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District Court 17 December 2020

R v Haidar

[2020] NSWDC 916

Drugs
CRIME GOING BASIS 1 MATTER ON A FORM 1 MORAL CULPABILITY DIMINISHED LENGTHY CRIMINAL HISTORY. PLEA GUILTY 25% DISCOUNT

Citation: R v Haidar [2020] NSWDC 916
Court: District Court of New South Wales
Date: 17 December 2020
Judge: Neilson DCJ

Background

The offender, a 31-year-old man, pleaded guilty to supplying heroin on an ongoing basis, contrary to s 25A(1) of the Drug (Misuse and Trafficking) Act 1985. The offending occurred between 22 January and 25 February 2020 at Kingsgrove, and involved multiple discrete street-level heroin supplies made from the offender's granny flat at his family home, predominantly to users known to him.

Police identified the offending through physical surveillance and lawful telephone interceptions. The supplies involved small quantities of heroin, typically between 0.12 and 0.35 grams per transaction, sold for amounts ranging from $50 to $150. Two additional matters were placed before the court on a Form 1: a further supply of 0.25 grams of heroin on 31 December 2019, and possession of 12.57 grams of cannabis found at the offender's home upon his arrest.

The offender's background was central to the sentencing exercise. He had experienced physical abuse from his father from age five, ran away from home at around 12, and spent periods living on the streets. He had a documented history of mental illness from age seven and drug dependence from age 11 or earlier, and carried a lengthy criminal record.

  • What was the appropriate sentence for the principal offence of ongoing supply of a prohibited drug (heroin) under s 25A(1) of the Drug (Misuse and Trafficking) Act 1985?
  • To what extent did the offender's mental illness and addiction history reduce his moral culpability?
  • Was a 25% discount for a guilty plea appropriate?
  • Did special circumstances exist to justify departing from the statutory relationship between the head sentence and the non-parole period?

Decision

Neilson DCJ found that, while the offending was serious, the offender's profound and long-standing mental illness significantly diminished his moral culpability. The court noted that the offender had suffered from mental health conditions since childhood and had become dependent on drugs at an unusually young age, factors that bore directly on his capacity to make fully autonomous decisions about his conduct.

His Honour identified that the offender was himself a heroin addict supplying at a street level, rather than operating as a commercial dealer motivated purely by profit. The court nonetheless emphasised that supplying heroin to other addicts cannot be excused, as doing so perpetuates the very problem from which the offender himself suffered.

A 25% discount was applied to the head sentence for the utilitarian value of the guilty plea, reducing the head sentence from four years to three years imprisonment. The court accepted that rehabilitation prospects were guarded but not hopeless.

Special circumstances were found to exist, warranting a longer-than-usual parole period. The primary reasons were to allow the offender the opportunity to secure alternative accommodation (including through the NDIS or the Extended Supervision scheme) and to maximise the period during which Community Corrections could assist with mental health treatment and drug abstinence.

Orders Made

  • The offender was convicted of the principal offence of ongoing supply of heroin under s 25A(1) of the Drug (Misuse and Trafficking) Act 1985.
  • Total sentence of three years imprisonment imposed.
  • Non-parole period of one year and nine months, commencing 20 February 2020 and expiring 24 November 2021.
  • Balance of sentence of one year and three months, commencing 25 November 2021 and expiring 24 February 2023.
  • Special circumstances found.
  • The two Form 1 matters (supply of heroin on 31 December 2019, and possession of 12.57 grams of cannabis on 25 February 2020) were taken into account.
  • Sequences 4 to 17 on the criminal history certificate were withdrawn and dismissed.

Key Takeaways

  • Under s 25A(1) of the Drug (Misuse and Trafficking) Act 1985, supplying a prohibited drug other than cannabis on three or more separate occasions within 30 consecutive days for financial or material reward carries a maximum of 20 years imprisonment with no standard non-parole period.
  • Severe and longstanding mental illness, when established on the evidence, can significantly reduce an offender's moral culpability at sentencing, even where the objective seriousness of the offending is not trivial.
  • A 25% guilty plea discount was applied in this matter, consistent with the utilitarian value of an early plea.
  • Special circumstances justifying a reduced non-parole period relative to the head sentence can arise where an extended parole period is needed to support an offender's rehabilitation, particularly where accommodation, mental health treatment, and drug dependency are live concerns.
  • The District Court noted that an offender's own addiction does not excuse street-level supply, but it remains a relevant factor in assessing moral culpability and the likelihood of rehabilitation.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25A(1) (ongoing supply of prohibited drugs)

Cases cited:
- No cases were cited in the judgment.