Citation: R v Dando [2019] NSWDC 833
Court: District Court of New South Wales
Date: 21 June 2019
Judge: King SC DCJ
Background
The offender, a 23-year-old man, appeared for sentence on a single charge of supplying prohibited drugs on an ongoing basis, contrary to s 25A(1) of the Drugs Misuse and Trafficking Act 1985. Between 25 July and 8 August 2018, he conducted a series of drug sales in the Redfern area of Sydney, communicating with buyers through the encrypted messaging application Wickr Me and arranging street-level handovers. All transactions were made to an undercover operative, and the drugs supplied included MDMA, MDA, cocaine, LSD, Alprazolam (Xanax) and amphetamine, generating approximately $2,950 in total proceeds.
The offender was arrested on 10 August 2018 when police observed him collecting parcels from a post office locker on Cleveland Street, Redfern. Those parcels contained further quantities of prohibited and restricted substances, including Alprazolam, cocaine, cannabis, Diclazepam and Modafinil. A subsequent interception of parcels held at Australia Post on 20 August 2018 revealed additional MDMA and cocaine connected to the offender.
At sentencing, the offender asked the court to take into account seven further offences on a Form 1, covering the possession offences arising from the parcel interceptions and two additional supply offences relating to MDMA and cocaine found in the later parcels.
Legal Issues
- Whether the offending fell at the low, mid, or high range of objective seriousness for an ongoing supply offence under s 25A(1).
- Whether the threshold for a sentence of imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed.
- Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term.
- What weight to give to subjective factors, including the offender's age, prior Queensland offending, and rehabilitation efforts.
Decision
King SC DCJ assessed the objective seriousness of the ongoing supply offence as falling between the low and mid-range, with a slight lean toward the mid-range. Although the six supplies occurred over a two-week period and each involved relatively small quantities, the offender operated as a ready, mobile dealer, offering a price list of multiple drugs, advertising bulk discounts, and sourcing additional stock through anonymous mail deliveries paid for using bitcoin. This conduct was characterised as a classic instance of the modern form of street dealing that s 25A was designed to address.
His Honour noted that the offence was deliberately introduced to overcome the limitations of charging individual small-quantity dealers who had previously escaped significant penalties because they only ever possessed small amounts at any one time. The mobile phone and encrypted messaging applications have replaced the street corner as the locus of such dealing, making the work of law enforcement more difficult and rendering the ongoing supply provision all the more relevant.
On subjective matters, the court had regard to a psychological report and character materials. The offender's youth, his first period of actual custody, and genuine rehabilitation efforts weighed in his favour. However, his failure to desist from offending after prior drug charges in Queensland was a significant aggravating factor, and the court found that specific and general deterrence, together with community protection, required a sentence of imprisonment.
The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, principally because of the offender's age, his first time in custody, and his demonstrated commitment to rehabilitation. This justified a substantial departure from the standard 75/25 non-parole to balance-of-term ratio, with the non-parole period reduced by five months to allow an extended parole period to support reintegration.
Orders Made
- The offender was convicted of supplying prohibited drugs on an ongoing basis contrary to s 25A(1) of the Drugs Misuse and Trafficking Act 1985.
- A 25% discount was applied to the sentence for relevant subjective factors.
- Total sentence of imprisonment: 2 years and 4 months.
- Non-parole period: 1 year, commencing 2 April 2019, with eligibility for parole on or about 1 April 2020.
- Balance of term: 1 year and 4 months, with the total term expiring 1 August 2021.
- The seven Form 1 offences were taken into account in the sentence.
Key Takeaways
- Section 25A of the Drugs Misuse and Trafficking Act 1985 was specifically enacted to target ongoing street-level drug dealing, where individual transactions involve small quantities that would otherwise attract minimal penalties if charged separately.
- The District Court confirmed that the modern equivalent of traditional street dealing, conducted through encrypted mobile applications and anonymous postal deliveries, falls squarely within the mischief targeted by s 25A.
- Offering a drug price list, advertising bulk discounts, and sourcing stock through the mail using cryptocurrency are features that can push an ongoing supply offence toward the mid-range of seriousness, even where individual transaction quantities are modest.
- Special circumstances may be established where the offender's youth, first custodial sentence, and genuine rehabilitation combine to justify a significant reduction in the non-parole period below the statutory norm, to facilitate a longer period of supervised reintegration.
- Prior drug offending in another jurisdiction, even if not resulting in a custodial sentence, remains a relevant aggravating factor where the offender has not modified their conduct before reoffending in New South Wales.
Legislation and Cases Referenced
Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 32
Cases
- BP v The Queen [2010] NSWCCA 159
- Bullock v the Queen [2016] NSWCCA