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District Court 20 February 2025

R v Dunn

[2025] NSWDC 104

Drugs

Citation: R v Dunn [2025] NSWDC 104
Court: District Court of NSW
Date: 20 February 2025
Judge: Haesler SC DCJ

Background

The offender was involved in two distinct episodes of drug supply offending separated by approximately five years. In 2018, he purchased cannabis from a supplier on 11 occasions for on-sale, accumulating over 25 kilograms. A search warrant executed in December 2018 also uncovered methylamphetamine and $12,000 in cash. Rather than comply with bail, he absconded and remained at large for more than four years.

He was re-arrested in April 2023. A subsequent search of premises connected to him uncovered substantial quantities of LSD, cannabis, methylamphetamine, and cocaine, along with drug packaging materials including a pill press. He was arrested again in July 2023, spent time on remand, and was then bailed in August 2023 to reside at a rehabilitation centre, the Restoration Centre, where he remained at the time of sentencing.

Guilty pleas were entered in the Local Court and adhered to in the District Court. The sentencing dealt with a total of eight principal charges across the two episodes, a number of Form 1 matters, and two matters referred on a section 166 certificate under the Criminal Procedure Act 1986 (NSW).

  • What was the appropriate objective seriousness of each offence, having regard to the quantity and type of drug, the offender's role, and the structure of the supply operation?
  • How should the 25% guilty plea discount be preserved through the process of accumulation when imposing an aggregate sentence?
  • What weight should be given to the offender's remarkable rehabilitation progress when balanced against the need for just punishment and general deterrence?
  • How should the principles of totality, concurrency, and accumulation apply to avoid a crushing sentence while still reflecting the gravity of the offending?
  • What significance attached to the offender's role (as a custodian rather than a principal) in the 2023 offending?
  • How should parity with co-offender Despotovski be considered?

Decision

His Honour assessed the 2018 offending as the offender running a small drug supply business, purchasing cannabis from a supplier for resale. For the 2023 matters, the court accepted on the balance of probabilities that the offender was holding drugs on behalf of a principal rather than operating as the principal himself. This finding affected the assessment of objective seriousness for the 2023 charges, though those charges remained extremely serious given the quantities involved, particularly the large commercial quantity of LSD and 1.62 kilograms of methylamphetamine.

The court applied a 25% reduction to each indicated sentence to reflect the utilitarian value of the early guilty pleas, noting that the pleas also demonstrated an acceptance of responsibility. His Honour applied the instinctive synthesis approach to sentencing, treating the Form 1 matters as a factor capable of substantially increasing the sentence for the principal offence to which each related, while also monitoring the effect of totality principles.

The offender's subjective case was described as very positive. The court accepted evidence of longstanding substance abuse, mental health difficulties, and a gambling addiction, alongside what was characterised as remarkable progress toward rehabilitation at the Restoration Centre. The judgment acknowledged that delay since 2018, some of which was attributable to the offender's own flight from justice, was a relevant factor but did not displace the need for a custodial sentence given the scale of the offending.

Balancing all factors, including the gravity of supplying large commercial quantities of multiple drugs, the need for general deterrence, the community interest in just punishment, and the offender's significant rehabilitation, the court imposed an aggregate sentence of four years with a non-parole period of two years. The two matters on the section 166 certificate were dealt with by way of section 10A (conviction without further penalty), it being inappropriate to impose additional punishment for those matters.

Orders Made

  • Aggregate sentence of 4 years imprisonment, commencing 1 April 2024, with a non-parole period of 2 years (eligible for parole release on 31 March 2026); the balance of sentence expires 31 March 2028.
  • Individual indicated sentences imposed for each sequence (ranging from 9 months to 2 years and 4 months), with non-parole periods attached to sequences 4, 23, and 24.
  • The two matters on the section 166 certificate (possession of a tablet press and possession of ammunition without a licence) dealt with under section 10A: conviction recorded, no further penalty imposed.
  • Forfeiture to the State of $12,156 (the 2018 cash) pursuant to section 18B of the Confiscation of Proceeds of Crime Act 1989 (NSW).
  • Forfeiture to the State of $3,300 (the 2023 cash) pursuant to section 18B of the Confiscation of Proceeds of Crime Act 1989 (NSW).
  • Copy of the psychological report to be forwarded with the warrant.

Key Takeaways

  • A finding that an offender was holding drugs on behalf of a principal, rather than acting as the principal, is capable of reducing the assessed objective seriousness of supply charges, provided that finding is available on the evidence to the relevant standard.
  • Form 1 matters do not attract their own sentence, but operate to increase the sentence for the principal offence to which they attach; that increase can be substantial and must itself be moderated by totality principles.
  • The District Court emphasised that a 25% guilty plea discount must be actively preserved through the accumulation process, so the benefit is not eroded when constructing an aggregate sentence.
  • Remarkable rehabilitation progress, accepted on compelling evidence, is a significant mitigating factor but does not displace the need for a custodial sentence where the offending involves large commercial quantities of multiple prohibited drugs over repeated episodes.
  • Where an offender has absconded and caused delay in proceedings, that delay does not automatically carry the same mitigating weight it would where delay was caused by the prosecution or the system.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 11B(1)
- Crimes Act 1900 (NSW), s 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 10A, 37, 166
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 65(3)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18B

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Petkos v R [2020] NSWCCA 55
- R v Despotovski [2020] NSWDC 110
- R v Arcella [2020] NSWDC 833
- R v Cidan [2014] NSWCCA 66
- De Simoni v The Queen (1981) 147 CLR 383
- Engert v The Queen (1995) 84 A Crim R 67
- MAK v R; MSK v R [2006] NSWCCA 381
- Hamzy v R (1994) 74 A Crim R 341