plaintiff. El-Achi was convicted of the ongoing-supply and proceeds-of-crime offences, received an 18-month community correction order for the ongoing-supply offence, and was convicted with no further penalty...
Key principles
On the particular facts, imprisonment was not required because the sentencing judge was not satisfied that no penalty other than imprisonment was appropriate under s 5(1) of the...
The ongoing-supply offence was assessed as below mid-range and towards the lower end of the range for an offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985. The...
The sentence imposed was an 18-month community correction order for ongoing supply, with convictions and no further penalty for the proceeds-of-crime offence and the related...
Issues before the court
How serious was the ongoing supply of cocaine?
Was imprisonment required under s 5(1) of the Crimes (Sentencing Procedure) Act 1999?
How did general and specific deterrence bear on sentence?
What weight should be given to the offender’s personal circumstances and mitigation?
Plain English Summary
The court treated El-Achi’s repeated cocaine supplies as serious, but found that he was a street-level supplier and that the offending fell towards the lower end of the range for ongoing supply. Taking account of his age, health, remorse and low risk of reoffending, the judge decided that imprisonment was not necessary. El-Achi received an 18-month community correction order for ongoing supply, and convictions without further penalty for the proceeds-of-crime and related possession matters.
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Deep Dive
2,398 words · generated 02/10/2026
What happened
In R v El-Achi [2020] NSWDC 654, Mahony SC DCJ sentenced Elia Jean El-Achi after guilty pleas to ongoing supply of a prohibited drug, cocaine, under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA), and dealing with property suspected of being proceeds of crime under s 193C(2) of the (NSW). There was also a related possession matter dealt with on a certificate under s 166 of the (NSW).
Cited legislation
No linked legislation citations have been extracted yet.
Crimes Act 1900
Criminal Procedure Act 1986
The supply offence arose from six transactions with a police registered source between 19 November and 12 December 2019. The agreed total was 4.67 grams of cocaine, supplied for $1,850. The quantities on individual occasions ranged from 0.44 to 0.98 grams. The transactions took place on Regent Street, Waterloo. The agreed facts included the offender’s capacity to provide cocaine with little notice, his statement that he could arrange a greater quantity within about 20 minutes, and his direction that the source use a code when contacting him.
On arrest at his home on 3 January 2020, police found 1.24 grams of cocaine in 12 plastic bags and $260 in cash. The cash was subject to a consent order under the Confiscation of Proceeds of Crime Act 1989 (NSW). The offender had two minor drug offences in 1995, but the Crown accepted that he had no significant record of previous convictions.
The sentence hearing included letters from the offender and his family, medical material and a psychiatric report. The judge accepted that El-Achi was 63 at the time of the offences, had worked as a Sydney bus driver for 37 years, had serious ongoing health problems and had suffered a back injury followed by surgery and medical retirement. Dr Jones assessed him as being at the lower end of recidivism risk and did not diagnose an active psychiatric disorder. The judge accepted that the offender was genuinely remorseful, had good character and excellent prospects of rehabilitation.
The final orders were an 18-month community correction order for the ongoing-supply offence, with standard conditions. For the proceeds-of-crime offence and the related possession matter, the court recorded convictions under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) with no further penalty. The judge also made the consent confiscation order. These are the sentence and orders made in this case, not a general sentencing formula.
Why the court decided this way
The judgment’s central task was to assess the objective seriousness of the ongoing supply and decide whether the statutory threshold for imprisonment was met. The judge considered the six separate supplies, the total quantity, the money received, the offender’s ability to respond to requests at short notice, the use of a code, and the evidence that he had regular customers. The court was satisfied that he had been selling cocaine for a period, but was not satisfied beyond reasonable doubt that he sold cocaine every day between 10 am and noon. It also expressly rejected the Crown’s submission that he was substantially involved in supply ([Determination 1]).
The resulting characterisation was important: El-Achi was a “street level supplier”, and the principal offence was below mid-range and towards the lower end of the range for s 25A(1) offending ([Determination 2]). That did not mean the offence was treated as trivial. The judge described it as serious offending, recognised that the quantity exceeded the trafficable quantity, and noted the total financial reward. For the proceeds-of-crime offence, the judge found that the sum was minimal and the offending was at the lowest end of the range ([Determination 1-2]).
The judge also addressed aggravating and mitigating features. The planning or organisation involved in this form of ongoing supply did not aggravate the offence because, on the facts, it did not exceed what would ordinarily be inherent in ongoing supply. The financial gain was likewise not treated as an aggravating factor ([Determination 3]). The judgment accepted that the offender had no significant prior record, was of good character, had excellent rehabilitation prospects and was at low risk of reoffending. It also accepted that he was genuinely remorseful and had taken responsibility. A 25 per cent utilitarian discount was allowed for the early guilty plea ([Determination 3 and following paragraph]).
Section 5(1) of the CSPA was decisive. As the judge stated, a court must not impose imprisonment unless, after considering all possible alternatives, it is satisfied that no penalty other than imprisonment is appropriate. The judge considered the offender’s age, health, personal history, remorse, humiliation following arrest, and the low likelihood of reoffending. On that combined assessment, the judge was “not satisfied that no penalty other than imprisonment is appropriate” ([Determination 6]).
The conclusion did not remove the purposes of punishment. The judge accepted that general deterrence is important for ongoing drug supply and that courts must send a clear message about the seriousness with which Parliament treats such offending. But each case must be decided on its facts. Here, both general and specific deterrence were of diminished importance in light of the offender’s circumstances and the impact of the arrest ([Determination 4]). The court concluded that denunciation and adequate punishment could be achieved by a community-based order ([Determination 7]).
Before and after state of the law
This judgment is a sentencing decision applying existing statutory provisions and cited authorities; it does not purport to establish a new general rule about the sentencing range for s 25A(1). The judgment’s own description of the offence is that s 25A(1) covers a “broad spectrum” of ongoing drug-supply cases ([Determination 2 and 5]). Its analysis therefore turns on the particular features of this offending and this offender, rather than treating the offence label alone as determinative of the sentence.
The statutory starting point identified by the court was s 5(1) of the CSPA: imprisonment is not available unless the court, having considered all possible alternatives, is satisfied that no other penalty is appropriate ([Determination 6]). The judge also referred to the purposes in s 3A, including adequate punishment, deterrence, community protection, rehabilitation, accountability and denunciation. The sentencing conclusion was that those purposes could be met through a community correction order in this case ([Determination 7]).
The judgment also explains how the court treated the general importance of deterrence in drug-supply sentencing. General deterrence remained important in principle; it was not discarded. Rather, its weight was reduced in the individual assessment because of the offender’s low risk of reoffending and the impact of arrest, alongside the other subjective and objective features ([Determination 4]). This is a fact-specific balancing exercise, not a statement that deterrence is generally unimportant for ongoing supply.
The judge considered Kennedy v R [2020] NSWCCA 49 as an example of the range of sentences available for s 25A offences. But the court expressly said it was not strictly comparable: Kennedy involved a young woman with different circumstances, who had ceased drug use and, as the judge described the finding, would not have supplied drugs without police involvement ([Determination 5]). The judgment thus uses the case to illustrate that a range of sentencing outcomes exists, while cautioning against treating it as a direct comparator.
The court also referred to R v Fangaloka [2019] NSWCCA 173 at [57] in connection with the purpose of the 2018 sentencing amendments and the ineffectiveness of short sentences in reducing recidivism ([Determination 7]). The extract does not set out a broader doctrinal history or a subsequent change to the law. Its contribution, as shown by the text provided, is an application of the statutory imprisonment threshold to a particular combination of lower-end objective seriousness and substantial subjective considerations.
Key passages with plain-English translation
The court’s description of the offence’s seriousness is that it was “below mid-range and towards the lower end of the range” for s 25A(1) ([Determination 2]). In plain English, the judge did not treat the repeated supplies as minor, but located them towards the less serious end of the range covered by the ongoing-supply offence. The finding was tied to the facts, including the relatively small amounts per transaction and the offender’s role.
The finding that El-Achi was a “street level supplier” ([Determination 2]) captured the court’s assessment of his position in the supply activity. The judge did not accept the Crown’s characterisation that he was “substantially involved”, although the evidence of regular customers, coded contact and capacity to supply at short notice informed the seriousness assessment ([Determination 1]).
On imprisonment, the judge applied the statutory test directly: “I am not satisfied that no penalty other than imprisonment is appropriate in this case” ([Determination 6]). In plain English, the judge considered imprisonment but was not persuaded that it was the only suitable penalty after considering alternatives and the offender’s circumstances. This was a threshold decision under the statute, not a finding that the conduct did not warrant punishment.
The judge then explained that the sentencing purposes could be met by a “community based order” ([Determination 7]). In plain English, the court considered a community correction order capable of expressing denunciation and imposing punishment while avoiding imprisonment. The orders specified an 18-month term and standard conditions: not committing an offence and appearing before the court if called during the order’s term.
The judgment’s treatment of deterrence is also carefully qualified. The judge said general deterrence is important for ongoing supply, but was “somewhat of diminished importance here” ([Determination 4]). That passage should be read in the context of the court’s findings about this offender, rather than as a general reduction in deterrence for all drug-supply cases.
What fact patterns trigger this precedent
The decision is most directly relevant to sentencing discussions involving ongoing supply under s 25A(1), where the court must assess the offender’s role and the seriousness of repeated transactions. The facts here included six supplies over 24 days, small quantities at each transaction, a total quantity above the trafficable quantity, repeated contact with one police source, and some evidence of regular customers. The offender could provide cocaine with little notice and gave the source a code for future contact. These features mattered even though the court placed the offending towards the lower end of the s 25A(1) range ([Determination 1-2]).
The judgment may also be informative where the prosecution and defence disagree about the offender’s level of involvement. Here, the court accepted that El-Achi had regular customers and had been selling for a period, but did not find that he sold every day or was substantially involved in supply ([Determination 1]). The case illustrates the significance of findings the sentencing judge actually makes, rather than adopting every inference advanced by a party.
The sentence outcome also arose in a particular personal context: an older offender with significant health problems, a long employment history, family support, accepted remorse and strong rehabilitation prospects. The judge found the offender unlikely to reoffend and considered the impact of arrest on him and his family ([Determination 3-6]). The decision does not establish that those features will have the same weight in another case; it shows that they formed part of the combined assessment here.
The proceeds-of-crime matter was distinct and involved $260 in cash. The judge found the sum minimal and the offence at the lowest end of the range, then imposed a conviction with no further penalty ([Determination 2; Orders]). The judgment does not state that this outcome would follow for larger sums or different circumstances.
How later courts have treated it
The supplied judgment identifies no later decision discussing or applying R v El-Achi. Its decision date is 30 October 2020, and the materials provided contain no subsequent case history. Accordingly, later judicial treatment cannot be established from this text alone.
The authorities discussed in the judgment are earlier authorities, not later treatment of El-Achi. The judge considered Kennedy v R [2020] NSWCCA 49 as an example of the sentencing range but distinguished its facts from El-Achi’s circumstances ([Determination 5]). The judge also referred to R v Fangaloka [2019] NSWCCA 173 at [57] in discussing the 2018 amendments and short sentences ([Determination 7]). The Crown’s submissions cited other cases for general propositions, but the judgment extract does not record the judge’s detailed treatment of each of those authorities in the determination.
For a current precedent review, the later treatment would need to be checked in an up-to-date case-law source. No conclusion about whether later courts have followed, distinguished, or limited El-Achi can be drawn from the judgment text provided here.
Still-open questions
The judgment is a discretionary sentence decision on a specific record. It does not set out a tariff or numerical sentencing range for all offences under s 25A(1). A question for comparison in later cases is how courts weigh the number of supplies, total quantity, duration, customer base, capacity to obtain further drugs, and evidence of planning when those features differ from the six transactions and 24-day period here.
The court found that the offender had regular customers and had been selling “for a period of time”, but did not find that he sold every day at the location identified by the Crown ([Determination 1]). The extract does not specify the full extent of any supply to people other than the police source, or how that evidence might alter the assessment in a case with a larger or better-defined customer base.
Another issue for comparison is how courts assess claims that supply was connected to personal drug use. In this case, the judge accepted that El-Achi had commenced personal cocaine use and came to supply cocaine to fund his own use ([Determination 4]). That finding formed part of the subjective background, but the court still found that he had repeatedly supplied drugs and imposed a community correction order. The judgment does not establish that funding personal use will generally reduce objective seriousness or determine the choice of sentence.
Finally, the text records that the judge considered the 2018 amendments and the stated ineffectiveness of short sentences in reducing recidivism, citing Fangaloka ([Determination 7]). It does not explore how that consideration would interact with different levels of risk, more serious supply activity, or different community-based sentencing conditions. Those matters remain dependent on the applicable law and the evidence in each later case.
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Catchwords
Ongoing supply of prohibited drugs
Judgment (9 paragraphs)
[1]
remarks on sentence
The offender is to be sentenced in respect of two offences to which he has entered pleas of guilty as follows:
1. Sequence 7 - Ongoing supply of prohibited drug (cocaine), pursuant to s 25A of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty proscribed is 20 years imprisonment, and there is no Standard Non‑Parole Period.
2. Sequence 9 - Property suspected of being proceeds of crime, pursuant to s 193C(2) of the Crimes Act 1900. The maximum penalty proscribed for that offence is 3 years imprisonment.
There is a related offence (Sequence 8) of possess prohibited drug, pursuant to s 10(1) of the DMTA on a Certificate pursuant to s 166 of the Criminal Procedure Act 1986.
[2]
The sentence hearing
The sentence hearing took place on 15 October 2020. The Crown Sentence Summary became Ex A. It included an Agreed Statement of Facts which may be summarised as follows.
The offender was born on 10 March 1956 and was 63 years of age at the time of the offences. Between 19 November 2019 and 12 December 2019, the offender supplied cocaine on six separate occasions to a police registered source ("RS") as part of a controlled operation as follows:
1. 19 November 2019 - 0.98 grams of cocaine for $400 (purity of 60.5%);
2. 20 November 2019 - 0.88 grams of cocaine for $350 (purity of 50%);
3. 25 November 2019 - 0.95 grams of cocaine for $350 (purity of 59%);
4. 26 November 2019 - 0.48 grams of cocaine for $200 (purity of 54.5%);
5. 5 December 2019 - 0.44 grams of cocaine for $200 (purity of 60%); and
6. 12 December 2019 - 0.94 grams of cocaine for $350 (purity of 57.5%).
Over a period of 24 days, the offender supplied 4.67 grams of cocaine for a financial reward of $1,850.00. The Agreed Facts outline in detail the supply which occurred on each occasion. It is unnecessary to set out all of that detail, however, on 19 November 2019, the RS called the offender's mobile phone and agreed to meet him on Regent Street, Waterloo, to facilitate a drug transaction. When they met, the offender asked the RS where he knew "Anthony" from and the RS said, "Oh, I just gamble with him sometimes". The RS then asked the offender to supply 2 grams and was told by the offender that he only had a half gram, however, he could arrange for the supply of a greater amount in "maybe 20 minutes". Once agreement was reached, the offender handed the RS six plastic bags containing white powder in return for $200. He agreed to supply 1 gram for $350, but told the RS, "but I need to know", meaning that he needed to know beforehand. The offender also told the RS to call or message him using a code, namely, "a full packet of cigarettes or a half packet of cigarettes".
On the next occasion on 20 November 2019, the offender supplied 0.88 grams of cocaine. On that occasion, the offender told the RS inter alia:
"I only carry what I need. Otherwise there is no point … I usually every day in the morning, say from 10am … if you can tell me before 9am it will be even better … Lucky you called me before I left … as I said, I only keep five for the regulars otherwise there's no point carrying with me for no reason … that's why yesterday I didn't have what you needed."
On the next occasion on 25 November 2019, the offender supplied 0.95 grams of cocaine. On that occasion the RS asked, "How long you been doing this for?". The offender said:
"For a while … but only to close friends … if you see Anthony, say hello for me."
The following three occasions of supply followed a similar modus operandi, with the transactions taking place on Regent Street, Waterloo.
On 3 January 2020, the police arrested the offender at his home at Earlwood. He was told that he would be taken to Campsie Police Station and he told police that he wanted to get dressed and requested to use the toilet. After some prevarication, the offender was asked to empty his pockets and the police search revealed, in his right pocket, a clear resealable bag containing a white powder, together with another bag also containing white powder, separate to that. The offender admitted the bags contained cocaine and a further search by police revealed 10 small plastic bags containing a white powder in the offender's right pocket. The offender admitted the bags contained cocaine which was his, and when asked what he was going to do with it, told police:
"What do you think I was going to do with them … eat it?"
The white powder contained in the 12 plastic bags found in the offender's pocket were analysed and confirmed to be 1.24 grams of cocaine. In addition, police also found $260 in cash. That sum is to be the subject of a consent order pursuant to the Confiscation of Proceeds of Crime Act 1989.
Exhibit A also included the offender's criminal history which contained two minor drug offences in 1995.
[3]
The offender's evidence
The offender tendered a bundle of documents which became Ex 1 (1.1 to 1.12). Exhibit 1.1 was a letter of apology from the offender dated 6 October 2020, expressing his "sincerest regret and apology to the court for his offending". He was extremely embarrassed, being the proud father of three children, all of whom he had raised to abide by the law and respect the law and the police. The offender stated that he had struggled with his health over the last six to seven years. He now knows that the use of cocaine was not the appropriate way to handle his pain and acknowledged the seriousness of drugs in the community. The offender stated he was extremely remorseful for his lapse in judgment and criminal conduct, and that he would not re-offend. He stated that he had been humiliated and embarrassed by what he had done.
Exhibit 1.2 is a letter from the offender's wife dated 6 October 2020. She set out the history of their relationship and the fact that the offender had worked for Sydney buses as a bus driver for 37 years. She had worked as a library assistant for 24 years and managed all of the finances in the home. Mrs El‑Achi described the offender as suffering from back problems since 2014. Surgery did not fix the problem and he had ongoing pain.
Mrs El-Achi was mortified to hear of the offender's arrest. She described it as "so out of character, as he was such a dedicated family man" and described him as being extremely embarrassed and remorseful for his conduct. She outlined that the offender had a number of other health problems for which he was prescribed a lot of medication. Finally, she described the offender as "a good man and a dedicated father and husband".
Exhibit 1.3 was a letter from the offender's youngest daughter who is a doctor specialising in obstetrics and gynaecology. An older brother is a bricklayer/builder and is married with two young children. She also has an older sister who is a pre-school teacher. She described the family as a "close loving family unit". Dr El-Achi described that she had achieved highly, and developed high moral standards and a strong work ethic because of the influence of the offender on her as she was growing up. She described him as a "caring, thoughtful and loving son, father and grandfather". She also noted that his health had been deteriorating and that she had observed a change in his demeanour because of increasing pain and the slowing of his physical abilities. She stated that he had taken responsibility for his misconduct, expressed genuine contrition and taken steps to ensure that it does not reoccur. Further, that he was deeply remorseful for his behaviour and the impact that it has on society and his family.
[4]
The Crown submissions
The Crown relied on a written outline of submissions which set out well established principles of sentencing for drug supply offences. It was submitted that s 25A offences are considerably more serious than s 25 offences, and that significant sentences must be imposed to give effect to the clear legislative intention to discourage ongoing trade and supply of prohibited drugs, relying on R v CBK (2002) 135 ACrimR 260 at [56] - [57], approved in Hanna v R [2015] NSWCCA 326 at [117].
The Crown submitted the offender's role and level of criminality is important in determining a sentence, as an important issue going to the assessment of the objective gravity of the offence. The Crown submitted the following were relevant to the assessment of objective seriousness in respect of the ongoing supply offence:
"(a) The offender was always able to provide cocaine to the PRS with little prior notice.
(b) On 19 November 2019, when the offender was not able to supply the full amount of cocaine requested, the offender told the PRS that he would be able to arrange it within 20 minutes.
(c) The offender requested that the PRS use a code when messaging him for subsequent supplies, being a half or full pack of cigarettes.
(d) The offender was able to control the price of the cocaine.
(e) On 20 November 2019, the offender told the PRS that he was in the area every day from 10am until about 11.30am. It is the Crown's submission that the offender was inferring that he was selling cocaine in the area during this time.
(f) The offender told the PRS that he had regular customers.
(g) The offender told the PRS that he had been selling cocaine for "a while".
(h) The cocaine was pre-weighed and packaged."
The Crown noted that the total amounts supplied was above the trafficable quantity for cocaine, and the combined total of the cocaine supplied, together with that found in his possession when he was arrested, was above the indictable quantity. The Crown submitted that the offender was substantially involved in the supply of prohibited drugs, as distinguished from someone who is just following orders. Here, the offender had exercised some decision making, there was a degree of effort involved in the supply and the offender was able to increase his supply of drugs at short notice.
The Crown submitted that the offender completed the transactions with efficiency and took steps to ensure he was not detected by police. All the transactions took place on Regent Street, Waterloo, where he attended every day between 10am and 12 noon. He only carried enough drugs with him for his regular customers and the offender provided the RS with a code to use during conversations and text messages. There was therefore some degree of organisation and forethought in the offending.
[5]
The offender's submissions
The offender also relied on a detailed written outline of submissions to ultimately submit that, given the nature of the offending, the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") had not been crossed and that the offending should be dealt with by way of a Community Corrections Order pursuant to s 8 of the CSPA.
It was submitted that the offending in respect of both offences, pursuant to s 25A(1) (of the DMTA), and s 193C(2) of the Crimes Act, fell at the lowest end of the spectrum of objective seriousness.
The offender relied on the recent decision of Kennedy v R, supra, to submit that s 25A(1) of the DMTA contemplates the widest possible set of factual matrices under which drug supply may occur. In that case, the CCA had upheld an appeal against a sentence of 15 months imprisonment to be served by way of an ICO, and had re-sentenced the appellant, recording a conviction with no other penalty pursuant to s 10A of the CSPA. It was noted that Kennedy was not a strictly comparable case, but that it was informative of the CCA's current approach to sentencing in respect of s 25A offences, and the range of sentences available to the court. The offender also referred to the court's decision in Parente v R [2017] NSWCCA 284 at [95].
The offender submitted that here there were six transactions over a 24 day period resulting in the supply of 4.67 grams of cocaine (at an average purity of 56.9%). A total financial reward for the supplies was $1,850.00, although it was submitted the offender obtained little financial gain from this. The critical determination here was the offender's role which was characterised as "merely that of a low level supplier". It was submitted that the Crown's submission that the offender was "substantially involved" in the supply of drugs should be rejected.
It was submitted the offender had no control over the procurement of the drug. In addition, he only provided cocaine to close friends, although it was unclear over what period the offender supplied cocaine to these individuals or how many individuals he supplied to.
The offender submitted that he was always contacted by the RS and did not actively seek to procure buyers. No indicia of drug supply were found on his person or at his premises and given that it would be illogical in any drug supply matter for the substances to be unweighed and unpackaged, there was no suggestion that the offender weighed or packaged the cocaine himself. It was therefore submitted that the offending fell at the lowest end of the spectrum of objective seriousness for ongoing drug supply cases. Similarly, in respect of the offence pursuant to s 193C(2), the offender was in possession of $260.00 and it was conceded by the Crown that this offending sat at the lower end of the spectrum.
[6]
Crown submissions in reply
In reply, the Crown submitted that it did not rely on Cullen v R, supra, as a comparable case, but rather, relied on the general principle derived from it, that general deterrence was important in sentencing for drug supply offences.
[7]
Determination
Section 3A of the CSPA sets out the purposes of sentencing as follows:
"3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the offending in the supply prohibited drug on an ongoing basis offence, I take into account that there were six separate occasions when the offender supplied small quantities of cocaine to the RS. I also take into account the following matters relied on by the Crown, namely, that the offender was on each occasion able to provide cocaine to the RS with little prior notice and that on an occasion when he was not able to supply the full amount requested, he told the RS that he would be able to arrange it within 20 minutes. Further, the offender requested the RS use a code when messaging and that he was able to control the price of the cocaine. I am not satisfied beyond reasonable doubt that the offender was selling cocaine every day between 10am and 12 noon at the location referred to. I am satisfied, however, that he had regular customers and that he had been selling cocaine for a period of time. I also take into account that the amount of cocaine supplied of 4.67 grams was above the trafficable quantity and that the financial reward was the sum of $1,850.00. It still constituted serious offending, although I am not satisfied that the offender was substantially involved in the supply of prohibited drugs.
Having regard to all of those circumstances, and given that s 25A(1) covers a broad spectrum of ongoing drug supply cases, I find that the offender was a street level supplier and that the objective seriousness of the offending for an offence under that section was below mid-range and towards the lower end of the range for an offence pursuant to s 25A(1) of the DMTA. In respect of the offence pursuant to s 193C(2), the sum of money was minimal and the offending was at the lowest end of the range for an offence under that section.
[8]
Orders
I make the following orders:
1. You are convicted of the following offences:
1. Offence pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (Sequence 7).
2. Offence pursuant to s 193C(2) of the Crimes Act 1900 (Sequence 9).
1. In respect of the offence pursuant to s 25A(1) of the DMTA, I sentence you pursuant to s 8(1) of the CSPA to comply with a community correction order.
2. Pursuant to s 8(1) of the CSPA, the term of that order is to be 1 year and 6 months from today.
3. The Standard Conditions of the order apply:
1. You must not commit any offence; and
2. You must appear before the court if called to do so at any time during the term of the order.
1. If you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be re‑sentenced.
2. In respect of the offence pursuant to s 193C(2) of the Crimes Act 1900, you are convicted pursuant to s 10A of the CSPA with no further penalty to be imposed.
3. On the related matter on the s 166 Certificate of possess prohibited drug (Sequence 8), you are convicted pursuant to s 10A of the CSPA, with no further penalty to be imposed.
4. I order in accordance with the Short Minute of Consent Order pursuant to the Confiscation of Proceeds of Crimes Act.
Finally, you are now directed to attend the court registry where a copy of this order will be explained and given to you.
[9]
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: 30 October 2020
El-Achi was convicted of the ongoing-supply and proceeds-of-crime offences, received an 18-month community correction order for the ongoing-supply offence, and was convicted with no further penalty for the proceeds-of-crime offence and related possession matter; a consent confiscation order was also made.
Exhibit 1.4 was a report from Dr Matthew Jones, psychiatrist, dated 13 October 2020. Dr Jones recorded a history that the offender's life had changed physically following his back operation. He had talked to friends about sexual dysfunction and a friend suggested that he take cocaine to assist him, which he did. The doctor noted:
"He said 'one thing led to another' and he started taking cocaine, not just to assist with sex. He said that he'd been taking cocaine for approximately two and half years."
The offender told Dr Jones that he had a social group of four or five people who had used cocaine and whoever was able to procure it would get it and give it to the other friends. He then told Dr Jones that one day he received a phone call from somebody who said he was a friend of Anthony, and asked if he could assist him. That person asked for a gram of cocaine, which he obtained for him. When the police arrested him, he told Dr Jones that "he took no notice", as he did not think he was selling cocaine, but that he was helping out friends in his own mind.
The offender described the situation as very embarrassing with respect to his family and his wife. He described his wife as being "really pissed off".
The offender reported taking a number of medications, three for diabetes, two for cholesterol and two for blood pressure, as well as two inhalers for breathing problems. He had also been commenced on an anti-depressant. He denied any history of mental health problems.
Dr Jones opined that the offender had no active ongoing psychiatric disorder. He further opined that the offender may benefit from continuing the anti‑depression medication in order to assist him with ruminations and anxiety. It was his opinion that the offender did not have a psychiatric disorder at the time of the offending. He noted that the offender reported that he would be "too scared" to re-offend and this was related to his embarrassment and shame, particularly as it related to his family relationships, and his mature age. He was assessed at the lower end of recidivism risk.
Exhibit 1.5 was a letter from the offender's GP, Dr J Rifi, which set out his multiple chronic medical conditions, which included non-insulin dependant diabetes mellitus, hypercholesterolaemia, hypertension, chronic obstruction pulmonary disease, GORD (gastro-oesophageal reflux disease), depression, cardiac conditions including AV block and mitral regurgitation, heart murmur, osteoporosis, back issues requiring laminectomy surgery in 2015. The report also set out his numerous medications. On 20 February 2020, he had divulged a series of events which led to his arrest, and stated that:
"He had been having issues with his sexual performance and had heard through his friends that cocaine will assist in the issue". He states that he was caught by the police with his dealer with a small amount of cocaine he had purchased for personal use and had no intention of selling/supplying it."
This was clearly an incorrect history and does not accord with the Agreed Facts on which the offender is being sentenced. Urine samples dated 20 February 2020, 16 and 24 September 2020, reveal negative results for cocaine metabolites.
Exhibits 1.7 to 1.12 relate to the offender's back injury and treatment therefore requiring surgery, which led to his at first being on workers' compensation entitlements and subsequently his medical retirement as a bus driver from 23 April 2019.
The Crown submitted that general deterrence should be taken into account in sentencing for drug supply offences given the difficulties involved in detecting drug offences and the great social consequences which flow from the commission of supply of prohibited drugs, relying on Cullen v R [2014] NSWCCA 162. The Crown submitted that the offending fell below the mid‑range of objective seriousness for an offence pursuant to s 25A, but certainly not at the lower end of objective seriousness and was not trivial in nature. The offence of deal with property suspected of being proceeds of crime was submitted to be at the low end of objective seriousness for an offence pursuant to s 193C(2) of the Crimes Act 1900.
The Crown submitted the following mitigating factors apply pursuant to s 21A(3):
"(e) The Crown conceded that the offender is a person with no significant record of previous convictions.
(k) The offender pleaded guilty and accordingly is entitled to a 25% discount on sentence."
The Crown submitted that the s 5 threshold had been crossed and that no penalty other than imprisonment was warranted.
The Crown had reserved its right to make further submissions in relation to the offender's subjective circumstances, being in response to the submissions relied on by the offender.
In her oral submissions, the Crown submitted that the decision of Kennedy v R [2020] NSWCCA 49, relied on by the offender, could be distinguished from the present case. In Kennedy, the offender was a young woman age 20 who had supplied prohibited drugs on three occasions only for $150 profit. In addition, she had a strong subjective case, suffering from anxiety, depression and Chronic Fatigue Syndrome. It was a case where she might never have supplied to anyone but for the police investigation. Here, it was clear that the offender supplied, not only to the RS, but to others. The Agreed Facts set out six occasions of supply for which the offender received a financial reward of $1,850.00. It was therefore submitted that Kennedy was not a comparable case and the offending here was more serious.
In response to a submission to be made on behalf of the offender that he had no control over the procurement of the drugs, the Crown submitted that the submission did not take into account that in the Agreed Facts outline above, the offender had told the RS that he could obtain an increased amount of drugs within 20 minutes. Further, the Agreed Facts referred to him supplying to his "regulars", which the Crown contrasted to the version the offender supplied to Dr Jones, namely, that he only was helping out friends and not selling them cocaine. From this the Crown submitted that it could be inferred that the offender had been dealing for some time. Indeed, the Agreed Facts set out at [3] thereof, that he had been doing so "for a while".
On the question of the offender's remorse and insight, the Crown submitted that he had given several versions of his offending which had to affect any finding of remorse and insight because of his attempts to minimise his offending, for example, to Dr Rifi.
In respect of the submission made on behalf of the offender that he did not have any control over his finances, and was provided an allowance by his wife, the Crown submitted there was no evidence of that fact.
The Crown submitted that based on the subjective material and the Agreed Facts, the offender could not demonstrate a real possibility that he would not have committed the offences without intervention of the RS, and therefore his culpability was not diminished. It was submitted that he was ready and willing to supply any prospective purchaser of prohibited drugs.
The offender submitted that it could not be an aggravating factor pursuant to s 21A(2)(i), that the offence was committed without regard for public safety, relying on Mansour v R (2011) 209 ACrimR 275 per Price J at [49] - [50]. Further, pursuant to s 21A(2)(n), it was not an aggravating factor that the offending was planned or an organised criminal activity, as that was inherent in the charge under s 25A. It was further submitted that as financial gain is an element of s 25A, it cannot be taken into account as an aggravating factor pursuant to s 21A(2)(o).
The offender relied on the following mitigating factors pursuant to s 21A(3):
"(e) It was conceded by the Crown that the offender was a person with no significant record of previous convictions.
(f) The offender was a person of good character.
(g) - (h) The offender has excellent prospects of rehabilitation and is a low risk of re-offending.
(i) Remorse - this was demonstrated by his letter of apology to the court and also the report of Dr Jones, and the letters from his wife and daughter."
It was submitted that the offender had a strong subjective case. He was aged 63 at the time of the offending, and had been a bus driver for 37 years until he was medically retired following surgery to his back, which had not been entirely successful. He also suffered a raft of medical conditions outlined by Dr Rifi and set out above. It was submitted that the offender's use of cocaine arose to assist with his back pain, as well as to improve his sexual performance and general energy levels. Further, the offender did not have control over his finances and was provided an allowance by his wife. As such, he was unable to purchase cocaine and resorted to supplying to a small group of close friends in order to pay for the cocaine that he used. The offender was committed to refraining from use of cocaine and the urinalysis supported his abstinence. It was submitted the court would be satisfied that the offender was committed to remaining drug-free.
It was submitted that where there was a low risk of re-offending, and where the offender had sought medical attention to address the reasons for his cocaine use, specific deterrence was of less relevance in the sentencing process here.
Finally, it was submitted on behalf of the offender, that there was a place for the exercise of mercy in sentencing and that given the offender's age, his ill health, remorse and low level of offending, the court would exercise mercy in its sentencing discretion here. Denunciation and accountability were reflected in his arrest and any sentence to be imposed should not overshadow the age and medical condition of the offender.
In his oral submissions, learned Queen's Counsel for the offender addressed the matters raised by the Crown in its oral submissions. First, before drawing any inferences adverse to the offender, the court must be satisfied of proof beyond reasonable doubt. The sum involved in the proceeds of crime offence was an extremely small amount and could not be linked by an inference to substantial offending.
It was submitted that the different versions given by the offender, for example, to his GP, did not demonstrate a lack of remorse. He was in fact extremely embarrassed and ashamed by what he had done which was understandable given his age and the fact that he had raised a very successful family as an illiterate person.
Further, in all of the circumstances, it was not difficult to understand how the offender had progressed from user to supplier of cocaine. The fact remained that the supplies each involved relatively small amounts.
It was submitted that the Crown's submission relating to general deterrence based on Cullen v R, supra, was misconceived, given the different nature of the supply in that and other cases. Also the court would not accept the Crown's submission that good character was of diminishing significance as a mitigating factor here.
I accept the submission on behalf of the offender that the offending pursuant to s 25A(1) involves being a planned or organised criminal activity and this does not aggravate the offence as the planning or organisation which is inherent in the charge was no more than would ordinarily exceed offences of ongoing supply. Similarly, the financial gain involved does not amount to an aggravating factor. I accept the following mitigating factors apply pursuant to s 23A(3):
"(e) The offender is a person with no significant record of previous convictions.
(f) The offender is a person of good character.
(g) - (h) The offender has excellent prospects of rehabilitation and is a low risk of re-offending. I accept the opinion of Dr Jones in that respect.
(i) Importantly, the offender has shown remorse in his letter of apology to the court, as corroborated by the letters of his wife and daughter. I am satisfied that he has taken responsibility for his criminal behaviour and is genuinely remorseful for it.
The offender is also entitled to a 25% utilitarian discount on sentence for his early plea of guilty.
I accept that the offender has a strong subjective case. He was 63 years of age at the time of the offences. The offender is illiterate and did not attend school past the age of 10 or 11, on account of the untimely death of his father. He worked for a period of 37 years as a bus driver in Sydney, and raised a close and loving family with three children, who have all been successful in their respective lives. Further, the offender had suffered a back injury for which he required surgery which was not entirely successful. He was in the receipt of workers compensation benefits and ultimately his employment was terminated. It was against that background that he commenced personal use of cocaine which ultimately he came to supply in order to fund his own use of the prohibited drug. It was an extremely foolhardy endeavour, particularly in light of his myriad other medical conditions for which he was on multiple daily medications.
General deterrence is important in sentencing for ongoing drug supply offences in that a clear message must be sent to the community that Parliament has proscribed lengthy terms of imprisonment as maximum penalties and that the courts will impose condign punishment in appropriate cases. However, each case must be dealt with on its own facts and I accept the submission made on behalf of the offender that general deterrence is somewhat of diminished importance here, as is specific deterrence, given the impact the arrest of the offender has had on him and his family. I accept he is a low risk of re-offending and is in fact unlikely to re-offend again. The offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty. I also accept that he is entirely remorseful for his criminal conduct.
I also take into account the maximum penalties proscribed for each offence, namely, for the offence pursuant to s 25A(1) of the DMTA, 20 years and/or 3,500 penalty units, and for the offence pursuant to s 193C(2) of the Crimes Act 1900, the maximum penalty of 3 years. The maximum penalties are guideposts in the sentencing process. I also acknowledge, in accordance with the authorities relied on by the Crown, that s 25A offences are considerably more serious than offences pursuant to s 25 of the DMTA.
I accept the submission made on behalf of the offender that there is a wide range of sentences available to the court in respect of s 25A offences. An example of that is the decision of Kennedy v R, supra. However, as noted by learned Queen's Counsel for the offender, Kennedy is not strictly a comparable case with the present. In that case, the offender was a young woman who had, of her own accord, ceased her own drug use and as found by the court, without police involvement would not have been supplying prohibited drugs. She was also vulnerable with significant subjective factors in play. The court upheld her appeal, setting aside the sentence of imprisonment of 15 months to be served by way of an ICO, and recorded a conviction with no other penalty pursuant to s 10A of the CSPA.
I have given careful consideration to whether the threshold in s 5 of the CSPA has been crossed in this case. Section 5(1) provides that a court must not sentence an offender to imprisonment "unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". Usually, in drug supply cases and in particular, in offences pursuant to s 25A of the DMTA of ongoing supply, that threshold is crossed. Here, having regard to the low level of objective seriousness of the offending, the offender's age and medical condition, his significant subjective considerations, which I have set out above, together with the fact that the offender is remorseful for his offending, that he has been embarrassed and humiliated by his arrest for it and is most unlikely to offend again, I am not satisfied that no penalty other than imprisonment is appropriate in this case.
I am therefore satisfied that the purposes of sentencing set out in s 3A of the CSPA, including denunciation of the offender's criminal conduct and ensuring the offender is adequately punished, can be satisfied by a community based order, recognising the harm done to the community by the offender's behaviour. Given his very low risk of re-offending, this accords with the purpose of the 2018 amendments to the Sentencing Act, which had as one of its purposes, the ineffectiveness of short sentences in reducing recidivism - R v Fangaloka [2019] NSWCCA 173 at [57]. Instead of imposing a sentence of imprisonment, I intend therefore to impose a community correction order pursuant to s 8(1) of the CSPA of 18 months in respect of the offence pursuant to s 25A(1) of the DMTA. In respect of the offence pursuant to s 193C(2) of the Crimes Act, I intend to proceed to conviction pursuant to s 10A of the CSPA with no further penalty to be imposed.