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District Court 29 November 2018

R v Dunshea

[2018] NSWDC 469

Drugs
CRIME SENTENCE USER OF CANNABIS SINCE AGE 14 ABSTINENT SINCE ARREST ON 10 MARCH 2016

Citation: R v Dunshea [2018] NSWDC 469
Court: District Court of New South Wales
Date: 29 November 2018
Judge: Neilson DCJ

Background

Police executed a search warrant at an Elizabeth Bay apartment on 10 March 2016, intercepting the offender as he arrived at the property on a scooter. The search uncovered a total of 2.1967 kilograms of cannabis leaf distributed across multiple heat-sealed bags, along with electronic scales, a heat sealing machine, seven mobile phones, and 1.91 grams of ecstasy. These items are recognised indicia of drug supply.

The offender, a 36-year-old man who had used cannabis since the age of 14, admitted in a sworn affidavit that he had purchased the cannabis in bulk at a reduced price and supplied portions to friends and acquaintances to offset the cost of his own consumption. He had been diagnosed with Attention Deficit Disorder as a teenager and had used cannabis heavily for much of his adult life.

The offender pleaded guilty to deemed supply of a prohibited drug (cannabis leaf) under s 25(1) of the Drug Misuse and Trafficking Act 1985, and sought to have possession of ecstasy taken into account on a Form 1. He had remained abstinent from illicit drugs since his arrest and had not reoffended in the intervening period before sentence.

  • Whether the objective seriousness of the supply offence warranted full-time imprisonment, or whether an Intensive Corrections Order (ICO) was appropriate.
  • What discount should be applied to the head sentence to reflect the late guilty plea.
  • What conditions should attach to any ICO, having regard to the nature of the offending and the offender's personal circumstances.

Decision

Neilson DCJ assessed the objective seriousness of the offending as comfortably below the mid-range, a concession the Crown also made. The cannabis was purchased in bulk and distributed to fund the offender's own habit rather than as part of a larger commercial operation. The presence of supply paraphernalia and multiple phones nonetheless demonstrated conduct going beyond mere personal use.

His Honour noted that prior binding authority would previously have required a full-time custodial sentence for any active involvement in drug trafficking. More recent Court of Criminal Appeal decisions have moderated that principle, creating the space for a non-custodial option in appropriate cases.

On the question of the guilty plea discount, the Crown conceded 15% was appropriate given the plea was ultimately entered on the day listed for trial. His Honour stated he would have allowed only 10%, but accepted the Crown's position. Starting from a notional sentence of two years and three months, the 15% discount produced a term of one year and 11 months, which falls within the maximum permitted for an ICO.

Psychological evidence from consultant psychologist Tim Watson-Munro assessed the offender as drug-free, remorseful, and at low to medium risk of reoffending. His Honour accepted that the offender had not used illicit drugs since arrest and that supervision by Community Corrections, combined with rehabilitation conditions, would support his continued abstinence.

Orders Made

  • The offender was convicted of supplying a prohibited drug (cannabis leaf) on 10 March 2016 at Elizabeth Bay.
  • Sentenced to imprisonment for one year and 11 months, commencing 29 November 2018, to be served by way of Intensive Correction in the community.
  • ICO conditions imposed:
  • Must not commit any offence.
  • Must submit to supervision by a Community Corrections officer.
  • Must complete 750 hours of community service work.
  • Must participate in any rehabilitation or treatment program directed by Community Corrections.
  • Must abstain from all illicit drugs.
  • Must report to the Sydney City Community Corrections Office within seven days.
  • The Form 1 matter (possession of ecstasy) was taken into account in passing sentence.
  • A separate sequence 5 charge of possession of prohibited drugs was withdrawn and dismissed by consent.
  • The drugs were ordered to be destroyed.

Key Takeaways

  • The District Court confirmed that recent Court of Criminal Appeal decisions have moderated the previously strict principle that active involvement in drug trafficking must attract full-time imprisonment, opening the door to an ICO in cases of below-mid-range seriousness.
  • Supplying cannabis to friends to defray the cost of personal bulk purchases, while still constituting deemed supply, was assessed as falling comfortably below the mid-range of objective seriousness where there was no evidence of a larger commercial enterprise.
  • A guilty plea entered on the day listed for trial attracted a 15% discount in this case, accepted on the basis of the Crown's own concession, even though his Honour indicated 10% would otherwise have been his assessment.
  • Evidence of sustained post-arrest abstinence, low-to-medium reoffending risk, genuine remorse extending beyond self-interest, and a diagnosed history of ADD and anxiety were all mitigating factors the court weighed in favour of a community-based sentence.
  • Under s 25(1) of the Drug Misuse and Trafficking Act 1985, supplying cannabis leaf carries a maximum of ten years imprisonment; the court imposed the maximum 750 hours of community service work as a condition of the ICO, reflecting the gravity of the maximum penalty even where the particular offending was below mid-range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v Nguyen; R v Cannistra [2006] NSWCCA 389