Mr P Lange (Counsel for the offender)
File Number(s): 2021/261936
[2]
Judgment
In September 2013, Khaldoun Abbas was sentenced by Beech‑Jones J for offences including manslaughter arising out of an event on 15 August 2011 (R v Abbas [2013] NSWSC 1379, which his Honour described at [65]:
At a very young age the offender has embarked upon what appears to be a half-baked attempt at gangsterism. It has left his good friend dead, a family devastated, him incarcerated and his daughter effectively fatherless. He has time to contemplate his actions. Unlike his friend, he will have an opportunity to make a life for himself.
That arose out of circumstances where Abbas and his friend Hassan Saleh went to try and enforce a drug debt. He was the organiser of the beating and the one who administered the blows, and in the course of the scuffle a gun went off, killing his friend.
He was sentenced to an overall period of 11 years imprisonment, eight years non‑parole period, and he was released to parole on 14 August 2019, after eight years.
He went back into custody on 14 August 2021, just over two years later and has been in custody since that time in relation to a number of offences, principally involving drug supply which occurred over the months before September 2021.
His counsel, Mr Lange, acknowledges that a term of full‑time imprisonment is mandated in the circumstances of this case and having regard to questions of totality and the revocation of parole, there is no contest to the proposition put during submissions that the term of imprisonment should, in the exercise of my discretion, commence on 14 February 2022.
He has pleaded guilty to a number of offences in circumstances justifying a 25% discount on sentence, namely,
1. Sequence 1, possess an unauthorised pistol, being a gel blaster Glock, contrary to s 7(1) of the Firearms Act 1996. The offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 4 years.
2. Sequence 2, possess an unauthorised firearm, being a gel blaster assault rifle, contrary to s 7(1) of the Firearms Act 1996. The offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 4 years. Attached to this offence on a Form 1 is sequence 19, possess ammunition relating to 10 packets of gell balls contrary to s 65(3) of the Firearms Act 1996. The Form 1 matter will be dealt with in the way suggested by CJ Spiegelman in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
3. Sequence 7, involves the supply of a commercial quantity of prohibited drug, being 496 grams of methylamphetamine located in his car contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non‑parole period of ten years.
4. Sequence 8, an offence of supplying 41 grams of heroin located in his car, an amount in excess of the indictable quantity but less than a commercial quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment.
5. Sequence 11, an offence of supplying 26 grams of cocaine, an amount in excess of the indictable quantity but less than a commercial quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, which was found on the search of his premises. The offence carries a maximum penalty of 15 years imprisonment.
6. Sequence 17, another offence of supply contrary to s 25(1) Drug Misuse and Trafficking Act 1985, 224 grams of cocaine found in his car. The offence carries a maximum penalty of 15 years imprisonment.
7. Sequence 27 is an offence contrary to s 193C(2) of the Crimes Act 1900 of dealing with property suspected of being the proceeds of crime, being $22,500. The offence carries a maximum penalty of three years imprisonment.
8. Sequence 28 is an offence contrary to s 193C(1) of the Crimes Act 1900 in relation to an amount of $100,000. The offence carries a maximum penalty of 5 years imprisonment
The maximum terms, and where appropriate, the standard non‑parole periods are important yardsticks in the sentencing process and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be taken into account in any sentence process.
The Crown bundle contains a significant amount of detail as to the sentences which have been imposed on a number of people loosely described as co‑offenders, but the Crown does not put that any questions of parity arise, but rather the material is included just to set the factual milieu in which Mr Abbas' offending occurred. Mr Lange also does not put that any question of parity arises.
In June 2021 Mr Abbas was living with his wife, Eli Tsipos, at Brighton‑Le‑Sands. They had, according to her affidavit, known each other since they were in high school, but they started a romantic relationship in 2010 and they were married in 2011. They have three children aged 11, two and one. She has been the sole carer for the children while he has been in custody.
During the period of the offending Mr Abbas was also seen regularly attending what is described as the family home address at Banksia and driving a black Lexus car, which is registered in his wife's name.
In May 2020, a police strike force was established to investigate the drug supply activities of Mr Abdul Hamid and others in the Illawarra region. Police identified Mr Abbas during the course of their investigations into the supply of prohibited drugs, particularly methamphetamine and heroin.
Abdul Hamid met the offender on several occasions after intercepted conversations in which they discussed the sale of prohibited drugs. The offender was using three mobile phones. He supplied methylamphetamine and heroin to Mr Velkovski, who supplied predominantly from the Bexley area.
Electronic surveillance was recorded inside the Brighton-Le‑Sands home of Mr Abbas. On 12 July he was seen holding five large bundles of cash, being $50 and $100 notes, with an estimated value of $100,000. It could not be established that he had any legitimate form of income or employment and neither did his partner. That cash is the subject of the second money laundering count (sequence 28).
As to the first two drug supply counts (sequence 7 & 8), on 17 July he supplied Abdul Hamid with the 496 grams of methylamphetamine and 41 grams of heroin. Abdul Hamid collected those items from the offender outside his Brighton‑Le‑sands home and they were concealed by Abdul Hamid in a hidden compartment of a car and taken back to the Illawarra.
The methylamphetamine had an estimated street value of between $60,000 and $100,000 and the heroin had an estimated wholesale value of between $13,000 and $16,000.
Abdul Hamid and Ristevska were arrested and the drugs were located in a secret compartment in the car.
On 19 July Mr Abbas because aware that these arrests had taken place and he made several calls. Those calls were captured on the surveillance device at his house at Brighton‑Le‑Sands. He was then shown to remove a white container and consume prohibited drugs using a lighter to heat underneath the piece of foil with a cylinder cigarette‑shaped item to inhale smoke. He then had conversations on the mobile phone in relation to the arrests.
There is a significant quantity of material between [52] and [62] of the agreed facts which set out conversations between Ristevska and Abbas. They are not strictly relevant to any of the charges as Mr Lange puts, but the Crown asserts that they set the background of Mr Abbas' activities at that stage, including the use of coded language in relation to the vehicle with the hidden compartment for concealing drugs.
In September 2022, Mr Abbas had been served with a firearms prohibition order and a weapons prohibition order. On 13 September the surveillance devices inside his house show him opening a package. He got a box out with the words "Glock 18" written on it. He removed a pistol which was the same shape, size and colour as a police firearm. He moved the slide of the gun while aiming around his daughter, who was also in the room. She jumped off the bench and hid before handling it herself. He then opened a second box which contained an assault rifle style firearm, and he was filmed handling this while his daughter also handled it. He could be heard on the listening device to appear to shoot or fire the guns with loud clicking noises.
That afternoon Police came and arrested him for the firearm offences. He admitted possessing toy guns at his home. He told police that his wife had purchased them for his birthday, and his wife said that she had purchased the guns from a toy shop.
Police executed a search warrant, and in the garage inside Coca-Cola cans with fake screw top lids was 26 grams of cocaine, which is the subject of sequence 11 and $22,500 cash found inside a wardrobe (sequence 28). The Glock pistol and the assault air rifle, the subject of sequences 1 and 2, were found. The ten packets of gel balls were found in the garage, that is the subject sequence 19, the Form 1 matter. The black Lexus was also searched and amongst the items found in the centre console hidden compartment was 224 grams of cocaine, which is the subject of sequence 17.
Apart from the serious charges for which Beech-Jones J passed sentence, Mr Abbas had no real record to speak of. In 2011 there was a charge of possessing ammunition without a licence which was dealt with on a Form 1, and in 2010 there was a possess prohibited drug dealt with by a $100 fine and altering a licence dealt with by a fine.
When Beech-Jones J passed sentence he described the subjective case on behalf of the offender, including the description of the relationship with his wife. His wife had said that after they had been seeing each other for a few months, she learned about his drug problem. That history of drug use was addressed in the report of the psychiatrist, Dr Nielssen, where consistently with the history set out in the recent psychologist's report, he said he started using cannabis at age 14 and methylamphetamines from age 16. He was also taking ecstasy, heroin and benzodiazepines. He had been drug-free since he was incarcerated, that is the two years before sentence. He was diagnosed as having a substance use disorder based on past drug usage and disrupted personal history which was said to be in remission. He also dysthymic disorder which was based on a history of chronic low grade depressive illness, but it was not so severe that he was unable to perform the usual social roles.
At that stage Beech-Jones J said at [44],
his continuing drug free status is a matter that warrants greater confidence in his prospects of rehabilitation
His Honour went on to say at [45]:
Dr Nielssen's description of him suffering a low grade depressive illness is not particularly surprising given that he is facing a significant period in custody. It is also consistent with his ongoing grief over his role in his friend's death
His Honour noted the impact of incarceration on his daughter and his wife. He noted that his daughter, their only child at that stage had never known a father who was out of gaol. He will miss out on important news in her development, but he will be released in time to play a significant role in her upbringing. His ongoing connection to his partner and daughter was seen by his Honour in 2013 as a factor that operated in his favour in assessing his prospects of rehabilitation.
His Honour assessed him as having good prospects of rehabilitation. Notwithstanding the seriousness of the offences, it had to be remembered that he was 18 at the time they were committed, which led to him being incarcerated for a lengthy time. His grief and remorse were accepted as genuine, having embarked on an escapade of gangsterism and ended up killing his friend. He will watch his daughter grow up without him and his Honour said that he expected those matters, more than anything else, will give him insight.
Unfortunately, his Honour's optimism was mis-founded because, as I have indicated, the evidence shows that he relapsed into drug use after his release on parole. He told the psychologist, Mr Ballardie, recently that he had been consuming cocaine on and off since his release and in the last eight months prior to his incarceration he was consuming it daily. He was also consuming crystal methylamphetamine, GBL and MDMA, but cocaine and heroin were his drugs of preference. He says that he has not used drugs since his current incarceration in September 2021.
The psychologist diagnosed depression and anxiety and drug use disorder at the time of the offending and adult ADHD and post‑traumatic stress disorder.
His description to the psychologist as to why he got back into the drug scene was that when he got out of gaol in August 2019 by the time he got into the flow of things, there was a lockdown. He could not go to the gym and he felt anxious. He described a huge change from waking up with 50 blokes around you to waking up with the kids. It was hard to adjust to, it was frustrating and he couldn't get work. He said he had no structure and too much time on my hands.
He said, "Funny, I like myself better in gaol. I was stricter on myself and had my routine in gaol, but not once I was out and once COVID lockdowns happened." He acknowledges that he knows what is right and wrong and when he takes drugs he is "fucking himself up" and is aware of the effects of his drug taking saying, "[It's] obviously not a good thing. It can become a misery. I fucked people up."
The psychologist said that his risk of reoffending would be moderate, taking into account his untreated medical conditions, his positive engagement during assessment, his view about a causal connection between the mental conditions and his offending, his stated ambition to complete his qualifications, his positive relationship with his partner and children, and him undertaking the EQUIPS program and expressing remorse. An intensive treatment plan both during and after incarceration is prescribed.
His wife's affidavit says that when he was released in 2019 he was fit and he looked healthier, he was excited to get back to a normal life and he was helpful with the children, but the whole world seemed to stop during the COVID pandemic. He was not subjected to drug testing and not able to do any courses. She says he has constant nightmares in relation to the events surrounding the manslaughter offence. He talks and screams in his sleep constantly.
She said she noticed him taking drugs again in about 2020. He was taking prescription painkillers to deal with a work‑related shoulder injury. Then she says it became clear to her that his addiction had spiralled out of control. She would attempt to support him seeking treatment by arranging doctors' appointments, the most recently at the beginning of 2021 when the doctor encouraged him to stay away from drugs.
On 8 September 2021, when the children were at a sleepover, he was becoming noticeably sick from attempting to detox himself. She confiscated drugs from him. She describes how he would write a letter to himself each morning to motivate himself.
She describes the very difficult conditions of his custody during the COVID pandemic. The solicitor's affidavit records 168 days locked in his cell during that period. There were no phone calls or visits for long periods. She describes in detail the effect on the children, of the absence of their father, but they have been able to resume in‑person visits since October 2022.
She says she has had many conversations with her husband about his behaviour and she says he is extremely remorseful and apologetic for the problems that he has caused due to his drug addiction. He has asked her to find a drug rehabilitation program for him on his release. She expresses regret that she did not take more drastic action in relation to his drug use. It is clear to her that he needs professional help.
The Crown quite properly puts, that the offending disclosed in the agreed facts shows a serious example of drug offending and trafficking to a substantial degree given the amounts concerned which are not insignificant, he was possessing and dealing with three discrete types of drugs, he was supplying drugs to others and discussing delivery and prices. He was linked to two cars which had sophisticated mechanically operated concealed compartments, and there were indicia of supply in his home and significant amounts of cash and drugs and drug paraphernalia.
The conversations on 19 July, after the arrest of the other offenders, showed that the offender knew that the HiLux contained a significant quantity of drugs inside a complicated, hidden compartment and rather than simply seeking to establish that the car had been taken by police, he discussed with Velkovski i retrieving the car.
The passages in the agreed facts as to those conversations to which I have referred do reflect the steps that the offender was willing to take to conceal his involvement in criminal behaviour, and in a way relevant to his prospects of rehabilitation.
As to the particulars of the supply themselves as to sequence 7, the Crown notes that it is nearly twice the commercial quantity of methamphetamine. It was packaged in two bags of high purity and had a significant street value of between $60,000 - $100,000. As to sequence 8, it was about eight times more than the indictable quantity of heroin, sealed in a hidden compartment, with a value of between $13-$16,000. As to sequence 11, the cocaine, it was five times the indictable quantity and located in fake cans. As to sequence 17, 224 grams of cocaine was 44 times the indictable quantity concealed in the car.
As to sequence 28, the offender was filmed handling and cataloguing about $100,000 in cash, which is a significant amount arising in the context of drug supply. It has not been recovered. Sequence 27, involves $22,550 that was recovered and is the subject of a consent confiscation order.
As to the firearm offences the Crown notes that he had a previous offence for possessing an unauthorised pistol, and the serious offence leading to the manslaughter charge involve him being aware of the devastating effects that possession of a firearm, and that was emphasised by him being subject to a firearms prohibition order since September 2020. Notwithstanding that he possessed both firearms contrary to law and was depicted on film handling both items in the presence of a child.
As to aggravating factors the Crown points to him being on conditional liberty at the time. His criminal record is highly relevant to his prospects of rehabilitation and the risk to the community through further offending.
In relation to mitigating factors I take account of his plea and I accept, through his wife, the expressions of remorse.
As to the firearm offences Mr Lange acknowledges those pleas of guilty. He was involved in criminal conduct, but he points to the possession of what are accurately described as toy guns purchased by his wife and support the proposition that the objective seriousness of those offences is at the low end of the range, a submission that I accept.
As to the drug offences, sequences 7, 8, 11 and 17, Mr Lange does not take issue with the differing characterisations of the Crown as to where they lie on a notional scale of objective seriousness, and as Harrison J said in DH v R [2022] NSWCCA 200, it is often unnecessary to do so. I accept the Crown's propositions that sequences 8 and 11 were below midrange, as to sequences 7 and 17 were around midrange, notwithstanding the Crown's submission that those two were above midrange.
As Mr Lange puts, the offender dealt with the co‑offenders personally from his own premises or use of a car directly linked to him, and he was well and truly exposed to the risk of detection and did not seek to distance himself from the actual acts of supply which demonstrates a lack of sophistication.
As to sequences 27 and 28 it is correct to point out, as Mr Lange does, that the Court cannot conclude that the moneys are in fact the proceeds of crime, but reasonably suspected of being proceeds of crime. I would assess sequence 27 as being in the lower range and sequence 28 as being below the midrange.
I take into account, as Mr Lange puts, that his involvement in the offences must be seen in the context of his relapse into an addiction to prohibited drugs. It is not of course a matter of mitigation, but it is relevant to the sentencing exercise. As the Crown puts, it was undoubtedly done for financial gain and not purely to feed an addiction. It was in fact a matter of choice by the offender, and he was clearly functioning and engaged in activities such as using hidden compartments in concealing drugs and using coded language.
It is clear that he is in need of intensive supervision and support both in custody and at home on his ultimate release. The background that I have described over the last period since he was 18 suggests that, at best, his prospects of rehabilitation are guarded, although one would hope that with family support and three children he has now, at the age of 30, acquired sufficient maturity to carry out his promises of leading a pro-social life in stable employment.
I take into account the effects of the COVID pandemic as shown in the evidence and as is well known to the Court over the last three years. I take into account the risk of institutionalisation in setting the structure of the sentence so as to guard against the risk that he will reoffend.
There is clearly a basis for a finding of special circumstances, given the need for a significant period of time under intensive supervision and in the light of the accumulation of sentences which will occur in the imposition of an aggregate sentence which is the appropriate way to deal with the matter.
The orders that I make are as follows:
1. The offender is convicted of each offence.
2. Taking into account a 25% discount, the indicative sentences are:
1. Sequence 1 - three months
2. Sequence 2, taking into account the Form 1 matter (sequence 19), - four months
3. Sequence 7 - three years with a non‑parole period of two years
4. Sequence 8 - nine months
5. Sequence 11 - six months
6. Sequence 17 - 12 months
7. Sequence 27 - 11 months
8. Sequence 28 - 13 months
1. I impose an aggregate sentence of four years and three months to commence on 14 February 2022
2. I impose a non‑parole period of two years and six months expiring 13 August 2024.
3. I find special circumstances.
4. I make the confiscation orders pursuant to the consent minutes.
[3]
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Decision last updated: 27 July 2023