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District Court 13 October 2022

R v Jenkinson (No. 3)

[2023] NSWDC 120

Drugs

Citation: R v Jenkinson (No. 3) [2023] NSWDC 120
Court: District Court of New South Wales
Date: 13 October 2022
Judge(s): Bennett SC DCJ

Background

The offender appeared for sentencing on three charges arising from a single police investigation. Police found him in a parked car late at night and, following a lawful search, discovered 98 grams of vegetable matter containing psilocybin (magic mushrooms), cannabis leaf, weighing scales, and approximately $2,390 in cash.

The primary charge, supply of a prohibited drug in a commercial quantity, had been determined at a judge-alone trial. The offender had argued at trial that only the weight of the active constituent psilocybin should count, not the bulk vegetable matter of the mushrooms. That argument was rejected in an earlier ruling (R v Jenkinson (No. 1) [2022] NSWDC 286), and the 98-gram figure representing the total mushroom weight was used for sentencing purposes.

The offender also faced a charge of dealing with proceeds of crime (the cash found in the vehicle) and a possession of cannabis charge, to both of which he had pleaded guilty.

  • Whether the offender's bail conditions during the period between arrest and sentencing were sufficiently restrictive to constitute "quasi-custody," warranting a reduction in the sentence to be imposed.
  • What weight to give to the guilty pleas and the manner in which the judge-alone trial was conducted, particularly in terms of facilitating the administration of justice.
  • What sentence was appropriate across all three charges, and whether an Intensive Correction Order (ICO) was suitable in the circumstances.

Decision

Quasi-custody: The court considered whether the bail conditions imposed from May 2020, which initially included daily police reporting and a nightly curfew, were so restrictive as to amount to quasi-custody. Relying on R v Quinlin [2021] NSWCA 284, the court noted that the onus of establishing quasi-custody rests on the offender on the balance of probabilities. The court was not satisfied the conditions met that threshold, but accepted they were significant constraints on the offender's liberty over a substantial period and took them into account in mitigation.

Discounts and facilitation of justice: A 25% discount applied to both the proceeds of crime charge and the cannabis possession charge, reflecting the timing and utility of the guilty pleas under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. No percentage discount applied to the trial conviction, but the court brought to account the considerable degree to which the offender had facilitated the administration of justice, having sought a judge-alone trial, limited the issues in dispute, and minimised the time and resources required.

Sentencing: The court identified an indicative sentence of 2 years and 3 months with a non-parole period of 1 year for the commercial supply offence, and 11 months (after the 25% guilty plea discount) for the proceeds of crime charge. The aggregate sentence was 2 years and 6 months. The court determined that an ICO was appropriate, noting that the standard non-parole period of 10 years served as a guidepost under the Muldrock framework, but that the particular circumstances of the offender warranted this outcome.

ICO conditions: The court declined to impose a further curfew, noting the offender had already experienced a lengthy period of curfew on bail and was at an important stage of his tertiary studies. Additional conditions required abstinence from illicit drugs and compliance with any treatment or rehabilitation recommended for his anxiety and depression, which the court identified as having contributed to his offending.

Orders Made

  • Aggregate sentence of 2 years and 6 months, imposed as an Intensive Correction Order.
  • For the commercial quantity supply offence: 2 years and 3 months with a non-parole period of 1 year.
  • For the proceeds of crime offence: 11 months (after 25% guilty plea discount).
  • Standard ICO conditions: no further offending; supervision by a community corrections officer (reporting to Community Corrections at Maitland).
  • Additional ICO conditions: abstain from illicit drugs and non-prescribed medications; comply with any treatment or rehabilitation requirements for anxiety and depression.

Key Takeaways

  • The District Court confirmed that for psilocybin prosecutions involving dried mushrooms, the relevant weight for the purposes of commercial quantity calculations is the total bulk vegetable matter, not merely the weight of the active constituent, relying on the definition of "admixture" in s 4 of the Drug Misuse and Trafficking Act 1985.
  • Bail conditions involving daily police reporting and a nightly curfew over an extended period may be taken into account in mitigation of sentence, even where they do not reach the threshold of quasi-custody established in R v Quinlin [2021] NSWCA 284.
  • Under s 22A of the Crimes (Sentencing Procedure) Act 1999, a court may reduce a sentence where a defendant's conduct at trial facilitated the administration of justice, including by seeking a judge-alone trial and limiting the issues in dispute, without the court needing to specify a precise discount percentage.
  • An ICO can be imposed in the absence of a specific suitability assessment report, provided the court has sufficient material before it to be satisfied of appropriateness, including considerations of community safety under s 66 of the Crimes (Sentencing Procedure) Act 1999.
  • The offender's personal circumstances, including his ongoing tertiary education and the role of mental health difficulties in the offending, were treated as relevant to the structure of the ICO conditions, particularly in declining to impose a further curfew.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 4, 10(1), 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 25D(2)(a), 66, Part 3 Div 1A, Part 4 Div 1A
- Criminal Procedure Act 1986 (NSW), ss 166, 191
- Evidence Act 1995 (NSW), s 191

Cases:
- House v King [1936] HCA 40
- Imbornone v R [2017] NSWCCA 144
- Muldrock v The Queen [2011] HCA 39
- R v Jenkinson (No. 1) [2022] NSWDC 286
- R v Quinlin [2021] NSWCA 284
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247