R v Stewart [2023] NSWDC 469

District Court New South Wales

Medium Neutral Citation: R v Stewart [2023] NSWDC 469 Hearing dates: 17 October 2023 Date of orders: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [84 – 87] Catchwords: CRIME — Drug offences — Possess prohibited drug CRIME — Drug offences — Supply prohibited drug Legislation Cited: Drug Misuse & Trafficking Act 1985 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Redfern v R [2012] NSWCCA 178 R v Millwood [2012] NSWCCA 2 Mandranis v R [2021] NSWCCA 97 R v Doan [2000] NSWCCA 317 R v Alferlink [2021] NSWDC 473 Hall v The Queen [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Cahyadi v R [2007] NSWCCA 1 Stanley v DPP [2023] HCA 3 R v Pullen [2018] NSWCCA 264 Texts Cited: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. Category: Principal judgment Parties: Rex (The Crown) Jason Stewart (The Offender) Representation: Gilson for the Director of the Office of Public Prosecutions Ramsland solicitor for the Offender File Number(s): 2022/00108645 Publication restriction: N/A

JUDGMENT 1. Jason Michael Stewart appears for sentence in respect of four offences. In respect of three of those offences there are a total of a further five offences to take into account in accordance with the Form 1 procedure. 2. The charges, their maximum penalty and the relevant Form 1 matter/s are as follows: 1. The offence under section 25(1) of the Drug Misuse & Trafficking Act (DMTA) of supplying a prohibited drug of more than an indictable quantity but less than a commercial quantity on 10 December 2021, being 9.087 kg of cannabis. The maximum sentence for this offence is 10 years imprisonment. The Form 1 matters for this offence are two further section 25(1) matters of supplying a prohibited drug, in one case of more than the indictable but less than a commercial quantity and in the other, of more than a small but less than an indictable quantity, both on 14 April 2022 and being the drug cannabis; in these reasons this offence will be referred to as Count 1. 2. The offence under section 193B(3) of the Crimes Act of dealing with proceeds of crime being reckless as to whether it is proceeds of crime and being in this case $12,300. The maximum sentence is 10 years imprisonment. In respect of this offence there is to be taken into account in accordance with the Form 1 procedure two further offences under that same section both occurring on 14 April 2022 and in one case being more than $5000 and in the other less than or equal to $5000. In these reasons this offence will be referred to as Count 2. 3. The offence under section 25(1) DMTA of supplying a prohibited drug of more than an indictable quantity but less than a commercial quantity being 190.7 g of methylamphetamine on 14 April 2022. The maximum penalty is 15 years imprisonment. In respect of this matter there is one offence to be taken into account on the Form 1 procedure being a further count under section 25(1) on that same day, with the drug being methylamphetamine. In these reasons this offence will be referred to as Count 3. 4. The offence of supplying less than a commercial quantity of a prohibited drug under section 25(1) and being 108.25 g of methamphetamine which is a rolled up amount constituted by 21 separate supplies between the dates of 8 November 2021 and 11 April 2022 inclusive. The maximum penalty for this offence is 15 years imprisonment. There is no form one matter to take into account with this offence. In these reasons this offence will be referred to as Count 4. 1. There is no standard non-parole period for any of the above offences. 2. I take the maximum sentence into account as a legislative guidepost indicating the legislature's view of the seriousness of the offending to assist in arriving at the appropriate sentence. 3. In regard to the Form 1 procedure it is important that the focus remains on the principal offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. 4. This matter was earlier before the court on 23 March 2023. On that occasion the court granted the offender bail under section 11 of the Crimes (Sentencing Procedure) Act (CSPA) on terms that saw him bailed into a rehabilitation facility known as Connect Global. That occurred on 29 March 2023 so that he then was attending Connect Global rehabilitation facility for the period from then until 14 October 2023. It is not contested that the offender has meaningfully participated in that rehabilitation process. A question that arises in determining the sentence is the impact that has on the ultimate outcome. The offender argues for the imposition of an Intensive Correction Order (ICO). The Crown's initial position in March was that section 68 CSPA would prohibit the imposition of an ICO, though that position was not maintained at this hearing. In that regard in the argument on the earlier occasion concerning the section 11 application the court indicated that a full-time custodial sentence would most likely be the outcome but even if that was so there was merit in the adjournment for it may have an impact on matters such as special circumstances and therefore on the non-parole period. At the same time the court was clearly then not in a position to finally determine the matter or indicate the ultimate outcome and it is not suggested that it did so.