R v Craig DUNN [2012] NSWDC 297

District Court New South Wales

Medium Neutral Citation: R v Craig DUNN [2012] NSWDC 297 Decision date: 23 November 2012 Before: Cogswell SC DCJ Decision: Convicted of offence of concealing serious indictable offence. Proceedings disposed of without imposing any other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999. Catchwords: CRIMINAL LAW - Sentence - sentencing orders - offender convicted with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 - relevant considerations - offender originally charged with knowingly take part in manufacture of pseudoephedrine - spent 6 months and 5 days in custody bail refused - undesirable that time in custody should appear on record as a sentence - original charge formally not continued with days before proceedings - plea of guilty at earliest opportunity to alternative charge of concealing serious indictable offence. Legislation Cited: Crimes Act 1900, s 316(1). Crimes (Sentencing Procedure) Act 1999, s 10A. Category: Sentence Parties: Regina (Crown) Craig William Dunn (Offender) Representation: Counsel: W Dawe QC (Director of Public Prosecutions) P M Skinner (Offender) File Number(s): DC 2011/175415

REMARKS ON SENTENCE 1Craig Dunn has pleaded guilty to a crime under s 316(1) of the Crimes Act 1900. The indictment says that somebody else committed an offence of possessing pseudoephedrine which is a precursor used in the manufacture of a prohibited drug. It goes on to charge that Mr Dunn, believing that someone had committed that offence and believing that he had information which might be of material assistance in having that person prosecuted, failed to bring that information to the attention of the police without having a reasonable excuse. 2Briefly, the police found in a backyard shed an amateur drug laboratory which contained almost half a kilogram of pseudoephedrine which is a precursor to the manufacture of amphetamine. They were found in the shed of a house in Emu Plains. Pseudoephedrine is itself a prohibited drug. The find was made on 11 February 2011. A few months later, on 27 May, Craig Dunn was arrested. 3Fingerprint evidence had been found connecting him with some of the equipment which was discovered in the shed. Police found his fingerprints on a blender box and a plastic container which itself contained pseudoephedrine and some containers of methylated spirits as well as on a plastic bag which contained tablets from which some of the material is extracted. 4Mr Dunn was arrested and taken into custody and did not get bail until 2 December 2011 so he spent 6 months and 5 days in custody. 5Mr Dunn was originally charged with possessing a precursor, namely pseudoephedrine, intending that that be used in the manufacture of methylamphetamine but the Director of Public Prosecutions, represented in these sentence proceedings by Mr W Dawe QC, has accepted a plea of guilty to the alternative which is the offence I am sentencing him for. 6Mr Dunn has a criminal record. It mainly involves public nuisance offences and some offences regarding restricted substances and one driving offence. It also involves a couple of offences in Queensland which I do not take into account because no conviction was recorded in respect of those. 7Mr P M Skinner who appears for Mr Dunn points out that his client has served 6 months and 5 days in custody whereas the more serious charge which was originally laid is no longer being proceeded with. He points out that his client pleaded guilty to the charge I am sentencing him for as soon as it became available as an option. 8Mr Skinner has also helpfully provided me with some statistics kept by the Judicial Commission of New South Wales for offences of this kind and they indicate that only about 2 per cent - from a relatively small database but nevertheless 42 - received prison sentences. 9An easy way of dealing with this matter would be to sentence Mr Dunn to 6 months and 5 days imprisonment and indicate that that sentence has been served. However it seems to me that that penalty would be too severe given the statistics which Mr Skinner has produced. A sentencer sentencing Mr Dunn for any other offences - which hopefully he will not commit in the future - would see that he has received a custodial sentence. I do not think that would be fair. In the circumstances Mr Skinner argued that I should dismiss this charge under s 10A of the Crimes (Sentencing Procedure) Act 1999. I propose to accept that submission for two reasons. One is that his client pleaded guilty at the earliest available opportunity. The second is that he has effectively served a prison sentence for this crime. But I do not think that that time in custody should appear on his record as a prison sentence. 10For those reasons I convict you of the offence to which you have pleaded guilty and I dispose of these proceedings without imposing any other penalty and that order is made under s 10A(1) of the Crimes (Sentencing Procedure) Act. Anything else I should do Mr Skinner or Mr Dawe? SKINNER: No your Honour not from my side. DAWE: Only have it recorded somewhere on the papers your Honour that the charge - the original charge of knowingly take part in the manufacture of pseudoephedrine - has received a no further proceedings marking. HIS HONOUR: Yes when did that happen? DAWE: That happened on Tuesday morning. HIS HONOUR: And the indictment was changed? DAWE: Yes the indictment was changed. HIS HONOUR: Okay I will add something to my remarks. 11In addition Mr Dunn was originally charged with knowingly taking part in the manufacture of pseudoephedrine. That charge was formally not continued with last Tuesday, 20 November 2012. That is a very serious offence and no doubt explained why Mr Dunn may have been refused bail for the period that he was. That is another matter which I have taken into account in making the order that I made.