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Spinks v DPP (Cth) [2021] NSWCCA 308

The offender was sentenced following a plea of guilty to 1 count of importing a marketable quantity of a border controlled drug contrary to s 307.2 of the Commonwealth Criminal Code. Original sentence imposed 3 years imprisonment with an 18 month non-parole period. The offence related to 90.74g of pure MDMA. The offender appealed on the basis that the sentencing judge failed to take into account the offender’s youth, rehabilitation, prior good character and substance abuse disorder, that the sentencing judge concluded that general deterrence be given great weight, and that the sentence was manifestly excessive.  

Age: Offender was aged 18 at time of offending. There is no doubt that the sentencing judge gave genuine and proper consideration to a number of aspects of the personal circumstances of the offender. The sentencing judge noted that the offender was bullied at school and developed a level of social anxiety which led to drug use. The offender was otherwise of good character and has no prior criminal convictions. It is correct to say that an addiction to unlawful drugs is no justification for further offending. The fact that the element of choice and use of cocaine and MDMA commenced whilst they were still in high school is consistent with a choice made at a time of immaturity and impulsivity. The leniency which is to be accorded to a youthful offender with no prior convictions must extend to the sentence imposed as well as the minimum custodial term. The sentencing judge erred in failing to apply accepted principle in that way.  

Mental Condition: Psychologist found that offender had substance abuse disorder. There was a tension between that finding and the finding of the sentencing judge that the offender was completely able to give up drugs when it suited him to do so. The issue as to substance abuse disorder should have been given weight in considering the issues in relation to youth and immaturity but was not a mitigating factor in its own right.  

Leave to appeal granted. Original sentence set aside. Offender re-sentenced to 2 years 3 months imprisonment with a 15 month non-parole period.
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