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District Court 9 June 2023

R v Esho

[2023] NSWDC 195

Drugs
CRIME SENTENCE

Citation: R v Esho [2023] NSWDC 195
Court: District Court of New South Wales
Date: 9 June 2023
Judge: Newlinds SC DCJ

Background

The offender, a 27-year-old man, pleaded guilty to one count of supplying a commercial quantity of cocaine contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. Police executed a search warrant at his unit in Mascot in May 2022 and found a total of 828 grams of cocaine: 55.6 grams concealed in shoes in his bedroom and 772.6 grams in a vacuum-sealed block in a spare bedroom.

The offender denied knowledge of the larger quantity when questioned, claimed he did not use the spare bedroom, and made no comment in his formal police interview. He was arrested and held in custody for 78 days before being granted conditional bail.

Shortly after his release on bail, the offender voluntarily entered a full-time, live-in residential rehabilitation program run by Connect Global Limited at Swan Bay, where he remained for seven months. He was drug-free at the time of sentencing, had not breached his bail conditions, and had engaged constructively with a psychologist who identified links between his trauma, substance abuse, anxiety, and depression and his offending.

  • What was the appropriate assessment of the objective seriousness of the offence, having regard to the offender's role, the quantity and purity of the drugs, the planning involved, and the financial reward obtained?
  • What weight should be given to the offender's subjective circumstances, including his criminal history, his early guilty plea, his genuine remorse, and his voluntary engagement with rehabilitation?
  • Whether the sentence should be served in full-time custody or, given the threshold under section 5 of the Crimes (Sentencing Procedure) Act 1999 being met, whether an Intensive Correction Order (ICO) was appropriate.

Decision

His Honour assessed the objective seriousness of the offence as falling at the low end of the range, or at least towards it. The offender's role was limited to storing the drugs for supply by others, with no evidence of actual dealing, meaningful planning, or more than a single occasion of involvement. While the quantity of cocaine was high, its purity of 26.5% was towards the lower end of what might ordinarily be expected. No significant financial reward was established, and the court inferred that any benefit received was used to fund the offender's own drug habit rather than to accumulate wealth.

On the subjective side, Newlinds SC DCJ found the offender presented a very strong case despite a not insignificant criminal history spanning multiple states, including a prior Queensland imprisonment for drug offences. The court placed particular weight on the offender's genuine remorse, demonstrated not only by words but by his voluntary and sustained participation in a residential rehabilitation program. The psychologist's evidence linking the offending to the offender's mental health and substance abuse difficulties, combined with a positive prognosis for treatment, also weighed in his favour.

The court applied a 25% discount for the early guilty plea, bringing the sentence down from a starting point of 3 years and 2 months to 2 years and 5 months. A further reduction recognised time spent in custody and what the court characterised as "quasi custody" during the residential rehabilitation program, crediting a total of 6 months. The final term of imprisonment was set at 1 year and 11 months.

Having crossed the full-time custody threshold under section 5, the court nonetheless determined that the balance of the sentence should be served by way of an ICO, citing the offender's strong prospects of rehabilitation and the objective acts that demonstrated his genuine commitment to change.

Orders Made

  • The offender was convicted of supplying a commercial quantity of cocaine contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985.
  • A term of imprisonment of 1 year and 11 months was imposed.
  • Six months were credited as time already served in custody and quasi-custody.
  • The balance of 23 months is to be served by way of an Intensive Correction Order (ICO) commencing 29 June 2023, subject to the following conditions:
  • No further offences; submission to supervision by a community corrections officer.
  • Strict compliance with the treatment plan prepared by psychologist Billel Rababi.
  • Enrolment in and strict compliance with Connect Global's extension program, including attendance at Narcotics Anonymous meetings and submission to random urine testing during that program.
  • Continued attendance at Narcotics Anonymous meetings after completion of the extension program, with evidence of attendance provided to the community corrections officer.
  • Residence with his parents for the duration of the sentence, unless written permission to reside elsewhere is granted by the community corrections officer.
  • Abstention from illicit drugs and submission to urine testing as required by the psychologist, Connect Global staff, or the community corrections officer.
  • The Schedule 2 back-up charge of possession of a prohibited drug was withdrawn by the Crown.

Key Takeaways

  • The District Court confirmed that objective seriousness for a commercial drug supply offence is not determined by quantity and purity alone. Role, planning, frequency of offending, and the consequences of distribution are all relevant, and an offender with a low-level storage role on a single occasion may fall at the low end of the seriousness spectrum even where the quantity is large.
  • Where an offender's motivation for participation in drug supply is to fund personal addiction rather than to accumulate financial gain, the financial reward consideration carries reduced weight as a marker of seriousness.
  • A strong subjective case, including genuine and objectively demonstrated remorse, voluntary residential rehabilitation, and a credible treatment plan, can significantly influence the structure of a sentence even where the full-time custody threshold has been crossed.
  • The court treated time spent in a voluntary full-time residential rehabilitation program as capable of constituting "quasi custody" for the purposes of crediting time already served against the sentence.
  • Sentencing statistics maintained by the Judicial Commission are a permissible reference point for assessing whether a proposed term sits within the range, but the District Court reiterated that statistical analysis can mislead and that no individual case is a precedent for another.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7(1), 21A(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- R v Anscombe [2021] NSWDC 540
- R v Mandranis (2021) NSWCCA 97
- R v Mason [2022] NSWDC 351
- Stanley v DPP [2023] HCA 3
- Zheng v R [2023] NSWCCA 64