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District Court 5 June 2020

R v Gray

[2020] NSWDC 289

Drugs
CRIMINAL LAW SENTENCING DRUG SUPPLY OFFENCE DISCOUNT FOR GUILTY PLEA WHETHER AN ICO OR FULL

Citation: R v Gray [2020] NSWDC 289
Court: District Court of New South Wales
Date: 5 June 2020
Judge: Abadee DCJ

Background

The offender, a 31-year-old man, pleaded guilty to supplying a prohibited drug, namely 65.42 grams of methylamphetamine ("ice"), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending was detected on 20 June 2019 at a motel in Gorokan, when police officers present for unrelated purposes observed the offender in a parked vehicle and subsequently found four bags of crystalline substance in a bag he initially claimed as his own.

The Crown relied on the statutory deeming provision under s 29 of the Act to establish supply, as there was no direct evidence of the subjective purpose behind holding the drugs. The quantity involved was 14 times the indictable quantity, though both parties agreed the conduct fell at the low end of objective seriousness for this type of offending.

A psychologist's report formed the primary subjective evidence before the court. The offender had a significant history of drug abuse dating back to early adolescence, along with multiple diagnosed mental health conditions, and had been in custody since March 2020 on an unrelated matter.

  • What was the appropriate sentence for a supply offence at the low end of objective seriousness, in circumstances where the Crown relied solely on the deeming provision?
  • What weight should be given to the offender's mental health diagnoses (including ADHD and PTSD) and lengthy history of substance abuse?
  • Whether an intensive correction order (ICO) or full-time imprisonment was the appropriate sentencing disposition.
  • Whether special circumstances existed justifying an adjustment to the ratio between the head sentence and the non-parole period.
  • How to apply any backdating of the sentence given the offender was already in custody on an unrelated offence.

Decision

The District Court accepted that the offending fell at the low end of objective seriousness. The Crown did not allege any aggravating circumstances, the drugs were found in distinct portions without typical supply paraphernalia, and no proceeds of supply were in evidence. The quantity, while significant, was assessed in that context.

The court gave considerable weight to the offender's subjective circumstances. The psychologist's report identified diagnoses including ADHD, Oppositional Defiant Disorder (in his developmental years), PTSD arising from witnessing a friend's death, and a severe and longstanding history of polysubstance abuse beginning in childhood. Abadee DCJ accepted that these conditions explained, without excusing, the trajectory of the offender's life and the offending conduct.

On the question of disposition, the court acknowledged that an ICO can be appropriate where rehabilitation is better served in the community. However, because the offender was already in custody on an unrelated matter and his counsel pragmatically conceded that full-time imprisonment was the only viable option, the court imposed a custodial sentence. The court found that special circumstances existed, warranting an extended parole period to support the offender's rehabilitation, particularly for his substance abuse and mental health needs.

The sentence was backdated to 7 March 2020, taking into account time already served. The court acknowledged that the sentence imposed could be a relevant consideration for any future sentencing court dealing with the unrelated offence.

Orders Made

  • The offender was convicted of supply of a prohibited drug (sequence H71153644(2)).
  • Sentenced to 2 years' imprisonment, commencing 7 March 2020 and expiring 6 March 2022.
  • Non-parole period of 1 year and 2 months; first eligible for parole on 6 May 2021.
  • The Crown withdrew the s 166 back-up possession offence.

Key Takeaways

  • The District Court treated a supply charge proven solely through the statutory deeming provision under s 29 of the Drug Misuse and Trafficking Act 1985, without evidence of subjective purpose, as relevant to placing the conduct at the low end of objective seriousness.
  • Where an offender is already in custody on an unrelated matter at the time of sentencing, an ICO may be rendered impractical regardless of its theoretical suitability, and full-time imprisonment may be the only available disposition.
  • A finding of special circumstances, here grounded in the offender's complex mental health diagnoses and substance abuse history, can justify extending the parole period beyond the statutory ratio to support rehabilitation outside custody.
  • Detailed psychological evidence addressing the nexus between diagnosed conditions (such as ADHD and PTSD) and the offending conduct carried significant weight in the sentencing exercise, even where it did not reduce the objective gravity of the offence.
  • Backdating a sentence to account for pre-sentence custody on an unrelated matter is permissible, and the resulting sentence may be taken into account by a future court when sentencing for that unrelated offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 69
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25, 29

Cases:
- Karout v R [2019] NSWCCA 253
- MDZ v R [2011] NSWCCA 243
- Muldrock v The Queen (2011) 244 CLR 120
- Nairn v R [2015] NSWCCA 290
- Parente v R (2017) 96 NSWLR 633
- R v Fangaloka [2019] NSWCCA 173
- R v Henry (1999) 46 NSWLR 346
- R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264
- R v Shi [2004] NSWCCA 135
- West, Trent v R [2017] NSWCCA 271
- Zreika v R (2012) 223 A Crim R 460