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District Court 26 March 2021

R v Hussein

[2021] NSWDC 835

DrugsTraffic & drivingPublic order & justice offences
CRIMINAL SENTENCE SUPPLY PROHIBITED DRUG , COCAINE POLICE PURSUIT FORM 1 & S166 MATTERS SUBJECTIVE MATTERS

Citation: R v Hussein [2021] NSWDC 835
Court: District Court of New South Wales
Date: 26 March 2021
Judge: King SC DCJ

Background

The offender, Ahmed Hussein, appeared for sentencing on a range of serious criminal offences committed in 2019, within three months of his release on parole. The offences arose from two broad areas of criminal activity: participation in an organised drug supply network, and conduct connected to that activity including a police pursuit and related matters.

The drug supply investigation, conducted by Strike Force Mountevan, revealed the offender coordinating ongoing supplies of methylamphetamine and cocaine. In one notable incident, he trespassed on the grounds of John Morony Correctional Centre at night to leave a bag of prohibited drugs and other contraband for an inmate. He was subsequently arrested in December 2019.

The offender pleaded guilty to all matters and was committed for sentence from Burwood Local Court on 2 September 2020. The court heard agreed facts, subjective material, and submissions on the appropriate aggregate sentence.

  • What aggregate sentence was appropriate for multiple drug supply offences, a police pursuit offence, a break and enter offence, and a proceeds of crime offence?
  • What weight should be given to the guilty plea discount (25%) across all offences?
  • How should the Form 1 offence (resisting police) and the four section 166 related offences be taken into account in sentencing?
  • What significance attached to the offender's subjective circumstances, including background, criminal history, and conduct while on remand?

Decision

The court sentenced the offender by way of an aggregate sentence, a single combined term covering all principal offences. King SC DCJ applied a 25% discount to each offence for the utilty of the guilty pleas, noting the early commitment for sentence from the Local Court. The offences were assessed as serious, particularly the ongoing drug supply and the deliberate act of smuggling contraband into a correctional facility.

The court applied principles drawn from cases including R v Fernando and Bugmy v The Queen in assessing the offender's subjective circumstances. The offender's background and any relevant disadvantage were considered, but the court noted he had a poor criminal history and was assessed as, at best, a medium risk of reoffending.

The court took into account the Form 1 offence (resisting a police officer) when sentencing on the principal supply offence, and the four section 166 related offences were noted as part of the overall sentencing exercise without attracting separate custodial terms. The judge remarked directly on the offender's conduct in custody since December 2019, observing that at least six breaches of prison regulations had been recorded, and cautioned that continued breaches would likely affect his release on parole.

Orders Made

The full details of the aggregate sentence (including the non-parole period and head sentence) were not captured in the provided text. However, the following ancillary orders were recorded:

  • Cash of approximately $844.35, seized from the offender on 12 December 2019, forfeited to the State pursuant to s 18(1).
  • One Samsung mobile phone, seized from the offender on 12 December 2019, forfeited to the State pursuant to s 18(1).
  • The court noted that the non-parole period was to take into account six months spent in custody on revoked parole prior to the commencement of the sentence.

Key Takeaways

  • An aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 was applied across a range of offences spanning drug supply, police pursuit, break and enter at a correctional facility, and proceeds of crime dealing, with a single non-parole period set for the whole.
  • A 25% guilty plea discount applied across all offences, reflecting the utilty of the pleas at an early stage of the committal process.
  • Under the sentencing framework, the Form 1 offence was taken into account when determining the sentence for the principal offence to which it was attached, rather than attracting a separate penalty.
  • Section 166 related offences were dealt with as part of the sentencing exercise without separate custodial consequences, consistent with the certificates' procedural function.
  • Conduct in custody during the remand period, including recorded breaches of prison regulations, was noted by the District Court as relevant to the offender's prospects of actual release at the earliest parole date, even though it did not alter the formal sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 58, 112(1)(a), 193C(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 253G(2)(e)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 15(2)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- R v Fernando [2002] NSWCCA 28
- R v Huynh [2003] NSWCCA 239
- R v McVittie [2002] NSWCCA 344
- R v Moffatt (1990) 20 NSWLR 114