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District Court 7 February 2025

R v Dann

[2025] NSWDC 17

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG COMMERCIAL QUANTITY LARGE COMMERCIAL QUANTITY

Citation: R v Dann [2025] NSWDC 17
Court: District Court of New South Wales
Date: 7 February 2025
Judge(s): Scotting DCJ

Background

The offender, a 28-year-old woman with no prior criminal history and a background of five years' Army service, appeared for sentence after pleading guilty in the Local Court to three counts of supplying prohibited drugs. The offences occurred between September and November 2022 and involved two supplies of cocaine and one supply of MDMA, all connected to a drug distribution network operated by her domestic partner, Jonathan Towers.

The offender's role was limited. She drove Towers to three separate drug exchanges, knowing he was there to supply drugs for money, and on one occasion collected a bag of cash from another participant's vehicle at Towers' direction. The Crown accepted it could not prove beyond reasonable doubt that she knew the exact quantities of drugs or amounts of money involved in each transaction, though she was aware the quantities exceeded commercial thresholds.

Towers is described in the evidence as controlling and physically abusive, and the offender told the psychiatrist she feared his response if she refused to comply with his requests. She also accepted that she received material benefits from his drug dealing, including an overseas trip, designer goods, and an Audi vehicle.

Legal Issues

  • What was the appropriate sentence for an offender with a limited, situational role in a commercial drug supply operation?
  • Whether the aggravating factor of committing an offence in the presence of a child under 18 years was established.
  • Whether the sentence could be served by way of an Intensive Corrections Order (ICO) rather than full-time custody, notwithstanding the serious nature of the offences and the maximum penalty involved.
  • How parity with co-offenders should inform the final sentence.

Decision

Objective seriousness and the offender's role:
The court found the offences were objectively serious. The two cocaine supplies each just exceeded the commercial quantity threshold of 250 grams (at purities of 30-34%), and the MDMA supply of 2,361.5 grams was more than four times the large commercial quantity of 500 grams (at purities of 18.5-20%) (at [47]). Despite this, the offender had the least involvement of all co-offenders, with her role confined to driving Towers and handling cash on one occasion. The court found her involvement sat at the very lower end of the scale (at [58]).

Aggravating factor: offence in presence of a child:
The Crown argued that the November 2022 MDMA supply, which occurred while the offender's infant child was seated in the rear of the vehicle, attracted the statutory aggravating factor of committing an offence in the presence of a child under 18 years. The court rejected this submission. Applying Johnson v R [2021] NSWCCA 13, the factor requires the child's presence to be "knowing," and there was no evidence that the two-year-old was aware of what was happening (at [52]).

Subjective case and mitigating factors:
Multiple mitigating factors were established. The offender had no prior convictions and was a person of good character through her armed forces service (at [53]-[54]). Her offending was situational, arising from a controlling and abusive relationship in which Towers had lost his legitimate income (at [55]). She was assessed as unlikely to reoffend, demonstrated genuine remorse, and showed good prospects of rehabilitation through her employment and family support while on bail (at [55]-[57]). A 25% discount on sentence was applied for the guilty pleas entered in the Local Court (at [3]).

ICO in lieu of full-time custody:
The court acknowledged the Court of Criminal Appeal's caution in R v Qi [2019] NSWCCA 73 that an ICO should not ordinarily be imposed for offences carrying a maximum penalty of life imprisonment and a high standard non-parole period except in very exceptional circumstances (at [68]). The court was satisfied that very exceptional circumstances existed here. The offender's situational involvement, the cessation of the abusive relationship, the absence of addiction issues, her demonstrated rehabilitation on bail, the risk to her mental health from reincarceration, and the need to protect community safety through continued rehabilitation all supported an ICO (at [67]-[68]). The court also noted that her prior 83 days of pre-sentence custody, onerous bail conditions, and the ongoing restrictions of an ICO constituted adequate punishment (at [69]).

Parity:
Reviewing sentences imposed on co-offenders including Kenny, Cobeta, Kirby, and Towers, the court determined the offender must be dealt with more leniently than all of them. Cobeta, who received the most lenient sentence among the co-offenders, was far more involved in the operation and had an inferior subjective case (at [58]).

Orders Made

  • The offender is convicted.
  • A term of imprisonment of 2 years and 3 months is imposed (reduced from the aggregate of 2 years and 6 months by 3 months to account for pre-sentence custody).
  • The sentence is to be served by way of an Intensive Corrections Order commencing 7 February 2025 and expiring 6 May 2027.

Key Takeaways

  • The District Court held that a participant with a minimal, situational role in commercial drug supply can qualify for an ICO even where the offences carry a maximum penalty of life imprisonment, provided very exceptional circumstances are established on the subjective case (at [68]).

  • A controlling and abusive domestic relationship, the absence of prior offending or addiction, demonstrated rehabilitation on bail, and a low risk of reoffending can together constitute the exceptional circumstances required to justify an ICO for serious drug offences (at [67]-[68]).

  • Under the aggravating factor in s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999, the presence of a young child during an offence must be a "knowing" presence. The court found this was not satisfied where the child was a two-year-old with no apparent awareness of the criminal activity occurring (at [52]).

  • Parity principles required that the offender, assessed as having the least involvement of all participants, be sentenced more leniently than even the most favourably treated co-offender (at [58]).

  • Pre-sentence custody that cannot be reflected by backdating an ICO may instead be accounted for by reducing the term of imprisonment before the ICO commences (at [70]-[71]).

Legislation and Cases Referenced

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

Cases
- Johnson v R [2021] NSWCCA 13
- Mandranis v R [2021] NSWCCA 97
- R v Olbrich (1999) 199 CLR 270
- R v Qi [2019] NSWCCA 73
- Wany v DPP [2020] NSWCA 318