Citation: R v Murray [2019] NSWDC 687
Court: District Court of New South Wales
Date: 22 March 2019
Judge(s): Neilson DCJ
Background
The offender, a 39-year-old woman with no prior criminal history, pleaded guilty on 12 February 2019 to a charge of supplying a prohibited drug, namely 5.09 grams of methylamphetamine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. The offence occurred on 16 December 2015 at Dee Why, when police approached her parked vehicle and observed her drop a resealable bag containing the drug onto the floor near her feet.
Because the quantity of methylamphetamine found (5.09 grams) exceeded the indictable quantity of 5 grams, the charge was one of "deemed supply," meaning the law presumes an intention to supply from the quantity alone. However, the court found independent evidence of an actual intention to supply: police also found a set of operational digital scales and multiple empty small resealable bags in the vehicle, which supported an inference that the drugs were to be repackaged for distribution. The offender herself acknowledged the drugs were to be shared with her then-partner.
A separate Form 1 matter (additional charges taken into account without separate conviction) related to a further 0.34 grams of methylamphetamine found on the offender's person and in her wallet at the time of arrest. The offender had initially pleaded not guilty and was due to stand trial before a judge and jury, but entered her guilty plea on the morning after pre-trial evidentiary rulings were made.
Legal Issues
- Whether the deemed supply charge was made out, given evidence about the actual purpose of the drugs
- What weight to give the offender's prior good character and personal circumstances in sentencing
- Whether the onerous bail reporting conditions imposed throughout the proceedings were a relevant factor in the sentencing exercise
- Whether a conviction should be formally recorded
- Whether a confiscation order could be made over the $1,950 cash found in the possession of the offender's partner
Decision
Neilson DCJ accepted that this was a case of deemed supply, but also found the evidence went beyond the mere presumption: the digital scales, the multiple empty small resealable bags, and the offender's own admission that the drugs were to be shared all pointed independently to an intention to supply. The court could not accept that the drugs were solely for personal use.
On sentence, the court gave significant weight to the offender's compelling personal circumstances and her status as a person of prior good character with no criminal record of any kind, including no traffic offences. The court noted it was extremely rare for a woman aged 36 to commit a criminal offence of this nature, and found her personal history, which included experiences of domestic violence and a complex family background, to be relevant mitigating factors.
The court also took into account the onerous bail conditions imposed throughout the proceedings, including a requirement to report to police daily. Neilson DCJ characterised those conditions as unnecessary given there was no evidence the offender was a flight risk, and noted that bail reporting is not a form of pre-conviction punishment.
On the question of confiscation, the Crown sought an order over the $1,950 in cash found at the scene. The court declined to make the order on an oral application, noting the cash had been held in the partner's hands, not in the offender's wallet, and that possession at common law determines ownership absent contrary evidence. The court permitted the Crown to file a formal notice of motion, with the partner to be joined as a respondent.
Orders Made
- No conviction recorded; the offender released on a Conditional Release Order for 16 months from 22 March 2019
- Conditions of the Conditional Release Order:
- Not to commit any offence
- To appear before the court if called upon during the order period
- To participate in any rehabilitation or treatment program directed by Community Corrections
- To abstain from drugs
- Offender to report to Community Corrections at St Leonards within 14 days
- A separate charge (H65103785-003) was withdrawn and dismissed
- Oral application for a confiscation order over $1,950 cash was dismissed; the Crown was permitted to file and serve a formal notice of motion, with the partner joined as a respondent and any evidence to be on affidavit
Key Takeaways
- A conviction for deemed supply under the Drug Misuse and Trafficking Act 1985 does not preclude a court from declining to record a conviction where the offender demonstrates exceptional good character and compelling personal circumstances warrant that outcome under the Crimes (Sentencing Procedure) Act 1999.
- Where independent evidence (such as scales, packaging materials, and the offender's own admissions) supports an actual intention to supply, the court may treat the offending as going beyond the statutory presumption of deemed supply, even while reaching a lenient sentencing outcome.
- Onerous bail reporting conditions imposed without apparent justification are a legitimate factor in the sentencing exercise and may reduce the weight given to other punitive measures.
- Under established principles of possession, a confiscation order cannot be made against an offender over cash physically held by a third party at the time of arrest, absent evidence that the offender owned or controlled that money.
- Prior good character carries significant weight in sentencing, particularly where an offender has no history of offending of any kind and the offence is otherwise out of character with the person's history and circumstances.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Murray [2019] NSWDC 63 (pre-trial evidentiary ruling by the same judge in the same proceedings)