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District Court 11 July 2023

R v Hawat

[2023] NSWDC 632

Drugs
CRIME SENTENCE SUPPLYING DRUGS ON ONGOING BASIS PLEAS OF GUILTY DIFFICULT PERSONAL CIRCUMSTANCES FAIR PROSPECTS OF REHABILITATION

Citation: R v Hawat [2023] NSWDC 632
Court: District Court of New South Wales
Date: 11 July 2023
Judge: Neilson DCJ

Background

The offender faced sentencing on multiple charges arising from a sustained course of drug supply activity between July and November 2021. Police executed a search warrant at his Chester Hill residence on 4 November 2021, and further evidence was gathered through forensic examination of mobile phones and telecommunications interception warrants. The offending involved supplying methylamphetamine, gamma-butyrolactone, buprenorphine strips, and cannabis to various persons on dozens of separate occasions, with the total value of transactions exceeding $76,000 across the principal charges and Form 1 matters.

The offender had pleaded guilty to four charges in the Local Court and entered further pleas before the District Court. Several additional charges were taken into account on a Form 1 (a procedural mechanism allowing related charges to be acknowledged at sentencing without separate conviction), while others were withdrawn by the Crown.

The offender had a significant prior criminal history, including previous convictions for drug supply, aggravated breaking and entering, and repeated disqualified driving. He had been in continuous custody on unrelated charges since 1 April 2022.

  • What was the appropriate total sentence for ongoing drug supply offences of mid-range seriousness, including the weight to be given to the Form 1 matters?
  • What discount, if any, should be applied for the guilty pleas?
  • How should the court treat the offender's difficult personal circumstances, mental health issues, and prospects of rehabilitation when arriving at the sentence?
  • Whether special circumstances existed to justify extending the parole supervision period beyond the statutory default ratio of non-parole to total sentence.
  • What was the appropriate commencement date for the custodial sentence, given the offender's pre-sentence custody on unrelated charges?

Decision

Neilson DCJ assessed the offending as falling in the mid-range of seriousness. The offender had supplied significant commercial quantities of methylamphetamine and other drugs over an extended period, with the transactions involving considerable planning and organisation. The prior conviction for drug supply meant the court extended no leniency on that account, and the repeated driving whilst disqualified was treated as further evidence of contempt for the law.

The court received reports from three psychologists addressing the offender's personal circumstances. His Honour found those circumstances generated some sympathy, noting difficult background factors and mental health issues. However, the reports also indicated fair prospects of rehabilitation, particularly given the offender's expressed motivation to address his drug addiction and the welfare of his wife and seven children.

His Honour found special circumstances, within the meaning of the sentencing legislation, justifying a longer than usual parole period. The court identified that the need for drug rehabilitation was paramount and that an extended supervision period would enable Community Corrections to require attendance at a residential rehabilitation program. This resulted in a non-parole period of three years within a total sentence of five years, producing a parole period of two years rather than the standard one-third of the total term.

On the commencement date, the court determined the sentence should run from 27 March 2022, five days before the date initially considered, to account for a short period of pre-sentence custody in November 2021. For the proceeds-of-crime charge and the cannabis possession charge, the court recorded convictions under section 10A of the Crimes (Sentencing Procedure) Act 1999 but imposed no additional penalty.

Orders Made

  • Total sentence of five years' imprisonment imposed, comprising a non-parole period of three years commencing 27 March 2022 and expiring 26 March 2025, with a balance of term of two years expiring 26 March 2027.
  • Special circumstances found; the offender is eligible for parole at the expiry of the non-parole period.
  • For the sequence 1 offence, Form 1 matters taken into account.
  • For the sequence 6 offence (dealing with proceeds of crime) and sequence 9 offence (possessing 15.4 grams of cannabis): convictions recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999, with no additional penalty imposed.
  • Orders made in accordance with short minutes of order filed with the court.

Key Takeaways

  • The District Court confirmed that a prior conviction for drug supply will foreclose any claim to leniency on the basis of criminal history, even where personal circumstances attract some sympathy.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where the need for post-release drug rehabilitation is sufficiently significant to warrant extending the supervision period beyond the standard one-third balance of term.
  • Where an offender is held in pre-sentence custody on unrelated charges, the sentencing court may backdate the commencement of the sentence to the date custody commenced on those unrelated charges, particularly where the offender may be acquitted of those charges.
  • Section 10A of the Crimes (Sentencing Procedure) Act 1999 permits a court to record a conviction for a less serious charge arising from the same facts without imposing any additional penalty, an outcome available here for the cannabis possession and proceeds-of-crime charges.
  • Psychological evidence of rehabilitation prospects and personal hardship remained relevant mitigating factors in this case, even in the face of a substantial criminal history, though their weight was moderated by the seriousness and duration of the drug supply conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including sections 10A and related provisions on special circumstances
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act (NSW)
- Firearms Act 1996 (NSW), ss 65(3) and 74(2)

Cases:
- Daher v R [2018] NSWCCA 287
- R v Henry (1999) 46 NSWLR 346
- R v Edwards (2006) 90 ACrimR 510