Citation: R v Clemas [2023] NSWDC 607
Court: District Court of New South Wales
Date: 24 November 2023
Judge: Haesler SC DCJ
Background
A jury convicted the offender of supplying a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), following a short trial in July 2023. The commercial quantity threshold for that drug is 250 grams. The prosecution case centred on the offender's involvement in transporting a plastic bag containing 499.03 grams of methylamphetamine by taxi between Liverpool and Port Kembla and back.
The offender maintained throughout that he had travelled to Port Kembla for an innocent purpose and had no knowledge that drugs were present in the taxi's boot. The jury rejected that account. At sentencing, the offender continued to maintain his innocence, which meant he received no discount that an early guilty plea might have attracted.
The offender had a minimal prior criminal record before this offence. He had a history of low-level illicit drug use, some childhood deprivation, and a solid work history. A forensic psychologist provided a report, although certain opinions in it were necessarily limited given the offender's maintained denial.
Legal Issues
- What facts could be found consistently with the jury verdict, given the limits imposed by Olbrich v The Queen (requiring that aggravating matters be proved beyond reasonable doubt and mitigating matters on the balance of probabilities)?
- How should objective seriousness be assessed where the offender acted as a courier, no transaction was completed, and the Crown could not establish aggravating features such as planning or financial gain beyond the usual incidents of supply?
- What weight should be given to the offender's maintenance of innocence at sentencing, and did this preclude a reduction in sentence?
- Whether special circumstances existed justifying an extended parole period (that is, a longer-than-standard proportion of the sentence served on parole rather than in custody).
Decision
Fact-finding. Haesler SC DCJ was constrained by the Olbrich principle to sentence only on what could be established to the requisite standard. The Court found that the offender knowingly accompanied the bag from Liverpool to Port Kembla, was present when it was placed in the boot, physically handled it at Port Kembla, and returned to the taxi with it intending to travel back to Liverpool. The Court declined to find that the offender organised the transaction, concluding it was more likely that another person at the Liverpool address did so. No finding was made about the purpose of the return journey or the precise reward the offender expected, though some benefit was presumed.
Objective seriousness. The Court characterised the offending as serious, but well below the upper range for offences of this type. The offender's role was that of a courier facilitating the movement of drugs. The Court noted the absence of several aggravating features: no transaction was completed, no money changed hands, there was no evidence of significant planning or that the offender knew the exact quantity, and no drugs entered the community. A custodial sentence was the only appropriate response, particularly given the importance of general deterrence in drug supply offences.
Maintenance of innocence. The Court was clear that the offender was not to be punished for maintaining his innocence and that no adverse inference was drawn from it. At the same time, he received none of the sentencing benefits that would have followed from an early guilty plea. The Court sentenced strictly in accordance with the jury's verdict.
Special circumstances and subjective factors. The Court found that special circumstances existed, justifying a greater proportion of the sentence being served on parole. The offender had a capacity to lead a law-abiding life, but his drug use and attitudes formed in childhood required treatment both in custody and in the community. The Court expressed measured confidence that, with appropriate support, the offender would not reoffend, and structured the sentence to extend the parole period accordingly.
Orders Made
- Conviction entered in accordance with the jury verdict.
- Total sentence of 3 years' imprisonment, commencing 6 July 2023.
- Non-parole period of 2 years, expiring 5 July 2025.
- Balance of term of 1 year, commencing 6 July 2025 and expiring 5 July 2026.
Key Takeaways
- Under Olbrich v The Queen, a sentencing court is confined to findings supportable to the requisite standard: aggravating matters must be proved beyond reasonable doubt, and mitigating matters on the balance of probabilities. Where the evidence is limited, the court sentences on what is known and does not speculate.
- A courier role in a commercial drug supply, even where no transaction is completed and no drugs enter the community, is sufficiently serious to warrant a custodial sentence, given the general deterrence rationale articulated in R v Shi.
- Maintaining innocence after a jury verdict does not expose an offender to additional punishment, but it does mean the offender cannot receive the sentencing discount available for an early guilty plea.
- Special circumstances justifying an extended parole period can be established where there is evidence of rehabilitative need combined with a genuine capacity to reintegrate into the community, particularly where drug dependency and difficult childhood history are present.
- The District Court confirmed that sentencing exercises must maintain consistency across comparable cases, while also treating each offender and each offence individually, consistent with the High Court's approach in Hili v The Queen; Jones v The Queen.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Bail Act 2013 (NSW), s 22B
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 52
- Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270
- R v Shi [2004] NSWCCA 135