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District Court 27 October 2023

R v Stewart

[2023] NSWDC 469

Drugs
CRIME DRUG OFFENCES POSSESS PROHIBITED DRUG SUPPLY PROHIBITED DRUG

Citation: R v Stewart [2023] NSWDC 469
Court: District Court of New South Wales
Date: 27 October 2023
Judge(s): Priestley SC DCJ

Background

The offender was a mid-level drug supplier operating in the Coffs Harbour and Grafton areas of New South Wales. A police investigation, which monitored more than 12,000 calls and SMS messages across nine mobile phone services, uncovered his role in purchasing methamphetamine and cannabis in Sydney and distributing them locally over a period of approximately five months in 2021 and 2022.

He was arrested on 14 April 2022 and remanded in custody. He faced four principal charges under the Drug Misuse and Trafficking Act 1985 (NSW) and the Crimes Act 1900 (NSW): supply of 9.087 kg of cannabis (Count 1), possession of $12,300 in cash as proceeds of crime on a reckless basis (Count 2), possession of 190.7 g of methylamphetamine for supply (Count 3), and supply of 108.25 g of methylamphetamine across 21 occasions (Count 4). Five further offences were listed on a Form 1 to be taken into account on sentencing.

After approximately 11 months in presentence custody, the offender was bailed in March 2023 on condition that he enter the Connect Global residential rehabilitation facility, which he did. By the time of sentencing in October 2023, he had completed the full seven-month residential programme. The central question at sentence was whether an Intensive Correction Order (ICO) was appropriate or whether a term of full-time imprisonment was required.

Legal Issues

  • What was the appropriate objective seriousness for each of the four principal offences?
  • Whether the period spent at the Connect Global facility constituted quasi-custody and, if so, at what level of restriction?
  • Whether section 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibited the imposition of an ICO having regard to the aggregate sentence length and time already served?
  • Whether, under section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles in Stanley v DPP [2023] HCA 3, community safety would be better promoted by an ICO than by full-time detention?
  • What aggregate sentence appropriately reflected the totality of the criminality across all four counts?

Decision

Objective seriousness of each count

Count 1 (cannabis supply) reached the mid-range of objective seriousness. The amount fell below the commercial quantity of 25 kg but was well in excess of the indictable quantity of 1 kg. The offender demonstrated some sophistication by arranging for others to transport the drugs in a separate vehicle, suggesting he was not at the very bottom of that supply hierarchy (at [17]-[18]).

Count 2 (proceeds of crime) was assessed as low in objective seriousness. Because the charge was framed on a reckless rather than knowing basis, the court could not conclude beyond reasonable doubt that the $12,300 was specifically the proceeds of the offender's own drug dealing. The amount was also described as part and parcel of the broader drug supply offending, meaning it did not significantly increase the overall criminality (at [21]-[22]).

Counts 3 and 4 (possession and supply of methylamphetamine) were each placed in the low mid-range of objective seriousness. Count 4 involved 21 occasions of supply generating revenue of $36,040, with the offender operating as a mid-level dealer. Count 3 involved a larger quantity (190.7 g, approaching but below the 250 g commercial quantity), but that factor was counter-balanced by the drugs never having reached the market (at [15], [24]-[25]).

Aggravating and mitigating factors

Throughout all offending, the offender was on parole, and during a portion of it he was also subject to a Community Correction Order. His offending in flagrant disregard of those conditions of liberty was an aggravating factor (at [7]). His significant criminal history, including a seven-year sentence for firing a firearm at a dwelling house, deprived him of leniency (at [31]-[40]). Against that, the court accepted the Bugmy principles applied: a background of significant social disadvantage, including no paternal relationship, an alcoholic mother, leaving school in year 8, early exposure to substance abuse, major depressive disorder, possible PTSD, and childhood sexual abuse, each reduced the offender's moral culpability (at [59]). A 25% discount applied for the timing of guilty pleas (at [30]).

Quasi-custody assessment for Connect Global

The court assessed the Connect Global rehabilitation facility as constituting quasi-custody at 50%. Although the facility did not impose the same restrictions as more secure environments, residents faced consequences for non-compliance (including return to custody), and access to communications was monitored. The court treated those restrictions as a genuine imposition on liberty, corresponding to approximately three months of equivalent custody credit for the seven months spent there (at [37]).

ICO eligibility under section 68

Taking the aggregate sentence of four years, with the sentence backdated nine months for presentence custody and adding the three months of quasi-custody credit, the court concluded that 12 months of the sentence had already been served. Applying the methodology from Mandranis v R [2021] NSWCCA 97 and R v Doan [2000] NSWCCA 317, the remaining balance was three years, within the three-year ICO maximum. Section 68 therefore did not prohibit the imposition of an ICO (at [69]-[71]).

Whether an ICO was appropriate under section 66

Following Stanley v DPP [2023] HCA 3, the court treated community safety as the paramount consideration and assessed whether an ICO or full-time detention better reduced the risk of reoffending. The court found that returning the offender to custody would remove the community, personal, family, and professional supports that underpinned his rehabilitation, making reoffending more likely. The seven months of meaningful engagement with Connect Global, supported by a business plan for motor vehicle repairs and credible evidence from his stepfather, demonstrated genuine progress. The court found that rehabilitation was better supported in the community, meaning an ICO better promoted community safety than full-time detention (at [75]).

On the broader sentencing purposes under section 66(3), the court noted that the offender had already served 11 months in full-time custody, nine of which were attributable to this offending, together with seven months of restricted liberty at Connect Global. That period already meaningfully addressed denunciation and deterrence. The remaining three-year ICO term, itself a form of imprisonment with conditions, would continue to meet those purposes (at [78]-[80]).

Orders Made

  • The offender was convicted of Counts 1, 2, 3, and 4.
  • An aggregate sentence of four years imprisonment was imposed, with the sentence backdated so that three years remained to be served.
  • The three-year term is to be served by way of an Intensive Correction Order commencing 27 October 2023 and expiring 26 October 2026.
  • Conditions of the ICO include: no further offences; supervision by a community corrections officer (with attendance at the Grafton community corrections office by 3 November 2023); full abstinence from all illegal drugs and from prescription drugs other than those prescribed to the offender; and participation in the Connect Global outpatient extension programme for a minimum of six months and up to 12 months.
  • Indicative sentences (after 25% discount) were: Count 1, 22.5 months; Count 2, 13.5 months; Count 3, 27 months; Count 4, 22.5 months.

Key Takeaways

  • Under the three-step ICO process, the critical eligibility question under section 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is the length of the sentence actually imposed, not the starting point before presentence custody is deducted. Where the balance remaining after crediting presentence custody and quasi-custody falls within the three-year maximum, section 68 does not prohibit an ICO (at [50]-[51], [69]-[71]).

  • The District Court confirmed that time spent in a residential rehabilitation facility can constitute quasi-custody for sentencing purposes, with the appropriate credit determined by the degree of restriction on liberty. The presence of consequences for non-compliance (return to custody) and monitored communications were sufficient to attract a 50% quasi-custody assessment, even where the facility offered greater freedom than a conventional correctional setting (at [37]).

  • Community safety under section 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is the paramount consideration in deciding whether to make an ICO, but it focuses on the narrower question of whether an ICO or full-time detention better reduces the risk of reoffending in a manner that adversely affects the community. Parliament expressly recognised that community safety may, in some cases, be better promoted by a sentence served in the community (at [72]-[75]).

  • Significant presentence custody, when combined with meaningful rehabilitative progress, can satisfy the purposes of denunciation and deterrence to a degree that makes an ICO appropriate even for serious drug supply offending. The fact that an offender has already served substantial time in custody informs the section 66(3) assessment of whether any sentencing purpose would remain unmet by an ICO (at [78]-[80]).

  • Where an offender's background involves significant social disadvantage, including childhood trauma, major depressive disorder, and childhood sexual abuse, the Bugmy principles apply to reduce moral culpability, though the mitigating effect remains limited rather than operating to eliminate the need for deterrence (at [59], [62]).

Legislation and Cases Referenced

Legislation
- Drug Misuse & Trafficking Act 1985 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Redfern v R [2012] NSWCCA 178
- R v Millwood [2012] NSWCCA 2
- Mandranis v R [2021] NSWCCA 97
- R v Doan [2000] NSWCCA 317
- R v Alferlink [2021] NSWDC 473
- Hall v The Queen [2021] NSWCCA 220
- R v Holder [1983] 3 NSWLR 245
- Cahyadi v R [2007] NSWCCA 1
- Stanley v DPP [2023] HCA 3
- R v Pullen [2018] NSWCCA 264