Mr E James (Counsel for the Offender)
File Number(s): 2021/48633
[2]
Judgment
Jessie Dahdah, who is almost 30 years of age, has been in custody since his arrest on drug charges on 19 February 2021. He pleads guilty, in circumstances justifying a 25% discount on a term of imprisonment, to two offences, the first a count of ongoing supply prohibited drug contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (sequence 1). The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period. To be taken into account on sequence 1, in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146), are five matters on a Form 1, one of deemed supply (sequence 16), two of possess prohibited drug (sequences 17 & 19), one of possess prescribed restricted substance (sequence 20) and one of deal with the proceeds of crime (sequence 21).
The second principal count (sequence 8) is an offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment.
Those maximum penalties are yardsticks in the sentencing process and the purpose of the sentencing, outlined in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be taken into account.
The co-offender has not yet been sentenced so no questions of parity arise.
In short, a police task force investigated the supply of drugs, namely cocaine by the co-offender Shannon Hughes. They revealed that Dahdah acted as a driver for Hughes supplying cocaine on a street level to a number of customers. He typically supplied cocaine in bag weights of 0.62 grams for $150 to $250 each.
At the time he was in full time employment as a real estate agent.
The first matter in time is the supply count occurring on 12 December 2020 (sequence 8) where he was heard doing a deal with an unknown customer, handing over a small plastic bag containing cocaine and receiving cash notes as payment. It is acknowledged by Mr Jones of counsel for him that this probably was a supply of 0.62 grams for something in the order of $150 to $250.
The more serious ongoing supply offence (sequence 1) involves thirteen separate occasions between 15 January and 13 February 2021 in which he supplied either 0.62 grams or 1.24 grams or on one occasion 1.4 grams to individual purchasers. The total amount supplied was 10.08 grams.
The Form 1 matters, firstly, sequence 16, of supply prohibited drug involves 11.72 grams of cocaine found on execution of a search warrant at his premises. Sequence 17 involves a quantity of MDMA capsules also located on the search. Sequence 21 dealing with the proceeds of crime count involves $1,070 in cash which was agreed to be the proceeds of the sale of cocaine.
Pieces of paper were also found on the execution search warrant with columns of handwritten figures which recorded amounts owed by the offender to the co-offender Hughes for the purchase of cocaine.
Sequence 19 involved 9.9 grams of various testosterone products found during the search. Sequence 20 involved 23 grams of clenbuterol also found on the search.
In an interview after his arrest, he admitted having purchased 15 bags of cocaine for $2,000 and making that purchase once every few months. He admitted meeting customers at places depicted in surveillance photos shown to him. He would not identify the people who met with him. He said no comment in response to the allegation that he and Hughes worked together to supply drugs, but he confirmed that the MDMA found at his place was for his personal use and the cocaine found was for supply, as well as his personal use. He admitted to consuming cocaine and MDMA regularly.
His criminal record includes a low range PCA in 2008 and a possess prohibited drug in 2015 dealt with by s 10 bond.
The sentence assessment report shows that he was in a stable relationship, living with his fiancée and her mother at the time of the offences. He was, as I have indicated, employed as a real estate sales consultant but convictions for these charges will inevitably mean the end of that employment. He has been trained and worked as a barber while in custody and hopes to move into that field or perhaps in some real estate field which does not involve the necessity for a licence.
He said his drug use commenced at age eleven when his mother introduced him to cannabis. He smoked cannabis most days from age fifteen and also party drugs such as MDMA. He had an addiction to cocaine from age eighteen. He was using cannabis and MDMA daily. His cocaine addiction would cost him between $1,000 and $2,000 a week.
He expressed some insight into his offending and acknowledged the impact of drug use has on the community. He was willing to undertake intensive correction and community service work and he was assessed as being a low to medium risk of reoffending.
There is a significant quantity of subjective material. The offender has not given evidence and the Crown does not take any point on the history provided in the various documents. Given that his version to the psychologist, Dr Pusey and to the author of the sentence assessment report are consistent with other material being letters, medical reports and an affidavit of his father, it is a reasonable basis upon which to proceed.
His letter to the Court says that he has completed the only drug program that was available while in prison. He intends to fully recover from his addiction and seek treatment with Dr Pusey. He was punched to the side of his face by another inmate in June 2021 which has led to significant dental problems and there is a suggestion of a fractured jaw as a result of this. He says that his parents had no idea about his drug problem, and now that they have spoken about it at length they are willing to help him on release. His father speaks in similar terms, pointing out that he was shocked and disgusted when he found out that his son had been charged with drug offences. Up until this incident he was very proud of him; he was hardworking and was hoping to be married. He assures the Court that he will be under strict supervision of his father and his wife. He points out the difficulties, which are well known to the Court, of incarceration during the COVID pandemic. He refers to a deal of media coverage of the offender apparently because he had been a real estate agent. His father says that his wife, his three siblings all support Jessie's recovery from addiction as does his fiancée.
Dr Zayour, the dental surgeon, says that his dental pain is worsening and he has been unable to get treatment due to the COVID pandemic and this is fairly urgently in need of attention.
There are certificates of his completion of the remand addictions program and hairdressing training. Dr Sayed Khan agrees to regularly review his medication and to administer regular supervised drug tests as required and report the results to Dr Pusey. He supports the intensive program prescribed by Dr Pusey.
Dr Pusey's report is extremely detailed, setting out a childhood which was attended by some difficulty as a result of the divorce of his parents when he was four years old, confirms that the mother was a very heavy substance user and the children were exposed to drugs. After the offender's father became aware of this difficulty he obtained full custody of his sons. Living with his mother was described as being chaotic. He said that "she introduced me to alcohol and offered me pot when I was nine and he knew it was not right then."
He completed his Higher School Certificate and had been employed at Ray White at Bankstown for three years. It was work which he enjoyed. He acknowledged that the majority of his non-work associates were drug users.
Dr Pusey acknowledged that his risk of recidivism was almost impossible to decouple from his risk of relapse in relation to substance use and his vulnerability to continue engagement in this pattern of behaviour and his ability to maintain his current abstinence from substance use in the community is perhaps the most important risk factor in relation to his risk of recidivism. He recommends an intensive forensic psychological treatment plan set out over two pages in his report.
The helpful written submissions of the Crown and Mr Jones do not show a significant contest on the relevant matters to be taken into account on sentencing.
In short, as the Crown points out when looking at objective seriousness the offender was a street level dealer of cocaine who provided street level supplies in the manner and quantity that I have indicated. It is clear, that as in most of these cases, he was doing it for financial gain and not to fund his own cocaine addiction. While a street level dealer is at the bottom of any hierarchy of drug supply, it is nevertheless an important role which enables the wider distribution of prohibited drugs. The Crown acknowledges that given his role was at the bottom of any hierarchy the objective seriousness of the ongoing supply was below mid-range, a view which I accept.
As to the Form 1 matters, I have set out the facts in relation to them.
The Crown does not identify any aggravating factors. In terms of mitigating factors, I take account of there being a limited degree of planning or organised criminal activity. I note his absence of any significant record of previous convictions, the plea of guilty, his reasonable prospects of rehabilitation as acknowledged by the Crown given his family support, his insight into his offending, remorse, and his employment prospects and his acknowledgment of the need to engage in intensive rehabilitation as prescribed by Dr Pusey.
I accept the Crown's submission that he is not necessarily a person of good character, notwithstanding his absence of a significant record.
Given his admitted long term use of prohibited drugs for almost twelve years, during which time his longest period of abstinence was only two months, I accept, as does Mr James, that his prospects of reoffending are guarded in the sense that as Dr Pusey puts it will be necessary for him to engage in intensive treatment to reduce that risk of recidivism.
I take into account the views of Dr Pusey that he suffers from anxiety and depression due to a substance use disorder which has some causal nexus with his offending behaviour, but not such as to significantly reduce any moral culpability.
The ultimate submission put by Mr James, acknowledging that the s 5 (Crimes (Sentencing Procedure) Act 1999) threshold has been surmounted, and that a term of imprisonment is justified was that either time served should approximate an appropriate non-parole period or that an intensive corrections order should be made and adjusted in a way suggested by Simpson J in Mandranis v R [2021] NSWCCA 97. That, of course, firstly involves consideration of the appropriate term of imprisonment. After the discounts to which I have referred the indicative sentences I would impose for sequence 1, including the Form 1 matters is two years and for sequence 8 six months. I would impose an aggregate sentence of two years and nine months.
As Simpson J said, the fact that the offender has spent some nine months in custody involves a modification of the three stage process set out in R v Zamagias [2002] NSWCCA 17 and as well as the purposes of sentencing I must of course look, at the question of community safety as being a paramount consideration, pursuant to s 66 of the Crimes (Sentencing Procedure) Act 1999, in deciding whether to make an intensive corrections order. In my view, there being no evidence that community safety would be compromised by such an order, it would be appropriate to order the term of imprisonment to be served by way of intensive corrections order, adjusting the sentence in the way suggested by Simpson J I will impose an aggregate sentence of two years to be served by way of intensive corrections order commencing today.
So the orders that I would make are:
1. The offender is convicted of each offence.
2. Taking into account a discount of 25% for the plea(s) of guilty, the indicative sentences are:
1. Sequence 1, taking into account the Form 1 matters (Sequence 16, 17, 19, 20, 21): 2 years;
2. Sequence 8: 6 months.
1. Taking into account the period of time already spent in custody, I impose an aggregate sentence of imprisonment of 2 years.
2. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.
3. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
ADDITIONAL CONDITIONS
1. Adhere to a curfew: The offender is to remain at his residence between the hours of 10pm and 5am. The curfew may suspended for the purposes of the offender's wedding and honeymoon in June 2022 as approved by Community Corrections
2. Undertake 200 hours of community service work.
3. Undertake rehabilitation and treatment as outlined by Dr Pusey in his report dated 21 October 2021.
4. Abstain from the consumption of alcohol and illicit drugs.
5. Undergo drug testing as administered by Dr Khan
6. The offender is not to associate with: Shannon Hughes (co-offender).
7. The offender is to report to the OIC at the Liverpool office of CCS by 5pm, Tuesday 30 November 2021.
[3]
SHORT MINUTE OF CONSENT ORDER
1. I make orders pursuant to the Short Minutes of Consent dated 29 October 2021.
Note - Further orders were made in Chambers by consent withdrawing and dismissing back-up offences.
Further note - These extempore remarks were revised without access to the court file.
[4]
Amendments
17 October 2022 - Unique personal identifier redacted at [33].
17 October 2022 - Unique personal identifier redacted at [33].
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: 17 October 2022