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District Court 17 May 2019

R v Dharminder Singh

[2019] NSWDC 184

Drugs
TWO DRUG SUPPLY OFFENCES UNIQUE CIRCUMSTANCES

Citation: R v Dharminder Singh [2019] NSWDC 184
Court: District Court of New South Wales
Date: 17 May 2019
Judge: Mahony SC DCJ

Background

The offender was a passenger in a vehicle stopped by police during a random breath test in Balranald in November 2017. Police found a margarine container in the centre console holding approximately 362 grams of opium resin, and a cardboard box in the boot containing opium poppy flowers and seeds weighing over 1,091 grams. Both finds constituted quantities above the indictable threshold under the Drug Misuse and Trafficking Act 1985.

The offender told police he had no drugs in the vehicle, but later made full admissions in a formal interview. He explained he had driven from Canberra to Renmark, South Australia, to collect the substances for a family friend's elderly father (referred to throughout as "uncle"), who was suffering from throat cancer and intended to use the substance, known as "Doda," for pain relief during a planned visit to Australia.

The offender had no criminal history, was assessed as a low risk of reoffending, and entered an early guilty plea in the Local Court to both charges of deemed supply of a prohibited drug under section 25(1) of the Drug Misuse and Trafficking Act 1985. A further offence was taken into account on a Form 1.

Legal Issues

  • Whether the objective seriousness of the two supply offences fell within the low, mid, or upper range for deemed supply offences under section 25(1) of the Drug Misuse and Trafficking Act 1985
  • Whether the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 for a full-time custodial sentence had been crossed
  • How the principle of totality should apply to the aggregate sentence across two offences arising from the same course of conduct
  • Whether the appropriate sentencing disposition was a Community Correction Order, an Intensive Correction Order, or a full-time custodial sentence

Decision

Objective Seriousness

The court found the circumstances of the offending were unique. The offender acted as a carrier obtaining substances for a person with a genuine medical condition, with no financial motive and no prospect of the drugs entering the wider community (at [46]). Although the quantities exceeded the indictable threshold for both sequences, the court placed the objective seriousness of each offence within the low range for a deemed supply offence, at the middle of that low range (at [47]). The court accepted the offender's role involved some planning in locating and collecting the substances, and declined to characterise that planning as absent, but found no drug supply hierarchy of the kind considered in Tyler v R (at [46]).

Section 5 Threshold

Despite the low-range objective seriousness finding, the court concluded the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed, having regard to the maximum penalty of 15 years imprisonment and the serious nature of the offending (at [50]). Full-time custody was technically warranted, but the sentence was to be served in the community.

Subjective Circumstances and Discount

The offender received a 25 percent utilitarian discount for his early guilty plea (at [48]). The court accepted his good character, genuine remorse, absence of any criminal history, successful integration into Australian working life since migrating from India in 2008, and excellent prospects of rehabilitation (at [48]-[49], [56]). The court found his willingness to help a perceived family member in need, rather than his good character itself, was the cause of the offending (at [48]).

Aggregate Sentence and Totality

The court applied the principle of totality and imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999. Accumulation was minimised on the basis that both offences arose from the same course of conduct and that the drug in Sequence 1 was a derivative of the vegetative matter in Sequence 2 (at [51]). The aggregate term of 2 years and 3 months, being less than 3 years, was directed to be served by way of an Intensive Correction Order, with community safety treated as a paramount consideration (at [55]).

Orders Made

  • The offender was convicted of supply prohibited drug (opium) under section 25(1) of the Drug Misuse and Trafficking Act 1985 (Sequence 1)
  • The offender was convicted of supply prohibited drug (Papaver Somniferum) under section 25(1) of the Drug Misuse and Trafficking Act 1985 (Sequence 2)
  • An aggregate sentence of 2 years and 3 months imprisonment was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 17 May 2019
  • The sentence is to be served by way of an Intensive Correction Order pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999
  • Standard conditions apply: no offences to be committed; submission to supervision by Community Corrections
  • Additional condition: 200 hours of Community Service Work
  • The Form 1 offence was taken into account; no additional accumulation applied

Key Takeaways

  • Unique personal circumstances surrounding a deemed drug supply offence, including the absence of financial gain, the absence of any intention to disseminate drugs into the community, and the offender's role as a one-off carrier for a perceived medicinal purpose, can place objective seriousness within the low range even where quantities exceed the indictable threshold (at [46]-[47]).

  • The District Court confirmed that crossing the section 5 threshold does not automatically result in full-time custody. Under the amended sentencing framework introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, an aggregate sentence of less than 3 years can be directed to be served by way of an Intensive Correction Order where community safety and rehabilitation considerations support that outcome (at [50], [55]).

  • Where two drug supply offences arise from a single course of conduct and one drug is a derivative of the other, the principle of totality permits substantial compression of the accumulated sentences, minimising the uplift beyond the sentence for the primary offence (at [51]).

  • An early guilty plea entered in the Local Court attracted a 25 percent utilitarian discount on sentence (at [48]).

  • Good character carries weight as a mitigating factor, but its significance is assessed by examining whether that character contributed to the offending. Here, the court found the operative cause was the offender's desire to assist a person in need, not the exploitation of good character by others (at [48]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017
- Drug Misuse and Trafficking Act 1985
- Poppy Industry Act 2016

Cases
- Berryman v R [2017] NSWCCA 297
- JM v R [2014] NSWCCA 297
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v El Masri [2005] NSWCCA 167
- R v Pullen [2018] NSWCCA 264
- R v Van Ryn [2016] NSWCCA 1
- Tyler v R (2007) 173 ACrimR 458