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District Court 22 May 2009

R v Matthew James HALL

[2009] NSWDC 135

DrugsTraffic & drivingPublic order & justice offences
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG FORM 1 RECKLESS DAMAGE DRIVE WHILE DISQUALIFIED

Citation: R v Matthew James Hall [2009] NSWDC 135
Court: District Court of New South Wales
Date: 22 May 2009
Judge(s): Berman SC DCJ

Background

The offender was a drug user residing in the northern beaches area of Sydney. He supplied small quantities of methylamphetamine on two occasions in April and May 2008, doing so through an intermediary who was unknowingly transacting with an undercover police officer. The offender's motivation was to fund his own drug habit by skimming a portion of drugs purchased on credit before on-supplying them.

The matter before the court was a sentence hearing following an early guilty plea to one count of supplying a prohibited drug. Two additional matters were placed on a Form 1 to be taken into account: a second supply offence and an offence of recklessly or intentionally damaging the side window of a motor vehicle. Two related charges of driving whilst disqualified were also before the court for separate sentence.

The offender had a significant criminal history, including prior custodial sentences, and was subject to an existing disqualification from driving that ran until 30 September 2027. His father appeared in court to support him and had offered him employment upon release.

  • What sentence was appropriate for the principal offence of supplying a prohibited drug, accounting for the Form 1 matters?
  • What was the appropriate sentence for the two driving whilst disqualified offences?
  • How should the driving offences and the drug supply sentence be structured (concurrent or cumulative) to produce a just overall sentencing outcome?
  • Whether the court could, under section 168 of the Criminal Procedure Act 1986, sentence on the driving matters first and impose a partially cumulative sentence for the drug supply offence.

Decision

The court applied a 25 percent discount to the sentence for the drug supply offence, reflecting the early guilty plea. The court noted several relevant features of the offender's background: an unstable upbringing, school leaving at a young age, escalating drug use from cannabis at age thirteen to daily heroin use by his mid-twenties, a diabetes diagnosis made while in custody, and a prior failure to comply with a home detention order.

On the question of rehabilitation, the court acknowledged that work was available to the offender upon release, with his father and two others willing to employ him. To assist with rehabilitation, the court deliberately enlarged the parole period relative to the non-parole period, in order to provide a longer period of supervised release and support the offender's prospects of overcoming drug addiction.

The central sentencing structure issue concerned whether to impose the driving sentences first and then impose a partially cumulative drug supply sentence, rather than following the usual practice of dealing with Form 1 certificate matters after the principal offence. The court found that the orthodox approach would have the effect of reducing the parole eligibility period, which it considered an important rehabilitative tool. The court held that section 168 of the Criminal Procedure Act 1986 permitted it to sentence on the driving matters first, then impose a drug supply sentence that commenced on a later date, thereby preserving the parole period's length.

Orders Made

  • Two fixed terms of 12 months imprisonment for each driving whilst disqualified offence, commencing 23 July 2008.
  • For the principal offence of supplying a prohibited drug (with Form 1 matters taken into account): a non-parole period of 18 months commencing 22 January 2009, with a balance of term of 2 years (head sentence of 3 years and 6 months; effective overall sentence of a 2-year non-parole period and a 4-year head sentence).
  • Disqualification from driving on each driving offence for 12 months, commencing 30 September 2027, to be served concurrently with each other.

Key Takeaways

  • The District Court confirmed that section 168 of the Criminal Procedure Act 1986 permits a court to sentence on lesser related matters first, and then impose a partially cumulative sentence on the principal offence, where doing so avoids an unjust outcome.
  • Enlarging the balance of term relative to the non-parole period is an available sentencing tool where the court identifies a need for extended post-release supervision, particularly in cases involving entrenched drug dependency.
  • A 25 percent reduction in sentence is available for an early guilty plea, consistent with established sentencing practice.
  • The sentencing court's reasoning illustrates that the usual sequencing of Form 1 certificate matters is not inflexible, and the court may depart from it where following the standard order would undermine the rehabilitative objectives of the sentence.
  • Prior failure to comply with a home detention order, and an existing disqualification period extending nearly two decades, were treated as relevant features of the offender's history in assessing the appropriate custodial term.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 168, 166