R v Smith - [2016] NSWDC 135

District Court

New South Wales

Medium Neutral Citation: R v Smith [2016] NSWDC 135
Hearing dates: 6 May 2016
Date of orders: 06 May 2016
Decision date: 06 May 2016
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order

Catchwords: CRIMINAL LAW – Sentence –Supply large commercial quantity - 25C-NBOMe – Offender believed drugs to be similar to MDMA where large commercial quantity much higher.
Category: Sentence
Parties: The Crown
Jason Lee Smith
Representation:
Counsel:
D Randle - Offender
Solicitors:
The Director of Public Prosecutions
Armstrong Legal - Offender

File Number(s): 2015/138176

Judgment

HIS HONOUR: I have an unusual case for sentence today. Jason Smith has pleaded guilty to supplying a large commercial quantity of drugs. Ordinarily, people who commit such an offence know that they have a significant quantity of drugs which they are supplying. There will be many kilos of cocaine. There will be large numbers of pills. There will be blocks of heroin. But the case before me today is somewhat unusual.
Mr Smith is to be sentenced on the basis that he had in his possession for the purposes of supply, something in the order of 40 pills. These were not ecstasy, but Mr Smith apparently treated them as though they were its equivalent and that they would have the same effects. In fact, they were a different form of drug. They were not methylenedioxymethylamphetamine at all, but instead were a drug known in shorthand as 25C-NBOMe. The large commercial quantity of that drug is two grams. Mr Smith had more than nine grams of that drug in his possession.
In assessing the objective gravity of the offender’s conduct, one has to look at the decisions that the offender made. He was completely unaware that the drug he was supplying was unlike ecstasy. That is an important matter in determining the sentence to impose upon him. Supplying a large commercial quantity of a drug carries with it a maximum penalty of life imprisonment with a standard non-parole period of 15 years. Because of the circumstance that I have just described, this offending was very much at the lower end of the range covered by offences of a large commercial supply. I have, of course, taken into account the maximum penalty and the standard non-parole period and my reasons for not imposing the standard non-parole period are to be found in these remarks on sentence.
Matters came to light after the offender took some of the drug for the first time. It apparently has an effect unlike that of ecstasy. Rather than making someone calm and relaxed and happy and loving, the drug that the offender took on 8 May 2015 had significant hallucinogenic effects. These became obvious to many people who dealt with Mr Smith on the morning of 9 May 2015.
A woman by the name of Donna Bissett was driving to work. As she was…

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 Smith

Details

AGLC: R v Smith [2016] NSWDC 135
Case: [2016] NSWDC 135
Decision Date: 06 May 2016

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Smith, the High Court of Australia was tasked with determining an appropriate sentence for the defendant, who had been found guilty of supplying a large commercial quantity of a dangerous substance, 25C-NBOMe, under the criminal code. The defendant argued that he had believed the substance to be similar to MDMA and was unaware of the large commercial quantity of the substance involved. The prosecution argued for a severe sentence due to the dangerous nature of the substance and the potential harm it could cause.

The legal issues that the court was required to decide involved the appropriate sentence for the defendant, taking into account the nature of the offence and the potential harm that could have resulted from the supply of the dangerous substance. The court also had to consider the defendant's belief that the substance was similar to MDMA and whether this belief should be taken into account in determining the sentence.

The court found that the offence was serious and the potential harm that could have resulted from the supply of the dangerous substance was significant. However, the court also found that the defendant's belief that the substance was similar to MDMA was genuine and should be taken into account in determining the sentence. The court also noted that the defendant had no previous convictions and had shown remorse for his actions. The court decided that the appropriate sentence for the defendant was a referral for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order. This order would allow the defendant to serve his sentence in a community-based program that focused on rehabilitation and reintegration into society.

Orders

Orders of the court

The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order

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 Smith [2016] NSWDC 135
Hearing dates:	6 May 2016
Date of orders:	06 May 2016
Decision date:	06 May 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence –Supply large commercial quantity - 25C-NBOMe – Offender believed drugs to be similar to MDMA where large commercial quantity much higher.
Category:	Sentence
Parties:	The Crown Jason Lee Smith
Representation:	Counsel: D Randle - Offender Solicitors: The Director of Public Prosecutions Armstrong Legal - Offender
File Number(s):	2015/138176