Citation: R v El-Hassan [2018] NSWDC 436
Court: District Court of New South Wales
Date: 16 November 2018
Judge: Berman SC DCJ
Background
The offender pleaded guilty to ongoing drug supply, having sold MDMA (in capsule form and powder) and cocaine to undercover police officers on five separate occasions between late October and late November 2017. The total quantity supplied was 3.21 grams of MDMA and 0.27 grams of cocaine, with proceeds totalling approximately $1,850. On at least one occasion, the offender actively approached a person he believed to be a potential buyer, rather than responding to an approach.
The offender had a troubled background, including childhood exposure to conflict in Lebanon, domestic violence at home, early school disengagement, and longstanding poly-drug use beginning in his early teens. He had begun selling drugs to fund his own habit following the deaths of several friends.
He also faced sentencing for two separate drive-while-disqualified offences, both of which had originally been dealt with by way of bonds that he subsequently breached. A Form 1 matter relating to $700 found in his possession (proceeds of crime) was also before the court.
Legal Issues
- What is the appropriate sentence for the ongoing drug supply offence, taking into account the offender's plea, background, psychiatric conditions, and prospects for rehabilitation?
- How should the court treat the Form 1 proceeds of crime matter in the context of an ongoing supply offence committed for financial gain?
- How should breaches of pre-existing bonds for drive-while-disqualified offences be reflected in the sentence, without double counting?
- Whether special circumstances existed to justify a parole period longer than the statutory ratio.
- How the principle of totality applies across all matters.
Decision
On the primary offence and Form 1: Berman SC DCJ characterised the offending as more serious than many comparable cases, noting the number of supplies, the total quantity, and the offender's active role in creating demand. However, the court found that the Form 1 proceeds of crime matter added nothing to the offender's criminality given that the primary offence was itself financially motivated ongoing supply. The Form 1 therefore had no effect on the sentence ultimately imposed. The judge noted concern that Form 1 proceeds of crime matters in this context could lead sentencing courts into error.
On the guilty plea and subjective factors: The offender received a 25 percent discount for his early guilty plea. The court accepted that his remorse was genuine and that he held a real desire to rehabilitate, supported by his mother. His psychiatric history, including anxiety, depression, a psychotic episode in custody, and a history consistent with a diagnosis of post-traumatic stress disorder, meant he would experience custody more harshly than most. These factors were taken into account, though the court noted that personal deterrence remained significant given his prior criminal history, which included armed robbery and earlier drug supply.
On bond breaches and drive-while-disqualified matters: The court found the threshold for custodial sentences had been reached for both drive-while-disqualified matters, noting the offender had clearly failed to meet the expectations of the magistrate who initially imposed the bonds. To avoid double counting, the court imposed partially accumulative terms for these offences rather than treating them as entirely concurrent with the primary sentence.
On special circumstances and totality: The court made a finding of special circumstances, primarily because an extended period of supervised parole would assist the offender in addressing his longstanding drug use, with broader community benefit if rehabilitation could be achieved. Applying the totality principle, the court considered the full range of offending and imposed sentences designed to reflect the overall criminality of the conduct as a whole.
Orders Made
- Drive-while-disqualified offences (two matters): imprisonment for two months, dating from 24 February 2018.
- Ongoing drug supply: non-parole period of 18 months and head sentence of 3 years, dating from 24 March 2018; eligible for release to parole from 23 September 2019.
- Back-up offences dismissed on a section 166 certificate.
- Forfeiture order made by consent.
Key Takeaways
- Where the primary offence is ongoing drug supply for financial gain, a Form 1 proceeds of crime matter may add nothing to the overall criminality, and the District Court cautioned that including such matters in this context risks leading sentencing judges into error.
- A single comparable case cannot establish a sentencing range. The Court of Criminal Appeal in Fong v R [2002] NSWCCA 320 confirmed that relying on one case for this purpose is "fatally flawed", a position affirmed here.
- Ongoing drug supply carries the same maximum penalty as commercial supply, reflecting parliament's and the courts' shared concern about the harm caused by street-level dealers engaged in repeated, financially motivated transactions.
- Special circumstances justifying a longer parole period can be found where an offender's chronic drug dependency means extended post-release supervision is likely to benefit both the offender and the broader community.
- The totality principle requires the sentencing court to step back and impose a sentence that reflects the combined criminality of all matters, including bond breaches and Form 1 matters, rather than simply aggregating individual penalties.
Legislation and Cases Referenced
Cases:
- Butler v The Queen [2010] NSWCCA 264
- Fong v R [2002] NSWCCA 320
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bond), s 10 (dismissal without conviction), s 166 (certificate for back-up offences) (referenced in context; formal citation not provided in the judgment)