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District Court 30 May 2019

R v Nathan McIlwraith

[2019] NSWDC 213

DrugsFirearms & weapons
DEEMED SUPPLY OF PROHIBITED DRUGS TWO OFFENCES

Citation: R v Nathan McIlwraith [2019] NSWDC 213
Court: District Court of New South Wales
Date: 30 May 2019
Judge: Mahony SC DCJ

Background

In the early morning of 12 September 2017, police responded to a complaint about a man on a residential balcony in Fairlight. They located the offender on a neighbouring property and arrested him. A search revealed methylamphetamine and heroin secreted in multiple layers of clothing, along with cash, two mobile phones, a razor blade, and a 15 cm bent screwdriver hidden in his underwear.

The offender was tried by jury on two counts of supply of a prohibited drug under section 25(1) of the Drug Misuse and Trafficking Act 1985 (DMTA). The prosecution case rested on deemed supply: because the offender possessed quantities exceeding the trafficable amount for each drug, the law deemed him to have possessed them for the purpose of supply. At trial, the offender maintained the drugs were for personal use. The jury rejected that defence.

The offender also pleaded guilty to being armed with a screwdriver with intent to commit an indictable offence, under section 115 of the Crimes Act 1900. He was on parole at the time of all the offending, having been released only three months earlier. He carried an extensive criminal history dating to the Children's Court in the mid-1990s.

Legal Issues

  • Whether the threshold for full-time custody under section 5 of the Crimes (Sentencing Procedure) Act 1999 (CSPA) was crossed
  • How to assess the objective seriousness of the two deemed supply offences and the armed entry offence
  • What weight to give subjective factors including mental health, disadvantaged background, risk of institutionalisation, and claimed rehabilitation prospects
  • Whether special circumstances existed under section 44(2) of the CSPA, justifying a departure from the standard non-parole period ratio
  • How to aggregate the sentences across all offences under section 53A of the CSPA, applying the principles of totality and proportionality
  • Whether the sentence should be backdated to the date of arrest

Decision

Objective seriousness of the drug supply offences:
The court assessed both drug supply counts as just below the mid-range of objective seriousness for offences under section 25(1) of the DMTA (at [64]). The methylamphetamine quantity of 23.4 grams was eight times the indictable quantity, and the heroin quantity of 69.48 grams was 23 times the indictable quantity (at [63]). The drugs were concealed within multiple layers of clothing, and the offender was carrying large amounts of cash and multiple mobile phones consistent with supply activity (at [63]).

Objective seriousness of the section 115 offence:
The court placed this offence below mid-range and just above the middle of the low range (at [65]). A 10% utilitarian discount applied to this count in light of the guilty plea (at [69]).

Subjective factors and prospects of rehabilitation:
The court found little by way of mitigating subjective factors (at [70]). The offender showed no remorse, maintaining his personal use defence despite the jury verdict (at [69]). The claimed reconnection with his daughter was unsupported by evidence and given little weight, particularly as a similar claim had been made in earlier sentencing proceedings (at [70]). While the court acknowledged a lifetime of disadvantage and the risk of institutionalisation, it noted the offender had repeatedly failed to engage with rehabilitation opportunities (at [71]). General deterrence remained important, though specific deterrence was also relevant despite the institutionalisation risk (at [67]).

Custodial threshold and aggregate sentence:
The court rejected any suggestion of a non-custodial sentence, finding the section 5 CSPA threshold clearly crossed given the seriousness of the offending (at [72]). Special circumstances were found under section 44(2) of the CSPA, warranting a variation of the standard non-parole period ratio to allow for a longer supervisory period on release (at [78]). Applying the totality principle, the court imposed an aggregate sentence under section 53A of the CSPA with a large degree of concurrency given that all offences occurred on the same occasion (at [74], [78]). The sentence was backdated as a matter of discretion to 12 March 2018 (at [79]).

Orders Made

  • Convicted of supply of a prohibited drug (23.4 grams of methylamphetamine) under section 25(1) of the DMTA
  • Convicted of supply of a prohibited drug (69.48 grams of heroin) under section 25(1) of the DMTA
  • Convicted of committing a section 114 offence having a previous conviction, under section 115 of the Crimes Act 1900
  • Aggregate sentence imposed under section 53A of the CSPA:
  • Non-parole period of 2 years and 3 months, commencing 12 March 2018 and expiring 11 June 2020
  • Balance of term of 1 year and 3 months, commencing 12 June 2020 and expiring 11 September 2021

Key Takeaways

  • In deemed supply cases under section 25(1) of the DMTA, drug quantity is a significant factor in assessing objective seriousness, but the absence of other supply indicia does not automatically reduce the gravity of the offence where the jury has rejected a personal use defence (at [63]-[64]).

  • A finding of special circumstances under section 44(2) of the CSPA can be made even where an offender has poor rehabilitation prospects, where the risk of institutionalisation and mental health needs are assessed as justifying a longer supervisory period on release (at [78]).

  • Where multiple offences arise from a single transaction or occasion, the totality principle requires a large degree of concurrency in an aggregate sentence, though some accumulation remains necessary to reflect the overall criminality (at [74]-[77]).

  • Unsubstantiated claims about post-offence rehabilitation or family reconnection carry limited weight in sentencing, particularly where similar representations have been made and not acted upon in prior proceedings (at [70]).

  • Being on parole at the time of offending is a significant aggravating factor, and an offender's repeated failure to engage with rehabilitation programs across many years diminishes the weight to be given to personal disadvantage as a mitigating consideration (at [66], [71]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985
- Inclosed Lands Protection Act 1904

Cases
- Berryman v R [2017] NSWCCA 297
- Bugmy v R [2013] HCA 37
- Jinnette v R [2012] NSWCCA 217
- JM v R [2014] NSWCCA 297
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Van Ryn [2016] NSWCCA 1