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District Court 14 March 2022

R v Mackenzie Dingwall

[2022] NSWDC 87

Drugs
CRIMINAL LAW BORDER CONTROLLED DRUGS PURITY OF KETAMINE CONSIDERED TO BE 79% ABSENCE OF SOPHISTICATION CONTRITION ESTABLISHED GUILTY PLEA TAKEN INTO ACCOUNT

Citation: R v Mackenzie Dingwall [2022] NSWDC 87
Court: District Court of New South Wales
Date: 14 March 2022
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to one charge of attempting to possess a marketable quantity of border controlled drugs, specifically ketamine, contrary to ss 11.1 and 307.6 of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 25 years imprisonment, 5,000 penalty units, or both.

The facts arose from a controlled delivery operation conducted by NSW Police in October 2020. A DHL parcel containing 979.54 grams of ketamine at 79% purity had been intercepted at Sydney Bond and addressed to a false name at the offender's former business address. Police performed a controlled delivery, and the offender attended the premises, collected the parcel, and was arrested shortly after during a brief pursuit.

The offender admitted he was paid $4,000 in Bitcoin to collect and transport the package for another person. He knew the package contained prohibited drugs but was unaware of the specific drug type or quantity. He described his own role as being treated "like a mule."

  • How should the court assess the offender's objective seriousness given his limited role and absence of knowledge of the drug's type and quantity?
  • What weight should be given to the quantity of drugs (258 times the marketable quantity threshold) where the offender was ignorant of the amount?
  • What effect did the offender's mental health have on his moral culpability and the sentencing exercise?
  • Whether the offending fell within the lower range of objective seriousness for this category of offence.
  • Whether a recognizance release order (RRO) enabling immediate release was appropriate, given that an intensive correction order was unavailable for a Commonwealth offence of this kind.
  • How to balance rehabilitation prospects, reduced need for deterrence, and the impact of incarceration on the offender's mental health.

Decision

Objective seriousness: The District Court placed the offending in the lower range of objective seriousness. The offender's role was to collect and transport drugs on another's instructions for a fixed financial reward, with no involvement in the broader importation enterprise or downstream distribution. He lacked knowledge of the drug type or quantity, and there was no evidence of true operational sophistication. The court rejected the Crown's submission that use of the Signal messaging app demonstrated a high degree of subterfuge, noting the agreed facts did not establish the app deleted messages and that many messages were in fact retrieved.

Drug quantity: The court acknowledged that the quantity, at 258 times the marketable threshold, remained a material factor because potential harm and profit are proportional to drug weight. However, consistent with Wong v The Queen (2001) 207 CLR 584, drug weight was not treated as an automatic principal sentencing factor where the offender was ignorant of the amount involved. The offender's role and level of participation were given greater weight than the gross quantity.

Mental health: Evidence established a link between the offender's mental health at the time of the offence and his decision-making. The court found this connection went beyond merely impulsive choices and formed part of the broader mitigating picture. The court also found that incarceration would adversely affect the offender's rehabilitation and mental health treatment.

Sentence: The court sentenced the offender to 2 years and 6 months imprisonment but ordered his immediate release on a recognizance release order (RRO). The court found this outcome was warranted by the offender's genuine contrition, guilty plea, cooperation with law enforcement, successful steps to address longstanding illicit substance use, good prospects of rehabilitation, and low likelihood of reoffending. The court identified a reduced need for both general and specific deterrence in the circumstances.

Orders Made

  • Sentenced to 2 years and 6 months imprisonment.
  • Released forthwith on a recognizance release order, with a surety of $500, subject to the following conditions:
  • To be of good behaviour for the duration of the sentence.
  • To accept supervision by NSW Community Corrections, with the supervising office at Leichhardt, and to report within 48 hours.
  • To engage in treatment under his Mental Health Care Plan supervised by his general practitioner, and in accordance with specified treatment plans prepared by his treating practitioners, for such period as directed, not exceeding the duration of the sentence.

Key Takeaways

  • A courier-level role in a drug possession offence, combined with ignorance of the drug's type and quantity, places an offender at the lower end of the drug hierarchy and supports a finding in the lower range of objective seriousness, even where the drug quantity is very large.
  • Under Wong v The Queen, drug weight does not automatically dominate sentencing; the offender's role and participation carry greater weight, particularly where that person was ignorant of the quantity involved.
  • The District Court confirmed that where a controlled operation was conducted, the absence of actual harm, loss, or damage to the community is a relevant sentencing factor.
  • A recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) may be appropriate where full-time custody would undermine rehabilitation and mental health treatment, and where the statutory requirements for such an order are otherwise met, even for serious drug offences.
  • Evidence connecting mental health to the offender's decision-making at the time of the offence can reduce moral culpability beyond what would otherwise be attributed to mere impulsivity.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1, 307.6
- Crimes Act 1914 (Cth), ss 16A, 17A

Cases:
- El Jamal v R [2021] NSWCCA 105
- El-Ghourani v R [2009] NSWCCA 140
- Wong v The Queen (2001) 207 CLR 584
- R v MacDonnell (2002) 128 A Crim R 44
- R v Stanbouli (2003) 141 A Crim R 531
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Qutami [2001] NSWCCA 353
- R v Nguyen (2010) A Crim R 106
- Henry v R (1999) 46 NSWLR 346
- Perrin v R [2021] NSWDC 408
- Chenhall v R [2021] VSCA 175
- R v Diez [2020] NSWDC 351
- Thorn v R (2009) 198 A Crim R 135
- R v Stafford [2007] NSWCCA 73
- R v Shi [2014] NSWCCA 135
- R v Oprea [2009] QCA 184
- Omorogbe v R [2013] NSWCCA 201
- Eriyo v R [2015] NSWCCA 16