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District Court 16 March 2023

R v Jessop

[2023] NSWDC 367

DrugsFirearms & weapons

Citation: R v Jessop [2023] NSWDC 367
Court: District Court of New South Wales
Date: 16 March 2023
Judge: Haesler SC DCJ

Background

A police investigation into drug supply in the Bega Valley led to the identification of the offender through mobile phone footage showing a person manufacturing pills bearing a Rolex symbol using a pill press. The offender, whose tattoos matched those visible in the footage, was subsequently stopped and searched by police on 30 October 2021. That search, and a later search of his home, uncovered a substantial range of prohibited items.

Police found cannabis plants and cannabis leaf totalling approximately 2.732 kilograms, a pill press, MDMA pills weighing 9.77 grams, 17.38 grams of methylamphetamine, psilocybin-containing mushrooms totalling 4.6 grams, Modafinil tablets, two prohibited weapons (a card blade and knuckledusters), and $2,510 in cash. The offender maintained throughout that certain items, including the mushrooms, were for his personal use.

The offender pleaded guilty in the Local Court to four indictable offences and was committed to the District Court for sentence. He also admitted guilt in relation to five further matters dealt with under a certificate pursuant to section 166 of the Criminal Procedure Act 1986 (NSW). Three additional matters were placed on a Form 1, meaning they were taken into account on sentence without separate convictions being recorded.

  • How to assess the objective seriousness of each offence, including the novel question of the psilocybin manufacturing count.
  • Whether the Form 1 offences should increase the weight given to deterrence and community protection, and how to avoid double-counting where those matters also informed the objective seriousness of the principal offences.
  • The appropriate utilitarian discount to apply for pleas of guilty.
  • Whether a custodial sentence, and specifically an Intensive Correction Order (ICO), was the appropriate sentencing disposition given the offender's subjective circumstances, including a history of trauma and possible underlying mental health conditions.

Decision

Haesler SC DCJ held that the overall pattern of conduct, spanning drug manufacture, supply, cultivation, possession of weapons, and proceeds of crime dealings, warranted a custodial sentence. His Honour found the quantities of MDMA were not especially high relative to other matters before the Court, and characterised the operation as amateurish rather than commercial in scale. Nevertheless, the offender had admitted to his GP that he sold both cannabis and MDMA for financial reasons, and the Court treated any supply of illicit drugs as a serious matter regardless of the relatively small scale involved.

The psilocybin count required particular attention. The offender gave evidence that he had read about moves to decriminalise such substances and believed the mushrooms were for his own therapeutic use. His Honour acknowledged the social debate surrounding psilocybin but proceeded on the basis that, under current law, manufacture of the drug remains a serious offence carrying a maximum of 15 years' imprisonment. The absence of any evidence of an extraction process was noted as relevant to objective seriousness.

On the Form 1 matters, the Court acknowledged the standard position that such matters ordinarily increase the weight given to community protection and specific deterrence. However, His Honour found that these matters had already informed the objective seriousness of the principal offences and so avoided double-counting by treating them as effectively "clearing the slate" rather than aggravating the sentence further. Each sentence was reduced by 25% to reflect the utilitarian value of the guilty pleas, with His Honour also noting that the early resolution efforts in the Local Court carried genuine practical value.

The offender's background, including the effects of a parent's drug use on his upbringing and possible underlying mental health conditions, were taken into account as subjective factors. His Honour was satisfied these matters did not causally reduce objective seriousness but were relevant to the overall sentencing synthesis. An ICO was imposed, with conditions including psychological treatment and drug and alcohol programs.

Orders Made

  • Convictions recorded on all matters before the Court.
  • Each individual sentence reduced by 25% to reflect guilty pleas.
  • Sequence 8 (Possess Prescribed Restricted Substance, 26 Modafinil tablets): Community Corrections Order for 12 months, not included in the aggregate sentence.
  • All remaining matters dealt with as an aggregate sentence of 2 years and 10 months, commencing 16 March 2023 and expiring 15 January 2026.
  • Aggregate sentence to be served by way of Intensive Correction Order (ICO).
  • Standard ICO conditions imposed, including reporting and good behaviour requirements.
  • Additional conditions: engage in psychological treatment as directed by Community Corrections; engage in drug relapse and alcohol programs as directed.
  • The remaining matter withdrawn and dismissed.
  • Individual indicative sentences:
  • Manufacture MDMA (Seq. 7, including Form 1 matters): 2 years 3 months
  • Supply MDMA (Seq. 11): 1 year 3 months
  • Manufacture psilocybin (Seq. 17): 1 year 6 months
  • Supply cannabis leaf (Seq. 18): 1 year 6 months
  • Possess prohibited weapon, card blade (Seq. 2): 1 month
  • Supply methylamphetamine (Seq. 12): 9 months
  • Possess prohibited weapon, knuckledusters (Seq. 15): 3 months
  • Deal with suspected proceeds of crime (Seq. 16): 9 months

Key Takeaways

  • The District Court confirmed that even small-scale or partly personal supply of illicit drugs constitutes a serious offence warranting custodial penalties, regardless of whether the offender viewed themselves as a drug dealer in any commercial sense.
  • Where Form 1 offences have already been considered in assessing the objective seriousness of principal offences, the Court found it would constitute impermissible double-counting to then use those same matters to further aggravate the sentence by increasing the weight given to deterrence and community protection.
  • A guilty plea's utilitarian value includes not only the saving of court resources but also, in appropriate cases, evidence of an offender's cooperation and rehabilitation prospects, both of which bear on the ultimate sentencing synthesis.
  • Underlying mental health conditions and a background of trauma and neglect can constitute relevant subjective factors without necessarily having a causal connection to the offending that would reduce objective seriousness.
  • An Intensive Correction Order remained available as a sentencing option for an aggregate sentence below three years, enabling the Court to impose a custodial sentence while directing the offender's rehabilitation through community-based treatment conditions.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 11B(1), 24(1), 25(1)
- Crimes Act 1900 (NSW), s 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Henry v R (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3