AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 June 2019

R v Jones

[2019] NSWDC 654

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG

Citation: R v Jones [2019] NSWDC 654
Court: District Court of New South Wales
Date: 26 June 2019
Judge(s): Bennett SC DCJ

Background

The offender, a 22-year-old man, pleaded guilty in the Local Court to one count of supplying a prohibited drug, namely 6.03 grams of methylamphetamine (purity 68.5%), contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. The matter was committed to the District Court for sentence. The offence was recorded as carrying a maximum penalty of 15 years' imprisonment and a fine of 2,000 penalty units.

The offence occurred on 20 April 2018 at Liverpool, where the offender and an accomplice, Ashley Virissimo, supplied the drug to an undercover police operative. DNA matching the offender was found on the sealed area of the drug bag, and a subsequent search of his bedroom uncovered drug supply paraphernalia including scales, scissors, straws and plastic bags.

The offender had an extensive criminal history commencing in the Children's Court in April 2014. Since turning 18, he had spent the majority of his time in custody. His background included a severely dysfunctional childhood, early exposure to drug abuse, post-traumatic stress disorder, and a serious gunshot wound at age 16 that required several months of hospitalisation.

Legal Issues

  • Whether a sentence of full-time imprisonment was required under section 5 of the Crimes (Sentencing Procedure) Act 1999, which permits imprisonment only where no other sentence is appropriate.
  • How to weigh the offender's significant criminal history, including persistent drug-related offending and repeated breaches of conditional liberty, against substantial subjective evidence of rehabilitation.
  • Whether the psychological evidence supported a finding that the offender's representations were reliable and that his rehabilitation prospects were genuine.
  • How to assess parity, given that the accomplice faced more serious charges and had not yet been sentenced.

Decision

Objective seriousness of the offending

The court assessed the objective gravity of the supply offence as below mid-range, toward the lower end of the range, having regard to the circumstances of the transaction and the offender's background (at [62]). The court was careful not to aggravate the sentence by reference to the conversation between the offender and the undercover operative suggesting willingness to supply larger quantities, noting the De Simoni principle required punishment to be confined to the offence charged (at [17]).

Reliability of psychological evidence

The Crown tendered a 2016 psychological report suggesting the offender was an unreliable historian. The court rejected that characterisation, finding the two psychological reports were largely consistent with each other and that any minor discrepancies were readily explained by the passage of time between consultations (at [9]-[10]). The court applied the caution required by Qutami [2001] NSWCCA 353 but concluded, on the balance of probabilities, that the facts in mitigation had been established (at [10]).

Rehabilitation prospects and the section 5 threshold

The court found that the line in section 5 of the Crimes (Sentencing Procedure) Act 1999 had been approached but not crossed, due to compelling subjective material (at [58]). The offender had been in full remission from illicit drug use since August 2018, confirmed by seven consecutive negative urinalysis results (at [40]). He had recently secured employment as a scaffolder, was described by his employer as hardworking and punctual, had a young child, and was engaged in ongoing psychological counselling and Narcotics Anonymous (at [53]-[55]). The court accepted his sincerity and found prospects for rehabilitation, though it declined to characterise them as "good" given his history had yet to be tested (at [56]).

Parity

Parity with the accomplice did not arise. Virissimo faced a more serious charge of ongoing supply under section 25A(1) of the Drug Misuse and Trafficking Act 1985, together with additional offences on the Form 1, and had not yet been sentenced (at [12]).

Orders Made

  • Three-year Community Corrections Order, commencing 26 June 2019.
  • Standard conditions: no further offences; appear before court if called upon.
  • Additional conditions: abstinence from illicit drugs; supervision by Community Corrections; participation in rehabilitation and treatment as directed.
  • Ongoing psychological counselling, continued engagement with Narcotics Anonymous, and psychiatric review for psychotropic medication assessment.
  • Contact with Liverpool Community Corrections Office by 28 June 2019.
  • Drug destruction order.

Key Takeaways

  • The District Court confirmed that even where a persistent criminal history and the nature of a drug supply offence would ordinarily compel a custodial sentence, compelling and credible evidence of genuine rehabilitation can, in appropriate cases, bring the offender below the section 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (at [58]).

  • Where two psychological reports are substantially consistent and any discrepancies are explicable by the passage of time, a court may reject a suggestion that an offender is an unreliable historian, even where an earlier clinician expressed that view (at [9]-[10]).

  • The objective gravity of a supply offence will be assessed by reference to the specific circumstances of the transaction; contextual evidence of willingness to supply greater quantities cannot be used to increase penalty where the offender was charged only with a single supply (at [17], [62]).

  • Parity principles did not apply where the co-offender faced materially more serious charges and remained unsentenced at the time of the present proceedings (at [12]).

  • Applying Osenkowski (1982) 5 A Crim R 394, the court accepted that individual circumstances can justify a measure of mercy where an offender has taken genuine strides toward rehabilitation, even against a background of entrenched criminal conduct (at [59]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- Qutami [2001] NSWCCA 353
- The Queen v Osenkowski (1982) 5 A Crim R 394
- The Queen v Ross [2019] NSWDC 115