R v Cunningham [2017] NSWDC 106

District Court New South Wales

Medium Neutral Citation: R v Cunningham [2017] NSWDC 106 Hearing dates: 10 March 2016 - 9 August 2016 - 11 November 2016 - 27 January 2017 Date of orders: 27 January 2017 Decision date: 27 January 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Taking into account matters on a Form 1 the offender is sentenced to imprisonment for a period of 12 months. The sentence is to be served by means of an Intensive Corrections Order. Matter on s166 certificate is withdrawn – Drugs are to be destroyed Catchwords: CRIMINAL LAW – Sentence – Sentence after s11 remand – Supply prohibited drug – Possess prohibited drug. Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Liam Cunningham Representation: Counsel: Ms M Moody – The offender

Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2015/178800

Judgment 1. HIS HONOUR: Liam Cunningham first appeared before me some time ago after pleading guilty to supplying a drug with two matters of possession on a form 1. On that first occasion I adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act. It appeared to me at that stage that Mr Cunningham had good prospects of rehabilitating himself. Fortunately, my expectations were met. 2. When Mr Cunningham next appeared before me on 11 November last year he had demonstrated, rather than just promised, that he could become a very different person to the one he was when he was caught being in possession of drugs for the purposes of supplying them. Accordingly, I adjourned the matter to today. I determined that a custodial sentence was required, but suggested that if suitable Mr Cunningham would serve that sentence by means of an intensive corrections order. Consistent with the rehabilitation that Mr Cunningham has achieved, he has been assessed as suitable to serve the sentence by means of an ICO. 3. Ms Moody has made some further submissions today in which she pressed upon me the option of a suspended sentence rather than an ICO. I explained on the last occasion why I did not consider that a suspended sentence was appropriate. I said this, "Although a s 12 bond is in a real sense a punishment, in my view it is insufficient to reflect the objective gravity of what the offender did." 4. In assessing that objective gravity, of course, I need to determine to whom Mr Cunningham was going to supply the drugs. Ms Moody said in her submissions that he was merely going to supply it to a friend. That is what Mr Cunningham said in evidence, but he gave so many different versions various times that, as I said on the earlier occasion, I was unable to determine whether I was being told the truth, and I would sentence the offender on the basis that he had the drugs in his possession for the purposes of supplying them. Beyond that, I can say no more. 5. A further submission made by Ms Moody relates to statistics collected by the Judicial Commission. Those statistics indicate that suspended sentences have, on many occasions, been imposed for offences of this type. Ms Moody even went so far as to suggest, accurately from the statistics, that the suspended sentence seems to be a more popular option than the ICO. The statistics have to be looked at with some caution, not only because they do not address the particular circumstances of the case before me, but also because in this case, for the period over which the statistics were collected, ICOs were not available for the entirety of that period. It is no surprise, therefore, that ICOs might be under-represented in the statistics. 6. In any case, I remain of the view that I expressed on the earlier occasion. Mr Cunningham needs to be punished, significantly so, for what he did, and in my view a suspended sentence is insufficient. I therefore impose the following sentence, taking into account the matters on the form 1. The offender is sentenced to imprisonment for 12 months. I order that that sentence be served by means of an intensive corrections order. 7. I will note that the matter on the s166 certificate and is withdrawn. 8. I will order that the drugs are to be destroyed. Thank you both for your assistance.