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District Court 23 November 2012

R v Craig DUNN

[2012] NSWDC 297

Drugs
CRIMINAL LAW SENTENCE SENTENCING ORDERS RELEVANT CONSIDERATIONS

Citation: R v Craig Dunn [2012] NSWDC 297
Court: District Court of New South Wales
Date: 23 November 2012
Judge: Cogswell SC DCJ

Background

The offender was arrested in May 2011 following the discovery of an amateur drug laboratory in a backyard shed at Emu Plains. Police found almost half a kilogram of pseudoephedrine, a precursor used in the manufacture of amphetamine. Fingerprint evidence connected the offender to a blender box, a plastic container holding pseudoephedrine, and a bag of tablets found at the scene.

The offender was originally charged with the serious offence of knowingly taking part in the manufacture of pseudoephedrine. He was refused bail and remained in custody for six months and five days before being released on 2 December 2011. The more serious charge was formally discontinued on 20 November 2012, just days before sentencing.

The Director of Public Prosecutions accepted a plea of guilty to the lesser, alternative offence of concealing a serious indictable offence under s 316(1) of the Crimes Act 1900. That provision applies where a person, believing another has committed a serious offence and that they hold information capable of assisting a prosecution, fails without reasonable excuse to bring that information to police attention. The offender entered the guilty plea at the earliest available opportunity once this charge became an option.

  • What sentencing order was appropriate for an offence of concealing a serious indictable offence under s 316(1) of the Crimes Act 1900, where the offender had already served over six months in pre-sentence custody on a more serious charge that was ultimately discontinued?
  • Whether a conviction with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 was the appropriate disposition, given the time already spent in custody and the statistics for comparable offences.

Decision

Cogswell SC DCJ considered that the most straightforward approach would have been to impose a sentence of six months and five days imprisonment and note it as already served. However, his Honour rejected this course on the basis that it would be disproportionately severe relative to sentencing statistics for this type of offence. Data from the Judicial Commission of New South Wales, drawn from a sample of 42 offenders, indicated that only around two per cent of those sentenced for offences of this kind received a custodial sentence.

His Honour also expressed concern about the practical consequences for the offender's future. A recorded custodial sentence would be visible to any court sentencing him for future offences, and his Honour did not consider that outcome fair in the circumstances.

Two considerations drove the decision to impose a conviction with no further penalty under s 10A. First, the offender had pleaded guilty at the earliest opportunity once the alternative charge was available. Second, he had effectively already served a period of imprisonment referable to his involvement in the conduct underlying the offence. His Honour concluded it was undesirable for that period in custody to appear on the offender's record as a formal prison sentence. The serious nature of the original charge was acknowledged as the likely reason bail had been refused.

Orders Made

  • The offender was convicted of the offence under s 316(1) of the Crimes Act 1900.
  • Proceedings were disposed of without the imposition of any further penalty, pursuant to s 10A(1) of the Crimes (Sentencing Procedure) Act 1999.
  • The original charge of knowingly taking part in the manufacture of pseudoephedrine was formally marked as receiving no further proceedings on 20 November 2012.

Key Takeaways

  • The District Court applied s 10A of the Crimes (Sentencing Procedure) Act 1999 to record a conviction while imposing no further penalty, where the offender had already spent over six months in pre-sentence custody on a related but more serious charge that was ultimately discontinued.
  • A section 10A order may be appropriate where an offender has effectively served a custodial period, and formalising that period as a recorded prison sentence would be disproportionate to the actual offence of conviction.
  • Judicial Commission sentencing statistics formed part of the court's reasoning: with only approximately two per cent of comparable offenders receiving custodial sentences, a formal prison term was considered too severe on the facts.
  • An early guilty plea, entered at the first available opportunity to the alternative charge, was treated as a significant mitigating factor supporting the s 10A disposition.
  • The court distinguished between the conduct that led to extended pre-sentence detention (connected to the serious discontinued charge) and the relatively modest gravity of the offence ultimately proceeded with, treating that distinction as relevant to the fairness of the final sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 316(1) (concealing a serious indictable offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A (conviction without further penalty)

Cases cited: None identified in the judgment.