R v Hagen [2014] ACTSC 129

2. It has made the trafficking in illicit drugs a very serious offence. The courts are expected to use the maximum legislated penalty as a guide to determining the seriousness of such offences. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].

3. Anthony John Hagen has pleaded guilty to trafficking in a controlled drug other than cannabis namely methylamphetamine. This is an offence against s 603(7) of the Criminal Code 2002 (ACT) which provides for a maximum penalty of 1,000 penalty units (that is at the time a fine of $110,000), or imprisonment for ten years, or both.

4. In March 2012, police were involved in an investigation in relation to the distribution and trafficking of drugs and, in the course of doing so, obtained warrants authorising the intercept of telephone calls.

5. Between 5 April 2012 and 16 August 2012, police intercepted a number of calls from Mr Hagen to a Mr Trong Ruyen Bui. In these phone calls, arrangements were made for the purchase of drugs.

6. On 26 October 2012, police executed a search warrant on Mr Hagen's home at Griffith. During the search, a black metallic box was located. It contained three clip seal bags each containing a clear crystalline substance which was later analysed and shown to be methylamphetamine. One of the bags contained 15.584 grams of white crystals of which not less than 12.12 grams was pure methylamphetamine.

7. Two sets of digital scales were also seized and methylamphetamine was later detected on both. Police also seized a drug straw which was later examined and analysed to show it contained traces of methylamphetamine. A number of clip seal bags were also seized.

8. In the hallway cupboard a bag containing numerous small clear plastic clip seal bags were seized. These, with the scales, are paraphernalia often associated with drug trafficking.

9. In the main bedroom, a number of clip seal bags were located, a number of which contained a white crystalline substance. They were subject to analysis and the white powder was shown to be methylamphetamine.

10. While Mr Hagen was with police, he received thirty-three new text messages on his mobile telephone from individuals, with some asking for the accused to "come round". An inference of drug trafficking was available from such evidence.

11. Mr Hagen was arrested on that day and remanded in custody.

12. Mr Hagen was granted bail on 8 March 2013 but was again remanded in custody on 20 March 2013. He was granted bail again on 24 March 2013 but remanded in custody on 29 July 2013 and has remained in custody since then. He has been in custody for a total now of four hundred and seventy-eight days. Applying the approach set out in s 63 of the Crimes (Sentencing) Act 2005 (ACT), that would require the sentence to commence on 8 January 2013.

13. A Pre-Sentence Report was prepared for Mr Hagen but it did not contain very much at all about his personal history. He is now aged fifty-five and has a long and extensive criminal history dating back to 1970. Indeed, it is said that over the last twenty-five years he has spent less than four years in the community. On 18 May 2010, I sentenced Mr Hagen for an identical offence as well as two offences of possession of illicit drugs: R v Hagen (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 18 May 2010).

14. In those remarks, I noted that he was born in Launceston, the second of three siblings.

15. His father served in the Royal Australian Air Force and his family moved as his father was posted to various locations in Victoria, New South Wales and the ACT. The family was a close one and Mr Hagen was particularly close to his mother, who separated from his father when he was nineteen years old. His mother died in 2000.

16. It was said that he had little contact with is siblings though he told me that one of them, a brother, died in 2012.

17. His long periods of incarceration were caused not merely because of the commission of and conviction and sentencing for offences but also because of his ongoing non-compliance with community based orders.

18. His criminality appears to relate very largely to the misuse of alcohol and illicit substances and he clearly has a major challenge with addictions. He has, the Pre-Sentence Report recorded, shown an inability to sustain any extended period of abstinence.

19. His record shows ninety-eight convictions. Until 1987, many of them were mid to lower range offences although they did include a number of assaults occasioning actual bodily harm and offences of breaking, entering and stealing or breaking and entering with intent to steal. It appears that he was first sentenced to imprisonment as an adult in 1977 and sentenced to imprisonment, on many occasions fully suspended, thereafter. In 1984, he was convicted of possessing heroin.

20. On 26 March 1987, he was sentenced to fifteen years' imprisonment for the offence of murder. A non-parole period of ten years was set though at the time he was eligible for remissions and accordingly the non-parole period expired on 26 November 1992.

21. He was further imprisoned on 30 January 1992 and, on 13 January 1993, released on parole. His parole was cancelled and he was later further sentenced on 9 September 1994 to a term of four years and six months for conspiracy to possess a traffickable quantity of heroin, the first of such significant heroin dealing offences for which he was dealt with. On 27 October 1999, he was released to parole, but his parole was cancelled on 10 April 2000.

22. On 10 April 2000, he was further sentenced to a term of seven years' imprisonment for armed robbery. He was again released on parole on 19 March 2007, but that parole order was cancelled on 17 February 2009. On 18 May 2010, he was further sentenced to a term of five years and three months for trafficking in methylamphetamine and other associated offences. This was the second of the serious drug offences for which he was dealt with by the courts. On 20 December 2011, he was released on parole, but on 10 September 2013, that parole order was cancelled and he became liable to imprisonment until 20 December 2017, the sentence that he is now serving for which I now need to sentence him.

23. A significant matter is that Mr Hagen has a hepatocellular carcinoma and cirrhosis of the liver as a result of hepatitis and alcoholic aetiologies. This is regarded as a terminal illness which has been managed whilst in custody through the Gastroenterology Unit at The Canberra Hospital. A letter from ACT Health dated 21 January 2014 states that Mr Hagen will need palliative care for his condition within eighteen months. I shall deal with that below.

24. On 26 October 2012, Mr Hagen appeared in the Magistrates Court to answer the current charge and the proceedings were adjourned. He appeared in person.

25. He became represented on 16 November 2012. The proceedings were remanded and, on 30 November 2012, he entered a plea of not guilty. There was difficulty in providing the brief and the prosecution sought an extension of time within which to do so.

26. Finally, on 14 March 2013, he was committed for trial to this Court. A trial date was initially fixed for 1 July 2014 but, on 11 October 2013, that trial date was vacated and the trial was relisted for 21 July 2014.

27. At the callover on 29 November 2013 for the central criminal listing period, the trial date was vacated and the trial was listed to commence on 24 March 2014.

28. On 17 March 2014, Mr Hagen was arraigned and pleaded guilty and the proceedings were listed before me for today for sentence.

29. I have noted above the fact that Mr Hagen has been diagnosed with a terminal illness. This is, really, the most significant of the issues that I have to consider on sentence.

30. I heard evidence from Professor Geoffrey Farrell, Professor of Hepatic Medicine at the Australian National University. He explained that the liver cancer from which Mr Hagen suffers is a complication from cirrhosis of the liver and that it is usually fatal, unless it can be resected if it is small. The cancer in Mr Hagen's liver, however, is multifocal, which is very difficult to treat by physical means.

31. While it responded to initial treatment of chemotherapy, it was temporary and the cancer has recurred. A liver replacement was not an option for reasons Professor Farrell described.

32. Professor Farrell was cautious about a prognosis. He had written that Mr Hagen had at best three or four years' survival after initial diagnosis, which was in February 2013, but that with moderate quality of life, he may have another six to eighteen months. His view was that, in the ordinary course of events, Mr Hagen would have been introduced to the palliative care team now, though the elements of palliative care that are needed to address serious issues of the progress of the illness would not be required yet.

33. While he agreed that Mr Hagen was receiving quality medical care in the Alexander Maconochie Centre, he considered that palliative care and the custodial environment were incompatible.

34. He said that soon Mr Hagen would experience fatigue in a profound physical and mental way. As Mr R Livingston, who appeared for Mr Hagen, pointed out, this would be a significant contraindication for further offending by Mr Hagen.

35. Mr Hagen would, Professor Farrell said, also experience fluid retention and may bleed from his intestines and experience considerable pain. He said the progress of his disabilities was not necessarily linear but would experience a stepped approach, especially with occasions such as infection or encaphalopathy.

36. He also considered that for Mr Hagen to use illicit drugs would be problematic for his illness. In particular, heroin would be dangerous because he may become less tolerant, with the attendant risk of overdose and it would compromise conventional pain relief. The use of amphetamines would not be good for him.

37. Mr Hagen told me in evidence that he wished to be at liberty to spend some of the remaining time of his life with his family before he died. Although he saw one of his daughters and her children who live in Canberra, he saw much less of his other daughter who lives in Queensland and has only seen one of her children. He did not like his grandchildren seeing him in prison. Of course, he is primarily responsible for that.

38. The offence is a serious one. Traffickers contribute to and support the problems that are so well-known in the community. It is quite understandable that the legislatures have set severe maximum penalties for the offences.

39. Mr Hagen has been convicted of the same or similar offences twice before. That is relevant. It is also significant that this offence was committed within twelve months of his release on parole from the earlier sentence I had imposed.

40. I had then considered Mr Hagen's age, hoping, perhaps too optimistically, that he would grow out of his drug lifestyle as many do, and that the commitment he expressed towards his grandchildren would be a real opportunity and motivation for his rehabilitation. In any event, such motivation did not last.

41. I take into account Mr Hagen's plea of guilty. It was not made at an early stage; indeed, it was made only days before the trial but Mr M Thomas, who appeared for the Crown, very properly acknowledged that it had made it possible for the Crown to cancel the witnesses who would otherwise be called and did provide some savings to the administration of justice.

42. The objective seriousness of the offence is high. There was a very large amount of drug paraphernalia found, a reasonably significant amount of drugs and a large number of telephone contacts.

43. I have regard to Mr Hagen's subjective circumstances as I have set them out above. I take them into account. His health is a relevant issue. The New South Wales Court of Criminal Appeal said, in R v Sopher (1993) 70 A Crim R 570 at 573

Health and age are relevant to the length of any sentence but usually of themselves would not lead to a jail sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intensive treatment which cannot be provided in jail. There may be circumstances where to keep a person in jail will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life.

44. While Mr Hagen's health is the major concern, because his illness is terminal, similar issues arise. In R v King [2013] ACTSC 279 at [33]- [35], I said

King CJ said in R v Hunter (1984) 36 SASR 101 at 103, of not dissimilar circumstances as this, that "a sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to [a prisoner]".

In the same case, Jacobs J pointed out (at 106) that it would be "clearly ... inappropriate" to impose a sentence that would be "tantamount to a sentence of life imprisonment".

It is also important to recognise that, while the non-parole period is punitive, parole does not end punishment. As Jacobs J went on to say "[p]arole is often and necessarily subject to stringent conditions, and supervision, with the ever present risk of return to prison if the conditions are breached". Nevertheless, deterrence is relevant, not merely to the fixing of the head sentence, but also to the fixing of the non-parole period: R v Lane (1995) 80 A Crim R 208 at 211-2.

45. Nevertheless, it cannot be the position that it is never the case that an offender will spend the rest of his or her remaining life in custody. See Holyoak v R (1995) 82 A Crim R 502 at 507. It is often relevant, however, that ill health will make imprisonment more arduous as was pointed out by in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 at 552; [54]. As Professor Farrell pointed out, proper palliative care is inconsistent with conditions in a custodial environment such as the Alexander Maconochie Centre.

46. There is always a need to temper justice with mercy and, as Napier CJ said in Webb v O'Sullivan [1952] SASR 65 at 66, there is always a place for mercy in sentencing.

47. It is, however, important to balance that with the need to protect the public from the kind of blight that drug dealing causes to the community.

48. That Mr Hagen, by this recent episode, despite the opportunity I gave to him, has shown disregard for these interests is relevant.

49. It is clear that no other sentence than a sentence of imprisonment is warranted. Neither counsel submitted otherwise. General deterrence and denunciation together with some punishment are important elements in any sentence on this occasion. Specific deterrence may be somewhat lesser a consideration though Mr Thomas said it could not be discounted.

50. Mr Livingston submitted that a short non-parole period would be appropriate. Mr Thomas emphasised the protection of the public. Mr Livingston pointed out that the consequences of his illness meant that the opportunity for and ability of Mr Hagen to carry out further offences is significantly restricted.

51. It seems to me, however, that the Sentence Administration Board has the capacity to monitor Mr Hagen more closely, especially, for example, requiring blood or urine testing on a frequent basis to ensure that he is not drug-taking, thus reducing, perhaps eliminating, the need for trafficking in drugs.

1. I convict you of trafficking in a controlled drug, namely methylamphetamine, on 26 October 2012;

2. I sentence you to five years and nine months' imprisonment to commence on 8 January 2013 to take account of pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to six years and six months' imprisonment.

3. I set a non-parole period commencing on 1 January 2011 and ending on 31 October 2014;

4. I recommend that in any parole granted to you, the Sentence Administration Board require regular and frequent drug testing as well as the usual prohibition from possessing or using illicit drugs.

53. [His Honour then spoke directly to Mr Hagen]

54. Mr Hagen, I do not need to explain that sentence to you. You understand the ropes. In effect, I have given you a non-parole period of another six months. It seems to me that is a period when, although palliative care would be needed at the present time, your ability to go out and get involved with drugs again is going to be much reduced. I do not know whether I was fooled last time by your commitment to see your grandchildren and whether that motivation simply did not last the time. I think this is a different situation and I am prepared to give you the opportunity but it is going to be under close supervision by the Sentencing Administration Board and really it will then be in your hands. I would hope they would give you parole at the earliest time but to supervise you strictly and that, to some extent, you might be able to show to your grandchildren that your life has largely been wasted but there is an opportunity for them to put your life to good use. If that is something you are able to do, then your life has not been wasted at the end of it and you have made some contribution to the community.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Applicant: ACT Director of Public Prosecutions

Solicitor for the Respondent: Craig Lynch & Associates