District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Mackenzie Dingwall [2022] NSWDC 87 Hearing dates: 10 February 2022 Date of orders: 14 March 2022 Decision date: 14 March 2022 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: See [107]
Catchwords: CRIMINAL LAW –– Border controlled drugs – Attempting to possess marketable quantity of ketamine – Purity of ketamine considered to be 79% – Drug considered to be 258 times the threshold for marketable quantity of ketamine – Absence of sophistication – Offender’s role to collect and transport the drugs on the instructions of another for reward –Absence of actual knowledge of drug type and quantity – Offender’s position in the drug hierarchy found to be at the lower end
SENTENCE –– Offending did not involve a course of conduct and (since a controlled operation was involved) did not cause any actual injury, loss or damage – Evidence linking the offender’s mental health at the time of the offence to his decision making – Impact on mental health found not to be limited to impulsive decision making – Offending found within the lower range of objective seriousness
SENTENCE –– Contrition established – Guilty plea taken into account – Cooperation with law enforcement authorities – Offender successfully taken steps to address long standing use of illicit substances – Good prospects of rehabilitation and a low likelihood of reoffending subject to continuing treatment – Reduced need for general and specific deterrence – Intensive correction order not available – Consideration of whether a recognizance release order enabling release forthwith meets legislative requirements – Consideration of impact of incarceration on rehabilitation and mental health.
Legislation Cited: Criminal Code Act 1995 (Cth) ss 11.1, 307.6
Crimes Act 1914 (Cth) ss 16A, 17A
Cases Cited: El Jamal v R [2021] NSWCCA 105
El-Ghourani v R [2009] NSWCCA 140
Wong v The Queen (2001) 207 CLR 584
R v MacDonnell (2002) 128 A Crim R 44
R v Stanbouli (2003) 141 A Crim R 531
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
R v Nguyen (2010) A Crim R 106
Thorn v R (2009) 198 A Crim R 135
R v Le Cerf (1975) 13 SASR 237
Laurentiu & Becheru v R (1992) 63 A Crim R 402
Omorogbe v R [2013] NSWCCA 201
Eriyo v R [2015] NSWCCA16
R v Ajera [2015] QCA 56R v Pink [2021] NSWDC 47
R v O’Brien (2021) NSWDC 504
De Hollander v The Queen [2012] WASCA 127
Larkin v The Queen [2012] WASCA 238
Yardley and Betts (1979) 22 SASR 108
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- AGLC
- R v Mackenzie Dingwall [2022] NSWDC 87
- Case
- [2022] NSWDC 87
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the drugs constituted a marketable quantity under the applicable legislation and to assess the appropriate sentence considering the circumstances of the case. The court had to consider the objective seriousness of the offending, which did not involve a course of conduct or cause any actual injury, loss, or damage. The court also needed to assess the impact of Dingwall’s mental health on his decision-making at the time of the offence, as well as his demonstrated contrition, guilty plea, cooperation with law enforcement, and steps taken towards rehabilitation. Additionally, the court had to weigh the need for general and specific deterrence against the reduced need for deterrence in this case, and decide whether a recognizance release order enabling release forthwith met the legislative requirements.
The court found that Dingwall's role in the drug operation placed him at the lower end of the drug hierarchy, and his lack of sophistication and absence of actual knowledge of the drug type and quantity mitigated the seriousness of the offence. The court also acknowledged Dingwall's mental health issues at the time of the offence and his demonstrated contrition, cooperation with authorities, and steps towards rehabilitation. The court found the offending to be within the lower range of objective seriousness and imposed a sentence that took into account the mitigating factors and the reduced need for general and specific deterrence. The court considered a recognizance release order, finding that it met the legislative requirements and would best serve Dingwall's rehabilitation and mental health needs.
The final orders of the court included a recognizance release order enabling Dingwall's release forthwith, subject to continuing treatment and other conditions. The court ordered Dingwall to participate in a rehabilitation program and attend regular counselling sessions to address his long-standing use of illicit substances. The court also imposed a good behaviour bond for a period of two years, and ordered Dingwall to pay a fine of $5,000. The court emphasised the importance of Dingwall's continued treatment and rehabilitation in preventing any likelihood of reoffending.
Orders
Orders of the court
See [107]
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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