Mr Djemal (Counsel for the Offender)
File Number(s): 2019/72367
[2]
Judgment
Omer Bilir, now aged 27 years old, appears for sentence having pleaded guilty to one count of supplying 2,001 grams of cocaine, an amount exceeding the large commercial quantity, under s 25(2) of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years imprisonment. These penalties are yardsticks to be taken into account in the sentencing process, which is carried out against the background of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999.
There is a Form 1 offence of dealing with $378,535, reasonably suspected of being the proceeds of crime, contrary to s s 193C(1) of the Crimes Act 1900, which carries a maximum penalty of five years imprisonment, with no standard non-parole period.. The Form 1 offence will be dealt with in the way suggested by the Chief Justice in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
The plea of guilty was entered at an early stage, justifying a discount of 25% for the utilitarian value of the plea. I have seen a confidential affidavit from a senior police officer which justifies a further 5% discount under s 23 of the Crimes (Sentencing Procedure) Act 1999. I will say no more about that matter as these remarks are being delivered in open Court.
At the time of the offending the offender, Mr Omer Bilir, was living with his parents and sister in Hillsdale. He went with his girlfriend to Thailand on 2 February 2019 and returned on 13 February. A search warrant was executed at the premises at Hillsdale at 6.40pm on 15 February. Omer was seen about 200 metres away walking a dog. He fled and was pursued. They searched the residence and found a number of items, including two bricks of cocaine, with a purity of 85% and 84.5% respectively. He was in possession of that cocaine for the purposes of supply. They also found $378,515 in cash stored in his bedroom. He was in possession of all that cash in circumstances where it is reasonably suspected to be the proceeds of crime. He was arrested on 11 March 2019 and has been in custody since that date.
It is common ground that a term of full-time imprisonment is required, and it is unnecessary for me to consider any alternatives and the term of imprisonment should commence on 11 March 2019.
The only matter on his criminal record is an aggravated break and enter, commit a serious indictable offence in 2011. He was given a s 12 bond.
The offender did not give evidence on the sentence proceedings. and relies on a history set out in the psychologist's report, which is consistent with a significant quantity of corroborative material from other people and is a reasonable basis on which to proceed. He said at the time of his offending he was subject to a number of pressures as a result of the family business failing and his mother's poor health. He was taking drugs and partying. He said people that he knew had offered him money and drugs to store the cocaine and money found in his home, which he agreed to do in the light of his substance use and his family's financial difficulties.
He was born in Australia to Turkish parents. He had a normal upbringing. He completed year 12 at school and worked as a concreter and painter. His father bought a truck and operated a business for which he worked for some five or six years until that business failed. He has been working odd jobs since that time. He has support from his partner of many years standing, who visits him in custody most weekends. He started using alcohol at the age of 18 and progressed to Valium and occasional use of ecstasy.
The psychologist said that he gravitated towards going out as an escape, and started to use alcohol and other substances which brought him into contact with the criminal subculture, but he is not inherently antisocial. His risk of reoffending is relatively low.
He is experiencing emotional difficulties, which is not unexpected after entering into custody for the first time. He wrote a lengthy letter of apology to the Court in which he describes reflecting on his actions and his behaviour. He expresses shame, disappointment and regret for his behaviour. He acknowledges that he is sorry for his role in allowing drugs to enter the community and he recognises the harm done by drugs in the community. He says that he will accept whatever sentence the Court thinks fit, and he understands that sentences are needed to set an example of his conduct and to protect the community. He will use his time productively to maintain a healthy and sober lifestyle. It is rare that one finds an offender so frank with the Court about one's capacity to accept the sentence to be imposed.
His sister, speaks favourably of him as a responsible person who has expressed sincere remorse and regret, as does his father in an affidavit which is unchallenged. His partner, who has known him for some 20 years, describes him as honest and loyal and caring, and recognises that they are qualities one does not usually hear used to describe people facing serious criminal charges. She explains the trip to Thailand as being a present from her mother, and no adverse inference is drawn from that entry in the agreed facts.
The solicitor for the offender, Mr Joyner, describes the effects of the restrictions imposed on people in custody as a result of COVID‑19 pandemic, since March this year. He has no family visits. He has only very limited six‑minute phone calls. He has been able to undertake a drug and alcohol rehabilitation course and, as is now clear, the experience of custodial conditions are much more onerous and unsettling than prior to the onset of the COVID‑19 pandemic.
Marie Carter speaks on behalf of Isaiah Carter, who has been diagnosed with Down syndrome, ADHD and foetal alcohol syndrome, of the positive influence the offender has been for Isaiah in guiding him through life.
I accept the Crown's submission that the offending is below the mid-range of objective seriousness, having regard to a number of factors including the quantity and purity of the relevant drug, the fact that he was trusted with a large quantity of cocaine of high purity, as well as with large amounts of money. He was clearly above the level of a street supplier. The Crown concedes that the evidence does not show that he had a role more serious than that of a courier or storeman, but he was serving a role in the higher echelons of a drug syndicate. It is acknowledged that the offending was committed for financial gain in the absence of evidence to the contrary, but the Crown does not submit that that is an aggravating factor.
The other material found in the house and described in the agreed facts, including numerous mobile phones, an MDMA testing kit and a number of balaclavas indicate, as the Crown says, a broader involvement than the mere temporary storage of cocaine, and goes to the extent to which the Court can find that he was involved in and trusted by a criminal syndicate.
The Crown accepts that he was of relatively good character, which is taken into account in his favour. The Crown accepts his version as to a history of drug use and his efforts at rehabilitation since his arrest. The Crown correctly points out that the Courts must emphasise specific and general deterrence in the sentencing exercise for serious drug offences, recognising the impact that they have on the community, but the Crown acknowledges the need to balance those matters against the prospects for rehabilitation that this offender has displayed.
Mr Djemal helpfully points out that the Form 1 offence of money laundering does not include the mental elements of knowledge or recklessness that the money was from illegal activity, so that that is not taken into account in any De Simoni (R v De Simoni (1981) 147 CLR 383) sense. He also points out, when considering the objective gravity, that there were no drug ledgers or indicia of him having a role to play in the distribution of the drugs. He submits that the storage would only have been for a short time, as he had only returned from Thailand two days earlier, but there is no basis for that finding, in my view. It may equally have been probable that they had been in his possession for some time before then, but it is not a matter of any great significance one way or the other.
Ultimately, the Crown does not challenge the assertion that he was storing the drugs, and there was no evidence to suggest trafficking in drugs or substantial involvement in the supply of drugs. The two kilograms were, as Mr Djemal notes, towards the lower end of the spectrum for a large commercial quantity, which includes amounts from one kilogram to hundreds of kilograms. While Mr Djemal says that the case is not dissimilar to a courier who possesses drugs for a short period of time, he was in possession of a very significant quantity of high purity drug.
His drug addiction and financial hardship made him more vulnerable to involvement in the offending, as Dr Peter Ashkar noted in his report.,
As was noted in Rakielbakhour v DPP [2020] NSWSC 323, he has been denied access to the usual privileges of family visits while in custody, amid all the consequences of the COVID-19 pandemic. This has increased his anxiety and led to more onerous custodial conditions. These were recently addressed in his customary eloquent form of by Haesler DCJ in R v Strickland [2020] NSWDC 164, where his Honour said,
"As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits have been suspended for an indefinite period … Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities who have complete control over their lives. These concerns and considerations apply to every prisoner sentenced and for sentence"
As his Honour said, the lack of visits reduce the capacity of offenders to remain in contact with pro-social friends and family and heightened anxiety and concerns are relevant factors to be synthesised along with the other matters.
As his Honour went on to say that the trade in illicit drugs causes considerable harm, not just to those who purchase and ingest drugs, but to the community in general, and is one of the principal sources of crime in the community. As such a retributive sentence is required, a sentence which marks the Court's view of the seriousness of the crime and notifies other wrongdoers that retribution will be visited upon them if they commit similar crimes.
I take into account the facts and the outcomes in cases put forward by Mr Djemal of R v Garland [2018] NSWDC 437, R v Qi [2019] NSWCCA 73 and R v Strickland [2020] NSWDC 164 which, as he submitted, do not establish the range, but indicate some sentences for matters with some relevant factual similarities to the present.
I take into account a number of mitigating factors; including his relatively good record, as conceded by the Crown. He is unlikely to reoffend and his prospects of rehabilitation are good. He has pleaded guilty and has demonstrated remorse. There is clearly a basis for a finding of special circumstances, given this is his first period of full-time custody and he requires continued treatment and supervision for his long term rehabilitation.
The orders that I make are:
1. The offender is convicted of the offence.
2. Taking into account the Form 1 matter, I impose a sentence of imprisonment of 4 years, 8 months, to commence on 11 March 2019.
3. I impose a non-parole period of 2 years, 8 months, expiring on 10 November 2021.
4. I find special circumstances.
Note - These extempore remarks were revised without access to the court file.
[3]
Amendments
21 September 2020 - File number corrected on cover sheet
22 September 2020 - Following a review of the court file and transcript, the sentence orders on the cover sheet and at [25] were corrected to reflect the orders made.
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Decision last updated: 22 September 2020