R v Davis

[2016] NSWDC 382

District Court

New South Wales

Medium Neutral Citation:	R v Davis [2016] NSWDC 382
Hearing dates:	17-18 October 2016
Date of orders:	18 October 2016
Decision date:	18 October 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Bond s9 for 3 years and $2,000 fine
Catchwords:	CRIME – SENTENCE – Deemed Supply of 2.5 grams of 3,4-MDMA (Ecstasy)- Jury rejected defence that drugs were for own personal use   25 year old of prior good character – Drug use at dance parties only – Holder of a responsible job working 12 hours pd up to 6 days pw
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Mark Andrew Davis
Representation:	Counsel: Ms Y Prowse (Crown) Mr P Williams (Offender)   Solicitors: Solicitors for the Director of Public Prosecutions (NSW) (Crown) Unrecorded (Offender)
File Number(s):	2015/210657
Publication restriction:	No

Judgment

1. HIS HONOUR: Mark Andrew Davis stands for sentence as a consequence of having been found this morning guilty by a jury of a charge that on 28 July 2015 at Sydney Olympic Park in this State he supplied a prohibited drug, namely 2.5 grams of 3,4-methylenedioxymethylamphetamine. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for up to 15 year and or a fine of 2,000 penalty units which is a maximum fine of $220,000.

2. The only issue needed to be determined by the jury was whether the 16 capsules of ecstasy, which the offender wished to take into a dance party, or “rave”, at the Sydney Showground at Sydney Olympic Park, were for his personal use or otherwise. As the law required, the onus of proof was on the offender to establish on the balance of probabilities that the 16 capsules of ecstasy were for his own use, that is, they were not for the purpose of supplying to some other person. The jury clearly did not accept that the offender had discharged the onus of proof that lay upon him, the onus of proof on the balance of probabilities. I therefore have to approach this sentencing exercise on the basis that the offender intended to take the 16 capsules of ecstasy into the dance party with the intention of supplying some of them, at least, to another or others.

3. The offender gave evidence that the effect of an ecstasy capsule, in his experience, could last for a half hour but up to three hours. The purity of the ecstasy, according to the chemical assay made by an analyst was 77% which is a relatively high purity for a drug of this nature. Accordingly, one could infer the effect of a capsule could last for a number of hours. How many the offender would have used himself is a matter for some speculation. However, I accept that there were some available for him to supply should he have wished to do so. However, the supply was at the bottom of the range for cases of supply and clearly the amount, although twice the trafficable amount, was well below the commercial quantity of 125 grams.

4. The offender comes before the Court as a young man of prior good character. He has had a conventional upbringing, did well at school, attended the University of Newcastle for a number of years studying engineering, but then left university to obtain a job in computer programming, or computer analysis, or just generally IT, and has been so engaged for a number of years now. He has been with his current employer for about two years and is categorised as a midway team leader. His job is relatively well remunerated.

5. Unfortunately for the offender he made the decision at the age of 20 to take ecstasy when at dance parties and appears to have persisted in that activity since that time. On 18 July 2015 the police sniffer dogs detected the drug on his person secreted in his underwear.

6. Surprisingly, no statistics available from the Judicial Commission indicate a sentence being passed for less than the commercial quantity of ecstasy for a person who pleaded not guilty. All the statistics related to those who pleaded guilty. The median sentence is a suspended sentence and the median suspended sentence is for 18 months, that is for persons with no prior convictions aged between 21 and 25 years. The offender is currently 25 years old. At the bottom of the 80% range for those with no prior convictions and aged between 21 and 25 years, the penalty is a s 9 bond and the median duration of the s 9 bond is 15 months. Looking at all offenders who have supplied ecstasy but less than the commercial quantity the median sentence is a suspended sentence for 18 months. At the top of the range 15% of offenders have been sentenced to imprisonment and when a prison sentence has been imposed the median prison sentence is 24 months with a 12 month non-parole period. As far as s 9 bonds are concerned the median duration for a s 9 bond is 18 months and at the very top of the range the statistics provide one bond with a duration of 36 months.

7. Had the offender pleaded guilty I might have entertained an argument about the applicability of a s 10. However, considering the fact that the offender pleaded not guilty and has been found guilty by a jury it would be completely inappropriate to make an order under s 10.

8. I have come to the view that in this case the offender should both be placed on a bond under s 9 to be of good behaviour for a lengthy period and be fined. The Crown did not seek a fulltime custodial sentence. The Crown asked me to impose a lengthy s 9 bond. In the alternative, the Crown submitted that this was an appropriate case to impose a community service order. I would have been minded to do that if I had the appropriate report, but, even if I had, in this case the fact remains that the offender works 12 hours per day for up to six days per week, so that performing community service on one day of a week would be a particularly onerous obligation and might mean that a young man who does not move in a criminal milieu would be exposed to real criminals as distinct to recreational drug users.

9. Mark Andrew Davis, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 I order that you enter into a bond to be of good behaviour for a period of three years from today. Conditions applying during the term of the bond are as follows: (1) you are to appear before the Court if called upon to do so at any time; (2) you are to be of good behaviour; (3) you are to reside at [withheld] New South Wales or, (4) you are to advise the Registrar of this Court by prepaid registered post of any change of residential address during the term of the bond. I impose a fine of $2,000. I allow you one month to pay the fine.

10. What that means Mr Davis, is that I will be breathing down your neck for the next three years. If you make any mistake or you commit any criminal offence, you will have to come back and say hello to me and I might be less forgiving, do you understand ?

OFFENDER: Yes sir.

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Decision last updated: 24 February 2017