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District Court 14 February 2019

R v Thompson

[2019] NSWDC 19

Drugs
DEEMED SUPPLY OF PROHIBITED DRUGS

Citation: R v Thompson [2019] NSWDC 19
Court: District Court of New South Wales
Date: 14 February 2019
Judge(s): Mahony SC DCJ

Background

The offender, born in 1980, was arrested in September 2017 after police stopped a vehicle in Tuncurry in which he was a passenger. He fled on foot, threatened officers, kicked one during apprehension, and discarded a sock containing over 100 grams of methylamphetamine. A subsequent search warrant executed at nearby premises uncovered further drugs, cash, and drug supply paraphernalia.

The offender faced three principal charges of deemed supply of prohibited drugs under section 25(1) of the Drug Misuse and Trafficking Act 1985 (DMTA): 103.27 grams of methylamphetamine, 81.85 grams of MDMA, and 9.59 grams of MDA. Five additional related offences were placed on a Form 1 to be taken into account on sentence. The offender had prior convictions for drug supply offences and a lengthy criminal history, but had undertaken significant rehabilitation following his arrest.

The sentencing hearing took place in February 2019. A key issue was whether the offender's demonstrated rehabilitation, combined with his personal circumstances, justified imposing an Intensive Correction Order (ICO) rather than full-time custody.

Legal Issues

  • What was the objective seriousness of each of the three deemed supply offences under section 25(1) of the DMTA?
  • What weight should be given to the offender's deprived background, mental health conditions, and drug addiction in the sentencing exercise?
  • Whether the offender's significant post-arrest rehabilitation, combined with the three-year aggregate sentence threshold, justified the imposition of an ICO rather than full-time imprisonment.
  • How should the principles of totality and proportionality apply in arriving at an appropriate aggregate sentence across three principal offences and five Form 1 matters?

Decision

Objective Seriousness

The court assessed each supply offence individually, noting that the three charges involving different drug types could not be treated as a single episode of criminality. The offending involving methylamphetamine (sequence 1) and MDMA (sequence 7) fell just below the mid-range of objective seriousness for offences under section 25(1) of the DMTA. The MDA offence (sequence 14) was assessed within the lower range but toward the middle of that range (at [57]). The court characterised all three offences as serious.

Subjective Circumstances and Discount

The court accepted that the offender was entitled to a 25 percent discount for his early guilty pleas (at [45], [59]). It found him to be genuinely remorseful and to have made impressive rehabilitative progress since his release on Supreme Court bail in January 2018, including completing a nine-month residential program at Adele House and maintaining abstinence from illicit drugs since his arrest (at [59]). The offender's deprived background, exposure to domestic violence, and drug use from a young age were accepted as significant mitigating factors (at [62]). Although the court found the offender suffered from major depressive disorder and substance use disorder, it found no causal connection between those mental health conditions and the offending itself, noting the offending was driven by his addiction rather than his depressive or anxiety symptoms (at [62]).

Aggregate Sentence and ICO

Applying principles of totality and proportionality, the court sentenced the offender to an aggregate term of three years imprisonment (at [70]). The court allowed a three-month discount for quasi-custody arising from the structured restrictions of the Adele House residential rehabilitation program while on bail (at [70]). Having reached an aggregate sentence at the maximum threshold for an ICO, the court then turned to whether community safety, the paramount consideration under section 66(2) of the Crimes (Sentencing Procedure) Act, was better served by an ICO than by full-time custody (at [71]-[72]). The court was satisfied that the offender's demonstrated rehabilitation, family support, full-time employment, and the ongoing treatment plan proposed by the psychologist supported imposing an ICO (at [73]-[74]).

Orders Made

  • Conviction on all three principal deemed supply charges under section 25(1) of the DMTA (methylamphetamine 103.27g, MDMA 81.85g, and MDA 9.59g).
  • Aggregate sentence of three years imprisonment, to be served by way of an Intensive Correction Order commencing 14 February 2019.
  • Standard ICO conditions: no further offences and submission to supervision by a Community Corrections Officer.
  • Additional conditions: completion of the treatment plan outlined in the psychologist's report (Exhibit 1) and abstinence from prohibited drugs.
  • The three related charges dealt with under section 10A of the Crimes (Sentencing Procedure) Act: conviction recorded with no further penalty.
  • Forfeiture of $7,524.50 to the State pursuant to section 18(1) of the Confiscation of Proceeds of Crime Act 1989.

Key Takeaways

  • An Intensive Correction Order remains available where the aggregate sentence does not exceed three years, and the District Court confirmed that community safety, the paramount consideration under the ICO scheme, is not achieved simply by incarcerating an offender: demonstrated rehabilitation can support a finding that community safety is better served in the community (at [71]-[73]).

  • Where an offender has multiple deemed supply charges involving different prohibited drug types, those charges cannot be treated as a single episode of criminality for the purpose of sentencing (at [57]).

  • A deprived background involving childhood exposure to domestic violence and drug abuse, recognised by the High Court in Bugmy v R, remains a significant mitigating factor even where the offender has prior drug supply convictions; it does not disappear with the passage of time (at [62]).

  • The court distinguished between mental health conditions that causally contribute to offending and those that are merely concurrent. Depression and anxiety that are unrelated to the offending conduct do not reduce moral culpability but can diminish the weight given to general deterrence in the sentencing exercise (at [62]).

  • Structured residential rehabilitation programs attended as a condition of bail may attract a sentencing discount for quasi-custody, though the extent of that discount will be affected by whether credit for the same period has already been applied in proceedings for other offences (at [54], [70]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985

Cases
- Bugmy v R (2013) 249 CLR 571
- Kennedy v R [2010] NSWCCA 260
- Parente v R [2017] NSWCCA 284
- R v Fernando (1992) 76 A CrimR 58
- R v Pullen [2018] NSWCCA 264
- R v Van Ryn [2016] NSWCCA 1
- Veen v R (No 2) (1988) 164 CLR 465