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District Court 31 July 2019

R v Hausfeld

[2019] NSWDC 501

Drugs
CRIME SENTENCING GUILTY PLEA DRUG SUPPLY OFFENCES SUPPLY ON AN ONGOING BASIS DIMINISHED MORAL CULPABILITY

Citation: R v Hausfeld [2019] NSWDC 501
Court: District Court of New South Wales
Date: 31 July 2019
Judge: Wilson SC DCJ

Background

The offender was a young man sentenced following guilty pleas to multiple drug supply offences committed over approximately six months between December 2017 and June 2018. The offences arose from a police undercover operation (Strike Force Mathison) targeting methamphetamine supply in the Sutherland Shire area. The offender worked alongside a co-offender, supplying methylamphetamine directly to undercover operatives on multiple occasions and organising further supply through an upstream dealer.

Over the course of the operation, the offender was recorded conducting numerous street-level and mid-level drug transactions. Phone intercepts between January and April 2018 revealed he purchased from upstream suppliers and on-sold, agreed to sell, or arranged to supply a total of 249 grams of methylamphetamine to various buyers for cash. He also dealt with $13,500 in pre-recorded police buy money, constituting proceeds of crime, and was found driving whilst disqualified at the time of his arrest on 28 June 2018.

The principal charges were ongoing supply of methylamphetamine (under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum of 20 years' imprisonment) and a separate supply charge under s 25(1) of the same Act. A number of related charges were attached via Form 1 documents to be taken into account in sentencing.

  • What aggregate sentence was appropriate for offences of ongoing drug supply and related charges, taking into account all Form 1 matters?
  • What weight should be given to the offender's youth, diminished moral culpability, and prospects of rehabilitation?
  • What discount applied to reflect the offender's guilty pleas?
  • What non-parole period was appropriate?
  • Whether a drug proceeds order should be made under the Confiscation of Proceeds of Crime Act 1989.

Decision

Wilson SC DCJ sentenced the offender to an aggregate term of three years' imprisonment, backdated to the date of arrest on 28 June 2018, with a non-parole period of 18 months. The court took into account the offender's youth, diminished moral culpability, and positive prospects of rehabilitation as mitigating factors in arriving at the overall sentence. These factors were balanced against the seriousness of the ongoing supply charge, the commercial nature of the dealing, and the need for personal deterrence and retribution reflected through the Form 1 matters.

The court applied a 25% discount across the principal charges to reflect the guilty pleas, consistent with the principles in Butters v R [2010] NSWCCA 1. Without the aggregate approach, the indicative sentence for the ongoing supply principal charge (sequence 5) would have been two years and three months after discount, and for the separate supply charge (sequence 10) would have been 18 months after discount.

The court recommended that Community Corrections ensure the offender participates in appropriate treatment for his pre-existing ADHD condition and any related psychological therapies during the parole period. For the driving whilst disqualified offence, the court ordered the automatic disqualification period, leaving the applicable dates to be determined by the Roads and Maritime Services (RMS).

Orders Made

  • Aggregate sentence of imprisonment for three years, commencing 28 June 2018 and expiring 27 June 2021.
  • Non-parole period of 18 months, commencing 28 June 2018 and expiring 27 December 2019, at which point the offender is to be released on parole.
  • Supervision by Community Corrections during parole, with a recommendation for ADHD treatment and psychological therapies.
  • Automatic licence disqualification ordered for the driving whilst disqualified offence (sequence 9), with dates to be determined by RMS.
  • Drug proceeds order of $5,500 payable to the State of New South Wales, pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989.
  • Destruction of all drugs seized from the offender.

Key Takeaways

  • The District Court treated the offender's youth and diminished moral culpability as genuine mitigating factors capable of reducing what would otherwise be a heavier sentence for mid-level commercial drug supply.
  • A 25% guilty plea discount was applied across the principal charges, consistent with the Court of Criminal Appeal's approach in Butters v R.
  • Form 1 charges (additional offences not separately sentenced) were used to increase the weight given to personal deterrence and community retribution within the overall sentencing exercise, rather than producing separate penalties.
  • Where an aggregate sentence is imposed, individual indicative sentences retain practical significance: they inform the structure and weight of the aggregate term even though they do not result in separate orders.
  • Under s 29(1) of the Confiscation of Proceeds of Crime Act 1989, the court made a drug proceeds order requiring repayment of the pre-recorded buy money that had passed through the offender's hands during the undercover operation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25, 25A
- Crimes Act 1900 (NSW), s 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Road Transport Act 2013 (NSW), s 54
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29

Cases:
- Butters v R [2010] NSWCCA 1