Citation: R v Michael John Hardes [2005] NSWDC 4
Court: District Court of New South Wales
Date: 21 October 2005
Judge(s): Berman SC DCJ
Background
The offender was tried by jury on a charge of supplying a large commercial quantity of methylamphetamine. The jury acquitted him of that charge but convicted him of the alternative offence of supplying a commercial quantity of the drug. The conviction related to approximately 440 grams of methylamphetamine found during a police search of his shed on 1 July 1999.
The drugs had been given to the offender by a fellow member of his motorcycle club, who was departing overseas. One package was to be distributed to that person's customers; the other was to be held as a reserve for two other drug dealers. Two sets of electronic scales were also found at the premises, which the court found were intended for use in the distribution.
The offender was a more junior club member who acted on the direction of a more senior member. He was not running his own supply operation but assisting in someone else's. He was charged in connection with the drugs not long after the 1999 search, spent 70 days in custody before the charge was dismissed at committal, and was not re-arrested until 2002. He stood trial and was convicted in August 2005, more than six years after the original events.
Legal Issues
- What sentence was appropriate for supplying a commercial quantity of methylamphetamine, given the jury's verdict acquitting the offender of the more serious charge?
- How should the court approach sentencing consistently with the jury's verdict, in terms of the conduct attributed to the offender?
- What weight should be given to mitigating factors including the offender's role, personal circumstances, and the passage of time?
- Whether special circumstances existed justifying a longer than usual ratio of parole to non-parole period.
- What additional penalty was warranted for two associated offences (possessing a crossbow and possessing cannabis)?
Decision
The court held that the sentence had to be consistent with the jury's verdict. Because the jury acquitted the offender of supplying a large commercial quantity and convicted him only of the lesser commercial quantity charge, the court was satisfied it could sentence him only on the basis of the 440 grams found in his shed, disregarding other alleged acts of supply the Crown had led evidence about.
The offender's subordinate role within the motorcycle club was treated as a significant mitigating factor. He acted on the direction of a more senior member, was not running his own drug business, and stood to make no significant financial gain. The court noted, however, that the seriousness of drug supply offences and the harm caused to users and their families meant a custodial sentence remained necessary.
Personal circumstances weighed in the offender's favour to a degree. A serious leg injury sustained after the offence would make imprisonment harder to bear. The psychologist's report suggested the offender had improved his conduct since 1999, and a considerable period had elapsed since the original arrest. These factors were balanced against the absence of any remorse or acknowledgment of guilt, which meant the court could not find good prospects of rehabilitation or identify a significant likelihood the offender would act differently in similar circumstances. The court also found it appropriate to impose a short additional period of accumulation for the crossbow and cannabis possession offences.
Special circumstances were found, primarily because of the leg injury and its effect on the offender's experience of custody. This justified a non-parole period shorter than the usual statutory ratio relative to the total term.
Orders Made
- For possessing a crossbow and possessing cannabis: fixed term of six months' imprisonment, commencing 21 June 2005.
- For supplying a commercial quantity of methylamphetamine: imprisonment for three years with a non-parole period of 18 months, commencing 21 September 2005.
- Overall non-parole period: 21 months. Overall total term: three years and three months.
- Eligible for release to parole on 20 March 2007.
- Sentence backdated to reflect 70 days previously served in custody.
Key Takeaways
- A sentencing court must confine the facts on which it sentences to those consistent with the jury's verdict; where a jury convicts on a lesser alternative charge, the sentencing judge cannot proceed on a broader factual basis that the verdict necessarily excludes.
- The District Court treated the offender's subordinate role within a hierarchical organisation as a meaningful mitigating factor, distinguishing between a person who operates their own drug supply business and one who carries out directions from a superior.
- Absence of remorse and a failure to acknowledge guilt can limit the findings a court is prepared to make about rehabilitation prospects, even where other personal circumstances are sympathetic.
- Physical disability that will make the experience of imprisonment significantly harder can support a finding of special circumstances, warranting a longer parole period relative to the total sentence.
- Sentences imposed on other offenders connected to the same broader drug network were considered as a reference point, even though parity principles did not directly apply because those individuals were not co-offenders in the present charge.
Legislation and Cases Referenced
No specific legislation or cases were cited in the provided judgment text.