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District Court 23 November 2021

R v Dahdah

[2021] NSWDC 810

Drugs
PARAMOUNT CONSIDERATION

Citation: R v Dahdah [2021] NSWDC 810
Court: District Court of New South Wales
Date: 23 November 2021
Judge(s): M L Williams SC DCJ

Background

The offender, then approaching 30 years of age, was arrested on 19 February 2021 following a police task force investigation into street-level cocaine supply. He had been working as a real estate agent at the time of the offences and had acted as a driver for a co-offender, delivering cocaine to customers in small bag weights of approximately 0.62 grams at prices between $150 and $250 per bag.

The offender pleaded guilty to two principal charges: ongoing supply of a prohibited drug (cocaine) contrary to s 25A of the Drug Misuse and Trafficking Act 1985, involving thirteen separate supply occasions between January and February 2021 totalling 10.08 grams; and a single supply of cocaine on 12 December 2020 contrary to s 25(1) of the same Act. Five additional matters were placed on a Form 1 to be taken into account on sentencing, including deemed supply, possession of prohibited drugs, possession of a prescribed restricted substance, and dealing with proceeds of crime.

The offender had a limited prior record (a low-range PCA from 2008 and a possess prohibited drug matter from 2015 dealt with by way of a section 10 bond). He had a long history of substance use, including cocaine addiction from age 18, and had been introduced to cannabis by his mother as a child.

  • What was the appropriate objective seriousness of the offending, given the offender's role as a street-level dealer?
  • What weight should be given to subjective mitigating factors, including the guilty plea, limited criminal history, drug addiction, rehabilitation prospects, and family support?
  • Whether the paramount consideration of community safety permitted the imposition of an intensive corrections order (ICO) rather than full-time custody, having regard to the nature and circumstances of the offending.
  • How should the Form 1 matters be factored into the overall sentencing exercise?

Decision

The court found the offending was objectively serious but situated at the lower end of any hierarchy of drug supply. While street-level dealing is the least culpable role in a drug distribution network, the court noted it nevertheless plays an important part in enabling wider drug distribution. The court accepted that the offender was not supplying solely to fund his own addiction and that financial gain was a motivation.

A 25% discount on sentence was applied reflecting the guilty plea. The court found considerable subjective merit: the offender expressed genuine remorse and insight, had a supportive family network, had engaged with drug treatment programs while on remand, and was assessed as a low to medium risk of reoffending. The court accepted the detailed report of psychologist Dr Pusey, which linked the offender's drug use to a chaotic childhood marked by exposure to his mother's heavy substance use, and which outlined a structured rehabilitation plan.

The court considered the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, including deterrence, rehabilitation, and community safety. Noting that community safety is the paramount consideration when assessing the suitability of an ICO, the court was satisfied that the offender's rehabilitation prospects, low-to-medium reoffending risk, family support, and willingness to undertake intensive treatment justified diverting him from full-time custody. The time already spent on remand since February 2021 was also taken into account.

The indicative sentence for the principal ongoing supply count (taking into account the Form 1 matters) was 2 years, and 6 months for the discrete supply count. An aggregate sentence of 2 years' imprisonment was imposed, directed to be served by way of an ICO with a range of standard and additional conditions.

Orders Made

  • The offender was convicted of each offence.
  • A 25% discount was applied for the guilty plea.
  • Indicative sentences: 2 years for Sequence 1 (including Form 1 matters); 6 months for Sequence 8.
  • Aggregate sentence of 2 years' imprisonment imposed, to be served by way of an intensive corrections order (ICO) under s 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • ICO conditions included:
  • No further offences.
  • Supervision by Community Corrective Services for the term of the order.
  • Curfew: remain at residence between 10pm and 5am (with provision for suspension for the offender's wedding and honeymoon in June 2022 as approved by Community Corrections).
  • 200 hours of community service work.
  • Undertake rehabilitation and treatment as outlined by Dr Pusey.
  • Abstain from alcohol and illicit drugs.
  • Submit to drug testing administered by Dr Khan.
  • No association with the co-offender Shannon Hughes.
  • Report to the OIC at Liverpool CCS office by 5pm on 30 November 2021.
  • Consent orders made pursuant to Short Minutes dated 29 October 2021.
  • Back-up offences withdrawn and dismissed by consent.

Key Takeaways

  • A street-level drug dealer occupies the lowest tier of supply hierarchy, but the District Court confirmed this does not reduce the offending to the trivial: such a role materially enables broader drug distribution and attracts meaningful penalties.
  • Under the Drug Misuse and Trafficking Act 1985, ongoing supply under s 25A carries a maximum of 20 years' imprisonment with no standard non-parole period, and a discrete supply under s 25(1) carries a maximum of 15 years. These maxima serve as yardsticks in the sentencing exercise.
  • Community safety is the paramount consideration when a sentencing court assesses whether an ICO is appropriate. Here, the combination of a low-to-medium reoffending risk, structured rehabilitation plan, strong family support, and engagement with treatment programs while on remand supported an ICO over full-time custody.
  • Form 1 matters are taken into account on the principal offence in the manner outlined in Attorney General's Application No 1 of 2002, and their inclusion does not create a separate sentencing exercise but is reflected in the overall sentence for the principal count.
  • Significant subjective factors, including a difficult childhood marked by parental drug exposure, long-standing addiction, remorse, and rehabilitation effort, can meaningfully reduce an otherwise custodial outcome where the objective circumstances permit.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 procedure)
- Mandranis v R [2021] NSWCCA 97
- R v Zamagias [2002] NSWCCA 17