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District Court 12 February 2019

R v Mullins

[2019] NSWDC 379

Drugs
CRIME SENTENCE SUPPLY PROHIBITED DRUG

Citation: R v Mullins [2019] NSWDC 379
Court: District Court of New South Wales
Date: 12 February 2019
Judge: Colefax SC DCJ

Background

The offender had been sentenced on 23 March 2017 by another judge of the District Court for supplying a prohibited drug (not cannabis), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The sentence imposed at that time was a s 9 bond, a form of good behaviour bond under which full-time imprisonment was deferred on conditions.

The offending involved possession of 14.27 grams of methylamphetamine at 80.5% purity on 7 April 2016. The original sentencing judge had found that the offence did not cross the threshold requiring a term of imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and proceeded accordingly.

The matter returned to court because the offender admitted breaching the bond. His Honour Colefax SC DCJ was called upon to deal with the bond revocation and impose a fresh sentence.

  • Whether the original offending crossed the s 5 threshold, requiring a sentence of full-time imprisonment rather than a non-custodial alternative
  • Whether an Intensive Corrections Order was appropriate in light of the offender's conduct since the original sentence
  • Whether special circumstances existed to justify varying the statutory ratio between the head sentence and the non-parole period
  • What weight to give to subjective factors, including rehabilitation prospects, given the offender's failure to engage with community corrections over the preceding two years

Decision

Colefax SC DCJ set aside the s 9 bond and departed from the original sentencing judge's view on the s 5 threshold. His Honour held that, with respect, the combination of quantity and purity of the methylamphetamine did cross the threshold requiring a custodial sentence. While the offender was not selling the drug for profit, he was distributing it to others in the community, which elevated the criminality beyond mere personal use.

His Honour acknowledged that the offence sat towards the lower end of the range for supply offences, but remained firm that full-time imprisonment was warranted. The court noted the serious and insidious nature of methylamphetamine and the offender's willing participation in its distribution.

On subjective circumstances, his Honour found that the offender's rehabilitation prospects were guarded. The offender had failed to engage meaningfully with community corrections in the nearly two years since the original sentence, had not completed rehabilitation, and was still using drugs at the time of the call-up hearing. An Intensive Corrections Order was rejected on the same basis.

His Honour declined to make a finding of special circumstances to vary the head sentence to non-parole period ratio, noting the offender's prior imprisonment history and his view that a longer parole period would not enhance rehabilitation prospects. A 10% discount for the late guilty plea, consistent with the original sentencing, was applied.

Orders Made

  • The s 9 bond was set aside
  • The offender was sentenced to 18 months' imprisonment, to date from 12 February 2019 (reflecting a 10% guilty plea discount from a base of 20 months)
  • Non-parole period fixed at 13 months, with eligibility for parole on 11 March 2020
  • Sentence to be served by way of full-time imprisonment (Intensive Corrections Order refused)

Key Takeaways

  • The District Court departed from the approach of the original sentencing judge, finding that 14.27 grams of methylamphetamine at 80.5% purity crossed the s 5 threshold requiring a custodial sentence, even where the supply was gratuitous rather than commercial.
  • Distribution of methylamphetamine to others without payment reduces criminality to some extent, but does not place the conduct on a par with personal use only.
  • Failure to engage with community corrections, incomplete rehabilitation, and continued drug use over a two-year post-sentence period can significantly diminish a finding of good rehabilitation prospects.
  • An Intensive Corrections Order may be refused where the offender has demonstrated a pattern of non-compliance with supervision and corrections-based obligations.
  • Both specific and general deterrence carried full weight in this sentencing, reflecting the court's view of the serious community harm associated with methylamphetamine distribution.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply of prohibited drug; maximum 15 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold test for imposing imprisonment), s 9 (good behaviour bonds)

Cases: No cases were cited in the judgment.