R v Fahey

[2024] NSWDC 680

District Court

New South Wales

Medium Neutral Citation:

R v Fahey [2024] NSWDC 680

Hearing dates:

26 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment of 2 years with non-parole period of 1 year

Catchwords:

CRIME — Drug offences — Supply prohibited drug

CRIME — Driving offences — Failure to stop — Police pursuit — Drive while licenced cancelled

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Borderline Personality Disorder — Childhood trauma

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

R v Fahey [2021] NSWDC 717

Category:

Sentence

Parties:

Adam Mitchell Fahey (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
S Fraser (for the offender)

Solicitors:
Morrisons Law (for the offender)
J Loosley for the Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2023/46788

JUDGMENT – ex tempore revised

Introduction

1. In October 2021 I sentenced Adam Fahey to 4 years imprisonment: R v Fahey [2021] NSWDC 717. I took into account, his reduced moral culpability, his background and the impact of COVID-19. I made a finding of special circumstances, allowing for his release to parole after having served half of that sentence.

2. He was released to parole on 3 December 2022. He was living with his mother and working for his father.

3. His initial responses to supervision were recorded as satisfactory, but a number of personal matters and an association with a drug user led to him taking up the use and abuse of illicit drugs again. That drug use, as it had so often in his past, rapidly escalated. He did not seek help from his parole officer, he did not pursue the rehabilitation programs that had been put it place, he did not seek help from his parents. He thought that he was strong enough to cope on the outside without continuing with the buprenorphine program that he started in custody. He thought he could do better than last time. He was wrong.

4. There are a number of aspects to Fahey’s background that cause him to resort to, what psychologists call ‘maladaptive responses’ to the problems in his life. There are reasons why his first recourse is illicit drugs and why he doesn’t have the capacity to follow through on his promises. Those matters do not diminish over time: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. I took them into account last time. I will take them into account again.

5. I do not punish him for his failures. Nor do I punish him for not keeping to the promise he made to me on the last occasion. But he breached his parole; that is a matter that aggravates the sentence. I take it into account when I formulate the length of the sentence. He is now serving balance of parole until 4 December 2024. His parole review date is 7 May 2024. Generally, if a person breaches parole, they must serve at least a minimum of 12 months before they are reconsidered for parole; hence the review date in May. I have to fix a starting date for this sentence that allows for some time to be served for that other sentence. I do not double count those factors when I synthesise the final sentence.

Matters for sentence

6. The offences to which he pleaded guilty are, by their nature, serious. The first, supply prohibited drug, s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) carries a maximum penalty of 15 years imprisonment. The second, failing to stop during a police pursuit, s 51B(1) Crimes Act 1900 (NSW) carries a maximum penalty of 3 years and a driving licence disqualification.

7. Drug supply in any form is serious because it adds to the harm to individual users, the community, and the economy caused by the illicit drug trade. Fail to stop during a police pursuit has an impact, not just on police officers, but to other road users who might be exposed to such a pursuit. It also displays a disregard for the basic rules of the road.

8. Both offences are crimes against our community. Sentences must also reflect the community’s disquiet at the sort of behaviour here. Courts have an obligation to protect the community by the imposition of penalties designed to signal to others the retribution that will fall upon them if they commit offences of a similar nature. The penalties should also signal, so far as is possible, to the offender himself that if he keeps behaving the way he does, the only recourse the Court has will be to lock him up for longer and longer periods.

9. Sentences must also attempt, so far as is practicable, to encourage an offender’s rehabilitation. Every offender, and every offence, is individual.

Agreed Facts

10. Turning now to the facts, which were agreed.

11. At 12am on 12 February 2023, police were driving in the suburb of southern Wollongong and observed a black motorcycle go past them. They followed it. There was no registration plate attached to it. As the police closed, the motorcycle accelerated to approximately 90 kilometres per hour in a 70 kilometres per hour zone. They activated a pursuit. What followed was captured on in-car video.

12. Thankfully, at that time of the morning there was little traffic about. The motorcycle left its lane. It failed to stop at a red light. It travelled at 80 kilometres per hour in a 70 zone. At one stage it crossed unbroken centre lines and rode against the flow of traffic, although the in-car video reveals that there was no traffic in the immediate vicinity. Fahey then drove onto the shoulder at speed, at which point, due to safety concerns, the pursuit was terminated. Not long afterwards, smoke was seen coming from the motorcycle. It flipped. He was found lying under it. He tried to run from police, but he was unable to do so because of injuries.

13. The motorbike had been stolen on 17 August 2022. The offender was not holding a current driver’s licence. When he was apprehended, he was carrying a bumbag which contained what was later analysed to be 27.65 grams of methylamphetamine, he also had Ziploc bags and a set of scales. Three small bags, weighing 10 grams of the methylamphetamine, were also in his possession. He said those were for his personal use.

Objective seriousness

14. I do not have other details as to the supply other than, as would appear obvious, from the evidence he gave today. He said he needed drugs for his then escalating daily use habit. He was carrying the drugs for others to enable him to obtain the drugs he was using himself. There is no evidence that he was engaged in any higher calling, so to speak, in regard to the drug supply network. But people who carry drugs for the purpose of supply play their part in the pernicious trade to which I have already referred.

15. The drugs have helped ruin this young man’s life and, if supplied to others, might ruin theirs.

16. His involvement in the drug supply; considering the amount, his rationale for involvement, is relatively low in the range of matters that come to this Court.

17. The failing to stop showed a disregard for the police. It put road users at risk. I take into account the time of night. I take into account the absence, as shown in the CCTV, of other road users being put in direct danger and that the police sensibly terminated the pursuit. The only person who appears to be directly put at risk on this particular occasion was, by his own stupidity, the offender himself.

18. At the same time, courts, as I said earlier, have to reinforce the need to bring home to this offender and others that they must obey directions of police officers; even if it would have, on this occasion, made him liable to being caught with the drugs in possession. More by luck than good management, this matter is low in the range of seriousness of these matters. It may well have been dealt with summarily but given his history and background and the other matter, I well understand why it was brought to this Court.

Matters on Form 1 and s 166 schedule

19. The matters on the Form 1 have to be taken into account. It is accepted that the other drugs were for his own use. The quantity involved reflects the evidence I have heard today about the amount he was using at the time. If dealt with separately no custodial penalty would have been imposed.

20. The drive conveyance without consent of owner and drive while licenced cancelled matter comes to the Court on a s 166 Criminal Procedure Act 1986 (NSW) schedule. I do not sentence for the matters on the Form 1, but they do mean that greater weight has to be given to deterrence and protection of the community and the matters for sentence. But that said, I rarely impose custodial sentences on a user in possession of drugs. I do, however, impose sentences for driving a conveyance without consent and there must be some increase in the matter for sentence because of that matter.

21. Road rules are there for a reason. If you do not have a licence, you cannot drive. He will have his licence disqualified for a period; he is not fit to drive. That will interfere perhaps with his employment when he is released, so be it. The disqualification periods are stayed, while he is serving his sentence, and if he drives while disqualified that may well breach his parole and see him come back to gaol regardless of any penalty that might be imposed in the Local Court.

Case for the offender

22. Sadly, given his time in the community, very little changed between when I sentenced Fahey on the last occasion and now. His time in gaol was ‘dead time’ to him and dead time to his relationships with his family, and so it will be again. He was not able to engage in programs other than the buprenorphine program. He was not well equipped upon release to cope with leading a normal life in the community without resorting to drug use.

23. He tells me that things have changed. I have to be very guarded in that assessment because he told me that once before. He says he is motivated because his children are struggling and that he is not doing anybody any good in gaol or living in the community taking drugs. He wants to lead a normal life as a worker, a father and a son. He accepts that he will need to take up some form of assistance. Entry into such a program is well overdue. The evidence shows that attempts have been made to engage with drug and alcohol counselling or rehabilitation programs, but those programs are oversubscribed, and many do not accept prisoners who are taking buprenorphine / buvidal.

24. His mother has made attempts to contact programs. The Way Back Program, I understand, will take him. If he can engage in that program and complete it, his prospects will be increased.

25. He accepts he needs support but in that regard it is important to note that Ms Bennett, the psychologist who saw him in February, said at par 48 of her report that he was then “currently presenting in the medium to high risk / needs category for future offending”.

26. The report notes a large number of risk factors that will all have to be addressed; prior convictions, charges laid while being supervised in the community, frequent unemployment, absence of prosocial leisure activities, history of assault offences, criminal acquaintances and friends, ongoing drug problem, still actively using drugs at that time, and mental health symptoms of moderate severity. His past behaviour suggests attitudes that are supportive of crime and show he has a poor attitude towards supervision.

27. In terms of protective factors, Ms Bennett notes; his previous work history and the fact that he has skills that will enable him to find work, and he has no history of juvenile offending. To that I would add at least the prospect of stable accommodation in the community.

28. I will not set out the matters in his background that led to a conclusion he has suffered deprivation and trauma which led to his maladaptive coping mechanisms. They are set out in the report and in my earlier judgment. Ms Bennett believes, provisionally, that he might have a diagnosis of Borderline Personality Disorder. Such disorders are often the product of trauma experienced as a child, but they also mean that great care has to be taken. For all the promises he made, unless his underlying problems can be addressed in a trauma informed way, there is a considerable risk of reoffending on release. Despite his promises made while in custody and despite promises he, I am sure, makes to his parents and others, the prospect of relapse is very, very real.

29. Ms Bennett recommends that while in custody he engage with the IDAT program and EQUIPS Addiction programs. He would benefit from Real Understanding of Self Help (‘RUSH’), and a further mental health review. A copy of her report will go with the warrant.

Submissions

30. I have had the benefit of written submissions by Mr Fraser, Public Defender and Mr Loosley, Solicitor for the Director. On most matters of principle, they do not differ. Obviously and properly, the Crown points to Fahey’s poor prognosis given the past failures. That is obvious.

31. Mr Fraser carefully cautioned me about double counting matters of aggravation and falling into problems that can occur when courts put too much emphasis on the checklist in 21A Crimes (Sentencing Procedure) Act 1999 (NSW) and do not focus on the facts for sentence and the matters that are inherent in the assessment of the objective seriousness of the offending.

32. It is conceded that, given the history, each matter was so serious that custodial sentences would be imposed. The exception being the drive cancelled which ordinarily would result in a fine and will not form part of the aggregate sentence.

33. In terms of structure, he has been in custody since 11 February 2023, a considerable period, and wasted time on remand or serving balance of parole. I propose to commence the sentence on 12 July 2023.

Synthesis

34. Synthesising all those matters, I will structure the sentence to enable him to be supervised for as long as possible on parole. While he is entitled to be released at the conclusion of the sentence I impose, much will depend upon the State Parole Authority because he has the other sentence hanging over him until December. That is a matter for them.

35. The indicated sentences take into account the early plea of guilty and the reduction of the otherwise appropriate indicated sentence by 25%.

Orders

36. In relation to the supply prohibited drug, I indicate s a sentence of 1 year and 10 months. I have taken into account the two matters on the Form 1.

37. In relation to the police pursuit, I indicate a sentence of 9 months. I impose the minimum period of licence qualification of 12 months, given that I have already found that one of the positive factors is his capacity to work, and a driver’s licence is almost essential to that.

38. In relation to the drive while cancelled, I deal with the matter pursuant to s 10A Crimes (Sentencing Procedure) Act; there will be a conviction with a licence disqualification of 6 months, which will be concurrent.

39. There will be an aggregate sentence of 2 years imprisonment. It will commence on 12 July 2023. There is a finding of special circumstances because of the need to engage in mental health and drug and alcohol programs and because of accumulation given the time he went into custody and the short period of time that he was in the community. There will be a minimum term of 12 months.

40. To recap: Sentence 2 years, commence on 12 July 2023, meaning Fahey eligible for release to parole on 11 July 2024. There will be a parole period of 1 year after that.

41. So, subject to whatever occurs at your parole hearing is in May, you could be released on 11 July. But you will be on parole for 12 months. You have breached your parole before, you know what happens if you breach your parole.

42. I am not here to give you a lecture, Mr Fahey, there are a number of matters in your personality which mean that you make promises that at the time are sincere, but you do not keep them, you do not follow through.

43. My job is to try and stop people getting hurt by people who commit crimes. If people offend on parole and hurt others, or commit crimes against others, courts eventually have to lock them up for longer periods, even though they have a background that is deserving of leniency.

44. Do you understand that?

45. OFFENDER: Perfectly clear, your Honour.

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Decision last updated: 02 July 2025