R v Dunshea - [2018] NSWDC 469

District Court

New South Wales

Medium Neutral Citation: R v Dunshea [2018] NSWDC 469
Hearing dates: 29 November 2018
Date of orders: 29 November 2018
Decision date: 29 November 2018
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
I sentence you to imprisonment for a term of one year and 11 months commencing today, 29 November 2018, to be served by way of intensive correction in the community

Catchwords: CRIME – SENTENCE – Supply (deemed) 2.1967 kgs of cannabis leaf - Indicia of supply also discovered on execution of search warrant - Offender admitted suppling cannabis to his friends - 36 year old male, married, dependent wife and child. Prior good character - User of cannabis since age 14 - Abstinent since arrest on 10 March 2016 - ICO imposed for a term of 1 year 11 months
Legislation Cited: Drug Misuse and Trafficking Act 1985
Cases Cited: R v Nguyen; R v Cannistra [2006] NSWCCA 389
Category: Sentence
Parties: Regina (Crown)
Joshua Anthony Eric Dunshea (Offender)
Representation:
Counsel:
Ms Reddy (Crown)
Mr M Johnson SC (Offender)
Solicitors:
Solicitors for the DPP (Crown)
Sayad & Co Legal (Offender)

File Number(s): 2016/00077196
Publication restriction: Nil

sentence

HIS HONOUR: Joshua Anthony Eric Dunshea stands for sentence as a consequence of having pleaded guilty to a charge that on 10 March 2016 at Elizabeth Bay in this State he did supply a prohibited drug, namely, cannabis leaf. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of ten years imprisonment and/or a fine of 2,000 penalty units. The offender asks me to take into account on a Form 1 the possession of 1.91 grams of the drug commonly known as ecstasy. The trafficable quantity of ecstasy is 0.75 grams. The indictable quantity of ecstasy is 1.25 grams. The amount of ecstasy, which was found in the possession of the offender at the time of the execution of a police search warrant, was accordingly just over the indictable quantity. The quantity 1.91 grams ought be contrasted with the commercial quantity which is 125 grams. That offence in itself carries a maximum penalty of imprisonment for two years and/or a fine of 20 penalty units.
On 9 March 2016 the police were granted a search warrant for the offender’s residence at Elizabeth Bay. On 10 March 2016, the police arrived outside the offender’s residence at 11.20am. The police stopped the offender as he was attempting to ride his scooter onto the driveway of the property. The offender was living at the property at Elizabeth Bay with his wife whom he was soon to marry.
Shortly after the commencement of the search the police located two clear, resealable bags on the dining room table, one containing 0.4 grams of cannabis and the other containing 8.2 grams of cannabis. Upon finding those two bags the police told the offender that he was under arrest for possessing a prohibited drug. He was cautioned, searched and then taken to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dunshea

Details

AGLC: R v Dunshea [2018] NSWDC 469
Case: [2018] NSWDC 469
Decision Date: 29 November 2018

CaseChat Overview and Summary

The defendant, Dunshea, was convicted of supplying approximately 2.1967 kilograms of cannabis leaf. The case was heard in the relevant court where the primary issue was to determine an appropriate sentence for the offence. The court had to consider the nature and quantity of the drugs involved, the defendant's admission of supplying cannabis to his friends, and his background, which included prior good character and a family dependent on him. The court was also required to weigh the defendant's long-term use of cannabis, which began at age 14, and his abstinence since his arrest in March 2016.

In its reasoning, the court noted the significant quantity of drugs involved, but also took into account the defendant's admission and the fact that he was supplying to friends rather than for commercial gain. The court emphasised the importance of rehabilitation, given the defendant's family responsibilities and his abstinence since his arrest. The court considered the defendant's prior good character and his long-term use of cannabis, which began at a young age. Ultimately, the court determined that an intensive correction order (ICO) was appropriate, considering the defendant's circumstances and the need for both punishment and rehabilitation.

The court sentenced Dunshea to imprisonment for a term of one year and eleven months, to be served by way of an intensive correction order in the community. The sentence commenced on 29 November 2018.

Orders

Orders of the court

I sentence you to imprisonment for a term of one year and 11 months commencing today, 29 November 2018, to be served by way of intensive correction in the community

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Dunshea [2018] NSWDC 469
Hearing dates:	29 November 2018
Date of orders:	29 November 2018
Decision date:	29 November 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I sentence you to imprisonment for a term of one year and 11 months commencing today, 29 November 2018, to be served by way of intensive correction in the community
Catchwords:	CRIME – SENTENCE – Supply (deemed) 2.1967 kgs of cannabis leaf - Indicia of supply also discovered on execution of search warrant - Offender admitted suppling cannabis to his friends - 36 year old male, married, dependent wife and child. Prior good character - User of cannabis since age 14 - Abstinent since arrest on 10 March 2016 - ICO imposed for a term of 1 year 11 months
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Nguyen; R v Cannistra [2006] NSWCCA 389
Category:	Sentence
Parties:	Regina (Crown) Joshua Anthony Eric Dunshea (Offender)
Representation:	Counsel: Ms Reddy (Crown) Mr M Johnson SC (Offender) Solicitors: Solicitors for the DPP (Crown) Sayad & Co Legal (Offender)
File Number(s):	2016/00077196
Publication restriction:	Nil