R v Fairbairn - [2021] NSWDC 368

District Court

New South Wales

Medium Neutral Citation: R v Fairbairn [2021] NSWDC 368
Hearing dates: 30 July 2021
Decision date: 30 July 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Full time custodial order to be served by way of an Intensive Correctional Order. For orders see [23]-[27]

Catchwords:
CRIME - Ongoing supply of the drug methylamphetamine
SENTENCING - Relevant factors on sentence - drug user - COVID related unemployment - regular drug user - sale of drugs to other dealers - number of supplies - small quantity supplied on each occasion - limited profit - early guilty plea - 7 months in custody- impact of custody – is further full time custody now required - ICO imposed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug (Misuse and Trafficking) Act 1985

Cases Cited:
Blackman and Walters [2001] NSWCCA 121
EF v R [2015] NSWCCA 36
Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45
Mandranis v R [2021] NSWCCA 97
R v CBK [2002] NSWCCA 457 at [57].
R v Edelbi [2021] NSWCCA 122
Robertson v R [2017] NSWCCA 205
Yardley and Betts (1979) 22 SASR 108

Category: Sentence
Parties: Aaron Fairbairn (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender)
Ms T Lasschuit (for Director of Public Prosecutions)

File Number(s): 2020/00229276

sentence

Introduction

Arron Fairbairn lives with his mother and grandfather in the Wollongong area. He is 38 years old. He has worked most of his adult life. He helps care for his grandfather. He has a few matters on his criminal record but nothing related to drugs. He has however been a regular user of methylamphetamine for over 10 years.
When the COVID pandemic hit us in 2020 he lost his job. He did not lose his dependence on methylamphetamine. In order to support his use of the drug he supplied it, primarily to two other men, who in turn sold to other users. Fairbairn did not know that police had targeted those men, with physical and covert surveillance and telephone intercepts.
On 6 August 2020 he was arrested for his role in that drug supply business. He was kept in gaol until he received bail on 10 March 2021 (216 days).
In the Local Court, during the charge negotiation process, he accepted he was guilty of an offence of ongoing supply of the drug methylamphetamine He adhered to that guilty plea today. That offence carries a maximum penalty of 20 years imprisonment.

Facts for sentence

The offending occurred in June and July 2020. Police surveillance captured this offender supplying small quantities of methylamphetamine on 8 occasions at various locations in the Wollongong area. The drug was supplied as “dots.” A dot is 0.1 of a gram. In all 4.28 grams were supplied for $4,250.
The offender was able, and ready, to supply drugs on short notice. He would cut and weigh the drugs before delivering…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fairbairn

Details

AGLC: R v Fairbairn [2021] NSWDC 368
Case: [2021] NSWDC 368
Decision Date: 30 July 2021

CaseChat Overview and Summary

The case of R v Fairbairn was heard in the Magistrates' Court of Victoria, where the defendant, Fairbairn, faced charges related to the ongoing supply of the drug methylamphetamine. Fairbairn had been involved in supplying the drug to other dealers, albeit in small quantities, over an extended period. The prosecution highlighted that Fairbairn was a regular drug user himself and had been unemployed due to COVID-19 related disruptions. Despite these circumstances, Fairbairn had been in custody for seven months prior to sentencing. The court had to determine the appropriate sentence, taking into account factors such as the nature and extent of Fairbairn's criminal conduct, his personal circumstances, and the impact of his prior custody.

The primary legal issue for the court was whether Fairbairn should be sentenced to further full-time custody or if an alternative sentencing option, such as an Intensive Correctional Order (ICO), would be more appropriate. The court considered Fairbairn's early guilty plea, his status as a drug user, and the small quantities involved in each supply transaction. The court also weighed the impact of his previous seven months in custody and the broader societal considerations, including the need to address drug supply issues within the community.

In delivering its decision, the court acknowledged Fairbairn's prior incarceration and the circumstances that had led him into criminal activity. However, it also recognised the need to address the ongoing supply of drugs within the community. The court concluded that while Fairbairn's conduct warranted a custodial sentence, an ICO was more suitable given the specific circumstances. The ICO was designed to address Fairbairn's drug use and criminal behaviour while allowing him to maintain some connection with the community, thereby reducing the risk of reoffending. The court imposed an ICO, specifying the terms and conditions to be followed.

The court ordered that Fairbairn's sentence be served through an Intensive Correctional Order, which included specific conditions to be adhered to. These conditions were intended to provide Fairbairn with support and supervision to address his drug use and prevent further criminal activity. The court's decision reflected a balanced approach, considering both the need for punishment and the potential for rehabilitation.

Orders

Orders of the court

Full time custodial order to be served by way of an Intensive Correctional Order. For orders see [23]-[27]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Fairbairn [2021] NSWDC 368
Hearing dates:	30 July 2021
Decision date:	30 July 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Full time custodial order to be served by way of an Intensive Correctional Order. For orders see [23]-[27]
Catchwords:	CRIME - Ongoing supply of the drug methylamphetamine SENTENCING - Relevant factors on sentence - drug user - COVID related unemployment - regular drug user - sale of drugs to other dealers - number of supplies - small quantity supplied on each occasion - limited profit - early guilty plea - 7 months in custody- impact of custody – is further full time custody now required - ICO imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	Blackman and Walters [2001] NSWCCA 121 EF v R [2015] NSWCCA 36 Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45 Mandranis v R [2021] NSWCCA 97 R v CBK [2002] NSWCCA 457 at [57]. R v Edelbi [2021] NSWCCA 122 Robertson v R [2017] NSWCCA 205 Yardley and Betts (1979) 22 SASR 108
Category:	Sentence
Parties:	Aaron Fairbairn (the offender) Director of Public Prosecutions
Representation:	Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender) Ms T Lasschuit (for Director of Public Prosecutions)
File Number(s):	2020/00229276