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District Court 29 March 2019

R v Wilkinson

[2019] NSWDC 288

Drugs

Citation: R v Wilkinson [2019] NSWDC 288
Court: District Court of New South Wales
Date: 29 March 2019
Judge: Grant DCJ

Background

The offender, a 22-year-old woman at the time of the offence, was detected by a police dog at the entrance to the Defqon1 music festival at Penrith in September 2017. She had concealed in her vagina a condom containing 27 MDA tablets (5.48 grams) belonging to a friend, along with a small quantity of crystalline substance for her own use and 0.21 grams of ketamine. She was asked by her friend on the bus journey to the festival to carry the pills inside, and she agreed.

The offender pleaded guilty to one count of knowingly taking part in the supply of a prohibited drug (MDA) under the Drug Misuse and Trafficking Act 1985. A further matter, possession of ketamine, was taken into account on a Form 1. The Crown also noted that she was on a good behaviour bond for a mid-range PCA offence at the time.

The central sentencing question was what order was appropriate for a young, first-time drug offender with strong rehabilitation prospects, where the offending was objectively at the low end of the range for trafficking.

  • What discount was appropriate for the guilty plea given the circumstances and timing of the plea?
  • How should the objective seriousness of the supply offence be assessed, given the offender's role as a naive mule with no financial gain?
  • Whether a conditional release order (CRO) without conviction was an appropriate sentence, having regard to general deterrence, denunciation, and the offender's subjective circumstances.
  • Whether a conviction for drug trafficking must be recorded, or whether the circumstances justified declining to do so.

Decision

Grant DCJ assessed the objective seriousness of the offence at the low end of the range for trafficking. The offender had no financial motive, acted impulsively on the request of a friend, and carried the drugs as a naive mule. While the conduct warranted denunciation, particularly given the dangers of drug use at music festivals, those factors did not elevate the offence beyond the low end of the scale.

A 10 percent discount was allowed for the guilty plea. Although the offender made admissions at the scene and in her record of interview, the indictment had been reformulated before the plea was entered, which reduced the available discount. The Crown had submitted 5 to 10 percent, and the court settled at the higher end of that range.

On the question of the appropriate order, the court applied the Court of Criminal Appeal's decision in Parente v R [2017] NSWCCA 284, which held that the so-called Clark principle, requiring custodial sentences for drug trafficking absent exceptional circumstances, is incompatible with the judicial sentencing discretion and no longer applies. The court found that denunciation and general deterrence could be adequately reflected in the terms and duration of a CRO, without recording a conviction.

Relying on R v Mauger [2012] NSWCCA 51, Grant DCJ observed that declining to record a conviction is not automatically equivalent to imposing a lenient or inadequate sentence. A conviction for drug trafficking on a young person's record for life carries significant consequences for the individual, while providing little or no practical benefit to the community. The offender's excellent rehabilitation prospects, insight into her offending, low risk of reoffending, and the impact of the proceedings on her mental health all supported a CRO without conviction. No further action was taken in relation to the breach of the good behaviour bond from her earlier PCA offence.

Orders Made

  • The offender is to enter into a conditional release order without conviction for two years.
  • The offender must not commit any offence during that period.
  • The offender must appear before the Court if called upon.
  • The offender is to abstain from consuming illicit drugs.
  • No further action to be taken in relation to the breach of the section 10 order for the mid-range PCA offence.

Key Takeaways

  • The District Court confirmed that, following Parente v R, there is no rule requiring a custodial sentence for drug trafficking in the absence of exceptional circumstances. That principle is incompatible with the proper exercise of judicial sentencing discretion.
  • A conditional release order without conviction can adequately serve the purposes of denunciation and general deterrence in appropriate cases, particularly where the offending falls at the low end of objective seriousness.
  • Declining to record a conviction is not, of itself, an indication that a sentence is inadequate or unduly lenient: R v Mauger confirms that recording a conviction and imposing a sufficient sentence are not the same thing.
  • Where a young, first-time offender has excellent rehabilitation prospects, no criminal habit, genuine remorse, and limited culpability as a naive mule with no financial gain, those subjective factors weigh heavily in the sentencing calculus.
  • The extended period of court proceedings looming over an offender can be taken into account as a form of hardship bearing on the appropriate sentence, following Sabra v R [2015] NSWCCA 38.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Parente v R [2017] NSWCCA 284
- R v Mauger [2012] NSWCCA 51
- Sabra v R [2015] NSWCCA 38
- R v Moon [2000] NSWCCA 534
- R v Nguyen [2002] NSWCCA 183
- Yardley v Betts (1979) 1 A Crim R 329
- Cobiac v Liddy (1969) 119 CLR 257
- Walden v Hensler [1987] HCA 54