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District Court 10 May 2022

R v Leung

[2022] NSWDC 555

Drugs
CRIME SENTENCE DRUG OFFENCES SECTION 166 CERTIFICATE THE INEXPEDIENCY OF FURTHER PUNISHMENT

Citation: R v Leung [2022] NSWDC 555
Court: District Court of New South Wales
Date: 10 May 2022
Judge: Neilson DCJ

Background

The defendant faced a criminal trial by judge alone alongside a co-accused on an eight-count indictment relating to drug offences. On 9 May 2022, Neilson DCJ acquitted the defendant of all charges on the indictment that applied to her. The following day, a separate charge remained for determination under a section 166 Certificate (a mechanism that allows a judge to deal with a summary offence arising from the same circumstances as an indictable matter).

That remaining charge alleged that on 4 September 2019 at Birchgrove, the defendant possessed 0.31 grams of cocaine. The drugs were found during the execution of a Criminal Organisation Search Warrant at premises the defendant shared with a romantic partner, Hyeon Joon Choi. Small parcels of cocaine totalling 0.31 grams were found on the defendant's side of a shared wardrobe, in a nail polish box, and in a bedside table drawer on her side of the bed.

The defendant had been arrested in September 2019 and remained in custody for three months and eight days before being granted bail. She had no prior criminal history, and the prosecution on indictment had occupied her for the better part of three years before its resolution.

  • Whether the circumstantial evidence was sufficient to prove beyond reasonable doubt that the defendant had possession of the cocaine found in bedroom 1, given that her partner also had unhindered access to those locations.
  • Whether, having found the charge proved, the court should dismiss it without conviction under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the defendant's good character, the trivial nature of the offence, and the burden already imposed on her.

Decision

On the question of possession, Neilson DCJ found the charge proved. The defence argued that Mr Choi, who had a drug-related criminal history and plainly controlled large quantities of cocaine and other drugs found throughout the premises, could have secreted the small amounts in the defendant's belongings. His Honour rejected that inference as implausible. Given that Mr Choi had access to hundreds of grams of cocaine stored in other parts of the residence, it was fanciful to suggest he would conceal 0.31 grams in the defendant's jacket pocket, nail polish box, and bedside table when far more convenient locations were available to him.

On sentence, his Honour turned to section 10 of the Crimes (Sentencing Procedure) Act 1999, which permits a court to dismiss a charge without conviction where it is satisfied that it is inexpedient to inflict punishment. Several factors weighed heavily in the defendant's favour. She had no prior criminal history, was 38 at the time of the offence, and the quantity involved (0.31 grams) was less than one-third of the "small quantity" threshold for cocaine under NSW law. The charge, had it been dealt with in the Local Court, would most likely have attracted only a modest fine.

Critically, the defendant had already served over three months in pre-trial custody, a period his Honour found to be far in excess of any penalty that would ordinarily be imposed for such a minor possession offence. She had also lived with the consequences of the indictment for nearly three years. Taken together, her good character, the trivial nature of the offending, and the substantial burden the proceedings had already imposed on her led his Honour to conclude it was inexpedient to inflict any further punishment.

Orders Made

  • The charge of possessing a prohibited drug (0.31 grams of cocaine) was dismissed without conviction under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Key Takeaways

  • Under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may dismiss a charge without conviction where it finds punishment inexpedient, taking into account the offender's character, the trivial nature of the offence, and any extenuating circumstances.
  • Time already served in pre-trial custody, where it substantially exceeds the penalty likely to be imposed for the proved offence, is a significant factor in assessing whether further punishment is warranted.
  • A conviction for possession requires more than the proximity of drugs to a defendant's belongings. Where a third party had unhindered access to the same locations and strong connections to other drugs in the premises, that proximity must be weighed carefully. Here, however, the court found the defence's alternative inference implausible given the surrounding circumstances.
  • The District Court treated 0.31 grams of cocaine (less than one-third of the "small quantity" threshold) as a trivial offence for sentencing purposes, distinguishing the quantity from the seriousness of drug offending generally.
  • Prolonged exposure to prosecution on indictment, ultimately resulting in acquittal on all indictable counts, formed part of the extenuating circumstances the court took into account when declining to impose any further penalty on the summary charge.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly sections 10(1)(a) and 10(3)

Cases
- 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