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District Court 27 June 2019

R v Stefanovic

[2019] NSWDC 324

Drugs
SENTENCING SUPPLY OF COCAINE INTENSIVE CORRECTION ORDER

Citation: R v Stefanovic [2019] NSWDC 324
Court: District Court of New South Wales
Date: 27 June 2019
Judge(s): Weinstein SC DCJ

Background

The offender pleaded guilty on the first day of trial to two counts of supplying cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences arose from a single incident on 11 August 2017 in Surry Hills, when plainclothes police observed a street transaction and then searched a vehicle in which the offender was sitting. Police located over 29 grams of cocaine and 6 grams of MDMA, together with $8,645 in cash concealed in the vehicle.

The two principal supply offences related to 0.9 grams of cocaine (the street sale) and 28.21 grams of cocaine (found in the vehicle). Two additional matters were placed on a Form 1, including supply of 6 grams of MDMA and dealing with the proceeds of crime. Two back-up possession charges were withdrawn at sentence.

The offender had a minimal criminal history. One prior conviction from 15 years earlier was a spent conviction under the Criminal Records Act 1991, and another matter had been dismissed. He had no prior custodial history apart from the present offence.

  • What was the appropriate sentence for two counts of cocaine supply under s 25(1) of the Drug Misuse and Trafficking Act 1985, taking into account Form 1 matters?
  • Whether the sentence should be served in full-time custody or by way of an Intensive Correction Order (ICO) under s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What weight should be given to the offender's rehabilitation, personal circumstances, guilty plea, and other mitigating factors?

Decision

The court sentenced the offender to a single term of 18 months imprisonment, taking into account the Form 1 matters. The maximum penalty for each principal offence was 15 years imprisonment, and the court noted there was no standard non-parole period applicable to these offences.

In assessing the objective seriousness of the offending, the court treated the matter as falling below the mid-range, given the quantities involved were not at the higher end of the trafficable scale. The fact that the offender was found with cash, multiple pre-packaged quantities, and drug paraphernalia in a concealed compartment indicated commercial supply rather than personal use.

The court identified substantial mitigating factors. These included the early guilty plea (entered on the first day of trial), the offender's significant steps toward rehabilitation, his completion of a Certificate IV in Alcohol and Other Drugs, his engagement with ongoing psychological treatment for cocaine use disorder, his limited criminal history, and the support of a mother with serious health conditions who depended on him. A clinical psychologist assessed the offender's prognosis as excellent and noted he had met the criteria for severe cocaine use disorder but was in early remission.

The court determined that, despite the threshold requirement that imprisonment be imposed under s 5 of the Crimes (Sentencing Procedure) Act 1999, the sentence could appropriately be served by way of an ICO. The combination of rehabilitation progress, personal circumstances, and the prospects of the offender contributing positively to the community informed that conclusion.

Orders Made

  • Convicted of supply of 0.9 g of cocaine and supply of 28.21 g of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to 18 months imprisonment (taking into account Form 1 matters), to be served by way of an Intensive Correction Order commencing 27 June 2019 and expiring 27 December 2020.
  • Required to report to the Burwood Community Corrections Office within 7 days.
  • Standard ICO conditions imposed: no further offences; submission to supervision by a Community Corrections Officer.
  • Additional conditions: participation in a rehabilitation or treatment program for 12 months; abstention from drugs other than those prescribed by a medical practitioner.
  • 150 hours of community service work ordered.
  • Charges in the s 166 certificate dismissed.
  • Forfeiture order made in respect of $8,645 seized at arrest.
  • Drugs seized on 11 August 2018 ordered to be destroyed.
  • Non-compliance with ICO conditions may result in sanctions including revocation and full-time custody.

Key Takeaways

  • The District Court confirmed that an 18-month sentence of imprisonment for commercial cocaine supply can be served by way of an ICO where substantial rehabilitation, personal circumstances, and limited criminal history combine to displace the presumption of full-time custody.
  • Evidence of genuine rehabilitation carries significant mitigating weight at sentencing for drug supply offences, particularly where supported by clinical assessment and concrete steps such as vocational study and ongoing treatment.
  • A guilty plea entered on the first day of trial still attracted a discount, though the extent of any reduction is not expressly quantified in the available text of the judgment.
  • Form 1 matters (additional offences the offender asks the court to take into account) are factored into the overall sentence rather than being sentenced separately, and their inclusion here encompassed the MDMA supply and the proceeds of crime offence.
  • Under the ICO framework, non-compliance with conditions, including the treatment and abstention conditions imposed here, can result in escalating sanctions up to and including revocation of the order and service of the sentence in full-time custody.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7(1), 10, 21A, 24, 33, 47, 53A
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Crimes Act 1900 (NSW), s 193C(2)
- Criminal Procedure Act 1986 (NSW), s 167
- Criminal Records Act 1991 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- Parente v R [2017] NSWCCA 284
- R v English [2000] NSWCCA 245
- R v Huynh [2005] NSWCCA 220
- R v Jarrold [2010] NSWCCA 69
- R v Peter Michael Clark (Court of Criminal Appeal (NSW), 7 July 1983, Unreported)
- R v Pincham [2000] NSWCCA 478
- Veen v The Queen (No 2) (1988) 164 CLR 465