R v Hannah

[2016] NSWDC 195

District Court

New South Wales

Medium Neutral Citation:	R v Hannah [2016] NSWDC 195
Hearing dates:	13 May 2016
Date of orders:	13 May 2016
Decision date:	13 May 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Taking into account matters on a Form 1, the offender is sentenced to imprisonment consisting of a non-parole period 2 years with a head sentence of 4 years. Matters on s 166 certificate are withdrawn
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Trafficking to a substantial degree- No exceptional circumstances.
Cases Cited:	Jadron v R [2015] NSWCCA 217 R v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	The Crown Michael Brian Hannah
Representation:	Counsel: Mr S Cairns - Offender   Solicitors: Director of Public Prosecutions
File Number(s):	2015/244736

Judgment

1. HIS HONOUR: For many years the Court of Criminal Appeal has stated, and restated, an important principle when drug suppliers are sentenced - those trafficking to a substantial degree must expect to go to gaol full-time, unless there are exceptional circumstances. The offender, Michael Brian Hannah, was trafficking to a substantial degree and there are no exceptional circumstances.

2. I do note that the principle was laid down before the sentencing option of an intensive corrections order was available. In some cases I have had to consider whether the principle should be modified because of that sentencing option, but this is not such a case. The extent of Mr Hannah’s drug supply activities means that there is no alternative to full-time imprisonment.

3. The offender conducted a roof tiling business. He says that after some April storms, when he was very busy, he began to use drugs so that he could work and supplied drugs to his employees so that they would become more reliable. However, his drug supply activities extended well beyond simply supplying a couple of employees.

4. Between 20 July 2015 and 21 August 2015 the offender supplied methylamphetamine on 45 separate occasions. The total weight of those supplies was 15.2 grams with an estimated street value of $7,600. When his home was searched police discovered a further quantity of methylamphetamine, 25.86 grams, which had a street value of $16,000.

5. The offender was a reasonably enthusiastic supplier too. He had a mobile phone which he used exclusively for drug deals. It was subscribed in a false name. He, of course, had a personal mobile phone which was subscribed in his own name. He developed a code to be used, not a particularly clever one, one that was easily seen through, but in order to aid his drug supplying activities he and his customers did use code words. He was found to be in possession of scales and resealable bags.

6. He had a number of customers. When Mr Hannah gave evidence he was much less than frank initially. It was only in cross-examination that the true extent of his drug dealing activities became apparent. On my estimate, he supplied drugs to two employees and something in the order of six friends, at least one of whom then on-supplied to other people, to the offender’s knowledge.

7. I have to be careful not to breach the rule in De Simoni and so, when I ask the Crown how I do that, I was supplied with the decision of Jadron v R [2015] NSWCCA 217. I note that there is only one charge of supply in this matter, to which the offender has pleaded guilty. He did plead guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been.

8. I have spoken about the circumstances in which Mr Hannah began to supply drugs. I do have to say that apart from the matters for which he is to be sentenced today, Mr Hannah has done a lot about which he is entitled to be proud. He has a very good work history; he is a productive person, he is a good family man. Although he used drugs leading up to and at the time of this offence, since his arrest he says he has not used drugs at all. Indeed, were it not for this matter, I could confidently say that Mr Hannah is a man of good character. I make that finding despite Mr Hannah’s difficulty in being frank in the witness box when giving evidence today.

9. Mr Hannah has a criminal history. He was put on two s 9 good behaviour bonds for offences which occurred in the circumstances that Mr Hannah described whilst giving evidence. The presentence report notes that

10. Mr Hannah has responded well with Community Corrections; and took commendable steps to adopt a pro social lifestyle, such that supervision was lifted after 11 months. This reflected his engagement with drug and alcohol services and voluntary involvement in the Rural Fire Service.

11. Thus, Mr Hannah is a person who is able to achieve for himself a great deal of rehabilitation, and, indeed, I am satisfied that he has, once again, rehabilitated himself. He is no longer using drugs and he is back to being a productive worker and the good family man that he was.

12. Of course, there is one qualification to him being a good family man, and that is that a good family man does not commit criminal offences of such seriousness that, when detected, he will go to gaol, which will obviously have an impact on his family. It is one of the terrible things that drugs do that people who use them do not think about the consequences of their actions, do not think about how their actions will affect others whom they love and for whom they should be caring.

13. I note that Mr Hannah also asks that I take into account three matters on a Form 1 when I sentence him. They are an offence of possessing testosterone, possessing cannabis seeds and dealing with property which is suspected to be the proceeds of crime. He had $1,000 on him when he was arrested and about $6,000 discovered in his home. In evidence, Mr Hannah gave evidence which would deny his guilt on the first two matters and deny that the $6,000 in the home was the proceeds of crime, but, despite that, continues to ask me to take those matters into account when I sentence him for the matter on the indictment.

14. I will do that, which means, of course, that I have to ignore the exculpatory evidence that the offender gave. In any case, I fail to see how, when I take into account that Mr Hannah was selling drugs, the fact that he had some of the proceeds of his drug dealing activities in his possession adds anything to his criminality.

15. It was conceded that full-time custody was required because the offender was trafficking to a substantial degree and there were no exceptional circumstances. However, the submission was made that the offender had already spent some 43 days in custody, and the implicit submission was that I could sentence him to imprisonment without requiring him to serve any further time in custody. In my view, that would be inappropriate.

16. There is a substantial need for general deterrence in this case. I have already noted one of the consequences for drug users; drug users become terrible people, they lie and they cheat and they deceive and they forget about others as they go about their daily lives, which, often enough, become exclusively focused on obtaining funds to buy drugs, buying drugs and then using them. It is for that reason that anyone who supplies drugs, as Mr Hannah did, especially someone as enthusiastic as he was, must expect to go to gaol for a substantial period of time. The principles of general deterrence have significant application in this case.

17. I do note that there was a psychiatric report tendered and Mr Hannah has had some challenges over his years, but there was no submission made that there should be any reduction in the need for general deterrence because of the contents of that psychiatric report.

18. I sentence Mr Hannah as follows:

19. A non-parole period of two years, to date from 31 March 2016..I set a head sentence of four years.The non-parole period expires, thus, on 30 March 2018, on which day the offender is eligible to be released to parole.

20. I note that matters on the s 166 certificate are withdrawn, thank you.

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Decision last updated: 01 September 2016