DPP v Awad

This matter has a somewhat tortured procedural history. A more serious charge of trafficking in a large commercial quantity of gamma-hydroxybutyrate (GHB) was initially laid and the offender was remanded in custody, bail refused, for about 9 months as a result of the bail considerations for that more serious charge.

Several events then took place. The matter was committed to the Supreme Court, the present charge was laid by the Director of Public Prosecutions, the charge was remitted back to the Magistrates Court, that fresh charge was again committed to this Court and a guilty plea was entered upon arraignment. Legal representation has since changed.

The parties have jointly submitted that the offending calls for a sentence of imprisonment, but the defence submit that the offender has served more time in custody than the criminality of the offending calls for.

The sole issue is the fixing of an appropriate sentence of imprisonment. What were the nature and circumstances of the offending? (s 33(1)(a) CS Act)

An agreed statement of facts was tendered to the court during the sentencing proceedings.

At 2.13am on 27 January 2025, police attended the Brighton apartment complex in Kingston, Australian Capital Territory (ACT) for an unrelated investigation into a person of interest.

In an effort to locate that suspect, police attended the offender’s unit within the apartment complex. The offender explained that the person of interest was not with him. The offender invited the police inside to search.

Once police were inside the offender’s residence, they became suspicious that the offender was involved in trafficking illicit drugs. The police exercised their emergency search powers pursuant to s 188 of the Drugs of Dependence Act 1989 (ACT). The following items were found: (a) 12.48 grams of methamphetamine; (b) 581.6 grams of cannabis; (c) a large quantity of unused clip-seal bags; and (d) a number of scales.

Following the forensic examination of those items, police re-attended the offender’s property on 7 February 2025 for the execution of further warrants.

The attendance on 7 February 2025 resulted in the location and seizure of the following illicit substances and indicia of drug trafficking: (a) 14.94 grams of methamphetamine; (b) 29.3 grams of cannabis; (c) 16.07 grams of 3,4-methylenedioxymethamphetamine (MDMA); (d) 30 grams of dimethylsulfone (a cutting agent); (e) a small set of scales; and (f) $2,595.00 in Australian currency.

At the closure of the police investigation, the quantities and monetary values of the drugs seized were as follows: (a) 27.42 grams of methamphetamine, carrying an approximate value of $7,200; (b) 610.9 grams of cannabis, carrying an approximate value of $5,100; (c) 16.07 grams of MDMA, carrying an approximate value of $4,740.

These are each trafficable quantities of the respective illicit substances for the purposes of s 603 of the Criminal Code 2002 (ACT). What is the objective seriousness of the charges?

Having considered Bui v The Queen [2015] ACTCA 5, the following matters are relevant to assessing the objective seriousness of this offending: (a) the prosecution accepts that in terms of role and hierarchy, this offender was a subsistence level dealer; (b) the combined weights, value (a total of $17,040) and repetition of the presence of the substances speak to low-level ongoing dealing at the time of the offending; and (c) The purposes of the offending were the support of the offender’s illicit drug use and funding his day-to-day living expenses. There was no evidence of a grandiose lifestyle or any type of sophistication or syndication of sale.

The offender’s submissions categorize the offending as being at the bottom end of the spectrum of objective seriousness. That was not disputed by the prosecution. I find that it is offending that is towards the lower end of the scale of objective seriousness for trafficking for both the primary offence and the scheduled offence. Was there any resultant injury, loss and damage and what was the effect of this upon the victims? (ss 33(1)(e) and 33(1)(f) CS Act)

There were no specific victims identified and no victim impact statements were tendered. The Court recognises the insidious nature of illicit drugs and the devastating effect that they can have on individuals. The Court regularly observes the consequential ripple effects of illicit drug trafficking throughout the community. The seriousness of the conduct and its effect is reflected in the 10-year maximum penalty. What degree of responsibility has the offender taken for the commission of the offences and has he demonstrated remorse? (ss 33(1)(i) and 33 (1)w) CS Act)

The offender has taken full responsibility for his offending. In the pre-sentence report (PSR), the offender did not avoid responsibility for his offending behaviour. He confirmed that he was in the grip of addiction at the time of the offending and was making poor choices.

In the PSR, the offender expressed thanks for being arrested as it caused him to address his addiction which in turn addressed his offending behaviour. Since being released from custody he has undertaken residential rehabilitation in New South Wales (NSW).

The offender’s spoken attitude to his offending and the significant action that he has taken to rehabilitate allow significant weight to be given to his remorse. Were there pleas of guilty and should there be a reduction in sentence applied for those pleas? (ss 33(1)(j) and 35 CS Act)

The plea of guilty occurred upon arraignment in the Supreme Court. There is no dispute that a reduction of 20% is applicable. What are the cultural background, character, criminal antecedents age and physical or mental condition of the offender? (s 33(1)(m) CS Act)

Whilst the offender does not have a criminal history in the ACT, the offender’s criminal history indicates that he served a 2-year suspended term of imprisonment in NSW in 2015 for supplying prohibited drugs other than cannabis. He is not to be doubly punished for that entry and it has no bearing on the objective seriousness of this offending. What the presence of it means is that he cannot be treated with the mercy that might be afforded to a first offender.

The offender is aged 55. He is single and has no children. He is one of four children who were raised by hardworking migrant parents. There is no direct information about his exact cultural origin, other than the PSR noting he experienced racism as a child as he was recognised as not being Anglo-Saxon.

The offender suffered significant trauma as a child. [Redacted].

He now spends considerable time with his siblings and provides regular support for his aged mother who survives his late father.

The tendered materials show that the offender is studying a diploma, undertaking counselling and has adopted a changed focus and attitude that has helped him to maintain a positive and healthy mindset. He is a man who has contributed to the recovery of others in the past and was previously part of a focus working group that assisted the creation of the Drug and Alcohol Sentencing List in this Court.

The offender lives with diabetes, high blood pressure, attention deficit hyperactivity disorder and bipolar disorder. The latter two diagnoses are apparently in remission as he has not been medicated for a decade and presented upon his last custodial admission with no acute mental health concerns. What are the financial circumstances of the offender? (s 33 (1)(n) CS Act)

The offender is presently unemployed and looking for work. This is not a matter where a fine is within the contemplation of the Court. Was the offender affected by alcohol or a controlled drug at the time of the offending and what were the circumstances in which he became affected? (s 33(1)(p) CS Act and also s 12A(2) CS Act)

The offender reported a history of polysubstance use commencing in his 30s. He first attempted rehabilitation in 2014 and 2015 at Karralika. He remained abstinent until late 2023 when he experienced a significant relapse into heavy use of alcohol, cannabis, methylamphetamine and MDMA. That relapse was only interrupted by his remand into custody on this matter. Would the imposition of a conviction or a particular penalty be likely to cause particular hardship to the offender? (s 33(1)(r) CS Act)

There is no evidence that there would be any unusual level of hardship if the offender was to be convicted or re-introduced to the custodial setting. What is or are the reason or reasons why the offender committed the offences? (s 33(1)(v) CS Act)

The offender has been robust about the cause of his offending – it funded his drug use and enabled him to meet his financial commitments in the absence of lawful paid work. Is there a current sentencing practice for this type of offending? (s 33(1)(za) CS Act)

The parties provided comparative sentence examples including R v Khoder (No 2) [2020] ACTSC 76; R v Chichacz [2022] ACTSC 28; R v Er [2022] ACTSC 112 and DPP v Snowden-Crowhurst [2025] ACTSC 73. Those cases were helpful in showing a consistent approach to the sentencing principles for trafficking offences. They do not provide a numeric formula or precedent for sentence. Pre-sentence custody

The offender has spent 272 days in custody referrable to this offending. He was released on 5 November 2025 on restrictive bail conditions that allowed for residential rehabilitation. A failure to consider that time in rehabilitation would create an error in the exercise of the sentencing discretion: DPP v Kayvanshokoohi [2024] ACTSC 386 per McWilliam J at [90].

I considered Kelly v The Queen [2018] NSWCCA 44 in deciding what credit could be apportioned to the period spent on bail in residential rehabilitation.

The defence materials included a letter from “WHOS’ Mandala House” in Goulburn NSW dated 10 September 2026. The letter sets out that the offender was admitted into the program on 5 November 2025. This is consistent with information set out in the PSR.

The WHOS letter sets out that their therapeutic community program lasts for 3 to 4 months. There is then a transition stage of 2 to 3 months followed by an exit stage of up to 6 months. The offender is presently fulfilling the exit stage.

The letter does not set out the nature of restrictions that are applied to participants in each stage and does not set out the length of time that the offender actually spent in each stage.

Kelly sets out the following factors at [11] - [13] that enable a Court to quantify the weight to be given to an offender’s efforts at residential rehabilitation: (a) Whether the course was residential; (b) Whether the environment is a disciplined one, and how strict that discipline is; (c) Whether the offender is subject to restrictions, and if so, the nature and extent of those restrictions; (d) Whether the time spent in rehabilitation has been productive; (e) The nature of the programs that an offender participates in during the period of rehabilitation; (f) Whether the programs are compulsory or optional; (g) Whether the person has a mobile phone or access to one, or access to the internet or other forms of communication; (h) Whether a person in able to travel in an unrestricted way from the facility, and if so to what extent and for what purposes; (i) Whether the person is entitled to receive visitors and, if so, whether there is any restriction on the visitors and the length of the visit; (j) Whether full-time or part-time employment is permitted, or forms part of the program; (k) Whether volunteering activities are permitted, and if so to what extent and for what purposes.

There is a paucity of information before the Court on the majority of those factors. However, it does appear that many months have been spent at WHOS by the offender and that he has achieved a level of productive rehabilitation such that he has progressed to the final stage of the WHOS process. I have decided that on that barest amount of information, he does deserve some credit for that time at WHOS. Consideration

The offender has travelled a long way on his personal journey since the offending. The materials tendered on his behalf alongside the time spent in residential rehabilitation combine to evince a compelling picture of a man who lapsed badly into substance abuse and trafficking, but who has re-gathered his character and self-control since the time of his offending.

The scheduled offence was taken into consideration by following R v Campbell [2010] ACTCA 20 and DPP v Vincent (No 2) [2023] ACTSC 379. In this sentencing process it has had the effect of increasing the need for personal deterrence. The demonstrated rehabilitation balanced out the requirement for punishment that the scheduled offending might otherwise have called for.

It was accepted that there was no penalty other than a sentence of imprisonment that was appropriate. I also gave close consideration to a combination sentence. Given the actual rehabilitation that has been completed and the fact that there has been more time in custody served than required, I concluded that there was and is no requirement for a good behaviour order.

I could not agree with the defence submission that a sentence of six months imprisonment was the appropriate outcome. It did not fully reflect the criminality of the offending. Instead, instinctively, I commenced at a start point of 12 months imprisonment.

After a 20% reduction for the guilty plea the sentence to be imposed is 292 days imprisonment. The offender has already spent 272 of those days in custody. I have determined that the offender is entitled to credit for a minimum of an extra 20 days in custody for his time in residential rehabilitation at WHOS in Goulburn. Thus, the sentence has been served in its entirety.