R v Chami; R v Hassoun; R v Halloum

Subjective Cases for the offenders

1. None of the offenders gave evidence and put themselves forward for testing on the histories and matters going to their subjective case. I bear in mind statements in cases such as R v Qutami (2001) 127 A Crim R 369, Imbornone v R [2017] NSWCCA 144 and others as to the use to which this material can be put generally. As to the subjective cases that are put here, it is clear and it is accepted that if there was material set out in untested reports as going to an assessment of objective gravity, that it is not on oath and referred to second-hand it could not be relied upon as was said in Qutami. However aspects of reports or statements as to an offender's family background, work and personal affairs, if they are relatively uncontroversial and relevant to prospects of future risk, they may be taken into account as giving the Court some understanding of the offenders as people, their reactions to imprisonment and their future prospects and it is the sort of material frequently and regularly presented in sentencing proceedings without the need to be supported by evidence on oath. However, if a psychologist's report or some other document uncritically parrots claims by an offender who does not give evidence, that is entitled to little or no weight. In some cases, there have been expressions by judges as to whether psychologists are appropriately qualified to put forward psychiatric diagnoses, but it is not necessary for the Court to make a determination as to that issue here.
2. In general as to the subjective cases here, particularly where it is consistent with other objective material or supported by statements of other people, I accept that as a reasonable basis upon which to assess the subjective case with some exceptions such as those pointed at by the Crown as to general statements about very significant gambling or drug habits to which I will refer.

Chami

1. Mr Chami has no relevant criminal record other than two minor matters in 2009 of assault an officer and resist police for which he was fined.
2. A sentencing assessment report contains a summary of his subjective history which are also set out in other documents.
3. Mr Chami described to the author of the Sentencing Assessment Report a close and supportive family relationship. He has previously worked in the cleaning and telecommunications industry. He described problematic drug dependency (cocaine and methamphetamine). He said that his participation in criminal conduct was to fund his drug dependency. He was assessed as being in the medium to low risk of re-offending.
4. His history is expanded in the report of a psychologist, Sam Albassit. He went to school until year 10. He then commenced an apprenticeship for about six months before terminating the course. He then went on to begin another apprenticeship in Sheet Metal work for about two years; he did not complete the apprenticeship. He started hanging around with the wrong crowd and started using drugs. He said his illicit drug use escalated when he left home and moved to Canberra at age 18.
5. He was married at the age of 20. He has two young children. He had a cleaning business and then went to work in the rigging industry. He says by the time he was 26 his drug use was spiralling out of control. His wife was not privy to his substance use. The psychologist diagnosed gambling disorder and substance dependence disorder and prescribed an intensive treatment program.
6. His General Practitioner, Dr M Hawi, says that he has presented in the past with manifestations of anxiety disorder and has a significant family history of anxiety and depression, which makes him more vulnerable to a mood disorder.
7. While in custody he has undertaken remand addiction courses and TAFE courses.
8. His mother provided a lengthy affidavit which is unchallenged by the Crown. She first describes her shock at the offending. She describes him as hard-working family man. She described a difficult relationship with his father who is a very tough man. She hoped that he had turned his life around when he got married. She said every time she has spoken to her son he has expressed shame and regret as to what he has done. She has seen him many times since he was arrested and he is always apologising for what he has done. He tells her that he is aware of how harmful drugs can be. He says that he has been drug-free while in custody and there is no evidence of any positive drug test while in custody. She expresses confidence that he will not re-offend.
9. Pastor Beaumont, the Chaplin at Clarence Correctional Centre speaks highly of Mr Chami. He describes how he is actively and positively with others whilst in custody.
10. Further references from people who have known him before his arrest speak to the significant mistake that he has made and their surprise at his offending.
11. The offender also wrote a handwritten letter to the Court expressing remorse for his irresponsible and dangerous conduct which he cannot understand or explain. He says that due to his mental health he turned to drugs and gambling which made him vulnerable and causing him to commit the actions. That is objected to by the Crown quite properly and Mr Ozen SC puts it as a submission, in the absence of testing on that proposition. As such it is difficult to accept that as a purely causative matter, but he does express how sad he is at the effect of his actions upon himself and the community, given the time that he has to reflect on matters while he has been in custody.

Halloum

1. A Sentencing Assessment report was prepared for Mr Halloum, after contact with his wife and review of his Corrective Services records. He comes from a large supportive family; his wife is a positive influence on him. He had stable employment as a painter. He expressed to the author of the report his regret for the negative impact the offence has had on his family. He was assessed as being a medium to low risk of re‑offending.
2. He has had two significant matters on his criminal record, a kidnapping and robbery in company offence committed in July 2009. He was sentenced in October 2011; for the kidnapping offence he was sentenced to a term of imprisonment of 32 months, with a non-parole period of 15 months and a term of imprisonment of four years and six months, with a non-parole period of two years and three months for the robbery in company offence.
3. At a late stage in the proceedings Mr Ozen tendered some bank records showing significant cash withdrawals at various hotels by Mr Halloum, consistent he his purported gambling habit.
4. There was also a report from Sam Albassit in relation to Mr Halloum. His parents divorced when he was about four years old. His father had been diagnosed with schizophrenia; he would come back into their lives sporadically to abuse them. His second eldest sister was also diagnosed with schizophrenia. His mother essentially raised him and his ten siblings alone. He recalls a traumatic incident when he was nine years old and his father came home and assaulted his five sisters and mother with a metal pole; he was subsequently arrested. He left school and got a job working at a convenience store at age 15, then did a few years of a painting apprenticeship until he was imprisoned at 18. At age 22, he began using illicit substances, initially cannabis then cocaine and MDMA. His business started to suffer and his drug use escalated. He said his habit had escalated into tens of thousands of dollars a week, but I treat that with some scepticism​​​​​​​ as the Crown points out in the absence of evidence as to that being financially possible.
5. The psychologist said he has been showing symptoms of substance dependence for about six years and a mixed anxiety and depressive disorder. He acknowledges that he has led a destructive lifestyle fuelled by substance abuse and dependence, and he was provided a comprehensive treatment plan.
6. A psychologist also provided a report in relation to Mr Halloum's wife, the mother of his three and a half year old son. She described some difficulties after the birth of her son and undoubtedly difficulties since the arrest of her husband.
7. There is also a lengthy extract of his Corrective Services records, which show that he has been conducting himself very well while in custody. He has undertaken a number of programs and has been appointed to the trusted position of being a sweeper.

Hassoun

1. Mr Hassoun also has no record to speak of, although in 2009 he was dealt with in relation to offences of assault police officer for which he was fined. Otherwise he comes before the Court, as does Mr Chami, as a man of good character.
2. The Sentencing Assessment Report points out his extensive studies; he has completed tertiary degrees in arts and science and a Masters of Secondary Teaching. He was employed at a private school, then he lost that position and ultimately became a provider through the National Disability Insurance Scheme. He made no attempt to the author of the Sentencing Assessment Report to justify or minimise his offending behaviour and he expressed remorse frequently.
3. He was using several grams of cocaine on a regular basis and gambling, again up to several thousand dollars in a day. In the absence of specific evidence as to the source of such gambling activities and the testing of it, it is also something which should be treated with considerable scepticism. He did identify for the author the impact of his offending behaviour and a willingness to undertake intervention. He was also assessed as being at medium to low risk of re-offending. He wrote a lengthy letter of apology to the Court, accepting full responsibility for his offending.
4. He had a car accident which resulted in orthopaedic injuries and led to him having difficulties completing the necessary curriculum whilst he was working as a teacher which ultimately led the school board to ask him to resign. The loss of his job led to an increase of his depression levels which resulted in an increase in drug use and gambling. In relation to his offending, he said he saw what he felt was an opportunity to pay off debts and that it was the worst decision of his life; he is ashamed of it. He did, as indicated, obtain a certification as an NDIS provider after an extensive vetting process. Strangely the checking process did not pick up what he says was a significant gambling addiction.
5. He says that when he arrived in custody he was immediately made a wing delegate and has remained in a position of some trust and seniority as a sweeper at Shortland Correctional Centre. He has accepted his fate and that the only way to make it better is to come out stronger and rebuild his relationship with his family and with the community.
6. His younger sister provided an affidavit and she says that he confided in her at an early stage his gambling addiction and witnessed his downfall. She says that the loss of his teaching job led to the deterioration of his mental health. Text messages from September 2019, during the period of the offending, demonstrate, as Mr Lange submitted, that he was borrowing money and describing himself as being mentally in a position of some difficulty and needing money, and that is some corroboration for his claims of gambling addiction and mental health difficulties. Hassoun's sister says that his arrest obviously has caused a massive strain on the family and she has concluded that he knows the seriousness of his involvement in crime and that she expresses confidence that he will focus on finding work, and that with the support family he will not re-offend.
7. His wife also swore an affidavit. She says about a year before his arrest she began to noticed that he would stay up late and hide his spending from her and she was finding receipts from the casino and pubs in their room which she found odd because he was not a drinker. She realised he was gambling and this became worse over time when he became agitated when she confronted him. She noticed his mood declining. She describes a significant motor accident in October 2019, shortly before his arrest. The accident involved her and her son. Not surprisingly she described the trauma of her young son growing up without a father being in his life and the difficulties with contact visits particularly during the COVID-19 pandemic over the last year, as have the other offenders.
8. A number of character references are provided by people who have known the offender as a teacher or as a student over the years and they uniformly speak favourably of him.
9. There is a report from Dr Olav Nielssen, a psychiatrist, who as usual took a detailed history and diagnosed a substance use disorder in remission and a gambling disorder. He said he was in remission on the basis of his detention in a drug-free environment but it was a disorder known to have psychological effects and the complications of substance use including impaired social and occupational function, involvement in illegal activities and the role of the use of stimulant drugs on uncontrolled gambling.
10. The material tendered from Mr Hassoun also contains bank records showing, according to Mr Lange's submissions, significant cash withdrawals at the Star Casino, consistent with a gambling habit.

Submissions

1. I have been assisted by written submissions from the Crown Prosecutor and from Mr Lange, but for reasons which escape me not prepared by Mr Ozen SC, who did make oral submissions.
2. The Crown points out, of course, that the standard non-parole period is a significant matter to be taken into account as well as the maximum penalty. The standard non-parole period represents the non-parole period for an offence in the middle range of seriousness, taking into account only the objective factors.
3. Counsel have taken me through a number of statements as to the reasoning of the court in various drug supply sentence matters. As McCallum J said in Pham v The Queen [2013] NSWCCA 217 at [27], "The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said, as recently explained by Latham J, the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act: see R v Calcutt [2012] NSWCCA 40 at [60]."
4. Here the large commercial quantity threshold is 1kg, both Mr Halloum and Mr Chami acknowledge involvement with 2.6kgs of cocaine, comprising the 1.224kgssupplied to customers via runners and the balance located at the three houses.
5. As to objective seriousness the Crown correctly points to the fact that the offenders were responsible for the day-to-day running of the syndicate and directing the activities of other members of the syndicate. Chami was responsible for the handling of the bulk cocaine and managing the safe houses used by the syndicate. Halloum was responsible for managing one of the two call centre phones. Chami was responsible for transporting the bulk cocaine between two residences and he is responsible for collecting the proceeds of sales from the runners, paying the runners on occasions, and together with the others who were responsible for the recruitment, induction and rostering of the runners that worked for the syndicate. The offending covered a period of some four months.
6. Halloum acknowledged his involvement with the 2.63 kilograms of cocaine in a similar fashion to Mr Chami, and similar factors apply in the Crown submission to the objective seriousness of the offending.
7. As to Mr Hassoun, it is true, as Mr Lange points out, that he was not involved in some significant parts of the enterprise. His criminality does not extend to the drugs located at the two safe houses at Bankstown and also there is no evidence that he ever attended the two houses at Bankstown and he does not appear to have been responsible for the handling of the drugs or the receipts of the sales.
8. I find the objective seriousness for all three is approaching mid-range. Notwithstanding the Crown submissions that Halloum and Chami's offending was mid-range, I find that it is slightly below that.
9. The Crown points out that general deterrence is obviously a very significant matter to be taken into account in the sentencing process.
10. Mr Ozen's submissions put that both his clients have been victims of the drug trade and then became a part of servicing it. Notwithstanding the reservations that I have about accepting all of what they have put in various sources, I think that is probably a reasonable inference to draw, given the absence of any significant evidence of excessive pattern of spending or conspicuous consumption or a lavish lifestyle. That of course, as counsel for all offenders acknowledge, does not in any way excuse the serious offending in which they were involved. As Mr Ozen puts, in an operation such as this all the participants are assumed to be trusted members, but the addition of that qualification does not really assist in terms of characterisation of offending or role.
11. I accept, as Mr Ozen acknowledges, that the untested expressions of remorse and contrition are to be given some weight.
12. Mr Ozen provided the Court with statistics covering a range of some 200 cases and dealt with sentencing decision in two particular cases of supply of large commercial quantity being Hurmz v The Queen [2017] NSWCCA 235 and Lee v The Queen [2019] NSWCCA 106.
13. In Hurmz Beech-Jones J (at [27]) analysed a survey or a compilation of some 26 cases concerning sentences for supply of large commercial quantity, pointing to factors going in various directions as a result of those cases and referred to the undiscounted starting points for sentence for a number of cases given the different objective and subjective circumstances of those cases.
14. The statistics are of course are a blunt tool and provide a very broad indication of the sentences which have been imposed without indicating anything about the objective or subjective circumstances of the cases behind the statistics.
15. To a very limited extent I accept the disadvantage in the family upbringing of Mr Halloum and goes to a slight reduction in moral culpability.
16. As Mr Ozen also points out, the actions and behaviour of the Chami and Halloum since they have been in custody, in addition to simply expressing their remorse and regret, provides some support for those expressions.
17. To a similarly limited extent in the case of Mr Chami and Mr Hassoun there is a modest reduction of moral culpability, evident in the light of their subjective circumstances as I have outlined.
18. In each case there is a basis for a finding of special circumstances. In the cases of Mr Hassoun and Mr Chami it is their first period of full-time custody and all three offenders have demonstrated a need for a significant period of supervision and some form of treatment to ensure that they reintegrate themselves into society.
19. In relation to each of the offenders, given the assessments by the authors of the sentence assessment report and the material to which I have referred, and in the light of the significant period of custody that they have had and will have to reflect upon things, I am satisfied that their prospects of rehabilitation are reasonable and they are unlikely to re-offend once they are released into the community.
20. I acknowledge the significance of general deterrence and specific deterrence in these cases.
21. I have taken into account as mitigating factors the good records of Mr Hassoun and Mr Chami, and the pleas of guilty which have been entered by each of the offender, to which I have already referred.
22. The facts that I have outlined and the subjective circumstances of each case justify the proposition that Mr Halloum's role is slightly higher in the hierarchy of offending than the other two and his significant prior record is also a matter which does not entitle him to the degree of leniency which is otherwise afforded to Mr Hassoun and Mr Chami. To a very limited extent there is a reduction in the role and position in the hierarchy of Mr Hassoun compared to Mr Chami for the reasons set out by Mr Lange,to which I have referred.
23. For those reasons the orders that I will make are as follows:

Ahmed Halloum 1. Mr Halloum is convicted of the offence. 2. Taking into account the 25% discount for the plea of guilty, I impose a sentence of eight years and three months, commencing on 4 November 2019. 3. I impose a non-parole period of five years, expiring 3 November 2024. 4. I find special circumstances.

Mohommed Chami 1. Mr Chami is convicted of the offence. 2. Taking into account the 25% discount for the plea of guilty and the Form 1 matter, I impose a sentence of seven years and ten months commencing 4 November 2019. 3. I impose a non-parole period of four years and eight months expiring 3 July 2024. 4. I find special circumstances.

Nouril Hassoun 1. Mr Hassoun is convicted of the offence. 2. Taking into account the 25% discount for the plea of guilty, I impose a sentence of seven years and six months commencing 4 November 2019. 3. I impose a non-parole period of four years and six months expiring 3 May 2024. 4. I find special circumstances. Note - These extempore remarks were revised without access to the court file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2021