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District Court 21 October 2016

R v Jawad Hadid

[2016] NSWDC 376

DrugsFirearms & weapons
CRIINAL LAW OFFENCE PLEA OF GUILTY DRUGS SUPPLY PROHIBITED DRUG FIREARMS

Citation: R v Jawad Hadid [2016] NSWDC 376
Court: District Court of New South Wales
Date: 21 October 2016
Judge: Judge AC Scotting

Background

The offender pleaded guilty in the District Court to four offences: supplying a prohibited drug (methylamphetamine), possessing a loaded firearm in a public place, possessing a firearm with a defaced serial number, and possessing an unauthorised pistol. The charges arose from a police stop in Surry Hills on 12 May 2015, during which police located a hidden compartment in a vehicle registered to the offender's mother. That compartment contained a loaded Glock pistol with its serial number obliterated and approximately 97 grams of methylamphetamine. DNA matching the offender's profile was found on the glove box, the trigger, and the trigger guard of the firearm.

The offender had been refused bail initially and spent nearly seven months in custody before being released in December 2015. As a condition of bail, he entered residential rehabilitation and had been participating in successive programs, first at Canton Beach Recovery Centre and then at Niagara Lodge, for approximately ten months by the time of the sentence hearing.

During the sentencing proceedings, the offender applied for a deferral of sentence under section 11 of the Crimes (Sentencing Procedure) Act 1999, to allow him to complete his rehabilitation program before the court finalised the sentence.

  • Whether the objective seriousness of the offences precluded a deferral of sentencing under section 11 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the offender's demonstrated progress in residential drug rehabilitation provided sufficient justification for a section 11 adjournment, even where a full-time custodial sentence was inevitable.
  • What credit, if any, should ultimately be given for the quasi-custodial conditions of the residential rehabilitation programs, and whether that assessment required completion of the full program before it could properly be made.

Decision

Judge Scotting found that the four offences were objectively serious and that full-time custodial sentences, partially accumulated, were required. The court was unequivocal that the offender would receive a custodial sentence regardless of the outcome of the section 11 remand. That finding did not, however, end the inquiry into whether a deferral was appropriate.

The court applied the principles established in cases such as R v Farrell, R v Brown, R v Rayment, and R v Leahy, which confirm that a section 11 adjournment can be granted even where imprisonment is inevitable, provided the deferral would assist the court in determining the appropriate head sentence or non-parole period. Judge Scotting accepted that the offender's progress in rehabilitation was genuine and significant. The court noted that the offender had remained abstinent from drugs and alcohol, had expressed genuine remorse, and had secured an offer of employment as an apprentice electrician.

Two specific sentencing purposes supported the deferral. First, the court wished to assess the full extent of the offender's rehabilitation before setting the non-parole period, recognising that further imprisonment could halt or undo that progress. Second, the court required a complete picture of the conditions and duration of both rehabilitation programs to calculate the proper credit for the quasi-custodial period served on bail. The court was satisfied that a seven-month adjournment was justified and that no injustice arose from that delay.

Orders Made

  • The offender was convicted of each offence.
  • Pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999, the sentence proceedings were adjourned part-heard to 19 May 2017.
  • Bail was granted on the following conditions:
  • The offender must reside at Niagara Lodge or at 113 Excelsior Street, Merrylands.
  • The offender must be of good behaviour and appear at court for sentence on 19 May 2017.

Key Takeaways

  • A section 11 sentencing adjournment under the Crimes (Sentencing Procedure) Act 1999 is not confined to cases where a non-custodial outcome remains possible. The District Court confirmed that such a deferral can be granted where full-time imprisonment is certain, provided the delay will assist in determining the appropriate head sentence or non-parole period.
  • Where an offender has already commenced a structured residential rehabilitation program, the court may defer sentencing to allow that program to be completed, so that the court can properly assess the depth and durability of the rehabilitation achieved.
  • Calculating credit for quasi-custodial conditions served during bail may itself warrant a deferral, particularly where the rehabilitation program is ongoing and the conditions at the relevant facility are not yet fully before the court.
  • Under the relevant principles, the sentencing court must be satisfied that the delay caused by a section 11 remand is wholly justified and must also inform the offender clearly that a custodial sentence will follow regardless of the adjournment.
  • Serious drug supply and firearms offences, including possession of a loaded, unregistered pistol with an obliterated serial number alongside a significant quantity of methylamphetamine, were assessed as objectively serious and requiring partially accumulated full-time custodial sentences, even in the context of genuine rehabilitative progress.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 21A(3)(g)
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 93G(1)(a)(i)
- Firearms Act 1996 (NSW), ss 7, 66(b)

Cases:
- R v Farrell [2014] NSWCCA 30
- R v ABS [2005] NSWCCA 255
- R v Brown (2009) 193 A Crim R 573
- R v Rayment (2010) 200 A Crim R 48
- R v Robinson (NSWCCA, 15 September 1995, unreported)
- R v Leahy [2004] NSWCCA 148
- R v Trindall (2002) 133 A Crim R 119
- Muldrock v R (2011) 244 CLR 120
- Cramp v R [2008] NSWCCA 40
- R v Kristic [2005] NSWCCA 391
- R v Tolley [2004] NSWCCA 165
- DO v R [2010] NSWCCA 182
- R v Amurao [2005] NSWCCA 32
- R v Goktas [2004] NSWCCA 296
- Butters v R [2010] NSWCCA 1
- Yang v R [2007] NSWCCA 37
- Palijan v R [2010] NSWCCA 142
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Lawrence [2005] NSWCCA 91