Citation: R v Fahey [2024] NSWDC 680
Court: District Court of New South Wales
Date: 26 April 2024
Judge: Haesler SC DCJ
Background
The offender had previously been sentenced by the same judge in October 2021 to four years imprisonment for unrelated matters, with a special circumstances finding allowing release to parole after half that term. He was released to parole on 3 December 2022 and initially settled, living with his mother and working for his father. However, personal difficulties and renewed associations with drug users led to a rapid escalation of illicit drug use.
In the early hours of 12 February 2023, police observed the offender riding an unregistered stolen motorcycle in southern Wollongong. When police initiated a pursuit, the offender accelerated, failed to stop at a red light, crossed unbroken centre lines, and at one point rode briefly against traffic. The pursuit was terminated for safety reasons. The motorcycle subsequently flipped and the offender was found injured beneath it. He attempted to flee but could not do so due to his injuries.
On apprehension, police found the offender carrying 27.65 grams of methylamphetamine, Ziploc bags, and scales. He also had three smaller bags containing approximately 10 grams of methylamphetamine, which he said were for his own use. He was not holding a current driver's licence. The offender pleaded guilty to supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) and failing to stop during a police pursuit under the Crimes Act 1900 (NSW).
Legal Issues
- What was the appropriate sentence for supply of a prohibited drug and failing to stop during a police pursuit, having regard to objective seriousness, subjective circumstances, and the offender's prior history?
- How should the breach of parole be treated in formulating the sentence?
- Whether a finding of special circumstances was warranted to extend the parole period beyond the statutory norm.
- What weight should be given to the offender's background, including drug dependency, mental health (Borderline Personality Disorder), and childhood trauma, under the principles in Bugmy v The Queen?
- How should matters on the Form 1 (possession for personal use) and the s 166 schedule matter (drive while licence cancelled) affect the sentence?
Decision
Haesler SC DCJ assessed the objective seriousness of the drug supply offence as relatively low in the range of matters before the Court. The offender was carrying the methylamphetamine for others primarily to fund his own escalating addiction, with no evidence of involvement at a higher level of the supply network. The quantity involved (27.65 grams) and the offender's rationale placed the offence toward the lower end of the scale.
The fail-to-stop offence was also assessed as low in the range, given the time of night and the absence, as shown on in-car video, of other road users being placed in direct danger. The pursuit was sensibly terminated by police. The judge nonetheless emphasised that courts must reinforce the obligation to comply with police directions, and that this type of offending exposes both police and the public to risk.
On subjective matters, the judge applied the High Court's ruling in Bugmy v The Queen that the mitigating effect of a deprived background does not diminish over time. The offender's history of trauma, drug dependency, and Borderline Personality Disorder had been considered at the 2021 sentencing and were taken into account again. The judge was careful to note that the offender was not being punished for failing to keep promises made at the earlier sentencing, but that the parole breach was a proper aggravating factor in determining the length of the new sentence.
A finding of special circumstances was made, justified by the need for the offender to engage in mental health, drug, and alcohol programs during an extended parole period, and by the accumulation of sentences. The 25% discount for the early guilty plea was applied to arrive at the indicated sentences.
Orders Made
- Supply prohibited drug: sentence of 1 year and 10 months (inclusive of Form 1 matters).
- Fail to stop during police pursuit: sentence of 9 months.
- Licence disqualification for the police pursuit offence: 12 months (minimum period).
- Drive while licence cancelled (s 166 schedule): dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999; conviction recorded with a concurrent licence disqualification of 6 months.
- Aggregate sentence: 2 years imprisonment, commencing 12 July 2023.
- Special circumstances found; minimum term of 12 months, making the offender eligible for parole on 11 July 2024.
- Parole period of 1 year to follow the minimum term.
Key Takeaways
- A deprived background, drug dependency, and mental illness do not lose their mitigating weight on a subsequent sentencing: the District Court applied Bugmy v The Queen to reduce the offender's moral culpability for the second time.
- Breach of parole operates as an aggravating factor in formulating sentence length, even where the court expressly declines to punish the offender for personal failures or unkept promises.
- Where drug supply is carried out at a low level to fund personal addiction, with no evidence of involvement higher in the supply network, the objective seriousness of the offence may fall toward the lower end of the range despite the serious maximum penalty of 15 years.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be found where both the nature of the offender's rehabilitation needs and the mechanics of accumulating sentences justify a non-parole period shorter than the statutory norm.
- Matters placed on a Form 1 (here, personal possession) do not attract a separate custodial penalty but do require greater weight to be given to deterrence and community protection in the principal sentence.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 51B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fahey [2021] NSWDC 717