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District Court 21 August 2020

R v Thomson

[2020] NSWDC 577

Drugs

Citation: R v Thomson [2020] NSWDC 577
Court: District Court of New South Wales
Date: 21 August 2020
Judge: M L Williams SC DCJ

Background

The offender, a man born in 1962 who relied on two crutches for mobility and received an invalid pension, pleaded guilty to five counts arising from the supply of heroin over a period from January to May 2019. The offences came to light through a police-controlled operation under the Law Enforcement (Controlled Operations) Act 1997, in which a former heroin addict known as Ken was equipped with recording equipment and used to make purchases from the offender at his home.

The offender had known Ken for many years, and the two had used heroin together in the past. All supplies took place at the offender's home and were of small quantities, each below the defined "small quantity" for heroin. In total, 4.33 grams of heroin was supplied across all transactions, an amount less than the indictable quantity for a single supply charge. The investigating detective noted he had never previously heard of the offender, placing him at the street level of drug supply rather than at any higher tier.

The offender had no prior drug supply convictions. His most significant prior offending was a break, enter and steal conviction in 1996, for which he served 12 months in custody. He had been on a methadone program for three years and, since his brief time in custody following arrest, had returned negative urinary drug screens.

  • What was the appropriate sentence for five counts of heroin supply, including three counts of ongoing supply under s 25A(1) and two counts of supply under s 25(1) of the Drug Misuse and Trafficking Act 1985?
  • Whether, given the objective seriousness and subjective circumstances, a term of imprisonment served by way of an intensive correction order (ICO) was the appropriate sentencing disposition.
  • What weight should be given to mitigating factors including rehabilitation, remorse, health, plea of guilty, and the likelihood of re-offending?

Decision

His Honour found the objective seriousness of the offending to be at the very low end. The total quantity supplied was small, all transactions were with a single known individual, they occurred in the offender's home, and there was no evidence of wealth or commercial enterprise. The court accepted the detective's assessment that the offender was supplying to fund his own drug use rather than to generate profit.

No aggravating factors were identified. The court found there was clear remorse and a genuine commitment to rehabilitation, supported by negative drug screens since release and the views of the offender's GP. His Honour also found the offender unlikely to re-offend, having regard to his changed circumstances, his continued participation in the methadone program, and his expressed desire to be present in his son's life.

The court acknowledged that the seriousness of drug supply offences, as reflected in the maximum penalties of 20 years (ongoing supply) and 15 years (supply), remained a relevant yardstick even in low-level cases. However, given the very low objective seriousness, the significant subjective mitigating factors, and the period already spent in custody combined with months of reporting conditions, an aggregate sentence of 12 months imprisonment was imposed. The court directed that sentence be served by way of an intensive correction order.

Orders Made

  • The offender was convicted of each of the five offences.
  • Indicative sentences were imposed: 8 months each for Counts 1, 5, and 9; 2 months each for Counts 14 and 15.
  • An aggregate sentence of 12 months imprisonment was imposed.
  • The sentence was directed to be served by way of an intensive correction order (ICO) commencing 21 August 2020, pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard conditions applied, including no further offending and supervision by Community Corrective Services.
  • An additional condition required abstinence from illicit drugs and continued participation in the methadone program.
  • A drug destruction order was made in respect of the drugs obtained during the investigation.

Key Takeaways

  • The District Court confirmed that maximum penalties remain relevant sentencing benchmarks even where offending sits at the lowest level of objective seriousness.
  • An aggregate sentence of 12 months, directed to be served by way of an ICO, was appropriate where the offender supplied small quantities of heroin to a single known individual, had no drug supply history, demonstrated genuine rehabilitation, and was unlikely to re-offend.
  • Genuine evidence of rehabilitation, including participation in a methadone program, negative drug screening, and medical opinion as to changed life choices, carried significant mitigating weight in the sentencing exercise.
  • Where the total quantity supplied across multiple transactions remains below the indictable quantity for a single supply charge, that circumstance is relevant to the assessment of objective seriousness.
  • Serious physical disability and poor health, while not determinative, formed part of the subjective circumstances taken into account alongside remorse, plea of guilty, and a limited prior record.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1)
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases cited: None cited in the judgment.