R v Halteh

[2022] NSWDC 164

District Court

New South Wales

Medium Neutral Citation:	R v Halteh [2022] NSWDC 164
Hearing dates:	06 April 2022
Decision date:	20 May 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 6 years with a non parole period of 3 years.
Catchwords:	Supplying a prohibited drug on an ongoing basis – possessing a firearm whilst subject to a Firearms Prohibition Order – possessing ammunition whilst subject to a Firearms Prohibition Order – dealing with the proceeds of crime
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s.25A(1), Firearms Act 1996 (NSW), ss 7(1), 74(1) and 74(3); Crimes Act NSW (1900), s.193C (2)
Category:	Sentence
Parties:	Regina (Crown) Anton Halteh (Offender)
Representation:	Mr Kelly (Solicitor for ODPP Campbelltown) Mr Kondich (Counsel for the offender)
File Number(s):	2019/326544; 2019/160596; 2021/4616
Publication restriction:	Nil

Judgment

1. Anton Halteh, you appear for sentence today in relation to the following five principal offences.

2. First, supplying a prohibited drug (heroin) on an ongoing basis (H321566194/1 – “the first principal offence”). This involves a contravention of s25A(1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is imprisonment for 20 years. There is no standard non-parole period. In connection with this principal offence, you have asked the Court to take into account two matters on the first Form 1, which I have certified: supplying a prohibited drug (H70991813/1); and dealing with the proceeds of crime (H70991813/3).

3. Secondly, possessing an unauthorised pistol (H78068762/9 – “the second principal offence”). This involves a contravention of s7(1) of the Firearms Act. The maximum penalty for that offence is imprisonment for 14 years. There is a standard non-parole period of 4 years imprisonment. In connection with this principal offence, you have asked the Court to take into account one matter on the second Form 1, which I have certified: possessing ammunition without holding a licence / permit / or authority (H78068762/10).

4. Thirdly, possessing a firearm whilst subject to a Firearms Prohibition Order (H78068762/11 – “the third principal offence”). This involves a contravention of s74(1) of the Firearms Act. The maximum penalty for that offence is imprisonment for 14 years. There is no standard non-parole period.

5. Fourthly, possessing ammunition whilst subject to a Firearms Prohibition Order (H78068762/12 – “the fourth principal offence”). This involves a contravention of s74(3) of the Firearms Act. The maximum penalty for that offence is imprisonment for 5 years. There is no standard non-parole period.

6. Fifthly, dealing with the proceeds of crime (H78068762/13 – “the fifth principal offence”). This involves a contravention of s193C(2) of the Crimes Act. The maximum penalty for this offence is imprisonment for 3 years. There is no standard non-parole period. In connection with this principal offence, you have asked the Court to take into account two matters on the third Form 1, which I have certified: possessing a prohibited drug (H78068762/1); and, as the owner or occupier of premises, knowingly allowing those premises to be used as drug premises (H78068762/2).

7. The facts surrounding the five principal offences, and the various matters on the three Forms 1, are contained in a document entitled “Combined Statement of Agreed Facts” and can be summarised as follows.

8. In May 2019, the police commenced an investigation into your drug supply activities. Amongst other things, they searched stored communications held by three carriers of your mobile phone service. Those stored communications included text messages concerning the supply, by you, of heroin in the period 11 to 22 May 2019. In that period, you, on 54 separate occasions, supplied a total of 16.45 grams of heroin for which you received $7,670.00. The purity of those drugs is not revealed.

9. It is these facts which constitute the first principal offence.

10. On 22 May 2019, you were at a police station and, amongst other things, you were then served with a firearms prohibition order.

11. As well as being served with that order, the police searched your motor vehicle (which was at that police station) and your residential premises. In that vehicle and those premises, the police found a total of 10.66 grams of heroin; and $955.00 (these are the facts for respectively the first and second matters on the first Form 1).

12. Following the discovery of those items, you were arrested.

13. As at January 2021, your parents owned and lived in residential premises in Cecil Hills. Your sister also lived in those premises – as did you and your then partner.

14. On 6 January 2021, the police conducted a search of those premises in connection with the firearms prohibition order which had been served on you on 22 May 2019.

15. During that search, the police found certain items in the garage which led them to obtain a crime scene warrant, after which those premises were subsequently further searched.

16. In that search on that day, the police found the following (other) items in the garage – a place which you told police you smoked heroin in:

• numerous elastic bands;

• multiple electronic scales with white powder residue;

• bag of powder labelled “MSM powder”;

• numerous clear resealable bags;

• electronic calculator;

• scissors, plastic gloves, plastic straws, spoon and lighters; and

• multiple tick sheets containing weights and numbers.
   

17. It is these facts which constitute the second matter on the third Form 1.

18. In the bedroom which you occupied with your partner in the premises, the police found 8.56 grams of Alprazolam.

19. It is this fact which constitutes the first matter on the third Form 1.

20. The police then left the premises. However, they returned later that day and conducted a further search.

21. In that further search, the police found, hidden in a bird aviary, a .22 Long Rifle calibre Phoenix AMRS model self-loading pistol, which was in working order.

22. It is this fact which constitutes the second and third principal offences.

23. With that pistol was found $18,000.00 – a further $16,545.00 was found in the garage.

24. It is those facts which constitutes the fifth principal offence (the total of the cash being $34,545.00).

25. The pistol to which I have referred was loaded – its magazine contained 9 rounds of .22 calibre ammunition. Near the pistol was a box which contained 81 rounds of .22 Long Rifle calibre cartridges.

26. It is these facts which constitute both the fourth principal offence and the matter on the second Form 1.

27. You were then again arrested.

28. I am satisfied beyond reasonable doubt that by having regard to the second matter on the 1^st Form 1 and the fifth principal offence that you were dealing in drugs for both your personal use (to which I shall return) and for profit.

29. It is necessary for the Court to make findings of the objective seriousness of the five principal offences for offences of their kind.

30. The first principal offence is below the mid-range and towards, but not at, the bottom of the range. The first of the matters on the 1^st Form 1 will result in a meaningful increase in the sentence for the principal offence; the second matter will result in only a very slight increase.

31. The second principal offence is a mid-range offence. By having regard to the commonality of facts between the fourth principal offence and the matter on the second Form 1, that latter consideration will not result in an increase in the sentence for the second principal offence.

32. The third principal offence is a mid-range offence (but in the aggregate sentence which will be ultimately imposed, it will be treated as totally concurrent with sequence 9).

33. The fourth principal offence is just below the mid-range.

34. Finally, the fifth principal offence is approximately equidistant between the middle and the bottom of the range. The matters on the 3^rd Form 1 will not result in a meaningful increase in the sentence for this offence.

35. The first principal offence is additionally aggravated because you were on bail at the time you committed that offence.

36. The remaining four principal offences were additionally aggravated because you were on both bail and on a community corrections order.

37. The use of the word “additionally” is to indicate that that consideration was not taken into account in assessing the objective seriousness of any of the principal offences.

38. In relation to each principal offence, the s5 threshold has been crossed – that is, no sentence other than a term of full-time imprisonment is appropriate.

39. As I have already indicated, I intend to ultimately impose an aggregate sentence. In due course, I shall state the indicative sentences underpinning that ultimate aggregate sentence. However, it is appropriate to note at this point that, because of the timing of the relevant pleas, there will be a 10 per cent discount in relation to the indicative sentence for the first principal offence, and a discount of 25 per cent in relation to the indicative sentences for the other principal offences.

40. Your further subjective circumstances were advanced through: two sentencing assessment reports; two reports by a psychologist; and your own oral evidence on 6 April 2022.

41. I pause to observe that the transcript of the proceedings on 6 April 2022 contains numerous errors which have not been corrected. By way of example only: “no” in front of “difficulty” and “have” in front of “prepared” in T1:34 have been omitted; “any” in front of “case” should be “every” in T2:29; and “Specially” should be “Specifically” in T:7.

42. Two preliminary matters of concern arise from the two sentencing assessment reports.

43. You were interviewed on two separate occasions – separated by many months – by two different Community Corrections officers. You told each of those officers that, in effect, you had possession of the heroin because you and some friends had “pooled” your resources to purchase the heroin for each other’s own use. When you gave that information to those officers, you knew that it would be placed before the Court for sentencing purposes. In your evidence in chief on 6 April 2022, however, you admitted that what you had told those officers, in that respect at least, was not true. When you were first asked why you had done that, you were unable to provide any explanation. Later in your evidence (after a short adjournment), you said that you had lied in that respect because you were scared because you were in serious trouble and because you had never been charged with “charges like this before”. But you had previously been charged with serious firearms offences.

44. In these circumstances, I have some difficulty in accepting (and do not accept on the balance of probabilities) your explanation as to why you lied to those two Community Corrections officers.

45. The second matter of concern arises from the second sentencing assessment report and your explanation as to how you came to be in possession of the unauthorised firearm and the ammunition. You told the author of that report that, in effect, you were minding those items for a friend who had been arrested. This explanation was not included in the agreed facts. By reference to that fact, and the untruthful explanations as to how you came to be in possession of the heroin, I am not persuaded, on the balance of probabilities, that that explanation was correct. And, in any event, the “explanation” is hardly exculpatory. If true, it meant that you were prepared to hide a weapon for a person who was serving a term of imprisonment – and, inferentially, prepared to return it to that person once his term of imprisonment was completed. However, I am not prepared to further speculate about why it was that you had possession of that firearm or that ammunition.

46. I shall now set out the balance of your subjective circumstances.

47. At the time you committed the first principal offence, you were 30 years old. At the time you committed the other principal offences you were 32 years old.

48. Your parents are of Jordanian heritage.

49. You and your three siblings were born in Australia.

50. You were raised in a loving and supportive family. Neither of your parents, nor any of your siblings, have had any trouble with the police. They are all upright and respectable members of our community.

51. In your developmental years, you suffered from oppositional defiant disorder: you were often in trouble in both primary and secondary school for fighting and not listening in class.

52. You left school at the end of Year 10, the last term of which was home schooled.

53. After you left school, you held jobs as an apprentice mechanic, a mechanic, and a subcontract truck driver.

54. But your work history was interrupted and finally ended by your long-term issues concerning illicit drugs.

55. You started using cannabis when you were 15; at 21 you commenced using heroin; and, not long after that, you commenced using ice. These last two drugs took over your life.

56. You have made numerous attempts to address your problems with illicit drugs – you were even granted s11 bail in the course of these proceedings to attend residential rehabilitation – but unfortunately all of those efforts have been unsuccessful.

57. It has taken this current period of incarceration to bring about some meaningful, if confronting, abstinence from illicit drugs. I noted during the sentencing hearing that you now appear to be a fit and healthy young man.

58. You now have real and meaningful insight into the causes of your offending. You have expressed genuine remorse (in this regard, I have not overlooked my earlier expressed concerns about the reliability of some important aspects of your evidence). You have meaningful job skills. You have the continuing love and support of your family – including an offer of employment upon your release.

59. You have a not insignificant criminal history which disentitles you to the leniency which, in appropriate circumstances, can be extended to a first offender.

60. On balance, I regard your prospects for rehabilitation as guarded. They would be enhanced by a longer period on parole.

61. In your case, both general and specific deterrence are fully engaged.

62. I earlier indicated that I would be imposing an aggregate sentence.

63. It is necessary for me to state the indicative sentences underpinning that aggregate sentence – and in respect of which totality has been taken into account.

64. In relation to the first principal offence, except for your plea of guilty, the indicative sentence would have been imprisonment for 3 years; after the discount of 10 per cent, the indicative sentence is imprisonment for 2 years 8 months.

65. In relation to the second principal offence, except for your plea of guilty, the indicative sentence would have been imprisonment for 6 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 4 years 6 months and the indicative non-parole period is 2 years 3 months.

66. In relation to the third principal offence, except for your plea of guilty, the indicative sentence would have been imprisonment for 6 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 4 years 6 months.

67. In relation to the fourth principal offence, except for your plea of guilty, the indicative sentence would have been imprisonment for 2 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 1 year 6 months.

68. In relation to the fifth principal offence, except for your plea of guilty, the indicative sentence would have been imprisonment for 1 year 6 months; after the discount of 25 per cent, the indicative sentence is imprisonment for 1 year 1 month.

69. In the result, Mr Halteh, for the five principal offences, and taking into account the matters on the Forms 1 in the manner I have indicated, you are sentenced to an aggregate term of imprisonment of 6 years.

70. I make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence. I make that finding: first, because this is your first time in custody; secondly, because your prospects of rehabilitation would be enhanced by a longer period on parole; and thirdly, because of the harshness of the terms of your imprisonment to date because of the COVID-19 pandemic.

71. The question of the appropriate start date is not an easy one (see “Time in Custody above matters” in Ex A(2)). The Crown has submitted that the start date should be 18 May 2021; your counsel made no submissions on this question. Accordingly, the start date will be that submitted by the Crown. I decline (because of a lack of relevant evidence) to make a finding that your period in residential rehabilitation whilst on s.11 bail constitutes quasi-custody.

72. I fix a non-parole period of 3 years to date from 18 May 2021 and which will expire on 17 May 2024.

73. I fix a balance a balance of 3 years to date from 18 May 2024 and which will expire on 17 May 2027.

74. I make the confiscation orders at tabs 15 and 16 of Exhibit A (2).

Decision last updated: 24 May 2022