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District Court 3 November 2022

R v Dowdell

[2022] NSWDC 529

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG

Citation: [2022] NSWDC 529
Court: District Court of NSW
Date: 3 November 2022
Judge(s): Scotting DCJ

Background

The offender, a 40-year-old man, appeared for sentencing after pleading guilty in the Local Court to supplying a commercial quantity of a prohibited drug, specifically 1,995g of gamma butyrolactone (GBL), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. GBL is a precursor to GHB, a drug with significant potential for harm. The maximum penalty for the offence is 20 years imprisonment, and parliament has prescribed a standard non-parole period of 10 years.

Police had been conducting covert surveillance and intercepting phone calls when they observed the offender driving a co-accused to collect the drugs from an unknown male in Bankstown. Officers stopped the vehicle on the Hume Highway at Chullora, where they found a Coca-Cola bottle filled with clear liquid inside a green shopping bag. Forensic analysis confirmed 1,995g of GBL at 88% purity. Text messages on the offender's phone also revealed a prior arrangement to on-supply 1 litre of GBL to another individual for $3,500, for which the offender had already received $1,500 before his arrest.

The court also took into account, on a Form 1, two additional matters: knowingly dealing in proceeds of crime ($450 cash found on the offender at arrest) and failing to comply with a COVID-19 public health order.

Legal Issues

  • What was the appropriate sentence for a commercial quantity drug supply offence in light of the offender's personal circumstances, mental health conditions, and guilty plea?
  • What weight should be given to the offender's ADHD, anxiety, depression, and substance use disorders in assessing moral culpability?
  • Whether the sentence should be served by way of an Intensive Corrections Order (ICO) rather than full-time imprisonment, having regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.

Decision

Objective seriousness and moral culpability: The court found the offence to be of limited objective gravity (at [33]). The 1,995g of GBL was approximately twice the commercial quantity but only half the large commercial quantity, was held in a single container, and there was no evidence of the offender's involvement in a larger criminal organisation (at [34]). The offender's complex mental health conditions, including ADHD, generalised anxiety disorder, and major depressive disorder, led to significant substance abuse and reduced his moral culpability to some extent (at [35]). His ADHD specifically impaired his decision-making, judgment, and ability to cope with the stressors he faced (at [35]).

Subjective circumstances and sentencing factors: The court found no relevant aggravating factors (at [39]). In the offender's favour, the court accepted that he was a person of good character based on strong character references (at [41]), demonstrated genuine remorse and accepted responsibility for his actions (at [43]), and had good prospects of rehabilitation supported by re-engagement with psychological treatment and his treating psychiatrist (at [42]). The offender had maintained abstinence from illicit substances since his arrest and presented very little risk to community safety (at [49]). The need for specific deterrence was found to be significantly reduced (at [38]), though general deterrence retained significance given the nature of drug supply offences (at [37]).

Sentence and ICO: The court imposed a term of imprisonment of 18 months, applying a 25% discount for the early guilty plea and accounting for the Form 1 matters (at [47]). The court then considered whether imprisonment should be served by way of an ICO. It was satisfied that no penalty other than imprisonment was appropriate under s 5 of the Crimes (Sentencing Procedure) Act 1999, but found that the sentence could properly be served as an ICO (at [48]). The court reasoned that an ICO would promote rehabilitation, hold the offender accountable, and reflect the seriousness of the offending, while also recognising the offender's reduced moral culpability and low risk of reoffending (at [49]-[51]).

Orders Made

  • The offender was convicted of supplying a commercial quantity of a prohibited drug.
  • A term of imprisonment of 18 months was imposed, with a 25% discount applied for the early guilty plea and the Form 1 matters taken into account.
  • The sentence is to be served by way of an Intensive Corrections Order (ICO), commencing 3 November 2022 and expiring 2 May 2024.
  • The offender must report to the City Community Corrections Office by 4pm on 10 November 2022.
  • Standard ICO conditions apply: no further offences; submission to supervision by a Community Corrections Officer.
  • Additional conditions include: abstinence from restricted or prohibited drugs (except those prescribed by a medical practitioner); participation in drug rehabilitation and mental health treatment as directed by Community Corrections; and no association with the co-accused or the person to whom supply was arranged.

Key Takeaways

  • The District Court confirmed that a commercial quantity drug supply offence can, in appropriate circumstances, result in a sentence served by way of an ICO rather than full-time custody, where the offender's moral culpability is reduced, rehabilitation prospects are strong, and the risk to community safety is low (at [48]-[51]).
  • Diagnosed mental health conditions, specifically ADHD, generalised anxiety disorder, and major depressive disorder, can reduce an offender's moral culpability where the evidence establishes a causal link between those conditions and the offending conduct (at [35]).
  • A 25% discount on sentence applied automatically under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 where the guilty plea was entered in the Local Court (at [5], [47]).
  • Where an offender presents limited objective gravity, no organisational involvement, genuine remorse, strong rehabilitative engagement, and robust prosocial supports, these factors can collectively support a reduced emphasis on general deterrence, denunciation, and retribution in the sentencing calculus (at [33]-[34], [50]).
  • Strong character references can support a finding of good character, and therefore a mitigating factor under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999, even where the offender has minor prior convictions (at [41]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
- R v Olbrich (1999) 199 CLR 270