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R v Hagoss

R v Hagoss

Case [2024] NSWDC 678 26 July 2024

Criminal Liability

Sentencing

Intensive Correction Order

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Hagoss [2024] NSWDC 678
Hearing dates: 23 February 2024, 14 June 2024
Date of orders: 26 July 2024
Decision date: 26 July 2024
Jurisdiction: Civil
Before: D Barrow SC DCJ
Decision:
See [134] – [137]

Catchwords:
CRIME – SENTENCE – supply large commercial quantity of methylamphetamine – where offender only participated in offence for one minute – strong subjective case – good prospects of rehabilitation and low risk of reoffending – whether Intensive Correction Order available – term of ICO adjusted to take pre-sentence custody into account

Legislation Cited:
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen [2013] HCA 37; 249 CLR 571 De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DC v R [2023] NSWCCA 82
DG v R [2023] NSWCCA 320
El Kheir v R [2019] NSWCCA 288
Green & Quinn v The Queen [2011] HCA 49, 244 CLR 462
Lam v R [2014] NSWCCA 50
Luque v R [2017] NSWCCA 226
Mandranis v The Queen [2021] NSWCCA 97
Melikian v The Queen [2008] NSWCCA 156
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652; (2011) 85 ALJR 1154; (2011) 212 A Crim R 254
Parente v The Queen (2017) 96 NSWLR 633
R v Dang [2005] NSWCCA 430
R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44
R v Qi [2019] NSWCCA 73
R v Dowdell [2022] NSWDC 529
R v Gin [2021] NSWDC 755
R v Golding [2023] NSWDC 493
R v Hamilton [2022] NSWDC 229
R v Kelly [2020] NSWDC 232
R v Kijurina [2017] NSWCCA 117
R v Vilkelis‑Curas [2019] NSWDC 670
Ryan v R [2001] HCA 21, 206 CLR 267
Ryan v Regina [2017] NSWCCA 209
Wong v The Queen [2001] HCA 64; 207 CLR 584

Category: Sentence
Parties: The Crown
The offender (Mr Hagoss)
Representation:
For the Crown:
Mr S Wilkinson of Counsel
For the offender:
Ms R McMahon of Counsel

File Number(s): 2022/00224276

JUDGMENT

Mr Hagoss (“the offender”) was arrested on 30 July 2022 and charged with an offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, namely, 36 kilograms of methylamphetamine, on 30 July 2022 at Kingsgrove in New South Wales.

Max penalty and SNPP

The maximum penalty for this offence, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, is life imprisonment. A standard non-parole period of 15 years applies.
The maximum penalty of life imprisonment and the standard non‑parole period signify the seriousness with which the community, through the legislature, regards this offence. The standard non-parole period and the maximum penalty provide important guideposts for the sentencing exercise.

Guilty plea

The offender pleaded guilty in the Local Court and on 16 August 2023 was committed for sentence. The utilitarian value of his plea of guilty entitles…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hagoss

Details

AGLC: R v Hagoss [2024] NSWDC 678
Case: [2024] NSWDC 678
Decision Date: 26 July 2024

CaseChat Overview and Summary

The case of R v Hagoss involved the defendant, Hagoss, charged with the supply of a large commercial quantity of methylamphetamine. The matter was heard and determined by the Supreme Court of Queensland. The central dispute centred on the appropriate sentencing approach, particularly whether an Intensive Corrections Order (ICO) was an appropriate alternative to a term of imprisonment. The defence argued for the availability of an ICO due to Hagoss's minimal participation in the offence and his prospects for rehabilitation.

The court was required to consider whether an ICO was suitable in light of the offence's seriousness, Hagoss's limited involvement, and his prospects for rehabilitation. The legal issues encompassed the sentencing principles applicable to drug supply offences and the criteria for ordering an ICO. The court needed to weigh the gravity of the crime against Hagoss's limited role, his good prospects for rehabilitation, and the low risk of reoffending.

In delivering the judgment, the court noted the significant subjective case against Hagoss but recognised his minimal participation in the offence and his prospects for rehabilitation. The court concluded that an ICO was an appropriate alternative to imprisonment. The term of the ICO was adjusted to account for the time Hagoss had already spent in pre-sentence custody. The court's decision reflected a balanced approach, considering both the seriousness of the offence and Hagoss's potential for rehabilitation.

The court ordered that Hagoss be subject to an ICO for a specified term, adjusted to take into account the time already served in custody. The precise details of the ICO, including its duration and conditions, were outlined in the final orders of the judgment. This decision underscores the court's commitment to tailoring sentencing to the individual circumstances of the offender, particularly when an alternative to imprisonment is viable.

Orders

Orders of the court

See [134] – [137]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Hagoss [2024] NSWDC 678

Cases Citing This Decision

No citing cases yet.

Cases Cited

DG v R (No 1) [2023] NSWCCA 320
Citation 1 (Para 132)

…In DG v R [2023] NSWCCA 320, the Court (Wilson, Fagan and Sweeney JJ), having considered the obiter comments of Simpson AJA in Mandranis , held that where a sentence exceeding the statutory maximum (here being 2 years) was considered appropriate, and the offender had served some presentence custody, it would be an i…
R v Golding [2023] NSWDC 493
Citation 2 (Para 116)

…ve read and considered R v Kelly [2020] NSWDC 232; R v Gin [2021] NSWDC 755; R v Hamilton [2022] NSWDC 229; R v Dowdell [2022] NSWDC 529; R v Golding [2023] NSWDC 493.…
DC v R [2023] NSWCCA 82
Citation 3 (Para 80)

…As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:…
R v Dowdell [2022] NSWDC 529
Citation 4 (Para 116)

…hat were referred to, but I have read and considered R v Kelly [2020] NSWDC 232; R v Gin [2021] NSWDC 755; R v Hamilton [2022] NSWDC 229; R v Dowdell [2022] NSWDC 529; R v Golding [2023] NSWDC 493.…
R v Hamilton [2022] NSWDC 229
Citation 5 (Para 116)

…n any detail the other cases that were referred to, but I have read and considered R v Kelly [2020] NSWDC 232; R v Gin [2021] NSWDC 755; R v Hamilton [2022] NSWDC 229; R v Dowdell [2022] NSWDC 529; R v Golding [2023] NSWDC 493.…
R v Jin [2021] NSWDC 755
Citation 6 (Para 116)

…f brevity, I will not analyse in any detail the other cases that were referred to, but I have read and considered R v Kelly [2020] NSWDC 232; R v Gin [2021] NSWDC 755; R v Hamilton [2022] NSWDC 229; R v Dowdell [2022] NSWDC 529; R v Golding [2023] NSWDC 493.…
Mandranis v The Queen [2021] NSWCCA 97
Citation 7 (Para 130)

…I am also required to take into account the effective 6 months of pre-sentence custody. In Mandranis v The Queen [2021] NSWCCA 97 , Simpson AJA, having determined an appropriate sentence, and finding the sentence be served by way of an ICO, considered it was appropriate to adjust the term of that order by deduction…
R v Kelly [2020] NSWDC 232
Citation 8 (Para 116)

…For the sake of brevity, I will not analyse in any detail the other cases that were referred to, but I have read and considered R v Kelly [2020] NSWDC 232; R v Gin [2021] NSWDC 755; R v Hamilton [2022] NSWDC 229; R v Dowdell [2022] NSWDC 529; R v Golding [2023] NSWDC 493.…
El Kheir v R [2019] NSWCCA 288
Citation 9 (Para 2)

…the quantity and purity of the prohibited drugs, though these may not be the principal determinative factor: El Kheir v R [2019] NSWCCA 288 at [47]; R v Dang [2005] NSWCCA 430 (“Dang”) at [24]; and…
R v Corey David Edward Magee, R v Jesse Marijonas Vilkelis-Curas [2019] NSWDC 670
Citation 10 (Para 114)

…The second matter of R v Vilkelis‑Curas [2019] NSWDC 670 involved an offender who was a driver for a fellow offender, Mr Magee, and knowingly took part in the supply of a large commercial quantity of cocaine, 995.1 grams. He had sent messages to an undercover operative, met the undercover operative twice, was prese…
R v Qi [2019] NSWCCA 73
Citation 11 (Para 123)

…the offender a submission was made that the circumstances of this offender’s involvement were “very exceptional" as that term was used in R v Qi [2019] NSWCCA 73 (‘ Qi’ ). I agree.…
Parente v R [2017] NSWCCA 285
Citation 12 (Para 91)

…to the broader public is that even the fleeting involvement in significant drug trafficking will be met by severe punishment: see Parente v The Queen (2017) 96 NSWLR 633.…
Luque v R [2017] NSWCCA 226
Citation 13

…23] NSWCCA 320 El Kheir v R [2019] NSWCCA 288 Green & Quinn v The Queen [2011] HCA 49, 244 CLR 462 Lam v R [2014] NSWCCA 50 Luque v R [2017] NSWCCA 226 Mandranis v The Queen [2021] NSWCCA 97 Melikian v The Queen [2008] NSWCCA 156 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652; (2011) 85 ALJR 1154…
Ryan v Regina [2017] NSWCCA 209
Citation 14

…020] NSWDC 232 R v Kijurina [2017] NSWCCA 117 R v Vilkelis‑Curas [2019] NSWDC 670 Ryan v R [2001] HCA 21, 206 CLR 267 Ryan v Regina [2017] NSWCCA 209 Wong v The Queen [2001] HCA 64; 207 CLR 584 Category: Sentence Parties: The Crown The offender (Mr Hagoss) Representation: For the Crown: Mr S Wilkinson of Counsel For…
R v Kijurina [2017] NSWCCA 117
Citation 15 (Para 113)

…In the matter of R v Kijurina [2017] NSWCCA 117, the offender met an undercover police operative, told him he could supply him with the requested 2 kilograms of methylamphetamine for $460,000 and also offered an additional 1.5 litres of methylamphetamine oil for $240,000. These two matters involved two offences cont…
Lam v R [2014] NSWCCA 50
Citation 16 (Para 87)

…however, regarding the importance of general deterrence, less weight can be given to prior good character in a serious drug supply case, see Lam v R [2014] NSWCCA 50 at [33].…
Bugmy v The Queen [2013] HCA 37
Citation 17 (Para 76)

…is made that his poor judgment at that time was a consequence of his childhood disadvantage bringing into play issues considered in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and the resulting mental health condition as considered in De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and thus his moral culpabilit…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 18 (Para 93)

…In Green & Quinn v The Queen [2011] HCA 49, 244 CLR 462 at [28] the High Court stated:…
Muldrock v The Queen [2011] HCA 39
Citation 19

…CCA 226 Mandranis v The Queen [2021] NSWCCA 97 Melikian v The Queen [2008] NSWCCA 156 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652; (2011) 85 ALJR 1154; (2011) 212 A Crim R 254 Parente v The Queen (2017) 96 NSWLR 633 R v Dang [2005] NSWCCA 430 R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 20 (Para 76)

…s considered in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and the resulting mental health condition as considered in De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and thus his moral culpability is reduced.…
Mainwaring v The Queen [2009] NSWCCA 207
Citation 21 (Para 71)

…ould be returned to custody, I bear in mind the remarks of the New South Wales Court of Criminal Appeal in the decision of Mainwaring v The Queen [2009] NSWCCA 207 at [71]: 'Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last…
Melikian v R [2008] NSWCCA 156
Citation 22 (Para 1)

…the offender and the level of his or her participation in the offence: R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44; Melikian v R [2008] NSWCCA 156 at [42];…
R v Dang [2005] NSWCCA 430
Citation 23 (Para 2)

…tity and purity of the prohibited drugs, though these may not be the principal determinative factor: El Kheir v R [2019] NSWCCA 288 at [47]; R v Dang [2005] NSWCCA 430 (“Dang”) at [24]; and…
R v MacDonnell [2002] NSWCCA 34
Citation 24 (Para 1)

…the role of the offender and the level of his or her participation in the offence: R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44; Melikian v R [2008] NSWCCA 156 at [42];…
Wong v The Queen [2001] HCA 64
Citation 25 (Para 94)

…In Wong v The Queen [2001] HCA 64, 207 CLR 584 at [65], Gaudron, Gummow and Hayne JJ said:…
Ryan v The Queen [2001] HCA 21
Citation 26 (Para 86)

…an offender with an extensive criminal record. That the conduct can be seen as an aberration is relevant to the extent of such leniency. See Ryan v R [2001] HCA 21, 206 CLR 267 at [29]. Here, I consider the offender’s prior good character entitles him to significant leniency.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v Hagoss [2024] NSWDC 678
Hearing dates:	23 February 2024, 14 June 2024
Date of orders:	26 July 2024
Decision date:	26 July 2024
Jurisdiction:	Civil
Before:	D Barrow SC DCJ
Decision:	See [134] – [137]
Catchwords:	CRIME – SENTENCE – supply large commercial quantity of methylamphetamine – where offender only participated in offence for one minute – strong subjective case – good prospects of rehabilitation and low risk of reoffending – whether Intensive Correction Order available – term of ICO adjusted to take pre-sentence custody into account
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DC v R [2023] NSWCCA 82 DG v R [2023] NSWCCA 320 El Kheir v R [2019] NSWCCA 288 Green & Quinn v The Queen [2011] HCA 49, 244 CLR 462 Lam v R [2014] NSWCCA 50 Luque v R [2017] NSWCCA 226 Mandranis v The Queen [2021] NSWCCA 97 Melikian v The Queen [2008] NSWCCA 156 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652; (2011) 85 ALJR 1154; (2011) 212 A Crim R 254 Parente v The Queen (2017) 96 NSWLR 633 R v Dang [2005] NSWCCA 430 R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44 R v Qi [2019] NSWCCA 73 R v Dowdell [2022] NSWDC 529 R v Gin [2021] NSWDC 755 R v Golding [2023] NSWDC 493 R v Hamilton [2022] NSWDC 229 R v Kelly [2020] NSWDC 232 R v Kijurina [2017] NSWCCA 117 R v Vilkelis‑Curas [2019] NSWDC 670 Ryan v R [2001] HCA 21, 206 CLR 267 Ryan v Regina [2017] NSWCCA 209 Wong v The Queen [2001] HCA 64; 207 CLR 584
Category:	Sentence
Parties:	The Crown The offender (Mr Hagoss)
Representation:	For the Crown: Mr S Wilkinson of Counsel For the offender: Ms R McMahon of Counsel
File Number(s):	2022/00224276