District Court New South Wales Medium Neutral Citation: R v White [2017] NSWDC 159 Hearing dates: 26 May 2017 Date of orders: 26 May 2017 Decision date: 26 May 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drug – Drug detection dog Category: Sentence Parties: The Crown Sean White Representation: Solicitors: Director of Public Prosecutions – Crown Legal Aid Commission - Offender File Number(s): 2015/289196 SENTENCE 1. HIS HONOUR: On 3 October 2015 there was a music festival being held at Centennial Park Sydney. Police, amongst almost everyone else in the community, know that music festivals are places where drugs are often consumed. Accordingly police target such festivals. Sometimes they are criticised for doing so but I do not share in any way such criticisms. The reason I do not criticise police for the activities I am about to describe is because of the harm that drug use and drug supply cause to community. I have spoken about this many times and I am not going to repeat what I have said. 2. As is common the wrongdoing was detected through the use of a drug detection dog, this time the drug detection dog "Buster". Buster indicated a scent of drugs in the offender's groin area. The offender was approached by police who asked him whether he had anything on him. He replied falsely, "I don't have anything, you can search me if you want". When they specifically asked about his underwear the offender said, "No". Eventually after police addressed him once more he told police that he had some pills. He was taken to a search tent. On the way he told a police officer that he had "quite a few" pills in his underwear. This turned out to be accurate. He had 49 capsules of MDMA. The weight of the drug in those capsules was 3 grams. 3. The capsules were packaged in five small resealable bags. They smelt strongly of cologne. They were wrapped in small alcohol wipes before being individually wrapped in black tape. They were then placed inside a condom which itself was placed inside a clear resealable bag that was located on the accused. Someone had gone to a great deal of effort to avoid a scent being detected by a drug detection dog. But of course this effort was to no avail. 4. The offender has told others, in particular a psychologist and an officer from Community Corrections, that he received that package of pills only shortly before he entered the music festival on the basis that he would take them into the festival for someone else and receive a portion of them as payment for his activities. The offender did not give evidence to that effect. I have only hearsay evidence as to what he was in fact doing with those 49 pills. It may be that he is telling the truth. It may be that he took those 49 pills into the music festival intending to sell them himself. I simply do not know. Certainly I am unable to be satisfied on the balance of probabilities that his possession of the pills came about as he has told others. I do not know whether he was a mere carrier for others or whether he was engaged in a more serious operation involving him personally selling those drugs. 5. The offender has had troubles in his upbringing. His parents have had troubles in their relationship which have clearly impacted on the offender. As is regrettably often the case when parents argue children sometimes blame themselves and the offender did precisely that. What I have described is not terribly unusual but what I will next speak about is. The offender's father has attempted suicide on occasions. The offender is aware of that and indeed has been closely nearby when such attempts were made. The impact of Mr White's upbringing are no doubt significant matters in how he presents today as a somewhat anxious and depressed person. 6. He has no previous criminal history. He pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. 7. He began using drugs in Year 10, commencing as is often the case with cannabis but progressing to drugs such as ecstasy and cocaine. He claims that he is no longer using ecstasy and cocaine but does say that he is continue to use cannabis from time to time. Of course it is easy to say to another person, "I am not using ecstasy and cocaine anymore", but it is a different matter to be able to demonstrate that. However the sentence I have in mind will allow independent testing of Mr White's claim before sentence is ultimately imposed. 8. Of course one of the most important features concerning the sentencing exercise concerns Mr White's youth. He is 20 years of age now and was only 18 at the time he committed this offence. Although the law regards him for the purposes of sentencing as an adult, the law also requires me to recognise, as I clearly do, that there is no bright line whereby a person reaches adult maturity on their 18th birthday. The offender's youth is a significant matter in me determining that a sentence of other than fulltime imprisonment will be imposed. 9. Certainly this is not a case where the offender was trafficking to a substantial degree and so he does not need to demonstrate exceptional circumstances, before a sentence of other than fulltime custody can be imposed. 10. I have determined that a sentence of imprisonment is required. Indeed that much was effectively conceded by Ms Johnson who appears for the offender today. She suggested that a suspended sentence of imprisonment would be appropriate. I do not agree. In my view the offender needs to have brought home to him in a very concrete way the seriousness of drug supply activities. A suspended sentence would not reflect the necessary component of personal deterrence which needs to be built into any sentence imposed on this offender. 11. Having determined that a custodial sentence is required I have decided that the length of that sentence is likely to be two years or shorter. I have decided that if appropriate the offender should serve his sentence by means of an Intensive Corrections Order. I therefore adjourn this matter until Thursday 6 July and refer him for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order I will consider the results of that assessment on the adjourned date. 12. Now can I just emphasise this please Ms Johnson. That is one day short of six weeks. But if I don't do it that day it will be months before I can do it again. So you should encourage your client to do everything required of him quickly because otherwise it is going to be a long, long time before I can sentence him. 13. HIS HONOUR: Mr White I'm not sure whether you've understood what I have said but if you are suitable to serve your sentence by means of what we call an Intensive Corrections Order you don't go to gaol, that's the most important thing you need to do. But what you do need to know is that in assessing you for suitability they're going to test you for drug use including cannabis use and if you are found to have used cannabis after today it's quite possible that you won't be assessed as suitable to serve a sentence by means of an Intensive Corrections Order and it's possible you'll end up going to gaol anyway. You understand the importance of what's ahead of you. 14. OFFENDER: I understand. ********** Amendments 30 June 2017 - Cover sheet spelling correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2017