plaintiff. Haidar was convicted and sentenced to three years’ imprisonment, comprising a non-parole period of one year and nine months (stated in the formal sentencing remarks to commence on 20 February 2020...
Key principles
The sentence was determined by weighing the seriousness of repeated, low-level heroin supplies against the offender's reduced moral culpability, which the judge linked to...
The judge treated the offender as a principal in a trafficking network, but at its lowest level, and considered the small quantities supplied and the purpose of defraying his own...
A guilty-plea reduction of 25 per cent was applied to a stated theoretical head sentence of four years, producing a three-year head sentence (Consideration [8]).
Special circumstances justified a non-parole period of one year and nine months, shorter than the ordinary statutory relationship with the three-year head sentence, to allow time...
Issues before the court
How should the seriousness of the ongoing heroin-supply offence be assessed?
What significance should be given to the offender's mental illness, addiction and disadvantage?
Plain English Summary
The court sentenced Haidar for a series of small heroin sales made largely to support his own heroin use. It considered his role low-level, but still treated the conduct as drug trafficking. His severe, longstanding mental illness and addiction reduced his moral culpability, while his criminal history, relapses and uncertain housing made rehabilitation prospects guarded. The judge imposed three years' imprisonment, with a non-parole period of one year and nine months, to leave time for community supervision and treatment. The written reasons give inconsistent commencement dates for the sentence.
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Deep Dive
2,376 words · generated 28/09/2026
What happened
In R v Haidar [2020] NSWDC 916, Neilson DCJ sentenced Ali Haidar after he pleaded guilty to an ongoing heroin-supply offence. The charge covered supply, for financial or material reward, on three or more separate occasions during a period of 30 consecutive days, between 22 January and 25 February 2020 at Kingsgrove. The court recorded that the offence was contrary to s 25A(1) of the , carried a maximum penalty of 20 years’ imprisonment and/or a $385,000 fine, and had no standard non-parole period (Judgment [1]).
What weight should be given to rehabilitation prospects and future supervision?
What sentence and non-parole period were appropriate, including whether special circumstances existed?
Cited legislation
No linked legislation citations have been extracted yet.
Drug (Misuse and Trafficking) Act 1985
The sentencing facts described multiple transactions revealed by lawfully intercepted telephone calls. The supplies included sales to known people and other customers, with the offender discussing prices, quantities, debts and collection. The judge assessed him as a principal in a trafficking network, but at its lowest level. The quantities were small, and the judge considered the sales were mainly intended to reduce the cost of Haidar’s own heroin habit (Consideration [2]). That did not make the conduct non-trafficking: the judgment expressly characterised it as drug trafficking.
Two other matters were taken into account on a Form 1. One concerned the supply of 0.25 grams of heroin for $100 on 31 December 2019. The other concerned possession of 12.57 grams of cannabis found on a coffee table in the granny flat where Haidar lived (Judgment [2]; Arrest [3]). The judge also recounted the events of 25 February 2020, when police stopped a vehicle in which Haidar was a passenger. After obtaining 2.04 grams of heroin, he passed it to a passenger, who concealed it in her clothing before police searched the occupants (Arrest [1]–[2]).
The court devoted substantial attention to Haidar’s background. It recorded childhood physical abuse, running away from home at about age 12, periods living on the streets or with friends, disrupted schooling, and a history of unstable employment. It also considered his long history of mental illness and substance use. The psychologist’s assessment and hospital records described auditory hallucinations from childhood, hospital admissions and diagnoses including schizo-affective disorder. The judge accepted the psychologist’s diagnosis of schizo-affective disorder of the bipolar type and severe opioid use disorder (Mental illness [1]–[3]).
The judge imposed a total sentence of three years’ imprisonment, with a non-parole period of one year and nine months and a further one-year-and-three-month balance. The judge found special circumstances and took both Form 1 matters into account (Consideration [8]–[10]). The reasons contain a date inconsistency: one paragraph says the sentence would commence when Haidar was taken into custody on 25 February 2020, but the formal sentencing remarks state that the non-parole period commenced on 20 February 2020. The judgment separately states that the non-parole period expired on 24 November 2021 and the balance expired on 24 February 2023 (Consideration [10]).
Why the court decided this way
The judge described the task as involving a “grave tension” between protecting the community and recognising that much of Haidar’s criminal history arose from mental illness, childhood disadvantage and inconsistent medical care (Consideration [1]). This framed the sentencing decision: the personal history was relevant, but the court also had to address repeated drug offending and the risk of further crime.
On seriousness, the judge did not treat the small quantities or the offender’s personal addiction as removing the offending from the category of trafficking. Instead, those factors informed the relative seriousness of the conduct. The judgment describes Haidar as a low-level principal who supplied drugs to people who wanted them and were known to him. The judge found that he bought larger quantities and sold smaller quantities to reduce the cost of his own habit, with the possibility of some additional income beyond his disability support pension (Consideration [2]). The judge considered the amounts supplied were not of a kind approaching the statutory maximum.
The judge connected the supply activity to Haidar’s history of addiction and mental illness. Heroin use was described as connected to managing severe back pain, and the judge noted that, when Haidar used heroin, the auditory hallucinations troubling him stopped. The judge also reasoned that Haidar’s drug use began at a very young age, when he could hardly have understood the longer-term effects. These circumstances reduced his moral culpability, in the judge’s assessment (Consideration [3]). This was a sentencing assessment based on the material before the court, not a general finding that addiction or mental illness removes responsibility for drug supply.
Rehabilitation prospects were guarded. The sentencing assessment report and expert material identified substantial needs and risk: prior relapses, previous unsatisfactory engagement with Community Corrections, and a medium-to-high or high risk of reoffending (Consideration [4], [7]). Accommodation was a particular difficulty. Haidar’s parents were not willing to have him return to the granny flat, and he had suggested couch-surfing with friends whom he acknowledged engaged in antisocial behaviour. The court also considered the possibility of accommodation through the NDIS or the ERS, which the judgment said could provide accommodation in Bankstown, Fairfield or Liverpool (Consideration [6]).
Despite those risks, the judge considered that a new accommodation arrangement, distance from antisocial peer groups, renewed family relationships and treatment might improve engagement with supervision. The proposed supervision included regular contact with Community Corrections, home visits, drug testing, an EQUIPS Foundation program and other interventions directed to cravings, antisocial environments and goal-setting (Consideration [5]–[7]). The judge identified medical care as a primary need, while emphasising that Haidar still had to abstain from illicit drugs and refrain from supplying them (Consideration [7]).
The judge set a theoretical head sentence of four years, then reduced it by 25 per cent for the utilitarian value of the guilty plea, producing three years (Consideration [8]). The judge found special circumstances to justify a one-year-and-nine-month non-parole period. The stated purpose was to give Haidar time to secure accommodation, potentially access the ERS, and spend as long as possible under Community Corrections receiving assistance with mental-health treatment and abstinence (Consideration [9]). The decision therefore linked sentence structure to the judge’s assessment of treatment and supervision needs, while not describing rehabilitation as assured.
Before and after state of the law
This judgment is a sentencing decision, not a general review of the law governing drug supply. Its statutory statement is limited: s 25A(1) of the Drug (Misuse and Trafficking) Act 1985 applied, the maximum penalty was 20 years’ imprisonment and/or a $385,000 fine, and no standard non-parole period applied (Judgment [1]). The supplied reasons do not set out a broader statutory test or discuss authorities establishing a general sentencing rule.
The judgment’s “before” position is the sentence calculation described by the judge. The court began with a four-year theoretical head sentence, then applied a 25 per cent reduction for the guilty plea to reach three years (Consideration [8]). It then found special circumstances and set a non-parole period of one year and nine months, followed by a one-year-and-three-month balance (Consideration [9]–[10]).
The “after” position is the sentence actually imposed on Haidar, including the two Form 1 matters. The reasons do not indicate that the decision changed the law or established a new doctrine. Its value for legal analysis lies in showing how this judge described the interaction of offence seriousness, low-level participation, small quantities, mental illness, addiction, the guilty plea, risk and proposed supervision in one sentencing exercise.
The judgment should not be read as stating that mental illness or drug addiction automatically reduces a sentence, or that supplying drugs to fund personal use makes supply less serious as a categorical rule. The judge made findings about this offender on the particular material, including expert and hospital evidence. Likewise, the finding of special circumstances was tied to the stated need for accommodation and extended supervision, rather than expressed as a general rule that treatment needs necessarily warrant a particular non-parole period.
The judgment also records an internal date inconsistency relevant to accurately describing the result. The reasons say the sentence commenced when Haidar was taken into custody on 25 February 2020, while the formal sentencing remarks specify commencement of the non-parole period on 20 February 2020. Both passages give the same stated expiry date for the non-parole period, 24 November 2021, and the further sentence period ending 24 February 2023 (Consideration [10]). The source supplied does not explain the discrepancy.
Key passages with plain-English translation
The judge’s description of the sentencing tension is central: “There is clearly here a grave tension between a court’s role in protecting the community” and the fact that the offender’s history largely resulted from “a mental illness and disadvantage as a child, and inconsistent medical care” (Consideration [1]). In plain English, the judge recognised both the need to respond to repeated offending and the relevance of the circumstances that contributed to it.
The judge said Haidar was “a principal in a trafficking network but at the lowest possible level” (Consideration [2]). This means the court treated him as personally involved in supplying drugs, while distinguishing his scale and position from a more substantial role. It was an assessment of the offending described in the judgment, not a finding that the conduct was harmless.
The judge stated that Haidar’s addiction and need to self-medicate “reduce his moral culpability” (Consideration [3]). In plain English, the court considered that his illness and addiction made him less blameworthy than he might otherwise have been. The statement formed part of the court’s sentencing reasoning and depended on the history and evidence it accepted.
On rehabilitation, the judge said the prospects were “guarded” because of previous relapses, and referred to the risk assessments and extensive areas of need (Consideration [4]). That is a cautious assessment: the court saw substantial obstacles and did not treat rehabilitation as certain, even though it identified possible treatment and supervision supports.
Finally, the judge stated that special circumstances warranted “breaking of the statutory nexus between the head sentence and the non-parole period” (Consideration [9]). In context, the judge set a non-parole period of one year and nine months within the three-year sentence, leaving a further one year and three months. The reasons given were the need for time to arrange accommodation and to support treatment and abstinence through Community Corrections.
What fact patterns trigger this precedent
The decision may be relevant as a factual comparison where a sentencing court is dealing with ongoing, low-level drug supply for reward, small quantities, a personal drug dependency, and evidence of serious mental illness. The judgment specifically considered repeated sales over a short period, a comparatively low position in a trafficking network, and supply intended mainly to reduce the cost of the offender’s own heroin use (Consideration [2]).
It may also be useful where the sentencing material includes a longstanding psychiatric history, a connection between substance use and psychiatric symptoms, early drug use, and evidence about treatment needs. In Haidar, the court had a psychologist’s report, hospital records, medication information and the offender’s evidence. The judge did not simply rely on a label: the reasons discuss the history and identify the diagnosis the judge considered supported (Mental illness [1]–[3]).
A further point of comparison is the connection between the proposed sentence structure and practical release planning. The court considered whether housing might be available through family, the NDIS or ERS, as well as the offender’s history of engaging with supervision and the proposed interventions (Consideration [5]–[7]). Similar questions may arise where accommodation, treatment and supervision are material to rehabilitation prospects or the appropriate non-parole period.
The case is a less direct comparison where the supply activity is on a larger scale, the offender plays a more senior role, the quantities are substantially different, or the evidence about mental illness and addiction differs. The judgment does not set numerical thresholds for low-level dealing or state that its sentence applies to other offenders with mental illness or addiction. The statutory offence and the circumstances of each sentencing matter remain important features of the comparison.
How later courts have treated it
The supplied judgment contains no later decisions discussing R v Haidar, and the material provided does not establish how subsequent courts have treated it. No later cases or citations should therefore be attributed to the judgment on this record.
The supplied reasons themselves refer to earlier matters in Haidar’s criminal history and to a previous appeal concerning an earlier sentence, but they do not provide a case citation or use those matters as authorities for the present sentencing reasoning (Criminal history [2], [7]). They are background about the offender, not precedent relationships identified in this judgment.
For a professional research assessment of subsequent treatment, the source provided here is insufficient. It supports describing this case’s own sentencing reasoning and disposition, but not claims that later courts followed, distinguished, applied or criticised it.
Still-open questions
The judgment leaves open how much weight other courts would give to a comparable combination of low-level supply, personal addiction and serious mental illness. It records the judge’s findings on Haidar’s evidence, reports and history, but does not formulate a general weighting method or a rule that would determine the result in another case.
The interaction between mental illness, substance use and moral culpability is also fact-sensitive in this decision. The judge accepted a particular diagnosis and considered that heroin use suppressed the offender’s hallucinations. The supplied reasons do not decide how a court should assess a different psychiatric diagnosis, a disputed causal connection, or a case without comparable medical evidence.
The court identified accommodation as a practical uncertainty. At sentencing, the family would not accommodate Haidar in the granny flat, couch-surfing was associated with antisocial peers, and potential NDIS or ERS accommodation had not been secured (Consideration [6]). The judgment explains why these matters informed the sentence structure, but does not establish whether any proposed accommodation was ultimately obtained or how supervision unfolded after sentence.
Finally, the commencement-date inconsistency remains unexplained in the supplied text. The reasons refer to custody on 25 February 2020, while the formal sentencing remarks give 20 February 2020, alongside stated expiry dates (Consideration [10]). The source does not resolve which commencement date was intended.
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Judgment (9 paragraphs)
[1]
Judgment
HIS HONOUR: Ali Haidar stands for sentence as a consequence of pleading guilty to a charge that between 22 January 2020 and 25 February 2020 at Kingsgrove in this State he did, on three or more separate occasions, during a period of 30 consecutive days, supply a prohibited drug other than cannabis, namely heroin, for financial or material reward. That is an offence contrary to s 25A(1) of the Drug (Misuse and Trafficking) Act 1985 and carries a maximum penalty of imprisonment for 20 years and/or a fine of $385,000. There is no standard non-parole period.
The offender also asks me to take into account on a Form 1 a charge that on 31 December 2019 at Kingsgrove in this State he did supply a prohibited drug, namely heroin, and a charge that on 25 February 2020 at Kingsgrove in the State of New South Wales he did have in his possession a prohibited drug, namely 12.57 grams of cannabis.
[2]
Facts
On 31 December 2019 police were conducting physical surveillance in the vicinity of the offender's residence at 372 Stoney Creek Road, Kingsgrove. Those premises are the offender's family home and he lives in a granny flat at the rear of those premises. At about 3.40pm police observed two men attend the offender's residence and enter through the side gate. The offender supplied one of those men 0.25 grams of heroin for a consideration of $100. Police subsequently stopped those two men and recovered the heroin that one of them purchased from the offender. That is one of the offences on the Form 1.
The substantive offence arises from the fact that police obtained authority to intercept lawfully the offender's mobile telephone between 31 January 2020 and 25 February 2020. As a result of those telephone interceptions the police determined that the offender made a number of supplies of heroin. At 12.26pm on 2 February 2020 the offender was contacted by another man. During the telephone conversation the offender was discussing with the man what was owed to him at the time. In other words this unidentified man had run up a "tick" with the offender. The man asked if he could obtain two and how much two would cost. By two I assume is meant 0.2 grams of heroin. The offender replied that that would cost $140. The man then travelled to the offender's residence. At 12.42pm while the man was en route the offender phoned him and said that he could actually provide the purchaser with three points for $150. At 12.48pm the offender supplied to the man 0.35 grams of heroin.
There was another supply initiated at about 1.06pm on the same day. A man known as Brett contacted the offender and asked him to give him heroin. Brett said: "...$150 the good shit that you gave me before". The offender replied, "80 bucks a [point]". "Okay, I'll give you two for $150 ". The actual supply of .25 grams of heroin for $150 occurred at 6.26pm the same day.
Later at 8.04pm an unknown man contacted the offender and requested "gear". I assume that that is code for heroin. The unknown man told the offender that he would put money in the offender's account and that he had the offender's pay ID and that his brother, who was known to the offender, would come to collect the purchase. At 9.34pm the offender contacted another man and instructed him to start making his way to the offender's residence. The offender ended up supplying .32 grams of heroin for $50 on this occasion.
At 8.23pm Brett contacted the offender again and made a request for more drugs. Brett wanted two points. An agreement was made for the offender to supply to Brett 0.25 grams of heroin for $100.
At 9.53pm on the same day an unknown woman contacted the offender and made a request for prohibited drugs. The offender asked her how much she already owed him. She replied that she already owed him $850. He asked the woman what she wanted and she said, "One point:" and the offender then said that she would end up owing him $920. At 10.38 the unknown woman attended the offender's residence where she purchased 0.12 grams of heroin for $70. There were five supplies on 2 February 2020.
The next supply occurred on 8 February 2020. At 1.42am an unknown man contacted the offender and asked if he could "Grab some slow". The offender asked him how much he needed and the man replied "two". As a result the offender supplied that unknown man with 0.25 grams of heroin for $100.
The next supply occurred on 10 February. At 12.14pm another unknown man contacted the offender and told the offender that he needed "70". I assume by that he meant that he had $70. The offender replied that he had "one left". The offender ended up supplying this man with 0.12 grams of heroin for $70.
The next supply occurred on 13 February at 4.01pm. Reda Hamad contacted the offender and asked him whether he could provide him with "one" that evening. The offender replied that he was able to do so. Hamad attended the offender's residence shortly thereafter and purchased 0.12 grams of heroin for $50. Hamad was stopped a short time later by police and the heroin that he had just purchased from the offender was recovered by the police. A little later Hamad called the offender and said, "You're being watched hard 'Bro". Hamad told the offender that he had just been "pinched". The offender asked Hamad if the police saw him leave his house and Hamad replied that they must have because they pounced on him as soon as he left the offender's residence.
Unsurprisingly no further transactions occurred for about a fortnight. On 25 February 2020 the offender contacted a male by the name of Issa Hammoud. During the conversation the offender said that he had "lost his half" and he needed to see Hammoud so he "can get happening again". Hammoud told the offender to come to Punchbowl, where the offender obtained from him 2.04 grams of heroin.
[3]
Arrest
At 4pm on the same day a white Toyota Corolla was observed by police to enter Monaro Avenue, Kingsgrove. The offender was seated in the rear of the vehicle. The vehicle was being driven by the offender's cousin Hussein Chehab. Chehab's girlfriend Marija Jovanovic was in the front passenger seat. The police in a vehicle positioned themselves behind the Toyota Corolla. Chehab then accelerated harshly away from the police along Monaro Avenue. At that point the offender gave the heroin he had purchased from Hammoud to Jovanovic and told her to put it into her pants quickly. Jovanovic complied with that request and when the drug had been secreted in her clothing Chehab stopped the vehicle.
The police required all three occupants to leave the Toyota Corolla and they were searched. During the search it became apparent to the police that Jovanovic was concealing something between her legs. Jovanovic advised police that she was concealing drugs in her underwear. The drugs were removed and were taken by the police. The offender was then arrested for these offences.
Unsurprisingly police executed a search warrant at the offender's residence. As a result of that search they found 12.57 grams of cannabis located on a coffee table in the granny flat that was occupied by the offender. That is the second offence on the Form 1.
The offender agreed to be interviewed in respect of these matters by the police. He made admissions to supplying heroin for money between 31 January and 25 February 2020, and admitted possession of the cannabis found in his granny flat. He also admitted to supplying heroin on 31 January 2020 for $100, and also certain made other admissions.
[4]
Background
To understand what has happened and to assess the seriousness of the offending it is important to bear in mind the offender's background. The offender is currently 31 years old. He has four siblings. He has three sisters. Fatima, who is currently 32 years old. Douaa who is currently 27 years old. Ghadeer who is currently 24 years old. I understand that his three sisters are married and have left the matrimonial home. The offender has one brother Mohammed, who is currently 16 years old, and still lives in the family home with the offender's parents.
The offender's mother is currently aged 55 years and is in receipt of a disability support pension. The offender maintained a very good relationship with his mother throughout his childhood and adolescence. The same cannot be said of the offender's relationship with his father. His father is currently 56 years old and works as a car detailer. The relationship between the offender and his father has remained very difficult and has been poor throughout the offender's life. Perhaps the father expected too much of his eldest son. The offender described his father as a very strict disciplinarian who was physically abusive towards him.
This abuse appears to have started when the offender was five years old. When aged about 12 years old the offender ran away from the childhood home and fluctuated between living on the streets and living with friends or living in juvenile detention. Up until his recent incarceration the offender has had limited contact with his father. Since his arrest on 25 February 2020 the offender has had no visit from any member of his family, or indeed from any other person.
The offender was interviewed by a psychologist Mr Bradley Jones on 4 December 2020. Mr Haidar gave evidence on affirmation today and attested to the fact that he told Mr Jones the truth. The offender told Mr Jones that after he ran away from home he was stabbed on four occasions and assaulted on numerous occasions. However there was never any sexual abuse.
The offender was born in the Lebanon but came to Australia with his parents when he was two and a half years old. Essentially he has no recollection of living anywhere other than in Australia. The offender attended Rockdale Primary School. He then went to James Cook High School from year 7 to half way through year 10, when he was expelled, having assaulted the Principal. Even before that time there was much truanting by the offender. The offender completed his year 10 studies at Rockdale Behavioural School. The offender told Mr Jones that he was academically below average. He started truanting from school in years 8 and 9. He refused to attend school for the majority of year 10. That was one of the factors leading to his expulsion from James Cook High.
[5]
Drug use
Unsurprisingly, given the offender's childhood history, there is a history of drug abuse. The offender told Mr Jones that he first smoked cannabis when he was aged 11 years and he continued to smoke that substance on a daily basis until he was aged approximately 26 years. Other histories indicate that the offender may have experimented with cannabis at the earlier age of eight or nine. At the age of 14 the offender experimented with ecstasy and worked himself up to ingesting 10 to 15 pills of that substance on a daily basis. That appears to have gone on until the offender was 16 years old. The offender told Mr Jones that he was staying in various friends' places and was constantly surrounded by individuals engaged in drug use.
He first experimented with crystal methamphetamine when aged 17 and could use up to two points per session. He said he told Mr Jones he would engage in one session every two or three days, but later stopped using that substance at the age of about 28. The offender told Mr Jones that he first smoked heroin at the age of 24. He initially smoked approximately two grams per day, but managed to reduce his intake to one gram per day. In early 2020 the offender told Mr Jones that he again reduced his intake to one point of a morning and one point at night to assist with his backache.
The offender's history essentially is that because of severe back pain following the motor vehicle accident in 2013 he could not obtain pain relief with ordinary medication and hence decided to self-medicate with heroin. Of course it was heroin which brings the offender before the Court today.
[6]
Mental illness
The offender has a history of mental illness, the relevant portion of Mr Jones' report is this:
"Mr Haidar reported that he started experiencing auditory hallucinations when aged approximately seven years and recorded that he would hear a mellow voice in his head. Then, when aged approximately 13 years, the voice changed from a mellow tone to a nasty, demonic tone, and then later changed to a commanding tone when aged approximately 16 years. He expressed the thought that the voices were 'normal' until he discussed the matter with the doctor. He was subsequently diagnosed with schizo-affective disorder when aged 21 years.
Over the years, Mr Haidar reportedly had been admitted to various hospitals including St George, Cumberland and Bankstown-Lidcombe, for psychotic episodes, and has been diagnosed with chronic anxiety, bipolar disorder, post-traumatic stress disorder, and depression.
Mr Haidar indicated he is currently prescribed Lithium (5 mg), Seroquel (200 mg), Solium (400 mg), Clozapine (600 mg), and Avanza (15 mg).
At present, Mr Haidar is not prescribed any pain medication, although he does experience pain in his back, he feels mentally well."
The list of his current medications are the medications which he is being given by Justice Health as a prisoner. It is unusual for Justice Health to provide such a range of drugs to an inmate and it is consistent with him having a longstanding mental illness, or longstanding mental problems.
The diagnoses made by Mr Jones are of schizo-affective disorder of the bipolar type and an opioid use disorder which was severe but in early remission because of the controlled environment, namely prison.
There are certain hospital records before me which are illuminating. The first set of records are from the Bankstown Hospital and they are dated 7 January 2013. The hospital notes commence at 7am. They indicate that the offender was taken to the hospital by the police who were called to the offender's address after he started cutting himself with a knife, and after he took three Xanax tablets. The information obtained by the hospital was from the patient, the offender, from the police officers who took him to hospital, and from RA. The offender indicated to the hospital that he had "a long-standing problem with a labile mood, low frustration tolerance, and being easily angered and upset". He had previously been seen by the Canterbury Community Mental Health team and was diagnosed by them with depression. He had been prescribed Olanzapine and Epilim. I know that the first of those drugs is usually prescribed for those with schizoid disorders, or schizophrenia, and Epilim is an anti-convulsive which is often prescribed for those with psychotic symptoms.
[7]
Criminal history
The offender's criminal history commences when he was 16 years old with a crime of armed robbery with an offensive weapon. That offence was committed on 26 September 2005. On 9 October 2005 there was an assault occasioning actual bodily harm whilst in the company of others. On 13 October 2005 there is the second charge of robbery with an offensive weapon. On 7 November 2005 the offender entered prescribed premises without lawful excused on two occasions. There was a similar offence on 12 April 2006. At the age of 17 he was charged with resisting or injuring police in the execution of their duty and using offensive language in or near a public place or school. At the age of 17 he appears to have started driving but without a licence or a registered motor vehicle. At the age of 17 he also committed robbery in company.
As an adult his first offence was common assault at the age of 19, for which he received a sentence of 29 weeks imprisonment with a non-parole period of 22 weeks. That was the subject of an appeal to this Court which confirmed the conviction but imposed a lesser penalty, a sentence of three months and 16 days imprisonment, including on 17 March 2009, St Patrick's Day 2009, which was the date on which this Court dealt with the appeal. In other words the sentence was shortened so that the offender was released from custody at the time of his appeal to this Court.
On 27 February 2011 at the age of 21 he was sentenced to imprisonment for six months for a police pursuit after driving dangerously. That sentence was suspended. On 16 November 2014 he resisted an officer in the execution of his duty, and assaulted an officer in the execution of his duty. He was 25 years old at the time.
I omit some of the lesser offences which were non-fingerprinted offences.
On 25 August 2016 at the age of 27 he was charged with possessing or using a prohibited weapon. For that a s 9 bond was imposed but he was called up for a breach of a bond, and the bond was extended for a further eight months.
More importantly on 6 August 2016 he was charged with being armed with intent to commit an indictable offence and destroying or damaging property, and stalking or intimidating with intent to cause physical or the like harm. That was a domestic violence offence. For those offences the offender was sentenced to imprisonment for 12 months with a non-parole period of nine months.
[8]
Consideration
This is not a simple or straightforward sentencing exercise. There is clearly here a grave tension between a court's role in protecting the community from criminal behaviour such as has been manifested by the offender over the years, and the fact that to a large extent that criminal history results from a mental illness and disadvantage as a child, and inconsistent medical care.
Returning to the question of the seriousness of the current crime, the offender was clearly involved in drug trafficking. However as far as that is concerned he was a principal in a trafficking network but at the lowest possible level. He sold to members of the public who wanted his drugs and who were known to him. He did so in order to defray the costs of his own heroin habit, clearly entered into again after the events of 7 November 2019, but something that he had been dabbling in since 2013, and to defray the costs of his own addiction he bought larger quantities and then sold smaller quantities to friends and acquaintances in order to make his own habit cheaper, perhaps to give him a little bit of income beyond the disability support pension. The amounts provided were small. They were not of a nature to attract the maximum penalty of 20 years imprisonment or anything near it.
It is common ground that the need to supply his own drug habit resulted from his long-standing drug addiction and need to self-medicate for his back pain, matters which reduce his moral culpability. The addiction to illicit drugs arose from his youth. He was hardly in a position to realise what might happen to him if he persisted in using illicit drugs. Being moved to take up heroin was a necessary consequence of drug addiction and the need to control pain of a physical nature. In addition the evidence makes it clear that when he was using heroin the offender stopped hearing the auditory hallucinations which had been troubling him from the age of seven.
The prospects of rehabilitation are guarded. They are guarded because of previous relapses. The sentencing assessment report is not positive. The risk assessment made by Community Corrections is a medium to high risk of re-offending. According to Mr Jones there is a high risk of re offending. According to Mr Jones upon the offender's release from custody he requires a high level of supervision. He identified areas of need, financial, education, employment, accommodation, companions, leisure and recreation, alcohol and drugs, emotional and personal, and attitudes and orientation. It is hard to think what is missing from that list.
[9]
Amendments
02 July 2021 - Amendment regarding name in judgment.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 July 2021
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Haidar
AI Analysis
Outcomeplaintiff
Disposition:
Haidar was convicted and sentenced to three years’ imprisonment, comprising a non-parole period of one year and nine months (stated in the formal sentencing remarks to commence on 20 February 2020 and expire on 24 November 2021) and a further one year and three months expiring on 24 February 2023; the two Form 1 matters were taken into account, and sequences 4 to 17 on the 166 certificate were withdrawn and dismissed.
The offender then started an apprenticeship as a plumber and then as a motor mechanic. He did not persist with either for very long. He later obtained employment as a bricklayer for ten months, then as a car detailer for approximately one and a half years, and then worked as an electrical assistant for approximately four years.
In 2013 the offender suffered a psychotic episode and later was involved in a motor vehicle accident causing what he perceives as a serious back injury, that has led to his being unemployed since 2013. The offender has received the disability support pension because of his back condition and that has been the sole source of his income since 2013.
Prior, however, to the motor vehicle accident the offender had formed a relationship with Ms RA. In 2012 the couple had an Arabic wedding and they have a daughter, who is currently six years old. The offender described his marriage to RA as "beautiful, supporting and loving", but they separated in 2016 because of the offender's drug use and incarceration. Since their separation the pair have remained in contact with each other for the sake of their daughter. The offender expressed to the psychiatrist, Mr Bradley Jones, and to me, that he hopes to reconcile his marriage with Ms RA and to recommence cohabitating with her and their daughter.
The offender told the hospital authorities on 7 January 2013 that he had disengaged from the Mental Health Service a year previously. He told them he had been taking medication sporadically since that time but stated that he ran out of prescribed medication three days previously. He referred to his activities on the previous evening which led to his girlfriend calling the police as a "blur". From RA the hospital records that the patient had threatened to kill himself and also to kill his father, prior to harming himself with a knife. She reported long-standing anger problems in the patient but denied that he had been aggressive towards her.
Another set of notes commence on 2 April 2013. They commence at 4.54pm. Apparently the offender had been scheduled by doctors in the Emergency Department under the Mental Health Act. The offender had been on a "drug binge" and had overdosed. According to the hospital records on the previous evening the offender had taken five Xanax tablets. On the morning of 2 April 2013 at 7am he had ingested three grams of ice and one Xanax tablet, and then at 9 o'clock had ingested 200 milligrams of Seroquel. RA had been unable to rouse him on that day and an ambulance was called which took him to hospital and the offender was resuscitated in the Emergency Department. The records state that the offender was then under the care of a psychiatrist, Dr Yauman, and that the offender had an appointment to see him that week, but there is nothing before me on Dr Yauman. The notes refer to a history of either schizophrenia or schizo-affective disorder of a bipolar type. They noted previous scheduling under the Mental Health Act, previous threats of self-harm, and previous occasions on which the offender had been intoxicated with illicit substances.
At that time the hospital notes recorded that RA was a supportive person in his life and that he was working then as an electrician. This is obviously before the motor vehicle accident.
A discharge letter indicates that besides having taken Xanax and Seroquel at the time of his drug overdose he had also ingested cocaine and Valproate. The discharge summary was addressed to a general practitioner at Revesby.
When I come to discuss the offender's criminal history which, as one might imagine, is extensive, one will note that under a sentence passed by the Local Court at Sutherland he was taken into custody on 10 February 2018, and was released on parole on 8 May 2019 and remained on parole until 8 February 2020, that is that the period of the primary offence partly covered by the period the offender was on parole.
The final hospital records that I have are for an admission at Bankstown Hospital on 17 November 2019. The notes commence thus:
"He was brought in by an ambulance today, as was found to be losing consciousness while in a car with his friend. He had a Glasgow Coma scale of 11 on presentation - admitted to Intensive Care Unit for further management.
ICU medical team requested mental health assessment today as Ali was threatening to leave the hospital. He was scheduled under the Mental Health Act in the Emergency Department after his presentation today.
On review at his bedside in ICU today Ali was observed to be alert and appropriate during conversation. He was oriented to time and place and was able to narrate about his overdose after researching on the Internet with the intention to 'get high'.
Ali states that he is currently under parole since his release from gaol in April 2019. He is not allowed to use illicit drugs while on parole, hence he wanted to get high on 'Rivotril' (clonazepam). He did this two days in a row. First day he just slept all day, but the second day he lost consciousness. He doesn't have full memory of events after he was with his friend in the car today.
Ali told me he was visiting this friend in this area, hence he was brought to Bankstown Hospital. Ali states that he searched on the Internet about how he could get high on his regular medications and found that if he takes Rivotril with grapefruit, its potency increases significantly, and one tablet is equivalent to 15. He states he took two tablets of clonazepam with grapefruit. He clearly denied any intention of suicide/self-harm by this act. He did not expect to be in a hospital after the second..."
There was nothing to suggest that that history which sounds somewhat bizarre was contrived. It would appear that the offender while on parole was trying to abstain from illicit drugs but still wanted to get "high" and hence resorted to the practice of taking prescribed medication with grapefruit juice with the expectation that he would get a high but of course he did not.
On this occasion the offender told the hospital that he had been diagnosed with schizophrenia, manic depression, schizo-affective disorder, substance induced psychotic disorder, post-traumatic stress disorder, anti-social personality disorder since 2009, which was diagnosed when he was in prison.
In my line of work I often have to deal with cases involving psychiatric medicine. I am fond of applying Occam's razor where there are multiple diagnoses. It appears that the correct diagnoses are the ones offered to me by Mr Jones, perhaps with anxiety and depression. Whether the offender has an anti-social personality disorder, or any anti-social personality traits is a moot point. One could see from the material before me that the offender does have some anti-social personality traits but there is not sufficient evidence to persuade me he suffers from an anti-social personality disorder. The schizo-affective disorder of the bipolar type has clearly affected the offender for most of his life. Its first manifestations were when he was a primary schoolboy, at approximately the age of seven, when he first started experiencing auditory hallucinations. At the time of puberty the voices took on a nasty demonic tone, and when they took on the command tone he was about 16 years old and he started committing offences.
The offender clearly has problems with illicit drug addiction. However he started using illicit drugs at a very young age, and would have become rapidly addicted to each of them sequentially and could hardly be in a position to know, as either an eight, nine or eleven year old, their likely effect on him over the years. The use of illicit drugs may well represent an attempt to self-medicate for the underlying psychiatric disorder. Again that reduces the offender's moral culpability for much of the criminal behaviour that has been manifest over years.
On 5 January 2018 the offender committed some serious offences against the Firearms Act and the Prohibited Weapons Act which led to a sentence of imprisonment of two years commencing on 9 February 2019 with a non-parole period of 14 months, including on 8 April 2019. An appeal to this Court was unsuccessful. It was whilst the offender was on parole for the balance of that sentence that he committed a number of supplies, on 2 February 2020 and also on 8 February 2020, as well as a supply on 31 December 2019. That is a matter on the Form 1.
SHORT ADJOURNMENT
The Sentencing Assessment Report indicates that Community Corrections will supervise the offender on his release from custody. He will be required to have contact with a Community Corrections Officer every week and receive home visits from the officer every eight weeks. They recommend re-engagement with a community service to engage in an EQUIPS Foundation program, random drug testing to monitor his level of use, and his correlation to other anti-social behaviours, and certain other interventions including working with the offender's NDIS support co-ordinator and utilising a Practice Guide for Intervention modules on managing cravings, managing anti-social environments, and achieving goals throughout interactions with the offender.
The problem that immediately concerns me is at the commencement of the Sentencing Assessment Report which indicates that the offender's parents are unwilling to accommodate him in the granny flat at the rear of the family home on his release from custody. That is understandable bearing in mind the presence of a 16 year old boy in the house and no doubt a fear that he might be affected by the offender's behaviour. The sentencing assessment report then says this:
"Mr Haidar was unable to identify any pro-social networks he has in the community. He expressed his intentions to 'couch surf' with friends, whom he acknowledged practised antisocial behaviours, post-release."
In his oral evidence today Mr Haidar expressed somewhat more positively there may be an opening for the NDIS to provide him with accommodation but that has not yet been raised with them.
The Community Corrections Officer did discuss with the offender the ERS which could provide him with accommodation if there is a minimum nine month period on parole. The ERS apparently can provide accommodation at Bankstown, or at Fairfield, or at Liverpool.
Whilst the sentencing assessment report is not positive when it deals with the offender's relationship with Community Corrections in the past, there is a prospect of improvement on this occasion. The sentencing assessment report contains this:
"Mr Haidar was last supervised on a Statutory Parole Order which expired on 8 February 2020. In addition to breaching by way of the index offences, Mr Haidar's response to supervision was deemed unsatisfactory due to poor attendance, failure to undertake reasonable directions, and refusal to participate in targeted interventions.
Case management strategies at this time predominantly focussed on maintaining Mr Haidar's engagement in mental health treatment in addressing his substance mis-use.
Mr Haidar's prior responses to Community Corrections supervision have been deemed unsatisfactory or, at best, superficial."
It may be that moving to new accommodation, moving away from antisocial peer groups, trying to recommence cohabitation with his wife and child, in other words given a new start, there may be a better response to Community Corrections.
The important thing is to make sure that the offender seeks medical attention, that is the primary need. If his mental health is looked after adequately the problems that he has with the law might well abate. However the offender must, like every other person, abstain from using illicit drugs and must abstain from peddling them because that only makes the problem even worse.
I start this sentencing exercise with a theoretical head sentence of four years imprisonment. I reduce that by 25% for the utilitarian value of the offender's plea of guilty, that reduces the head sentence to three years imprisonment.
There are special circumstances which warrant breaking of the statutory nexus between the head sentence and the non-parole period. In essence the main reason is to allow the offender the opportunity of finding new accommodation and being able to participate in the ERS, if the NDIS is unable to provide him with accommodation, and furthermore to provide him with as long as possible under Community Corrections so that they canassist him with seeking treatment for his mental health problems and remaining abstinent from illicit drugs. I have come to the view that the non-parole period should be one year and nine months and that the period during which the offender is eligible for parole will be one year and three months.
That sentence will commence when the offender was taken into custody on 25 February 2020. The one year and nine month period will expire on 24 November 2021, and the further one year and three months will expire on 24 February 2023.
Ali Haidar, you are convicted of the crime to which you have pleaded guilty. I sentence you to imprisonment. I set a non-parole period of one year and nine months commencing on 20 February 2020 and expiring on 24 November 2021. I impose a further period of imprisonment of one year and three months to commence on the expiration of the non-parole period and expiring on 24 February 2023. The total sentence is therefore three years comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. In passing that sentence I have taken into account the two matters on the Form 1.
Any other orders sought?
RAFEEQ: Your Honour, I seek leave to withdraw sequences 4 through to 17 on the 166 certificate.
HIS HONOUR: Sequences 4 to 17 are withdrawn and dismissed. Any other orders sought?
VOROS: Not from my end, your Honour.
RAFEEQ: No, your Honour.
HIS HONOUR: Thank you, Mr Haidar. Good luck.
OFFENDER: Thank you.