Citation: R v Dogan [2019] NSWDC 385
Court: District Court of New South Wales
Date: 16 April 2019
Judge: M L Williams SC DCJ
Background
The offender pleaded guilty to knowingly taking part in the supply of a large commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The prosecution arose from a police undercover operation in which the offender transported 11 packages of powder from Leichhardt to Riverstone, believing the substance to be cocaine. Unknown to him, police had substituted an inert substance for the cocaine prior to the operation.
The offender occupied a low-level role in the supply network. He had no knowledge of the negotiations between the principal organiser (known only as "Liberate") and the undercover operative, was not involved in financing or planning the operation, gave no instructions to others, and was described by his counsel as the person most exposed to arrest. Three days before the transport, he had delivered the purchase money.
A Form 1 offence of dealing with $18,400 reasonably suspected of being proceeds of crime under s 193C(2) of the Crimes Act 1901 was also taken into account on sentencing. The offender had been in custody since his arrest on 13 April 2018.
Legal Issues
- What was the appropriate head sentence and non-parole period for an offence of supplying a large commercial quantity of a prohibited drug, where the substance was in fact inert?
- To what extent did the fact that no actual prohibited drug was involved reduce the objective seriousness and moral culpability of the offending?
- What weight should be given to the offender's extensive subjective case, including good character, early guilty plea, remorse, and rehabilitation prospects?
- Whether special circumstances existed justifying a non-parole period shorter than the statutory default ratio.
Decision
The court acknowledged the tension between the gravity of the offence, which attracts a maximum of life imprisonment, and an unusually strong subjective case. His Honour found that several features moderated the objective seriousness of the offending: the offender's low position in the hierarchy, his exclusion from the planning and financing of the operation, and critically, the fact that the substance supplied was inert and incapable of causing the harm that actual cocaine would cause. Relying on R v Stanbouli [2003] NSWCCA 335, the court accepted that the absence of actual prohibited drugs was a relevant factor distinguishing this case from typical large commercial supply matters.
The court identified numerous mitigating factors: the absence of any significant criminal history (only minor traffic matters), otherwise good character, strong prospects of rehabilitation evidenced by academic achievement and positive custodial assessments, genuine remorse, and the early guilty plea. The offender's early plea attracted a 25% utilitarian discount.
The combination of the significant subjective case and the unusual objective features led the court to find that both general and specific deterrence were moderated, though a full-time custodial sentence was unavoidable. His Honour found special circumstances on the basis that this was the offender's first period of custody and that extended supervision on parole would support continued rehabilitation.
Orders Made
- The offender was convicted of the charge of knowingly taking part in the supply of a large commercial quantity of a prohibited drug.
- A sentence of imprisonment of 4 years and 2 months was imposed, commencing 13 April 2018 and expiring 12 June 2022.
- A non-parole period of 2 years and 1 month was imposed, expiring 12 May 2020, with the offender eligible for release to parole on that date.
- Special circumstances were found, resulting in a non-parole period shorter than the statutory default ratio.
- The Form 1 offence (dealing with suspected proceeds of crime) was taken into account in setting the sentence.
Key Takeaways
- Where a drug supply operation involves an inert substance substituted by police, the absence of actual prohibited drug is a relevant sentencing consideration: the supply cannot cause the harm associated with real narcotics, and this moderates the objective seriousness of the offence.
- A conviction under s 25(2) of the Drug Misuse and Trafficking Act 1985 for supplying a large commercial quantity carries a maximum of life imprisonment and a 15-year standard non-parole period, even where the offender's role was limited and they had no knowledge of the broader operation's details.
- An early guilty plea in this context attracted a 25% utilitarian discount, consistent with established sentencing practice.
- Special circumstances were established where the offender was serving his first period of custody and where extended post-release supervision was considered necessary to support an otherwise strong rehabilitation trajectory.
- Sufficient subjective material, including custodial officer assessments, academic records, psychological reports, and character references, can collectively support findings of good character, genuine remorse, and low risk of reoffending, even where a handwritten letter from the offender was not formally adopted or tested.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1901, s 193C(2)
Cases
- R v Stanbouli [2003] NSWCCA 335