R v Hogan

[2021] NSWDC 747

District Court

New South Wales

Medium Neutral Citation:

R v Hogan [2021] NSWDC 747

Hearing dates:

26 November 2021; 13 December 2021

Date of orders:

13 December 2021

Decision date:

13 December 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of three years and ten months with a non-parole period of 17 months: at [84].

Catchwords:

SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters— Maximum penalty — Moral culpability — Objective seriousness — Purposes of sentencing — Quasi custody
SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness — Special circumstances

Legislation Cited:

Crimes(SentencingProcedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Kelly v R [2018] NSWCCA 44

R v Burns [2007] NSWCCA 228

R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519

R v Naghdi [2021] NSWDC 635

R v Pham [2015] HCA 39

R v Wran [2016] NSWSC 1015

R v Wu [2021] NSWDC 634

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Danielle Hogan (Offender)

Representation:

Mr D Robinson (Crown Prosecutor)

Ms J Ghabrial (Counsel for the offender)

File Number(s):

2019/351396

Publication restriction:

NON-PUBLICATION ORDERS APPLY
Non-publication orders made pursuant to Court Suppression and Non-Publication Orders Act 2010. Please refer to court file for details

Judgment

1. Danielle Hogan, aged 26, has pleaded guilty to one count of supplying a prohibited drug in excess of the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.

2. The maximum penalty and the standard non-parole period are both important yardsticks in the sentencing process, which much take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The purposes outlined by that provision include ensuring that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for her actions, to denounce her conduct and to recognise the harm done to the victims of the crimes and to the community.

3. The plea of guilty was entered in circumstances justifying a 25% discount on any term of imprisonment.

4. The offender has served 13 days in custody after her arrest on 7 November 2019 and any term of imprisonment will take that period into account.

5. The facts surrounding the offending are for the most part common to those involving a number of other people who have already been sentenced in relation to a drug supply operation.

6. I have previously sentenced the co- offenders as follows:

1. Mohammad Chami to a term of imprisonment of seven years and ten months with a non-parole period of four years and eight months (R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519),

2. Ahmed Halloum to a term of imprisonment of eight years and three months with a non-parole period of five years (R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519);

3. Nouril Hassoun to a term of imprisonment of seven years and six months with a non-parole period of four years and six months (R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519),

4. Isabella Wu to a term of imprisonment of four years with a non-parole period of two years and one month (R v Wu [2021] NSWDC 634),

5. Mandana Naghdi to a term of three years and ten months with a non‑parole period of eighteen months (R v Naghdi [2021] NSWDC 635).

7. In very broad terms, Ms Wu and Ms Naghdi and Ms Hogan are in the same category, namely they were runners for a drug supply syndicate for a period of time in 2019. In short, those higher up in the syndicate including Chami, Halloum and Hassoun were running a drug supply operation throughout Sydney through a call centre. The syndicate supplied around 200 bags of cocaine per week with estimated earnings of $60,000 per week or $3.1 million per year. The runners were paid $20 or $25 per deal bag that they sold.

8. The detailed facts as to the operation of the syndicate have been set out in my earlier sentencing judgments and need not be repeated here.

9. In this case, the particular matters specific to Ms Hogan are that she worked for the group as a runner between 28 August and 23 October 2019. During this period police intercepts of the call centre mobile telephone services and other electronic surveillance revealed that she supplied not less than 588 deal bags of cocaine which at .64 grams per deal quoted to totalled 376 grams of cocaine supplied over approximately 373 deliveries.

10. In comparison, Ms Wu was involved in the sale of 416 bags totalling 256 grams of cocaine and Ms Naghdi in selling 615 bags or a total of 393 grams, both of them being involved in the period between 11 July and 3 November 2019.

11. It is evidence that Ms Hogan's period of involvement was about two months and Ms Wu and Naghdi were involved for almost four months, however the amount of cocaine sold by Ms Naghdi was approximately the same as that sold by Ms Hogan.

12. The offender sent a text message to the call centre mobile service on 23 October 2019. She said, "I’m sorry, but I'm done. I've taken my pay of $450 from yesterday less everything in the safe." She disclosed a password to her telephone. She said, "My partner found out I was doing this and I had a decision to make. Good luck with everything." She immediately and voluntarily terminated her involvement with the group and did not have any further contact with any member of the group. She was, as I have indicated, arrested on 7 November 2019 and declined to participate in an interview.

13. Her criminal record includes only one matter that being drive with a mid‑range PCA in 2017 for which she was fined and disqualified for a period of six months.

14. The subjective case for the offender is set out in great detail over some 340 pages of material and submissions. It might fairly be said that there has been no stone left unturned in the preparation and presentation of the subjective case.

15. There is a sentence assessment report which was prepared after interviews with Ms Hogan, with her parents, with a financial counsellor and after contact with a drug and alcohol intervention program and examination of some objective material.

16. She initially claimed to the author that financial gains earnt as a result of her offending were used towards payment of her debts and put away as savings to start her own business. She was asked to provide verification of debt repayments but she was unable to do so. She was challenged during her interviews with the officer regarding her claimed financial motivation. She admitted the money was instead used for going towards holidays and buying drinks for friends. She described her financial gain as dirty money and she perceived this as disposable income.

17. However, she retracted that statement the next day and said she got the timeline wrong and explained the holiday was taken a year before the offence and the financial gains were used towards payment of her debts. Despite being asked to produce supporting documents as verification for this claim she failed to do so.

18. She said that she was experiencing poor mental health during the time of the offence and began self-medicating with alcohol and Xanax which she said was interfering with her cognitive functioning and her ability to control her impulsive behaviour and decision making skills.

19. She was assessed as being a medium to low risk of reoffending. She had by the time of the preparation of the report engaged in 23 sessions with a financial counsellor to develop budgeting strategies and 13 group sessions with drug and alcohol intervention program. It was clear that she would benefit from continued engagement with a drug intervention program for ongoing treatment for her substance use.

20. The Crown bundle contains the material and my reasons for sentencing the other co-offenders who have so far been dealt with, and it is unnecessary to cover that in any detail.

21. There have been a very significant number of affidavits, statements, medical reports and references filed on behalf of the offender. She also gave evidence and was cross-examined at length on the last occasion, 26 November 2021. The matter was adjourned, part-heard, to today, 13 December 2021. Further submissions have been prepared and some additional evidence has been admitted on behalf of both the Crown and the offender.

22. The offender in her affidavit said she accepts full responsibility for committing the offence. She says it has taken her two full years to reach the point where she could fully understand the impact of her crime and had genuinely apologised for her greed and reckless behaviour.

23. She apologises to the Court, to her family, to the people she has delivered cocaine to and the community who are negatively affected by the effects of the drug trade. She describes what she perceived as a recurring cycle of self‑sabotage in her life that needed to be broken, and acknowledges the difficulty in attempting to explain 15 years of an undiagnosed condition, to a judge who is simply here to serve justice for the offence that she has committed.

24. She acknowledges that she was a pathological liar and that in the past she could take no real accountability for things that she knew would have negative repercussions.

25. She says that the period since her arrest has taught her that nearly everyone experiences financial hardship, poor mental health or loss of identity. She cannot expect people to excuse her behaviour because of her life's problems. She says she has been suffering undiagnosed mental health issues since the age of 12 which began when her father's business was liquidated and the family was forced into bankruptcy.

26. There are aspects of her subjective case which are the subject of a non‑publication order. As such I will significantly truncate my summary of the subjective case in circumstances where parties agree by virtue of the non-publication order it is better to err on the side of caution rather than expose matters in a judgment which will be published. However, the subjective matters and submissions relevant to the matter to which the non-publication orders refer have been taken into account.

27. The offender says that she was in an abusive relationship with her boyfriend who was abusing methylamphetamine. Together they accumulated a lot of debt which was solely in her name, to a total of about $40,000. There was also physical abuse leading to at least two serious assaults.

28. As to her offending behaviour, she says that she was out for drinks with her girlfriend one night. She met a group of guys who seemed genuine and interested in her welfare. Some weeks later one of them asked if she wanted to make some quick money to help her to get back on her feet by dropping off a few bags of cocaine to their friends. They said to her:

"Relax, it's only coke. It's not a hard drug like meth and anyway, the amount you'll be carrying would be considered personal use if ever you were to get pulled over."

29. She said at that point she could not understand how destructive cocaine was, as she had only seen it at social events and it has always been referred to as a party drug. She says that to this day she has never tried it.

30. One of the significant matters put by her counsel was her supposedly false portrayal by the media as a “bikini clad supermodel poster child” or an Eastern Suburbs party girl. She says she was not partying all the time. She was instead required to sit in the car most nights of the week for 12 to 14 hours at a time.

31. She says after completing several deliveries for the syndicate she was quick to realise they had completely downplayed their operation and it was much larger than just a circle of friends. When she began asking questions, they ignored her concerns and threatened her. Even driving to her parent's house making veiled threats towards them.

32. She said in her affidavit that things began to turn sour when co-offenders began stating that my bags of cocaine and cash had been disappearing and suggested that she was stealing from them. Being able to give them no explanation, as this was completely untrue they said she owed them a large debt and they would only pay her minimal amounts such as $400/week and take the rest to slowly pay back her alleged debt.

33. The difficulty with that proposition is, as the Crown pointed out to her in cross‑examination, that there is nothing in the contemporaneous messages which are remotely supportive of the proposition. She says that the text which she sent in October came at the suggestion of a friend who said the best way to safely exit the situation would be to tell them that you now had a boyfriend who has become aware of the operation and they were at risk of being exposed if she did not quit.

34. She said leaving the syndicate was the commencement to her road of redemption. She was accepted into a college to study applied psychology.

35. Her arrest was the subject of significant media coverage, and her family were inundated with calls, emails and messages of shock and concern from friends and family all around the globe.

36. She said that being publicly made the pin-up girl for a dial a dealer syndicate has led to punishment whilst she was in Silverwater maximum security prison. Due to being plastered all over the newspaper inmates believed that she was a wealthy Eastern Suburbs cocaine queen, and they constantly harassed her believing she had access to large amounts of money or drugs.

37. She said that on her release to bail in order to seek mental health treatment, the media constantly harassed her and she was constantly recognized. She said that attempts to return to work have been unsuccessful due to potential employers searching her name, or customers at work recognizing her name.

38. She started a small business during the COVID pandemic and has worked as a traffic controller.

39. She has been to a number of classes at Odyssey House, as I have indicated.

40. Again, I will pass over further details of the subjective case in light of the non‑publication order.

41. She is currently heavily medicated and although she has spoken in great length about the conditions in her past life and the negative issues that are inflicted on her she does not blame anyone and accepts responsibility for her decisions.

42. The medical material tendered in her case is consistent with her assertions as to certain traumatic events and diagnoses.

43. She, of course, has the wholehearted support of her parents. Her mother and father have provided unchallenged affidavits.

44. Her father describes her compliance with strict nightly curfew conditions which were the subject of media interest. As a result of which the family were forced to move away from the North Shore to a more remote suburb.

45. He acknowledges, as does her counsel, that the offender will be sentenced to a term of custody.

46. He is extremely worried as to the effects of the COVID pandemic impacting upon visits and involving quarantine and lockups from time to time and lack of access to programs while in custody.

47. Her mother describes the night before her 24th birthday when she told her parents about what she had been doing. This was about a week before she was arrested. Those who have spoken and supported her universally assert that she will not reoffend.

48. I accept that the consequences of her offending have been brought home to her well and truly and will ensure that she remains a law-abiding citizen. I find her prospects of rehabilitation are favourable, particularly if subject to treatment and counselling and supervision both in and out of custody.

49. I will not recount the history that is set out in the report of the forensic psychiatrist, Dr Stephen Allnutt. I note his diagnosis of depression, anxiety and post-traumatic stress. I take account of his opinion that her judgment would have been impaired and had some contribution to the commission of the offending in the light of her subjective background.

50. Her flatmate at the time of the offending, Ms Lane says that in the two months that Danielle worked for the syndicate she watched this vivacious and strong-willed girl completely diminish in a matter of the first days of her involvement. She was coming home daily expressing her instant regret for the decision she had taken on and was constantly trying to plan ways that she could safely remove herself from the syndicate.

51. Her current employer in the traffic management field describes her as punctual, well‑organised and well‑regarded by clients and fellow team members. She shows great maturity and aptitude.

52. There are two very lengthy affidavits provided by the solicitor for the offender which set out in very significant detail the examples of media articles which have been the subject of lengthy submissions by Ms Ghabrial. I take account of the extensive written submissions.

53. As the Crown points out, when assessing the objective seriousness of the offending, one must have regard to the commercial quantity threshold for cocaine, being 250 grams, and the quantity supplied here being 376 grams. She worked as a runner or courier for a syndicate that supplied a total of 1.224 kilograms of cocaine over a period of five months. Although, as I have clearly acknowledged, her involvement was over the period of about two months in which she supplied 588 individual bags of cocaine during that period to hundreds of customers.

54. The principles established by the cases as to sentencing for drug supply offences establish that the mere quantity of the drugs involved is not the sole or even the principal determinant of the sentence, and the role of the offender is more important, as is the level of her participation in the offence.

55. Trafficking drugs requires middlemen and couriers as well as those higher up in the organisation, but the Court should realistically identify the role of the offender within the organisation, and here, as is clear, she worked as a runner or courier.

56. I accept the Crown submission that the offending falls towards the mid-range of objective seriousness. The Crown does not identify any aggravating factors and acknowledges as mitigating factors the absence of any significant record and the plea of guilty.

57. The Crown of course points to the need for general and specific deterrence to have a role in the sentence to be imposed given the need for the protection of the community from this type of operation.

58. The Crown referred to a range of 196 cases set out in the statistics which, as the Court said in R v Pham [2015] HCA 39, provide some yardstick or check against a proposed sentence.

59. The Crown's submission is, that parity principles, require that an entirely similar sentence to that imposed on Naghdi should be imposed upon Ms Hogan. That submission is put on the basis that the role of the offender was not significantly different to that of Wu and Naghdi given that evidence as to those two was that they frequently cleaned the Croydon Park premises and purchased items such as rubber gloves and garbage bags.

60. I will probably not be able to do justice to the 67 pages of written submissions prepared by Ms Ghabrial in the course of these sentencing remarks. They have covered in great detail the criminology both pre and post‑arrest, the evidence as to her bail conditions, the relevance of the onerous conditions in custody at present due to the COVID‑19 pandemic.

61. As the courts have dealt with these matters on a daily basis for the last year and a half, the Court is well familiar with evidence as the onerous restrictions and the more difficult conditions in custody than previously. The more difficult conditions are a result of health precautions taken as a result of the COVID pandemic. They are of course taken into account in setting the sentence, as they were in the case of Wu and Naghdi.

29. I take account of the principles summarised by McClellan CJ in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].

30. I accept that there was some material contribution of her mental illness to her offending as a result of her subjective background to which I have referred. Further I accept that her moral culpability is reduced to some extent because of the active symptoms of longstanding untreated mental conditions and the other factors set out in the evidence to which it is unnecessary to refer.

31. I note what Harrison J said in R v Burns [2007] NSWCCA 228 at [29],

… First, there is a public policy to be served in providing encouragement to offenders such as the respondent to cease their criminal activities. Secondly, specific deterrence is a matter to be given little or no weight. Thirdly, it provides strong evidence of remorse, contrition and rehabilitation. Finally, in some cases (although not the present case) it may support the proposition that the offence was committed as a result of need rather than greed.

65. I take account of her relative youth namely that she was 23 of age at the time of the offending.

66. I take account of what was said by Harrison J in R v Wran [2016] NSWSC 1015 from para [72]–[79] where his Honour said that the publicity in that case had made the offender a potential target in a dangerous environment and the publication of certain media articles had warranted the imposition of a sentence that takes account of the offender's continuing exposure to the risk of custodial retribution, the unavoidable specter of enduring damage to her reputation and an incomplete recovery from her ongoing mental health and drug related problems.

67. Ms Ghabrial submits that I should accept the evidence of the offender on the balance of probabilities as to the assertions that she owed a debt to the syndicate. I cannot accept that as I previously indicated. There were no contemporaneous messages consistent with such a proposition and indeed there were messages indicating that the offender was keen to do more work and was encouraging the syndicate to employ a friend of hers who also wanted to become involved in the operation.

68. Having previously asserted that she would not expose any of her friends to the kingpins of the syndicate, she agreed on 2 October that she had attempted to get her girlfriend a job with the very syndicate she was said to be fearful of. She sent a message saying, "Do you guys need anyone for weekends? My girlfriend has been begging I ask you. She's happy to use her car also."

69. While it was submitted on the behalf of the offender that there was no evidence that she had any appreciation of the size of the operation and how many others were employed as runners by the group, she did say she was aware that other runners were working at the same time that she was, and on occasions, she was aware that two other runners were working at the same time.

70. In any event the more significant factor, as I have already indicated, is an assessment of her role as a courier or runner in the syndicate and not her knowledge or appreciation of the size of the operation and the number of other runners.

71. Ms Ghabrial also helpfully attaches a range of statistics which are taken into account in the way I have indicated.

72. I do not accept that any of the conditions of her liberty on bail amount to quasi-custody in the way that that has been referred to in the cases. She was released on bail on 19 November 2019 subject to curfew between 10pm and 6am, not to be absent from her residence unless in the company of her mother and father She was able to move outside the house between 6am and 10pm. Her curfew was deleted for Friday and Saturday nights in December 2020 to allow her to work at a bar in Windsor. A further application to vary bail was made by her to allow her to work as a traffic controller. That application was not opposed by the Crown.

73. As Garling J said in Kelly v R [2018] NSWCCA 44, conditions such as this do not amount as quasi‑custody for the purpose of being considered sufficient for backdating the commencement of a sentence date.

74. Ms Ghabrial acknowledges the co‑offender Ms Naghdi had a much more onerous condition, akin to home detention, before her sentence.

75. There is a great deal of material in relation to the asserted delay and the effects of delay in finalising this matter. In the absence of any specific evidence it is not appropriate for me to make any finding one way or the other as to the reason why this has taken almost two years to come to sentence.

76. I accept that the brief was a very lengthy one involving many thousands of text messages and clearly the path to an agreed set of facts has involved a significant amount of work by the lawyers for both the Crown and for the offender. The period of some two years has also enabled the offender to have the benefit of counselling and drug rehabilitation courses and to demonstrate her attempts at rehabilitation.

77. In the initial written submissions Ms Ghabrial set out a very helpful and comprehensive table illustrating the similarities and differences between Ms Hogan and Ms Wu and Ms Naghdi for the purpose of submitting that there should be a sentence imposed which is significantly more lenient than that imposed on Naghdi and even more significantly lenient than that imposed on Wu, given that it is asserted that the role of Ms Hogan was significant less, the objective seriousness and her moral culpability were less serious and its objective case including her rehabilitation to date and the profoundly adverse media campaign she has been subjected to is more powerful than the others.

78. However, as I have indicated in very broad terms, the number of deal bags and the total quantity of cocaine supplied by Ms Hogan and Naghdi were relevantly similar and Ms Wu was somewhat less.

79. I acknowledge that they both continued their criminal involvement up until the time of their arrest and they do not have the benefit of the voluntary of cessation of criminal activity as does Ms Hogan. Ms Wu had a significant criminal record having already been sentenced to term of imprisonment to be served by way of an ICO for drug supply.

80. Ms Naghdi had no relevant record. She did have an extremely traumatic background growing up in Iran. She had a childhood filled with trauma from her father's violence towards herself and her mother. They fled Iran by boat when she was seven and was taken to Woomera Detention Centre on arrival in Australia, where her trauma intensified. She witnessed unimaginable horrors around her every day. She saw people sew their own mouths shut as a form of protest and people throwing themselves onto barb wire fences. She was diagnosed with post‑traumatic stress disorder and felt suicidal from age 13.

81. Ms Ghabrial prudently did not submit that Naghdi's subjective case was any less compelling.

82. I accept that the full range of subjective considerations can attract a finding of special circumstances., and here, the circumstances which would justify a significant variation in the statutory ratio are set out in great detail in Ms Ghabrial's submissions; namely the rehabilitation that she has demonstrated to date, the need for continuing rehabilitation, the fact that it is her first time in custody and the fact that there has been significant adverse and on occasions inaccurate media attention since her arrest.

83. In short, I accept the Crown's submissions that her involvement is in broad terms similar to that of Ms Naghdi. I accept as a result of the matters to which I have referred there is a basis for a slightly reduced non-parole period to that imposed on Ms Naghdi.

84. The orders that I will make are:

1. The offender is convicted of the offence.

2. Taking into account a 25% discount for the plea of guilty, I impose a sentence of imprisonment of three years and ten months commencing 30 November 2021

3. I impose a non‑parole period of 17 months expiring 29 April 2023.

4. I find special circumstances.

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Decision last updated: 08 March 2022