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District Court 31 August 2023

R v Dao

[2023] NSWDC 351

Drugs
SUPPLY PROHIBITED DRUG PRIOR CRIMINAL HISTORY BREACH OF INTENSIVE CORRECTION ORDER TIME IN CUSTODY

Citation: R v Dao [2023] NSWDC 351
Court: District Court of New South Wales
Date: 31 August 2023
Judge(s): Newlinds SC DCJ

Background

The offender, a 38-year-old man, appeared for sentencing following his arrest on 11 August 2022 in Burwood. Police stopped him for a traffic matter and subsequently found 135.65 grams of methamphetamine in a backpack in his vehicle, along with several other prohibited substances and $9,600 in cash. He immediately admitted ownership of the bag and its contents.

The principal charge was supply of a prohibited drug in a commercial quantity under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Five related offences, including possession of other prohibited drugs and driving while his licence was suspended, were placed on a Form 1 document for the court to take into account when determining the appropriate penalty.

The offending carried particular weight because, at the time of his arrest, the offender was already serving a three-year term of imprisonment by way of an Intensive Corrections Order (ICO), imposed just that same day by another District Court judge for earlier similar offending. The State Parole Authority subsequently revoked the ICO, leaving the offender in custody continuously from 11 August 2022.

Legal Issues

  • What was the appropriate sentence for the principal offence of supply of a prohibited drug in a commercial quantity?
  • How much of the time spent in custody since 11 August 2022 should be attributed to the present offences, given that custody also arose from revocation of an earlier ICO?
  • Whether the threshold for a term of full-time imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999 was met, and if so, whether the sentence should be served by way of a further ICO.
  • What weight should be given to the offender's rehabilitation prospects, remorse, guilty plea, and mental health history against the aggravating factors of prior criminal history and breach of conditional liberty?

Decision

Guilty plea and custody discount

The offender entered his guilty plea at the first reasonable opportunity on 24 May 2023, and Newlinds SC DCJ allowed the maximum utilitarian discount of 25 percent (at [7]). His Honour also accepted that a significant proportion of the time in custody since 11 August 2022 should be counted toward the present sentence. The primary cause of that custody was the current offences: but for them, the offender would not have been held (at [12]-[13]).

Objective seriousness and the offender's role

The Crown characterised the offending as mid-range. The defence argued it fell below the mid-range. His Honour declined to treat that distinction as meaningful (at [36]). The court proceeded on the basis that the offender was a low-level courier with no organisational role in the drug supply chain, acting to fund his own addiction rather than for commercial profit (at [37]).

Aggravating and mitigating factors

Significant aggravating factors were identified: the offender's prior criminal history, the fact that he was on conditional liberty under an ICO at the time of the offending, and the inherent danger to the community of drug supply (at [41]). Against those, the court found genuine remorse, insight, immediate admissions to police, an early guilty plea, and a reasonable prospect of rehabilitation (at [42]-[43]).

Sentence and ICO

His Honour determined that the section 5 threshold for full-time imprisonment was crossed and that a fixed term of two years was appropriate (at [55]-[56]). However, the court also concluded that a further ICO was the more effective means of addressing the offender's risk of reoffending, given his prospects for rehabilitation through structured residential drug treatment (at [57]-[59]). The two-year term was ordered to be served by way of an ICO, with conditions including good behaviour, Community Corrections supervision, attendance at a residential rehabilitation program, and abstinence from illicit drugs (at [56]).

Orders Made

  • The offender was convicted of supply of a prohibited drug in a commercial quantity (sequence 9), with five related offences on the Form 1 taken into account.
  • The offender was sentenced to a fixed term of imprisonment of two years, commencing 31 August 2023.
  • The term of imprisonment is to be served by way of an Intensive Corrections Order.
  • ICO conditions include: good behaviour and no further offences; supervision by a Community Corrections officer under any supervision plan that officer considers appropriate; attendance at the next available full-time residential rehabilitation program conducted by Connect Global Limited upon release from custody; and abstinence from illicit drugs.

Key Takeaways

  • Where an offender is held in custody partly because of an earlier ICO revocation and partly because of bail refusal on new charges, the sentencing court retains a discretion to attribute a significant proportion of that pre-sentence custody to the new offences if it is satisfied that, but for those new offences, the offender would not have been in custody at all (at [11]-[13]).

  • A finding that an offender acted as a low-level drug courier with no organisational role and no profit motive can place the objective seriousness of a commercial-quantity supply offence at the lower end of the range, even where the quantity of drugs is described as mid-range for the offence category (at [37]).

  • Breach of a conditional liberty order, such as an ICO, at the time of fresh offending is a statutory aggravating factor and carried material weight in the sentencing calculus here, alongside prior criminal history and the public danger inherent in drug supply (at [41]).

  • A further ICO remained available as the mode of serving a sentence for supply in commercial quantity where the court was satisfied that community-based supervision and structured rehabilitation would more effectively reduce reoffending risk than full-time incarceration, provided the safety of the community was not imperilled (at [57]-[59]).

  • Under the framework in Callaghan v R and Hutchen v R, the attribution of pre-sentence custody to the instant offences is a discretionary evaluative exercise, not an automatic entitlement, and courts examine the true cause of the custody rather than applying a mechanical calculation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 , s 193
- Drug Misuse and Trafficking Act 1985 , s10(1)
- Road Transport Act 2013 (NSW), s 54(3)(a)
- Crimes (Sentencing Procedure) Act 1999, ss 3(A), 66(1) and 66(2)

Cases
- Callaghan v R (2005) 160 A CRIM R 145
- Hutchen v R [2015] NSWCCA 101.
- Melikian v R [2008] NSWCCA 156
- R v Bristow (1982) 7 A Crim R 36
- R v Dang [2005] NSWCCA 430
- R v MacDonnell [2002] NSWCCA 34
- R v Sarikaya NSWCCA, 21 June 1985 (unreported)