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District Court 26 April 2024

R v Barber

[2024] NSWDC 696

Drugs
1,4

Citation: R v Barber [2024] NSWDC 696
Court: District Court of New South Wales
Date: 26 April 2024
Judge: Baker SC DCJ

Background

The offender appeared for sentencing on eight drug-related offences following a combination of guilty pleas and a conviction after a judge-alone trial. The principal conviction, entered after trial, was for supplying not less than a commercial quantity (1,105.2 grams) of 1,4-butanediol (BD), an industrial solvent that, when metabolised, is said to produce effects similar to MDMA. The commercial quantity threshold for BD under the Drug Misuse and Trafficking Act 1985 (NSW) is 1,000 grams.

Police arrested the offender in December 2022 after stopping his vehicle. A search of the car uncovered methamphetamine concealed in the engine bay and a quantity of BD in a hidden boot compartment. A subsequent search of his home revealed further BD in bottles inside a safe, two prohibited knives, multiple other prohibited drugs, and $500 in cash. The offender's DNA was found on bottle lids, and a handwritten ledger consistent with drug supply was recovered from his bedroom.

A ninth charge, dealing with property suspected of being proceeds of crime (the $500 in cash), was not the subject of a guilty plea. The court was required to determine that charge on the evidence from the trial.

  • Whether the prosecution established beyond reasonable doubt that the $500 in cash found in the safe constituted proceeds of crime under section 193C(2) of the Crimes Act 1900 (NSW)
  • What objective seriousness attached to each offence, particularly the principal charge of supplying a commercial quantity of BD
  • How the offender's status as a heavy and experienced drug user affected the factual findings on supply versus personal use
  • What discount applied for guilty pleas entered on arraignment, and on what charges
  • How sentences across the nine offences should be structured, with appropriate concurrency and totality

Decision

Baker SC DCJ found the offender guilty of the proceeds of crime charge, being satisfied that reasonable grounds existed to suspect the $500 was tainted property derived from drug supply activity. The court ordered the cash forfeited to the State.

On the principal charge, the court accepted that the offender was a heavy and experienced drug user and that some portion of the BD was for personal use. However, it had rejected at trial the claim that all of the BD was for personal use, relying on the handwritten ledger, the messaging evidence, and the overall quantity involved. The sentencing court treated the commercial supply of BD as the most serious offence, noting the maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years.

The court applied a 10% discount for guilty pleas entered on arraignment to all charges except the two matters determined at or after trial. The judge noted the offender's remorse but assessed his prospects of rehabilitation as poor, with a very real likelihood of reoffending, given his longstanding and extensive drug use.

Given the connected circumstances of all offences, the court applied a considerable degree of concurrency across the individual sentences while still reflecting the separate aspects of criminality in each.

Orders Made

  • The offender was convicted of all nine offences.
  • An aggregate sentence of 5 years and 7 months' imprisonment was imposed, with a non-parole period of 3 years and 7 months.
  • The sentence commenced on 14 December 2022 (the date of arrest).
  • The offender became eligible for parole on 13 July 2026, with the balance of sentence expiring on 13 July 2028.
  • The $500 in cash was forfeited to the State pursuant to a forfeiture order made on application by the Director of Public Prosecutions.

Individual indicative sentences (before aggregation and plea discounts) included:
- Trial Count 1 (BD, commercial quantity): 4 years 6 months with a 2-year 6-month non-parole period
- Sentence Count 1 (methamphetamine, indictable quantity): 2 years 3 months
- Sentence Counts 2 and 3 (prohibited weapons): 18 months with a 10-month non-parole period
- Sequence 5 (buprenorphine): 3 months
- Sequence 6 (cannabis): 2 months
- Sequence 7 (LSD): 3 months
- Sequence 8 (methoxyflurane): 1 month
- Sequence 9 (proceeds of crime): 2 months

Key Takeaways

  • The District Court confirmed that BD (1,4-butanediol) is a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW), with a commercial quantity threshold of 1,000 grams, attracting a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years.
  • A defendant's status as a heavy personal user of a drug does not, of itself, establish that all drug quantities found in their possession were for personal use; other evidence, including written ledgers and electronic messages, may support a finding of supply.
  • Where a defendant pleads guilty on arraignment, a discount applies to those charges only; no discount is available for offences determined after a contested trial or by the court without a guilty plea.
  • Under section 193C(2) of the Crimes Act 1900 (NSW), the prosecution need only establish reasonable grounds to suspect that property is proceeds of crime; proof of the underlying offence generating those proceeds is not required.
  • Acknowledged remorse does not automatically improve an offender's sentencing position where the court separately assesses prospects of rehabilitation as poor and the likelihood of reoffending as very real.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Poison and Therapeutic Goods Act 1966 (NSW), s 16
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- R v Ferguson [2021] NSWDC 226
- Veen v R (No 2) (1988) 164 CLR 465
- Yacoub v R [2021] NSWCCA 166