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District Court 5 July 2019

R v Fisher

[2019] NSWDC 299

Drugs
SUPPLY PROHIBITED DRUGS YOUNG OFFENDER

Citation: R v Fisher [2019] NSWDC 299
Court: District Court of New South Wales
Date: 5 July 2019
Judge(s): Mahony SC DCJ

Background

A 19-year-old male offender was stopped by police during a random breath test while a passenger in a vehicle. Police located 1.2 grams of cannabis on him, and a subsequent search of his personal belongings and the vehicle revealed 5.68 grams of MDMA in total, split between 20 pre-packed capsules and a quantity of crystal MDMA inside a shoebox. Drug supply indicia, including electronic scales and empty capsules, were also found in the vehicle.

The offender admitted to police that the drugs were for consumption at a party. He told police he had paid $500 for the drugs and that approximately 50 capsules could be constructed from the crystal MDMA, but he denied any intention to sell them. He was charged with supply of a prohibited drug under section 25(1) of the Drug Misuse and Trafficking Act 1985, with the cannabis possession handled as a Form 1 matter.

Between his arrest and sentencing, the offender underwent substantial change. He obtained full-time employment as an apprentice electrician, commenced TAFE study, engaged with a psychologist and psychiatrist, resumed compliance with his ADHD medication, and attended the Smart Recovery program weekly. He had no prior criminal history.

Legal Issues

  • What was the appropriate objective seriousness of the supply offence under section 25(1) of the Drug Misuse and Trafficking Act 1985?
  • What weight should be given to the offender's significant subjective circumstances, including his age, ADHD diagnosis, family stressors, and rehabilitation progress?
  • Whether the purposes of sentencing were met by a Conditional Release Order, and whether the court should proceed to conviction or exercise its discretion under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

Decision

Objective Seriousness

The court accepted the Crown's concession that the offending fell below the mid-range for a section 25(1) supply offence. The quantity of 5.68 grams was between four and five times the indictable quantity of 1.25 grams. However, the presence of drug supply indicia, including scales and empty capsules, meant the court assessed the offending as falling just above the middle of the low range. The court emphasised that supply offending of this kind remains serious (at [45]).

Subjective Circumstances and Mitigation

The court gave substantial weight to the offender's subjective circumstances. He was 19 at the time of the offences, had no criminal antecedents, and had experienced a cluster of significant family stressors in the preceding years, including parental illness and injury and the sudden death of a young cousin (at [52]). An existing ADHD diagnosis, for which he had become non-compliant with medication at the time of offending, contributed to social isolation and anxiety (at [52]). The court found he was genuinely remorseful and had made significant progress with his rehabilitation (at [47]). He received a 25 percent utilitarian discount for his early plea of guilty (at [46]).

Sentencing Outcome

The court found that a Conditional Release Order was appropriate given the offender's rehabilitation progress, full-time employment, ongoing treatment needs, and the need for community supervision (at [57]). The non-trivial nature of the offence weighed against such an order, but the court was persuaded on balance that it remained appropriate. The court then turned to whether conviction should follow. It noted that a conviction for drug supply can carry serious consequences for employment and travel, and that such impacts could be disproportionate for a young person at the outset of a career (at [57]). The court exercised its discretion under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and made a Conditional Release Order without proceeding to conviction, for a period of 18 months (at [57]).

Parity with Co-Offender

The court declined to apply parity principles in comparing the sentence to that of the co-offender, who had been sentenced in the Local Court on a different and less serious charge of driving with an illicit substance in his blood (at [58]).

Orders Made

  • Conditional Release Order made pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, discharging the offender under section 9(1)(b) without proceeding to conviction.
  • Term of the order: 18 months from 5 July 2019.
  • Standard conditions: no further offending; appearance before the court if called upon.
  • Additional conditions: the offender must remain under the care of his treating psychiatrist and comply with any prescribed medication regime for the duration of the order; the offender must remain under the care of his treating psychologist and undergo recommended counselling for drug and alcohol issues and relapse prevention for as long as the psychologist deems appropriate.
  • The offender was directed to attend the court registry for the order to be explained and provided to him.
  • The drugs the subject of the offences are to be destroyed.

Key Takeaways

  • A supply of MDMA between four and five times the indictable quantity, accompanied by drug supply indicia such as scales and empty capsules, was assessed as falling just above the middle of the low range of objective seriousness for a section 25(1) Drug Misuse and Trafficking Act 1985 offence (at [45]).

  • The District Court confirmed that, even for non-trivial drug supply offences, a Conditional Release Order without conviction under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 remains available where the offender's character, age, health, and extenuating circumstances support such a course (at [57]).

  • Where a conviction for drug supply could have disproportionate consequences for a young person's employment and travel prospects at the start of their career, the court treated that consideration as a significant factor in declining to proceed to conviction (at [57]).

  • Genuine and documented rehabilitation, including engagement with the Smart Recovery program, compliance with psychiatric treatment, and full-time employment, can carry substantial mitigating weight in drug supply sentencing, even where the offending itself remains serious (at [47], [53]).

  • Parity principles do not apply where a co-offender was charged with a materially different and less serious offence and sentenced in a different court (at [58]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985

Cases
- Not stated