Citation: R v Halteh [2022] NSWDC 164
Court: District Court of NSW
Date: 20 May 2022
Judge(s): Colefax SC DCJ
Background
The offender was sentenced on five principal offences arising from two separate episodes of criminal conduct in 2019 and 2021. The first episode involved the supply of heroin on 54 separate occasions between 11 and 22 May 2019, yielding 16.45 grams of heroin and $7,670 in proceeds. On the same day the offender was served with a Firearms Prohibition Order (FPO) at a police station, police also found heroin and cash in his vehicle and home.
The second episode followed a police search of residential premises in Cecil Hills in January 2021. In a garage used by the offender to smoke heroin, police found drug paraphernalia consistent with ongoing supply. Hidden in a bird aviary, police discovered a loaded .22 calibre self-loading pistol, along with a further 90 rounds of ammunition and approximately $34,545 in cash.
The offender pleaded guilty to all five principal offences. He also asked the Court to take into account eight additional matters listed on three separate Forms 1, including further drug supply, dealing with proceeds of crime, and knowingly allowing premises to be used as drug premises.
Legal Issues
- The appropriate objective seriousness of each of the five principal offences
- Whether the threshold for full-time imprisonment was met for each offence
- The applicable guilty plea discounts, given the different timing of those pleas
- Whether special circumstances existed to vary the standard ratio between the non-parole period and head sentence
- The appropriate aggregate sentence, taking into account totality and the Form 1 matters
- Whether time spent in residential rehabilitation on bail constituted quasi-custody
Decision
The court assessed each of the five principal offences separately before arriving at an aggregate sentence. The ongoing drug supply offence was placed below the mid-range, towards but not at the bottom of the scale. The offences of possessing an unauthorised pistol and possessing a firearm while subject to a FPO were each assessed as mid-range. The ammunition possession while subject to a FPO was placed just below mid-range, and the proceeds of crime offence was assessed as approximately equidistant between the bottom and the middle of the range.
All four offences committed in January 2021 were found to be additionally aggravated by the fact that the offender was on both bail and a community corrections order at the time. The May 2019 drug supply offence was additionally aggravated by the offender being on bail. The court was careful to note that these aggravating factors were not factored into the objective seriousness assessments themselves, but were treated as separate considerations.
The court applied a 10 per cent guilty plea discount to the first principal offence, reflecting the later timing of that plea, and a 25 per cent discount to the remaining four. The court found special circumstances justifying a longer parole period, based on three factors: the offender's first time in custody, enhanced rehabilitation prospects with longer parole supervision, and the additional hardship of imprisonment during the COVID-19 pandemic. The court declined to treat time spent in residential rehabilitation while on bail as quasi-custody, citing insufficient evidence.
The court also noted credibility concerns arising from inconsistent accounts the offender gave to two separate Community Corrections officers about his reasons for possessing the heroin. These matters were considered in the overall sentencing exercise.
Orders Made
- Aggregate term of imprisonment of 6 years, commencing 18 May 2021
- Non-parole period of 3 years, expiring 17 May 2024
- Balance of term of 3 years, expiring 17 May 2027
- Confiscation orders made in respect of items at tabs 15 and 16 of the Court's exhibit
Indicative sentences underpinning the aggregate:
- First principal offence (ongoing drug supply): 2 years 8 months (after 10% discount)
- Second principal offence (possessing unauthorised pistol): 4 years 6 months, with indicative non-parole period of 2 years 3 months (after 25% discount)
- Third principal offence (possessing firearm subject to FPO): 4 years 6 months, treated as totally concurrent with the second principal offence (after 25% discount)
- Fourth principal offence (possessing ammunition subject to FPO): 1 year 6 months (after 25% discount)
- Fifth principal offence (dealing with proceeds of crime): 1 year 1 month (after 25% discount)
Key Takeaways
- The District Court confirmed that being on bail, or on both bail and a community corrections order, constitutes an additional aggravating factor in sentencing, distinct from the objective seriousness of the underlying offences.
- Where an offender enters guilty pleas at different times across multiple charges, different discount percentages apply to reflect the relative utilitarian value of each plea.
- A finding of special circumstances, permitting a departure from the standard non-parole period ratio, can be supported by a combination of factors including first-time custody, rehabilitation prospects, and pandemic-related hardship during imprisonment.
- Inconsistent accounts given to multiple Community Corrections officers about the circumstances of offending are capable of affecting an offender's credibility in the sentencing proceedings.
- Under the aggregate sentencing approach, the court states indicative sentences for each principal offence but the operative sentence is the single aggregate term, and certain indicative sentences may be treated as wholly concurrent where the facts substantially overlap.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Firearms Act 1996 (NSW), ss 7(1), 74(1), 74(3)
- Crimes Act 1900 (NSW), s 193C(2)
Cases cited: No cases were cited in the portions of the judgment provided.