R v Dunn

[2020] NSWDC 877

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Dunn [2020] NSWDC 877

Hearing dates:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years with a non-parole period of 2 years.

Catchwords:

CRIME – Supply prohibited drug – Affray

SENTENCING — Relevant factors on sentence - long custodial history - deprived background - institutionalised – inability to engage with rehabilitation - supply of drugs to maintain addiction - affray –involved the use of weapons - offender suffered serious injury- extra-curial punishment – offending while on parole - offending in breach of bond - accumulation of sentences – totality - impact of plea negotiations on discount for its utilitarian benefit

CRIMINAL PROCEDURE – Error in commencement date – s43 Crimes (Sentencing Procedure) Act 1999 not applicable - slip rule applied - commencement date of orders varied.

Legislation Cited:

CrimesAct 1900

Crimes (Sentencing Procedure) Act 1999

Drug (Misuse and Trafficking) Act 1985

Cases Cited:

Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Dean v R [2020] NSWCCA 317

Gould v Vaggelas (1985) 157 CLR 215 at 275; [1985] HCA 75

R v Achurch(No 2) [2013] NSWCCA 117; 84 NSWLR 328

Thompson-Davis v R [2013] NSWCCA 75

Category:

Sentence

Parties:

Garrett Dunn (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr M Powell

Solicitors:
G Morrison, Morrison Law (for the offender)
Mr M Rollestone (for the Director of Public Prosecutions)

File Number(s):

2018/00281535; 2019/00131680

SENTENCE EX TEMPORE REVISED

1. Garrett Dunn is for sentence today for three serious offences. There are two counts of supplying a prohibited drug, s 25(1) Drug (Misuse and Trafficking) Act 1985. The first involved 6.5 grams of methylamphetamine, the second 56 grams of methylamphetamine. Those offences carry a maximum penalty of 15 years' imprisonment and/or a substantial fine. They occurred in April of 2019, while the offender was serving balance of parole of a sentence for a similar offence. At about the same time he committed an offence of affray: s 93C(1) Crimes Act 1900, maximum penalty ten years.

2. Sadly and tragically, Dunn is no stranger to the courts. When he was young, he was subject of control orders imposed by the Children's Court. He was born in 1989 and first received a conviction and sentence in an adult court in February 2008. He has spent eight of the last 12 years in custody serving sentences and he will have to serve more time in custody as a consequence of these crimes.

3. That stark history is in part explained by his background, which is set out in the report of Ms Taylor dated 19 April 2019, that was before the District Court when he was last sentenced. Dunn never knew his father. His mother's life was blighted by drug and alcohol abuse. He has a history, as a child, of emotional neglect, abandonment, rejection and being bullied. This history has left him with what appears to be intractable problems involving feelings of hopelessness and a diminished sense of self-worth. It is well recognised that a childhood such the one he endured will leave a mark. It means that his capacity to reason, and think rationally is inhibited and compromised. It means that his moral culpability is not that of a person whose life was not so blighted and who had the advantages that most in our community expect. I do not ignore the impact this history of trauma and abuse.

4. In the past when Dunn has appeared before this court he had been urged to engage in a residential rehabilitation program, or day programmes such as those run by Watershed program, the Illawarra Drug and Alcohol Service (IDAS), and complete the various EQUIPS programs. Although Dunn is now well and truly an adult, he has not yet actively engaged in any of those programs.

5. Courts sometimes make the mistake of presuming that offender’s act in a considered and rational way and will act to their own advantage. When confronted with a person with Dunn’s history I do not make that mistake. Given his past; given his history, it is clear that he does not always act to his best advantage. He rarely if ever thinks about the consequences of his actions to his victims or himself. The indications are that he has been institutionalised, and he is more comfortable in gaol.

6. It is important to note that he is not serving his gaol sentences easily. He, all too regularly, incurs punishment for internal gaol discipline matters. He has an A2 classification, which limits, if not totally restricts, his access to education, work and rehabilitation programs. During past sentences, I am told and accept, that he has worked in gaol. He has some capacity to gain from employment in gaol, but he has never really been able to utilise any skills gained in gaol in the community in a positive way. One thing he has learned is the supply of drugs, although he does not appear to be skilled at that trade. He has continued to use and supply drugs while he has been in custody. Gaol has not served to deter him from committing offences. At best it has removed him from the community. He is not well equipped for ordinary community life.

7. When he serves his sentence, he will have nowhere to live. His only associates are his mother, who is in care, and the sort of people with whom he has committed other crimes. If he reassociates with them on release he is likely to commit more crimes. His prospects are bleak unless he is given assistance while in custody to prepare him for life in the community.

8. When he was last before the Court, Ms Taylor recommended he go to full-time drug rehabilitation and engage with other services including a psychiatrist and Narcotics Anonymous. He will need help managing his emotions. He will need help dealing with a history of childhood trauma. He can only get that help if he makes himself available to it. I am guarded as to whether he has that capacity, but I would certainly recommend that he be given the opportunity to engage in those programs while in custody and on release.

9. It appears that as soon as Dunn was released last time, despite a couple of positive steps forward, he did not actively engage with what had been planned for him. That said, a supervision plan must again be put in place if the community is to be protected.

10. The offending that brings him before the Court is set out in the agreed facts. So far as the supply offences are concerned, between 16 April and 25 April he supplied very small quantities of methylamphetamine, totalling 6.5 grams. At about the same time he was engaged in supplying greater quantities varying between 3.5 and 28 grams. The drugs were sold for between $150 and $170 per gram. Given his history, background and his frank admissions to his parole officer, it seems that some of the drugs were supplied for his own use and any money left over went to support himself in the community.

11. Dunn, more than others, is aware of the negative impacts of methylamphetamine use. But his crimes, as is so often the case, spread that drug amongst the community. As a community we still treat drug abuse as a criminal rather than medical problem. While we do, and while maximum penalties of 15 years' imprisonment are fixed by Parliament, the courts have to give effect to a policy that by the severity of the sentences imposed seeks to deter this offender and others from engaging in the supply of illicit drugs. Although, that policy may indirectly harm the community in a number of ways until that policy changes, courts are obliged to give effect to it.

12. There is also a separate and distinct offence of affray. Dunn formed a brief relationship with a young woman. They broke up. There was a dispute about his belongings that he had been left at her premises. She wanted the key to the premises from him. He wanted his belongings. Eventually after an attempt by a friend to get the return of the property threats were exchanged between this offender and a man who was seeking to preserve the honour of the young woman. An arrangement was made to fight it out in the streets of West Wollongong.

13. The text messages exchanged before the event are before me. They do no-one any credit. Dunn and others, as planned, attended at West Wollongong. The other gentleman attended but he was armed with a samurai sword. Dunn lost the fight. He came out far worse off than his antagonist. He suffered a number of significant injuries. There was no provocation here. He willingly engaged in the affray in a public street where weapons were used. And, he brought with him a number of men intending to engage in that affray.

14. The offence would have significantly disturbed any person who potentially could have witnessed it. The potential harm to himself and others does not need to be spelled out. The photographs before me indicate that he suffered significant cuts. They have had a lasting effect upon him. I will take into account in reducing what should be a very large sentence down because of that extra‑curial harm. One would hope that that harm achieves the purposes of personal deterrence inherent in any sentencing exercise.

15. The offences were committed whilst subject to parole for a similar offence, a matter of aggravation of penalty that must be taken into account. That parole was breached. I have to fix a commencement date for this sentence. In doing so apply the principle of totality, and endeavour not to double-count matters aggravating the sentence. It is clear that the commission of the offences now before me was also responsible for Dunn’s parole being breached. In all the circumstances. I propose to commence these sentences six months after he returned to custody.

16. He was also in breach of a bond, which he was placed on for an offence he committed while in custody. That offence for possession of a drug in custody did not prevent him getting parole, but his breach requires the imposition of a custodial sentence of two months. That sentence will commence on 28 November and expire on 28 January 2020. Dunn gave a promise to the Court to be of good behaviour; he breached that promise.

17. Two of the matters attract a reduction in penalty of 25%, to reflect, so far as the smaller supply and the affray is concerned, an early offer to plead guilty. So far as the third matter is concerned, I have viewed the charge negotiations documents. Mr Morrison, who negotiated the indictment and the agreed facts, provided some information to the Court which was accepted by Mr Rollestone, who now appears for the Crown. It is accepted that an offer was made to plead to a supply offence but that the quantity, the subject of now two counts, was substantially to the offender's advantage and much closer to what was originally proposed by the prosecution. It was initially the subject of the charge that was sent to this court for trial.

18. There has recently been authority that after an early plea is entered the facts can be later determined; Dean v R [2020] NSWCCA 317. There is no requirement so far as a plea being entered in The Local Court, that there be agreement as to the amount of drug supplied. No-one had the benefit of that authority when this negotiation took place. The Crown's concession that in all the circumstances a reduction of 25% is warranted is a fair one in the circumstances and one that I will give effect to. While it may not strictly fall within 25D of the Crimes (Sentencing Procedure) Act 1999, fairness should trump strict interpretation of a legislative provision, where appropriate concessions are made.

19. I will seek, when formulating the aggregate sentence, not to erode the benefit of those pleas. Mr Powell, who appears for the offender, submitted that a finding of special circumstances was justified to allow for greater supervision in the community. With great respect to that submission, past behaviour is a good indication of future behaviour. This offender has never before taken advantage of a finding of special circumstances He has breached parole too readily for me to have any confidence at all that he will not do so again.

20. I will allow a period on parole, but my finding of special circumstances is primarily to deal with the question of accumulation. I have rounded down to the offender's benefit because I believe a year on parole is the most that could be justified in this case, that is required in this case, and that the minimum term to be served in custody should reflect the seriousness of what he did collectively and individually and the other purposes of sentencing.

Orders

21. I note with thanks the comprehensive written submissions of counsel and Mr Powell's plea to the Court. I must now synthesise all of the matters taken into account.

22. These sentences will commence after Dunn has been in custody serving balance of parole for six months and after serving two months for the breach matter, that is, 28 January 2020.

23. In relation to the Breach of the Community Corrections order imposed on 19/02/2019. I find that the breach is proven. You are sentenced to a term of imprisonment of 2 months to commence on 28/11/2020 and expire on 27/01/2021.

24. In relation to the sequence 1 supply of 6.05 grams of methylamphetamine, taking into account the matter on the Form 1, I indicate a sentence of 1 year 1 month imprisonment.

25. In relation to the supply of prohibited drug, 56 grams, I indicate a sentence of 2 years 3 months imprisonment.

26. In relation to the affray, I indicate a sentence of 1 year 2 months imprisonment.

27. The aggregate sentence will be three years' imprisonment. There will be a non-parole period of 2 years commencing 28/01/2020 and expiring 27/01/2022. The balance of the sentence of 1 year is to commence upon the expiration of the non-parole period on 28/01/2022 - expiring on 27/01/2023.

28. I make a drug destruction order, if one is required.

29. In relation to sequence 4, Possess prohibited drug - you are convicted. I dispose of the proceedings without imposing any other penalty pursuant to s. 10A Crimes (Sentencing Procedure) Act 1999.

Additional orders

30. After judgment was given and orders entered I was asked by the offender with the consent of the Crown to make an order pursuant to s 43 Crimes (Sentencing Procedure) Act 1999 (NSW) to correct the starting dates of the sentences so as to accord with what I had clearly intended in my judgment.

31. In my original (and ex tempore determination) I erred in my calculation of time to be served as balance of parole. My sentence orders should have started on 28 October 2019. I made no error of fact or law as I clearly stated that this period should be six months - I made an error of arithmetic. The original sentence for breach of bond in fact commenced after 7 months on 28 November 2019.

32. The powers conferred by s 43 are remedial and limited to the correction of errors that have resulted in the imposition of penalties that are “contrary to law.” My error is not apparent from the sentence imposed. Thus taking into account what fell from the High Court in R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328, it may not constitute an error that was contrary to law. I did not for example fix a start that that was prohibited as occurred in Thompson-Davis v R [2013] NSWCCA 75.

33. Section 43 does not extend to a general re-opening of proceedings in such a way as to permit or enable a reconsideration (with or without additional evidence) of the decision originally made: Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9 at [41]; R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328.

34. If a restricted view is taken of the extent of jurisdiction conferred by s 43 my slip did not amount to the imposition of a sentence contrary to law. Nor however would its correction involve re-opening of proceedings to enable a reconsideration of the decision originally made. If a court could not of its own motion or of the parties correct such a slip it

35. It was a slip and should be amenable to correction without the need or expense of an appeal. As the plurality of the High Court said in Achurch at [18]

36. “The slip rule as an aspect of the inherent or implied powers allows for limited correction of an order after its final entry, as was explained in: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [21]:

"The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded."

37. The power conferred under the slip rule "is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation:" Gould v Vaggelas (1985) 157 CLR 215 at 275; [1985] HCA 75.

38. Here, the power should be exercised to avoid unnecessary public and or private costs and any limitations upon the facility of the appeal process or technical requirements of judicial review involved in correcting mistakes of a such a simple character.

Amended Order - Slip rule applied

39. On 14 July 2021 an order was made in chambers, by consent, amending the sentence commencement dates as follows:

1. At [22] from “28 January 2020” to “28 December 2019”

2. At [23] from “commence on 28/11/2020 and expire on 27/01/2021” to “commence on 28/10/2019 and expire on 27/12/2019.”

3. At [27] from "commencing 28/01/2020 and expiring 27/01/2022. The balance of the sentence of 1 year is to commence upon the expiration of the non-parole period on 28/01/2022 - expiring on 27/01/2023.” to “commencing 28/12/2019 and expiring 27/12/2021. The balance of the sentence of 1 year is to commence upon the expiration of the non-parole period on 28/12/2021 - expiring on 27/12/2022.”

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Amendments

14 July 2021 - Amended Order - Slip rule applied: see [30]-[39]

Decision last updated: 14 July 2021