R v Dowdell

[2022] NSWDC 529

District Court

New South Wales

Medium Neutral Citation:

R v Dowdell [2022] NSWDC 529

Hearing dates:

03 November 2022

Date of orders:

03 November 2022

Decision date:

03 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Matthew Dowdell is convicted.

2   Taking into account the discount for the plea of guilty (25%) and the matters on the Form 1, I impose a term of imprisonment of 18 months.

3 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 the purposes of sentencing in s 3A.

4 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 (3 November 2022) and expire on 2 May 2024.

5   The offender must report to the City Community Corrections Office on or before 4pm on 10 November 2022.

6   The standard conditions of the order apply:

(a) the offender must not commit any offence; and

(b) the offender must submit to supervision by a Community Corrections Officer.

7   The following additional conditions apply:

(a) the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

(b) the offender must receive treatment for drug rehabilitation and his mental health as reasonably directed by Community Corrections; and

(c) the offender must not associate with Brett Towers and Randall Cadby.

Catchwords:

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Regina (Crown)
Matthew Dowdell (Offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blair Criminal Lawyers (Offender)

File Number(s):

2021/266652

Publication restriction:

None

Judgment

Introduction

1. Matthew Dowdell (the offender) appears for sentence after pleading guilty in the Local Court to an offence of supplying a commercial quantity of a prohibited drug, being 1995g of gamma butyrolactone (GBL) contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is 20 years imprisonment and parliament has prescribed a standard non-parole period of 10 years.

2. The offender also asks the Court to take into account an offence of knowingly deal in the proceeds of crime ($450 cash) and failing to comply with a COVID-19 public health order on a Form 1.

Approach to Sentencing

3. 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).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

7. The parties presented an Agreed Statement of Facts that can be summarised as follows.

8. On 17 September 2021 police were conducting covert surveillance of the offender and Brett Towers in High Street, Bankstown. The offenders were sitting in a white Toyota Corolla facing towards Northam Avenue. Police were intercepting the calls to Mr Towers’ mobile phone, which was used to make arrangements between the offenders and an unknown male for the supply of prohibited drugs.

9. At about 5pm Mr Towers got out of the vehicle and walked up to Northam Avenue where he met an unknown male. Mr Towers and the unknown male were then seen to get into a number of motor vehicles including the Toyota Corolla at various points. During the course of these events, Mr Towers carried a green coloured shopping bag from the unknown male’s vehicle back to the Toyota Corolla. The unknown male then drove away. The Toyota Corolla left High Street and turned left into Northam Avenue. Police followed the Toyota Corolla.

10. At about 5.30pm police pulled over the Toyota Corolla on the Hume Highway just south of Muir Road in Chullora. The offender was in the driver’s seat and Mr Towers was in the front passenger seat. Both men were asked to get out of the vehicle.

11. In the front passenger seat footwell, police observed a green shopping bag on the floor. Inside was a 2 litre Coca-Cola bottle filled with clear liquid. The bag and the bottle were seized. Subsequent forensic analysis revealed it to be 1995g of GBL with a purity of 88%.

12. Both men were placed under arrest and cautioned. The offender was searched and police located $450 in Australian currency. Both men were taken to Bankstown Police Station.

13. The offender’s mobile phone was seized. Police located a number of text messages between the offender and Randall Cadby arranging for the offender to supply Randall Cadby with 1 litre of GBL for $3,500. Police located evidence of a transfer of $3,500 into the offender’s account by Randall Cadby of which $2,000 was later transferred into Mr Towers’ account, $1,000 into an account belonging to the offender and $500 was withdrawn in cash from an ATM in the Bankstown area.

14. The offender participated in an electronically recorded interview. He denied any knowledge that Mr Towers was meeting someone to buy the GBL. He told the police that the money seized from him was money he had received from the Government.

Sentencing Assessment Report

15. The Court received a Sentencing Assessment Report (SAR), the content of which can be summarised as follows.

16. The offender resides with his partner. He has shared custody of his son from a former partner. The offender told the author of the SAR that he was under financial stress at the time of the offending and contact with anti-social associates led him to discussions relating to drug use and supply. He had legal fees to pay in relation to Family Court proceedings and a problem with gambling. The offender has a history of illicit drug use including GHB, methamphetamines and cannabis. He described himself as “self-medicating as a means of escapism and to feel anything other than anxious”. The offender described experiencing immense difficulty and stress in coping with the custody conflict relating to his son against a background of Attention Deficit Hyperactivity Disorder (ADHD), anxiety and depression for which he receives psychological assistance.

17. The offender understood the impact that his actions could have had on the community and was willing to participate in community service work and interventions. He was assessed as a medium to low risk of re-offending and suitable for supervision and community service work.

The Offender’s Case on Sentence

18. The offender tendered the following documents:

1. psychological report of Yiota Zingirlis, psychologist, dated 31 October 2022;

2. undated report of Dr Nathan Fleisch, psychiatrist;

3. clinical notes Coogee Medical Centre;

4. Better Access Mental Health Care Plan dated 26 October 2022;

5. letter from the offender dated 31 October 2022;

6. character reference from Jessica King dated 20 October 2022;

7. character reference from Lothinthasone Kittikhoun dated 25 October 2022;

8. character reference from Michael Confos dated 23 October 2022;

9. character reference from Nicholas Nicholls SC dated 31 October 2022;

10. character reference from Harrison Strong dated 23 October 2021.

19. The following is a precis of the evidence relied on by the offender.

20. The offender is 40 years of age. He is the eldest of three children born to his parents’ union. His mother worked as a nurse and his father was in the Navy.

21. At about age five he became disruptive at school. At age eight, his six-month old brother became unwell with encephalitis and later developed cerebral palsy. His parents became focussed on finding available therapies for his brother. He found that he had to “fend for himself”. He spent his time surfing and was supported by pro-social influences.

22. At about age 12 he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed dexamphetamines. He found school difficult. He was frequently in trouble for being disruptive and found it difficult to concentrate. In Year 7 he went to a different high school and was separated from the friends that he knew. He found this daunting but considered it could be a new start. Soon after commencing at that school he was exposed in front of the class for taking ADHD medication. He was subsequently bullied and teased to the point where he stopped taking the medication. He had several casual jobs in his teens while he was at school and credited his parents for instilling a good work ethic into him.

23. In Year 12 his favourite subject was industrial technology and he went to TAFE and commenced a building apprenticeship. Within one year he suffered a back injury whilst surfing and ceased working in the construction industry. He then worked in hospitality for about 14 years in different positions. His longest period of employment with one company was four years.

24. The offender first tried cannabis at age 13 for a short period. He first consumed alcohol with friends at age 15. In his twenties, whilst he worked in the hospitality industry, he smoked cannabis more regularly, used recreational drugs like ecstasy and cocaine on the weekends and drank heavily. He also tried methamphetamine but did not use it regularly. He sought assistance for alcohol abuse when he was 23 years of age and he curbed his intake for a long period.

25. He subsequently completed a Certificate in Marine Engineering and commenced working on boats. The offender continued in gainful employment up until the COVID-19 lockdowns when he lost his job. He is currently enrolled in further Certificates in the marine industry, which he has put on hold as a result of the current Court proceedings.

26. The offender met his ex-partner in 2015. In May 2016 his son was born. They moved into a house in Maroubra owned by his parents. Shortly afterwards, they both suffered symptoms of depression and the relationship ended in about February 2018. The separation was not harmonious. He was initially denied access to his son but that was subsequently sorted out at mediation. He felt there was some chance for reconciliation but it did not come to fruition.

27. After he lost his job in March 2020 he obtained some casual employment as a food delivery driver and was in receipt of social security. He met his current partner, Ms King, in June 2020.

28. In about October 2020 his ex-partner was introduced to Ms King, which was the cause of significant conflict. He was assaulted by his ex-partner and the police were called. She cut ties from his family and began to restrict access to his son again. There were apprehended violence orders applied for and issued between the parties. He was unable to see his son in the period of October 2020 to December 2021. The access dispute was taken to the Family Court. This caused him significant grief and impacted his mental health. He lost his routine, he stopped surfing and was experiencing financial difficulty. He experienced problems with attention, anxiety and became depressed. He began using illicit drugs in increased quantities including regularly using ice, cocaine, ketamine, GHB and alcohol to excess. He was using drugs and alcohol to the point where he would pass out. Ms King was attempting to assist him to stop.

29. The offender told the psychologist that the current charges were a “wake-up call”. He returned to seeking psychological assistance. He has been attempting to maintain abstinence from illicit substances and focus his return to a routine with access to his son being a significant motivation. He has not yet returned to work in the marine industry as a result of his reporting requirements.

30. The psychologist opined that the offender was suffering from ADHD and substance use disorders. In the lead up to the offence he was experiencing significant distress and attempted to self-medicate through illicit substance use. His ADHD diagnosis heightened the risk of him engaging in impulsive and reckless behaviour, further impairing his insight, decision making and judgment and worsening any underlying mental health issue. The psychologist opined that the offender was a low level risk of re-offending and recommended that he continue to engage with treatment for his mental health.

31. Dr Fleisch, the offender’s treating psychiatrist, opined that the offender has suffered from long term severe Generalised Anxiety Disorder, recurrent Major Depressive Disorder and ADHD. Dr Fleisch opined that the offender’s mental state has been gradually stabilised on psychotropic medication since engaging with him in March 2021. Dr Fleisch stated that ADHD is characterised by impulsivity, poor attention and concentration, emotional dysregulation, poor memory, persistent anxiety, inability to execute tasks, procrastination and a sense of helplessness and hopelessness which can accumulate into depressive disorders leading to self-medication with illicit substances. The offender has been consulting with Dr Fleisch monthly and he has responded well to treatment and has been abstinent from illicit substances. The offender has expressed remorse to Dr Fleisch and described himself as being “ashamed”. Dr Fleisch opined that the offender has good insight and has been compliant with his treatment regime and recommended that he continue to engage in treatment.

32. The offender has been open and honest with his character referees. They all support him as a person of good character and as someone who has realised the error of his ways and is seeking to make amends.

Objective Seriousness

33. The offence is of limited objective gravity.

34. The quantity of the drug at 1995g was about two times the commercial quantity and half of the large commercial quantity. The drug was in a single container. The purity of the drug was 88%. The prosecution relied on the deeming provision to prove supply. The offender drove Mr Towers to and from the location to collect the drugs. The offender had made arrangements with Mr Cadby to supply some of the drugs to him and had received $1,500 for his involvement in this agreement which could not be completed by reason of the offender’s arrest. There is no evidence that the offender was part of a larger organisation.

35. The offender’s complex mental condition led to his substance abuse. His moral culpability for the offence is reduced to some extent. His ADHD has impacted his ability to cope with the unusual stressors of the situation he found himself in.

36. I have taken into account the maximum penalty for the offence.

Deterrence

37. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment.

38. There is a need for specific deterrence but it is significantly reduced. The offender has entered an early plea and taken responsibility for his actions. He has managed to remain abstinent since the offences and I am confident that he understands the need to rehabilitate himself from drug and alcohol use.

Aggravating Factors

39. There are no relevant aggravating factors.

Mitigating Factors

40. The offender does not have any record (or any significant record) of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender has a minor record of criminal convictions that are not relevant to this sentencing exercise.

41. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. Notwithstanding that the offender has some minor criminal convictions, I am satisfied on the basis of the content of the character references, that he is a person of good character.

42. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by re-engaging with psychological treatment and his attitude generally, that he has good prospects of rehabilitation. He has strong support from his family and partner and has frankly exposed his shortcomings to his referees. I note that he has had positive outcomes from previous engagements with drug and alcohol rehabilitation.

43. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to the authors of the reports, the Court and his character referees. I am satisfied that he has accepted responsibility for his actions and that he is truly contrite. His plea of guilty also indicates remorse.

Other Matters

44. I note that the offender has been the subject of curfew bail conditions since his arrest and has had to report daily to the Police.

Penalty

45. Matthew Dowdell is convicted.

46. I have considered section 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

47. Taking into account the discount for the plea of guilty and the matters on the Form 1, I impose a term of imprisonment of 18 months.

48. 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.

49. The offender presents very little risk to community safety. I am satisfied that the offence came about through a complicated set of circumstances and that the offender has learnt from his mistakes and that he is unlikely to re-offend. He has strong family and community ties and a strong desire to maintain a relationship with his son. I am satisfied that these prosocial influences will guide his further behaviour.

50. By reference to his ADHD and the genesis of substance use, his moral culpability is reduced and accordingly, general deterrence, denunciation and retribution can be afforded less weight.

51. An order that the sentence be served by an ICO will promote the rehabilitation of the offender and make him accountable for his actions. An ICO is a sentence of imprisonment that will significantly impact on the offender’s freedom and will reflect the seriousness of the offending conduct and the harm done to the victims and the community.

52. 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 (3 November 2022) and expire on 2 May 2024.

53. The offender must report to the City Community Corrections Office on or before 4pm on 10 November 2022.

54. 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.

55. 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 drug rehabilitation and his mental health as reasonably directed by Community Corrections; and

3. the offender must not associate with Brett Towers and Randall Cadby.

56. 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.

57. The offender must attend the Registry where a copy of the order will be explained and given to him.

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Decision last updated: 03 November 2022