R v Dharminder Singh

[2019] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:	R v Dharminder Singh [2019] NSWDC 184
Hearing dates:	8 May 2019
Decision date:	17 May 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial order to be served by way of intensive correctional order. For orders see [57]
Catchwords:	Two drug supply offences; unique circumstances; not substantial operation of drug supply.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 Drug Misuse and Trafficking Act 1985 Poppy Industry Act 2016
Cases Cited:	Berryman v R [2017] NSWCCA 297 JM v R [2014] NSWCCA 297 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v El Masri [2005] NSWCCA 167 R v Pullen [2018] NSWCCA 264 R v Van Ryn [2016] NSWCCA 1 Tyler v R (2007) 173 ACrimR 458
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Dharminder Singh (Offender)
Representation:	Counsel: M Burke (Offender)   Solicitors: E Brown (Crown) W Del Din (Offender)
File Number(s):	17/367363
Publication restriction:	Nil

remarks on sentence

1. The offender is to be sentenced in respect of the following two offences:

1. Sequence 1 – Supply prohibited drug (opium) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985.

2. Sequence 2 – Supply prohibited drug (Papaver Somniferum) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985.

2. Both offences carry a maximum penalty of 15 years imprisonment and/or 2000 penalty units ($220,000). There is no Standard Non-Parole Period proscribed for the offences.

3. The offender has also asked to be taken into account the following offence:

Sequence 3 – Unlawfully transporting alkaloid poppies pursuant to s 6(1)(g) of the Poppy Industry Act 2016. The maximum penalty proscribed for that offence is 12 months imprisonment and/or a $100 fine.

4. The offences took place on 17 November 2017 and there was no dispute that the offender entered an early plea of guilty to the subject offences. He was committed for sentence on 14 November 2018.

The sentence hearing

5. The sentence hearing took place on 8 May 2019 at Griffith District Court. The Crown Sentence Summary became Ex A and included a Statement of Agreed Facts, which may be summarised as follows.

6. At 6.50pm on Friday 17 November 2017, the accused was a passenger in a vehicle travelling east in Balranald, which was pulled over by police for the purpose of a random breath test. The facts record that the police had a conversation with the offender and the driver, and both appeared nervous and stated they drove from Canberra to Renmark for a two hour visit. This aroused police suspicion and they informed the offender and driver that they intended to search the vehicle and them. When asked whether there were any drugs inside the vehicle, the offender said, “No, no drugs”.

7. Inside the centre console of the vehicle police located a margarine container which the accused acknowledged as his. Inside that container was a large brown block which police suspected to be a prohibited drug. The accused was cautioned and questioned in relation to the block. He stated:

“It’s medicine. It’s Doda. It’s for my uncle. It’s medicine.”

8. The police search further revealed in the boot of the vehicle a large, brown cardboard box containing mandarins, underneath which was a large quantity of what police suspected to be opium poppy flowers, in a large glad-lock bag. There was also a quantity of flowers unsecured within the box, together with another bag containing what police suspected to be opium poppy seeds. When asked about the contents of the box, the accused stated:

“They all go together, for medicine.”

9. In a record of interview conducted later that day, the accused told police that they had driven from Canberra to Renmark to visit family members for a few hours and decided to return home the next day. The offender made full admissions as to his knowledge of the resin and the box in the rear of the vehicle. He stated he did not know that the resin was a prohibited drug and that he was taking the items to his uncle in Canberra. It was to be used by his uncle for medicinal purposes. The resin substance was tested. It weighed a total of 362 grams in total and contained opium.

10. The flowers and seeds were also weighed, with a total weight of 1,091.60 grams. The flowers and seeds were identified as being Papaver Somniferum.

11. The offender cooperated with police in their enquiries.

12. Exhibit A contained a New South Wales Police Force search which showed that the offender had no criminal antecedents. It also contained a Sentence Assessment Report under the hand of Mr N Bish dated 25 January 2019. That report set out the offender’s family circumstances. He was born in India and migrated to Australia in 2008 to pursue tertiary studies at the age of 19 years. He maintained close links to his family in India and enjoyed social support through his Australian based Indian association. The offender works as a contractor technician in the Canberra area with the National Broadband Network Program and had no history of anti-social behaviour or associations prior to this offence.

13. Under the heading “Attitudes”, the offender stated he had not considered the illegality of his actions. He reported being motivated to assist the Indian based father of a close friend to procure what he believed were medical products. He acknowledged that he had abrogated his responsibility in objectively assessing his own decision making in respect of this criminal behaviour.

14. Under the heading “Insight into Impact of Offending”, the author noted that the offender did not consider his decision making to secure and transport the drugs as illegal at the time of the offence.

15. He was assessed as a low risk of reoffending and as being suitable to undertake Community Service work.

16. Exhibit B was the Form 1 executed by the offender.

The offender’s evidence

17. The offender relied on two affidavits. The first was sworn by his solicitor, Mr W Del Din on 7 May 2017. The deponent set out attempts he had made to arrange for persons referred to as the “offender’s friend” and “his uncle”, for whom the drugs were being obtained, to give evidence in the sentence proceedings. He deposed that the uncle’s health had deteriorated from 2018 up until the time of the hearing, and annexed medical records relating to the cause of that deteriorisation.

18. Mr Del Din also deposed that he had made enquiries by way of searching the Internet as to the nature of “Doda”. It is a common name for a substance made from poppy husks and is usually consumed with a tea.

19. The offender also relied on an affidavit affirmed by himself on 8 May 2019. In his affidavit he deposed that he had made “a terrible mistake”, and that he had thought he was just helping his friend’s father get medicine. Whilst he knew that he could get into trouble for having it, he did not think that he was obtaining an illegal drug, and now understood he had committed a serious crime.

20. The offender set out the circumstances in which the person known as “uncle” was to visit Australia, during which time he would provide the Doda for medical purposes. He was due to arrive in Sydney on 18 November 2017 and the offender made arrangements to collect the substances from a farm at Renmark the week before. He asked a friend to help him with the drive from Canberra to Renmark. At Renmark, he was given the Doda resin, together with the flowers and seeds, to enable uncle to make more Doda if needed during his stay.

21. The offender deposed that he did not try and hide the items in the car and thought when he told the police that there were no drugs inside the vehicle, he was telling the truth. He did not appreciate at the time that Doda was in the category of illegal drugs.

22. He made full disclosure to the police about the substance in the car.

23. The offender deposed that uncle did not fare well without the drugs during his short stay in Australia and annexed a medical record for treatment sought by him in a drug and alcohol program whilst here. He shortened his stay and left for India in late December 2017.

24. The offender deposed as to his remorse, saying that he was sorry and genuinely ashamed of himself for committing this offence, and of the fact that he was now associated with illegal drugs. He was not a user of illegal drugs and understood the harm such drugs can do to the community. The offender deposed that he did not pay for the drugs and had no intention of giving them to anyone other than uncle for his use.

25. The offender also annexed his Police Clearance Certificate dated 14 September 2011, various academic records, together with statements of attainment for his various qualifications, and a letter confirming his enrolment at the Australian College of Training Assessment, Liverpool campus, dated 26 October 2018.

26. Neither deponent was cross-examined on their affidavit evidence.

The offender’s submissions

27. Learned Counsel for the offender relied on a thorough and detailed written outline of submissions. From the outset, it was conceded on behalf of the offender the he knew that possession and use by uncle of the Doda was illegal, however, at the time of the offending, he did not understand the substance was an illegal drug. He, however, acknowledged this wrongdoing and took full responsibility for his criminal conduct.

28. Having regard to the objective criminality of the offending, the subjective circumstances of the offender and current sentencing principles, it was submitted the court would find that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), had not been crossed, or alternatively, if it had been crossed, that the appropriate head sentence for each offence would be a sentence of two years or less. In either circumstance, the court would consider either a community based sentence by way of a Community Correction Order, or, in the event that the court found that the s 5 threshold had been crossed, an Intensive Correction Order, assuming the head sentence was for a period of less than three years.

29. The written outline referred to well known recent authorities relating to sentencing in drug supply cases, together with the shift in focus in sentencing to community protection by way of community based sentences as opposed to custodial sentences brought about by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017.

30. It was submitted that the objective criminality of the offending here was in the lower range. The quantity of opium in Sequence 1 was 362 grams against an indictable quantity of 50 grams and a commercial quantity of 1 kilogram. In Sequence 2, the quantity of the vegetative matter was 1,091.6 grams against an indictable quantity of 50 grams and a commercial quantity of one and half kilograms.

31. It was submitted that the offender’s role was the paramount consideration in assessing the objective seriousness of the offending. Counsel set out numerous matters relevant to the characterisation of the offender’s role here, which included the fact that he was acting on the request of close friends to obtain the medication for an elderly relative, he was not motivated by financial gain, he had no role in the form, packaging, quality or quantity of the items, there had been no attempt to avoid police detection and no indicia related to supply of drugs, such as a mobile phone, cash, or proceeds of crime. The offending was characterised as a “one-off involvement”.

32. It was submitted that another indicator of the offender’s role was the fact that he was the person put at risk of detection in transporting of the items, relying on Tyler v R (2007) 173 ACrimR 458 at [75] – [76].

33. It was common ground that the offender entered a plea of guilty in the Local Court and was entitled to a 25% utilitarian discount on sentence. Further, the Form 1 offence added little to the overall criminality here and there should be no accumulation in penalty in respect of that offence.

34. The offender submitted the following mitigating factors were present pursuant to s 21A(3) of the CSPA:

1. “There was no record of previous convictions.

2. The offender was a person of good character.

3. He was unlikely to reoffend.

4. He had good prospects of rehabilitation.

5. He had shown remorse.

6. He had entered a plea of guilty, and

7. He had provided assistance to authorities.”

35. It was further submitted that it was a mitigating factor that the matters could have been dealt with summarily, referring to R v El Masri [2005] NSWCCA 167.

36. It was submitted that the principle of totality required the fact that both offences arose from the one course of conduct should be taken into account.

37. The written outline also referred to JIRS statistics and noted the limitation on the utility of such statistics in the sentencing process.

38. Counsel also referred to the second reading speech in respect to the new sentencing regime introduced in 2018. Emphasis must be placed on community safety, and the courts have recognised the community benefit in rehabilitation, relying on R v Pullen [2018] NSWCCA 264 at [84] to [89]. These submissions advocated that the combination of sentencing alternatives meant that the threshold in s 5 of the CSPA may be quite different to the circumstances that met the test under the old sentencing regime. The court had a discretion to sentence by way of a Community Correction Order in the event that the threshold was not crossed or an Intensive Correction Order in the event that it was.

39. In his oral submissions, Counsel for the accused rehearsed the submissions in respect of the characterisation of the objective seriousness of the offending here. The offender had made immediate disclosures to the police and had assisted them in his record of interview. It was emphasised that there was no indicia of drug supply present. It was further submitted that this cooperation was consistent with the offender’s good character. It was not a case where he had been chosen as a courier of the drugs because of his good character. It was therefore submitted that the objective seriousness, given there was no financial gain, and no dissemination of drugs to be made into the wider community, was within the lower range of objective seriousness for an offence pursuant to s 25(1) of the DMTA.

40. It was acknowledged that, given there were two different drugs in Sequence 1 and Sequence 2, it would be appropriate to accumulate the sentences in accordance with authority. However, the unique circumstances here, meant that there was a wide discretion in the court’s sentencing options, and given that there was no threat to the community, the offender should be sentenced by either a Community Correction Order, or Intensive Correction Order rather than a custodial sentence.

The Crown submissions

41. The Crown submitted that the offender’s submissions reflected the range of sentencing options available to the court, however, here, the s 5 threshold was crossed because of the weight of the drugs involved. Sequence 1 involved opium that weighed more than seven times the indictable quantity, and Sequence 2 involved the vegetative material weighing much greater than the indictable quantity. However, the Crown characterised the objective seriousness of the offending as just above low range, based on those weights. The role of the offender here was that of a type of carrier, however, an aggravating factor was that there were some planning involved, namely, in the location of the substances and the arrangements made to collect them by driving from Canberra to Renmark. The Crown submitted that that level of planning meant that the offending crossed the s 5 threshold.

42. The Crown accepted that the offender had expressed remorse for his offending, was a person of good character and that the offence on the Form 1 did not add to the criminality of the offending. The Crown conceded that it was not opposed to a community based order, namely, sentence by way of an Intensive Correction Order.

Submissions in reply

43. Counsel for the offender submitted that the planning did not arise to the level of being an aggravating factor, notwithstanding that it could not be submitted that the absence of planning could amount to a mitigating factor. In response, the Crown submitted that the vegetative substances did look like flowers and therefore were not required to be secreted, and that the Doda, the subject of Sequence 1, was in a margarine container in the centre console of the car.

Determination

44. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

45. The objective seriousness of the offending must be assessed, having regard to all of the circumstances of the case. They include the weight of the substances involved in Sequence 1 and Sequence 2, together with the role played by the offender in obtaining those substances for the deemed purpose of supply.

46. Those circumstances were unique. I find that the offender was endeavouring to assist his friend’s father (known to him as “uncle”), to provide him with the substance for medical purposes during his visit to Australia in late 2017. I further accept that that person was suffering from a medical condition which would require pain relief, namely throat cancer, and there was no prospect of financial gain, or further dissemination of the illegal drugs within the broader community. I find the offender’s role here was that of a carrier of the drugs, however, that role involved both planning and organisation to locate the drugs and arrange for their transport. Tyler v R, supra, relied on by the offender, is of no real assistance here, as there was no hierarchy involved in the drug supply operation.

47. I further find that the drug contained in Sequence 2 was provided to the offender to enable the vegetative matter to be further processed for the same purpose. Notwithstanding the quantity of drugs involved, I find that in relation to both Sequence 1 and Sequence 2, the objective seriousness of the offending fell within the low range for an offence pursuant to s 25(1) of the DMTA as a deem supply offence, and at the middle of that low range. It still constituted serious offending, and the fact the Crown may have brought the proceedings in the Local Court carries little weight in the sentencing process.

48. The offender is entitled to a 25% utilitarian discount on sentence. I also accept that he is a person of good character. He has no criminal antecedents. In this case I find that his good character was not a factor which led to his offending, but rather his willingness to help a relative of a friend who he perceived to be in need was causative of his offending. I take into account, however, his remorse, his acknowledgement of his criminal conduct and the shame that it has brought upon him to be now associated with the supply of illicit drugs.

49. There are significant subjective factors to be taken into account here. The offender migrated to Australia as a 19 year old for the purpose of pursuing tertiary qualifications which he has successfully achieved. He has close associations with Indian based community groups in Australia, as well as in India and has been in permanent employment. The fact that this is a one-off offence, and he has no criminal history whatsoever, is also relevant in the sentencing process.

50. I have also had regard to the maximum penalty proscribed by Parliament for each of the offences of 15 years imprisonment and/or 2000 penalty units. The maximum penalty is a guidepost in the sentencing process and, having regard to the serious nature of the offending, I find that the threshold in s 5 of the CSPA has been crossed. However, I propose to sentence the offender by way of an aggregate sentence pursuant to s 53A of the Act. Before doing so, I am required to set out the Indicative Sentences in respect of each offence as a matter of transparency in the sentencing process. The Indicative Sentences are as follows:

Sequence 1 – supply prohibited drug (opium) – 18 months imprisonment

Sequence 2 – supply prohibited drug (Papaver Somniferum) – 20 months imprisonment

51. In aggregating the sentence, the principle of totality must be applied, and there must be some accumulation of sentence. Here, that accumulation is minimised as the offending arises out of the same course of criminal conduct, and I take into account that the prohibited drug in Sequence 1 is a derivative of the prohibited drug in Sequence 2. Further, there should be no accumulation in respect of the Form 1 offence here, given that it also arises out of the same conduct, and given the maximum penalties proscribed for that offence.

52. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

53. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

54. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

55. Having regard to those principles, I intend to sentence the offender to a term of imprisonment for a period of 2 years and 3 months. Given that the aggregate sentence is less than 3 years, and having regard to community safety as a paramount consideration, that sentence is to be served by way of an Intensive Correction Order. In R v Pullen, supra, at [84], Justice Harrison (with whom Johnson and Schmidt JJ agreed) said:

“84 In determining whether an ICO should be imposed, s 66(1) makes “community safety” the paramount consideration. The concept of “community safety” as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender’s risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community.”

56. In coming to this conclusion, I have had regard to the purposes of sentencing set out in s 3A of the Act, as set out above. I find that the offender has excellent prospects of rehabilitation.

Orders

57. I make the following orders:

1. You are convicted of the offence in Sequence 1, supply prohibited drug (opium) pursuant to s 25(1) of the DMTA.

2. You are convicted of the offence in Sequence 2, supply prohibited drug (Papaver Somniferum) pursuant to s 25(1) of the DMTA.

3. I sentence you by way of an aggregate sentence pursuant to s 53A of the CSPA to a term of imprisonment of 2 years and 3 months.

4. I have certified that I have taken into account the matter on the Form 1.

5. Pursuant to s 7(1) of the CSPA the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence on 17 May 2019.

6. You must report to Community Corrections office at Queanbeyan within 7 days from 17 May 2019.

7. The standard conditions of the order will apply:

1. You must not commit any offence, and

2. You must submit to supervision by Community Corrections.

8. The following additional conditions will apply:

1. A Community Service Work Condition requiring the performance of Community Service Work for 200 hours.

2. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

3. If the order is revoked, you may be required to serve all or some of the period of your sentence in full time custody.

9. You are directed to attend the Court Registry where a copy of this order will be explained and given to you.

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Decision last updated: 17 May 2019