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District Court 20 April 2021

R v Snedden

[2021] NSWDC 630

Drugs

Citation: R v Snedden [2021] NSWDC 630
Court: District Court of New South Wales
Date: 20 April 2021 (sentenced 18 June 2021)
Judge: Buscombe DCJ

Background

The offender, a 59-year-old man, was charged with two counts of ongoing supply of prohibited drugs under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The charges arose from a police investigation, Strike Force Tongaboo, targeting drug supply activity in Sydney's North Shore area. Police surveillance identified the offender supplying heroin from his Artarmon apartment and diverting methadone bottles he received through the NSW Opioid Treatment Program.

The first offence covered the period 6 February to 8 March 2020, during which the offender supplied heroin or methadone on 12 separate occasions, receiving $1,665 in total. The second offence covered 7 March to 7 April 2020, involving seven further supplies for a total of $890. The offender also asked the court to take into account four additional supply-related offences on two Form 1s (a procedural mechanism by which an offender acknowledges other uncharged offences so they can be factored into the overall sentence without separate conviction).

The offender pleaded guilty and gave evidence on sentence that he had become heavily involved in drug use and began assisting a co-resident, who was also a drug user, to sell drugs. He acknowledged being paid in both money and drugs. Police found drug paraphernalia, scales, multiple SIM cards, and a "drug tick sheet" at his home.

  • What was the appropriate objective seriousness of the two ongoing supply offences, having regard to the quantities of drugs involved and the offender's role?
  • What weight should be given to the offender's subjective circumstances, including his age, limited criminal history, drug addiction, and guilty plea?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody, and whether a home detention condition was appropriate.

Decision

Buscombe DCJ assessed both primary offences as falling towards the lower end of objective seriousness. The total heroin supplied across both charges was modest (1.4 grams and 1.2 grams respectively), only marginally exceeding the "small quantity" threshold under Schedule 1 of the Drug Misuse and Trafficking Act. The methadone quantities were also relatively limited. The offender's role was characterised as that of a street-level supplier who offended principally to fund his own drug habit, operating without sophistication or significant planning.

No aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 were pressed by the Crown. The Form 1 offences relating to the first charge, which involved 15 additional supplies, were found to carry some sentencing weight. Those relating to the second charge, involving four very small heroin supplies, were treated as having minimal impact.

On the subjective case, the court gave weight to the offender's age, limited prior criminal history (with no previous ongoing supply convictions), his drug dependency, and his guilty plea. The court considered that an Intensive Correction Order was an available and appropriate sentencing option, taking into account the principle under s 5 of the Crimes (Sentencing Procedure) Act that full-time imprisonment should not be imposed if another sentence is appropriate. An assessment confirmed the offender's suitability for home detention as a condition of the ICO.

The court imposed an aggregate sentence of three years imprisonment to be served by way of an ICO, with the first two years subject to a home detention condition. The court emphasised clearly to the offender that this remained a sentence of imprisonment: any breach would be referred to the State Parole Authority, with a real prospect of the order being revoked and the offender being committed to full-time custody.

Orders Made

  • The offender is convicted of the offences to which he pleaded guilty.
  • An aggregate sentence of three years imprisonment is imposed, commencing 18 June 2021 and expiring 17 June 2024.
  • The sentence is to be served by way of an Intensive Correction Order (ICO).
  • Standard conditions: the offender is not to commit any further offences; the offender is to be supervised by Community Corrections.
  • Additional conditions:
  • 250 hours of community service
  • Home detention for the first two years of the order
  • Abstention from prohibited drugs
  • The offender is to contact St Leonards Community Corrections by telephone on the day of sentencing to implement the order.

Key Takeaways

  • Under s 25A of the Drug Misuse and Trafficking Act 1985, ongoing supply offences carry a maximum of 20 years imprisonment and are generally treated as more serious than standard supply offences under s 25, even where the quantities involved are relatively small.
  • The quantity of drugs supplied remains a relevant, though not determinative, factor in sentencing for ongoing supply. The District Court placed significant weight on the offender's street-level role and the unsophisticated, habit-funding nature of the conduct in assessing objective seriousness as low.
  • An Intensive Correction Order, including a home detention component, was available and was imposed in this case, reflecting the court's application of the principle in s 5 of the Crimes (Sentencing Procedure) Act that full-time custody should not be imposed where another sentence is suitable.
  • Form 1 offences can affect sentence weight differently depending on their nature and scale. Here, the 15 additional supplies on the first Form 1 carried more sentencing significance than the four minor supplies acknowledged on the second.
  • A sentence served by way of ICO is still a sentence of imprisonment. The District Court made clear that breach exposes an offender to referral to the State Parole Authority and the prospect of full-time custody.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, Schedule 1
- Crimes Act 1900 (NSW), s 193(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A

Cases cited: No cases were cited in the available text of the judgment.