Citation: [2020] NSWDC 588
Court: District Court of New South Wales
Date: 6 October 2020
Judge(s): Adams QC ADCJ
Background
The offender pleaded guilty in the Local Court to a charge of supplying a prohibited drug, methylamphetamine, in an amount not less than the large commercial quantity, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. The alleged quantity was 60 kilograms. The offender was arrested on 2 May 2019 and had been in custody from that date.
The offence arose from an undercover police operation. An undercover officer (UCO) contacted the offender by telephone to arrange a collection of a large quantity of methylamphetamine. The offender attended a meeting, exchanged codes with the UCO, collected a van containing boxed substitute material (no actual drugs were present), and assisted an accomplice in moving the boxes into an apartment at Rhodes. Police arrested the offender near the apartment building that evening.
The matter proceeded to sentencing in the District Court. Given the timing of the guilty plea, the offender was entitled to a 25% discount on the sentence imposed.
Legal Issues
- What was the appropriate characterisation of the offence under the extended definition of "supply" in the Drug Misuse and Trafficking Act 1985, given that no actual drugs existed?
- Where did the offender's conduct sit on the range of objective seriousness for this type of offence?
- What weight should be given to the offender's personal circumstances, including mental health, addiction, background, and remorse?
- Whether special circumstances existed to justify a variation to the standard non-parole period ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999.
Decision
Issue 1: Application of the "supply" definition
Although the transaction involved substitute material rather than real methylamphetamine, the court held that the offender's conduct fell within the extended definition of "supply" under section 3 of the Drug Misuse and Trafficking Act 1985 (at [5]). The court noted that this did not require the facts to be ignored, and that the absence of actual drugs remained a relevant consideration when assessing seriousness (at [5]-[6]).
Issue 2: Objective seriousness
The court assessed the offender's role as that of a trusted courier who was aware the transaction involved a substantial quantity, but who had no organisational or entrepreneurial interest in the drugs and no apparent role in further distribution (at [6]). The absence of actual drugs meant there was no risk of drugs entering the community (at [6]). Weighing the very large quantity against the offender's limited role, the court placed the objective seriousness of the offence at significantly less than the middle of the range but still substantially more serious than the low end (at [6]).
Issue 3: Personal circumstances
The offender was 25 years old with no relevant prior criminal history. His background included an unsettled upbringing following the discovery in his mid-teens that he had been adopted, a violent home environment, and progressive addiction to drugs, alcohol, and gambling, which left him substantially indebted (at [8]-[9]). The court accepted that these circumstances, while not excusing his conduct, reduced his culpability to some degree (at [11]). The court found his remorse to be genuine and his rehabilitation prospects good, provided he could address his addictions (at [16]).
Issue 4: Special circumstances
The court found special circumstances existed under section 44 of the Crimes (Sentencing Procedure) Act 1999, justifying a variation to the statutory ratio between the non-parole period and the balance of term (at [16]). The court reasoned that the offender would need a lengthy period of supervised intervention upon release, in both his own interest and the public interest (at [16]).
Orders Made
- Full time imprisonment
- Starting sentence: 8 years imprisonment, reduced by a 25% utilitarian discount to 6 years imprisonment, commencing 2 May 2019
- Non-parole period: 3 years and 6 months
- Balance of term: 2 years and 6 months
- Eligible for parole consideration: 1 November 2022
Key Takeaways
- Under the extended definition of "supply" in section 3 of the Drug Misuse and Trafficking Act 1985, a completed collection of substitute material, intended to be real drugs, constitutes "supply" even where no prohibited drug is ever present (at [5]).
- A courier's role at the lower end of a drug supply operation, with no organisational interest and no handling of proceeds, places the offence below the midpoint of objective seriousness even where the quantity is very large (at [6]).
- The absence of actual drugs in an undercover operation is a factual matter relevant to objective seriousness, specifically because no drugs were released into the community, even though it does not alter the legal characterisation of the offence (at [5]-[6]).
- Personal background contributing to addiction and debt, discovered in adolescence, can reduce an offender's culpability without excusing the conduct, where the court accepts a causal connection between that background and the circumstances of the offending (at [11]).
- Special circumstances justifying a longer parole period are established where a first-time custodial offender requires extended post-release intervention to address serious addiction issues, both in the individual's interest and in the public interest (at [16]).
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985
- Crimes (Sentencing Procedure) Act 1999
Cases
- Not stated