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District Court 13 March 2020

R v Burkitt

[2020] NSWDC 50

Drugs

Citation: R v Burkitt [2020] NSWDC 50
Court: District Court of New South Wales
Date: 13 March 2020
Judge: Weinstein SC DCJ

Background

The offender, a man born in 1983, appeared for sentencing on two charges under the Drug Misuse and Trafficking Act 1985 (NSW). The primary charge was supply of a commercial quantity of a prohibited drug, specifically 1,124 grams of gamma butyrolactone (GBL), on 19 December 2018. GBL is a precursor to GHB, a drug associated with recreational use in party and club settings.

Police first encountered the offender in an agitated and heavily drug-affected state near a vehicle in Rushcutters Bay late at night. A search of the vehicle uncovered a one-litre Powerade bottle containing the GBL, along with syringes and vials. The offender denied knowledge of these items at the time of arrest.

A subsequent review of messages on the offender's mobile phone revealed an organised pattern of GBL supply to multiple customers over iMessage and WhatsApp between November and December 2018, constituting the second charge of supplying an indictable quantity of GBL. A Form 1 matter involving supply of an indictable quantity of methylamphetamine was also taken into account on sentencing.

  • What sentence was appropriate for supply of a commercial quantity of GBL, an offence carrying a maximum of 20 years and a standard non-parole period of 10 years?
  • How should the court weigh the offender's significant drug addiction, mental health background, and rehabilitation efforts against the objective seriousness of the offences?
  • Whether the offender was suitable for an Intensive Correction Order (ICO) rather than full-time custody, in light of the 2017 sentencing reforms that reframed ICOs as an alternative form of imprisonment served in the community.
  • What credit, if any, was available for time spent at the Buttery rehabilitation facility as quasi-custody?

Decision

Weinstein SC DCJ accepted that the offences were serious, involving an organised commercial supply operation over several weeks to multiple identified customers. However, his Honour assessed the objective seriousness as sitting in the lower to mid range when considered against comparable cases and the full spectrum of offending of this type.

The court placed considerable weight on the offender's personal circumstances. The evidence established a severe and longstanding addiction to GBL and other substances, a significant psychological profile, and genuine, sustained efforts at rehabilitation including residential treatment at the Buttery and ongoing engagement with St Vincent's Hospital's Stimulant Treatment Program and community support services. Multiple treating clinicians and support workers provided letters attesting to the offender's commitment to recovery.

The court addressed the availability of an ICO, noting the legislative amendments under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), which repositioned ICOs as a form of imprisonment served in the community rather than a lenient non-custodial option. Weinstein SC DCJ was satisfied, assisted by the Sentencing Assessment Report, that the offender was suitable for an ICO. The court imposed an aggregate sentence of three years' imprisonment to be served by way of an ICO.

A proceeds of crime order was also made in the amount of $4,932.50, representing proceeds from the established drug transactions.

Orders Made

  • The offender was convicted of supply of a prohibited drug not less than commercial quantity (1,124 grams of GBL), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
  • The offender was convicted of supply of a prohibited drug not less than indictable and commercial quantity (984.61 grams of GBL), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
  • An aggregate term of imprisonment of 3 years was imposed, to be served by way of an Intensive Correction Order commencing 13 March 2020 and expiring 12 March 2023.
  • Standard ICO conditions applied: no offending and submission to supervision by a community corrections officer.
  • Additional conditions imposed:
  • Abstinence from drugs and weekly urinalysis with a general practitioner.
  • Attendance at Narcotics Anonymous meetings at least twice per week.
  • Arrangement of a Medicare-funded Mental Health Plan with a general practitioner, including up to 10 psychology sessions per calendar year.
  • 500 hours of community service work under the direction of City Community Corrections.
  • A proceeds of crime order was made under s 29(1) of the Confiscation of Proceeds of Crime Act 1989 requiring payment of $4,932.50 to the State of New South Wales.

Key Takeaways

  • An Intensive Correction Order remained available for serious drug supply offences, including supply at commercial quantity, where the sentencing court was satisfied of suitability having regard to the full range of the offender's circumstances and the Sentencing Assessment Report.
  • The 2017 amendments to the Crimes (Sentencing Procedure) Act 1999 reframed ICOs as a custodial sentence served in the community, a characterisation that informed the court's analysis of whether such an order was appropriate at this level of offending.
  • Genuine, documented rehabilitation efforts, including completed residential treatment and ongoing clinical engagement, carried significant mitigatory weight even where the objective circumstances of the offence were serious.
  • Evidence of severe addiction was treated as relevant to both moral culpability and the prospects of rehabilitation, neither excusing the conduct nor being ignored in the sentencing calculus.
  • A proceeds of crime order under the Confiscation of Proceeds of Crime Act 1989 was made alongside the sentence, calculated by reference to the identifiable proceeds from the established supply transactions.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Mill v The Queen (1988) 166 CLR 59
- Veen v The Queen (No 2)
- DPP v De La Rosa (2010) 79 NSWLR 1
- Attorney General's Application (No 1) (2002) 56 NSWLR 146
- Abbas & Ors v R [2013] NSWCCA 115
- Casella v R [2019] NSWCCA 201
- Karout v R [2019] NSWCCA 253
- R v Fangaloka [2019] NSWCCA 173
- R v Pullen [2018] NSWCCA 264
- R v Jarrold [2010] NSWCCA 69
- Watts v R [2007] NSWCCA 153