Citation: R v Paul Edward Dumas [2016] NSWDC 165
Court: District Court of NSW
Date: 12 August 2016
Judge: Mahony SC DCJ
Background
The offender pleaded guilty at the earliest opportunity to one count of supplying a prohibited drug in an amount exceeding the indictable quantity, specifically 8.55 grams of heroin supplied in 285 capsules across three occasions between June and July 2015. He supplied to two co-offenders who then sold the drug at street level in Taree. Three drug possession charges were also before the court on a Form 1 (meaning they were taken into account when fixing the sentence without resulting in separate convictions).
The offender had an extensive criminal record dating back to 1996, including convictions for robbery, aggravated break and enter, and wounding with intent to cause grievous bodily harm. At the time of sentence he was 34 years old, with four children, and had been engaged in an opiate substitution program since 2013.
The supply was motivated not by profit but by the offender's need to fund his methylamphetamine addiction, which had taken hold rapidly after he had maintained two years of employment and abstinence from illicit drugs following his last release on parole.
Legal Issues
- What was the appropriate head sentence and non-parole period for a supply offence below the mid-range of objective seriousness, given the offender's extensive criminal history and personal circumstances?
- Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify varying the standard ratio between the non-parole period and head sentence.
- Whether parity principles required the sentence to align with those imposed on the co-offenders, Mr Plane and Ms Bowman.
- What weight should be given to the offender's mental health diagnoses, cognitive impairment, and addiction history in assessing moral culpability and the need for specific deterrence?
Decision
Objective seriousness and role in the supply chain
Mahony SC DCJ found that the offender occupied a position one level above a street dealer and could be characterised as a user-dealer rather than a profit-driven trafficker (at [37]). The supply was funded entirely by the need to finance a methylamphetamine habit, not commercial gain. Taking into account the quantity of 8.55 grams against a commercial quantity threshold of 250 grams under the Drug Misuse and Trafficking Act 1986, his Honour assessed the objective seriousness as below the mid-range for a s 25(1) offence, while acknowledging that it still constituted drug trafficking to a substantial degree (at [37]).
Moral culpability, mental health, and specific deterrence
The court accepted the psychiatric evidence from Dr Bench, who diagnosed Poly-substance Dependence, Anti-social Personality Disorder, Social Phobia, and likely borderline intellectual functioning, and the neuropsychological findings from Dr Baird of significant cognitive dysfunction (at [15], [17]). These diagnoses reduced the offender's moral culpability and, in turn, somewhat diminished the weight to be given to specific deterrence, though the court did not eliminate it from consideration (at [39]). General deterrence remained an important sentencing factor for drug supply offences.
Parity with co-offenders
The court rejected the submission that the co-offender Plane's offending was more significant than the offender's. The offender supplied heroin in larger quantities and sat higher in the supply chain, facilitating Plane's street-level distribution (at [41]). Plane's criminal history was also far less serious, comprising mainly traffic offences and one prior supply matter. Given those differences, parity principles had little work to do in relation to Plane's sentence and no relevance at all regarding Ms Bowman, who had no prior record (at [42]).
Special circumstances and sentence imposed
The court declined to follow the Crown's submission that special circumstances were not established. His Honour found that the offender's demonstrated capacity for rehabilitation during his 2013 parole period, his subsequent relapse into methylamphetamine use (a drug he had not previously used), and the recommendations of both experts for residential in-patient rehabilitation collectively justified a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (at [44]). A 25 percent utilitarian discount applied for the early guilty plea (at [38]). The court imposed a total sentence of 2 years and 6 months imprisonment with a non-parole period of 15 months, backdated to reflect the 1 month and 27 days already spent in custody (at [45]).
Orders Made
- Convicted of supply of a prohibited drug being an indictable quantity of heroin under s 25(1) of the Drug Misuse and Trafficking Act 1986.
- Non-parole period of 15 months imprisonment, commencing 15 June 2016 and expiring 14 September 2017.
- Balance of sentence of 15 months imprisonment, commencing 15 September 2017 and expiring 14 December 2018.
- Parole eligibility date: 14 September 2017.
- Drugs the subject of the offence and Form 1 offences ordered to be destroyed.
- Pecuniary penalty of $14,250.00 payable to the State of NSW pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989.
Key Takeaways
- A supply offender whose trafficking is driven by addiction rather than commercial profit may be characterised as a user-dealer, a finding that bears on objective seriousness and the weight given to specific deterrence (at [37], [39]).
- Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established where expert evidence strongly supported the need for residential in-patient rehabilitation and relapse prevention programs, even where prior rehabilitation efforts had not permanently succeeded (at [44]).
- Parity principles have limited application where co-offenders occupy different positions in the supply chain, face materially different charges, and carry substantially different criminal histories (at [41]-[42]).
- Psychiatric diagnoses reducing moral culpability, including borderline intellectual functioning and poly-substance dependence, can diminish (though not extinguish) the weight assigned to specific deterrence in drug supply sentencing (at [39]).
- An early guilty plea attracted the maximum utilitarian discount of 25 percent, consistent with the sentencing court's recognition of the utilitarian value of the plea at the earliest opportunity (at [38]).
Legislation and Cases Referenced
Legislation
- Confiscation of Proceeds of Crime Act 1989
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1986
Cases
- Fitzpatrick v R [2010] NSWCCA 26
- Pearce v R (1998) 194 CLR 610
- R v Hemsley [2004] NSWCCA 228
- R v Wong [1999] NSWCCA 420
- Veen v R No. 2 (1998) 164 CLR 465