Citation: R v Hussanein [2020] NSWDC 468
Court: District Court of New South Wales
Date: 20 August 2020
Judge(s): Adams QC ADCJ
Background
The offender, a man aged just over 31 at the time of sentencing, appeared before the District Court for sentence on a charge of ongoing supply of a prohibited drug (methylamphetamine) under s 25A(1) of the Drug Misuse and Trafficking Act 1985. The offending occurred over a 16-day period in February and March 2016, during which the offender coordinated a drug supply network involving 36 separate transactions totalling approximately 112.25 grams of methylamphetamine and one supply of cocaine, generating around $13,000. He used a mobile telephone registered to a fictitious identity and on occasion employed runners to deliver drugs and collect debts.
The offender also asked the court to take into account, on a Form 1, a related offence of dealing with property suspected of being the proceeds of crime, namely $13,700 in cash found at his premises during a police search.
The offender had a substantial criminal record, including a prior District Court conviction for drug supply and serious violence offences, for which he was already serving an aggregate sentence of 7 years and 9 months. The sentencing court therefore had to consider how the present sentence should sit alongside that existing sentence.
Legal Issues
- What was the appropriate head sentence and non-parole period for the s 25A(1) ongoing supply offence, given the scale and nature of the conduct?
- How should prior periods of pre-sentence custody be treated, particularly where some custody was referable both to the current matter and to other offences being served concurrently?
- What weight should be given to the offender's traumatic personal history, including early childhood bereavement, kidnapping, and refugee experience, as mitigating factors?
- What discount was warranted for a guilty plea entered on the third day of trial?
- Was the potential for deportation a relevant consideration in sentencing?
Decision
The court found the offending to be serious. The total quantity of methylamphetamine supplied (112.25 grams) fell well below the commercial quantity of 250 grams but significantly exceeded the traffickable (3 grams) and indictable (5 grams) quantities. The offender operated a structured network with runners and coordinated debt collection, indicating a degree of organisation beyond a simple street-level supplier.
The offender's personal history carried genuine mitigating weight. His father and older brother died in a house fire when he was six, his mother suffered severe ongoing injuries from the same fire, he was subsequently kidnapped by his paternal relatives and subjected to sustained mistreatment, and his family later fled Jordan as refugees, arriving in Australia after an arduous journey by sea and spending time in immigration detention. The court accepted that these were tragic and traumatic circumstances, and that they were relevant to the offender's background and character, though they did not displace the seriousness of the offending.
The court noted that the offender's bail conditions, which required him to be accompanied by a family member when leaving the house, amounted to something approaching house arrest given his mother's health and his wife's work commitments. A slight allowance was made for this. The court also declined to treat the prospect of deportation as a relevant sentencing factor. The guilty plea, entered on the third day of trial with no witnesses called, attracted only a 5 percent discount given its lateness.
On the question of concurrency and pre-sentence custody, the court held that the 153-day period of custody in 2016 (solely referable to the current matter) was to be treated as a discrete deduction, while the later period of overlapping custody was addressed primarily through structuring the sentence with significant concurrency against the existing term, reflecting the totality of the offender's criminality. The sentence before discount was assessed at 4 years and 6 months, reduced to 4 years and 3 months after the 5 percent discount.
Orders Made
- The offender was sentenced to 4 years and 3 months imprisonment, with a non-parole period of 2 years and 3 months.
- The sentence was to commence on 1 June 2022.
- The non-parole period was set to expire on 31 August 2024.
- The Form 1 offence (dealing with proceeds of crime) was taken into account in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999.
Key Takeaways
- Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the District Court confirmed that a structured supply network involving runners, debt collection, and dozens of transactions over a short period represents serious offending, even where quantities remain below the commercial threshold.
- Genuine and severe hardship in an offender's early life, including bereavement, kidnapping, and refugee experience, can carry mitigating weight in sentencing, though such factors do not override the objective gravity of serious drug supply.
- A guilty plea entered on the third day of trial, where the matter had only been listed without a judge assigned and no witnesses called, warranted only a 5 percent utilitarian discount rather than the more substantial discount available for early pleas.
- The prospect of deportation following release was expressly treated as irrelevant to the sentencing exercise.
- Where pre-sentence custody is partly referable to other sentences being served simultaneously, the District Court held that a strictly mathematical deduction is not always appropriate; concurrency can instead be used to reflect the totality of the offender's criminality across all matters.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Crimes Act 1900 (NSW), s 193C
Cases:
- Daher v R [2018] NSWCCA 287 (sentencing statistics for s 25A offences, as set out by Payne JA)