Solicitors:
Mr S Jaeger
Mr J Robertson
File Number(s): 2018/247109
[2]
Judgment
Connor Dando appears for sentence in respect of a single offence, being supplying prohibited drugs on an ongoing basis, contrary to s 25A(1) of the Drugs Misuse and Trafficking Act 1985. The maximum penalty provided is 20 years' imprisonment and/or a fine of 3,500 penalty units. There is no relevant standard non-parole period.
When being sentenced in respect of that offence, the offender asks the Court to take into account a further seven offences contained on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, those are five offences committed on 10 August 2018, being: possess prohibited drugs, 0.49 grams of Alprazolam; possess prohibited drug, being 2 grams of cocaine; possess prohibited drug, being 14.1 grams of cannabis; possess/attempt to, prescribed restricted substance, 0.54 grams of Diclazepam; and possess/attempt to, prescribed restricted substance, 20 tablets of Modafinal, which was 6.2 grams.
In relation to each of those five offences, they were, as will be referred to, substances located when he attended at a post office to collect them. As to the further two offences: they are an offence of supply of prohibited drug, being more than indictable but less than a commercial quantity, being 6.97 grams of 3,4-methylenedioxymethylamphetamine, commonly referred to as MDMA; and a further offence of supply prohibited drug, being more than a small but less than indictable quantity, being 3.5 grams of cocaine.
The facts are agreed and in view of the time I will attempt to shorten it to some extent. Between 25 July and 8 August 2018, the offender supplied Xanax, LSD, 3,4-methylenedioxymethylamphetamine (MDMA), cocaine and 3,4-methylenedioxyamphetamine (MDA) on five occasions for financial benefit in the total of $2900.
The individual occasions were on 25 July, 0.56 grams of MDA and 0.03 grams of LSD, for a total amount of $100. On 26 July, although the facts refer to only one supply, there were in fact two separate supplies, the first being cocaine, 0.97 grams, and 1.04 grams of MDMA. Later that same day he supplied a further 0.95 grams of cocaine of a substantially higher purity to that which had been supplied earlier in the day. The third date of supply was 31 July 2018, of cocaine, being 2.01 grams, two lots with differing purities, the two lots being each 1.03 grams and 0.98 grams.
As well, on that same day he supplied 1.95 grams of MDMA and 0.46 grams of amphetamine. On the following day, 1 August 2018, he supplied 0.93 grams of MDMA and 0.47 grams of Alprazolam. He was paid $200 for the substance on that occasion and a further $200 was paid in effect for drugs previously supplied. In relation to 26 July 2018, he was paid a total of $1050, and on 31 July 2018 a further $1000. A week later on 8 August 2018, he supplied cocaine in the quantity of 0.96 grams and Lycergide in the quantity of 0.09 grams, and was paid for those quantities $350, the total amount being $2950 received from what was an undercover operative.
By way of trying to summarise the facts, the undercover operative purchaser would contact the offender by mobile phone, using the encrypted application Wickr Me, and a meeting would be arranged. An order according to what was available would be made and an arrangement to meet in the Redfern area where the transaction would take place. In respect of 25 July 2018, having completed the exchange, the offender continued to tell the operative about the quality of the tabs and offered a bulk buy; that is, a price reduction according to quantity. If he bought a tab at a time, he would provide them at $20 each. On that same day he sent the message with a drug price list offering the supply of prescription medications, Xanax and Valium and the prohibited drugs, LSD, MDMA, cocaine, in two different qualities and pressed pills of MDA.
Each of the supplies was otherwise of a relatively similar nature, which is set out in the full version of the agreed facts, which I will not read onto the record.
On 1 August 2018, he also spoke with the undercover operative about the quality of his drugs and his drug use, and showed the operative a photograph of cocaine that he said he got through the mail, and how he acquired it using bitcoin.
On 10 August 2018, police attended the post office on Cleveland Street, Redfern, and observed the offender remove a number of packages from a parcel storage locker, which included three express post bags and one Australia Post tough bag. He was arrested as he exited, and the material found on him constitutes the first five charges of the Form 1, as previously referred to. In relation to the final two counts on the Form 1, those were substances actually located on 20 August 2018, when Senior Constable Oastler attended at the Australia Post office in relation to a number of parcels that were being held for the offender, and within those parcels were located two resealable bags of MDMA and one resealable bag of cocaine.
The offender was clearly, over the period from 25 July 2018 to 8 August 2018, engaging in the business of supplying prohibited and/or restricted drugs, and a variety of them. He was available by way of encrypted mobile phone messages to supply drugs on short notice and did so, and he also indicated his ability to obtain various drugs and supply them at discounted prices for larger orders - conduct being engaged in by him to encourage the purchase of further prohibited drugs in more significant quantities by the undercover operative.
The total amount of individual drugs supplied during the ongoing supply was 5.86 grams of cocaine, 0.15 grams of LSD, or Lycergide, 1.94 grams of MDMA, 0.56 grams of MDA and 0.47 grams of Alprazolam. In addition, the total of the drugs found from his accessing the mail box, or from subsequent delivery to the mail box, was a total 3.5 grams of cocaine, 6.97 grams of MDMA, 0.31 grams of Diclazepam, 6.2 grams of Modafinal, 14.1 grams of cannabis leaf.
As to the offence of ongoing supply, I accept that, although there are in fact six separate supplies over a two-week period, and of what might be reasonably regarded as relatively small quantities, that the offending conduct in this particular matter can be reasonably referred to as being between the low range and the mid-range, perhaps slightly more towards the mid-range. I accept that the offender was engaging in the conduct in order to support his own use of prohibited drugs and also his lifestyle, he then being, as I understand it, unemployed.
It is significant to note in relation to this particular section of the Drugs Misuse and Trafficking Act that it was in particular introduced to deal with the frequent problem in the past of individuals that were seriously or significantly engaged in the distribution of prohibited drugs in areas such as Kings Cross and Cabramatta by way of street dealing, those persons only ever having very small quantities on them at any given time. They would sell that quantity, take the money, return the money to some holding place or other person, and obtain a refill to be then sold to the next customer.
The advent of the mobile phone since those days back in the '80s and '90s has been replaced now by those who supply by way of mobile phone arrangements, as here. They do not stand on street corners or in places where they might be expected to be found by those who use prohibited drugs, but respond to their clientele who know their mobile phone number and message them or speak to them via the mobile phone, and an arrangement is then made for the drug supply. Depending on the circumstances of the supplier, they either meet in the street or frequently a delivery is arranged by way of motor vehicle to a convenient location.
It has become very difficult for the authorities to cope with the modern form of street dealing, hence the use of undercover operatives being either police officers or drug users who are seeking to get some benefit on their own sentence by assisting. The reason for the introduction of the charge of ongoing supply was that the penalties that could be imposed on a single person for a single charge were much the same as being slapped over the wrist with a wet tram ticket, so the legislation was introduced to ensure that those who engaged in street dealing, or dealing in prohibited drugs on an ongoing basis, would find themselves liable to a much more significant penalty, providing the provision as to the time period and the number of transactions was met. The offending in this case is really, in effect, a classic instance of such offending.
As to the offender's subjective circumstances, he was 22 years of age at the time. He is now 23 years of age. He has not given evidence on sentence, but before the Court is a report from Norm Feeney, psychologist, dated 20 June 2019; a letter from Sandra Landsdowne, being the business manager of the Beaconsfield State School, Mackay, dated 1 May 2019, relating to his employment in February to March 2019 as a casual cleaner. She attests to having known him and his family for a number of years and to holding him in good regard as an employee of the Beaconsfield State School. However, there is no reference in her letter to any knowledge whatsoever of his criminal offending, whether it be in New South Wales or Queensland.
In addition there is a letter from Leonie Tramacchi, dated 3 May 2019. She is an accountant, and has been for the past 22 years, and she has known the offender since birth, his mother being a close friend of Ms Tramacchi. The families have apparently been close for years, often travelling away on school holidays together. Her knowledge of the offender is more in relation to his early life but includes in part his adulthood. She speaks highly of him and holds him in good regard, and is aware of his use of prohibited drugs. She attests that he is now deeply regretting those choices and the position that that has put himself and his family in. She also refers to being aware of his having completed a three month rehabilitation course in Townsville before returning to reside with his parents and obtaining fulltime employment with something called "Foodquarter".
There is further a letter from the offender's father to the Court, which speaks about the family's shock on finding out in 2015 that he had been supplying drugs, that shock relating to his commission of offences in Queensland. As a result the family moved for a period of time to Queensland, in part to assist the offender to move away from the potential risk of continuing to use drugs in Queensland and, in particular, Mackay.
He speaks of the offender having obtained work in various areas such as hospitality, furniture sales, telemarketing, insurance, and as a delivery driver. The offender left his family and came to Sydney, where he held a job for a period of time delivering flowers for a florist, but lost the job when he was charged with these offences, according to his father's letter. His father says,
"Connor's stubborn independence is one of his frustrating traits. He also struggles to take advice from those who love him and have his best interests and welfare at heart. Connor is my son, I love him dearly and I intend to support him whatever the outcome. I have been heartened to see him gaining confidence again and maintaining full-time employment in recent months."
I am very sympathetic to the parents of children, no matter what their age, who become regular drug users. It has significant effects on their personality and the way they react to others. It causes a great deal of stress to family members who only wish the best for the user, but find it almost impossible in most circumstances to convince the user to change their ways, perhaps until such time as they are apprehended for some serious offence and finally it dawns on them that their conduct is inappropriate, that they realise that it has not only impacted on them and their family, but the community.
Since being arrested in respect of this matter on 10 August 2018 the plea of guilty was entered on 6 December 2018, which is a plea certainly at the earliest possible time. As a result, I accept the submission that he is entitled to a discount of 25 per cent for the utility of the plea alone. Such a discount has been provided.
He has spent a period of time after his arrest, until 13 September 2018, in custody only as a result of having been charged with these offences; that is, a period of 35 days. He subsequently received bail on the basis that he would attend a residential drug and alcohol treatment service called "Ozcare" in Kelso, Queensland, which presumably is somewhere near Townsville. That was a residential unit. He was admitted on 14 September 2016 and he completed the three month treatment program and received a certificate of completion, which is also before me, dated 7 December 2018. There is in addition a covering letter 3 December 2018 from "Ozcare".
I accept that he successfully completed that program and note that in the intervening period a number of random urine analyses have been carried out, random in the sense that I understand that the timing of them has been dictated by the offender's parents. They demonstrate a continuing course from 18 January 2019 through to 12 June 2019, on a reasonably regular but randomised basis of urine testing that there have been no prohibited drugs detected. In those circumstances, I have no difficulty in accepting that the offender has successfully completed the drug treatment program and has been able to abstain from using prohibited drugs in the intervening period.
That is a matter of some substance when one takes into account the content of the "Brief Confidential Psychological Report" of Mr Feeney which refers to him as having been born in Mackay, not achieving well at school because he was the "class clown" and being expelled in Grade 11. He apparently started smoking cannabis from the age of 16 and thereafter using party drugs such as MDMA, LSD and cocaine from about the age of 18. That is evident from the content of his Queensland criminal history and from the Pre-Sentence Report obtained from the Queensland authorities. I note however that he informed the psychologist as something of a point that he saw in his favour that he refused to sell highly addictive drugs such as heroin and methamphetamine. I do not see that as a matter for which he is entitled to some sort of brownie point. He was selling a variety of prohibited drugs which are illegal because they all have adverse effects on those who use them, to greater or lesser degrees.
Mr Feeney conducted two 1-hour sessions for the purposes of assessing the offender and obtaining relevant information. He tested him using the Depression, Anxiety and Stress Scale. As to depression, he scored moderately elevated; as for anxiety, extremely severely elevated; and as to distress, mildly elevated. I note of course that it is entirely reasonable to expect that any offender awaiting sentence in relation to an offence such as this, with a raft of Form 1 offences also to be taken into account, can be expected to be depressed, anxious and stressed as a result of the realisation of the seriousness of the situation they have placed themselves in.
According to Mr Feeney, the offender has been experiencing a severe anxiety disorder for an extended period of time, that he commenced taking Alprazolam, or Xanax, because it reduced his feelings of anxiety, and he claims to have become addicted after developing a tolerance from taking many more times than the recommended dosage. Mr Feeney opines, "I believe Connor has made some serious errors of judgment under the influence of Alprazolam and other drugs."
The offender committed these offences over a two-week period. It is clear from the subsequent receipt of material in the mail box that he was fully intending to continue his conduct. There is, in my view, no evidence before the Court that he was somehow making poor decisions because of his use of Alprazolam, other than the assertion by the offender. In my view, it is clear that he was committing the offences for financial reward as what is frequently referred to as a "user-dealer"; that is, the funds supported his own use, as well as his personal circumstances. There is, however, no evidence before the Court that he was leading some lavish lifestyle; that is, there were no Rolex watches, expensive overseas holidays or Mercedes-Benzes parked out the front.
Mr Feeney opined that:
"I believe he deeply regrets his actions regarding the abuse, then sale, of the substances. He has stated that he gained insight and skills regarding avoiding peer pressure and coping with anxiety. He also described skills associated with managing the temptations, cravings and urges associated with drug abuse and addiction. Connor has also said the time in Silverwater and Long Bay provided him with greater insight into the consequences of his law breaking."
I accept that as a result of the three-month residential program and the 35 days that he has spent in custody at Silverwater and Long Bay that the significance of his offending has given him insight into the consequences of his law breaking. It is however very unfortunate that it occurs in circumstances where this is not his first offending. In New South Wales, he was dealt with at the Hornsby Local Court on 28 February 2018 for an offence committed on 8 February 2018 of possess prohibited drug. He received a fine of $200. Other than these matters, that is the only other offending in New South Wales, but of course it is evident from the material before the Court that it is only in recent years that he has in fact been resident in New South Wales rather than in Queensland.
Before the Court is also his Queensland history of offending. I note that it commenced with offences in April 2014 of possessing dangerous drugs and possessing utensils or pipes that had been used, in relation to which no conviction was recorded and he was simply placed on a four-month good behaviour bond at a recognizance of $450 with an order for drug diversion. There are a number of other offences which are most conveniently referred to in the pre-sentence report from Rowena Josefa, and I will simply adopt what she refers to under the heading of "Correctional History":
"QCS IOMS system indicates that Mr Dando has had (3) three correctional episodes with the department.
On 18 September 2014, Mr Dando was sentenced to a 28-hour Fine Option Order for the offences of 1 x Possession property suspected of having been used in connection with the commission of a drug offence. Mr Dando attended his community service projects sporadically and was issued numerous warnings, including a Notice to Stop Contravening the Order. Mr Dando responded to this notice and completed his hours on 18 March 2015.
Mr Dando was subject to a 50-hour Community Service Order on 15 May 2015 for the offence of 1 x wilful damage of police property. Mr Dando failed to attend community service on (3) three occasions for which he received a verbal warning. He completed his 50 hours and was considered suitable for further Community Service Orders. On 2 December 2015, Mr Dando was subject to an 18-month probation order for the offences of 6 x Supplying dangerous drugs, 1 x Possessing dangerous drugs, 1 x Possessing utensils or pipes etc. that had been used, and 1 x Possessing anything used in the commission of crime, defined in part 2.
Mr Dando was supervised for a very short period of time prior to applying to have his order revoked to allow him to move to New Zealand. During this short period of time, Mr Dando was charged with further offences of 1 x Possessing dangerous drugs and 1 x Offence of driving etc. while relevant drug is present in blood or saliva, holder of learner, probationary or provisional licence. Mr Dando was convicted of these offences and he received a formal censure notice as contravention action. Mr Dando applied to the court to have his Probation Order revoked, and the matter was heard in the Mackay Magistrates Court on 25 February 2016. The application to revoke was granted and he was resentenced for the original offences."
It makes it clear that the offender has had ongoing drug problems for a significant period of time, but it also makes clear that he has failed to take on board the significance of his conduct and to adjust his conduct and cease using drugs, even in circumstances where penalties have been imposed. The court has brought home the seriousness of his offending to him.
It is frequently said that individuals do not necessarily mature at the age of 18 when they are first able to vote, and in particular in relation to young males, that frequently maturity does not come before their early 20s. I am fully aware of the statements that have been made in that regard in the past in such matters as BP v The Queen 2010 NSWCCA 159, and Bullock v the Queen (2016) NSWCCA 131 and, in particular, the comments of Hodgson JA, at paras 4, 5 and 6. In my view, the offender in this matter was conducting himself more as an adult than a juvenile, but I note that he was however only 22 years of age.
The offender had established a system of operation which included obtaining prohibited drugs via encoded messages, a mobile phone using the application 'Wickr Me'. He was able to provide a price list, and he supplied a variety of different drugs, as well as endeavouring to encourage the undercover operative to increase his orders to obtain a discount. In my view, that indicates that the offender was in fact operating as an adult, although I still allow that he was relatively young.
The offender has written a letter to the Court, which repeats some of the material that is otherwise contained in letters before the Court, particularly from his father, and is otherwise contained in the psychological report. I will simply summarise that material by saying that I accept that the offender is now genuinely remorseful and contrite for his conduct. I accept that he is supported by his family and that he will have their ongoing support, despite the breaches that he has made of their trust in the past and the serious stress that he must know that he has caused them.
I accept that his participation in the program and the fact that the urine analysis reports have been negative for prohibited substances indicates that he has successfully managed to deal with his addiction, at least while subject to the Damocles sword of a sentence hanging over him. Whether that will continue is of course another question, but having managed to cease using drugs, he is off to a good start. Should he return to using prohibited drugs at any time in the future, it is obvious that he will rapidly deteriorate in relation to his use and no doubt be tempted to again indulge in selling drugs in order to feed his own addictions.
Nonetheless, I am prepared to find, as I have indicated, that he is genuinely remorseful and contrite. I accept in the circumstances that there is at least a reasonable prospect that he will not reoffend, and a good prospect of successful rehabilitation and in the future being able to make a positive contribution to the community.
Nonetheless, the offence is serious and any sentence must take into account the Form 1 offences. I do not accept the submission made by Ms Keaney on his behalf that the offending in this matter is at what might be called the borderline of the s 5 threshold. I accept the Crown's submission that s 5 threshold has been passed, and that there is no alternative other than a sentence of imprisonment. Although I have given serious consideration to other avenues, in my view his failure to take account of his offending in Queensland before coming to New South Wales and reoffending is a very significant factor, and one reason as to why a sentence of imprisonment on this occasion must be imposed to bring home to the offender the seriousness of his conduct, which he has apparently not appreciated in the past. As has been referred to, both specific and general deterrence are important factors for the Court to take into account in relation to matters such as this, as well as the potential protection of the community. Yes, Mr Dando, would you please stand.
You are convicted in relation to the offence of supplying prohibited drugs on an ongoing basis, contrary to s 25A(1) of the Drugs Misuse and Trafficking Act 1985. The sentence is one which I have, after taking all other matters into account, discounted by 25%.
I have found special circumstances in relation to the non-parole period, justifying the variation from the statutory relationship between the non-parole period and the balance of the term, to a significant degree, particularly in light of your age, the fact that this is your first time in custody, the fact that you have made a substantial effort to rehabilitate yourself and cease using drugs. Accordingly, the sentence of imprisonment will be one of two years and four months. I have reduced the non-parole period well below the usual 75 to 25% relationship to provide for a much more significant period of parole to assist you in continuing your rehabilitation and reintegrating into the community in the absence of reoffending.
You are sentenced to a non-parole period of one year, which to take into account of the quasi custody and the period actually in custody (previously referred to of 80 days). It commences on 2 April 2019, and you will be eligible for parole on or about 1 April 2020. The balance of term is one year and four months, and the total term of two years and four months will expire on 1 august 2021. Had I imposed the statutory relationship, the non-parole period would have been one year and nine months. So I have reduced the non-parole period by five months to provide for a 16-month period of parole to assist you.
[3]
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Decision last updated: 02 March 2020