R v Abdul-Hamid

R v Abdul-Hamid - [2023] NSWDC 641 - NSWDC 2023 case summary — Zoe

[10]

First group of offences

There are comprehensive Agreed Facts before the Court in relation to the first group of offences. What follows is a short summary.
In May 2020, police established the strike force to investigate criminal activity in the supply of drugs in the Illawarra region. Police used a number of physical and covert surveillance techniques, including telephone intercepts. The offender was under surveillance between 20 May 2021 and 17 July 2021. He was monitored obtaining prohibited drugs from two upline suppliers, Abass and Tlais.
Investigations revealed that the offender and three others, Brisbane, Trevana, and his wife, Ristevska, were working together to supply of prohibited drugs in the local area. The offender participated in this group by sourcing the drugs from his upline suppliers and directing the activities of others in their supply of the drugs. He would also supply drugs himself.
The Agreed Facts set out summaries of the conversations and the surveillance. They go for some 13 pages. It is not necessary I read them all onto the record. The intercepts reveal he was guarded when conversing with others. Some steps were taken to limit detection, including warnings not to speak about drugs over the phone. But if warnings are given not to speak about drugs over the phone, that somewhat reduces the efficacy of any of the guarded words used because it is fairly obvious the conversation is about is drugs.
Some of the communications however, particularly with upline suppliers, were encrypted and unable to be intercepted or deciphered.
The offender's primary upline supplier was Abass. During the relevant period, he met with him on 13 occasions. He also met with Tlais on three separate occasions.
The purpose of each of the meetings was to facilitate the offender supplying drugs in the local area. Details of each of the meetings are set out in the Agreed Facts. The surveillance was extensive.
It should have been obvious to the offender that, during at least part of the period, police were aware of his activity. For example, on 8 June 2021, he was stopped by police travelling on the Princes Highway at over 140 kilometres per hour. Although no suspicious or unlawful items were detected inside the vehicle, aerial police surveillance captured the offender stopping suddenly shortly before he was pulled over. There is no evidence anything was found in the area he stopped.
The Agreed Facts indicate that the criminal group were using the home that he shared with Ristevska, to store, process, and supply the drugs, which included methylamphetamine and heroin. He would do so himself, or direct others to do so on at least nine occasions. Those occasions were established through a combination of phone intercepts, surveillance, and police stops and people leaving the premises.
The fact that his customers were stopped leaving the premises did not alert him to the fact that he was under surveillance. He continued to commit his crimes. He continued with his coded or brief conversations about prohibited drugs.
Nine supplies are detailed in the facts. It is impossible, on material before me, to know how exactly much was supplied but most appear to involve relatively small quantities. It would appear that most of his dealings were from his own premises.
Two specific counts of supply arose during the period of the criminal group offence. They relate to what occurred on 17 July 2021.
The Agreed Facts set out in summary the fairly extensive police surveillance and the calls between himself and his upline suppliers, and what was done by them that day. He travelled to Sydney. Trevana was in the driver's seat. He was in the front passenger's seat. After the deal had occurred, police stopped and seized the car. That car was transferred to a police holding yard, and the offender placed in custody.
Three days later, during a thorough investigative search of the vehicle. Two battery-operated remote controls were found. Those controls operated a mechanical device under the dash of the vehicle. There police found a hidden compartment. Inside were bags containing the 496 grams of methylamphetamine with a purity level of between 47% and 73%, and other bags containing the 41.76 grams of heroin.
It is accepted that the methylamphetamine was valued at approximately $100,000 (as a conservative estimate) and that if sold individually as points or street deals it could have returned much more; in excess of $200,000. Police are of the opinion that the heroin was worth about $15,000.
Abass was sentenced by Judge Williams SC. I have dealt with others involved in the criminal group.
The offender and Ristevska's house was searched on 17 July 2021 and $28,245 in cash was found. A police opinion expressed in the Agreed Facts is that the amounts found on 17 July, show they are at the upper high level of supply of prohibited drugs. It was noted, there were crude reference detailing money owed, methods and conversations consistent with the supply of prohibited drugs. The conclusions expressed are relative to the experience of the officer, they do not necessarily reflect the experience of the Court. Here we often deal with much higher quantities of drugs and sometimes less.
It is also noted in the facts that items found during the search of the premises were consistent with the personal use of prohibited drugs, as well as supply.

[14]

First group of offences - criminal group

Abdul-Hamid directed the group, making him liable to heavier penalties than the others. The offence of directing a criminal group recognises the risk to community safety posed by criminals acting together, but that said, any drug supply operation requires some cooperation between individuals. The actions captured in the material before the Court went well beyond the supplies, the subject of individual counts. But those supplies are examples of what the criminal group was involved in.
Abdul-Hamid was running the business. He did so for a period of months. He was in regular contact with his upline suppliers. He was directing the others. The activities involved planning. There was some caution, and clandestine activities were taken. But at other levels, it was amateurish and relatively easily detected. The purpose of the group was to obtain and distribute drugs to the local community and profit from such sales.
There was no concern for community safety. It was a significant crime, an example of a mid-range operation, and thus so serious a custodial sentence of some length is required: R v Tuki (No 4) [2013] NSWSC 1864.
Any drug supply offence is serious. Here, the quantity of methylamphetamine supplied is not just an indicator of the penalty range available to the Court, but a significant factor on sentencing. Just under half a kilo of drugs, the large commercial quantity, was possessed. When broken down into saleable units, the drugs would have had an impact on many, many users' families and the community.
While the heroin supplied is of a significantly lower quantity, it too was destined for users in our community. The consequent harm to individuals, and not just to the users, but to their families and the community must be recognised. It is commonly the case, that crimes are committed by users to obtain funds, and the funds available to those who sell drugs in our community generate further crimes.
Care has to be taken not to double count because these two offences are examples of the criminal group's activities. But again, the seriousness of the activity is indicated by them being clandestine, and some sophistication is shown by the hiding places in the car. Those hiding places required some investment for protection of a valuable asset.
Care has to be taken because the only distinguishing feature between the two supply offences is the weight of the different drugs. That weight is recognised in the graded penalty scale available. The drugs were destined for supply from the offender's home. The criminal group material indicates those supplies were small.
But as the Crown point out here, the quantity of methylamphetamine involved indicates that there was a capacity, or intention, to supply in greater than small dose supplies. That is an inference that I am validly able to draw in this matter. Again, these were serious examples of offences of their type.

[22]

Structure of sentence

I have to take care when I sentence for the first group of offences because the criminal group offence accompanies the sort of behaviour that is exampled by the other two matters. They involve the same activity, just in different ways. That first group of offences, therefore, requires consideration concurrence. As I have already noted, the only difference between the supply offences was the nature of the drug and the drug's quantity, both drugs being supplied at the same time and found in the same location.
The other offences, the police pursuit and the further supply requires separate punishment. The supply and the assault also require separate punishment.
I am required to indicate an appropriate sentence for each offence, and to structure the sentence as such that the aggregate sentence is just and appropriate to all of the offender's crimes. Public confidence in the administration of justice requires courts avoiding the suggestion of discount for multiple offending. But there is a principle known as totality which recognises that sometimes simply adding up all of the sentences can result in a sentence that is unduly harsh or crushing. Although, what is crushing often depends on the observer, the community, the offender, or the Appellant Courts: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.
The severity of a sentence is not simply linear. Severity increases at a greater rate than the length of the sentence. For example, a sentence of 2 years has a greater impact than a sentence of 1 year, so far as the punitive aspects are concerned. Abdul-Hamid will get the benefit of that principle.
There must be some concurrence between the groups of offences and the offences within each group. So far as the third group is concerned there must be some independent punishment for the assault on police, which was unconnected to the supply, in a direct sense.
I will soon refer to the offender's subjective case. The length of sentence I must impose means he will need to earn his release to parole because release will be subject to a decision of the State Parole Authority. And that release will only be allowed if community safety concerns are met: Crimes (Administration of Sentences) Act 1999 (NSW), s 136.
He will, after the lengthy period in custody, require assistance in adjusting to normal community life. He has benefited during his most recent period on bail from the rehabilitation program he engaged in. He is presently on a buprenorphine program; which he says is a benefit to him. He will need to engage in relapse prevention and drug programs. But I note that he still has drug offences on his internal Corrective's record.
But the Court has to be guarded in formulating the structure of a sentence. The history before me indicates that apart from his age and the matters I have just referred to, he has not been deterred by prior gaol sentences. And his prospects for reoffending will remain high until, or unless, he deals with his drug problem. And given the history before me, I can have no confidence that he will embrace rehabilitative options. Although, as he ages, it may finally dawn on him that the life he is leading is not one for any human being to lead. There will be a modest finding of special circumstances, but a modest one only.

[23]

Subjective case

I have the benefit of a report from Mr Awit, a psychologist, a letter from a pastor from the rehabilitation service, Pastor Weir, and an unsworn statement from the offender. His father provided a background statement. He was not required for cross-examination.
There is nothing particularly controversial in the offender's statement, but it was not sworn; it was not tested on oath. And, as I will soon get to, he is not an accurate or reliable historian.
There are some matters in his background that are not in serious dispute. He grew up locally. His family did their best to support him. He was subject to harsh discipline in the home. It would appear that while closer to his father, his mother had other concerns. He was disruptive at school, and left school early, obtaining work. By the time he was in his mid-20s, he was clearly using illicit drugs, and he has been a drug addict ever since. It is clear that his drug use has been a primary factor in his life, dominating all other concerns.
He married, but was unable to have children, creating further stresses which both he and his wife dealt with by increased drug use. He appears to have supported himself by buying and selling goods at markets and buying and selling drugs. He has been to gaol on many occasions, and gaol has not deterred him from future offending. He reports a heavy gambling problem, but that is not a matter I can take into account in mitigation.
He spent some time at the Restoration Centre and appears to have benefited from it. Pastor Weir, who clearly sees the goodness in us all, gives him a glowing reference. That reference was not tempered by the fact that he concluded his involvement in the Restoration Centre when he was arrested for possession of a large quantity of heroin - the last offence.
It is clear from the material before me that he is benefiting from the buprenorphine program. He told Mr Awit, at par [16], that while on that program, he is clear headed and thinking clearly, and he is able to see the futility of his past life and able to make plans for the future.
The Crown tendered a report of Dr Furst, which was tendered on sentence in 2015, when he was sentenced by Judge Arnott SC; the matter subject of the Court of Criminal Appeal determination. There are some similarities in the history given, but there were different diagnoses given. The similarities relate to long-term drug use and aspects of his family background. Dr Furst diagnosed him as having a Substance Use Disorder, methylamphetamine dependence, an Adjustment Disorder with Depressed and Anxious Mood.
Dr Furst is a psychiatrist and did not conduct psychological testing. Mr Awit, who is not a psychiatrist, conducted psychological testing. He found evidence that supported a diagnosis of Attention Hyperactivity Disorder, Generalised Anxiety Disorder, Major Depressive Disorder, and Substance Use Disorder. It is not for me to prefer or conclude which of those two diagnosis I accept but they both appear to be based on similar material.
Two reasons for the Crown tendering the earlier report are that in the most recent report, mention is made of traumatic sexual assaults while a child and a history of drug use which is significantly longer than that revealed to Dr Furst. In the absence of sworn evidence from the offender, I could not accept, even on balance, the history of childhood trauma he revealed to Mr Awit. But it is important to note that, so far as Mr Awit is concerned, while he noted that history, his conclusions were based primarily on his testing, not the history.
There is some evidence in Mr Awit's report at par [29] of remorse, in the sense that Abdul-Hamid now accepts what he had done "was wrong" and he has "no excuse for his behaviour". I am prepared to accept that statement because it fits all the material before me and it fits what is recorded by Mr Awit.
Abdul-Hamid at par [29] "readily admits that he did not care at the time of his offending. He was indifferent to it all." He goes on to say "that it is only now being on buprenorphine injections he believes he has a clearer state of mind and understands what [advice] his father" had given, and what he was taught in rehab. Time will tell. That time will be spent in custody.
His background helped form the man that is before the Court today. He has a history of decades of drug and methylamphetamine abuse, supporting himself by drug supply, in terms of income to live on. His long-term drug addiction not surprisingly results in symptoms of anxiety and depression. While courts cannot mitigate an offence because it was committed while under the influence of drugs or drug addiction, drug abuse and substance abuse disorders are psychological conditions, and are relevant to an understanding of how these offences came about and the offender's future prospects.

[24]

Synthesis

Synthesising all of those matters. These offences occurred because the offender did not care about himself and did not care about the community in which he lives. He cared only about his drug use, obtaining and selling drugs to use, and obtain the funds to exist on. Age can change a person. At some stage, sobriety, even if supported by buprenorphine, can change a person and they can pick up and hopefully learn from the advice constantly given by family, members. Offenders can learn if given rehabilitation opportunities.
Mr Awit outlines a plan on p 13 of his report, that involves inpatient drug rehabilitation for a period of 12 months, and individual psychological sessions. Given the length of his period of drug use, Abdul-Hamid will need to attend programs like Narcotics Anonymous. He will need to receive cognitive behaviour therapy. A copy of Mr Awit's report will go with the warrant.
Each crime calls for appropriate punishment to recognise the harm done and the seriousness of the offence. Courts are meant by the severity of the penalties imposed to attempt to deter this offender and others. If ever there was a proof that you cannot gaol your way to the solution of the drug supply problem, it is presented by Abdul-Hamid: W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, "Supply-Side Reduction Policy and Drug-Related Harm" (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1. Despite a lengthy sentence of imprisonment, despite comments by any number of sentencing judges, despite being granted bail, he reoffended in a similar manner time and time again.
His crimes mean that he must be removed from the community. But that removal can only be temporary; one cannot hold a person in gaol longer than the objective seriousness of the various crimes committed. Prisoners have to be returned to the community. It is hoped that as he gets older, and if the plan put forward by Mr Awit can be put in place, with a graduated release to the community, he will be returned to the community a better person then when he went into custody.
As he ages, and as he comes to realise that he has; lost most of his life, lost the capacity to interact with his father and family, and I note his father is ill and would need him around, it might finally sink it that he has to change his ways. But as the Crown say, I must be guarded.

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