Citation: R v Dendulk [2023] NSWDC 392
Court: District Court of NSW
Date: 5 July 2023
Judge: Haesler SC DCJ
Background
The offender, a 40-year-old man with an extensive criminal history dating to 2006, appeared for sentencing on two counts of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act (NSW). The charges arose from three transactions in May 2021, facilitated through the ANOM encrypted communications platform, which had been developed by the FBI and was the subject of an AFP-led operation from October 2018.
The offender had been on parole from December 2020. Following a change in his living circumstances connected to his children being placed with their grandparents, he left the family home, entered temporary accommodation frequented by people with drug and crime histories, and resumed methylamphetamine use. He then arranged connections between a local drug supplier and an upline supplier, with his fee being methylamphetamine for personal use rather than financial gain.
The two charges covered the supply of 9.4 kilograms of cannabis leaf (the two cannabis transactions combined into a single count) and 226 grams of methylamphetamine. Both matters had been resolved in the Local Court by plea of guilty.
Legal Issues
- What was the objective seriousness of the offending, given the offender's facilitation role and personal motivation?
- What weight should be given to subjective factors, including longstanding drug addiction, childhood trauma, mental health, and prior attempts at rehabilitation?
- How should the plea of guilty discount be calculated and applied?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
- How to structure an appropriate aggregate sentence through instinctive synthesis.
Decision
Haesler SC DCJ rejected the submission that the offender's role was equivalent to, or less serious than, that of a street-level supplier. While the offender was motivated by obtaining drugs for his own use and did not participate directly in the transactions, his actions facilitated the provision of large quantities of drugs to a local distributor and enabled both that distributor and the upline supplier to profit. The court found the offending occupied a meaningful place in the supply chain above mere street-level involvement.
The court accepted the offender's account that his relapse into drug use followed a genuine disruption to his living arrangements and was connected to a long history of addiction rooted in childhood sexual assault. These subjective matters were treated as mitigating, as was the guilty plea, which attracted a 25% discount for its utilitarian value and as evidence of some insight into his offending.
A finding of special circumstances was made, reducing the non-parole period below the standard statutory ratio. The court noted the offender's history of not taking advantage of parole but expressed the view that the State Parole Authority should have the opportunity to release him into residential rehabilitation, allowing a staged re-entry into the community. The court was explicit that the sentence could not be artificially extended to allow for longer rehabilitation, nor reduced below what the objective seriousness required.
Applying instinctive synthesis, and balancing objective seriousness, the purposes of sentencing, the plea discount, and all subjective factors, the court imposed an aggregate sentence of 3 years and 4 months, with a non-parole period of 2 years and 1 month.
Orders Made
- Aggregate custodial sentence of 3 years and 4 months.
- Non-parole period of 2 years and 1 month, commencing 13 February 2022, with eligibility for parole consideration from 12 March 2024.
- Balance of sentence of 1 year and 3 months commencing 13 March 2024, expiring 12 June 2025.
- Release subject to order of the State Parole Authority.
- Court recommended arrangements be made for the offender to enter residential rehabilitation upon release.
Key Takeaways
- A drug supply facilitator who arranges connections between suppliers in exchange for personal drug use, rather than financial payment, may still be assessed as operating above street-level in the supply chain, depending on the quantities and transactions involved.
- Under the instinctive synthesis approach, the court is not required to fix objective seriousness on a numerical scale, but must make a genuine qualitative assessment of the gravity of each offence as a critical sentencing component, as confirmed in R v Simpson.
- Childhood trauma and entrenched drug addiction are recognised as mitigating factors in the subjective circumstances, capable of bearing on prospects of rehabilitation and the structure of the sentence, even where the offender has a significant prior record.
- The District Court found special circumstances on the basis that a staged release into rehabilitation was appropriate, reducing the non-parole period below the standard ratio, while maintaining that the minimum custody period had to reflect the gravity of the offending.
- Two cannabis supply transactions involving different quantities may be "rolled up" into a single charge for sentencing purposes, consistent with the approach approved in Hamzy v R and Jadron v R, though different drug types attracting different maximum penalties must remain as separate counts.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act (NSW), s 25(1)
Cases
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704