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District Court 30 July 2021

R v Fairbairn

[2021] NSWDC 368

Drugs
CRIME RELEVANT FACTORS ON SENTENCE DRUG USER COVID RELATED UNEMPLOYMENT REGULAR DRUG USER SALE OF DRUGS TO OTHER DEALERS

Citation: R v Fairbairn [2021] NSWDC 368
Court: District Court of New South Wales
Date: 30 July 2021
Judge(s): Haesler SC DCJ

Background

The offender, a 38-year-old Wollongong man with no prior drug-related convictions, had been a regular methylamphetamine user for over a decade. When the COVID-19 pandemic caused him to lose his job in 2020, he began supplying small quantities of the drug to two other men who then on-sold to users, primarily to fund his own continued use.

Police had already placed those two men under physical and covert surveillance, including telephone intercepts, before the offender became known to them. He was arrested on 6 August 2020 and remained in custody for 216 days until bail was granted on 10 March 2021.

The offender pleaded guilty in the Local Court to ongoing supply of methylamphetamine under the Drug (Misuse and Trafficking) Act 1985, an offence carrying a maximum penalty of 20 years imprisonment. He maintained that plea at sentencing in the District Court.

  • What sentence was appropriate for an offence of ongoing supply of methylamphetamine involving a relatively small quantity (4.28 grams across 8 occasions) and a low-level, unsophisticated operation?
  • Was the offender's rehabilitation progress, time already served on remand, and early guilty plea sufficient to justify a sentence of less than two years?
  • In light of those factors, was an Intensive Correction Order (ICO) an appropriate alternative to further full-time custody?

Decision

Haesler SC DCJ accepted that ongoing drug supply offences generally attract significant sentences, noting the Court of Criminal Appeal's established position that such offences cannot be treated as equivalent to a single supply, and that clear legislative intent demands sentences that deter ongoing drug trading. The maximum penalty of 20 years reflected the seriousness with which Parliament viewed this class of offending.

However, the judge identified this as a case warranting departure from the ordinary approach. The quantity supplied was below the indictable quantity of 5 grams, the operation was low-level and relatively unsophisticated, and the offender had demonstrated genuine and promising signs of rehabilitation. He had completed programs while on remand, remained drug-free since arrest, was employed (though stood down during lockdown), was caring for his grandfather, and expressed genuine remorse. The Sentence Assessment Report assessed him as medium to low risk of reoffending if he remained drug-free.

The sentencing judge calculated a starting point of 2 years and 8 months, reduced by 25 percent for the utilitarian value of the early guilty plea under the Crimes (Sentencing Procedure) Act 1999. Credit was then given for the 7 months already served in custody. This produced a sentence of 1 year and 5 months. The judge concluded that community safety, properly understood, is linked inextricably to rehabilitation, and that a further period of full-time custody was not required to meet the purposes of sentencing in these particular circumstances.

An ICO was imposed, on the basis that the offender had real incentives to remain drug-free, had already absorbed the deterrent effect of remand custody, and could contribute positively to the community through supervised service work.

Orders Made

  • The offender was convicted in accordance with his guilty plea.
  • A sentence of 1 year and 5 months was imposed, to be served by way of an Intensive Correction Order (ICO).
  • Standard ICO conditions applied: no further offending, and submission to supervision by a community corrections officer.
  • Additional conditions included: 100 hours of community service work; acceptance of the guidance and supervision of Community Corrections NSW, including referral to a Drug and Alcohol rehabilitation/maintenance program if required.
  • The offender was directed to attend Wollongong Court Registry by 3:30 PM on the day of sentencing to enter the orders.
  • Related backup matters under the Criminal Procedure Act 1986 s 166 Certificate were withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that ongoing drug supply under s 25A of the Drug (Misuse and Trafficking) Act 1985 cannot be sentenced as if it were a single supply offence, and that significant sentences are generally required to reflect the legislative intent to deter ongoing drug trading.
  • Where the total quantity supplied falls below the indictable threshold and the operation is low-level, a sentence of less than two years may be appropriate, which then opens the door to genuine consideration of an ICO under the approach in EF v R [2015] NSWCCA 36.
  • An early guilty plea attracted a 25 percent reduction for utilitarian value under the Crimes (Sentencing Procedure) Act 1999, and time served on remand was credited against the final sentence.
  • Community safety, as contemplated by s 66 of the Crimes (Sentencing Procedure) Act 1999, is treated by the court as inseparable from the goal of rehabilitation: a finding grounded in the long-standing principle from Yardley and Betts (1979) and applied in Blackman and Walters [2001] NSWCCA 121.
  • Demonstrated rehabilitation progress, including program completion in custody, drug-free status, stable employment prospects, and family support, can together constitute the "exceptional circumstances" that justify an ICO rather than further full-time imprisonment for a serious drug supply offence.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 25A, 66, 73(1), 73(2), 73A(2)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- R v CBK [2002] NSWCCA 457
- EF v R [2015] NSWCCA 36
- Robertson v R [2017] NSWCCA 205
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45
- Mandranis v R [2021] NSWCCA 97
- R v Edelbi [2021] NSWCCA 122
- Blackman and Walters [2001] NSWCCA 121
- Yardley and Betts (1979) 22 SASR 108