applied the High Court's reasoning in Bugmy v R [2013] HCA 37, finding that the profound social deprivation the offender experienced in childhood, including losing her father at age 12 and leaving home at 14, retained full mitigating weight despite the passage of time and the offender's prior record.

His Honour rejected the Crown's submission that the threshold for imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed. He noted the recent legislative amendments (effective 24 September 2018) designed to promote community-based sentences and reduce short custodial terms. He also cited the Court of Criminal Appeal's decision in Parente v R [2017] NSWCCA 284, which confirmed that there is no rule requiring custodial sentences for drug trafficking of any substantial degree: the sentencing judge retains a full discretion.

The court was further influenced by the offender's engagement with the Remand Addictions Program while in custody, her assessment as suitable for community service work, and the principle from R v Osenkowski that leniency may be extended where there is an intuitive sense that it may lead to reform. Taking into account eight months and five days of pre-sentence custody, Grant DCJ sentenced the offender to a two-year Community Correction Order with conditions including supervision, rehabilitation, drug abstinence, and 300 hours of community service work.

Orders Made

  • The offender is convicted on both charges.
  • A Community Correction Order of two years, commencing 12 April 2019, is imposed with the following conditions:
  • Must not commit any offence
  • Must attend court if called upon
  • Must perform 300 hours of community service work
  • Must submit to supervision by a community corrections officer
  • Must participate in a rehabilitation program or receive treatment
  • Must abstain from consuming illicit drugs
  • Must report to the Blacktown community corrections office within seven days of release
  • Orders made per consent order regarding forfeiture of proceedings
  • Orders made per short minutes of order regarding drug destruction
  • No further action taken on sequences 1, 2, and 5
  • Additional matters on s 166 certificate are to be withdrawn

Key Takeaways

  • Under Bugmy v R [2013] HCA 37, the mitigating effect of profound childhood deprivation does not diminish with the passage of time or repeated offending, and must be given full weight in every sentencing decision.
  • A long-standing addiction to methamphetamine can significantly reduce an offender's moral culpability where the drug supply was motivated by the need to fund personal use rather than by greed, consistent with the principles in R v Day and R v Pham.
  • The District Court applied Parente v R [2017] NSWCCA 284, confirming that there is no rule mandating a custodial sentence for drug trafficking: the sentencing court retains an unrestricted discretion and must not apply any such "Clarke principle."
  • Community Correction Orders with conditions tailored to address addiction and criminogenic needs represent a sentencing pathway contemplated by the 2018 amendments to the Crimes (Sentencing Procedure) Act 1999, particularly where a custodial threshold has not been crossed.
  • Participation in rehabilitation programs while on remand is a relevant factor bearing on prospects of rehabilitation and the appropriateness of a community-based order.

Legislation and Cases Referenced

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

Cases
- Bugmy v R [2013] HCA 37
- Dang v R [2013] NSWCCA 246
- Parente v R [2017] NSWCCA 284
- R v Day (1998) 100 A Crim R 275
- R v Osenkowski (1982) 5 A Crim R 394
- R v Pham [2001] NSWCCA 307