R v Dunn

[2025] NSWDC 104

District Court

New South Wales

Medium Neutral Citation:

R v Dunn [2025] NSWDC 104

Hearing dates:

20 February 2025

Date of orders:

20 February 2025

Decision date:

20 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Large commercial quantity — Indictable quantity — Recklessly dealing with money suspected of being proceeds of crime —Cannabis, cocaine, LSD and methylamphetamine

SENTENCING — Mitigating factors — Plea of guilty — Treatment as no record of previous convictions — Significant steps towards Rehabilitation

SENTENCING — Relevant factors on sentence — Objective seriousness — Delay — General deterrence — Form 1 offences — Multiple offences — What is a crushing sentence — Accumulation, concurrency and totality— Quasi custody — Co-offenders — Parity and proportionality — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorders — Gambling addiction — remarkable progress toward rehabilitation

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Blackman and Walters [2001] NSWCCA 121

Confiscation of Proceeds of Crime Act 1989 (NSW)

DeSimoniv The Queen (1981) 147 CLR 383

Director of Public Prosecutions v Merriman [1973] AC 584

DPP (Cth) v Maxwell [2013] VCA 50

Engert v The Queen (1995) 84 A Crim R 67

Hamzy v R (1994) 74 A Crim R 341

MAK v R; MSK v R [2006] NSWCCA 381

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Olbrichv The Queen [1999] HCA 54; (1999) CLR 27

Petkos v R [2020] NSWCCA 55

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Arcella [2020] NSWDC 833

R v Cidan [2014] NSWCCA 66

R v Clinch (1994) 72 A Crim R 301

R v Despotovski [2020] NSWDC 110

R vGeddes (1936) 36 SR (NSW) 554

R v Herring (1956) 73 WN (NSW) 203

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v Shi [2004] NSWCCA 135

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Tang [2020] NSWDC 96

R v Windle [2012] NSWCCA 222

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Yardley and Betts (1979) 22 SASR 108

Texts Cited:

NSW Bar Association, “Drug Law Reform” (November 2014) 24 Criminal Law Committee Discussion Paper 1

W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1

Category:

Sentence

Parties:

Kirk Anthony Dunn (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
M Ward solicitor for Morrisons Law (for the offender)
N Verghese solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/219800

JUDGMENT – ex tempore judgment

Introduction

1. In July and August 2018, Kirk Dunn was purchasing quantities of cannabis from Goran Despotovski, which he then on‑sold. He was arrested in December 2018 and given bail. He did not keep to his bail conditions. He did not appear at Court. He went on the run.

2. In April 2023 he was arrested again, and soon after given bail again. A police investigation and searches of apartments he occupied lead to his rearrest in July 2023. He spent a period on remand and then on 31 August 2023 he was bailed to live at the Restoration Centre where he remains. There he has made remarkable progress toward his rehabilitation from a longstanding substance abuse problem.

Facts for sentence

3. There are Agreed Facts for sentence before the Court. In 2018 a police strike force into the activities of Despotovski led them to put surveillance measures into place. That surveillance produced evidence that on 11 occasions Dunn purchased cannabis from Despotovski for the purpose of sale to people in our community. Police estimate that over 25 kilograms of cannabis was obtained from Despotovski.

4. A search warrant executed in December 2018 found; $12,000 in cash, a small quantity of cannabis, 47 grams of methylamphetamine, and various other matters.

5. Dunn was not spoken to by police until he was stopped in Crown Street, Wollongong on 5 April 2023, with a woman whose trial is before Wollongong Court later this year. Police searched him and found fobs and keys and $3,300 in cash. Phones were examined and search warrants were executed at the units connected to the fobs found.

6. In one unit, police found a combined total of 23.89 grams of lysergide (‘LSD’). The LSD was inside sugar cubes, in tablet form, in strip form, in foil form, and in liquid form. Also found were quantities of cannabis totalling 1.622 kilograms. There were also quantities of methylamphetamine totalling about a bit over 1.5 kilograms, the bulk of it in two vacuum sealed bags.

7. Other premises in the same unit building were also searched. Material associated with drug supply and packaging of drugs including a pill press were found. Various other substances or things associated with the supply of drugs were also found.

8. When he was before the Local Court Dunn accepted his guilt in relation to a large number of matters. The plea negotiation process led to a number of charges being referred to this Court and others being placed on Forms 1.

9. In relation to all matters, he accepted his guilt when he appeared in Court last week. In relation to the specific matters for sentence he adhered to pleas entered in the Local Court. The 2018 matters are:

• Sequence 12: Supply a prohibited drug, cannabis, commercial quantity 25.36 kilograms, charged pursuant to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW), maximum penalty 15 years imprisonment.

• Sequence 13: Recklessly deal with the proceeds of crime, charged pursuant to s 193B(3) Crimes Act 1900 (NSW), maximum penalty 10 years imprisonment.

• Sequence 15: Supply prohibited drug methylamphetamine of the indictable quantity, charged pursuant to s 25(1) Drug Misuse and Trafficking Act, maximum penalty 15 years.

• Sequence 16: Supply of a relatively small amount of cannabis on a Form 1 for Sequence 12.

10. The 2023 matters are:

• Sequence 4: Supply prohibited drug large commercial quantity of LSD, charged pursuant to s 25(2) Drug Misuse and Trafficking Act, maximum penalty life imprisonment, standard non-parole period 15 years imprisonment, that to which is attached a Form 1 in a number of matters.

• Sequence 16: Supply prohibited drug commercial quantity, 1.622 kilograms of cannabis, s 25(1) Drug Misuse and Trafficking Act, maximum penalty 15 years imprisonment.

• Sequence 23: Supply prohibited drug commercial quantity, 490 grams of cocaine, s 25(2) Drug Misuse and Trafficking Act, maximum penalty 20 years imprisonment, standard non‑parole period 10 years imprisonment.

• Sequence 24: Supply prohibited drug large commercial quantity, 1.62 grams of methylamphetamine, s 25(2) Drug Misuse and Trafficking Act, maximum penalty life imprisonment, standard non-parole period 15 years. Each of those matters has a Form 1 attached to it.

• Sequence 25: Recklessly deal with the proceeds of crime, s 193B Crimes Act, maximum penalty 10 years imprisonment.

11. Also to this Court for sentence are two matters put before the Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate:

• Possess tablet press or drug “encapsulator”, charged pursuant to s 11B(1) Drug Misuse and Trafficking Act.

• Possess ammunition without holding a licence, permit or authority, charged pursuant to s 65(3) Firearms Act 1996 (NSW).

12. The maximum penalties and, where applicable, standard non-parole periods are important guides to the exercise of my sentencing discretion both convey Parliament’s view of the relative seriousness of an offence. I must give content to the standard non-parole period.

The Forms 1

13. As required by the Crimes (Sentencing Procedure) Act 1999 (NSW) I will take the Form 1 matters into account when determine the appropriate penalty for the offence to which each relates: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22] (Bathurst CJ).

14. I do not in any sense impose sentences for the offences on the Forms 1. They do generally operate to increase the sentence that would otherwise be appropriate. I do so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54]. The increase recognises the need for personal deterrence and retribution for the crime for sentence, as the guideline judgment makes clear: Attorney General’s Application No. 1 at [39]-[42].

15. Sometimes, and as here, for the 2023 matters, Forms 1A, 1B and 1C, that increase can be substantial: Attorney General’s Application No. 1 at [18]. Although I have to be careful that any increases also are subject to general principles in regard to totality.

16. Where a matter on a Form 1 would not, if dealt with separately, have added to the sentence, it should not increase the sentence to which it relates. It is recognised that for some sentences the Form 1 simply provides a mechanism to ‘clear the slate’ of all outstanding charges. The Form 1D 2023 and the Form 1 for the 2018 matters fall into that category.

The Guilty Plea

17. Because guilty pleas were entered in the Local Court, and as I will be imposing an aggregate sentence, I will reduce each indicated sentence by 25% to reflect the utilitarian value of the guilty pleas. I will take care in the process of accumulation not to erode that benefit.

18. In addition, here each guilty plea shows an acceptance of responsibility and so far as anyone involved in the drug trade can express it – remorse, there being no particular specific victim of their crimes other than the community.

Proportional sentences

19. A judge in sentencing must identify all factors relevant to the sentence, discuss their significance and then make a value judgment as to the appropriate sentence to be indicated and the aggregate sentence.

20. Each sentence must be proportionate to what was done, that is the crime committed. An assessment of objective seriousness of each offence is essential to setting the parameters of the appropriate sentence. Here, each of the fundamental matters are matters involving the supply of illicit drugs.

21. I can only act to the extent of what is known, admitted or revealed in the evidence or Agreed Facts: Olbrich v The Queen [1999] HCA 54; (1999) CLR 27. In making assessments about objective seriousness, here the quantity of the drug being possessed for the purpose of supply is significant, as are where there are actual supplies, the number of instances of supply. I have regard to the way the drugs are held or packaged and the individual quantities involved. I have to consider, so far as it is possible, the role of the offender in any drug supply enterprise.

22. I have to have regard to repetition of offending, any system; that is, as best I can ascertain the business operation of the supply, and of course, the magnitude or otherwise of any operation and the role of the offender in it. These principles apply to all those who engage at any level in drug supply networks.

23. So far as the 2018 matters, he purchased from Despotovski for his own small business.

24. The evidence here does not establish to the high standard required, beyond reasonable doubt, that so far as the 2023 matters are concerned the offender was, what would generally be regarded as a ‘principal’. I am prepared to accept that on balance, so far as 2023, as he said in evidence he was looking after drugs on behalf of a principal in return for reduction of a large drug debt and accommodation. But, and it is an important “but”, he was also supplying quantities of drugs to gain funds to live, to gamble and to maintain his own drug habit.

25. A degree of scepticism is always required in making such assessments. His assertions in evidence were not able to be fully tested. He occupied premises where many different drugs were found, and they were packed in different ways. He was fully aware of what was being stored there. He used and sold some of what was stored to maintain himself in the years he was hiding from the law.

26. His admissions about what he was doing with the drugs and why and for how long go to my understanding of his role and his reason for possession of the drugs and other things revealed by the Form 1 matters.

27. I have to be careful. His admissions relate to activities other than those for sentence. I do not sentence for those matters, but subject to the principle spelt out by the High Court in De Simoniv The Queen (1981) 147 CLR 383, I can conclude that his arrest, and the point of time at which the drugs were discovered in 2023, meant that he had been involved in the supply of more drugs than those the subject of charges.

28. General principles requiring harsh deterrent punishment apply to all those who engage at any level in drug supply networks. Absent the involvement of street sellers or people warehousing drugs, drug distribution networks would simply collapse: R v Shi [2004] NSWCCA 135 at [34] (Wood CJ at CL).

29. As with most supply offences for profit, no matter at what level, an offender is engaged in that network, these matters were committed without regard for public safety and were clearly part of organised criminal activity. Again, care needs to be taken, particularly against the dangers inherent in double counting matters when multiple sentences are involved. There is always a danger that in sentencing, a judge can be distracted from a proper assessment of the gravity of an offence by specific reference to 21A(2) Crimes (Sentencing Procedure) Act matters. I have taken care not to double count any matter against the offender.

Objective seriousness

30. Deterrent principles are applied more harshly on those who seek to make large profits, but there is no evidence Dunn was in that category. His role is critical for assessing the objective seriousness of offences and, to the extent any judge can, its location in some notional range of seriousness. His role is one reason for my determining that the large commercial supply offences do not fall in the mid-range of seriousness but below that range.

31. The counts involve different drugs. The Drug Misuse and Trafficking Act does not allow for different drugs to be charged as one charge. Quantities relating to specific drugs were rolled up. A single count can charge matters that relate to a number of different quantities of the drugs which involve either multiple acts or multiple ways in which the drugs were packaged. This is entirely appropriate and legitimate way of resolving matters such as this: Hamzy v R (1994) 74 A Crim R 341 at [351]-[352]. It does mean that the maximum penalty can, because of the accumulation, be higher than if they had been dealt with separately. But at the same time one offence means that multiple offences with higher maximum penalties were not charged.

32. The offences for each period were connected in time and place and their commission appears to be for a common purpose. Each year’s offences, 2018 and then 2023, can fairly be regarded as part of the same transaction or criminal enterprise: Director of Public Prosecutions v Merriman [1973] AC 584 at [607].

33. The 2023 drugs were seized and not distributed, but the offender was not intending to get caught and was intending to play his role in the dissemination of the drugs. This feature does not mitigate his subjective criminality, but obviously the police were able to prevent their distribution into the community.

34. Turning now to each offence.

2018 offences

Sequence 12 – Supply cannabis commercial

35. In 2018 the supply, Sequence 12, the quantity of drugs supplied was large, so too are the number of transactions; there were 11 transactions. Neither factor is determinative, but the offender supplied these drugs in order to take a ‘cut’ or profit from his supply. This indicates that while he may have been a user he was also seeking to live off the proceeds. That is, take a small part of the huge profits that can be made from the illicit supply of cannabis in our community.

36. Anyone who engages in such matters, can expect that a custodial sentence be imposed, given the maximum penalty and quantities and number of sales. The maximum penalty recognises, not just the harm to those who might ingest the drug, but the harm to the community generated by the profits from such sales. This was a serious example of its type and requires a custodial sentence.

Sequence 13 – Recklessly dealing with the proceeds

37. It is an inevitable consequence of any supply of drugs for cash that at some level of the supply / purchase cycle an offender will be in possession of the proceeds of their crime. Here the amount is relatively modest, but that might reflect the stage of the cycle he was arrested at. Some of the profits would have been required to purchase the next instalment.

38. While at a relatively low level, a custodial sentence is still required for this matter. It can be moderated by an almost complete concurrence to avoid any suggestion of double counting – as the commercial aspect of his offending was intrinsic to my assessment of the 2018 supply cannabis offence.

Sequence 15 – Supply of methylamphetamine

39. The amount seems indicative of a street level supplier who also uses the drugs. It was of course, serious but at a relatively low level. Had it stood alone it may not have required a custodial sentence, but in context there is no other option.

2023 offences

Sequence 4 – LSD large commercial

40. Lysergide or LSD can be purchased as a liquid and supplied as discrete dosage units by placing a dose of LSD on a sugar cube or a square of foil or cardboard. In liquid form, 1 gram equals 1,000 micrograms and 20 micrograms equates to 715 discrete dosage units. They are often sold for about $25 a dose: Sergeant Davies, Exhibit A, p 98.

41. Thus, while the weight of the drug is important for a basis for the penalty range, when drugs are supplied as a liquid it could not, and should not, be determinative of the sentence. To the contrary, greater emphasis should be placed in such matters on “dosage units”, the role of the offender in the supply chain and any system or potential reward he anticipated. It is the actual, or the potential reward, being one of the principal sources of crime in the community, that requires deterrent sentences: Petkos v R [2020] NSWCCA 55; DPP (Cth) v Maxwell [2013] VCA 50.

42. There is no evidence that Dunn actually supplied LSD, but he had it in its control, and on balance, appears to be storing it for others to later supply. The total weight would not be an accurate measure of its potential impact if distributed. However, it appears over 1,500 potential discrete dosage units were discovered, thus making this, because of that fact, a very serious offence requiring a custodial sentence.

Sequence 16 – Commercial quality of cannabis

43. The cannabis was stored in bulk, it was a lot less in quantity than the 2018 offence and appears to be relatively low in the range, given all of the factors now before me.

Sequence 23 – 490 grams of cocaine

44. About 450 grams of the cocaine was packaged, and as such, Davies noted in Exhibit A at page 96, this is a significant quantity indicative of upper level commercial supply. The purity, the sergeant said, is more consistent with street level purity. He estimates if sold that $138,000 to $193,000 could be recovered. Of course someone would have had to pay for those drugs. I have no idea what potential reward was sought by the principal or to what extent, if any, Dunn would have benefited other than having his drug debt reduced and being provided with accommodation and drugs for his own use and so he could maintain his street level supply operations.

44. It had not been packaged for sale. Nevertheless, given the commercial quantity of cocaine is 250 grams, it has to be regarded as a serious example of its type requiring a custodial sentence.

Sequence 24 – 1.6 kilograms of methylamphetamine

46. The quantity of methylamphetamine found was significant. But 1.5 grams of the drug had not been packaged for sale. It has a purity of less than 1%! If it was sold its buyers would have been very disappointed. As Sergeant Davies noted at p 96: “The exhibit is diluted obviously heavily with MSN and caffeine … it is unlikely a user would return for this quality of product.”

47. I have no real information other than it was being stored and for what purpose. In the matter of R v Cidan [2014] NSWCCA 66 I was faced with a similar dilemma. The Court of Criminal Appeal said I underestimated the objective seriousness of the offence. With great respect to the Court, and of course I accept their guidance and correction in Cidan, this matter, because of its extremely low purity, the fact it has not been packaged for sale, put it low in the range of what was otherwise serious offending because of the nature of the charge and its maximum penalty. That said, a custodial sentence is warranted.

Sequence 25 – Proceeds of crime

48. As I said earlier it is an inevitable consequence of drug supply operations, that depending on when in the cycle, an offender may be caught with different quantities of cash on hand. That Dunn needed money (even at relatively low level) or did what he did to repay a debt, there was a commercial flavour to his operations in 2023. That flavour was intrinsic to my assessment of the objective seriousness of all the 2023 matters. While I fix a penalty for the proceeds matter, the sentence would be required to be almost completely concurrent with the other matters. I avoid any suggestion of double punishment.

Other factors

49. In 2018 and now the offender’s criminal antecedents, indicate he had only two matters on his record, and they are quite a different type to those here for sentence today. At least until 2018 he was entitled to the leniency often given first offenders. But once he started offending in 2018, he did not stop his criminal activity until his arrest in 2023. But I will be sentencing for all of those matters.

Case for the offender

50. In evidence Dunn told me frankly what he had been doing and why. That said, I am still unsure about what his role was or how he interacted with his co-accused. I remain unsure how he interacted with the person he describes as his “supplier” and the person to whom he was indebted and who he was minding the drugs for. He was guarded about his references to co‑offenders. He is not to be punished for that. That reticence is entirely understandable given the nature of the drug trade and the possible retribution that can be inflicted on people who seek to extricate themselves from that trade. But it does make a proper assessment of his role difficult.

51. He has solid plans for his future. He has, I find, worked assiduously since his release to the Rehabilitation Centre, to his goal of living drug-free, working in the community and living again with his family. He has done everything a person could do in his position. As Mr Sanderson from the Rehabilitation Centre said in evidence, he has made “fantastic progress”, he has “set the bar”, and he has shown “laser focus”.

52. The references before me demonstrate strong prosocial supports.

53. His personal history is uncontroversial. It is set out in the personal references provided to me and the report of Ms Grujoska, psychologist.

54. He was born in the United Kingdom. He came to Australia as a young adult. As a child it appears that he was subject to regular physical and emotional abuse from his father. His mother not only left his father but left the country to reestablish herself in Australia, where he later joined her.

55. He took up the use and abuse of cannabis when he was too young to make rational choices. He became, from the age of 14, a chronic cannabis smoker which it appears has continued until he entered custody following his last arrest. He has regularly used other illicit drugs.

56. He struggled at school. It appears that he may have had Attention Deficit Disorder (‘ADHD’). He was subject to threats and potential violence in the neighbourhood he grew up. It is clear that growing up with his father was a traumatic experience for him.

57. It was only when he came to Australia that he was able to form a stable relationship with his mother and then form his own relationship with the mother of his child who he describes as “a great person” and a good influence on his life.

58. It is sad and tragic that his drug use took precedence over that influence. He was however able to work and has a professional qualification which he has utilised to advantage. By 2018 his offending put an end to his relationship, at least until now. His partner is here today and offers him her support.

59. He suffered a violent assault in 2016 at a Wollongong night club. He had plates placed in his cheek. He tells me, as he told Ms Grujoska, that it after that injury he moved on to the use and abuse heavier drugs than cannabis. The psychologist indicates that it may have been in reaction to trauma symptoms.

60. Under the heading “Mental Health” Ms Grujoska reports a family history of depression, suicidal ideation while incarcerated, and a deep fear of returning to custody. She indicates that there is evidence of Post-Traumatic Stress Disorder (‘PTSD’) and symptoms consistent with ADHD. She notes that with the help of medication, his rehabilitation program, and restored faith in God, things are progressing much better. He is able now to talk about his problems; something he was not able to do before.

61. There is a history, not just of drug use, but problematic alcohol use and a significant gambling addiction. He told the psychologist, as he told me, that he takes full responsibility for his actions for which he is deeply ashamed.

62. Ms Grujoska notes that he demonstrates good insight into his mental health and drug issues, and he would, if gaoled, benefit from an EQUIPS Addiction and Understanding Self-Help programs. He will need to engage in cognitive behavioural therapy. He would be assisted by victims counselling given his previous assault in 2016. She believes that prison-based programs would not provide him with the level of targeted therapy he requires and she notes that given the violence he has suffered and injuries he has suffered in the past from his father, and then in the night club, that “the violent and / or threatening gaol environment … [would] heighten his hypervigilance … and … increase the risk of relapse” into drug use which of course would impede his rehabilitation.

63. The material set out was supported by evidence on oath both by the offender and the references I have received. There is a Mental Health Care plan in place. He has graduated after spending a year in the Rehabilitation Centre. He is a model for others. He has worked to pay for the costs of his treatment and accommodation as a chef in the centre. He now has full time accommodation and full time employment. He is keen to reestablish himself in the community and demonstrate that he has proved himself to his family and the community.

64. Drug use cannot excuse what he did, nor can a gambling addiction. But drug use remains relevant to my sentence because it helps me understand not only why Dunn did what he did, but his attempts to overcome it, go to his prospects of recidivism or rehabilitation. Dunn’s drug use helps me understand his state of mind and his lack of capacity to exercise sound judgment in the period 2018 to 2023. It also helps me assess the man for sentence in 2025.

65. Dunn’s mental health problems (probable PTSD and symptoms consistent with ADHD), his problems as a child, and the traumas he has suffered, both as a child and as an adult, go to reduce his moral culpability. His mental condition, his childhood and his drug use, did obviously impede his development of a moral compass. There is therefore, some consequent reduction in the need to denounce his crimes. But sadly, problems such as those noted by Ms Grujoska are common to offenders, particular drug offenders.

66. I do not under value the impact of what Ms Grujoska describes as “hypervigilance” while in custody, but that and his other conditions do not significantly, increase the burden associated with custodial sentences. Sadly, many prisoners are burdened by such matters. Nor do they make the offender an inappropriate vehicle for general deterrence. Although there is room for reduction of the principle that requires a heavy sentence in order to send a message to others.

67. All the matters before me also reduce the need to impose a sentence that further deters this offender.

Parity

68. For the 2018 matters I have dealt with a number of other co‑offenders; Arcella, Despotovski and Tang: R v Arcella [2020] NSWDC 833; R v Despotovski [2020] NSWDC 110; R v Tang [2020] NSWDC 96. I have to have regard to their sentences and their personal histories. “Like must be compared with like”. But different personal and criminal histories can “justify a real difference in the time” fixed for any sentence. The principle is known as parity. It can also encompass the structure of the sentence: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

69. There should be proportionality between this sentence and that of Mr Arcella. But of course, Mr Arcella went to trial and his subjective circumstances were different.

Delay

70. I am sentencing for offences committed in 2018 and 2023. Taking into account that delay calls for some understanding and flexibility of approach. The initial delay, 2018 to 2023, did not operate to the offender’s advantage. He committed more crimes and more serious crimes. He lived outside the law for four years and supported himself by his own admission continuing to trade in illicit drugs.

71. He did however utilise the second chance given to him when he was given bail in 2023. That bail gave him the opportunity to deal with his drug abuse problems and to establish a new life and demonstrate very, very positive progress towards rehabilitation, making it is less appropriate to punish him.

Totality

72. I am still required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to all of his offending. I do not simply add one atop the other. That means in a broad sense, estimating and considering his overall criminality. In matters such as this, where so many matters are before the Court for sentence, some downward adjustment is necessary in the individual sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of sentence: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).

73. Mr Booker urged me not to impose a “crushing” sentence citing MAK v R; MSK v R [2006] NSWCCA 381 and R v Clinch (1994) 72 A Crim R 301 at [306]. That is not to impose a sentence that would crush Dunn’s motivation, demonstrated progress by his rehabilitation and his very positive plans currently underway, because a return to full time custody might cause him to give up hope.

74. Gaols are violent places. They are not places conducive to rehabilitation. Dunn did not respond well to his 55 days on remand. His time in custody gave him incentive and he responded. He now has a job. He has family support, and he is reestablishing his relationship with his former partner and child. If he sits in gaol and succumbs to despair and resumes drug use, all that good work may be lost. If that happens neither the offender nor the community would benefit. His chances of a productive life on release would not be helped if he abandons hope and does not cooperate with gaol authorities.

Special circumstances

75. Dunn has demonstrated progress towards rehabilitation that and his need for help adjusting to community life on release and the real risk that he would not get proper assistance in custody provide for finding of special circumstances, and a significant one. But the minimum period for which he must be imprisoned, and he must be imprisoned, should properly reflect the gravity of his offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Submissions

76. I am indebted to Ms Verghese, solicitor for the Director of Public Prosecutions, and Mr Booker, for Dunn, for their comprehensive written and oral submissions. I hope this judgment shows justice to them. While I have not explicitly referred to each of the matters raised, the written and oral submissions were comprehensive, and I sought to consider and address them in coming to my determinations today.

Synthesis

77. Sentences and the reasons for them should be as transparent as possible. Everyone should know why a sentence is imposed, and I have to make intuitive judgments and different factors require different considerations. Where there are multiple offences and different charges, some compel concurrency as I have noted, but where they are separated in time and quite different, accumulation is required.

78. Care must be taken to assume that lengthy periods of imprisonment do not result in a disproportionate level of punishment. In particular here; if the offender were to become institutionalised the value of the considerable steps already taken toward rehabilitation would be diminished. There should be a degree of leniency as a reward for progress towards a normal life after the end of a sentence.

79. The Court should attempt to ensure that such progress is not impeded or crushed. But what is proportionate and what is seen as crushing really depends on the perspective of the observer, the community, the appeal court or the offender: Director of Public Prosecutions Cth v Beattie [2017] NSWCCA 301 at [26]-[45] (Basten JA).

80. A court must take into account all material facts. Here some aggravate, some mitigate. There is no golden rule: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian at [65]. Giving weight to the conflicting purposes of punishment is what makes the exercise of a sentencing discretion so difficult: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [476]. On one hand, deterrence of others may be of lesser importance than some sentences: Engert v The Queen (1995) 84 A Crim R 67 at [68]. But ultimately, judges have to consider the protection of society.

81. The protection of the community is contributed to by the successful rehabilitation of offenders and this aspect of sentencing should never be lost sight of: Yardley and Betts (1979) 22 SASR 108 applied in Blackman and Walters [2001] NSWCCA 121.

82. We have no access to Drug Court programs in the Illawarra. Dunn would be a prime candidate for that program. I can however attempt to structure a sentence to encourage his progress towards rehabilitation and facilitate his reintegration into the community.

83. The community must understand the problems caused by illicit drugs cannot be solved by simply arresting or gaoling our way to a solution. Harsh prison sentences for users have not cured a very real and longstanding social problem, a health problem, a personal problem, and a community problem: W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1; NSW Bar Association, “Drug Law Reform” (November 2014) 24 Criminal Law Committee Discussion Paper 1.

84. However, there are other important considerations that apply in matters involving quantities of illicit drugs and multiple offences involving drugs or drug supply over long periods.

85. A proper sentence should reflect the personal circumstances of the offender, how they came to commit the offences and the impact of traumatic events in their past. Any matters that impacted on Dunn’s mental health have to be considered.

86. A proper sentence must recognise the deterrent impact of time already served, and here, the offender has demonstrated progress to rehabilitation. He will have credit for approximately 50% of the time he spent under strict discipline restricted to as a condition of his bail residing, working and being only able to leave the Rehabilitation Centre with approval.

87. Mitigating circumstances can go only so far. A proper sentence also requires consistent application of principle. For that reason, I cannot take up Mr Booker’s suggestion the sentences for 2018 matters and 2023 be separated to allow for a backdated full-time sentence with an ICO for the 2023 matters commencing today. An ICO is not possible here because the sentence I have determined is appropriate would exceed three years.

88. Dunn told me he takes full responsibility for his offending. That must include accepting punishment for what he did. He has earned, and deserves, considerable leniency. His resilience will be tested in custody, but I am confident the foundations for his rehabilitation have been well laid. He has strong support from the Rehabilitation Centre and from his extended family. He has programs available to him. His will to succeed I am sure will not be crushed by a return to gaol no matter how terrible that prospect appears to him.

89. A proper sentence marks the Court’s view of the seriousness of the various and serious crimes he committed. It should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.

90. When I consider the sentence, the quantity and nature of the drugs, the commercial nature of the operations which he either conducted in 2018 or involved himself in in 2023, the maximum penalties that apply, the standard non‑parole periods that apply, the harm the drugs cause the community, there is still in this matter, despite Dunn’s progress to rehabilitation, a community interest in a just punishment for a significant and telling period.

Orders

91. The indicated sentences take into account my reduction of 25% for a finding of special circumstances, and where applicable their attached Forms 1. I have backdated it by 325 days to reflect the time in custody and approximately six months of the time spent at the Rehabilitation Centre.

• Sequence 12 – Plus Form 1, supply cannabis commercial: 2 years, 1 month.

• Sequence 13 – Recklessly deal with the proceeds of crime: 9 months.

• Sequence 15 – Supply methylamphetamine: 1 year, 1 month.

2023 matters

• Sequence 4 – Supply LSD, large commercial, Form 1A: 2 years and 4 months, non‑parole period 1 year, 2 months.

• Sequence 16 – Commercial quantity of cannabis, Form 1B: 1 year, 1 month.

• Sequence 23 – 490 grams of cocaine, Form 1C, 2 years, 4 months, standard non‑parole period 1 year, 1 month.

• Sequence 24 – 1.6 kilograms of methylamphetamine plus Form 1D: 1 year, 10 months, non-parole period 11 months.

• Sequence 25 – Proceeds of crime: 9 months.

92. There will be an aggregate sentence for those matters of 4 years. There will be a non-parole period of 2 years. The sentence will commence on 1 April 2024 making Dunn eligible for release to parole on 31 March 2026. The decision to release him will be for the State Parole Authority. The balance of the sentence is 2 years. It will commence on 1 April 2026 and expire on 31 March 2028.

93. The matters on the 166 certificate are not in the aggregate, I deal with both matters pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 (NSW), it is inappropriate to impose any further penalty.

94. Pursuant to s 18B Confiscation of Proceeds of Crime Act 1989 (NSW) the Court orders that the sum of $12,156 be forfeited to the State and the sum of $3,300 be forfeited to the State.

92. A copy of Ms Grujoska’s psychological report (Exhibit 1, Tab 1) is to be forwarded with the warrant.

93. Mr Dunn, I take no pleasure in returning you to gaol, but the crimes you committed were too serious to do otherwise; a custodial sentence is required, and I sought to give you as much leniency as your very positive case allows.

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Decision last updated: 01 April 2025