AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 29 October 2021

R v Tolmie

[2021] NSWDC 597

Drugs
OFFENDERS — FORM 1 OFFENCES

Citation: R v Tolmie [2021] NSWDC 597
Court: District Court of New South Wales
Date: 29 October 2021
Judge: Bright DCJ

Background

The offender, a 27-year-old woman, appeared before Gosford District Court for sentencing on one charge of supplying a prohibited drug (methylamphetamine) on an ongoing basis. The offending occurred over a five-day period in late April and early May 2020, during which she and her former de facto partner supplied 16.5 grams of methylamphetamine to a third party across three transactions on the Central Coast.

The offender participated in the supply as part of a joint criminal enterprise with her former partner, who was himself the subject of a police strike force investigation. Police intercepted telephone communications and conducted physical surveillance, recording the offender's involvement in arranging and executing the supplies.

A further offence of knowingly taking part in the supply of a prohibited drug (14 grams of methylamphetamine) was placed on a Form 1 to be taken into account on sentence. The offender had pleaded guilty at Wyong Local Court on 18 May 2021 and had spent no time in custody in relation to the offences.

  • What was the appropriate assessment of the objective seriousness of the principal offence?
  • What weight should be given to the offender's subjective circumstances, including her background, mental health, and rehabilitation efforts?
  • What discount applied to the sentence in light of the timing of the guilty plea?
  • Whether the sentence should be served by way of an intensive correction order rather than full-time imprisonment, having regard to community safety and the prospects of rehabilitation.

Decision

Bright DCJ assessed the objective seriousness of the ongoing supply offence at the lowest end of the range. The quantities supplied were modest relative to the commercial threshold (the traffickable quantity is 3 grams, the indictable quantity 5 grams, and the commercial quantity 250 grams). The financial reward of $2,150 was described as at the very lowest end for this type of offence, and the offender's role was characterised as street-level supply.

The offender's subjective circumstances attracted significant weight. Evidence from a forensic psychologist detailed a difficult upbringing marked by parental substance abuse, mental illness, domestic violence, and an insecure attachment style stemming from early childhood experiences. The offender was assessed as having low to moderate risk of reoffending, with her current engagement in rehabilitation programs regarded as a positive indicator. Despite her limited criminal history, her prior dishonesty offence meant she could not claim full good-character leniency.

A 25% discount was applied to reflect the timing of the guilty plea. The starting term of 2 years and 8 months (already accounting for the Form 1 matter) was reduced to a total term of 2 years.

The court was satisfied that an intensive correction order was appropriate rather than full-time imprisonment. Under section 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when determining whether such an order is suitable. Bright DCJ found that the intensive correction order was more likely to address the offender's risk of reoffending, given her positive engagement with community-based rehabilitation.

Orders Made

  • Convicted of one offence of supplying a prohibited drug on an ongoing basis, with the Form 1 offence taken into account.
  • Sentenced to 2 years imprisonment, commencing 29 October 2021 and expiring 28 October 2023, to be served by way of an intensive correction order (ICO) pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard ICO conditions imposed: no further offences; supervision by a Community Corrections Officer; report to Gosford Community Corrections by telephone before 4:00 pm on 1 November 2021.
  • Additional ICO conditions: participation in programs, treatment, or interventions as directed; abstention from alcohol and drugs (except as prescribed by a medical practitioner).
  • Drug proceeds order of $1,075.00 pursuant to section 29(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW).

Key Takeaways

  • The District Court assessed ongoing supply of methylamphetamine at the lowest end of objective seriousness where the number of transactions met only the minimum threshold, quantities were well below the commercial level, and the financial reward was minimal.
  • Under section 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when a court decides whether to impose an intensive correction order, and a demonstrated engagement with rehabilitation can support that sentencing disposition.
  • A 25% guilty plea discount was applied, reflecting the timing of the plea at the Local Court stage rather than at the earliest opportunity.
  • Where an offender has a limited criminal history that nonetheless includes a prior offence, the court found that full good-character leniency was unavailable, though the history remained a relevant mitigating consideration.
  • Evidence of a difficult personal background, including childhood exposure to parental substance abuse and domestic violence, was relevant to the sentencing exercise as part of the broader assessment of subjective circumstances and prospects for rehabilitation.

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, 5(1), 7(1), 66
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases cited: No cases were cited in the judgment.