Citation: R v Hagoss [2024] NSWDC 678
Court: District Court of New South Wales
Date: 26 July 2024
Judge: D Barrow SC DCJ
Background
The offender, a 28-year-old man with no prior criminal record in New South Wales, was charged with knowingly taking part in the supply of a large commercial quantity of methylamphetamine (36 kilograms) at Kingsgrove on 30 July 2022. The charge arose from a controlled police operation involving reconstructed drug consignments. The offender drove a co-accused, William Do, to a carpark where the drugs had been staged by police.
The offender's physical involvement in the offence was extremely brief. When a suitcase spilled its contents, the offender got out of the vehicle and helped pick up the bags, then returned to the driver's seat. The agreed facts confirmed that the Crown could not prove the offender had been aware of the prior arrangements made to collect the suitcases.
The offender pleaded guilty in the Local Court and was committed for sentence. He had remained in pre-sentence custody for approximately four months and twenty days before being released on bail, subject first to home detention conditions and then to daily reporting obligations.
Legal Issues
- What objective seriousness should be attributed to the offence, given the offender's minimal and brief physical participation?
- What weight should be given to the offender's strong subjective case, including his refugee background, lack of criminal history, and prospects of rehabilitation?
- Whether an Intensive Correction Order (ICO) was available as the sentencing disposition for an offence carrying a maximum of life imprisonment and a 15-year standard non-parole period.
- How pre-sentence custody should be taken into account when calculating the term of an ICO.
Decision
The District Court found that, while the offence involved a very large quantity of a highly pure drug and carried significant objective seriousness, the offender's role was limited to a single minute of physical participation. His culpability was substantially reduced because the Crown could not establish he was aware of the prior arrangements. The court treated his involvement as being at the lower end of the range for this type of offence.
The offender's subjective case was found to be strong. He had no effective criminal history, had demonstrated a pro-social lifestyle, had significant family support (including from his father and sister), and had obtained character references and psychological assessments attesting to his good character and low risk of reoffending. The court accepted material from the Bugmy Bar Book regarding the impacts of custody on people from a refugee background, which reinforced the weight given to his personal circumstances. A 25% guilty plea discount applied.
On the availability of an ICO, the court considered the Judicial Commission's statistics showing that 13 of 128 offenders sentenced for equivalent offences between 2018 and 2023 had received ICOs. The court concluded that, given the combination of minimal role, strong subjective case, and good rehabilitation prospects, an ICO was appropriate rather than a full-time custodial sentence.
On the question of pre-sentence custody, the court followed the approach outlined in Mandranis v The Queen [2021] NSWCCA 97, adjusting the term of the ICO downward to account for the six months of pre-sentence custody already served. The court distinguished DG v R [2023] NSWCCA 320, noting that case concerned a different scenario where reducing a sentence to qualify for an ICO would have been an impermissible exercise of discretion.
Orders Made
- The offender is convicted.
- Sentenced to 18 months imprisonment, to be served by way of an Intensive Correction Order, commencing 26 July 2024.
- Conditions of the ICO:
- Must not commit any offence.
- Must submit to supervision by a Community Corrections officer.
- Must perform 125 hours of community service.
- Must accept and participate in any mental health treatment program directed by Community Corrections.
Key Takeaways
- An ICO was available, and the District Court imposed one, for a large commercial drug supply conviction carrying a maximum of life imprisonment, where the offender's physical role lasted approximately one minute and the Crown could not establish prior knowledge of the arrangements.
- A strong subjective case, including no effective criminal history, a refugee background, significant family support, and low assessed risk of reoffending, can collectively carry substantial weight in displacing full-time custody even for very serious drug offences.
- Following Mandranis v The Queen [2021] NSWCCA 97, once a court determines that an offender qualifies for an ICO, the term of the order can be adjusted downward to account for pre-sentence custody already served.
- The principle in DG v R [2023] NSWCCA 320 was distinguished: that decision prohibits a court from artificially reducing a sentence to fall within ICO eligibility thresholds, but it does not prevent adjustment of an ICO term after eligibility has been independently established.
- Judicial Commission sentencing statistics showing a small but real proportion of comparable offenders receiving ICOs were treated as relevant contextual material in assessing the appropriateness of that disposition.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D
Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Mandranis v The Queen [2021] NSWCCA 97
- DG v R [2023] NSWCCA 320
- DC v R [2023] NSWCCA 82
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Green & Quinn v The Queen [2011] HCA 49; 244 CLR 462
- De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- El Kheir v R [2019] NSWCCA 288
- Parente v The Queen (2017) 96 NSWLR 633
- R v Qi [2019] NSWCCA 73
- Lam v R [2014] NSWCCA 50
- Luque v R [2017] NSWCCA 226
- R v Kijurina [2017] NSWCCA 117
- Melikian v The Queen [2008] NSWCCA 156
- R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44
- R v Dang [2005] NSWCCA 430