R v Dendulk

Agreed Facts

1. Dendulk gave evidence. His evidence added some detail to the sparse facts in the Agreed Facts document. His evidence did not contradict any of the matters in the Agreed Facts, accepted by the parties.
2. In October 2018 Australian Federal Police (AFP) commenced an operation investigating a large number of organised criminal groups which used an encrypted communication platform known as 'ANOM', initially developed by the FBI. The AFP worked in partnership with the FBI, although, they did not manage or create the platform itself. There were many users worldwide of that platform. Active users are given different profile names. It is accepted the offender used a simple profile, '1111'.
3. The chronology is important. In December 2020 the offender was admitted to parole. He tells me, and I accept, that he made every effort to stay away from drugs. He was residing with his family. He had access to his two sons who were living with his former partner. He had work and was meeting his parole obligations.
4. In about March 2021 his children came to live with their grandparents, his parents. The Department of Community Services had taken the children from their mother. The Department of Community Services were, understandably given Dendulk's own history, insistent that he not live in the same house as his children.
5. In order to facilitate his children being with their grandparents he left his family home. He was provided with temporary accommodation. Sadly, the temporary accommodation provided is well known to this Court. It is a used by people with drug and crime problems. Within a short period, Mr Dendulk was once again using methylamphetamine.
6. He spent a short period of time in custody in April 2021 before being granted bail. He tells me, as consistent with the Agreed Facts, that he was living in a caravan. He could not afford to pay for his daily use of methylamphetamine. His supplier did not have any drugs available. But given his contacts, Dendulk was able to make arrangements to put his local supplier in touch with an upline supplier. The upline supplier who provided him with the phone with the 'ANOM' communications platform, they thought was secure.
7. The Agreed Facts set out conversations recorded on that platform. The first was in early May 2021. It is agreed that a total quantity of 226 grams of methylamphetamine and 4.6 grams of cannabis was supplied to the offender by two others, one had the code name 'Rusty', the other, 'Big Bat'. The total price for the drugs was $56,000; with $45,000 being provided by the offender to the upline supplier on 4 May 2021.
8. Arrangements were made by the offender to get the money from the local supplier for him to supply it and to be there at the handover. The offender tells me he did not drive in the car which delivered the drugs back to the local supplier. He was, however, present in another car while this transaction occurred but he did not participate directly in the transaction.
9. A further transaction occurred on 31 May 2021 It involved 4.43 kilograms of cannabis. Similar procedures were followed. That transaction That cannabis was seized by police. It was in the car of a person who had driven to collect it following the same type of arrangement. A message after the seizure from the offender to 'Big Bat' said, "Brother my bloke got pinched on the way home".
10. Because of the structure of the Drug Misuse and Trafficking Act, and by agreement with the parties, the two cannabis supplies were rolled up into one single charge involving the 9.4 kilograms. The accumulation of quantities and transactions was accepted by the defence it is a simple and practical way of resolving such matters: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217.
11. However, the Drug Misuse and Trafficking Act does not allow for the rolling up of different types of drug and, as I have noted, the supply of methylamphetamine carries a different maximum penalty than the supply of cannabis leaf.
12. The two offences for sentence involved the three transactions, they took place over a period of two months. When I come to formulate the aggregate sentence, I must fix on a period which is just and appropriate to all of the offending. I will seek to do so.
13. In evidence today Mr Dendulk told me, and I accept, that his reason for involving himself in the supplies was to ensure that his local dealer had drugs available for distribution, in particular so that he could get drugs for himself. His "fee" for doing so was methylamphetamine. He would regularly "pester" the local dealer to supply it to him free of charge, because of the actions he had taken in securing the two bulk supplies.

Objective seriousness

1. Ms Mitchell who appears for the offender submits that Dendulk's role is equivalent to, or perhaps even less than, that of a street level supplier. I cannot accept that submission in its general terms.
2. Both Ms Mitchell and Ms Stueckradt, for the Director, made submissions as to where in a notional range the two offences might fall.
3. I do not believe it is necessary to fix objective seriousness on some notional scale. That does not mean an assessment of objective seriousness should not be made. An assessment of seriousness, or the gravity, of each offence is a critical component of the sentencing process: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
4. As is usually the case, there is no organisational chart showing how this drug supply operation was to be carried out. That the offender did what he did to obtain drugs for himself is a very relevant factor. He was not involved in the day-to-day distribution of the drugs, but he was not simply a courier of the drugs. His actions facilitated the provision to the local supplier of, in one count 10 kilograms of cannabis, and just below the commercial quantity of methylamphetamine. His actions enabled the local supplier to distribute those drugs in our community.
5. His actions also enabled both the local supplier and the upline supplier to make the profits that can be available to those who supply drugs. Those profits have a detrimental impact on the community as crimes are committed to obtain money to buy drugs. Drug use has an impact on those who take the drugs. Drug use has an impact on the on families of drug users.
6. Those matters and Dendulk's participation in this crime, therefore, call for considerable punishment, not just to send to him the message that what he did was unacceptable, as he now acknowledges and knew at the time, but to others who might be tempted, as he was, to involve themselves in facilitating such transactions. While one can say; "well, the drugs would have been distributed anyway", but the distributions in this community were here as a result of his actions. He has to bear responsibility for that.
7. I find he did not, however, contribute financially to the costs of setting up the operation. He was not sharing in the profits. His role in the operation involved some discussion with the suppliers and those who participated as drivers, but he had no real control. His acquisition of any drug was solely for his own use, and he chose not to distribute it personally. Notwithstanding his own usage, he remained sufficiently clear thinking to participate in the matters disclosed in the facts.
8. In this case, the seriousness of any involvement in retail distribution lies in part in his contribution to the servicing and maintaining the market for the drugs methylamphetamine and cannabis. This maintained market, in turn, provides the economic incentive for the growing of cannabis and the manufacture, and later supply of, methylamphetamine in this country. There was some organisation here, and of course drugs have an impact on community safety, but as made clear in discussions, the prosecution do not submit that this is anything other than the natural result of what occurred and is not an additional aggravating factor.

Subjective case for the offender

1. The offences were committed while Dendulk was on bail and subject to strict bail conditions including, a curfew. This is an additional aggravating factor I must take into account.
2. His criminal record does not assist him at all. He is not entitled to any leniency because of it, and frankly, it means that I have to at least consider issues of community safety when I come to formulating the appropriate sentence.
3. The timing of his arrest was counterproductive to his prospects of rehabilitation because he went back into custody, not for this offence but for another matter. He served a short sentence and was then released, even though the police obviously had the information available to them from the intercepted calls. He was arrested 13 days after being released from custody; a matter I take into account.
4. I must also take into account that he was eventually sentenced for the matter that he was on bail for, a domestic violence assault on his former partner, the mother of his children. That sentence was imposed during the course of his time on remand for this matter. He served the 2 month non‑parole of that sentence. He should receive some punishment for that offence. It is clear that the magistrate took the view that the minimum time he should spend in custody for that offence was 2 months. That sentence was subsumed by his time in custody bail refused for this mater. I have determined to allow for some punishment for it. I intend to start this sentence two months after he went into custody, on 13 December 2021 that is 13 February 2022.

COVID

1. During Dendulk's time on remand, he has been moved from gaol to gaol. He has been subject to the COVID restrictions placed on prisoners by Community Corrections; restrictions designed to minimise the risk of infection in our gaols. Those restrictions mean that visits are curtailed, programs and work is curtailed and, as the evidence before me reveals, prisoners are regularly locked in cells. He has spent over 140 days locked in cells.
2. The community should understand the lived experience of gaols. They are not holiday camps. To be locked in a small cell with another person for 140 days means you have to eat and excrete in the same room. Locked in prisoners are not able to exercise. They are not able to access any outside facilities. This is hard for a person of robust mental health. For a person whose mental health is not robust to be locked up in such conditions is a significant additional punishment that must be taken to account when courts come to sentence. We send people to gaol so that their liberty is taken away, we do not send people to gaol to punish them further by the conditions of their custody. But, sadly, that is often the case.

Remorse

1. In his evidence today Dendulk expressed how embarrassed and regretful he was for again breaking the promises he has made to himself, his family and involving himself in the drug trade. He, when able to think clearly, has significant insight into the problems that methylamphetamine abuse causes individuals and their families. He has insight into the consequences of being in custody, not just the matters I have already mentioned, but also dealing with the trials and tribulations of life and death. While in custody a former partner died suddenly and unexpectedly, and he was unable to grieve properly.
2. He has accepted responsibility for his actions, and I believe his evidence was frank and accurate.

Other relevant matters

1. He has underlying mental health problems. He went into custody with a prescription for a drug that is not available to prisoners. On the material before me, although he has seen a psychologists on four occasions, he has not yet received a substitute prescription for his underlying condition.
2. He has been proactive in seeking work in the gaol, again a good sign for his prospect for the future.
3. I note that work is available to him when he is released.
4. He has sought, as best he could, to engage in programs in custody; and there are certificates before the Court.
5. In evidence he promised again to make up for the time he has taken and the many broken promises. He tells me that now that he is 40, he has resolved not to involve himself in drugs and crime again. But he was frank in saying that he fears that he does not have the personal strength to do that unaided.
6. He would be best assisted by a full-time rehabilitation program. There is evidence before me that a program bed could be made available to him in the near future but there is no specific date. I would urge the State Parole Authority to assist him, prior to his release, in going from custody in a staged way to such a facility. I trust that that will be done.
7. The material before me includes the certificates, and work references. It indicates that he is presently taking civil action for psychological injuries as a result of the abuse that occurred at his school.
8. There are references from his family. They acknowledge his past failures, they acknowledge the efforts that he has made, and despite all the broken promises, their continuing support appears unconditional. Family support from stable family members is one good measure of the prospects of rehabilitation. Again, as the Crown submit in this case, I have to be guarded because that support has been with him his whole life. He has only taken advantage of it for short periods and then gone back to the use and abuse of drugs.
9. I have been assisted by a comprehensive report of Ms North, a Forensic Psychologist. She carefully sets out the offender's history; which he affirmed on oath. She applied the results of her testing and her forensic experience to the material before me. There have been mental health diagnoses made in the past, but she is very cautious. Her opinion is that the underlying symptoms are more, rather than a mental health condition, the result of the impact of his long-term drug. She diagnoses symptoms of post‑traumatic stress disorder and stimulant abuse disorder.
10. In her opinion, Mr Dendulk has issues relating to emotional dysregulation and that they, in turn, are directly related to his own unresolved trauma issues. His history of substance abuse was assessed as directly related to his underlying trauma issues, as he described having used drugs as a means of managing his unwanted thoughts and emotions associated with his exposure to trauma.
11. Mr Dendulk has continued to struggle with his drug use issues since mid‑adolescence despite having engaged in treatment, including periods of residential treatment. It is also noted that his drug use has been a major criminogenic risk factor in both, past offences and the index offences. As Mr Dendulk's mental health and substance use issues were assessed as interrelated, it is recommended future treatment address these issues concurrently. Ms North puts forwards recommendations for future treatment.
12. A copy of Ms North's report will be forwarded to Corrective Services and should accompany the warrant. She recommends he be referred to a psychiatrist and a psychologist, engage in substance abuse treatment and be referred to residential rehabilitation.
13. A history of childhood trauma should be taken into account, and I will do so. While it is crimes cannot be excused by saying, "I am a drug addict", the underlying causes of someone's drug use, the efforts taken to address that drug use, are very significant and will be taken into account.

Submissions

1. I am indebted to Ms Mitchell for her written and oral submissions and similarly for Ms Stueckradt and the Director. Apart from the issue of mid or above mid‑range there is no significant difference between them. Rather they differed in emphasis as to how serious, relative to other types of involvement in supplies, this matter is. The difference really was as to how serious I regard his role as a facilitator of these two transactions. The matter was serious, for the reasons I have outlined.
2. Ms Stueckradt submits that while a finding of special circumstances could be made to assist with him going to residential rehabilitation, I must be guarded about his prospects.
3. With great respect to Dendulk, he too is guarded about his own prospects, because he acknowledges the problems he has had in the past and accepts that he cannot do it by himself and that he needs residential rehab before he returns to the community. That level of insight means perhaps that he may succeed this time where he has failed often in the past.
4. I will attempt to give him an opportunity. But, that said, the minimum period that he must serve in custody must properly reflect the gravity of his offence and the other purposes of sentencing.

Instinctive synthesis

1. Sentencing is not meant to be mathematical. To synthesise all those matters, the two matters for sentence, I have to focus individually and collectively on both matters and impose a sentence which reflects both.
2. I have to take into account the period over which the offending occurred and his role, which I have outlined. There is something artificial in the sense of distinguishing the different drugs as opposed to the transactions.
3. There has to be appropriate punishment reflected in both the overall sentence and minimum term. The purposes of sentencing do not always point in the same direction.
4. I then have to structure a sentence that takes into account that he has previously not taken advantage of parole. At the same time, I should give the State Parole Authority an opportunity to release him into rehabilitation so that he can have a staged approach to release and then be supervised in the community. Given the length of the sentence that will not leave long in the community, if he has a lengthy period in a rehabilitation facility but I cannot extend the sentence to enable longer rehabilitation, nor can reduce the time in custody below what is required.
5. Synthesizing all the matters I have discussed, and taking into account the pleas of guilty, I intend to impose an aggregate sentence of 3 years and 4 months. The indicated sentence for the cannabis matter is 2 years and 7 months. The indicated sentence for the methylamphetamine is 3 years. Both reflect the plea discount.

Orders

1. The formal orders of the Court are there is a term of sentence, aggregate, of 3 years and 4 months. The non‑parole period reflecting a finding of special circumstances is 2 years and 1 month. It will commence on 13 February 2022 making you eligible for consideration for release to parole on 12 March 2024, next year. The balance of the sentence of 1 year and 3 months will commence on 13 March 2024 expire on 12 June 2025. Your release will be subject to an order of the State Parole Authority. They will have a copy of Ms North's report and my recommendation that arrangements be made for you to go into residential rehab. Hopefully someone will have a bed available for you on your release date.

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: 25 September 2023