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District Court 10 May 2022

R v Webster

[2022] NSWDC 554

Drugs
CRIME SENTENCE DRUG OFFENCES THE INEXPEDIENCY OF FURTHER PUNISHMENT

Citation: R v Webster [2022] NSWDC 554
Court: District Court of New South Wales
Date: 10 May 2022
Judge: Neilson DCJ

Background

The defendant faced trial by judge alone alongside a co-accused on an eight-count indictment involving drug offences. At the conclusion of the trial, the defendant was acquitted on most counts but found guilty of a statutory alternative offence: supply of a traffickable quantity of MDMA (3,4-methylenedioxymethylamphetamine), specifically 14.8 grams. The defendant also pleaded guilty on the day of sentencing to three minor charges disclosed under a section 166 certificate, including possession of a drug encapsulator, a small quantity of cocaine, and 24.9 grams of cannabis.

The 14.8 grams of MDMA was found across two resealable bags containing 65 capsules and a round takeaway food container. The defendant had also purchased an encapsulating machine and 5,000 empty capsules. The court inferred the defendant was using the MDMA in the container as a source for filling the capsules.

Critically, by the time of sentencing, the defendant had spent two years, seven months, and 26 days in pre-sentence custody on remand, arising from the original charges on the indictment.

  • Whether the court should dismiss the charges without proceeding to conviction under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, having regard to the time already served on remand
  • Whether the time spent in custody vastly exceeded any penalty that could ordinarily have been imposed for the offence of which the defendant was actually found guilty
  • How to deal with the three minor offences to which the defendant pleaded guilty, including the appropriate disposal of the cannabis possession charge

Decision

Neilson DCJ examined Judicial Commission statistics for supply of illicit drugs (below commercial quantity) in both the Local Court and the District Court. The data showed that only around 25 to 31 percent of offenders receive full-time custody for such offences, and even at the top of the 80th percentile range for District Court sentences, the maximum non-parole period was 18 months. The defendant had already served more than two and a half years in custody, far exceeding that upper range.

His Honour noted that, given the defendant's prior good character and personal circumstances, a custodial sentence would have been unlikely in any event. A community corrections order or intensive corrections order would probably have been imposed. The amount of time spent on remand therefore dwarfed every realistic sentencing outcome, whether in the Local Court or the District Court.

Applying the principles from R v Mauger [2012] NSWCCA 51, where an offender in materially similar circumstances was dealt with under section 10(1)(a) and a Crown appeal against that disposal was dismissed, his Honour concluded it was appropriate to dismiss the MDMA supply charge without conviction. The possession of the drug encapsulator was treated as subsumed within that offence, and section 10(1)(a) was applied to it as well, together with the cocaine possession charge.

For the cannabis possession charge, his Honour rejected both a fine (given the defendant's likely inability to pay after nearly three years out of work) and any nominal custodial term (which would not survive appeal). Accordingly, that charge was also dismissed under section 10(1)(a) without proceeding to conviction. In each case, the court was satisfied it was inexpedient to inflict any punishment.

Orders Made

  • The conviction recorded for supplying a traffickable quantity of MDMA was revoked.
  • All charges, including the MDMA supply offence and the three minor offences (sequences 3, 5, and 11), were dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.

Key Takeaways

  • Where a defendant has spent significantly more time on remand than any sentence that could realistically have been imposed for the proven offence, that disparity is a powerful consideration favouring dismissal under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • The District Court applied R v Mauger [2012] NSWCCA 51 as authority that section 10(1)(a) can appropriately be applied to supply of a traffickable quantity of MDMA where personal circumstances are favourable and the time served outweighs any proportionate sentence.
  • Judicial Commission statistics played a direct role in the sentencing analysis, providing an empirical benchmark against which actual time served in remand was measured.
  • A finding of guilt on a statutory alternative count, rather than the primary indicted offence, can materially affect the sentencing outcome, particularly where the alternative offence carries a substantially lower objective gravity.
  • Imposing a fine on a defendant who has been out of work for an extended period due to remand custody was considered manifestly inappropriate, even for a relatively minor charge such as cannabis possession.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(a), 10A, 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Drug Misuse and Trafficking Regulation 2011 (NSW) (repealed)

Cases:
- R v Mauger [2012] NSWCCA 51
- Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
- R v Paris [2001] NSWCCA 83
- Regina v Van Nam Nguyen [2002] NSWCCA 183
- R v Leung; R v Webster (No. 1) [2022] NSWDC 137
- R v Leung; R v Webster (No. 2) [2022] NSWDC 138
- R v Leung; R v Webster (No. 3) [2022] NSWDC 139
- R v Leung; R v Webster (No. 4) [2022] NSWDC 553