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District Court 13 May 2016

R v Hannah

[2016] NSWDC 195

Drugs
CRIMINAL LAW SENTENCE FORM 1 TRAFFICKING TO A SUBSTANTIAL DEGREE NO EXCEPTIONAL CIRCUMSTANCES.

Citation: R v Hannah [2016] NSWDC 195
Court: District Court of New South Wales
Date: 13 May 2016
Judge(s): Berman SC DCJ

Background

The offender was a self-employed roof tiler who began using methylamphetamine and then supplying it, initially claiming it was to keep up with a busy workload and to ensure his employees remained reliable. His supply activities, however, extended well beyond that explanation. Over approximately one month in 2015, he supplied methylamphetamine on 45 separate occasions to multiple customers, including employees and friends.

The total weight of drugs supplied was 15.2 grams, with a street value of approximately $7,600. A further 25.86 grams were found at his home during a police search, with a street value of approximately $16,000. The offender used a dedicated mobile phone registered in a false name and developed code words to facilitate transactions. Scales and resealable bags were also found in his possession.

The offender pleaded guilty to one charge of supply and asked the court to take three additional matters into account on a Form 1: possession of testosterone, possession of cannabis seeds, and dealing with property suspected to be proceeds of crime. He received the maximum 25% discount on sentence for his early guilty plea.

  • Whether the long-standing Court of Criminal Appeal principle requiring full-time imprisonment for offenders trafficking to a substantial degree applied in these circumstances
  • Whether the availability of an intensive corrections order as a sentencing option modified that principle
  • Whether the time already served in pre-sentence custody (43 days) could satisfy the custodial requirement
  • How the court could properly take into account the Form 1 matters without breaching the rule in De Simoni (which prohibits sentencing an offender more harshly by treating them as guilty of a more serious offence than the one charged)

Decision

Berman SC DCJ confirmed that the Court of Criminal Appeal has consistently held that offenders who traffic in drugs to a substantial degree must receive full-time imprisonment unless exceptional circumstances exist. The court found that the offender's conduct clearly met the threshold for substantial trafficking, and that no exceptional circumstances were present.

The court acknowledged that the availability of intensive corrections orders, introduced after the original principle was established, could in some cases require reconsideration of that principle. This was not such a case. The scale and organisation of the offender's supply activities left no room for an alternative to full-time custody.

The submission that the 43 days already served in pre-sentence custody could satisfy the custodial requirement was rejected. The court found that general deterrence carried significant weight in drug supply matters and that a sentence resulting in no further imprisonment would be inappropriate given the seriousness and enthusiasm of the offending.

The court found genuine mitigating features, including the offender's good work history, his role as a family man, his prior rehabilitative efforts, and the cessation of drug use since arrest. These features were acknowledged but did not rise to the level of exceptional circumstances sufficient to displace the full-time custody principle.

Orders Made

  • Non-parole period of two years, commencing 31 March 2016, expiring 30 March 2018
  • Head sentence of four years imprisonment
  • Three Form 1 matters taken into account: possession of testosterone, possession of cannabis seeds, and dealing with suspected proceeds of crime

Key Takeaways

  • The District Court reaffirmed the Court of Criminal Appeal's established principle that offenders trafficking in drugs to a substantial degree will receive full-time imprisonment unless exceptional circumstances are demonstrated.
  • A positive background, demonstrated rehabilitation, good work history, and family circumstances, while genuine mitigating factors, did not constitute exceptional circumstances sufficient to displace the full-time custody requirement.
  • The introduction of intensive corrections orders as a sentencing option does not automatically modify the trafficking principle; whether it does so depends on the specific facts and extent of the offending.
  • Pre-sentence custody of 43 days did not satisfy the requirement for full-time imprisonment where the seriousness of the offending and the demands of general deterrence required a substantial custodial term.
  • Where an offender asks the court to take Form 1 matters into account, the court must guard against breaching the rule in De Simoni by ensuring the additional matters do not effectively result in punishment for a more serious offence than that charged.

Legislation and Cases Referenced

Cases:
- Jadron v R [2015] NSWCCA 217
- R v De Simoni (1981) 147 CLR 383

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166 (Form 1 procedure)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds, referenced in the context of the offender's prior history)