District Court New South Wales Medium Neutral Citation: R v Hausfeld [2019] NSWDC 501 Hearing dates: 27 June 2019 Date of orders: 31 July 2019 Decision date: 31 July 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [59]-[65] Catchwords: CRIME – sentencing – guilty plea – drug supply offences – supply on an ongoing basis – diminished moral culpability – young offender – positive prospects of rehabilitation Legislation Cited: Confiscation of Proceeds of Crime Act 1989 s 29 Crimes Act 1900 s 193C Crimes (Sentencing Procedure) Act 1999 s 3A Drug Misuse and Trafficking Act 1985 ss 10; 25; 25A Road Transport Act 2013 s 54 Cases Cited: Butters v R [2010] NSWCCA 1 Category: Sentence Parties: Regina (Crown) Alex Hausfeld (Offender) Representation: Counsel: Mr M Coroneos (Offender) Solicitors: ODPP (Crown) Birchgrove Lawyers (Offender) File Number(s): 2018/200203 Publication restriction: None Judgment 1. The Offender appears before the Court today for sentencing having pleaded guilty to a number of charges. The offences occurred in a period of six months between December 2017 and June 2018. The following charges appear on the Crown Sentence Summary (Exhibit A): 1. the first ending H405 being sequence 5, a charge of ongoing supply of methylamphetamine, in breach of s25A of the Drug Misuse and Trafficking Act. That offence carries a maximum penalty of 20 years imprisonment and or a fine of 3,500 penalty units; 2. the second charge is sequence 10 of the same charge number, being a charge of supply a prohibited drug, being methylamphetamine, in breach of s25(1) of the Drug Misuse and Trafficking Act. That offence carries a maximum penalty of 15 years imprisonment and or a fine of 2,000 penalty units. 1. Additionally, each charge has two further charges attaching by way of a Form 1. By signing the certificates to those documents, I confirm that I have taken those charges (being sequences 6 and 13 for sequence 5 and sequences 7 and 8 for sequence 10) into account in sentencing for the principal charges. 2. The charges on the Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is a need for personal deterrence and the second is the community's entitlement to extract retribution for serious offending. 3. The charges on the Form 1 attaching to sequence 5 are: 1. sequence 6 being a charge of supply a prohibited drug in breach of s25(1) of the Drug Misuse and Trafficking Act. It has a maximum penalty of 15 years and or a fine of 2,000 penalty units; and 2. sequence 13, being a charge of deal with the proceeds of crime in breach of s193C(2) of the Crimes Act. The maximum applicable penalty is three years imprisonment. 1. The charges on the Form 1 attaching to sequence 10 are sequences 7 and 8: 1. sequence 7 is a charge of supply a prohibited drug in breach of s25(1) of the Drug Misuse and Trafficking Act. I note I have already announced the maximum penalty for that offence; 2. the second is sequence 8 being a charge of possess a prohibited drug in breach of s10(1) of the Drug Misuse and Trafficking Act. The maximum applicable penalty is two years imprisonment and or a fine of 20 penalty units. 1. Additionally, sequence 9 appears as a related offence on a s166 certificate. The Offender had admitted guilt and asks the Court to convict and sentence him in respect of that offence. That matter is a charge of drive a motor vehicle during a period of disqualification being the first offence in breach of s54(1)(a) of the Road Transport Act. That offence carries a maximum penalty of 30 penalty units and/or six months' imprisonment. 2. As noted, the offending occurred between December 2017 and June 2018. On 28 June 2018, the Offender was arrested and bail refused. The Offender was committed for sentence in the Central Local Court on 20 February 2018. The sentence will be backdated to 28 June 2018 to reflect the time spent in custody to date. 3. The following are the facts agreed between the parties upon which the Offender is to be sentenced. 4. Strike Force Mathison was established to investigate the supply of methylamphetamine in the Sutherland Shire area. On the morning of 6 December 2017, an undercover operative met with other police officers where he was fitted with technical equipment and handed pre-recorded buy money. This operative made a call to Christopher Beattie, the co-Offender in this matter, arranging the purchase of 70 grams of methylamphetamine. Mr Beattie told the operative that his mate, that is the Offender, would drop the drugs over and check the price. The price was confirmed at $1,350. 5. The co-Offender told the undercover operatives that he was at his mother's house in Engadine. When the undercover operative arrived at the home, he was asked to wait inside for the Offender who was bringing the methylamphetamine. A short time later the Offender arrived and introduced himself to the undercover operative as Alex. Another male had a set of digital scales and a number of resealable bags which were handed to the Offender. The Offender weighed the drugs and handed two bags to the undercover operative in exchange for $1,350. The Offender then gave the undercover operative his mobile phone number. The interaction between the undercover operative, the Offender, the co-Offender and the other male was recorded. The two bags were sent for testing, confirming the substance to be 6.47 grams of methylamphetamine with a purity of 68%. 6. On the afternoon of 7 December 2017, the undercover operative again corresponded with the co-Offender arranging for the purchase of 7 grams of methylamphetamine. The next day the operative rang the co-Offender with no answer so he then called the Offender. Later that day, the Offender arrived in a white ute and got into the undercover operative's car which was parked near the co-Offender's house in Engadine. The Offender handed the undercover operative a small clear resealable bag containing white crystals which he exchanged for the pre-recorded buy money. The substance was analysed to be 6.60 grams of methylamphetamine with a purity of 68.5%. 7. On the afternoon of 19 December 2017, the operative corresponded directly with the Offender, arranging for the purchase of 7 grams of methylamphetamine the following day. The next morning the undercover operative spoke with the Offender confirming a meeting time. At about 12.50pm on 20 December 2017, the operative parked his car in Engadine Avenue, Engadine. After speaking with the Offender on the phone, the Offender got into the operatives car and they drove around the corner and parked on the old Princes Highway. Whilst in the car, the Offender handed the operative a small clear resealable bag containing white crystals. Those drugs were exchanged for $1,400. The drugs were analysed to be 6.83 grams of methylamphetamine with a purity of 61.5%. 8. On 27 December 2017, the operative corresponded with the Offender arranging the purchase of 7 grams of methylamphetamine for the next day at Heathcote McDonald's. At around 12.15pm that next day, the Offender arrived in the car park at McDonald's and got into the undercover operatives car. Whilst in the car, the Offender handed the undercover operative two small clear resealable bags containing white crystals which was exchanged for $1,400. During the conversation, the Offender told the operative that he was "moving half an ounce a day minimum now". The drugs were analysed to be 7 grams of methylamphetamine with a purity of 69%. 9. Between 22 January 2018 and 19 April 2018, various telecommunication services of the Offender were lawfully monitored. Between those dates the Offender purchased from up line suppliers and then sold, agreed to sell and/or organised to supply a total of 249 grams of methylamphetamine to a variety of purchasers for cash. The Offender communicated with customers and suppliers at all times of the day at various locations around Sydney, often dealing with multiple orders at once. 10. On 13 March 2018, the operative corresponded with the Offender to organise the purchase of two ounces of methylamphetamine for $8,000. Later that day, the Offender negotiated to purchase two ounces of methylamphetamine from his up line supplier, Mitchell Stevens, for $7,500. At 12.30pm on 14 March 2018 the operative arrived at a park in Padstow. The Offender walked to the operative's car and sat in the passenger seat. Whilst in the car the operative handed the Offender $8,000 which he then handed back. The Offender was concerned about being pulled over by the police. At this time the Offender was texting a person referred to as Mitchell. The Offender got out of the car and walked down the street with the operative following him. A white Mitsubishi Lancer parked opposite him. The operative had a conversation with the male passengers in the car, who introduced themselves as Mitchell and Scott. The undercover operative handed Mitchell $8,000. Mitchell then handed the operative a snack-sized, clear, resealable bag containing white crystals. The drugs were analysed to be 55.5 grams of methylamphetamine with a purity of 71%. 11. Between 6 December 2017 and 14 March 2018, the Offender dealt with $13,500, that being pre-recorded buy money which was the proceeds of crime. 12. On 21 March 2018, the Offender contacted the operative and provided him with a new mobile phone number. Between 24 and 27 March, the operative corresponded with the Offender and organised the purchase of five ounces or 142 grams for $19,000. 13. On 28 March 2018, the operative contacted the Offender, who cancelled the supply for that day. 14. On 28 June 2018, police stopped a car which the Offender was driving. At this time the Offender was disqualified from driving. The Offender offered a driver's licence in the name of Jack Holt. Police searched the car and found the following: 1. a black Apple iPhone; 2. an orange Huawei phone box which contained the Offender's actual licence, multiple gift cards and credit cards in the name of the Offender and other people's names and a clear, resealable bag containing 0.11 grams of methylamphetamine; 3. a pink OPPO mobile phone; 4. a Blackberry mobile phone; 5. a white iPad; 6. a notepad containing identity information including names, credit card numbers, expiry dates and verification codes; and 7. a wallet containing multiple forms of identification in the name of the Offender, and a further fraudulent driver's licence. 1. The Offender was taken into custody and declined to be interviewed. 2. The following matters relate to the Offender's subjective case. A number of references and reports were relied upon by the Offender in the subjective case. A Sentencing Assessment Report was tendered following an interview with the Offender at the John Morony Correctional Centre. The Offender reported that he lived a transient lifestyle prior to going into custody, living in both Melbourne and Sydney. The Offender intends to reside with his parents in the Engadine area after release. The Offender attributed his offending to his drug use and negative peers, stating that he committed the offences in order to fund his drug habit. The Offender reported that from the age of 19 he was engaging in daily ice use. Corrective Services records indicate that he was smoking two grams of cannabis per day and using benzodiazepines on a daily basis. 3. In respect of insight into his offending behaviour, he identified that by supplying drugs he could have put himself in a dangerous position, but largely focused on the impact the offending had on himself and his family. The author of the report assessed the Offender as being at a medium to high risk of re-offending. 4. A psychiatric report under the hand of Dr Gerald Chew, dated 15 June 2019, was tendered and marked Exhibit 1. The Offender reported that he was diagnosed and treated for ADHD at the age of 13. He stated that he had worked as a carpenter from age 16 to 20. The Offender stated that at the age of 19 he stopped using ADHD medication and started using illicit drugs more regularly, right up until the time of his incarceration. The Offender stated that he was motivated to stop his illicit drug use and change his life. 5. Dr Chew opined that, in the context of stopping his ADHD medication, the Offender developed a significant methylamphetamine addiction in an attempt to self-medicate, which developed into his participation in criminal activity. It was the opinion of Dr Chew that ADHD treatment would be of benefit to the Offender, and also reduce the risk of relapse into substance use and reoffending. Critically, Dr Chew opined that: "There appears to be a direct nexus between his ADHD and his substance misuse and offending behaviours". 1. Exhibit 2 is a letter of attendance for the programs the Offender has attended whilst in custody He is currently attending the Remand Addictions Program, which is a 20-session program. As at 24 June 2019, the Offender had attended nine of the 20 sessions. 2. Exhibit 3 was a letter written by the Offender to the Court. He apologised for his behaviour and for wasting the Court's time. He stated that at the age of 18 he felt the need to leave the family home, a decision which he regretted. When he was taken into custody, the Offender stated that it was the first time in a while that he wanted to be back within the family home and that being in custody had shown him where he wants to focus his life and future. The Offender stated that he will move back with his parents when he leaves prison, and that if he was provided with a chance to prove himself he would not take it for granted. 3. An affidavit of the Offender's mother was marked Exhibit 4. Attached to that affidavit was a Certificate 3 in Shopfitting and Joinery demonstrating that the Offender was fully licensed to practice in those trades. Also attached were a number of letters from the Offender's general practitioner concerning his treatment for ADHD. Mrs Hausfeld noted that when the Offender first arrived in prison he requested to be treated for ADHD but was refused. The mother of the Offender further stated that in or around 2016 she began to notice a more serious change in the Offender's behaviour. When finding out that the Offender was using methylamphetamine, the Offender was asked to stop taking the drugs or leave the house, and he unfortunately chose the latter. His mother stated that she had seen a very positive shift in his demeanour whilst he had been in custody. Both parents note that they are in disbelief that the Offender wants to be part of their lives again. 4. A letter from the Offender's GP was marked Exhibit 5. The letter details the Offender treatment for ADHD. Dr Wassef opined that he believed that a big part of the Offender problems was that he had stopped using his medication. The remainder of the bundle of documents tendered on the subjective case were additional certificates for courses which the Offender had completed whilst in custody, as well as a number of letters of support. It was clear that the Offender has a wide range of support in the community. It was also clear that the Offender is making the most of his time in custody by completing as many courses as he can. 5. It was conceded by counsel for the Offender that due to the objective criminality of the offending the s5 threshold had been crossed and a sentence of full-time imprisonment was appropriate. It was conceded on behalf of the Offender that the offence was committed whilst on conditional liberty. However the following matters were not accepted as being statutory aggravating factors: 1. his record of previous convictions. I accept that submission and do not find that his criminal record aggravates the offending, however, it does disentitle him to a finding of good character and any leniency which may flow from that finding; 2. it was further disputed by counsel for the Offender that the offences were part of a planned or organised criminal activity. It was submitted that planning and organisation are an inherent characteristic of such offending and only are aggravating if the planning is significant. There is no evidence before the Court to demonstrate to a requisite degree that the planning or organisation were beyond that which is inherent in offending of this type so as to aggravate the offending pursuant to the statute; 3. it was further submitted that the Court ought not find that the offences were committed for financial gain. The same submission was made. That is, that the financial gain is an inherent characteristic in offending of this type. I accept that submission and decline to find financial gain as a statutory aggravating factor. 1. It was submitted on behalf of the Offender that the following mitigating factors were present: 1. the Offender is unlikely to reoffend; 2. the Offender has good prospects of rehabilitation; 3. the Offender has demonstrated remorse; 4. the Offender was not fully aware of the consequences of his actions by reason of his disability; and 5. the plea of guilty by the Offender. 1. In relation to the subjective case it was submitted that the expert's opinion of Dr Chew should be relied upon with a regards to a finding of nexus between his mental health condition and the offending behaviour, as well as any risk of re-offending and chances of rehabilitation. It was submitted that a finding of special circumstances should be made to allow the Offender to spend more time in the community participating in rehabilitation. 2. It was noted that the opinion of Dr Chew was contradictory to that of the author of the Sentencing Assessment Report regarding the prospects of rehabilitation and the risk of re-offending. It was submitted that at the time of writing the Sentencing Assessment Report, the Community Corrections officer only had access to a limited amount of documentation regarding the Offender's medical history, whereas Dr Chew had access to a vast array of medical documents dating back to 2013. 3. The Crown submitted that with regards to objective seriousness the offending involved a significant and relatively sophisticated drug selling operation of a significant quantity of the drug over the entire period of offending. Additionally, it was submitted that the Offender was an enthusiastic participant in the operation having boasted about the quantity of drugs he was selling. It was submitted that the statutory aggravating factors of planning and financial gain are proven beyond reasonable doubt based upon the level of planning and the amount of money the Offender received from the undercover operative. 4. The Crown conceded that special circumstances ought to be found by. In relation to any statutory mitigating factors the Crown submitted that the Court would have guarded views as to the prospects of re-offending and rehabilitation based upon the findings made by the author of the Sentencing Assessment Report. 5. As to any nexus between the Offender's ADHD condition and the offending behaviour, the Crown accepted that there may be a connection between the condition and his use of methylamphetamine as in a self-medicating sense, but not with regards to the offending behaviour. 6. The Crown consented to the tendering of the report by Dr Chew and did not require Dr Chew for cross-examination. The report in my view expressed clear, concise conclusions with the reasoning underlining those conclusions being fully exposed. I accept the opinion of Dr Chew. 7. In terms of any aggravating factors I find that the statutory aggravating factor of the Offender being on conditional liberty at the time of the offending has been made out. 8. In relation to the submission by the Crown concerning planning and financial gain, in respect of sequence 5 being the ongoing supply it is clearly part of the offending and it occurs over a period of time with back and forward communication between the Offender and the buyer. Considering the amount of drugs that were sold for that charge I do not find the statutory aggravating factors of planning, or financial gain are established. However, sequence 5 can be distinguished with sequence 10 being a charge usually prosecuted as a single supply offence for this Offender. The charge involved the supply of methylamphetamine over a three month period, totalling to an amount just shy of the commercial quantity. Additionally, it was agreed within the facts that the intercepted communications showed that the Offender was regularly supplying methylamphetamine across Sydney. I find that for sequence 10 there was a degree of planning and a motive of financial gain. 9. In respect of any mitigating factors, I accept the plea of guilty and will reduce the sentence by 25% to reflect the value of that guilty plea. It was submitted that the statutory mitigating factors of remorse, a low risk of re-offending and strong prospects of rehabilitation ought to be found. Whilst it is obviously commendable that the Offender has addressed his offending behaviour through the completion of courses whilst in custody, his behaviour is yet to be tested in the community. I decline to find that those statutory mitigating factors have been established. 10. In terms of the objective gravity of the offending based upon the amount of drugs that were sold being 26 grams over three occasions with a purity of between 68 and 69% for sequence 5 as the ongoing supply charge, I find that the objective seriousness is at the mid-range. For sequence 10 considering the amount of the drug and the level of sophistication that occurred in a three month period, I find the objective seriousness is at or just above the mid-range of objective seriousness. For sequence 9 being drive whilst disqualified I find that the objective seriousness is low. 11. Concerning the Offender's drug addiction, it is clear that he was addicted to drugs at the time of the offending. As I have already observed he has taken steps to remedy that whilst on remand. Although I do note that there was a drug infraction recorded on the Offender's custodial history, it was submitted by counsel for the Offender, based on instructions, that the infraction occurred when the Offender felt uncomfortable providing a drug sample. Without sworn evidence as to that matter the submission cannot be accepted with any confidence. 12. I do find, at the time of offending, the Offender was addicted to methylamphetamine. His recovery from that addiction will be addressed in a finding of special circumstances. It would appear that his offending was committed by reason of a combination of greed and also to feed his own habit. 13. The evidence of remorse is the letter written by the Offender to the Court (Exhibit 3). It was accepted that this statement may have reduced weight in circumstances where the Offender did not give sworn evidence. Counsel for the Offender pointed the Court to the authority of Butters v R [2010] NSWCCA 1 where Fullerton J stated "there is no statutory requirement that an Offender give evidence before remorse can be taken into account in the calculation of sentence". Obviously without sworn evidence there are limitations as to how the Offender's letter to the Court can be relied upon, it being untested. Notwithstanding the fact that the Offender chose not to give evidence and submit himself to cross-examination, I do make a finding of remorse but not the standard required for it to be a statutory mitigating factor. 14. Based on the information contained in the Agreed Facts and the evidence in the subjective case it is clear that the Offender had a steep decline into drug use and criminal behaviour upon leaving home at the age of 18. It is encouraging that the Offender's parents will welcome him back into the family home and that he also has a trade to fall back onto upon release. If properly supervised and medicated for his pre-existing condition I accept and, accordingly, find that the Offender's prospects of rehabilitation are good and the risk of re-offending is low. 15. Concerning the medical condition identified by Dr Chew, I accept the opinion of Dr Chew that there was a connection between his psychiatric condition and the subject offending. This has three consequences: first, it renders the Offender an unsuitable vehicle for general deterrence, secondly, the moral culpability of his offending behaviour is reduced, and thirdly, it demonstrates the need for additional time in the community to obtain assistance and rehabilitation. 16. Section 3A of the Crimes (Sentencing Procedure) Act sets out the purposes for which a sentence may be imposed. 17. The first is to ensure that the Offender is adequately punished. I am satisfied that the sentence to be imposed will achieve that purpose. 18. The second is to deter both the Offender and others from committing similar offences. In relation to deterrence I have already observed that given his pre-existing medical condition the Offender may not be an appropriate vehicle for general deterrence. It may also lessen the need for specific deterrence as there appears to have been a cause for his offending. 19. The third is to protect the community from the Offender. I am satisfied that if properly rehabilitated and supervised by his parents and Community Corrections that he will not present a danger to the community in the future. 20. The next and most important is the rehabilitation of the Offender. This will largely be addressed through courses and rehabilitation undertaken whilst on parole. 21. Next, is to make the Offender accountable for his actions. I am satisfied the sentence to be imposed does that. And finally, relevantly, to denounce the conduct of the Offender. 22. As I have already observed it was submitted by counsel for the Offender that the threshold under s5 had been crossed and a term of full-time imprisonment was reasonable. Having considered the matter carefully I find that no sentence other than imprisonment is appropriate in the circumstances. 23. In my view, the offending in this case calls for the imposition of an aggregate sentence given the nature of the offending and the timing of the offending. To impose separate sentences in relation to the various charges would run the risk of imposing a sentence which in the circumstances was crushing and offended the principle of totality. 24. Prior to providing an aggregate sentence however the Court is required to provide indicative sentence of what the sentences would be if separately sentenced for each of the charges. 25. In relation to sequence 5 with sequences 6 and 13 attaching on a Form 1 being ongoing supply of methylamphetamine in breach of s25A of the Drug Misuse and Trafficking Act, the maximum penalty is 20 years imprisonment and or a fine of 3,500 penalty units. I provide an indicative sentence of three years discounted by 25% resulting in an indicative sentence of two years and three months. 26. In relation to sequence 9 being the matter on the s166 certificate, were it not for the fact that I was imposing an aggregate sentence I would have sentenced the Offender to a period of imprisonment of four months discounted by 25% resulting in a sentence of three months. 27. In relation to sequence 10 with sequences 7 and 8 attaching on a Form 1, I would but for the aggregate sentence have sentenced the offending to a period of imprisonment of two years discounted by 25% to 18 months. 28. Yes, please stand, sir. 29. Mr Hausfeld, you are convicted of the following offences: 1. sequence 5 being a charge of supply a prohibited drug on an ongoing basis in breach of s25A(1) of the Drug Misuse and Trafficking Act; 2. sequence 10, being a charge of supply a prohibited drug in breach of s25(1) of the Drug Misuse and Trafficking Act. 1. I note that sequences 6 and 13 attach on the Form 1 for sequence 5 and sequences 7 and 8 attach to sequence 10. 2. You are also convicted of the related offence on the s166 certificate being drive whilst disqualified, your first offence in breach of s54(1)(a) of the Road Transport Act. 3. For those offences you are sentenced to an aggregate sentence of imprisonment for three years, to date from 28 June 2018 and expire on 27 June 2021. You are sentenced to a non-parole period of 18 months to date from 28 June 2018 and to expire on 27 December 2019, on that date you will be released on parole. 4. Whilst on parole you will be supervised by Community Corrections and I recommend that Community Corrections ensure that you participate in appropriate treatment regime for your pre-existing ADHD condition and any psychological therapies which flow or stem from that. 5. With regards to sequence 9, I order the automatic disqualification period with RMS to determine the applicable dates. 6. In accordance with the short minutes of consent order, I order that, pursuant to s29(1) of the Confiscation of Proceeds of Crime Act the Offender pay the State of New South Wales a drug proceeds order in the sum of $5,500. I order that any drugs seized from the Offender be destroyed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2019