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District Court 25 June 2019

R v Nassif

[2019] NSWDC 418

DrugsFirearms & weapons
CRIME SENTENCE DRUG OFFENCES SUPPLY PROHIBITED DRUG INDICTABLE QUANTITY GAMMA BUTYROLACTONE

Citation: R v Nassif [2019] NSWDC 418
Court: District Court of New South Wales
Date: 25 June 2019
Judge(s): P Taylor SC DCJ

Background

The offender pleaded guilty to two offences committed on 28 April 2017: supplying 478.8 grams of Gamma Butyrolactone (GBL), a prohibited drug in an indictable quantity under the Drug Misuse and Trafficking Act 1985, and possessing an extendable baton without a permit under the Weapons Prohibition Act 1998. The supply appeared to be for friends or associates, with no evidence of commercial gain or profit motive. The baton was found in the bedside table of the offender's bedroom during a police search.

Two further offences were listed on a Form 1 for the court to take into account: supplying 6.83 grams of methamphetamine (an indictable quantity) and supplying 0.93 grams of MDMA (a small quantity), both also committed on 28 April 2017. The offender admitted during the police search that the methamphetamine was for communal use among those present at the premises.

While on bail for these charges, the offender was charged on 22 January 2019 with driving while disqualified, which resulted in his being refused bail. He received a non-custodial sentence for that driving offence on 31 January 2019, and the court treated him as having been in custody from 22 January 2019 in relation to the present offences.

  • What sentence was appropriate for supply of GBL at an indictable quantity, having regard to the objective seriousness of the offence and the Form 1 matters?
  • What weight should be given to the standard non-parole period for possession of a prohibited weapon, and where did this offence fall on the range of objective seriousness?
  • What discount applied for the utilitarian value of the guilty plea, entered on the first day of trial?
  • Whether the aggregate sentence could be served by way of an Intensive Correction Order (ICO) in the community rather than full-time custody.

Decision

The District Court placed both principal offences towards the lower end of their respective ranges of objective seriousness. The GBL supply involved no evidence of commercial gain, organisation, repetition, or business operation, and was apparently directed at friends or associates only. The quantity, however, was nine times the indictable threshold, and the court emphasised the importance of general deterrence in drug supply cases. The Form 1 offences were required to increase the sentence beyond what would otherwise apply to the principal offences alone, reflecting greater personal deterrence and community entitlement to retribution.

For the weapons charge, the court acknowledged that an extendable baton can cause significant injury, but noted it carries a lesser risk than firearms, knives, or explosives. There was no evidence the baton was used in connection with the drug supply, and the statement of facts suggested it had been given to the offender rather than deliberately acquired. The court found the possession fell below the midpoint represented by the five-year standard non-parole period.

A 10% discount for the guilty plea was applied. The offender had sought a slightly larger discount on the basis that he had indicated a willingness to plead guilty some weeks earlier, but the court observed that no formal plea had been entered at that earlier point, meaning there was no certainty it would proceed. The plea on the first day of trial warranted 10% only.

Having determined that no sentence other than imprisonment was appropriate, the court imposed an aggregate term and then ordered it be served by way of an Intensive Correction Order, taking into account time already spent in custody. Conditions attached to the ICO included abstaining from illicit substances and attending a drug and alcohol program.

Orders Made

  • Conviction recorded for supply of 478.8 grams of GBL (Count 1) and possession of a prohibited weapon without a permit (Count 2).
  • Indicative sentence of 21 months imprisonment for Count 1 and 4 months imprisonment for Count 2.
  • Aggregate sentence of imprisonment for 18 months and 28 days, commencing 25 June 2019 and ending 21 January 2021 (reflecting time already served from 22 January 2019).
  • Sentence ordered to be served by way of Intensive Correction Order in the community.
  • Standard ICO conditions imposed: no further offences; submission to supervision by a Community Corrections Officer.
  • Additional conditions: abstinence from all illicit substances for the duration of the ICO; attendance at a drug and alcohol program.
  • Form 1 offences (supply of methamphetamine and MDMA) taken into account.

Key Takeaways

  • Supply of a prohibited drug for no commercial gain, directed at friends or associates, with no evidence of organisation or repetition, may be assessed towards the lower end of objective seriousness, even where the quantity significantly exceeds the indictable threshold.
  • Under the Form 1 procedure, the sentencing court must increase the sentence for the principal offence beyond what it would otherwise attract, to reflect personal deterrence and retribution for the additional uncharged conduct.
  • A guilty plea indicated on an informal basis before trial does not automatically attract a greater discount: the District Court held that a 10% discount was appropriate where no formal plea was entered until the first day of trial, as there was no certainty the plea would proceed before that point.
  • Possession of an extendable baton, where the weapon was apparently given to the offender and there was no evidence of its use in the commission of other offences, may fall below the midpoint represented by the standard non-parole period of five years.
  • An aggregate sentence of imprisonment can still be ordered to be served by way of an Intensive Correction Order, permitting community-based service even where the court records that no sentence other than imprisonment was appropriate.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 32, 54B, 55A, 73A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 32, sch 1
- Weapons Prohibition Act 1998 (NSW), s 7

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Mooney v R [2016] NSWCCA 231
- R v Robert Borkowski [2009] NSWCCA 102
- Regina v Dibb [2003] NSWCCA 117