R v Halteh

[2021] NSWDC 387

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Halteh [2021] NSWDC 387
Hearing dates:	10 August 2021
Decision date:	10 August 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Application to vacate sentence hearing date is refused.
Catchwords:	Adjournment - inadequate or unsatisfactory basis for application - importance of timely disposition of proceedings.
Category:	Procedural rulings
Parties:	Regina (Crown) Anton Halteh (Applicant/offender)
Representation:	Mr Kelly (ODPP Campbelltown) Mr Kondich (Counsel for the applicant/offender)
File Number(s):	2019/00160596; 2019/00326544
Publication restriction:	Nil

1. Presently before the Court is a notice of motion dated 23 July 2021 to adjourn the sentence hearing date of today.

2. The Crown does not oppose the application, but that is not determinative of the application.

3. For the reasons which follow, the application is refused.

4. As long ago as 22 May 2019, Anton Halteh was arrested and subsequently charged with:

1. the ongoing supply of a prohibited drug (heroin) in the period 12 to 21 May 2019;

2. supplying a prohibited drug (heroin) on 22 May 2019; and

3. dealing with the proceeds of crime.

5. The Local Court committed Mr Halteh for trial to this Court on 26 August 2020.

6. Mr Halter was arraigned on indictment …4.2 on 15 October 2020 at which time he entered pleas of not guilty to the three Counts on the indictment and a trial date – with an estimate of 5 to 7 days – was fixed for 19 July 2021.

7. On 20 May 2021, Mr Halteh was re-arraigned on indictment …7.2. He entered a plea of guilty to Count 1 (ongoing supply). No pleas were required for Counts 2 and 3 (respectively, supplying a prohibited drug and dealing with the proceeds of crime) as those matters were incorporated on a Form 1.

8. I pause to observe that the only difference between the three Counts on indictments …4.2 and …7.2 was that the quantity of the drug in Count 1 in the former was 18.85 grams and, in the latter, 16.45 grams.

9. Following that plea (and consequential conviction), this Court on that day:

1. vacated the trial date of 19 July 2021;

2. fixed a sentence hearing date for 10 August 2021 with an estimate of 2 hours;

3. ordered the preparation of a sentence assessment report;

4. directed that any expert’s report to be relied upon by the offender was to be served on the Crown by 30 July 2021; and

5. as bail was not applied for (and in particular s11 bail was not applied for), a remand warrant was issued to produce the offender before this Court (by AVL) on 10 August 2021.

10. On 13 July 2021 at 5:14pm, this Court received an email from the offender’s solicitor:

1. informing the Court (for the first time) that on 23 June 2021 the Supreme Court had granted Mr Halteh s11 bail to attend a residential rehabilitation centre;

2. foreshadowing an application to adjourn the sentence proceedings for 9 months; and

3. asking that that adjournment application be listed for hearing on 15 July 2021.

11. On 14 July 2021, the Court received an email from the Director of Public Prosecutions indicating:

1. the Crown did not oppose an adjournment application being listed for hearing; but

2. the solicitor with conduct of the matter was not available on 15 July 2021 – but rather was available on 16 July 2021 or any day in the week commencing 19 July 2021.

12. On 16 July 2021, orders were made in Chambers, inter alia:

1. directing that any application to adjourn the hearing on 10 August 2021 was to be made by notice of motion with supporting affidavits; and

2. ordering that any such notice of motion be returnable on 22 July 2021.

13. Those orders were sent by the Court’s Registry to the parties at 12:08pm on 16 July 2021.

14. No notice of motion was filed in accordance with the orders and directions made on 16 July 2021.

15. Rather, an email was sent by Mr Halteh’s solicitor to the Court Registry at 3:45pm on 23 July 2021 inter alia, stating:

“…[a]n order was made for filing and service to be made by 19 July 2021.

We apologise for not being able to comply with those orders on time.

The difficulty arose whereby the our office was closed between 19-23 July 2021…”

16. A notice of motion and two affidavits accompanied the email dated 23 July 2021: one affidavit was by the offender’s solicitor; the other by the offender’s father.

17. Orders were subsequently made in Chambers listing the notice of motion for hearing to today, 10 August 2021.

18. The affidavit of the offender’s solicitor annexed, as Annexure A, a copy of the Supreme Court bail application and, as Annexure B, a copy of the notice of results received from the Supreme Court of New South Wales.

19. It is notable that the application for bail did not refer to the facts that:

1. the proceedings had been before the District Court on 20 May 2021;

2. on that occasion, s11 bail had not been requested – nor had such bail subsequently been requested; or

3. the District Court had fixed the matter for a sentence hearing on 10 August 2021 and had made orders for the preparation of a Sentencing Assessment Report and the service of experts' reports.

20. The “outcome details” document signed by the relevant Supreme Court bails Judge, however, contained the following:

“…

The Applicant is to appear at Campbelltown District Court on 10 August 2021 unless expressly excused and on any other dates to which the proceeding may be remanded.

…”

21. Although the orders of the Supreme Court granting bail refer to a listing in this Court on 10 August 2021, there is no indication in any of the material with which the parties have provided this Court that the Supreme Court Judge actually knew that the matter had been before the Court as recently as 28 May 2021; that no s11 bail application was made in this Court at that, or any other, time; or that the matter was fixed for a sentence hearing on 10 August 2021. 

22. In the material placed before the Court in support of the current application, (which also includes the applicant's oral evidence this morning) there is no satisfactory explanation as to why residential rehabilitation had not been arranged for the offender in the two years following arrest; there is no explanation as to why s11 bail was not raised in this Court on 20 May 2021 or at any time thereafter; there is no explanation as to the delay in informing this Court of the Supreme Court order for bail; and there is no satisfactory or acceptable explanation as to why this Court’s direction for a filing of a notice of motion in connection with the vacating of the sentence hearing date was not complied with.

23. Rather, the chronology of events have the hallmarks of an attempt to present the Court with a fait accompli.

24. It is over two years since the offender was arrested. There is a high public interest in the efficient administration of the criminal justice system and the timely disposition of matters within the Court.

25. The parties have been on notice since 26 July 2021 (see Orders in Chambers made that day and sent to the parties) that they should be prepared for the sentence hearing to proceed today, should the adjournment application be unsuccessful. In this regard a Sentencing Assessment Report and an expert's report have been prepared and are available for a hearing today.

26. In these circumstances, the application to vacate today’s hearing date is refused and I shall now proceed to conduct the sentence hearing without further delay.

27. This is not to say, however, that if, during the course of the sentence hearing today, I form my own opinion that the offender ought now to have the opportunity (of continuing) to attend a rehabilitation facility, I would not be prepared to consider any appropriate application at the appropriate time.

**********

Amendments

10 August 2021 - Typographical error paragraph [27]

Decision last updated: 10 August 2021