District Court New South Wales Medium Neutral Citation: R v Dowling [2023] NSWDC 621 Hearing dates: 13 October 2023 Date of orders: 13 October 2023 Decision date: 13 October 2023 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [63]-[68] Catchwords: SENTENCE – Drug trafficking offences – Dealing with the proceeds of crime ($10,950) – Offences between 8 February 2022 and 28 March 2022 – Dealings between offender and UCO on encrypted messaging platform – Offender was on an ICO during offending for past similar offending – Good prospects of rehabilitation. Legislation Cited: Crime (Sentencing Procedure) Act 1999 Crimes Act 1900 Poisons and Therapeutic Goods Act 1966 Cases Cited: Nil. Texts Cited: Nil. Category: Sentence Parties: Crown – R (NSW) Accused – Jack Ryan Dowling Representation: Counsel: Crown – Ms Hawke, L. Accused – Mr Brasch, L. Solicitors: Crown – Office of the Director of Public Prosecutions (NSW) Accused – Australian Lawyers and Advocates File Number(s): 2022/00090131 Publication restriction: Nil. Judgment 1. HIS HONOUR: Jack Ryan Dowling stands for sentence as a consequence of adhering to pleas of guilty in respect of five substantive charges. He also asks me to take into account, on two Forms 1, 12 further charges. 2. The charges all relate to the fact that the offender was dealing in drugs. The offender is currently 34 years old. 3. He was arrested on 29 March 2022 and has been in custody since that time. At that time he was 32 years old. 4. The first substantive charge is known as Sequence 12. That comprises a number of supplies of the prohibited drug methylamphetamine, commonly known as 'ice'. The formal charge is: 'supply a prohibited drug not less than a commercial quantity of methylamphetamine'. The amount involved in Sequence 12 is 299.3 grams of the drug, and as I understand it, the threshold for a commercial quantity of methylamphetamine is 250 grams. UCO Investigation 1. On Tuesday 8 February 2022, an undercover police operative known as a UCO commenced using the encrypted messaging platform Signal. She made contact with an international number which was being used by the offender in Sydney. A number of messages were sent by the UCO to the offender who agreed to provide her with methylamphetamine for a sum of $1,100. Arrangements were made between the UCO and the offender to meet at a Piazza at Wentworth Point. The offender introduced himself to the UCO as Jack. He handed her a resealable black bag containing a crystalline substance which was subsequently analysed to be 3.48 grams of methylamphetamine with a purity of 80.5%. 2. There was a further supply to the UCO on 15 February 2022. On the preceding day, Monday 14 February 2022 the UCO contacted the offender via Signal and asked for a "three pack", being a reference to three ounces of methylamphetamine. That was actually supplied to the UCO on the following day for $21,000. Again, they met at the Piazza at Wentworth Point and the drugs were supplied to the UCO who handed the offender $21,000 in cash. 3. Again, the drug provided was analysed and was found to have contained 83.3 grams of methylamphetamine. The purity of the drugs varied, one bag contained the drug at 74.0% purity, another drug was 77% pure and a third drug was 70.5% pure. Roughly, the drugs were each an ounce of methylamphetamine. 4. On Tuesday, 22 February 2022, the offender sent a message to the UCO on Signal asking the UCO if she needed more of the prohibited drug. On this occasion the UCO asked the offender if he could supply her with 2 ounces of the drug, however, the offender did not have 2 ounces available but did have a half ounce available, which the UCO decided to accept. The amount she paid for the half ounce was $4,300. The drug supplied was analysed to be 13.96 grams of methylamphetamine with a purity of 77%. 5. The next supply was on 10 March 2022. Again, on 9 March 2022 the offender sent a message to the UCO via Signal. On this occasion it was agreed that the offender would supply to the UCO 3 ounces of the drug. That was supplied to her in the underground car park of the Coles Supermarket at Wentworth Point. The UCO paid the offender $20,100 for the drug. When analysed at the forensic laboratory, the drug was found to be 83 grams methylamphetamine with a purity of 79%. 6. Another supply occurred on 15 March 2022. On the preceding day, the UCO sent a message to the offender asking for 2 ounces of the drug for the following day. The offender quoted a price of $6,500 for each ounce of the drug. The drug was supplied again in the underground car park of the Coles Supermarket at Wentworth Point on 15 March at 2.24pm and the offender was given $13,000 in cash by the UCO. When analysed, the drug was 55.1 grams of methylamphetamine with a purity of 72.5%. 7. On 24 March 2022, there was a further supply of methylamphetamine. On Wednesday, 23 March the UCO sent a message to the offender via Signal asking if she could see the offender on the following day. The UCO asked essentially for 2 ounces of the drug. They agreed to meet at lunchtime on the following day. In the messages that they exchanged, the offender told the UCO that he had a number of drugs available, including restricted substances and offered to give the UCO a sample if she wanted a sample. The UCO asked for ecstasy and ketamine. Ecstasy is of course, the drug 3,4 methylenedioxymethylamphetamine. They again met in the Coles Supermarket car park at 1.19pm on 24 March 2022. On this occasion the UCO gave the offender $14,000 for the methylamphetamine. He also provided the two samples that the UCO had asked for. An analysis of the drugs showed that the methylamphetamine was 47.7 grams, with purities ranging between 70.5% and 80%. There were 0.43 grams of ecstasy with a purity of 76%, and 12.73 grams of ketamine with a purity of 65.5%. The supply of the two samples are known as the Sequence 7 and Sequence 8 offences, and they are on a Form 1 attached to the Sequence 12 offence. 8. On 29 March 2022, an agreement was reached to supply 56 grams of methylamphetamine and 14 grams of ketamine. Those two offences are known as Sequence 9 and Sequence 10, the second and third offences, to which the offender has pleaded guilty. 9. On Monday, 28 March 2022, the UCO sent a message to the offender via Signal again asking whether she could meet up with the offender on the following day. On this occasion the UCO asked for the supply of 2 ounces of methylamphetamine and half an ounce of ketamine. In the exchange of messages on Signal the offender agreed to supply the UCO at 4pm on that day. 10. At 2.24pm on that day the offender was captured on closed circuit television walking out of the apartment building in which he resided. A minute later, police stopped the offender as he entered the underground car park and cautioned him and arrested him. The offender was searched. Items located in his possession were a set of keys, two mobile phones and a $50 note. The offender was taken back to Auburn Police Station where he agreed to being interviewed but when the supplies were put to him, he chose to make no comment. 11. Subsequently, the police executed a search warrant at his residence and a crime scene warrant at his associated storage unit in the same apartment building. They seized a number of drugs in the offender's premises. One seizure was of 12.76 grams of methylamphetamine which is part of the methylamphetamine referred to in the Sequence 12 offence. The police also found 72 grams of ephedrine located in his storage unit. The 72 grams of ephedrine are the offence known as Sequence 33. 12. On the coffee table of the offender's unit, police found currency amounting to $10,950 which is the subject of Sequence 31. 13. Sequences 9, 10 and 33 are all allegations of the supply of a prohibited drug in the trafficable quantity, but less than the commercial quantity. The Sequence 31 is, dealing with the proceeds of crime, that is an offence under s 193B(2) of the Crimes Act 1900. 14. In connection with the Sequence 33 offence, the offender also asks me to take into account the following drugs which were found in his premises, six cardboard squares containing 0.04 grams of lysergide, 5.8 grams of ketamine, 318 tablets of dexamphetamine, 1.63 grams of ecstasy, 1.27 grams of cocaine, a 1,000 millilitre measuring cylinder containing a residue of a pale yellow liquid which was detected to be 3.3 grams of 1,4-butanediol, two tablets of the drug Xanax, the clinical name of which is alprazolam, 10.3 grams of morphine, one capsule of Mylan PB150 which is the drug pregabalin which is a prescribed restricted substance under s 16(1) of the Poisons and Therapeutic Goods Act 1966, and one bottle of diazepam which again is a restricted substance under the Poisons and Therapeutic Goods Act 1966. 15. The police also found other indicia of drug supply, being two sets of digital scales with methylamphetamine detected on the weighing beds of the scales and a number of SIM cards, two Vodafone and two Optus, clearly probably also used in the drug trafficking in which the offender was involved. Maximum Penalties and SNPP 1. The maximum penalty for the Sequence 12 offence is imprisonment for 20 years and or a fine of 3,500 penalty units. Parliament has prescribed a standard non-parole period of ten years which I would be required to impose if the offender pleaded not guilty and was convicted after a trial and the offence was in the mid-range of objective seriousness. 2. The maximum penalty for Sequences 9, 10 and 33 is imprisonment for 15 years and or a fine of 2,000 penalty units, there is no standard non-parole period. The maximum penalty for the offence against the Crimes Act 1900 is 15 years imprisonment. Criminal History 1. The offender has a criminal history which although not extensive does not entitle me to give him any leniency. 2. On 22 February 2014, at the age of 24 he committed the offence of driving with a mid-range PCA. For that he was fined and disqualified from driving for seven months. 3. On 17 January 2015, at the age of 25 he was found to be in possession of a prohibited drug for which he was fined. 4. However, he stood for sentence in this Court sitting at Newcastle for a large number of drug offences. The agreed facts of that offending are before me. The offender was sentenced for deemed supply of a prohibited drug in the commercial quantity, being the drug GBL in the amount of 2,957.8 grams of the drug. 5. There is also the deemed supply of the indictable quantity of methylamphetamine 54.82 grams and the supply of a small quantity less than a gram of the prohibited drug cocaine. 6. There were also 17 further offences on Form 1 all relating to deemed supply, or supply or dealing with property suspected of being the proceeds of crime, or possessing a restricted substance. 7. For those offences, M Williams SC DCJ sitting in Newcastle essentially imposed an intensive correction order for a period of 14 months commencing on 15 October 2021 and expiring on 14 December 2022. The offender committed the crimes for which he stands for sentence before me while bound by that intensive correction order which inter alia required him not to commit any offence. The offender relapsed to drug trafficking whilst bound by the ICO for drug trafficking. Seriousness 1. It is common ground between the parties that the s5 threshold of the Crimes (Sentencing Procedure) Act 1999 has been crossed. There is the usual debate as to whether the crimes are in the mid-range of seriousness or below the mid-range of seriousness and if so, at what level of seriousness. For the supply of a commercial quantity of a prohibited drug, statistics available from the Judicial Commission indicate that there have been 426 cases dealt with by the courts under the current sentencing regime. The median head sentence is between three and a half years and four years, and the median non-parole period is two years imprisonment. The 80% range of head sentences is between two and a half years and six years imprisonment. 2. For supplying an indictable quantity of a drug, the majority of offenders are sentenced to an intensive correction order, but prison sentences have been imposed in 33.5% of cases, that is, at least a third of the offenders are dealt with by being imprisoned, and the median head sentence is imprisonment for two years and the median non-parole period is 18 months. 3. As far as the offence against the Crimes Act 1900 (NSW) is concerned, ICOs have been imposed in 41.8% of cases and prison sentences have been imposed in 50.9% of cases. The median head sentence is three years imprisonment, and the median non-parole period is two years imprisonment. 4. A difference between the drug trafficking that the offender committed which lead to his being sentenced in this Court at Newcastle and his standing for sentence before me is that previously he had used ordinary telephones. On this occasion he obviously learnt from his error and obtained an encrypted telephone service with an international number, however the police can successfully break into that system in the way that was done in the current case. 5. As far as the Sequence 12 offence is concerned, in my view it is close to the mid-range of objective seriousness. As far as Sequences 9 and 10 are concerned, they really were an agreement to supply drugs at the same time so that the sentences for them should be wholly concurrent, however, they were in the grand scheme of things, towards the lower end of the scale. 6. As far as the Sequence 33 matter is concerned, again bearing in mind the amount of drug that the offender had but also bearing in mind the large number of drugs found in his premises which are on the Form 1 attached to Sequence 33 - to me, this is in the middle of the range between the mid-range and the bottom of the range. Subjective Circumstances 1. I turn then to the subjective circumstances of this case. 2. The reason that the offender was dealing in drugs was essentially to support his own drug habit. I have two sources that tell me about that drug habit, the first is a history recorded by Mr Sam Borenstein, a clinical psychologist, who interviewed the offender via AVL on 27 September 2023 and in a sentencing assessment report made on 9 October 2023 by a Community Corrections Officer at Wellington. The offender is currently detained in the Macquarie Correctional Centre. 3. The relevant history recorded by Mr Borenstein is this: "With regards to drug history, Mr Dowling commenced cannabis when aged about 15, and when aged 16, he was introduced to "party pills", which included ecstasy...MDMA. When aged 17, Mr Dowling took hallucinogens, which included LSD and mushrooms. When aged about 19 or 20, Mr Dowling was introduced to amphetamines, and by the age of 21, "ice", and ketamine and GBH, was introduced, and when 25, he began to inject methamphetamine ("ice"). 1. Mr Borenstein took a history that the offender consumed alcohol but not to excess but he smoked one packet of cigarettes per day which of course is another form of an addiction. 2. The offender's drug history according to the SAR is this: "Mr Dowling has an extensive history of substance abuse dating back to when he began smoking cannabis when he was 14 years of age. When he was 16 years old, he began using heroin, ecstasy, and methylamphetamine (ice) which quickly became problematic due [to] the substance being so readily available. At the age of 21 Mr Dowling then incorporated ketamine, N dimethyltryptamine (GMT) and gamma butyrolactone (GBL) which he admits to using daily up until the day he entered custody. Though Mr Dowling claims he had significantly reduced his substance abuse prior to the commission of his offences, he admits to using GBL, approximately 1 gram of ice, 1 gram of ketamine, and half a gram GMT daily. While in custody Mr Dowling continued to use ice where available and affordable in addition to non prescribed buprenorphine." 1. I hasten to add, however, that the offender has now discontinued drug use in custody as he has injections of buprenorphine given to him in custody and that has greatly reduced his desire for drug use, probably lessening his addiction. Those injections are given monthly. The offender described those injections to Mr Borenstein as "incredibly useful". 2. The offender now also attends Narcotics Anonymous since being in custody and there is before me in Exhibit 3 a list of his attendances at Narcotics Anonymous meetings. 3. The offender's personal circumstances are recorded by Mr Borenstein in this fashion: "Mr Dowling was born in the Hornsby Hospital, and he is the eldest of three children, having a younger brother by three years and a younger sister by six years. Mr Dowling's father, aged 63, works in landscaping and currently resides on Norfolk Island. ...Mr Dowling's mother, aged 63, repartnered and the relationship ended after a short period of time, she recently purchased a business in the Southern Highlands. The offender's parents separated when he was about 17 years old." 1. Mr Borenstein's history continues in this fashion: "Mr Dowling described his childhood as "a bit difficult". Mr Dowling says he always struggled with depressed mood and in particular reduced confidence and low self esteem. Mr Dowling reports a recurrent theme of "self-loathing". He felt "alone" among peers and his family. Mr Dowling states, "I didn't let on that anything was wrong". Mr Dowling reports feeling of inadequacy and feeling "stupid". There is no history of trauma, abuse or domestic violence. Mr Dowling's parents argued, and he was not surprised when they eventually separated and divorced. Mr Dowling states he gets on well with both parents and his younger siblings. Mr Dowling attended Bowral Primary School from Kindergarten to Year 6, and Southern Highlands Christian School for Year 7 to Year 9. Midway through Year 9, he attended Chevalier College at Burradoo, where he completed Year 10 and one term of Year 11, at which time he decided to leave school and to commence work. In his high school years Mr Dowling was inattentive, restless and disruptive. He recalls a teacher requesting he put his head down on the desk so as not to disrupt the class. Mr Dowling does not recall consulting a counsellor or being psychologically assessed. Schoolwork was difficult and his preference was sport, 'I was pretty much into everything. I loved physical activity, and I was pretty good at it". After leaving school, Mr Dowling worked in a hotel as a porter for six months, and then landscaping and labouring. Mr Dowling commenced an apprenticeship to become an electrician which he left after two years as he found the theory component at TAFE difficult. Mr Dowling worked in construction, labouring and in metal roofing, and has always had difficulties maintaining employment, and he tends to leave on impulse." 1. It appears that the offender's employment history has probably been gravely affected by his drug addiction. 2. The offender was married at one stage but that relationship fell apart. 3. He is now in a new relationship which commenced in November 2020. That relationship is a positive one. The offender's current partner has been here today and probably still is. In her letter she said this: "Jack's arrest 18 months ago served as a crucial turning point in his life. This experience has significantly altered his perspective on life's priorities and the significance of making better decisions. Consequently Jack's recovery and rehabilitation journey has been nothing but impressive as he has made positive changes alone. I am committed to Jack and our future together. Jack has continuously demonstrated his commitment to me and my two sons. His exceptional compassion, care, and integrity towards others are qualities that set him apart. Jack's inspiring recovery journey is indeed commendable as he has discovered the strength to make these positive changes in his life." 1. That is largely inferred by what the offender himself says in his letter to me which is Exhibit 2. Firstly, it attests to genuine remorse, it attests to victim empathy, in it he says this: "During my 19 months in custody, I have had the opportunity to reflect on my past actions. I have come to realise the gravity of the harm I caused to innocent families, children and the community. The realisation of this wrongdoing is utterly appalling to me and I promise to never repeat such behaviour again.. I am truly ashamed of myself and feel terrible for any damage caused as a result of my actions." 1. I am confident that in gaol he has came across many people who have problems with illicit drugs, the gaols are full of people who have drug problems and he will have noticed the bad effect drug addiction has on many of the other inmates. 2. Later in his letter he said this: "As part of my recovery I have attended Narcotics Anonymous meetings most Sundays for the past nine months here at Macquarie CC and will continue to do so after my release. I have been employed for 16 months now. I was a painter for two weeks at Parklea, worked in the metal shop at Clarence for six months and have worked in light engineering at Macquarie for the past ten months (eight months of that in a promoted position). I am a hard worker and enjoy work. Since arriving at Macquarie CC I have had the privilege to complete a few TAFE qualifications. I have finished Outdoor Power Equipment and Technology Certificate II, following that was Gym Instructor Certificate III and now at the end of completing Construction Certificate II. I am grateful for how the Department of Community Corrections has changed my path in life. I have good routine now, good work ethic, live a healthy lifestyle and feel that my future will be positive and something to look forward to with the support of my loving partner and family." 1. On the assessment of both the offender's letter and that of his girlfriend and bearing in mind an obvious change of lifestyle over recent time in my view the prospects of rehabilitation are good. However, life has its ups and downs and when challenged in the community the offender may have a downer which might tempt him to revert to drug use. There are in my view good reasons for varying the statutory nexus between the head sentence and the non-parole period to ensure that the offender has an extended period of time in which to have the assistance of Community Corrections, primarily, to ensure that he does not stray from the path of staying away from drugs, where Community Corrections can help him stay off drugs by closely monitoring his behaviour in a positive fashion. Provided he stays off drugs, I have formed the view that it is highly likely that he will not be offending again. Seriousness (2) 1. In the finding I made about the objective seriousness of the Sequence 12 offence, I have borne in mind the fact that the UCO handed over to the offender $73,500 for the drugs which he supplied to her. To how many other people he was supplying drugs I do not know, however, the amount of money is important because it points to the gravity of the offending. Also, the purity of the methylamphetamine supplied to the UCO was high, ranging between 70.5% and 80.5%. As has been submitted by the Crown the offender's actions show knowledge of pricing, the quality of the product, how to source further product and that he had access to many varied types of drugs. He appears to have had drugs available, he was also responsible for making arrangements with the UCO as to where to actually supply the drug and receive payment in return. He clearly had an encrypted phone generally only used by those in the criminal milieu and he had a number of SIM cards, which again is an indicium of drug trafficking. His actions were repeated and ongoing, and do show drug dealing to a substantial degree. Sentence 1. I intend to impose an aggregate sentence. 2. For the Sequence 12 offence and taking into account the matters on the Form 1, I start with a head sentence of four years imprisonment. It is common ground that the offender is entitled to a 25% discount because of his plea of guilty at the earliest available opportunity. That reduces that head sentence to three years. As there is a standard non-parole period fixed for this offence, I am required to state the non-parole period I would have imposed if that was the only sentence to be passed. The non-parole period would have been two years and three months. 3. In respect to Sequences 9 and 10, I would have imposed a head sentence of two years. After the discount for the plea of guilty, each becomes one year and six months but as I have earlier said, those sentences would be wholly concurrent. 4. For the Sequence 31 offence, I start with a head sentence of one year and six months, after a 25% discount that becomes one year and one month. 5. For the Sequence 33 offence and what is on the Form 1, I start with a head sentence of two years and six months, applying a 25% discount I come to one year and ten months. 6. The total of all of those indicative head sentences is seven years and five months. 7. I believe the appropriate aggregate sentence to be five years imprisonment. 8. The non-parole period as I said is subject to special circumstances. Applying the statutory nexus, the non-parole period would be three years and nine months. However, as I said, I find special circumstances and I will fix a non-parole period of three years. The remaining question is the commencement date. 9. As I have pointed out, the offender was arrested on 29 March 2022. He has been in custody since. However, his ICO did not expire until 14 December 2022 and the period from 29 March 2022 to 14 December 2022 can be seen as being referrable to the revocation of his ICO. However, the Court has a discretion. I have heard the usual submission of starting the head sentence for the current matter shortly after 29 March 2022 and again the submission that I should not start it until 15 December 2022. In my view there has to be some allowance for the fact that the only reason that the ICO was in fact revoked was because of the current offences, albeit that the offender's response to supervision on the previous ICO was not a very good one. I am sure things will be different this time round. 10. I have decided that the sentence should commence on 1 October 2022. 11. The end result of that is that the offender will be eligible to be released on parole on 30 September 2025. 12. Jack Ryan Dowling, on each of the offences to which you have pleaded guilty you are convicted. I sentence you to imprisonment. 13. I set a non-parole period of three years commencing on 1 October 2022 and expiring on 30 September 2025. 14. I impose a further period of imprisonment of two years to commence upon the expiration of the non-parole period and expiring on 30 September 2027. 15. The total sentence, therefore, is five years comprising of the non-parole period and the balance of the sentence. 16. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. 17. In passing that sentence I have taken into account the matters on the Form 1. 18. By consent, orders in accordance with short minutes of order which I have executed and left with the papers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2024