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District Court 5 April 2019

R v Reilly

[2019] NSWDC 508

Drugs
CRIMINAL SENTENCE IN SMALL QUANTITIES SUBJECTIVE MATTERS

Citation: R v Reilly [2019] NSWDC 508
Court: District Court of New South Wales
Date: 5 April 2019
Judge: King SC DCJ

Background

The offender, a 34-year-old woman, was sentenced for one count of supplying a prohibited drug on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The offence carried a maximum penalty of 20 years' imprisonment with no standard non-parole period. A co-offender, aged 24, was also involved in the drug supply operation centred on a residential premises in Waterloo.

Between January and February 2018, the offender supplied heroin and methylamphetamine to a registered police source on three separate occasions, each time in exchange for $100. The total quantity involved was 0.18 grams of heroin and 0.12 grams of methylamphetamine. A fourth transaction in December 2017 involving 0.11 grams of heroin was dealt with separately as a Form 1 matter taken into account on sentence.

The offender pleaded guilty at the earliest opportunity and was committed for sentence from the Central Local Court. She had spent a total of seven days in pre-sentence custody, including time in custody following bail breach applications.

  • What discount applied for the early guilty plea under Thomson and Houlton?
  • How should the objective seriousness of the offence be assessed where the quantities of drugs supplied were very small?
  • What subjective circumstances were relevant to the appropriate sentence?
  • Whether a custodial sentence was warranted, or whether a non-custodial order was appropriate given the offender's circumstances.

Decision

The court accepted that the offender was entitled to a 25% discount on her sentence for the utility of the early guilty plea, in accordance with the principles in Thomson and Houlton.

On objective seriousness, King SC DCJ addressed the legislative history of s 25A, noting the provision was introduced to prevent dealers from avoiding significant penalties by carrying or supplying only small quantities. The court acknowledged that the quantities supplied were immaterial to the offence itself, but expressed the view that there remained a meaningful difference, for sentencing purposes, between an offender who supplies small "street-level" quantities and one who deals in significantly larger volumes. The offender supplied what were described as "points" (approximately tenths of a gram), and the total proceeds across all four transactions amounted to $400.

The court considered the offender's subjective circumstances, including a difficult personal history connected to drug use across generations of her family. The judgment referred to pre-sentence reports and noted the offender's involvement in programs directed at rehabilitation, including the Bridge Program.

Taking all matters into account, the court was satisfied that the appropriate disposition did not require full-time imprisonment. The offender was sentenced to a Community Corrections Order rather than a term of imprisonment, reflecting her subjective circumstances and rehabilitation prospects, while the court made clear it would not extend leniency in the event of any breach.

Orders Made

  • Community Corrections Order imposed (full terms not reproduced in the available text)
  • Drug destruction order made
  • Proceeds order made by consent in the sum of $400 pursuant to s 29(1) of the Drug Misuse and Trafficking Act 1985
  • Back-up charges of supply prohibited drug (less than or equal to a small quantity) on sequences 2, 3, and 4 withdrawn and dismissed
  • Form 1 offence (supply on 1 December 2017) taken into account

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the quantity of drugs supplied is expressly immaterial to the offence itself, but the District Court confirmed that quantity and scale remain relevant considerations when assessing the objective seriousness of the conduct for sentencing purposes.
  • The provision was designed to target street-level dealers who structured their operations to limit exposure to the quantity-based penalty regime, particularly those who kept larger stocks elsewhere and presented to police with only small amounts.
  • A 25% guilty plea discount applied where the plea was entered at the earliest opportunity, consistent with Thomson and Houlton (2000) 49 NSWLR 303.
  • Sentencing for this offence does not automatically result in a custodial term. Where subjective circumstances are compelling, a Community Corrections Order may be available even for an ongoing supply offence.
  • Pre-sentence reports and evidence of engagement with rehabilitation programs formed part of the sentencing assessment, demonstrating that subjective factors retain significant weight in this offence category.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1), s 29(1)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 303