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District Court 20 September 2019

R v Dahmoul

[2019] NSWDC 920

Drugs
SENTENCING DRUG OFFENCES SUPPLY PROHIBITED DRUG (CANNABIS) SUBJECTIVE CONSIDERATIONS ON SENTENCE DRUG ADDICTION SUBJECTIVE CONSIDERATIONS ON SENTENCE

Citation: R v Dahmoul [2019] NSWDC 920
Court: District Court of New South Wales
Date: 20 September 2019
Judge: Payne DCJ

Background

The offender, a French national in Australia on a student visa, appeared for sentencing on two counts of drug supply following guilty pleas. The offences occurred on consecutive days in October 2017 in Darlinghurst and Ultimo, New South Wales.

On 3 October 2017, police intercepted the offender carrying a duffel bag containing cannabis. A subsequent search of a nearby Airbnb unit uncovered additional cannabis, bringing the total to over 20 kilograms. The following day, police executed a warrant on a storage locker the offender had been maintaining and found 246.4 grams of MDMA and $184,350 in cash. The offender had been in continuous custody since his arrest on 3 October 2017.

The sentencing court also took into account four additional offences on a Form 1 document (a procedural mechanism allowing related offences to be considered at sentencing without separate convictions): dealing with suspected proceeds of crime on two separate occasions, possession of a small quantity of cannabis resin, and supplying two tabs of LSD.

  • What weight should be given to the offender's guilty plea, given it was entered late and after a trial date had been set?
  • How should the offender's role in the offending be assessed relative to his co-accused?
  • What subjective factors, including drug addiction, rehabilitation prospects, and hardship, were relevant to the sentence?
  • Were special circumstances established under the Crimes (Sentencing Procedure) Act 1999, justifying a non-parole period representing less than the standard proportion of the head sentence?
  • What aggregate sentence appropriately reflected totality across all offences?

Decision

Payne DCJ assessed the utilitarian value of the guilty plea at 10 percent, noting it was entered on 21 June 2019 after a trial date of 1 July 2019 had already been fixed. The court treated this as a late plea warranting only a modest discount.

On the question of the offender's role, the court declined to accept the Crown's submission that the offender had played a more significant part than his co-accused. Payne DCJ found both individuals were equally involved, describing them as being "in the thick of it together."

Regarding subjective considerations, the court acknowledged the offender's history of drug use as a relevant mitigating factor and accepted he had reasonable prospects of rehabilitation, despite his risk of re-offending being assessed as guarded by an expert. The court declined to make any positive or negative finding on re-offending risk, treating that factor as neutral.

Special circumstances were found to exist, based on the offender's need for post-release drug treatment and community reintegration. This resulted in a non-parole period representing 50 percent of the head sentence, a substantial departure from the usual statutory proportion.

Orders Made

  • The offender was convicted on both counts.
  • An aggregate sentence of six years' imprisonment was imposed, commencing 3 October 2017 and expiring 2 October 2023.
  • An aggregate non-parole period of three years was set, commencing 3 October 2017 and expiring 2 October 2020.
  • Indicative sentence for Count 1 (cannabis supply): one year and nine months (after 10 percent plea discount).
  • Indicative sentence for Count 2 (commercial supply of MDMA, including Form 1 matters): five years and ten months (after 10 percent plea discount), with an indicative non-parole period of two years and eleven months.

Key Takeaways

  • A late guilty plea, entered after a trial date has been fixed, attracted only a 10 percent utilitarian discount in this case, reflecting the limited practical benefit to the court and justice system at that stage.
  • Where the evidence does not clearly establish a hierarchy of culpability between co-offenders, the District Court declined to treat one offender as more culpable than the other, even where the Crown submitted otherwise.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established on the basis of long-term drug dependency and the need for structured reintegration, resulting in a non-parole period of 50 percent of the head sentence.
  • Reasonable rehabilitation prospects can be found even where a forensic expert assesses reoffending risk as guarded, provided other positive features are present.
  • Under the aggregate sentencing regime, the court is required to state indicative sentences for each individual offence while ensuring the overall sentence reflects totality principles.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)
- Crimes Act 1900 (NSW), ss 193C(1), 193C(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases cited: No cases cited in the judgment text.