R v Dahmoul

FACTUAL CIRCUMSTANCES OF THE OFFENDING

1. The factual circumstances of the offending are found in an agreed facts document which is as follows: "The offender in the matter is Akram Dahmoul, a French national lawfully in Australia on a student visa. In October 2017, unit x/xxx William Street, Darlinghurst ('the unit') was rented out through the accommodation website Airbnb by a person named Marc Peyre. Police have been unable to find Peyre. About 2:00pm on Tuesday 3 October 2017, police observed the offender emerge from the lift of the unit with another male, Dylan Cohen. The offender was carrying a light brown duffel bag. The offender proceeded to the door of unit 3, placed a key in the lock and opened the door slightly. Police approached the offender and Cohen. The offender immediately placed the duffel bag on the floor beside him. Police observed an amount of cash protruding from a pocket in the front of the offender's jacket. Form 1: Deal with suspected proceeds of crime ($680 cash) - s 193C(2) Crimes Act Police searched the offender. In his jacket, they located $680 cash in a front pocket. Form 1: Possess prohibited drug (1.42 grams of tetrahydrocannabinol) - s 10(1) Drug Misuse and Trafficking Act Also located in the side pockets of the jacket was a receipt for a storage locker at Kennards, Ultimo, and a small clear resealable bag containing what was thought to be cannabis resin, which was later weighed at 1.42 grams and found to be tetrahydrocannabinol. This is a small quantity. Police arrested the offender and cautioned him. The offender admitted the cannabis resin belonged to him. Count 1: Supply prohibited drug (20,519.4 grams of cannabis leaf) - s 25(1) Drug Misuse and Trafficking Act Police asked the offender what was in the duffel bag they had observed the offender to be carrying. The offender denied that it was his bag and that he had seen it before. Police searched the duffel bag and located a white vacuum sealed bag containing cannabis leaf. The cannabis was later found to be 907.4 grams. Police placed the offender under arrest for the supply of prohibited drugs and re-cautioned him. The offender was conveyed to Kings Cross Police Station. He participated in an electronically recorded interview during which he admitted to possessing the cannabis resin, however denied any knowledge of the duffel bag containing 907.4 grams of cannabis lead. He stated that he did not bring the duffel bag to the location and police must not have seen him carrying the bag, however later stated he can't remember whether or not he picked it up at any time. The offender denied having been inside the unit before. A search warrant was obtained for the unit. Inside the unit police located 21 vacuum sealed bags of cannabis inside a suitcase in the bedroom, a plastic shopping bag containing cannabis and a Systema Tupperware box containing 20 bags of cannabis leaf. The total amount of cannabis located in the unit was 19.612 kilograms. A number of items seized at the unit, including a drink bottle, ice cream stick and cigarette butts. These items were forensically tested and revealed the DNA profile of the co-accused Neil Delleci and another unknown male. The 21 vacuum sealed bags were also tested for fingerprints which revealed the fingerprints of the co-accused Delleci. The accused's fingerprints were not located on the vacuum sealed bags containing the cannabis. The total amount of cannabis found in the unit and in the bag carried by the offender was 20,519.4 grams. Count 2: Supply commercial quantity prohibited drug (246.4 grams 3,4-methylenedioxymethylamphetamine) - s 25(1) Drug Misuse and Trafficking Act Form 1: Deal with suspected proceeds of crime ($184,350 cash) - s 193C(1) Crimes Act On 4 October 2017, police made further enquiries in relation to the storage locker receipt found in the offender's possession. The receipt was for storage locker B194, in the name of Fuat Beyaz. Beyaz is a German national who departed Australian borders on 12 June 2017. The offender continued to rent locker B194, under Fuat Beyaz's name, since June 2017 and was paid up until November 2017. The locker is one cubic metre squared. Police obtained a search warrant for Kennards storage unit B194 at 444 Jones Street, Ultimo. Inside Kennards storage unit B194, police located 246.4 grams of MDMA (3,4-methylenedioxymethamphetamine) and $184,350 in Australian currency. Police obtained CCTV footage from Kennard Self Storage, Ultimo. This depicts the following: On 11 January 2017, the offender and Beyaz are seen on CCTV footage to attend Kennards Storage at 444 Jones Street, Ultimo. Beyaz handed over his passport and rented storage unit B194 for the amount of $75 per month. Storage unit B194 is a small one metre squared locker. On 8 February 2017, Neil Delleci (a French national who was also on a working visa) and an unknown male attended Kennards Storage at 444 Jones Street, Ultimo. The male known to police paid rent in cash for storage unit B194. On 15 April 2017, the offender attended Kennards Storage at 444 Jones Street, Ultimo, and paid rent in cash for storage unit B194. On 12 June 2017, Beyaz left Australia via Sydney International Airport bound for Kuala Lumpur. On 22 July 2017, the offender attended Kennards Storage at 444 Jones Street, Ultimo, and pays rent in cash for storage unit B194. On 23 August 2017, the offender attended Kennards Storage at 444 Jones Street, Ultimo, and paid rent in cash for storage unit B194. Form 1: Supply prohibited drug (lysergic acid, less than commercial quantity) - s 25(1) Drug Misuse and Trafficking Act Police analysed three mobile phones which were found to be in the offender's possession on 3 October 2017 when he was arrested. A number of SMS messages relating to the sale and supply of prohibited drugs were located. A number of these SMS messages advised the buyers to attend the unit as a meeting point to supply the drugs. Within the text messages, police were able to identify an agreement by the offender to supply LSD in the quantity of '2 tabs'. Other police enquiries Police enquiries found that throughout 2017, the offender and Delleci resided together at 11/1 Murray Street, Pyrmont, with Cohen. The offender and Delleci initiated the rental lease on this property together though City Living Real Estate, and were both present upon signing the lease of the premises. This lease was ceased shortly after the arrest of the offender on 3 October 2017. Forensic examination of the various items seized from the unit yielded the following results relevant to the offender: Systema plastic box 'Critical Kush Indica' (Tupperware container) containing 20 bags of cannabis under the sofa in lounge room. The offender's fingerprint was found on the outside of the Tupperware container. White plastic bag containing cannabis - (second cutlery drawer in kitchen) 444.8 grams cannabis leaf. The offender's fingerprints were located on exterior of plastic bag. Blue suitcase with set of scales and variety of different resealable plastic bags in it. The offender and co-offender's DNA was found on the handle. The offender's fingerprint was found on a resealable plastic bag inside the blue suitcase. 26.Forensic examination of the items located in B194 storage locker Kennards, 444 Jones Street, yielded the following results relevant to the offender: Offender's DNA was identified to be at least one of three individuals on a t-shirt which was in the Chivas Regal bag sitting on top of the cash. The offender and co-offender's DNA was identified to be at least one of four individuals on black fabric straps of bag containing some of the cash. The offender's fingerprints on the outside of the Chivas Regal cardboard box which contained the MDMA. The offender and co-offender's fingerprints on exterior of plastic bag containing crystal MDMA in numerous sealed bags. A fingerprint was located on one of the sealed bags containing the MDMA however this person was not identified."
2. It will be immediately apparent that this was serious offending and such was accepted by defence counsel and submitted by the Crown. Particularly, in my view, in relation to the offence that has the standard non-parole period prescribed, the objective seriousness falls below middle range but just below for an offence of its type. Quantity of course is not the only consideration but this amount is about double the commercial quantity but is significantly below the large commercial quantity. He was taking an active role in the supply of prohibited drugs.

CONTRITION AND REMORSE

1. I have considered the aspect of contrition and remorse and in my view he is entitled to this mitigating feature pursuant to s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999: "the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)".
2. Of significance within the material provided by the defence is a letter from the accused himself. He says: "If there is any positive about being in prison, it is the ample time I have had for self-reflection. My time in prison has allowed me to reflect upon my choices and the consequences that my actions have had. Not only on myself, but my family and the Australian community. Coming to terms with my actions has been a long and difficult process. It is one thing to be a drug user and ruin my own life, but it is another thing to sell drugs and ruin other people(sic) lives. I am truly sorry and I understand and accept my punishment whatever it might be."
3. Further there is the following reference in the psychological report which is dated 15 September 2019: "Mr Dahmoul accepted responsibility for his offending, saying 'I don't want to blame anyone' and 'I was doing stupid things, I'm very ashamed of myself'. He said he felt 'disgusted' with himself as he had come to Australia 'for a new life' and 'I feel sorry for everyone I hurt in the community'.
4. The subjective case is helpfully summarised in the defence written submissions and also in the psychological report, and the Court also has the benefit of a Sentencing Assessment Report. I have taken into account all of that material and this will only be a summary of it.
5. He was only 23 years old at the time of offending in 2017; he is now 26 years old. He has a very limited record. He has one offence at Burwood Local Court of possess prohibited drug and also two offences in 2015 in Bundaberg in respect of which he was fined. The Burwood Local Court matter was charge date 5 December 2015, court date 18 February 2016. He was fined. It must be borne in mind that he only came to Australia in 2014, but there is no evidence that he had any criminal record in France. It cannot be said though that he was a person of prior good character.
6. I have already considered remorse. General deterrence must be a significant feature of this sentencing exercise. Unfortunately he, like so many others, has been addicted to drugs and has found it difficult to cease their use. In this respect the letter of his brother illustrates how difficult it is for somebody to overcome this shocking affliction, but as he said in this instance he was supplying drugs into the community.
7. It is to his credit that even though he is still on remand he has undertaken two courses in custody and he has expressed a desire to undertake further treatment programs in custody.
8. I do not find any aggravating factors pursuant to s 21A(2) Crimes (Sentencing Procedure) Act in this case.
9. Drug addiction of course is not in any way justification but it is some explanation for his offending behaviour. Having said this, this was a significant drug enterprise. He has of course been incarcerated in Australia and his brother, as I understand, has been only able to come to this country on one occasion. Mind you, of course if people commit offences here then it is, in serious offences, inevitable that they will go to gaol and they will therefore not have family support. And indeed of course a lot of prisoners, because of the nature of their lives and lives from a very early age, also have absolutely no support in the community. But I do accept his conditions are more difficult in that he only has very limited telephone communication with his mother and is not supported in Australia.
10. A significant amount of consideration was given to the co-accused. When I say co-accused he is in fact really not strictly a co-accused in the sense that he had other offending. Indeed he had a series of offences committed when he was on a bond and then the present equivalent offences when he was on bail for the earlier offences. The Court had been provided with his sentencing bundle but not the subjective material. Her Honour's remarks are part of the bundle. He though had a first group of offences, supply prohibited drug, 7.29 grams of cocaine; supply prohibited drug 7.89 grams of MDMA; supply prohibited drug 0.48 grams of lysergide (54 tablets); supply prohibited drug 181.49 grams of cannabis resin.
11. Two offences committed during that, if they can be describe as the earlier offences, went on a Form, one being supply prohibited drug 441.7 grams of cannabis and the second, deal with proceeds of crime being $2,800. So there were four offences and two on the Form that he committed quite distinctly from the present offender. He was given the benefit of a 25 percent reduction for utilitarian considerations for the plea, unlike the present offender who is entitled only to 10 percent.
12. On the other hand, in the written submissions of the defence there is considerable reference to parity considerations. The first lot of offending for Mr Delleci was 30 May 2017. He did come forward also in relation to the supply prohibited drug cannabis but there it was 19.612 kilograms of cannabis. He also had two further matters on the Form, possess prohibited drug, 3 grams of cannabis leaf, and supply prohibited drug not less than commercial quantity of lysergic acid, 84 tablets, weight 0.73 grams.
13. Defence counsel submitted his childhood was not as traumatic as the offender's which is marked by abuse, homelessness and drug use commencing at a very early age. The other offender was also a serious drug user but he started somewhat later, but not a considerable amount of time. He was found to have limited insight and at the time of his sentence he was predominately focused on the consequences of his offending for himself. The Court was not satisfied that his plea of guilty was a sign of genuine remorse as his attitude to the offending did not support that finding. Her Honour found that his risk of re-offending was guarded.
14. In this case I do not make a finding one way or another as to whether he is likely or unlikely to re-offend. In my view it is very difficult to make such an assessment. In this case it is neutral. However, I am of the view that despite the seriousness of the offending, given positive features, he has reasonable prospects of rehabilitation.
15. I intend to impose an aggregate sentence in this case and of course have taken into account totality considerations.
16. Each of the sentences in the first group, being four in number, attracted a custodial sentence.
17. In my view there are special circumstances in this case, they being his requirement for treatment after a long history of drug use, his requirement also for reintegration back into the community.
18. I should say that I did take into account all of the Crown submissions but I do not accept that it is clear enough that his role was more significant in relation to the common offending than his co-accused. I do not accept the submission that he had a more involved role. Both of them indeed were, as I have said, in the thick of it together - within these number of individuals.

Sentence

1. In my view nothing other than a full-time custodial sentence is appropriate.
2. The offender is convicted. An aggregate sentence will be imposed in this case. I have given consideration to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. I state the following indicative sentences for each offence: Count 1, two years, reduced by 10 percent is one year and nine months. Count 2, attaching the four offences on the Form, six and a half years, reduced by 10 percent is five years ten months, with an indicative non‑parole period of two years 11 months. I impose an aggregate sentence of six years commencing on 3 October 2017 and expiring on 2 October 2023. The aggregate non-parole period is three years commencing on 3 October 2017 and expiring on 2 October 2020.
3. You will be eligible for consideration for release to parole on 2 October 2020.
4. I note that that is a significant allowance for special circumstances of 50 percent, however in my view in all the circumstances of the case, while giving weight to the requirement that the non-parole period is the least possible custodial component, that is the reduction which is appropriate in this case.

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