Drug Importation Sentence Reduced, as Mitigating Factors Given Insufficient Weight

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By Paul Gregoire and Ugur Nedim

Cassidy Spinks commenced using drugs in his last year at a high school, as his girlfriend was using them.

Eighteen months later, in late 2019, Spinks, who was regularly using MDMA by then, organised the purchase of some drugs online for himself and four friends with the aim of saving money and ensuring quality.

The 18-year-old supermarket employee subsequently collected a package containing 124 grams of MDMA from Tweed Heads Post Office. The drugs had a 75 percent purity level, which resulted in a total of 90 grams of the pure substance that was purchased for $5,200.

NSW police officers apprehended Spinks at the post office on his receiving the package.

The receipt of the drugs incurred a federal drug importation for on sell purposes charge as the package was sent from the UK.

Spinks later told the NSW District Court that in ordering via a dark web illicit substance marketplace, he expected the drugs to come from Australia, yet conceded it was possible for them to arrive from overseas.

Having pleaded guilty in the Local Court, Spinks was later quizzed by the prosecutor during the sentencing hearing, as to whether he or the others were considering selling the drugs on. And he replied that this was not the case, as they were for personal use.

At the time he ordered the package, Spinks was using MDMA two to three times a week.

However, District Court Judge Jeffrey McLennan found this admission to be problematic, as Spinks had already pleaded guilty to the importation charge. 

So, under threat of the case being sent to trial, the defendant went on to say, under further questioning, that he “believed it was possible” the drugs could be sold.

Initial sentencing

On 1 March last year, Spinks was sentenced in relation to one count of importing a marketable quantity of a border controlled drug, contrary to section 307.2 of the Criminal Code (Cth). This crime carries a maximum penalty of 25 years imprisonment and/or a fine of $1.11 million.

Under schedule 2 of the Criminal Code Regulations 2019 (Cth), a marketable quantity of imported pure MDMA is between 0.5 and 500 grams.

Section 307.2(4) of the Criminal Code provides a defence against such a charge, which involves the defendant being able to prove that they “neither intended, nor believed that another person intended, to sell any of the border controlled drug”.

Spinks’ defence team didn’t raise this in relation to his admission that the drugs weren’t for sale. And while the sentencing judge did note the defence could have been triggered, he did so at the same time that he raised sending the case to trial due to the inconsistency of the guilty plea.

Judge McLennan then sentenced Spinks to 3 years in prison. This reflected in a 25 percent discount being applied to the sentence due to the utilitarian value of the early plea of guilt. And this meant that the initial head sentence was 4 years.

In accordance with section 20 of the Crimes Act 1914 (Cth), his Honour set a prospect for early release at 18 months, on the proviso that the offender enter into a recognizance – or a bond – set at $2,000 requiring good behaviour for a set period post-release.

No other conditions were stipulated. However, Judge McLennan failed to inform the court that he was fixing the term of the good behaviour bond at 2 years, which was longer than the 18 remaining months of the sentence.

Indeed, the recognisance period was only specified in the JusticeLink database.

Forgotten youth

Spinks went on to appeal his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 6 December 2021, raising four grounds of appeal.

The first ground was that the sentencing judge failed to consider his youth, his prospects for rehabilitation and his prior good character.

NSWCCA Justice John Basten pointed to the findings of Justice David Hodgson in 2010’s BP versus R, which outlined that, in sentencing youths, rehabilitation should be of primacy and not retribution.

This process should also consider that the immaturity and naivety of youth do not suddenly fail to apply on turning 18 years of age or on engaging in adult conduct.

His Honour noted that the sentencing judge had stated Spinks had not shown youthful naivety in purchasing the MDMA online, although his age did bear some consideration in relation to rehabilitation, but not to the point where he could escape a custodial sentence.

From here, Justice Basten found that while rehabilitation and previous good character had been considered, the judge failed in disregarding the fact that Spinks had started drug use at high school, as well as in dismissing the offender’s immaturity having played a part in committing the crime.

“The proposition that his ‘criminality’ was not reduced by virtue of his age reveals error,” his Honour ruled.

The second ground involved the claim that the sentencing judge had failed in not considering the impact that Spinks’ substance use disorder had on his offending. But this was not made out as this aspect to the circumstances was part of the initial ground.

And the third ground – that too great a weight had been given to general deterrence in sentencing – was neither made out, as the NSWCCA justices considered that a charge of drug importation is so serious that it should warrant prison in order to dissuade others from copying the behaviour.

A resentencing exercise

The fourth ground involved the initial sentence being manifestly excessive. But this didn’t have to be established, as the need for resentencing was already apparent via the upholding of the first ground.

Justice Basten then pointed to two errors in the sentencing judge’s application of the recognisance period. These involved his not having stated the timeframe that it would apply for in open court, and that he’d extended it to expire at a later date than the sentence itself.

His Honour underscored that “significant weight must be given to questions of general deterrence”, which he agreed with the primary judge must warrant prison time.

However, the sentencing judge’s “procedural unfairness” in dealing with the potential defence, as well as his disregarding the low prospect that the drugs would be sold on, and the failure to consider youthfulness and immaturity in leading to Spinks’ substance abuse disorder, all held bearing.

And on 16 December last year, Justice Basten set the new sentence at 3 years, which, following the 25 percent discount, resulted in a prison term of 2 years and 3 months.

The sentence also held the prospect of being released after 15 months on the imposition of a recognizance for the sum of $2,000.

This arrangement would require Spinks to be of good behaviour for a further 15 months, which marks the expiry of the full prison sentence.

NSWCCA Justices Christine Adamson and Robertson Wright agreed with their colleague’s findings, although they further provided their own reasoning to the grounds.

In relation to the first ground, their Honours highlighted that the sentencing judge had failed to adequately consider the offender’s young age, when applying the sentence in its entirety, and not merely in “determining the ratio between the total term and the recognisance period”.

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