DPP v Mussa [2025] ACTSC 342

1. The offender, Al Ahmad Mussa, is to be sentenced in relation to the following offences, having entered pleas of guilty on 28 August 2024: (i) Count 1 (CC2023/6081): trafficking in a commercial quantity of a controlled drug namely cocaine, contrary to s 603(3) of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code, which attracts a maximum penalty of 2,500 penalty units, 25 years of imprisonment or both. (ii) Count 2 (CC2023/6082): trafficking in a commercial quantity of a controlled drug namely methylamphetamine, contrary to s 603(3) of the Criminal Code by virtue of s 45A of the Criminal Code, which attracts a maximum penalty of 2,500 penalty units, 25 years of imprisonment or both.

Facts

2. In summary, the facts of the offending established that between 5 June 2023 and 6 June 2023, the offender and co-offender, Mr Andrew O’Keefe, participated in encrypted conversations with an unknown male in relation to the trafficking of drugs. On 5 June 2023, the offender and co-offender met at ‘One Stop Tyre and Auto’ in Fyshwick where they prepared cocaine to be trafficked by mixing one kilogram of the cocaine with boric acid and packaging it into small cryovac bags. On 6 June 2023, the co-offender retrieved methylamphetamine from a location in Victoria which he attempted to drive back to the Australian Capital Territory, however he was stopped by police resulting in the discovery and seizure of methylamphetamine following the execution of a search warrant on the vehicle.

3. The conduct of the offender included preparing and packaging 3.284 kilograms of cocaine and an intention to receive 4.1 kilograms of methylamphetamine. The commercial quantity for each of the controlled drugs is 3 kilograms (see sch 1, Criminal Code Regulation 2005 (ACT)).

4. I sentenced the co-offender in this matter, Andrew O’Keefe, on 5 July 2024; see DPP v O’Keefe [2024] ACTSC 210. The agreed facts are summarised in O’Keefe at [4] – [61] and are necessarily focused on the involvement of Mr O’Keefe.

5. The agreed facts in this matter include a large collection of text messages between persons involved in the drug operation, as well as still images of CCTV footage which captured the offending with respect to count 1. The messages relevant to the offender are included in the facts below. Where necessary to refer to, other messages are summarised. Background

6. In May 2023, police were investigating the drug trafficking activities of the offender and co-offender O’Keefe as part of their investigation codenamed Operation Phobetor- Oborin.

7. In June 2023, police conducted a traffic stop on the co-offender O’Keefe’s vehicle as it was travelling from Victoria into the Australian Capital Territory (ACT). As a result, police obtained several warrants to search each offender’s premises, person, vehicles and also served a section 3LA Crimes Act 1914 (Cth) order on the offender.

8. As a result of the searches police seized controlled drugs and other evidence of drug trafficking, including evidence of both offenders and an unknown male communicating over encrypted messaging application, ‘Threema’ to jointly traffic cocaine and methylamphetamine.

9. ‘Threema’ is an end-to-end encrypted mobile messaging application. The ‘Threema’ application uses a unique identifier for each user than a phone number or email address, allowing a high level of anonymity. Users must know the other person’s unique identifier in order to communicate with them.

Count 1 – Drug Trafficking (Cocaine) Message group – ‘press rack’

10. At about 12:41am on 5 June 2023, co-offender O’Keefe was added to a group chat on the platform ‘Threema’ named ‘press rack’. The reference to ‘rack’ is a reference to cocaine.

11. The other participants of the group included the users ‘~no limit’ and ‘~Frank Martin’. Co-offender O’Keefe had the username ‘Backdown’ on Threema. The username ‘~no limit’ was for an unknown male who resided in Lebanon or Turkey.

12. The username ‘~Frank Martin’ was used by the offender.

13. On 5 June 2023, the users in the group chat ‘press rack’ had conversations regarding the mixing and packaging of “80oz” and “the new kg mix”.

14. The reference to 80oz was a reference to 80 ounces, or 2.24 kilograms, of boric acid and “the new kg mix” referred to 1 kilogram of cocaine. The total amount of ‘cut’ cocaine was 3.340 kilograms.

15. The offender sent messages in reply to this conversation asking co-offender O’Keefe ‘yo cuz can u stop and good guys and get vac seal bags. We won’t have enough I completely forgot’. The co-offender replied ‘ok’ and asked ‘how many’ to which the offender responded asking requesting two boxes of the smaller size.

16. At about 5:08pm, co-offender O’Keefe sent a number of photographs to the group of a package wrapped in silver duct tape. At about 5:09pm, co-offender O’Keefe sent a photograph of the silver package on a set of scales that read 1.091kg.

17. At 5:14pm, co-offender O’Keefe sent a further photograph showing a large glass bowl filled with a white crystalline substance sitting on the scales reading 1.000kg. The substance was cocaine.

18. At 5:19pm, ‘`no-limit’ asked for photographs of the “kg” that had arrived “before you do it” and “sealed with the letter”. In response at about 5:23pm the offender sent a number of photographs of a white crystalline substance sealed in a cryovac bag with an ‘X’ written on it.

19. At about 5:24pm the offender sent a photograph of a white powder in a blender.

20. The offender and co-offender engaged in further conversations with the user ‘~no limit’ in relation to the mixing of the drugs.

21. At 5:57pm the offender then sent a photograph of a white powder in a metal bowl. The message from the offender which followed stated that the pair would ‘make as many singles as we can’.

22. At 6:52pm and 7:00pm the offender sent photographs of white powder in a metal bowl and of the white powder divided up into cryovac bags. The offender sent messages to the group chat indicating the breakdown of the amounts in the bags, saying there was “116” total. “116” refers to a total of 116 ounces or 3.284 kilograms of cocaine.

23. CCTV footage from ‘One Stop Tyre and Auto’ located at 20 Collie Street, Fyshwick ACT from 5 June 2023 captured the above incident. ‘One Stop Tyre and Auto’ was a family business managed by the offender.

24. The footage captured both offenders at the premises preparing the cocaine and boric acid and packaging it into multiple individual cryovac bags.

25. The time stamp on the CCTV footage was out by 55 minutes.

26. The CCTV footage revealed the two offenders separating and blending one kilogram of cocaine and mixing it with boric acid to yield a mixed cocaine substance. It was then packaged into smaller quantities which can be seen lined up in front of the garage door. The process takes approximately an hour and a half.

27. The CCTV footage depicted the following from approximately 5:00pm: (i) The offender and co-offender at the premises setting up the area and covering the area with white plastic and putting on black gloves; (ii) The offender getting out a number of smaller bags out of plastic bags; (iii) The co-offender taking a silver package out of one of the plastic bags on the ground, placing it on a scale and taking a photograph on his mobile phone; (iv) The offender going through bags of white powder on the ground using a silver tool to break it up whilst the co-offender spoons white substance from a bowl into a blender to blend it and subsequently emptying it into a black bucket on the table; (v) The pair switching roles so that the co-offender is on the ground hitting the white substance with a silver tool whilst the offender spoons and blends a white mixture on the table; (vi) The offender mixing powder across two black buckets and a metal bowl whilst the co-offender empties the powder into clear cryovac bags; (vii) The offender placing the bags into a hydraulic press, and once pressed, emptying the contents of the bags into a silver bowl on the ground and bashing it with a tool again; (viii) The pair then put the white powder into small cryovac bags and the co-offender heat seals them. They subsequently line them up on the floor next to the garage door and then the offender puts all the single bags into two larger plastic bags which are carried out of the view of the camera.

28. The timing of the photographs sent in the group chat ‘press rack’, taking into the account the 55 minute discrepancy, corresponded with the timing of the footage where it depicted each offender taking photographs on their mobile phone.

Count 2 – Drug Trafficking (Methylamphetamine)

29. Between 4 to 6 June 2023, co-offender O’Keefe and username ‘~no limit’ exchanged messages on ‘Threema’.

30. During those exchanges at the request of ‘~no-limit’, co-offender O’Keefe agreed to drive to Melbourne to pick up four kilograms of methylamphetamine. Co-offender O’Keefe discussed how much “flake” they had, what “papers” he would take to Melbourne, how much money ‘~no-limit’ owed him and made plans for further drug ‘runs’. “Flake” is a reference to boric acid and “papers” is a reference to Australian currency. ‘Pick up eye/drop papers’ conversation

31. At about 9:46pm on 5 June 2023, co-offender O’Keefe was added to the group chat name ‘pick up eye/drop papers’ on the ‘Threema’ application. The other group participants were ‘~no limit’, ‘~Bane’ and ‘~gdup’. A conversation occurred regarding the time for the “pick up” in Melbourne and co-offender O’Keefe suggested 9:00am or 10:00am.

32. On 6 June 2023, co-offender O’Keefe messaged the group updating them on his progress to Melbourne. They discussed the location of a meet up in Donnybrook. Co-offender O’Keefe picked up the four kilograms of methylamphetamine just before 10:00AM from a location in Donnybrook, Victoria and sent a message into the chat saying, “all done boys thank you”. ‘Press rack’ conversation

33. On 6 June 2023, ‘~no limit’ and co-offender O’Keefe communicated in the group chat named ‘press rack’ on the application ‘Threema’. They coordinated when the ‘4kgs” would be dropped off and co-offender O’Keefe stated he was just past Murrumbateman at 3:40pm. Traffic stop of co-offender

34. At about 3:40pm on 6 June 2023, police intercepted co-offender O’Keefe’s vehicle, a white Ford Transit van with ACT registration plates YPP40V, as he was driving into the ACT from New South Wales (NSW).

35. Police stopped the van on the Barton Highway and identified co-offender O’Keefe as the driver. Co-offender O’Keefe appeared nervous and had glassy eyes, sweaty palms that he was continuously rubbing together, and his face was twitching.

36. Co-offender O’Keefe told police that he had been at his parent’s property in Murrumbateman.

37. At about 4:12pm police told co-offender O’Keefe that his van was a crime scene and asked for his consent to search the van. Co-offender O’Keefe did not consent to the search so police told him that they would organise for the van to be towed to a secure police compound whilst another officer applied for a search warrant.

38. Co-offender O’Keefe asked to get his house keys which were attached to his car keys and police agreed. Co-offender O’Keefe removed a key and a silver fob. Police asked the offender the location of his mobile phone and he told police that it was in the glovebox. He was also asked whether it was the only mobile phone in the vehicle and the offender told police that it was the only phone ‘as far as he was aware’.

39. Co-offender O’Keefe then left the area on foot. A tow truck arrived at the location and took the van to the AFP Exhibit Management Centre (EMC) at Mitchell, ACT.

Searches Search warrant – O’Keefe’s vehicle

40. At about 7:00pm police executed a search warrant on co-offender O’Keefe‘s white Ford Transit van.

41. During the search, police located and seized the following items: (i) A mobile phone from the glove box – iPhone 13 Pro Max. (ii) Garmin navigation system fixed to the inside of the front windscreen on the driver’s side. (iii) Large yellow garbage bag tied at the top with a knot which appeared to be full of rubbish. The contents of the bag appeared to be covered in oil. The bag contained: (i) Large amount of empty cryovac bags, some contained white powder residue and had numbers written on the packaging. (ii) Empty cryovac bag containing residue of a white substance with ‘X’ written on the bag and wrapped in silver duct tape which had been cut open. (iii) Used black gloves. (iv) Razor blades.

42. The yellow garbage bag found matched the appearance of the bag that was used by the two offenders when preparing the cocaine on 5 June 2023 as seen on the CCTV footage.

43. The empty bag that had ‘X’ written on it, matched the appearance of the bag of cocaine that was photographed by the offender and sent on 5 June 2023 at 5:25pm.

44. When searching the van, police found a sophisticated hydraulic concealment under the front passenger seat.

45. The following items were found inside the hide under the front passenger seat of the vehicle amongst a large amount of coffee beans: (i) Large black garbage bag containing: (i) A medium cryovac bag containing a white substance with 2.130kg written on the bag; (ii) Two medium cryovac bags containing a brown substance. (ii) Medium cryovac bag containing a white substance. (iii) Three mobile telephones: (i) Google Pixel 4a; (ii) Samsung Galaxy A13; (iii) Google Pixel 6; (iv) A notebook containing names, amounts of money owed and paid, and amounts dropped.

46. On page 2 of the notebook, the ‘owed’ amount reached $337,670 and ‘dropped’ was 35oz. ‘35 oz’ refers to 980 grams of a controlled drug.

47. The coffee beans inside the hide were there to mask the smell of illicit substances.

48. The most recent destination that was entered into the navigation system was ‘Melbourne VIC’. Search warrant – O’Keefe’s residence

49. At about 10:18pm on 6 June 2023, police executed the search warrant at the co-offender’s residence at unit 609/35 Furzer Street, Phillip ACT. Co-offender O’Keefe and his girlfriend were at the residence at the time.

50. During the search, a bundle of $50 in Australian currency and held together by rubber bands was located and seized from inside Ms Burke’s handbag. The total amount of the bundle of Australian currency was $5,000. At about 11:11pm, co-offender O’Keefe was arrested and taken the ACT Regional Watch House. 3LA warrant

51. On 10 June 2023, police served a warrant pursuant to s 3LA of the Crimes Act 1914 (Cth) on co-offender O’Keefe in relation to the four mobile phones found inside his van.

52. Co-offender O’Keefe complied with the order and gave police the passwords to all the devices and applications on the devices.

53. As a result, police were able to access co-offender O’Keefe ‘s personal iPhone which was located in the glovebox of the white Ford Transit van and a black Google Pixel 4A phone that was located in the hide under the front passenger seat of the vehicle.

54. The Google Pixel phone that was accessed was utilising a Graphene Operation System and identified as a dedicated encrypted communication device.

55. The phone had two profiles and both profiles were able to be accessed by police. The second profile contained applications that enabled end-to-end encryption including ‘Threema’. Police were able to take photographs of the relevant conversations on ‘Threema’ as identified above. Police were able to identify that co-offender O’Keefe was using the username ‘back down’ on ‘Threema’. Search warrant – Fyshwick premises

56. On 13 June 2023, police executed search warrants at 20 Collie Street, Fyshwick ACT (‘One Stop Tyre and Auto’). The offender was present at the premises.

57. During the search, police located and seized the following items: (i) Silver bowl with a black base; (ii) Clear bowl; (iii) Nutribullet container and 2x Nutribullet blenders; (iv) Black Swann Closed Circuit Television recorder; (v) Black Alhua CCTV recorder

58. AFP Forensics attended the Fyshwick premises and took a number of forensic samples from the kitchen area which presumptively tested positive for cocaine and boric acid.

59. The bowls and blenders that were seized matched the images sent from both offenders during the ‘press rack’ conversation on 5 June 2023.

60. Police were able to review the CCTV footage and viewed footage from 5 June 2023 as identified above.

61. The date and timing of the CCTV footage corresponds with the date and times of the images of cocaine located on the offender’s Google Pixel 4a mobile phone. ACT Government Analytical Laboratory (ACTGAL) Results

62. Items containing suspected drugs that were seized during the search warrants were analysed by the ACT Government Analytical Laboratory. The following items were all found in the White Ford Transit van belonging to co-offender O’Keefe. The results of the analysis were as follows: (i) A plastic vacuum sealed bag containing an off-white crystalline substance; 2114.868 grams of methylamphetamine was detected in the substance. (ii) A vacuum sealed plastic bag containing a brown crystalline substance; 995.207 grams of methylamphetamine was detected in the substance. (iii) A vacuum sealed plastic bag containing a brown crystalline substance; 989.976 grams of methylamphetamine was detected in the substance. (iv) A torn vacuum sealing plastic bag labelled “415” over “-40” containing a white crystalline substance; 369.875 grams of boric acid was detected in the substance. (v) A yellow plastic bag containing a piece of plastic containing a white oily substance; and a towel, gloves, cardboard tubing, an opened cardboard box, pieces of plastic, plastic bags, a permanent marker, and razors; 0.272 grams of cocaine was detected in the substance. (vi) An AFP plastic bag containing pieces of plastic containing a white-brown oily wax and a taped piece of plastic containing a white-brown oily wax; 0.567 grams of cocaine, levamisole and caffeine were detected in the exhibit.

63. The total amount of methylamphetamine found and seized was 4100.051 grams.

Forensic evidence

64. Forensic DNA analysis was conducted on the hidden compartment under the passenger seat of co-offender O’Keefe’s white Ford Transit van and items that were seized by police during the search warrant. The forensic analysis revealed there was either very or extremely strong support that the co-offender was the contributor of the DNA as outlined in O’Keefe at [60].

65. Fingerprint analysis was conducted on items taken during the searches. The fingerprint analysis revealed the fingerprints taken from a black plastic rubbish bag and a Google pixel 7 box lid belonged to the co-offender O’Keefe. Nature and circumstances of the offending

66. The significant maximum penalties that apply in this matter reflect the gravity of the conduct and the community’s intolerance for drug trafficking. The maximum penalty provided for by the legislature serves as an indication of the relative seriousness of the offence: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [31].

67. An assessment of the nature and circumstances of the offending requires consideration of the objective seriousness of the conduct establishing the offence. An assessment of where the offending falls on the spectrum from the least serious example of the offending to the most serious example of the offending, is an important consideration. I have approached this assessment by identifying the features of the conduct engaged in by the offender which inform its objective seriousness: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at 108 [24] and Laipato v The Queen [2020] ACTCA 35 at [156].

68. The Court of Appeal set out factors relevant to an assessment of the objective seriousness of drug trafficking offences in Bui v The Queen [2015] ACTCA 5 at [41] as follows: (i) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50; [33]. (ii) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34]. (iii) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.

69. Against the background of that guidance, I have had regard to the following matters.

Role of the offender

70. I concluded that co-offender O’Keefe was “entirely dispensable…. [and] he was not a critical figure to the overall success of the operation”: O’Keefe at [68].

71. The offender was the manager of his family business ‘One Stop Tyre and Auto’ which was the location for the preparation and packaging of the cocaine. The offender had a hands-on role in the preparation and packaging of the cocaine revealed in the CCTV images. In addition to the provision of the premises, the offender provided and operated a hydraulic press.

72. It was accepted that the offender’s involvement in the enterprise was limited to two days. Further, it was accepted that the offender was not involved in a message group with O’Keefe, ‘~no-limit’ and others where arrangements, logistics and financial matters were discussed relevant to sourcing, transport and payment of the controlled drugs.

73. Whilst the offender provided the premises and a hydraulic press, neither were accompanied by any level of sophisticated or clandestine conduct, though some knowledge of the operation of the press was required. Indeed, the use of the offender’s premises resulted in his conduct with Mr O’Keefe in ‘cutting’ and preparing the cocaine being entirely captured by the CCTV cameras installed in ‘One Stop Tyre and Auto’. This was the footage the police would go on to obtain which significantly enhanced the strength of the prosecution case. Mr O’Keefe’s vehicle was found to have been fitted with a compartment capable of sophisticated concealment.

74. Unlike the offender, the evidence demonstrated that Mr O’Keefe indicated in the message group which did not include the offender, his willingness to continue to be involved in the operation including by international travel. And unlike the offender, Mr O’Keefe was entrusted with the custody of significant sums of money. Of course, the use of the premises made available by the offender and willingness to permit him to take possession of 4 kilos of methylamphetamine demonstrated that he too was considered trustworthy by those higher up in the chain of command.

75. The communications which did involve the offender demonstrate some knowledge of the scope of the operation and some capacity to issue requests to Mr O’Keefe to facilitate the drug preparation.

76. I am satisfied that in the scheme of the operation both the offender and co-offender were “entirely dispensable” in the sense that they were the foot soldiers of those higher up in the enterprise who were pulling the levers and realising the spoils of a large-scale drug operation. That said, the degree of actual involvement by the offender in the overall operation, I am satisfied was less than Mr O’Keefe’s.

Weight

77. The total amount of cut cocaine was 3.284 kilograms. The total amount of methylamphetamine located and seized was 4.1 kilograms. For both cocaine and methylamphetamine, a commercial quantity is 3 kilograms, and a large commercial quantity is 6 kilograms: sch 1, Criminal Code Regulation. The prosecution conceded that the weight of the cocaine falls at the lower end of a commercial quantity.

78. Counsel for the offender accepted that the weight of the drugs involved represented significant monetary value.

79. The prosecutor identified that the Australian Criminal Intelligence Commission’s 2021 Illicit Drug Data Report for 2020-2021 reported that the national median price for a kilogram of cocaine was $210,000. The national median price for a kilogram of methylamphetamine was $235,000. Accordingly, the total approximate value of the cocaine would have been around $672,000, and the total approximate value of the methylamphetamine would have been around $963,500. These same figures were adopted in the co-offender’s sentence: O’Keefe at [70].

80. On any view, even noting that the weight of the cocaine fell toward the lower end of a commercial quantity, the weight and value of the drugs involved was substantial.

Motivation for the offending

81. Counsel for the offender submitted that the offender’s motivation should not be categorised as driven by greed or a desire to fund a lavish lifestyle but rather should be viewed through the prism of the pressure created by the offender’s dire financial circumstances.

82. The report of forensic psychologist Alex Bell catalogued some of the financial difficulties experienced by the offender at the time of the offending. The offender explained to Mr Bell that the family business accrued debt during the pandemic which ultimately led to his mother selling the family home. The offender told Mr Bell that between 2022 to 2023 he sold “$200,000 to $300,000” from his personal car collection to further relieve some of the financial pressure.

83. The offender recounted that he also worked night shifts and restored cars to sell however the income was insufficient to meet rising business costs. He was recorded to state, “we tried as hard as we could, post Covid…we held on for too long” identifying a desire to maintain his “dad’s legacy” as a driving factor. The offender told Mr Bell that the financial stressors were compounded by his need to have a hip replacement and his wife’s maternity leave.

84. Counsel for the offender drew my attention to Cicciarello v R [2009] NSWCCA 272 per Allsop P, Fullerton J and McCallum J where sentencing error was established after a drug supply offence was found to be motivated by “financial gain” after the offender gave evidence that he was supplying drugs only to fund his own drug habit and was not making any profit.

85. Identifying the error the Court held at [17]-[18]: Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range. In our view, that latter conclusion must clearly have been affected by the finding of financial gain because no other basis in the facts could found such a conclusion. In our view, there was an error of the sentencing judge in this regard. This error led to his Honour characterising the objective criminality of the offence as more serious than it was. It was not within the mid-range of objective seriousness. It was lower than that, in particular given that it was to feed his habit. A less severe sentence was warranted in law: the Criminal Appeal Act 1912 (NSW), s 6(3).

86. The conduct of the offender was driven by his desire to obtain a financial benefit. This is distinct from the circumstances of the offender in Cicciarello. The prosecution submitted that the offender’s assertion in his letter to the court that he was to receive a payment of $1000 for his participation in each offence was not established on the balance of probabilities and I agree. I do accept that the offender was motivated by the difficult financial circumstances he outlined and that he intended any financial benefit he realised from his participation in the offending to directly improve those circumstances. I also accept that there was no evidence that the offender was living a life of excess consistent with the spoils of commercial drug trafficking.

Subjective circumstances

87. The offender was interviewed by ACT Corrective Services for the purposes of preparing both a Pre-Sentence Report (PSR) and Intensive Corrections Order Assessment Report (ICOAR). These reports, in conjunction with the submissions advanced on his behalf, detailed the offender’s personal circumstances and history as follows.

88. The offender is 40 years old. He described a supportive upbringing in a close-knit family. He was born and raised in Canberra, being one of five children to his parent’s union. He reported having a loving and supportive relationship with his parents and siblings and recounted no alcohol or drug use in the home. The offender reported being particularly close with his father throughout his life until his sudden passing in 2019. The offender has been in a relationship with his wife for five years and they have a daughter.

89. The offender stated they have a positive relationship however acknowledged the adverse impacts his offending has had on his wife’s mental health. The offender reported stable accommodation; the family reside in a property owned by his father-in-law, with no plans to relocate in the foreseeable future.

90. The offender reported experiencing stable education and he completed year 12. He obtained qualifications in tiling and carpentry and has recently enrolled in a construction management certificate. The offender began working soon after leaving school and has remained employed since that time, working at his family’s mechanical shop and more recently at his own construction related business.

91. The offender reported a significant period of financial stress following the death of his father. He attempted to keep the family’s mechanical shop operational due to its sentimental value but ultimately acknowledged that was a poor financial decision. Following the sale of the business and completion of a financial management course, the offender has been able to regain control of his finances and reported no loans, debts, or struggles with his financial commitments.

92. The offender reported to the PSR author that he had a pro-social friendship circle and that to the best of his knowledge, none of his friends or associates have a criminal history. He reported no use of illicit substances and advised he rarely consumes alcohol. The offender reported his involvement as a member of his local Mosque detailing his attendance each Friday for prayer and active engagement in social events at the Mosque. The offender also reported he spends his spare time with his family or taking his daughter to sporting activities.

93. The offender reported no history of mental health issues and advised he had recently engaged with a forensic psychologist to help address his mental health and the choices which ultimately led to the offending.

94. The author of the PSR recorded that the offender identified the effect of illicit substances including harm and crime on the community and that the offender displayed remorse for his part in the potential consequences of his offending conduct.

95. The reports identified multiple protective factors, and that the offender displayed insight into his offending and demonstrated genuine remorse.

96. The offender was assessed at a low risk of general re-offending.

97. The author of the ICOAR stated that the offender engaged well with corrective services during the assessment period. The offender was subject to drug testing on 19 May 2025 which returned a negative result to all substances but for tetrahydrocannabinol. The offender provided a medical letter which confirmed he had been prescribed medicinal cannabis. A subsequent oral drug test returned a negative result to all substances.

98. The offender advised the ICOAR author that he was no longer engaged in psychological therapy and that he able to maintain good mental health. He did identify that he had been suffering from anxiety and depression at the time of the offending.

99. The offender was assessed as suitable for an intensive corrections order (ICO). Psychological report: Mr Alex Bell

100. Mr Bell assessed the offender in August 2024. He concluded that the offender satisfied the diagnostic criteria for Major Depressive Disorder (Moderate) at the time of offending “hallmarked by symptoms of helplessness, worthlessness and insomnia”. The disorder, Mr Bell concluded, had a “direct nexus” to the offending as it “appeared to his explain his poor decision making in committing the index offence out of financial desperation”. Mr Bell stated that “in the event that Mr Mussa did not suffer with this underlying psychopathology (i.e. major depressive disorder), he would have been significantly less likely to have succumbed to the decision to commit the index offence”.

101. Mr Bell noted that at the time of the assessment the offender did not appear to be experiencing any diagnosed mental health condition.

102. Mr Bell recorded that the offender: (i) Adhered to bail conditions; (ii) Demonstrated a willingness to accept responsibility for his offending by his guilty plea; (iii) Completed a Diploma in Financial Management and Accounting to increase his ability to manage his finances and reduce future financial stress; (iv) Maintained stable employment in a new, less financially risky business with a supportive business partner; and (v) Reduced his substance use (supported by prescribed medicinal cannabis).

103. Mr Bell considered a custodial sentence would likely have a negative impact on the offender and increase his risk of recidivism because he would be exposed to anti-social peers and attitudes, his stable environment would be disrupted, and he would be deprived of the pro-social supports conducive to his rehabilitation.

104. Mr Bell also highlighted that a custodial sentence would have negative consequences for his family due to the loss of financial, emotional, and practical support he provides. In particular, Mr Bell noted that the offender’s daughter “may be exposed to enduring effects given her young age, and the subsequent disruption in attachment his incarceration would cause”. Mr Bell also noted that because of his low risk of re-offending and given the absence of substance misuse issues, the offender would likely not qualify for custodial rehabilitation programs. Affidavit of the offender’s wife

105. The offender’s wife swore an affidavit which detailed the history of their relationship and her perspective on the offender’s subjective circumstances generally. She noted that their daughter was born in 2021, and her arrival resulted in health complications for the offender’s wife.

106. The offender’s wife described her shock when the offender was arrested noting he had not displayed any sign of involvement in drug trafficking and does not smoke cigarettes or drink alcohol to excess. She detailed the effect of the offending on their relationship and future life together noting their wish to have another child together noting they “realise that should Al receive a lengthy term of imprisonment, our chance of having a family will decrease significantly”. The offender’s wife confirmed the offender’s involvement in a new industry and a new business enterprise. The offender renewed his carpentry licence having completed a Certificate III in Carpentry in May 2024 and a financial management course September 2024.

107. The offender’s wife expressed her belief that the offender is genuinely remorseful for his actions having expressed as much to her daily and through his actions.

Character references

108. Character references were tendered on behalf of the offender from his business partner, two friends, and an Imam. The references attest to the offender being a “family man” and recorded his dedication to building a better future. One reference attested to the offending being out of character for the offender and their shock at learning of the offending.

109. The offenders’ referees described his commitment to personal growth and expressed a view that the offender is remorseful and accountable for his conduct.

Apology letters from the offender

110. The offender provided two letters of apology which expressed his sincere remorse for his offending and accepted full responsibility for his offending.

111. The offender recited the devastating and far-reaching effects that drug use has on the community. He expressed regret and shame for his part in contributing to those effects. He also set out the circumstances which led to the offending which I have already documented.

112. The offender explained the effect on his family of his offending conduct and expressed his overwhelming sense of regret for his offending which has added to the burden on his wife.

113. The offender detailed the prosocial steps he has taken following his offending including fundraising efforts and work with his local church engaging with young people to “encourage them to move away from crime and instead get a job”.

114. The offender described his role as follows: My role was to operate the hydraulic press and assist in getting it in and out of the factory as soon as we could. The instructions were to get the block, break it down, mix it to increase the quantity and then use the hydraulic press to put it in block form again. Without the press this could not be done.

115. The offender reiterated that his motivation for the offending was to address the difficult financial circumstances he faced.

116. I am mindful of the need to approach untested expressions of remorse from an offender with caution: Imbornone v The Queen [2017] NSWCCA 144 at [57], see also R v Baxendale [2018] ACTSC 260 at [37]. In this case the offender’s expression of remorse is consistent with the observations expressed in the character references, PSR, ICOAR, and the report of Mr Bell. It also consistent with the acceptance of responsibility reflected in the offender’s plea of guilty and significant steps toward rehabilitation that he has taken since his arrest.

Responsibility, remorse and rehabilitation

117. I am satisfied that the offender’s involvement in the offending conduct was driven by his difficult financial circumstances. There was no contest to the conclusions of Mr Bell that at the time of the offending the offender’s decision-making capacity was impaired by the mental health condition, namely major depressive disorder (moderate), from which he was suffering. I take those matters into account. I am satisfied that the offender nonetheless bears a high degree of responsibility for his offending conduct.

118. The offender has demonstrated insight into his offending behaviour and an understanding of the far-reaching harm caused by drug trafficking. I am satisfied that the offender is remorseful for and ashamed of his conduct. The presence of genuine remorse properly influences an assessment of an offender’s potential for rehabilitation: see R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. As I noted in DPP v Benn (No 2) [2025] ACTSC 266, a remorseful offender is more likely to have insight into their conduct and some desire to reform. In turn this operates to protect the community from harm.

119. Demonstrating his understanding of the serious position his offending conduct has resulted in, the offender has been entirely compliant with his bail conditions and made significant efforts to engage in prosocial activities since his release on bail and enhance his prospects. He has initiated action to improve his mental health in an effort to avoid the financial hardship he experienced as a motivator for his offending. Unsurprisingly in those circumstances he has been assessed as presenting with a low risk of re-offending.

120. The offender I am satisfied has excellent prospects of rehabilitation.

Pleas of guilty

121. The offender entered pleas of guilty to both counts on 28 August 2024 following negotiations and after criminal case conferencing. There is no reason to depart from the usual reduction that the timing of those pleas would attract: see Blundell v The Queen [2019] ACTCA 34 at [12]. In my view a 20 per cent reduction in the sentence to be imposed is appropriate.

Criminal history

122. The offender has one traffic conviction in the ACT from 2007 and two traffic convictions in NSW from 2008 and 2016. The lack of any substantial or relevant criminal history is a matter which entitles the offender to some leniency.

Time in custody

123. The offender spent 44 days in custody solely referrable to the offending. I will backdate the offender’s sentence accordingly.

Current sentencing practice

124. No sentencing outcome is a precedent and I bear in mind that sentencing statistics and comparable cases do not define the range of available sentences nor place a cap on the upper or lower ranges of a possible sentence: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53].

125. I observed the following in O’Keefe at [120]-[124] and those observation are relevant in the offender’s case: The prosecution provided a table containing sentencing outcomes said to be comparable to the offending for which the offender must be sentenced. I consider the most relevant of those decisions in terms of the level of involvement of the offender and the nature and circumstances of the offending to be: DPP v Wright [2023] ACTSC 196 (Wright); R v Nchouki [2022] ACTSC 227 (Nchouki); R v Yeboah [2022] ACTSC 127 (Yeboah); R v Mackinder [2021] ACTSC 176; R v Butler [2020] ACTSC 170; R v McCallum [2020] ACTSC 15 (McCallum); R v Negah [2019] ACTSC 243; R v Hagan [2016] ACTSC 343 (Hagan); R v Nikro [2015] ACTSC 231 and Klobucar v The Queen [2014] ACTCA 6. These outcomes demonstrate that generally, periods of full-time imprisonment were imposed for trafficking offences, consistent with the maximum penalties that reflect the gravity of drug trafficking offences. It must be observed that many of the sentencing outcomes to which I was referred did not involve offences with the same maximum penalty as that which applies to the specific offences for which I am to sentence the offender. For example, in Hagan and McCallum the maximum penalty for the trafficking offence involved was life imprisonment. In Yeboah, the maximum penalty was 10 years of imprisonment, a fine of $160,000 or both. So too in Wright and Nchouki. The only sentencing outcomes that I have been able to find from this jurisdiction which did involve the relevant offence pursuant to s 603(3) of the Criminal Code are R v Gladman [2019] ACTSC 371 (Gladman) and R v Baker (No 3) [2019] ACTSC 365 (Baker). In Gladman, the offender was sentenced to three years and six months of imprisonment, reduced to three years of imprisonment, on account of the plea of guilty, for one count of trafficking in a commercial quantity of a controlled drug, namely Lysergide (LSD), contrary to s 603(3) of the Criminal Code. Justice Burns noted that a commercial quantity of LSD was 1.5 grams and police had seized 2.084 grams of LSD from the offender’s bedroom during a search warrant. The offender admitted to selling the LSD and stated that the motivation was to fund his own drug use. Justice Burns was satisfied that it was more probable than not that this was the motivation behind the offending and that some, but not the majority of the drugs in the offender’s possession were for his own use. The offender had been dealing drugs for four years and considered it a business, and Burns J considered the offending was not isolated or out of character. There was no evidence of large profits. In Baker, the offender was sentenced to five years of imprisonment for a count of trafficking in a commercial quantity of a controlled drug being cannabis, contrary to s 603(3) of the Criminal Code. There was no reduction for a plea of guilty, the offender having been found guilty at trial by a jury. The offender supplied a commercial quantity of cannabis to a drug dealer, which had a value exceeding $100,000. Justice Burns was satisfied the offender anticipated making significant profits from this exercise and placed the offence at the mid-range of seriousness for such offences. His Honour considered the offending had been driven by a desire to present himself as a successful individual by making a large amount of money, quickly. The offender had no relevant criminal history and had positively engaged in rehabilitation while in custody, including engaging in education. The offender was found to have little to no remorse. Parity

126. Parity is a consideration in this matter there being a co-offender. Neither offender should be left with a justifiable sense of grievance arising from the sentence I impose. In O’Keefe the following sentences were imposed. (i) On Count 1 (CC2023/5996), trafficking in a commercial quantity of a controlled drug, being cocaine, the offender was convicted and sentenced to three years and three months of imprisonment commencing on 27 March 2027 and ending on 26 June 2030. (ii) On Count 2 (CC2023/5805), trafficking in a commercial quantity of a controlled drug, being methylamphetamine, the offender was convicted and sentenced to four years and two months of imprisonment commencing on 27 June 2024 and ending on 26 August 2028. (iii) The total sentence of imprisonment commenced on 27 June 2024 and will end on 26 June 2030. The non-parole period commenced on 27 June 2024 and will expire on 26 April 2027.

127. It is useful to recall the observations of the Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24]: The notion that like cases should be treated alike is fundamental to any rational and fair system of criminal justice: Lowe v The Queen (1984) 154 CLR 606, 610–11 per Mason J. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen [2011] HCA 49; 244 CLR 462 at [32] (Green). However, just as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).

128. I have found that the offender’s actual participation in the offending was less than the co-offender though both were dispensable participants at the low end of the chain. Each offender was motivated by financial gain for different reasons – the co-offender to fund a drug habit and address the financial situation it was creating for him and this offender to meet the demands of a failing family business amidst the demands of own personal finances. As I concluded in O’Keefe at [75], the financial motivation of this offender is a basis to distinguish him from an offender motivated purely by profit, however, it does not substantially reduce the seriousness of his offending.

129. Like the co-offender, I am satisfied that the offender had impaired decision making at the time of the offending. Both offenders were likely to experience fulltime custody more harshly because of their mental health conditions.

130. Unlike the offender, the co-offender had a prior conviction for drug related offending. Mr O’Keefe had been convicted of being an accessory after the fact, contrary to s 717(1) of the Criminal Code, to the cultivation a controlled plant for selling (s 616(5) of the Criminal Code): see R v O’Keefe; R v Jabal [2014] ACTSC 347.

131. The absence of any relevant or significant criminal history demonstrates that this kind of offending is out of character for the offender and unlike the co-offender provides a basis for some leniency to be extended to him.

Determination

132. The purposes of sentencing to which I must have regard are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).

133. Our community knows too well the anti-social consequences, indeed in some cases, the misery, that is visited upon the lives of individuals and families because of drug use and drug dependence: see R v Baker (No 3) [2019] ACTSC 365 at [59]. As I observed in O’Keefe drug addiction steals futures, fractures families and harms communities. It is because of the extent of the harm realised through drug use that sentences imposed for drug trafficking must deter others from risking involvement, however big or small, in the drug trade. As was recorded by the Court of Appeal in Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 at 161 [6]: [D]rug dealing is a blight upon the Australian community and it seems to me that the consideration for general deterrence require that a custodial sentence, a full-time custodial sentence, be imposed.

134. The seriousness of the offences, notwithstanding the motivation I have accepted accompanied the offender’s conduct, demands the imposition of sentences which reflect the gravity of the offending. It is well established that punishment, denunciation and general deterrence are paramount considerations in sentencing offenders for this kind of offending: see Baker (No 3), R v Gladman [2019] ACTSC 371.

135. I accept that a consideration of specific deterrence whilst not entirely irrelevant, is influenced by the absence of any relevant criminal history and by the effect of the offender’s engagement in the criminal justice system arising from his conduct. The offender’s strict compliance with bail conditions for a substantial period reflects an appreciation of the seriousness of his position, and alongside the other efforts he has made, a commitment to reform. The circumstances of the co-offender led to a finding, notwithstanding his prior conviction for drug related offending, that the sentence imposed upon him need not reflect specific deterrence “to any significant degree”: O’Keefe at [126]. I am satisfied a similar approach is warranted for this offender and that specific deterrence has largely been achieved.

136. Whilst I have assessed the offender’s role to be at the low end in the hierarchy of the drug operation such a finding cannot obscure the gravity of the offence and the need to deter and denounce drug trafficking even at the ‘street level’ or low end of a drug operation. As I observed in DPP v Le [2024] ACTSC 31 at [31], the sum of the smaller parts is the capacity for a drug business to successfully operate, and the success of a sophisticated drug operation “relies on the preparedness of recruits to perform their part regardless of where they sit in the hierarchy of the operation”.

137. As with the co-offender the offender “stands as an example of the very real risk an offender takes when they align themselves with those who seek to exploit and profit from the very real harm of drug use”: O’Keefe at [127]. The observation I went on to make in O’Keefe is equally applicable to the offender, namely that “there must be severe consequences for the commission of what are serious offences. I must impose a sentence that marks that seriousness, that punishes the offender and that denounces his conduct so that others who might be minded take the same risk with their own futures, will be deterred from involving themselves in the harm created by trafficking in drugs”.

138. The offender’s excellent prospects for rehabilitation are a consideration to which I must have regard, though not to the extent that they overwhelm the sentencing task. I am satisfied that the offender presents as a low risk to community safety consistent with the assessment of him as being a low risk of reoffending.

139. Counsel for the offender sensibly conceded that the only appropriate outcome for the offending is the imposition of a period of imprisonment.

140. I have considered the effect on the offender’s family of any sentence imposed: s 33(1)(o) of the Crimes (Sentencing) Act. Hardship to an offender’s family need not be exceptional before it can be considered: see DPP v Moala (No 3) [2023] ACTSC 306 at [47]-[48] per McCallum CJ. I readily accept that a sentence of full-time imprisonment will effectively extinguish the day to day emotional and financial support he provides to his wife and daughter and will necessarily affect the relationship they have with him noting his daughter’s tender age. I also acknowledge that which the prosecution accepted namely that the offender’s mental health condition will likely make his experience of the custodial environment harsher than if he did not suffer with depression. I also accept that a full-time period of imprisonment will, at best, interrupt the progress the offender has made toward rehabilitation. There is a genuine risk, as Mr Bell identified, that the environment of full-time custody will further acquaint the offender with the kind of anti-social attitudes which typically underpin the offending he engaged in.

141. The effect on the offender’s family, as well as the risks of full-time imprisonment, are regrettable consequences of the serious offending for which he must be held accountable. Those considerations cannot undermine the significance of the primary sentencing considerations.

142. The co-offender was not assessed for an ICO. Counsel for the offender submitted that a period of imprisonment served by an ICO was an appropriate outcome in all the circumstances. The prosecution opposed such an outcome on the basis that it would fail to fulfill the purposes of sentencing most relevant.

143. Based on the picture presented to this Court as to the extent of any challenge the offender has with his mental health, drug and alcohol use, employment and other protective factors it is difficult to identify the benefit of intensive correction for this offender. Nonetheless, it can be accepted, as observed by Refshauge ACJ in R v Ngerengere (No 3) [2016] ACTSC 299 at [21], that an ICO whilst a more lenient outcome than a period of full-time imprisonment, is nevertheless punishment. His Honour stated: The NSW Court of Criminal Appeal has also made plain that an Intensive Correction Order is “a substantial punishment” though with a significant degree of leniency: Whelan v The Queen [2012] NSWCCA 147 at [120]. This recognition that such an order is “a significantly punitive disposition” is also accepted in Victoria: Director of Public Prosecutions v Karazisis (2010) 31 VR 634 at 669; [184]; Boulton v The Queen at 330- 2; [89]-[98].

144. The prosecution conceded that the situation for this offender, which included a basis for some leniency, was more favourable than that which existed for the co-offender though maintained that an ICO was not appropriate. The prosecutor accepted that a consideration of leniency, the assessment as to the offender’s role as well as his excellent prospects of rehabilitation were relevant to an assessment of the weight to be afforded to punishment and protection of the community. The weight of these considerations for this offender, as well as the 20 per cent reduction for his plea of guilty will necessarily see a difference in the sentence imposed compared with the co-offender. The co-offender, because of the application of s 35(4) of the Crimes (Sentencing) Act, was not entitled to any significant discount for either offence.

145. The starting point for the charge of trafficking in a commercial quantity of a controlled drug namely cocaine (CC2023/6081) is three years of imprisonment reduced to 2 years, 4 months and 24 days for the plea of guilty.

146. The starting point for the charge of trafficking in a commercial quantity of a controlled drug namely methylamphetamine (CC2023/6082) is 3 years and 10 months reduced to 3 years and 24 days for the plea of guilty.

147. As with the co-offender I consider that there should be some accumulation between the offences given the entirely separate and serious nature of each of them, but only to the extent necessary to give proper effect to the purposes of sentencing and the principles to which I have referred.

148. The total period of imprisonment will be for 4 years, 4 months and 24 days.

149. Noting a difference between single judges of this court about whether multiple sentences to be served by ICO should result in the making of multiple, separate intensive correction orders or one global order, the Court of Appeal in McBride v The King [2025] ACTCA 16 observed at [161]-[162]: It is not necessary to determine this issue in the present case, other than to observe that, even if the construction of the primary judge is to be preferred and separate ICOs should be ordered for each offence, an ICO or ICOs should not be ordered where the aggregate of the individual sentences exceeded four years’ imprisonment. The absolute prohibition in s 11(3) of the Crimes (Sentencing) Act against imposing an ICO of more than four years represents a legislative determination that an ICO will not be appropriate where the offending is sufficiently serious to require a sentence of imprisonment of more than four years.

150. The total sentence in this instance is more than 4 years and an ICO cannot be made.

151. I add that even if the total sentence in this matter had not been for more than 4 years, the gravity of the offending in this instance rendered service of any period of imprisonment by intensive correction, inappropriate having regard to offender’s culpability for the offending and the seriousness of the offending: s 11(3)(c) and 77(1)(b) of the Crimes (Sentencing) Act; see also Fares v DPP (No 2) [2025] ACTCA 2.

152. The making of an ICO would fail to give adequate effect to the primary sentencing considerations in this matter of general deterrence, punishment and denunciation.

153. It is my view that 44 days in custody would similarly fail to properly reflect those considerations. The offender’s entitlement to leniency in this matter cannot justify an outcome which does not require him to spend any further period in custody. Such an outcome would be unduly lenient. That said, as the prosecutor acknowledged, leniency can properly be reflected in the period of the overall sentence as well as the actual time the offender is required to spend in full time custody.

154. I have had regard to the principles which guide the exercise of the wide discretion involved in fixing a non-parole period set out in Taylor v The Queen [2014] ACTCA 9 and Cole v The Queen [2019] ACTCA 3. A non-parole period is determined by reference to the same considerations which attend to the fixing of a head sentence and is the period of actual incarceration that justice demands. I bear in mind the need to explain an “unusual” non-parole period (Millard v The Queen [2016] ACTCA 14; Taylor; Cole) and that “generally speaking, the perceived prospects of rehabilitation will make a significant difference” to an appropriate non-parole period: Bugmy v The Queen (1990) 169 CLR 525 at [20] (Mason CJ and McHugh J, though in dissent in the outcome of the appeal).

155. I have already acknowledged the low risk the offender presents to the community as well as the effect of his mental health on his experience of the custodial environment. The offender has no history of drug use or drug offending which might complicate his return to the community. His prospects of rehabilitation are excellent. The prosecution accepted that the offender’s “compelling subjective case” justified a “shorter than normal period in full time custody” to encourage his ongoing rehabilitation in the community. I agree and I have determined the appropriate non-parole period accordingly. Orders

156. For those reasons, the following orders are made: (i) On count 1 (CC2023/6081) of trafficking in a commercial quantity of a controlled drug namely cocaine, the offender is convicted and sentenced to 2 years 4 months and 24 days imprisonment to commence on 18 June 2027 and expire on 10 November 2029. (ii) On count 2 (CC2023/6082) of trafficking in a commercial quantity of a controlled drug namely methylamphetamine, the offender is convicted and sentenced to 3 years and 24 days imprisonment to commence on 18 June 2025 and expire on 11 July 2028. (iii) The non-parole period commences on 18 June 2025 and will expire on 17 April 2027.

I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor Associate: P Beohm Date: 4 August 2025