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District Court 3 October 2023

R v Abdul-Hamid

[2023] NSWDC 641

Assault & violenceDrugsTraffic & drivingPublic order & justice offences

Citation: R v Abdul-Hamid [2023] NSWDC 641
Court: District Court of New South Wales
Date: 3 October 2023
Judge: Haesler SC DCJ

Background

The offender appeared for sentencing on multiple criminal offences arising from three separate police interventions in 2021 and 2022. The offences spanned drug supply, directing the activities of a criminal group, failing to stop for police, speeding, and assaulting a police officer.

The first intervention arose from a police strike force investigating drug supply in the Illawarra region. Between May and July 2021, the offender was under surveillance and was found to have directed a criminal group involved in supplying methylamphetamine and heroin. When arrested on 17 July 2021, police found nearly 500 grams of methylamphetamine and over 41 grams of heroin, both held for supply, along with more than $28,000 in cash as proceeds of crime.

The second intervention, on 12 April 2021, involved a police pursuit after the offender failed to stop when directed. He was driving in excess of 45 kilometres per hour above the speed limit, and a small quantity of methylamphetamine was thrown from the vehicle. The third intervention occurred on 28 December 2022, after the offender had been granted bail to attend rehabilitation. Police found him in possession of over 142 grams of heroin for supply, and during the course of his arrest he bit a police officer on the arm.

  • The appropriate individual sentences for each of the multiple offences across the three police interventions, including the application of standard non-parole periods
  • The utilitarian discount applicable to guilty pleas entered at different stages (late guilty pleas, early guilty pleas, and matters following a jury verdict)
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of the term
  • How parity with co-offenders, the offender's subjective circumstances (including long-term drug addiction, mental health, and a difficult upbringing), and purposes of sentencing including deterrence should be weighed
  • Whether the speeding offence and small quantity possession offence should be dealt with by way of section 10A (no conviction recorded) rather than included in the aggregate sentence

Decision

His Honour imposed an aggregate sentence of 7 years and 3 months, with a non-parole period of 5 years, backdated to 17 January 2022. The Court made a modest finding of special circumstances to justify a slightly extended balance of term, reflecting the offender's need for supervised reintegration into the community given his lengthy history of drug addiction and related difficulties.

On the guilty pleas, the Court applied a 5% utilitarian discount to the first group of offences (entered late, after committal and rearraignment), and a 25% discount to the third group (entered early in the Local Court). No utilitarian discount applied to the police pursuit matter, which went to jury trial, though the Court credited the offender for limiting the issues in dispute and thereby facilitating the course of justice.

In assessing objective seriousness, the Court noted the organised and sustained nature of the drug supply operation, the involvement of multiple participants, the significant quantities of drugs involved, and the continued offending despite clear indications of police surveillance. The offender's role in sourcing drugs from upstream suppliers and directing others placed him above the bottom of the range of seriousness.

The Court took into account the offender's substantial subjective circumstances, including a long history of drug addiction, mental health disorders, and a difficult childhood. Allegations of childhood sexual abuse were raised but not proven on the balance of probabilities, and the Court proceeded on the basis they could not be taken into account. The Court expressed cautious optimism about the offender's prospects of rehabilitation given his age, but noted the need for deterrence and the offender's lengthy criminal history, including a prior breach of conditional liberty.

Orders Made

  • Directing criminal group activities (s 93T(4A) Crimes Act): 2 years and 10 months imprisonment
  • Commercial supply of methylamphetamine (s 25(2) Drug Misuse and Trafficking Act): 4 years and 3 months imprisonment, non-parole period of 2 years and 11 months
  • Supply of heroin (s 25(1) Drug Misuse and Trafficking Act): 1 year and 10 months imprisonment
  • Fail to stop, police pursuit (s 51B Crimes Act): 12 months imprisonment
  • Assault police officer (s 61 Crimes Act): 9 months imprisonment
  • Supply prohibited drug in December 2022 (s 25(1) Drug Misuse and Trafficking Act): 3 years imprisonment
  • Aggregate sentence: 7 years and 3 months imprisonment, with a non-parole period of 5 years
  • Commencement date: 17 January 2022; eligible for parole consideration on 16 January 2027; balance of term expires 16 April 2029
  • Driving disqualification (police pursuit): 4 years, suspended for the period of custody under s 206B Road Transport Act 2013 (NSW)
  • Speeding (s 20 Road Rules): dealt with under s 10A Crimes (Sentencing Procedure) Act (no conviction recorded, not part of aggregate)
  • Possession of small quantity of prohibited drug: dealt with under s 10A Crimes (Sentencing Procedure) Act (not part of aggregate)
  • Consent orders made in the terms sought (proceeds of crime)

Key Takeaways

  • The District Court applied differentiated guilty plea discounts depending on the stage at which each plea was entered: 25% for early pleas in the Local Court, 5% for late pleas after committal, and no utilitarian discount where the matter proceeded to jury trial.
  • Where an accused limits the issues in dispute at trial, the sentencing court may still recognise a benefit for facilitating the course of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), even in the absence of a guilty plea.
  • A modest finding of special circumstances permitted a balance of term slightly longer than the standard one-third, reflecting the offender's need for structured, supervised reintegration after a lengthy period of custody.
  • Allegations of childhood sexual abuse advanced as a mitigating subjective factor were not accepted because they were not established on the balance of probabilities; the Court proceeded only on what was proven or admitted.
  • In constructing an aggregate sentence involving offences of varying seriousness across multiple separate events, the Court maintained parity with co-offenders while ensuring the total sentence reflected the overall criminality without exceeding what the objective seriousness of the offences warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B, 61, 93T(4A), 193B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 22A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Rules 2014 (NSW), s 20
- Road Transport Act 2013 (NSW), s 206B
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Abdul-Hamid v R [2016] NSWCCA 118
- Attorney General's Application No 2 of 2002 [2002] NSWCCA 515
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- R v Abbas [2023] NSWDC 281
- R v Ristevska [2022] NSWDC 577
- R v Tuki (No 4) [2013] NSWSC 1864
- Trevana v R (District Court (NSW), 16 November 2022, unrep)