District Court New South Wales Medium Neutral Citation: R v Dunshea [2018] NSWDC 469 Hearing dates: 29 November 2018 Date of orders: 29 November 2018 Decision date: 29 November 2018 Jurisdiction: Criminal Before: Neilson DCJ Decision: I sentence you to imprisonment for a term of one year and 11 months commencing today, 29 November 2018, to be served by way of intensive correction in the community Catchwords: CRIME – SENTENCE – Supply (deemed) 2.1967 kgs of cannabis leaf - Indicia of supply also discovered on execution of search warrant - Offender admitted suppling cannabis to his friends - 36 year old male, married, dependent wife and child. Prior good character - User of cannabis since age 14 - Abstinent since arrest on 10 March 2016 - ICO imposed for a term of 1 year 11 months Legislation Cited: Drug Misuse and Trafficking Act 1985 Cases Cited: R v Nguyen; R v Cannistra [2006] NSWCCA 389 Category: Sentence Parties: Regina (Crown) Joshua Anthony Eric Dunshea (Offender) Representation: Counsel: Ms Reddy (Crown) Mr M Johnson SC (Offender) Solicitors: Solicitors for the DPP (Crown) Sayad & Co Legal (Offender) File Number(s): 2016/00077196 Publication restriction: Nil sentence 1. HIS HONOUR: Joshua Anthony Eric Dunshea stands for sentence as a consequence of having pleaded guilty to a charge that on 10 March 2016 at Elizabeth Bay in this State he did supply a prohibited drug, namely, cannabis leaf. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of ten years imprisonment and/or a fine of 2,000 penalty units. The offender asks me to take into account on a Form 1 the possession of 1.91 grams of the drug commonly known as ecstasy. The trafficable quantity of ecstasy is 0.75 grams. The indictable quantity of ecstasy is 1.25 grams. The amount of ecstasy, which was found in the possession of the offender at the time of the execution of a police search warrant, was accordingly just over the indictable quantity. The quantity 1.91 grams ought be contrasted with the commercial quantity which is 125 grams. That offence in itself carries a maximum penalty of imprisonment for two years and/or a fine of 20 penalty units. 2. On 9 March 2016 the police were granted a search warrant for the offender's residence at Elizabeth Bay. On 10 March 2016, the police arrived outside the offender's residence at 11.20am. The police stopped the offender as he was attempting to ride his scooter onto the driveway of the property. The offender was living at the property at Elizabeth Bay with his wife whom he was soon to marry. 3. Shortly after the commencement of the search the police located two clear, resealable bags on the dining room table, one containing 0.4 grams of cannabis and the other containing 8.2 grams of cannabis. Upon finding those two bags the police told the offender that he was under arrest for possessing a prohibited drug. He was cautioned, searched and then taken to Kings Cross Police Station. Prior to being taken to the police station, the offender admitted to police that if anything further of an illicit nature were found in his residence, that that was his responsibility rather than that of his soon to be wife. 4. Police found two resealable bags containing cannabis in a cupboard above the refrigerator in the kitchen. Alongside those two bags was a set of electronic scales. The police noted that there was a strong odour, typical of cannabis, emanating from the scales. A further resealable bag containing cannabis and some loose cannabis leaf material were also found in that cupboard. There was also found the 1.9 grams of ecstasy. The ecstasy had a purity of 77%. In the bedroom of the apartment police found, secreted in a wardrobe, a printer box which had been resealed and which contained five large bags containing cannabis, the respective weight of cannabis in each of those bags was 281.2 grams, 448 grams, 449 grams, 449 grams and 448 grams. Each of those bags was sealed and those sealed bags had been placed inside a resealable bag. The police found a heat sealing machine in the kitchen of the apartment. The police also found a glass container which contained cannabis. The total weight of the drug found by the police during the execution of the search warrant was 2.1967 kilograms of cannabis leaf. 5. In addition to the scales and the heat sealing machine, police found seven mobile phones, including an iPhone which was in the possession of the offender at the time it was intercepted by the police, and a Blackberry phone which was found alongside the cannabis in the printer box. The scales, which appear to have been used for weighing cannabis, and the heat sealing machine and the large number of mobile phones, including a Blackberry, are typical indicia of the supply of prohibited drugs, in particular of cannabis. 6. The offender has sworn an affidavit, which is exhibit 3 at this sentencing hearing. He has not been required for cross-examination. In that affidavit the offender said this: "26. I have used cannabis on and off ever since I was 14 years of age. There are stages where I would consume cannabis very heavily, to the point where I could barely function. 27. At the time of my arrest, I had purchased a significant amount of cannabis for a reduced price and was smoking a large quantity each day. I would provide cannabis to my friends to cover my own costs of consumption. At the time I was also recreationally using MDMA [ecstasy]." 1. The offender admitted that he was supplying cannabis, albeit to friends and acquaintances, but he was doing so to obtain payment so that he could buy the drug in bulk and defray the cost of his drug habit. Again, the admission is consistent with the paraphernalia which the police found when they executed the search warrant and the admission of actually supplying others is consistent with the fact that the police executed the search warrant at the offender's premises in the first place. 2. The Crown has conceded that the conduct of the offender falls comfortably below the mid-range of objective seriousness for an offence of supplying cannabis leaf. In R v Nguyen; R v Cannistra [2006] NSWCCA 389 it was observed thus: "Although in former years some people accepted marijuana as a 'recreational drug' and believed that it did not have the addictive qualities and potential to damage the health of users which can occur with 'hard drugs', this assumption has more recently been called into serious question. It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons." 1. There is medical evidence that supports that proposition. The experience of the Courts is that marijuana is an introductory drug. Young people, often teenagers, are introduced to marijuana and are subsequently coaxed by a drug dealer into trying other drugs, which eventually leads to the consumption of amphetamines and can go on to lead to the consumption of drugs such as cocaine and heroin. Anyone who sits in the courts in Western Sydney knows that that is a very common path that occurs for many people standing for sentence for offences such as breaking, entering and stealing and armed robbery, offences committed to obtain the wherewithal to continue to supply a drug habit. The behaviour of this offender in supplying drugs had the potential to cause harm to many other people who may have consumed the drug. 2. Until the beginning of last year, it would have been incumbent upon me by reason of binding authority to sentence the offender to a full time custodial sentence. Subsequent decisions of the Court of Criminal Appeal have moderated the strictness of the principle that those who are actively involved in drug trafficking should be sentenced to fulltime imprisonment. Fortunately, the offender now realises the effect of his drug habit and his buying in bulk and on selling prohibited drugs. In a report of 27 November 2018 Mr Tim Watson-Munro, a consultant psychologist observed this of the offender: "He is now drug free, thinking more clearly and motivated for the future. Of equal significance, he has maintained a strong sense of regret regarding his actions, which extends beyond self-interest to concerns for his wife and child. He also has insight [into] the impact which the use and sale of illicit drugs has upon the community." 1. Both Mr Watson-Munro and the sentencing assessment report indicate to me that there is only a low to medium risk of the offender's reoffending. The offender would be assisted in not relapsing to drug use by supervision by Community Corrections and by undertaking any rehabilitation that is offered to him. Recently the offender has commenced psychological counselling to assist him in maintaining his resolve to stay away from illicit drugs. I accept that he has not used illicit drugs since the time of his arrest on 10 March 2016. He was admitted to bail on 11 March 2016 so he spent one night in custody in this State. 2. The offender started using, as his affidavit attests cannabis at the age of about 14, when he was a schoolboy. That unfortunately is not uncommon. What is uncommon is that the offender persisted with using that drug until he was 36 years old. The offender was diagnosed with Attention Deficit Disorder at about the age of 14. He was placed on dexamphetamine. He commenced his high schooling at Pennant Hills High School, but because of his behaviour, which led to the diagnosis of ADD, he moved school to Asquith Boys High School where he completed the school certificate. He then left school to take up an apprenticeship as an electrician, but he discontinued that apprenticeship after two years. It would appear that at the same time roughly as he started taking medication for ADD the offender commenced using marijuana. The opinion of Mr Watson-Munro suggests that the offender may have continued to use cannabis to make up for the medication for ADD which was stopped when he was about 16 years old. There was a suggestion at that age that there had been a misdiagnosis. 3. Mr Watson-Munro postulates that the offender has, since leaving school, suffered from some level of anxiety and depression which in itself could be related to his drug taking, that is to the consumption of marijuana. Since becoming drug free the offender's head has become clearer and it is clear that he now perceives, or realises, that he is able to function much more freely without the use of marijuana. Mr Watson-Munro diagnoses at the moment a depressive disorder which appears to be improving, but as Mr Watson-Munro freely admitted in his report of 27 November 2018, the anxiety and depression were primarily related to the offender's appreciation of the gravity of his offending and attendant to his concerns about the outcome of this sentencing hearing. In blunt terms, anyone standing for sentence, when he may go to gaol fulltime, could be expected to suffer from anxiety or depression. If one did not suffer from anxiety or depression when facing a gaol sentence, one would be, in my view, abnormal. 4. An interesting thing to me is that in his affidavit Mr Dunshea said that spending time in the police cell between 10 and 11 March 2016 was something that he "never wished to do again". However, he did spent five days in gaol in Victoria at the age of 27. He tells me that that was a frightening experience, that ought to have told him that he should stay away from criminal activity and give up the marijuana but it did not, and that criminal activity led to another one night in gaol and potentially could lead to another long gaol sentence. 5. At the time of the offender's arrest he was planning to travel to Korea to be married. The offender planned to leave Sydney on 14 March 2016 to travel to Korea to be married to his wife in her native land. However, because of his arrest, he was unable to undertake that travel. Eventually he obtained his passport and he travelled to Korea and was married on 19 May 2016. The offender and his wife have a daughter Ava who was born on 9 May 2017. The offender's wife attests also to the offender's giving up smoking marijuana after his arrest and being a non-user of drugs, since that time. 6. The offence for which the offender was incarcerated in Victoria was his only other criminal offence. According to the Victorian records, he was charged with intentionally damaging property and possessing an article for criminal damage, this apparently was an exercise in graffiti. For that offence the offender appeared before the Heidelberg Magistrate's Court on 13 June 2007 and was sentenced to 30 days imprisonment but the sentence was wholly suspended. However the Magistrate's Court noted that the offender had spent five days in custody prior to appearing before the Magistrate's Court and that those five days were to be reckoned as part of the aggregate 30 day period of imprisonment. The graffiti offence in Victoria is of no moment and does not disentitle the offender to leniency, which ought otherwise attach to his being a man of prior good character. 7. It is conceded by the offender that he ought be sentenced to a custodial sentence. However it is clear, since the recent decisions of the Court of Criminal Appeal to which I have referred earlier, that I can consider an intensive corrections order and the Crown has conceded in its written submissions that it would not necessarily be an error on the Court's part to consider an alternative to a full time custodial sentence, albeit that it ought be a form of custodial sentence. In these circumstances, provided that the period of imprisonment is two years or less, I intend to impose an intensive corrections order. 8. The offender originally pleaded not guilty. He was committed for trial by the Downing Centre Local Court on 16 August 2016. He was first listed to stand trial on 15 May 2017, but that trial date was vacated because of the imminent birth of his daughter. On 17 July 2017 the offender made a plea offer to the Crown. Eventually that was accepted by the Crown and the offender pleaded guilty to an indictment presented on 6 November 2017 which was the day the offender's matter had been listed for trial. The Crown in its written submissions has conceded that the offender is entitled to the discount of about 15% or slightly above that. For my part I would have only allowed a discount of 10%, but I am happy to accept the Crown's 15%. 9. I have come to the view, on the evidence before me, that the appropriate commencement for this sentencing exercise, is a period of two years and three months' imprisonment. If I discount that by 15% I come to 23 months, or one year and 11 months. That allows me to impose an intensive corrections order. It has been accepted by the offender, through his counsel, that appropriate additional condition the Court consider are community service, abstention from drugs and a treatment condition. In my view those are appropriate concessions by learned counsel for the offender. It appears to me that considering the maximum penalty for the offence in question, ten years imprisonment, that I should impose the maximum number of hours of community service, namely 750. 10. You don't require any further reasons Madam Crown? 11. REDDY: No your Honour. 12. HIS HONOUR: Joshua Anthony Eric Dunshea, on the charge that on 10 March 2016 at Elizabeth Bay in this State you did supply a prohibited drug namely cannabis leaf, you are convicted. I sentence you to imprisonment for a term of one year and 11 months commencing today, 29 November 2018, to be served by way of intensive correction in the community. The terms of the order are: 1. You must not commit any offence; 2. You must submit to supervision by a Community Corrections officer; 3. You must complete community service work for 750 hours; 4. You must participate in any rehabilitation or treatment program directed by Community Corrections. 5. You are to abstain from all illicit drugs. 6. You are to report to the community Corrections Office at the Sydney City Office within seven days. 1. In passing that sentence I have taken into account the matter on the Form 1. The sequence 5 matter, possession of prohibited drugs is, by consent, withdrawn and dismissed. I order that the drugs be destroyed. 2. Do you want any order about the paraphernalia? 3. REDDY: No your Honour. ********** 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: 27 February 2019