R v Haeusler [2002] NSWCCA 246

New South Wales Court of Criminal Appeal

CITATION : R v Haeusler [2002] NSWCCA 246 FILE NUMBER(S) : CCA 60400/99 HEARING DATE(S) : 20 June 2002 JUDGMENT DATE : 20 June 2002

PARTIES : Regina (NSW) Craig Haeusler (Applicant) JUDGMENT OF : Dunford J at 1; Adams J at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0888 LOWER COURT JUDICIAL Kirkham DCJ OFFICER :

COUNSEL : PG Ingram (Crown) P Byrne SC (Applicant) SOLICITORS : SE O'Connor (Crown) Michael Croke & Co. (Applicant) CATCHWORDS : CRIMINAL LAW - sentencing - manufacture a large commercial quantity of a prohibited drug (methylamphetamine) - supply a large commercial quantity of a prohibited drug (methylamphetamine) CASES CITED: Postiglione v The Queen (1998) 189 CLR 295 DECISION : Leave to appeal granted. Sentences quashed; applicant re-sentenced.

IN THE COURT OF CRIMINAL APPEAL 60400/99

DUNFORD J ADAMS J

Thursday, 20 JUNE 2002 R v Craig HAEUSLER Judgment 1 DUNFORD J: This is an application by Craig Haeusler for leave to appeal against the concurrent sentences of 7 years imprisonment with non-parole periods of 5 years and 3 months imposed on him following his conviction following trial by a jury before his Honour Judge Kirkham in the District Court at Sydney on counts of knowingly take part in the manufacture of a large commercial quantity of a prohibited drug (methylamphetamine), and supplying a large quantity of the same drug. Each offence carries a maximum penalty of life imprisonment or 5,000 penalty points, or both. 2 The applicant was tried with two co-offenders, Messrs Hanley and Christie, on these charges in a trial that took some 8 weeks, including 3 days of jury deliberations. The Crown argued there was a joint criminal enterprise between the three and the owner of the premises where their activities took place, a Mr Spyridis, where they were arrested and where the drugs were found. 3 Mr Spyridis was tried separately before his Honour Judge Flannery QC, found guilty and sentenced to 7 years imprisonment with a minimum term of 5 years and an additional term of 2 years, Mr Hanley was sentenced to two concurrent terms of 10 years imprisonment with minimum terms of 7 years and 6 months, while Mr Christie was sentenced to two concurrent terms of 6 years imprisonment with a minimum term of 4 years and 6 months. 4 In sentencing the three offenders his Honour referred to the circumstances of their arrest, described the Crown case as a powerful one, noted the maximum penalty for the offence was life, and also noted that at the time of sentencing Mr Hanley was already serving a sentence for a previous offence of a similar nature for which he had been on bail at the time that these offences were committed. He therefore made Mr Hanley's sentence partially concurrent with the sentence he was already serving. 5 He dealt with the subjective features of each of the prisoners and with the respective parts they played in the commission of the offences. It is not necessary to go into the detail of his Honour's findings, except insofar as they affect the outcome of this appeal. 6 The relevant finding that is challenged is that his Honour erred in assessing, as he did, that the parts played by the applicant and Mr Hanley were equal and that prior to any discount their head sentences should be the same, it being submitted that there were indications that his Honour was in error in making this finding and should have found that the part played by Mr Hanley was the greater. 7 To establish the necessary error on the part of the sentencing Judge, it is not sufficient to point to a couple of passages referred to in the Remarks on Sentence and subject those pieces of evidence to critical examination. His Honour had sat through the whole of the trial over 8 weeks and heard all the evidence and, consequently, was in a much better position than this Court to assess the parts played by, and the respective criminality of, the various participants. I would not be prepared to find error in his Honour's findings in this regard. 8 Having found that the parts played by Mr Hanley and the applicant were virtually equal and that they should be seen as prime movers in the matter, his Honour said, as already noted, that prior to the application of any discount their head sentences would have been the same. 9 However, his Honour did allow a discount to the applicant of 30 percent on the head sentence because of assistance he had given to the authorities, which he found to be significant and useful. This discount is not disputed by the applicant, or for that matter by the Crown. 10 However, the point is made that Hanley's prior record was worse than that of the applicant, insofar as he had this conviction for a similar offence and the current offence had been committed whilst on bail whereas, the applicant only had convictions for receiving in 1991 and obtaining benefit by deception in 1998 although, in addition, had shown a flagrant disregard for the traffic laws. 11 However, these matters were not as serious in the present context as Hanley's previous conviction for a similar offence and the commission of these offences whilst on bail. 12 In these circumstances, principles of parity, in my view, required that some further concession be made to the applicant: see Postiglione v The Queen (1998) 189 CLR 295. The comparative criminal histories were matters which the applicant was entitled to have taken into account. 13 His Honour apparently failed to do so, probably because his attention was not drawn to it, although his Honour was clearly aware of the need for parity. In my view, the fact that the more serious criminal record of Hanley was not taken into account could result in the applicant being left with a justifiable sense of grievance, and this Court should therefore intervene to rectify that position. 14 I would therefore propose that leave to appeal be granted. I would quash the sentences imposed by his Honour and in lieu thereof on each count I would sentence the applicant to imprisonment for 6 years, to commence on 11 October 1998. I would fix a non-parole period of 4½ years. The date on which the applicant will therefore be eligible to be released on parole would be 10 April 2003. 15 ADAMS J: I agree. 16 DUNFORD J: The orders will be as I have indicated. **********