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R v Mackenzie Dingwall [2022] NSWDC 87

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a marketable quantity of border controlled drugs contrary to ss 11.1 and 307.6 of the Commonwealth Criminal Code. Offence related to 773.84g of pure ketamine.

Nature and Circumstances: Quantity of the drug in question was 258 times the threshold for marketable quantity of ketamine, though the offender’s role and level of participation in the criminal enterprise are more important than the mere quantity of drugs. Offender had actual knowledge that prohibited drugs were involved but knew neither the type nor quantity of drug involved. Offender’s task was to collect and transport the drug on instructions. While there was participation in offending over a few months it was relatively unsophisticated and consistent with involvement at the lower level of the drug hierarchy. Offender did not have any input into the ‘design’ of the import. Offending fell within the lower range of objective seriousness due to offender’s low position in the hierarchy, relative lack of knowledge and impact of their mental health on decision-making.

Mental Condition: Psychologists found the offender suffered from attention deficit hyperactivity disorder (ADHD), severe levels of depression and anxiety, distress from having lost their business due to COVID-19 restrictions and a drug use disorder during the period of offending. To the extent the offender’s participation was brought about because of their addiction, it is not an excuse to commit any crime. Offender’s mental health, especially their adult ADHD, make them less of a vehicle for general deterrence.

Rehabilitation: Psychologist assessed the offender to be at low risk of recidivism. Offender’s cocaine and ketamine habit at the time of offending were the channels that provided the drug syndicate with access to them. Since their arrest, the offender has taken responsibility for their drug habit and ceased all consumption. Offender has engaged in the SMART recovery program which they were finding helpful. Offender has demonstrated good insight into the underlying causes of their offending and taken positive steps to address them over a sustained period. Subject to continuing this path, there are good prospects of rehabilitation and low likelihood of reoffending. Offender’s mental health factors have now been managed such that there is a reduced need for specific deterrence.

Offender sentenced to 2 years and 6 months imprisonment, to be released immediately upon entering a recognizance release order of $500 subject to a good behaviour bond and conditions.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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