R v Dann

District Court of NSW|2024-12-18|Before: Gleeson CJ, Callinan JJ

JUDGMENT

Jemma Dann (the offender) appears for sentence after pleading guilty in the Local Court to the following offences: Sequence Offence Maximum Penalty/ SNPP H94680586 4 Knowingly take part in the supply of commercial quantity of prohibited drug (279.3g of cocaine) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 20 years imprisonment SNPP 10 years 5 Knowingly take part in the supply of commercial quantity of prohibited drug (279.9g of cocaine) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 20 years imprisonment SNPP 10 years 10 Knowingly take part in the supply of a large commercial quantity of prohibited drug (2361.5g of MDMA) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 Life imprisonment SNPP 15 years

Approach to Sentencing

I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters set out in s 21A of that Act.
The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.
To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Facts

The parties presented an Agreed Statement of Facts. I have taken the entirety of that document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.
Between March and November 2022, police were investigating a number of individuals relating to the supply of prohibited drugs and were conducting physical and electronic surveillance. One of the individuals suspected to be involved was Jonathon Towers, the domestic partner of the offender.

Sequence 4

On 1 September 2022, Raphael Kenny communicated with a buyer on Wickr who wanted to buy 10 ounces of cocaine. Mr Kenny offered "some better stuff" for $8,500 per ounce and sent images of the drugs to the buyer. Mr Kenny sent a screenshot of a conversation with his supplier to the buyer, requiring that the money be paid in eight $10,000 bundles and one $5,000 bundle. Mr Kenny then added the buyer to a group chat with Albert Cobeta and Isilel Kirby. At about 9:30am on 2 September 2022, Mr Kirby placed three bags in the boot of Mr Kenny's vehicle when it was parked in Mr Kenny's driveway. Mr Kenny then drove to a service station in Sutton and supplied 279.3 grams of cocaine in exchange for $85,000 in cash. Mr Kenny immediately drove from Sutton to Caringbah where he met with Mr Towers and the offender. Mr Kenny handed $85,000 to Mr Towers, before returning to Canberra. The drug was later analysed and found to have a purity of between 33-34%.

Sequence 5

On 6 September 2022, the buyer requested to purchase another 10 ounces of cocaine for $85,000 in the group chat. Mr Cobeta responded and agreed to the supply, informing the buyer that Mr Kenny would meet him to complete the transaction. On 8 September 2022, Mr Kenny confirmed the supply would take place on the group chat. At about 9:45am on 9 September 2022 Mr Kenny drove to a service station in Sutton with Mr Kirby. Mr Kenny supplied 279.9 grams of cocaine in 10 knotted bags in exchange for $85,000 in cash. Mr Kenny immediately drove from Sutton to Caringbah where he met Mr Towers and the offender. The offender collected the $85,000 from Mr Kenny's vehicle. Mr Towers and the offender returned to their residence and Mr Kenny returned to Canberra. The drug was later analysed and found to have a purity of about 30%.

Sequence 10

On 7 November 2022 in a group chat on Threema comprised of Mr Kenny, Mr Cobeta and Mr Kirby, they agreed to supply 3,000 MDMA tablets for $60,000. On 8 November 2022, Mr Kenny and Mr Kirby drove to a carpark in Caringbah where they collected the drugs from Mr Towers who had been driven to the meeting by the offender. The offender's infant child was seated in a child safety seat in the rear of the vehicle. Mr Kirby then supplied the drugs to the buyer in exchange of $60,000 in cash. In a conversation with the buyer Mr Kenny described Mr Towers as "the boss" and that he was "high up" in an outlaw motorcycle gang. Immediately after the exchange Mr Kirby gave the cash to Mr Towers, who in turn gave it to the offender and they returned home. At about 12:05pm, an unknown male attended the offender's residence for a period of 10 minutes before driving away. The drugs were later analysed and were found to be light orange spade shaped tablets weighing 785.85 grams having 20% purity, 796.8 grams at 18.5% purity and 779.2 grams having 19% purity. The total quantity supplied was 2,361.5 grams of MDMA.
The offender was aware that the quantity supplied on 2 September 2022 and 9 September 2022 was more than the commercial quantity of cocaine. She accepts that she was aware that the quantity of MDMA supplied on 8 November 2022 was more than the large commercial quantity of MDMA. However, the Crown concedes that it is unable to prove beyond reasonable doubt that the offender knew the exact quantity of drugs being supplied or the amount of money being received after each supply. Her role was to drive Mr Towers to each of the three suppliers and on one occasion remove a bag from Mr Kenny's vehicle.

Arrest on 24 November 2022

On 24 November 2022, multiple search warrants were executed at various locations around the Sydney area including the offender's residence at Caringbah South, where she was arrested.
The offender was conveyed to Sutherland Police Station. She declined to participate in an electronically recorded interview and was charged with the matters before the Court.

Sentencing Assessment Report

The Court received a Sentencing Assessment Report (SAR) dated 13 December 2024, that can be summarised as follows.
The offender has been residing with her mother in the Central Coast area. She has a three-year-old child with Mr Towers. Her child is currently in the care of her father in Queensland.
The offender served in the Army for a period of five years prior to being medically discharged in 2019. At the time of the offences, the offender was running her own supplement business. After being released from custody she has been employed as a cleaner.
The offender does not have any prior convictions.
The offender's involvement in the offences consisted of driving Mr Towers to drug exchanges as he relied on her for transportation. She admitted physically taking part in one exchange at his request. The offender accepted that she knew at the time what she did was wrong but did not think of the consequences. The offender participated knowing that Mr Towers was involved in drug supply because she felt controlled and she was fearful of questioning his conduct. She has had no contact with the individuals involved since her arrest.
The offender used cocaine and MDMA on rare occasions and admitted that Mr Towers' drug dealing allowed her to live a comfortable lifestyle.
The offender stated that she felt ashamed of her behaviour and reflected that her child and immediate family have been adversely impacted. She understood that her actions would have negatively affected vulnerable members within the local community.
The offender expressed a willingness to engage in interventions and to undertake community service work. The offender has been assessed by Community Corrections at a low risk of reoffending and suitable to undertake community service work. Community Corrections can provide the equivalent of up to 15 hours of work per month.

The Offender's Case on Sentence

The offender relied on the following documents: 1. psychiatric report of Dr Jeff Bertucen dated 6 December 2024; 2. letter of Rod Armour, clinical psychologist, dated 12 December 2024; 3. letter of Linda Freed, mental health nurse, dated 12 December 2024; 4. letter of Peter Palmer, employer, dated 13 December 2024; 5. affidavit of Jemma Dann sworn 19 April 2024; 6. letter of Kenneth Dann dated 15 December 2024; and 7. rehabilitation plan.
The following is a precis of the evidence relied upon by the offender. I will try not to repeat matters already stated.
The offender is 28 years of age. She spent her early childhood in Jervis Bay in NSW. Her parents are both Indigenous, her mother living in Wreck Bay, New South Wales and her father in Geraldton, Western Australia. Both of her parents have chronic substance use disorders, although her father has been abstinent for approximately 10 years. She reported that she has no contact with her mother due to her mother's relapse into illicit drug use approximately 18 months ago. She is the oldest of eight siblings, the first seven born to both parents and the youngest a half sibling.
The offender reported that her early family life was migratory between New South Wales and Western Australia and she attended Jervis Bay Public School, Huskisson Public School as well as a primary school in Western Australia.
The offender described her relationship with her parents as turbulent and she recalled frequent alcohol and drug use in the home, regular heated arguments between her parents and physical aggression towards each other. She reported that she often looked after her younger siblings and felt compelled to intervene in the arguments between her parents.
The offender attended high school in Vincentia. She had a large circle of friends and was academically successful in Years 7-8. The offender's parents separated when she was 14 years old. This occurred suddenly and she experienced changes in her mood and demeanour, becoming angry, rebellious and completely disinterested in schoolwork. Over the next few years, the offender attended school in New South Wales and Western Australia during periods of living with her father. She left school midway through Year 12.
The offender joined the military at the age of 18. She acknowledged that she was seeking a "family" environment, with a degree of stability, structure and routine "that she never got at home".
Between 2014 and 2019, the offender served in the Army with the Second General Health Battalion based in Queensland. She responded well to the hierarchy and routine of the military and focused on her fitness. She stated that she had a brief relationship with an AFL player in the later years of her service and had a good circle of friends. She did not have any overseas or combat deployments.
The offender developed a lower back injury due to a result of her training, field exercises and carrying heavy equipment. She was unable to continue to serve beyond 2019 and required treatment for her injury in the form of nerve ablation and repeated cortisone injections. She was prescribed antidepressants for comorbid depression but stopped taking the medication after six months. The Court was provided with a detailed rehabilitation plan for the offender from the Department of Veteran Affairs.
Following her medical discharge from the Army, the offender relocated to Sydney and left her boyfriend in Queensland. She rented a unit in Cronulla in 2019 and formed a relationship with Mr Towers in late 2019 or early 2020. The offender operated an online retail supplements business called "JD Supps".
The offender fell pregnant in mid-2020. The offender's child is now three years of age and is currently living with the offender's father. She described Mr Towers as controlling and at times abusive. He physically assaulted her on a number of occasions. The relationship was turbulent with some periods of separation from April 2022 onwards.
In late 2020 when the offender was six months pregnant, Mr Towers had a serious motorcycle accident and remained in hospital for six weeks. After his discharge, he required extensive personal care from the offender for a number of months. Mr Towers was unable to return to work as a plumber. The offender became increasingly aware that Mr Towers was involved in drug supply. By about mid-2021 Mr Towers' customers would visit their house and from early 2022, when Mr Towers asked her to drive him to exchanges. The offender told the psychiatrist that she was fearful of Mr Towers' response if she refused to comply.
The offender acknowledged that she received material benefit from Mr Towers' drug supply operation in the form of an overseas trip and gifts of designer handbags, clothes, shoes, expensive dinners and an Audi motor vehicle. The offender knew that Mr Towers never returned to plumbing and stated that she "knew something was going on but [she] didn't question it". She denied personally handling drugs or money directly but was in the car and occasionally took a bag but reported that she was unaware of the contents, or the amount of money transacted. She reported that from 2022 and prior to her arrest she also used cocaine or MDMA recreationally, approximately once or twice per month. She has not used any illicit substances since her arrest in November 2022.
After her arrest in November 2022, the offender's sister took care of her child when she was in custody. She was released on Supreme Court bail on 14 February 2023. She has not had any contact with Mr Towers as a result of her bail conditions and she considers the relationship to be over.
It was initially a condition of the offender's bail that she was unable to leave her residence unless in the company of her mother. Following her mother's relapse into drug use in about July 2023, the offender increasingly refused to accompany her mother outside of the house. The offender was subsequently only able to leave the home if reporting to police or taking her child to day care. Her child became frustrated, angry and difficult as a result of not being able to engage in his normal routine, such as attending play dates with other children and their parents. Other family members were unable to assist the offender due to their own health and personal commitments.
The offender was unable to run her online supplement business following her release on bail as she could not access her storage unit used to store her inventory. This adversely impacted her ability to financially support herself, her child and her sisters.
Since her release on bail in 2023, the offender has occasionally attended a psychologist, Mr Armour, but her attendance has not been consistent. The letter from Mr Armour confirms that the offender attended three therapy sessions between 16 April 2024 and 4 June 2024, but did not return to therapy until 5 December 2024 for the purpose of obtaining the letter provided to the Court. Mr Armour noted that the offender initially reported severe anxiety in relation to her court matter and bail conditions restricting her movements during the day.
The letter of Mental Health Nurse, Ms Freed, also confirmed that the offender attended several appointments between 25 May 2023 and 12 April 2024. Ms Freed noted that the offender missed two key appointments in July 2023 and May 2024. Throughout their sessions, Ms Freed observed fluctuations in the offender's mental health, reflective of her ongoing struggles with anxiety and depression. Ms Freed stated that her consultations have focused on providing immediate support through exploring some cognitive behavioural therapy and also on developing a long-term care plan for the offender. Ms Freed is optimistic about the offender's potential for positive outcomes provided that she continues to receive support in the community and accesses appropriate mental health resources.
The offender has recently worked casually as a cleaner for about 10-15 hours per week at several local resorts. The letter of Mr Palmer confirms that the offender commenced this on 11 November 2024 and has become a valued member of this team.
The offender reported to the psychiatrist that in the last few months her sleep has been broken primarily to the absence of her child and concerns about the possible custodial sentencing. She engages in limited socialising although states that this is affected by various curfews and restrictions that she is subject to. She denied any recent self-harming ideation.
The offender expressed remorse throughout the interview with the psychiatrist and to her father. She stated during the interview with the psychiatrist that she deliberately chose to avoid questioning Mr Towers' activities too deeply due to the perceived possibility that he would react violently. She is aware of the consequences of her offending.
The offender's father, Mr Dann, in his letter to the Court commits to providing the offender ongoing support. He described the offender as a very loyal, respectful, strong, compassionate and extremely hardworking woman. He attested that he believed that the offending conduct was out of character for his daughter.
The psychiatrist opined that based on the history elicited, the offender was not suffering from any diagnosable psychiatric illness prior to her arrest in November 2022. Presently the offender could be said to be suffering from an Adjustment Disorder with features of depressed mood of moderate severity, primarily been caused by her present circumstances, the uncertainty of the sentencing process and the possibility of prolonged lack of contact with her child.
The psychiatrist considered that the offender's prognosis from a psychiatric perspective is likely to be favourable, particularly if she was not sent back to prison. The offences occurred in the context of a controlling relationship and given the cessation of that relationship and the lack of any previous criminal history, the psychiatrist opined that her likelihood of reoffending was low and that her prospects of rehabilitation were favourable.

Objective seriousness

The offences are objectively serious.
The offences took place over about two months. The offender's involvement consisted of driving Mr Towers to exchanges and of handling one bag of cash at Mr Towers' direction. By her own admission, the offender knew that she was participating in drug supplies and the offences were not isolated.
The two supplies of cocaine were just over the commercial quantity of 250g. The purity of the drug was between 30-34%. The MDMA supplied was over four times the large commercial quantity of 500g. The purity of the drug was between 18.5-20%.
The offender's actions were partially influenced by the conduct of a controlling and abusive partner who had lost his legitimate source of income. The offender knew that her actions were wrong and understood that the financial benefits that she enjoyed were the proceeds of drug supply.
I have taken into account the maximum penalty for the offences and the standard non parole periods as legislative guide-posts to the appropriate sentence.

Deterrence

General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such a severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial and other rewards will be neutralised by the risk of severe punishment.
There is some need for specific deterrence, but it is significantly reduced. The offender has accepted responsibility for her actions and understands the impact of her conduct on the community, her child and her family. The offender has demonstrated through her conduct, while she has been on bail, that she is unlikely to reoffend.

Aggravating factors

The Crown submitted that sequence 10 was committed in the presence of a child under 18 years of age: s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999 (NSW). For this aggravating factor to be established the presence of the child must be a "knowing" presence: Johnson v R [2021] NSWCCA 13 at [52]. There is no evidence before the Court that as a two-year-old, the child was aware of what was happening. I am not satisfied that this aggravating factor is established.

Mitigating factors

The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender was 26 years old at the time of the offending.
The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender had no prior convictions and had served in the armed forces.
The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender's involvement in the offences was situational. Her partner was injured in a motor vehicle accident, lost his ability to work and turned to supplying drugs as a means of supporting his family. His controlling nature discouraged the offender from challenging him on his conduct and his requirements for her to drive him to exchanges. She had a young child and was dependent on Mr Towers for support. The offender does not have any addiction issues and she was a person of good character. I am satisfied that she is unlikely to reoffend.
The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender is gainfully employed and has positive plans for the future. She has good family support. The offender has demonstrated whilst on bail that she has good prospects for rehabilitation.
The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to the psychiatrist and to her father. She has accepted responsibility for her actions and I am satisfied that she is genuinely contrite.
I have had regard to parity. I have already sentenced Mr Kenny, Mr Cobeta, Mr Kirby and Mr Towers for their involvement in this organisation. Of all the co-offenders, the offender had the least involvement in the offending conduct. She drove Mr Towers to each of the exchanges with the knowledge that he was going to supply drugs for money. In sequences 4 and 5, she had no other involvement. For sequence 10, she additionally handled the bag containing the money at Mr Towers' direction. I am satisfied that her involvement in the offences was at the very lower end of the scale. Mr Cobeta received the most lenient sentence for his involvement in the operation. By comparison, Mr Cobeta was far more involved in the operation, dealt with higher quantities of the drugs and had an inferior subjective case to that of the offender. In all of the circumstances, the offender must be dealt with more leniently than Mr Cobeta.
I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender's time in custody was made more onerous by the restrictions imposed to deal with the COVID-19 pandemic, and her mental condition.
The offender was in custody from the date of her arrest on 24 November 2022 to 14 February 2023. I will take this period of 83 days of pre-sentence custody into account in the sentence imposed.

Penalty

Jemma Dann is convicted.
I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.
I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are: 1. sequence 4 - 9 months with a non-parole period of 6 months; 2. sequence 5 - 9 months with a non-parole period of 6 months; 3. sequence 10 - 2 years with a non-parole period of 12 months.
The appropriate aggregate term of imprisonment is 2 years and 6 months.
Having reached that conclusion, I must consider if the sentence can be served by way of an Intensive Corrections Order.
I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the reasons I have already given and the following additional reasons, including by returning to the purposes of sentencing in s 3A.
I have had regard to community safety as the paramount consideration. In this case, the protection of the community can be achieved by allowing the offender to continue her rehabilitation in the community. The offender does not have the usual addiction issues associated with drug supply offences. The offender became circumstantially involved in the illegal activities of her controlling and abusive partner. She is unlikely to reoffend. She has found employment and wants to return to care for her young child after the completion of these proceedings. She has the continued support of her father and sisters to assist her. Her mental health has suffered as a result of her arrest and incarceration. She is at risk of her mental health deteriorating if she was to be sent back to prison, and I am satisfied that there is a risk that she would lose the gains she has made in her rehabilitation. Out of the two options of sending her back to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].
I am mindful of the statement of the Court of Criminal Appeal in R v Qi [2019] NSWCCA 73 at [74] (Button J) that an ICO should not be imposed for an offence that carries a maximum penalty of life imprisonment and a high standard non parole period, except in very exceptional circumstances. I am satisfied, for the reasons given, that this is such a case. Notwithstanding that these offences involve some objective gravity, that does not preclude an imposition of an ICO if that would better serve the objects of sentencing: Wany v DPP [2020] NSWCA 318 at [5].
It should also be noted that the offender has served a period of about 3 months in full time custody for these offences and spent further time on strict bail conditions that have had a significant impact on her liberty. The imposition of an ICO for a further lengthy period will mean that the restrictions on her liberty will continue. I am satisfied by reference to her previous incarceration, onerous bail conditions and the imposition of the ICO that she will be adequately punished for the offences.
I will reduce the term of imprisonment to be imposed by 3 months (which I have rounded up) to take into account her pre-sentence custody, because an ICO cannot be backdated.
I impose a term of imprisonment of 2 years and 3 months.
Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (7 February 2025) and expire on 6 May 2027.
The offender must report to the Nowra Community Corrections Office on or before 4pm on 14 February 2025.
The standard conditions of the order apply: 1. the offender must not commit any offence; and 2. the offender must submit to supervision by a Community Corrections Officer.
The following additional conditions apply: 1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner; 2. the offender must receive treatment for her mental health as reasonably directed by Community Corrections; 3. the offender must not associate with Raphael Kenny, Isilel Kirby, or Albert Cobeta; and 4. the offender must not associate with Jonathon Towers except in so far as is reasonably necessary to facilitate contact with and parenting arrangements for their child.
If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody.
The offender must attend the Registry to confirm her postal address so that a copy of the order can be sent to her.

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: 12 February 2025

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Judgment (15 paragraphs)

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