Solicitors:
Director of Public Prosecutions - Crown
A Turner Lawyer - Offender
File Number(s): 2013/378635
[2]
SENTENCE
HIS HONOUR: I propose to sentence you to 18 months imprisonment. That sentence will date on my calculation from 8 August 2015 and in relation to that sentence I propose to fix a non parole period of 6 months which will date from 8 August 2015 and expire on 7 February 2016.
Amin Fahmy appears today for sentence in relation to an offence of ongoing supply of a prohibited drug to whit methylamphetamine, a crime committed by him between 22 May 2013 and 30 May 2013 at Bankstown for financial reward. This is a charge brought contrary to s 21A(1) Drugs, Misuse and Trafficking Act 1995 and carries a maximum penalty of 20 years imprisonment. There is no standard non parole period. There is provision for a fine of up to 3,500 penalty units.
The prisoner was convicted of that charge after trial. The Crown had charged him with the principal charge, as I will call it, and alternative counts of supplying the individual supplies that constitute the three supplies that give rise to the charge under s 25A. The jury's verdict of guilty on the principal account thus required no consideration of the alternative counts.
The three supplies, the subject of the indictment, occurred on 23, 27 and 29 May at Bankstown. The individual supplies relate to very small quantities almost, but not quite, the smallest quantities that could be individually supplied, in my experience. The quantities in question, taking the information from the analyst's certificate, were 0.16 grams, 0.14 grams and 0.12 grams. In drug parlance a point is point one of a gram, and although there Is a degree of inexactitude in supplying prohibited drugs, and no doubt a deal of "cheating" by suppliers in the provision of drugs to their customers, generally speaking one would find in most instances the minimum quantity that would be provided of a particular prohibited drug such as methylamphetamine in an individual supply would be around about what is described as a "point", occasionally half a point.
The purity of each particular quantity was respectively 78.5%, 76.5% and 75%, and comment is made in the submissions, both written and oral, about the significance of the percentage purity. I will come back to that shortly.
At the time of the commission of the offence the prisoner was quite young, he was 18 years and between eight and nine months.
In relation to the issue of the high percentage of purity clearly in drug supply matters, as we see them in this Court, ranging from matters of grams, or points of a gram, up to many hundreds of kilograms, the issue of percentage has varying significance. When the quantities of the prohibited drugs, or border controlled drugs, are to be measured in multiple grams, ounces and/or kilograms the high percentage speaks of quantities of drug that would be cut eventually for further on-going supply in larger and larger quantities.
In relation to this, quantities are so small there would be little opportunity for cutting, and it is clear on the basis of the transcripts of the conversations between the prisoner and the undercover officer, that the quantities that the prisoner was supplying - accepting as I do that he himself did not know the purity of the drugs, and certainly did not know the precise percentage purity of the drugs - were intended in the course of supply for the use of the person posing as a legitimate purchaser. Of course the purchaser was an undercover operative, but he held out that he was going to use the drugs for himself and in fact made comments about the quality of the drugs that he had previously been provided.
Thus, in the context of considering this category of offence by reference solely to the issue of quantity which is not the only measure of objective seriousness, one would have great difficulty finding an objectively less serious offence. I have had some isolated cases of smaller quantities but rarely is it so. Normally one is dealing with multiple grams, or, in the case of MDMA and MDA, many dozens or hundreds of tablets and pills being provided on each occasion. The facts of the cases that have been decided in the supposedly "comparative" cases, and other cases to which I can refer, both at first instance and on appeal, reflect this to be so.
In relation to the issue of purity, coming back to that issue again, I do note of course that we are seeing in this Court consistently, particularly over the last four or five years, massively increased levels of purity, not only in relation to methylamphetamine, but in relation to amphetamine-type drugs in tablet form. It is quite shocking nowadays to see MDMA in tablet form consistently with percentages of purity above 60%.
Ten years ago I conducted a trial involving the importation into this country of a million MDMA tablets from Holland, at the time I understand it was the largest seizure of MDMA tablets manufactured overseas. The average percentage purity of the tablets imported from Holland was somewhere between 24% and 26%. It is little wonder - although this is not an MDMA case - that we are seeing distressingly cases of people becoming seriously ill and in fact dying at particular venues having ingested what they believe to be MDMA, or MDA, when the percentage of purity is so high.
In any event there is no doubt, of course, that this prisoner is not responsible either for the manufacture of the drug with which I am concerned, or the importation of the drug with which I am concerned. Making the assumption that these high levels of purity arise because of the quality of the prohibited drug primarily coming out of China in methylamphetamine form, or better methods of manufacture in Australia as is evidenced from time to time.
There are some other features of the facts that need to be noted, and are reflected in part in some of the written submissions that have been put to me, particularly in the Crown's written submission. The prisoner, in committing the offence, the particular supplies with which I am concerned, was using a motor vehicle and a mobile phone service which was involved in other drug supplies involving other people.
The background to the arrest of this prisoner, although this information is somewhat general because I have not been given the full details of the effectiveness of this operation, was that this prisoner's arrest occurred when police were conducting an extensive operation in what I understand to be the Bankstown area and nearby, which ran for a number of months. Apparently a large number of people, although I have not been given the precise details of this, were detected supplying prohibited drugs usually, as I would understand the matter, to undercover officers such as the undercover officer in this case. As I understand the matter the particular motor vehicle driven by the prisoner had been used in other supplies by other suppliers.
The supplies by the prisoner occurred generally in a car park of a shopping centre in the Bankstown area, after the prisoner had been contacted using the mobile phone service to which I have referred, a number that was obviously made available to the undercover officer from previous investigations. It is clear from the character of the trial, and specifics of the charge brought against this particular prisoner, that whatever number of supplies were detected by police, this prisoner was implicated in three of them in the period of time over approximately eight or nine days covered in the facts to which I have referred.
I am quite satisfied that the prisoner was a runner for others. Such profit as would have been made for the prisoner - although there is no clear evidence as to what he received - would have been limited. The undercover officer paid in total $300 for the three quantities of methylamphetamine, although on occasions he was given up to $120 in what is sometimes called 'buy money'. There is a recording available, presented at trial, in relation to each of the transactions during which there was the usual buy and sell banter between drug supplier and purchaser. Some of the comments made by the prisoner reflected a knowledge of the character of the drug and its use.
It should be said the Crown case against the prisoner was completely overwhelming. Of course the prisoner was fully entitled to defend the charge. He cannot be penalised for defending the charge. But, of course, there is no evidence on his part of any contrition that can be safely acted upon. As I understand the matter the basis upon which he defended the charge was that he could not remember at least one of the three transactions that were proven by the prosecution.
This seems to me, with the greatest of respect to the prisoner, a very specious basis for defending the charge when one considers both the circumstantial and direct evidence is overwhelming that the undercover operator on the three separate occasions was clearly dealing with the same person. So whether the prisoner could remember a particular transaction or not to my mind was neither here nor there. People every day in courts across this State and across the Commonwealth of Australia plead guilty to crimes that they claim that they have no "memory" of, for good reason.
In any event I bear in mind that the drugs were intercepted by police and did not make their way into the general community, although that was not the prisoner's intention. I do not accept, for what it is worth, that the prisoner was incompetently represented at his trial. In my view his learned counsel at trial did her very best in very difficult circumstances.
It is conceded in the submissions of learned counsel for the prisoner - if I could deal with that - that there is no suggestion of "entrapment". The prisoner was approached and was willing to provide the drugs that were ultimately supplied. He was clearly a willing participant in the specific supplies with which I am concerned.
As I pointed out, as at May 2013 the prisoner was between 18 years and eight or nine months. He was born, as I understand it, on 1 September 1994. He was born in Egypt. His family are members of the Coptic Christian community in New South Wales. He came to Australia as a young boy and there are details about his family life, both in Egypt and Australia, in the history that he gave to the psychologist which I have taken into account.
His criminal history shows that at the age of 15, particularly in the years 2010 through to 2011, that is between the ages of 15 and 17, there was an intense period of offending, and serious offending it was too. I am mindful of the fact that the matters were ultimately disposed of in the Children's Court but they are not entirely irrelevant of course in sentencing.
On 10 January 2010 he committed the offences of robbery in company, receiving stolen or unlawfully obtained property, and on 7 January 2010 he apparently committed the offence of dealing with property suspected to be the proceeds of crime, and he received various probations in relation to that matter. Those orders were made in July 2011 in the Children's Court. But in December 2011 he was called up in the Children's Court in relation to at least one of those probations when apparently it was revoked or altered.
On 25 March 2010 he committed the offences of resisting a police officer on two occasion in the execution of his or her duty, and the offence of assault occasioning actual bodily harm. In respect of those offences he received probations in the Children's Court.
He was charged again in relation to offences committed only days later on 30 March 2010 of resisting a police officer in the execution of his duty and received a short period of probation.
On 22 August 2010 he committed the offence of assault occasioning actual bodily harm. He also failed to comply with a bail order at a later time and in July 2011 was sentenced to a one month control order. He was back before the Children's Court on the same date in respect of offences committed at a later time, that is on 10 November 2010, including resisting a police officer in the execution of his duty, intimidating a police officer in the execution of his or her duty, and using offensive language near a school or public place.
In relation to those offences he was apparently granted what appeared to be either good behaviour bonds, or short periods of control order. His appeals against the severity of those sentences were dismissed.
On 11 December 2010 he apparently committed the offences of contravening an apprehended domestic violence order, and assault occasioning actual bodily harm, and was sentenced to periods of detention, that is by way of a control order, under the auspices of the Juvenile Justice Department. He again appealed against those orders and those appeals were dismissed in the District Court.
I must say, although I have pointed out the dates of those matters as they are particularised in the criminal history, many of those matters were dealt with on 4 July 2011.
On 19 October 2011 he was charged in relation to an offence apparently committed on 26 September 2011 of breaking and entering, and stealing from a dwelling house. For that offence he was sentenced to a nine month control order with a minimum period of three months, when he appeared at the Parramatta Children's Court on 21 December 2011.
There was another offence dealt with at the same time of breaking, entering and stealing, an offence committed on 5 October 2011, for which he received a 12 month control order with a minimum term of three months.
On 10 December 2012 he was convicted in the Local Court of driving whilst suspended and placed on a s 10 bond for a period of two years in respect of that particular offence.
The Crown's cover sheet indicates that in respect of two separate occurrences, at the time of the commission of the offence with which I am concerned, he was subject to two s 10 bonds. Thus, the offence with which I am concerned was committed in part whilst on conditional liberty. That is obviously an aggravating factor in sentencing in this matter that arises for consideration pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter I shall refer to as the Act.
In relation to his record since the commission of the offence with which I am concerned apparently on 26 June 2013 he was required to appear at court in relation to contravening an apprehended domestic violence order, which was dismissed pursuant to s 10. I am assuming that was a relatively minor matter. He was again before the Courts on 24 August 2013 in relation to driving whilst suspended and given a s 9 bond for a period of 12 months.
The most "relevant" offence in a particular respect is the offence committed by him on 25 August 2013 of supplying a prohibited drug contrary to s 25 Drug (Misuse and Trafficking) Act. For this matter he was sentenced by her Honour Judge Flannery on 2 October 2014, I have read her remarks on sentence. He was sentenced to a term of imprisonment of 15 months, but that was suspended pursuant to s 12 of the Act.
I have been informed by his counsel this morning that her Honour, in her wisdom, determined that there be no action taken in relation to any alleged breach of that bond. I accept of course that the offence with which I am concerned is not a breach of that bond. It was committed before the offence of supplying cocaine, although the prisoner was charged with this offence with which I am concerned after he was charged in relation to the cocaine offence. But of course that crime, admittedly now over two years old, is relevant to the assessment of his prospects of rehabilitation.
Mr Fahmy, I wish you would stop sighing in the dock. This is all concerning you. If you are disinterested that is your problem. But you will just sit there and be quiet please and stop interrupting me thanks very much.
According to the facts in her Honour Judge Flannery's remarks on sentence he claimed that he committed that offence to pay off a debt and he was under a lot of pressure to commit that offence. The offence involved, as I understand it, slightly over 5.3 grams of cocaine, which was of a purity of 28.5%.
Subsequent to committing that offence he has appeared at court in relation to driving whilst unlicensed for an offence, as I understand it, committed on 23 May 2014. He has been given the benefit of another bond under s 10 Crimes (Sentencing Procedure) Act.
I have a pre-sentence report in relation to the prisoner. There was a previous report provided to me at the time of consideration of the bail application, but the primary report I am concerned with is that of 23 November 2015. It gives some details of his personal circumstance. At the time of coming back into custody the prisoner was living with his uncle in the Belmore area, and his uncle is said to have a positive influence upon him.
The Community Corrections Service confirmed that prior to coming back into custody the prisoner had been employed at least for three days a week in the construction industry and when interviewed on 12 November 2014 the prisoner outlined his goals of remaining "abstinent from illicit substances" in completing certificate at TAFE in Building in construction. He has, as his evidence revealed, a desire in the future to develop his own construction company and become involved in property development.
He gave, in various histories, both in his evidence in his history to the psychologist and to the Community Corrections Officer, somewhat differing histories in relation to his use of prohibited drugs. He told the Community Corrections Officer that he had not used crystal methylamphetamine since he was 18 years of age and it should be noted the Community Corrections Officer noted his reluctance to disclose details about his drug use. He made some comments about the circumstances of committing the offences to the Community Corrections Officer effectively blaming his involvement with other people of "negative influence" and stated at the time of the commission of the offences he was "impulsive and immature".
I am prepared to accept if only by reason of his age that he had a level of immaturity but of course one could not regard in total the offending with which I am concerned as "impulsive" given that it involved three separate acts on three separate days.
He seems to now take a view in relation to prohibited drugs that they are in effect "evil" and is against them. If that is a mindset that will prevent him using drugs in the future well then that will be a good thing. It should be pointed out that his early supervision in relation to the s 12 bond was considered to be unsatisfactory. He failed to report. He showed to me a reluctance to comply with court orders when he completely failed a basic test of the bail that I gave him of attending upon a police station to report which would have required only 15 or 20 minutes of his time.
With regard to the Community Corrections' report it notes that he failed not only to report but to engage in psychological intervention that was directed at the time and a breach of that bond was submitted apparently, I assume to her Honour back in December 2014, which is not that long after the bond was granted.
However, it is to be fairly said the Community Corrections report also notes some improvement in his supervision, once that matter was referred to her Honour. Up until the time he came back into custody in October of this year he reflected not only improvement in his relationship with Community Corrections but the evidence before me shows that he was endeavouring to seek some professional assistance particularly in relation to what is a self-evident problem for him, although it is scarcely relevant to the offending with which I am concerned. That is his problem with anger management which he continually shows in this court.
During the interview with the Community Corrections Service he stated that he changed his lifestyle since the commission of this offence and that was the tenor of the evidence that he gave before the court.
The Community Corrections Service said that he was unlikely to benefit from a period of supervision. He would seem to be according to Community Corrections better served by seeking assistance in the outside community from other sources.
So far as his evidence in court was concerned he said that he knew nothing of the purity of the drug, a matter about which I have commented. He told me in his evidence that in 2013 he had been a user of different drugs at different times but he gave an account in relation to the circumstances of this offending which to my mind I could not accept. He shed frankly, little light on the manner in which he was recruited in relation to the current offending.
In respect of his account of his involvement I cannot accept if it be seriously suggested that he was under continuing pressure to involve himself in the offending with which I am concerned, bearing in mind as I have pointed out the supplies being committed over a period of time on three separate occasions.
He gave evidence to me that he would seek to better himself on his return to the community. I believe that he is genuine in seeking to better himself and I have taken that into account. Although the objective evidence that he has produced through his counsel of his performance at TAFE does not really fit very squarely with his statements about what steps he had taken for example during 2015 in relation to his education.
In relation to the change of lifestyle he said that he was anxious to complete the TAFE course but it would appear from the evidence of his mother and other material there might be some unsettled domestic circumstance that impact upon him. The record from TAFE seems to suggest on the part of the prisoner at this point not complete application to the task at hand. I have taken into account of course his aspirations for the future.
His mother gave some short evidence. She spoke as did her character reference in writing of his better qualities. She described in her oral evidence he was a person with a "soft heart" and that he the prisoner helped her on occasions. She believed that he committed the offence because of what was described as "bad friends". She gave evidence I hasten to say through an interpreter. She was questioned by the learned Crown Prosecutor about ongoing problems within the family home. There is some background of domestic dysfunction and the prisoner has given a history to the psychologist of an overbearing, if I may use that expression, attitude of his father. His father may well be a very traditional man and it would be difficult for a young man living in the Australian community to deal with that. The psychologist makes the comment that the prisoner, whilst he does not complain about his upbringing and looks favourably upon it, may well be referring more to the attention given to him by his mother than his father. With regard to the circumstances at his home, it would appear that there have been a number of clashes between the prisoner and his father that led to him living with his uncle.
I have a very detailed psychological report and I have taken that into account. The history of the prisoner as provided by him and some of the conclusions reached by the psychologist. As the Crown correctly pointed out there is no evidence of any cognitive disability. There is no evidence of any mental illness. There is no evidence of any mental condition that can be said to have a causal connection with the commission of the offence with which I am concerned for the purposes of sentencing. The prisoner himself, whilst he reflected upon some depressive symptoms in the past, claimed that he was of good health.
I have taken into account particularly the observations of psychologist at para 31 of her report, concerning general theories and analyses in the literature about the development of maturity. I have taken into account the psychometric testing. The prisoner has on psychometric testing on 'intelligence' which is described as low average. But he reported no problems with executive functioning and he was within the average range in relation to his cognitive abilities.
The formulation of the psychologist was that the prisoner had been exposed to some hardship in his childhood, particularly in his relationship with his father and that he had developed through his teenage years, reflected largely in his criminal history and attitude that required him to be perceived by others as "the big guy". That had as such encouraged him to engage in antisocial behaviours. He was also susceptible to negative peer influence.
The psychologist made some comments about some of these matters relevant to the offending. But her comments are entirely dependent upon the history given by the prisoner. She opines that at the relevant time the prisoner had a poorly developed maturity of judgment and this was a contributing factor to his offending. She made some observations about recent behaviour which to my mind are not fully supported by relevant events, particularly concerning his compliance with bail conditions. She saw his offending in terms of him responding to negative influences. The detail of that of course is not exposed by the prisoner's evidence in this court and particularly his plea at the trial.
I accept her recommendations, however, that the prisoner does require some professional intervention and support to develop both his impulse control, to improve problem solving abilities and to promote his maturity of judgment. If he is to continue with an antisocial lifestyle once he is released from custody there was need for him to develop his employment skills thus he would be encouraged to complete his TAFE course and to seek out the aspirations about which he has spoken.
I mentioned the fact that as the Community Corrections Service reported, he has undertaken a degree of psychological counselling throughout 2015 that is before he came to trial in this court and I have read the report from the psychologists. He is encouraged to continue with psychological counselling. There is opinion expressed about the risk to him of further incarceration which I have taken into account but ultimately it is self-evident the reality of the situation is with him being in custody bail refused at this point and with the period of time previously spent in custody to my mind all matters considered, making an order other than fulltime custody is not practicable or reasonable in all the circumstances.
The report from Western Sydney TAFE reflects the lack of application in his studies to which I have referred, although I do have a reference from the Head Teacher at TAFE that speaks of his skills and the ability of the prisoner to address himself to the task at hand. The teacher in fact speaks well of the prisoner's attendance and punctuality and the teacher felt at the time of the preparation of the reference in September 2014 that the prisoner was in a position to apply himself to the course and do well.
I have taken into account the reference from an employer who speaks highly of his skills and his application to the task and I have mentioned the reference of the mother, the father has also provided a reference which I have taken into account.
I note also it I have reports from religious organisations or religious based organisations with which the prisoner has been in contact concerning his conduct in the past and counselling provided to him.
The 'Exodus Youth Worx' speaks of the endeavours to assist him since he started offending back in 2009, 2010. I have also noted the association the prisoner has had with his church particularly throughout 2015. The reference refers to expressions of remorse which seem to be not consistent with the plea that he entered at the trial. But the reference from the Youth Worker or Director of that organisation is positive about his future. The association with that organisation obviously is a good thing for him but it has not necessarily had a positive outcome. I have also taken into account a reference from his priest which speaks highly of his family and also refers to the remorse expressed by the prisoner.
The learned counsel for the prisoner prepared detailed submissions in writing and there was some supplement of those written submissions. Primarily the submission put in the context of what are observed to be the objective facts was that I should not impose a period of fulltime custody, that the penalty should be either suspended or I should consider assessment for an Intensive Correction Order, assuming of course the threshold for determining that a sentence of imprisonment be imposed, set down by s 5 of the Act had been reached. Counsel has referred to the quantity of the drugs, the limited scope of the dealing the amount of money involved, the youth and immaturity of the prisoner and the objective seriousness of the offending. I have taken those matters into account. I accept other observations made by counsel that the prisoner did not offer to supply larger quantities, did not particularly advertise or particularise what he could supply. The supply to an undercover officer reflected some minor diminution in moral culpability in the sense that no harm was done to the public. He responded to requests rather than instigated supplies, that the level of profit would have been limited.
In relation to the scope of the operation I must say, although I do not necessarily regard this as 'evidence' but no comment was made by the Crown specifically about it, the submissions of the prisoner noted that there were 7,000 telephone calls intercepted in the relevant operation and the prisoner's involvement was limited to three such calls. With regard to the quality of the drugs as I said I am prepared to accept that he had no specific knowledge of that and in any event it is quite clear as each case comes before this court over the last few years that the purity of drugs being sold at street level is considerably higher than it used to be. There was a time 12, 15 years ago when it was regularly the case that methylamphetamine sold at street level was usually below 10% in purity but as I have said earlier we have seen much higher levels of purity now.
Insofar as his prior criminal history is concerned his counsel referred to that, but says that he had no prior drug supply matters which I have taken into account. With regard to his youth and immaturity reference is made to two decisions.
Mr Fahmy are we boring you? Mr Fahmy do you want to wait downstairs, I will complete the sentencing in your absence if you continue to sigh and carry on the way you are carrying on?
OFFENDER: ..(not transcribable)..
HIS HONOUR: I beg your pardon?
OFFENDER: It's nothing don't worry.
HIS HONOUR: I haven't made the final orders yet Mr Fahmy.
I have taken into account the submissions made by his counsel in relation to the relevance of maturity in sentencing. There is a range of authority I need not cite with particularity dealing with the approach of courts to the sentencing of young offenders, particularly in the case of poorly developed or ill developed maturity. His counsel cites the well-known decision of Hearne [2001] NSW CCA 37. Of particular pertinence are the observations of Justice Hodgson then of the Court of Appeal in the decision of BP [2010] NSWCCA, at [4]-[5].
And I have taken the general principles outlined by his Honour in those paragraphs into account.
So far as s 21A matters are concerned, clearly the breach of conditional liberty is an aggravating factor. It is not specifically referred to in counsel for the prisoner's submissions, but I accept his submissions in relation to other matters identified. The issue of planning and organisation is not a matter for which this prisoner is personally responsible and it seems to me with respect that the issue of financial reward to which, or gain to which the Crown referred is an element of the offence.
So far as the aggravating factor of breach of conditional liberty, that matter is one that has to be seen as a matter of degree. The conditional liberty here arises under bonds ordered pursuant to s 10 in the Local Court of course it remains an aggravating factor but is not as serious an aggravating factor as for example an offender committing offences on parole, the parole relating to like offending.
With regard to mitigating factors a number of matters are put.
Some of course arising not directly under s 21A(3) of the Act. One matter particularly identified is the issue of delay. There is substantial delay in this matter. The reasons for that are not fully explained and primarily one would have thought the delay in dealing with this matter has arisen out of the failure of the prisoner to recognise the overwhelming character of the Crown case against him, despite his protestations or explanations for pleading not guilty. This is not a case as might be seen in decisions such as Todd from the early 1980's where there has been an extensive delay and a progress in rehabilitation during that period of delay.
This prisoner, as the Crown pointed out, committed an offence of supplying prohibited drugs after the commission of this offence and although his criminal history in the intervening period of time is nowhere near as bad as it was leading up to the commission of this offence, there has been continued sporadic offending. There was, as was pointed out by Community Corrections, a lack of application to the supervision provided to the prisoner. The prisoner should understand when he is released to parole if he does not want to co operate with Community Corrections that can be fixed up very quickly by the Parole Authority issuing a warrant for his arrest and taking him back into custody for such time as is left in his sentence.
With regard to the issue that is raised by the decision of EF v R [2015] NSWCCA 36, I am mindful of that decision. The learned Chief Judge no doubt in a busy list determined that a term of imprisonment ought be imposed of two years or less without turning his mind, as was dictated by cases such as Zamagias, to the issue of whether he should consider an alternative to full time custody. I have turned my mind to that particular matter but in my view in this particular case, having regard to the objective facts and the subjective circumstances and the myriad of other matters that arise for consideration at this point of time, particularly the fact that the prisoner has been in custody for over four months, that the suspension of the term of imprisonment or consideration of the assessment of the prisoner for an Intensive Correction Order would not be appropriate. I have accepted submissions made by learned counsel for the prisoner that there is a basis for determining that there are special circumstances under s 44 of the Act.
Counsel for the prisoner and the Crown, in the spirit of helpfulness I hasten to say, brought to my attention a large number of what was said to be "comparative" cases. I have sentenced far more people for offences under s 25A than the range of comparative cases referred to by the parties, but having said that I am not drawing any line through anything that I have done and I am prepared to rely upon the comparative cases identified by the counsel as providing the court with some assistance. It would be pointless me going through and naming all the cases, many of them I am familiar with.
The defence in fact refers to a case that the Crown thought was 'a bit too old', a decision from 2000 of Smiroldo which was a judgment of Justice RS Hulme ([2000] NSWCCA 120). An older case it may be, but it should be fairly said that it is a case where Justice Hulme laid down some important and still relevant principles in relation to sentencing in respect to this offending. Of significance Smiroldo does not assist us much in relation to comparative sentencing because of the quantities of the drug in question being significantly higher both either supplied or agreed to be supplied by Mr Smiroldo than I have here. Mr Smiroldo was running his own commercial operation out of his home. But having said that the principles that his Honour outlined about the offence itself are of some pertinence. I am not prepared to get into any debate or even consider the issue of whether methylamphetamine is to be seen as less dangerous as heroin or cocaine.
In this particular case it is entirely irrelevant matter to the ultimate outcome of the offence and I am not sure that the views expressed by Justice Hulme are shared by other judges of the Court of Criminal Appeal from time to time. That having been said, of course, the learned Crown in his written submissions, if I may just turn to them for a moment, quite accurately summarised the position about the use of comparative cases. His submissions refer to a recent decision of Justice Bellew in Ragendra v R [2014] NSWCCA 113.
There, his Honour discussed not only the limited use of statistics which is acknowledged by the Crown and can be seen in judgments such in the decision of Ragendra which I commented upon the limitations of statistics. In fact the learned Chief Justice then of the Supreme Court, Chief Justice Spigelman, in a decision he delivered shortly after his appointment of Bloomfield extensively identified the limitations of statistics particularly on appeal ((1998) 44 NSWLR 734).
Admittedly when you read his comments he is concerned with the limitations of statistics in relation to matters on appeal where the issue of the appropriate sentence and the like involves somewhat different considerations than determining an appropriate sentence in first instance. But many of the comments he made have pertinence to the task that judges such as myself and others are required to undertake on a daily basis. Interestingly enough on the issue of statistics the Crown pointed out that in respect of offences of ongoing supply involving a sample of 312 where all people pleaded guilty the range of sentencing without being told what other percentages apply to non-custodial orders indicated that 79% of offenders received full-time custodial sentences. Obviously it follows from that that 21% of offenders received non-custodial sentences or terms of imprisonment other than full-time custody. But I have not taken the opportunity of doing further research into what the statistics say in greater detail.
Perhaps more pertinence to the exercise with which I am concerned in the context of the great array of information that the parties helpfully provided to the court are the observations of Justice Bellew in the same case at [89] concerning the use of comparative sentencing as a yardstick or indication of what the appropriate sentence should be in an instant case. 'Individualised justice' is still the character of our sentencing task and his Honour pointed out that:
"Every offence and every offender is different and the essential aim of all sentencing is to render individual justice".
In fact the very heart of the guideline judgment rubric is to be found in the decision of Henry at [10] where the learned Chief Justice adopted what Acting Chief Justice Mahoney had said in the decision of Lattouf, to the effect that "if justice is not individual it is nothing". But the comparative sentences provide a useful guide to the range of penalties imposed in some cases given varying circumstances in those particular decisions.
There is one authority perhaps to refer to in this regard and it is the decision of RCW v R (No 2) ([2014] NSWCCA 190) where the Court of Criminal Appeal cautioned judges becoming fixated on a particular case as a comparative case. It is in the same tenor as the observations of Justice Bellew. In any event I have taken into account all the written and oral submissions of counsel for the prisoner in the determination of this matter.
Coming back to the learned Crown Prosecutor's helpful submissions he notes the seriousness of the offence with which I am concerned in the context of its maximum penalty. The maximum penalty of any offence provides a guide to the seriousness with which the legislature and the community regard particular offending. But each case has to be seen on the facts that fit within the liability of the offender for sentence. I particularly note the observations cited by the Crown by Justice Wood in the decision of Kairouz [2005] NSWCCA 247, particularly at [86], adopting observations made in an earlier decision.
No better person could observe relevant matters to sentencing in this area when one considers that it is because of Justice Wood and the work he did in the Royal Commission into the Police Service that we have s 25A. The provision was specifically legislated to overcome the situation where people like 'Bill' Bayeh in Kings Cross could, over a lengthy period of time, supply over hundreds of occasions very small quantities of drugs by runners for example taking the drugs to purchasers and avoid the implications of greater maximum penalties attaching to particular quantities by individual supplies being in small amounts. However, when taken together over a period of time, multiple supplies ultimately providing purchasers with considerable quantities of drug. It could be, I have not sufficient information, that the people that directed the organisation of the matter with which this prisoner is concerned were dealing in a similar way to Mr Bayeh and his colleagues in Kings Cross and elsewhere. But this prisoner is to be held liable for what he did and not for what others clearly were responsible for.
The Crown made various observations about the objective seriousness of the offending in this particular matter but obviously concedes the small quantity involved, the limited number of supplies, it is the bare minimum number of supplies to invoke the legislation. Section 25A could, as I recently determined in a sentencing matter involve a number of supplies in the dozens over a thirty day period.
With regard to one aspect of the Crown's submission there is one comment that should be made. I accept that the transactions in which the prisoner was concerned involved a degree of planning and organisation but there are two aspects of that. It is quite clear that on the basis of the material available to me the planning and organisation of the system of supply was not within the thrall of the prisoner. Secondly, Justice Howie has pointed out in a number of judgments that the very character of the particular offending in the supply of drugs has an inherent quality of planning and organisation, ongoing supply would be such an offence hence the increased maximum penalty.
With regard to the criminal history I accept that his criminal history does not entitle him to any particular leniency although I bear in mind much of his more serious offending occurred when he was younger than he was on this occasion and when he was clearly less mature than he was when he committed the subject offence. His criminal history however is not an aggravating factor under s 21A(2). I point out in relation to his history that most of his serious offending before May 2013 occurred when he was extremely young, dealt with in the Children's Court and was concerned with offending of a different character.
The conclusion the Crown reached in its helpful submissions was that no other penalty other than a term of imprisonment was appropriate. Although as I said the prisoner is not penalised for pleading not guilty, this is not a case where one could factor into the considerations genuine remorse, a discount for example for the plea of guilty if it had been entered at the appropriate time, and it is an offence of its character where some element of personal and general deterrence arises. The significance of the subsequent offending for which the prisoner cannot be penalised as such goes to the assessment of his prospects of rehabilitation and of course the weight to be given to personal deterrence.
I was referred to that line of authority reflected in decisions such as Carrion from 2000, Gip and Gu, two separate decisions of the Court of Criminal Appeal from 2006 and the decision of Fayd'herbe from 2007 where there was reflection upon the observation of Justice Hunt about the need for full time custodial penalties unless there were exceptional circumstances where a person was substantially involved in trafficking and drugs. Fayd'herbe did involve, amongst other offences, one offence of ongoing supply and it is not to be forgotten in Fayd'herbe that the offender was in fact sentenced to a term of imprisonment in excess of two years although the quantities involved were greater than those with which I am concerned here. The issue here is not one of having to determine whether there are exceptional circumstances that might otherwise warrant consideration of a penalty other than full time custody.
It seems to me, although in a minor way, the offending of the prisoner does amount to substantial involvement in trafficking in drugs in the character that I have already identified. But this is a case not determined ultimately solely on the objective facts. This is not a case for example of objective facts that might otherwise point towards a custodial sentence where the subjective case is so powerfully favourable to the prisoner that consideration other than full time custody might fairly arise or it is not a case where it could be said that there are "exceptional" circumstances. It is to be borne in mind even if this prisoner came forward in far more favourable circumstances subjectively, with the benefit of a plea of guilty and remorse and the like, that, as Justice Priestley said in Cacciola in 1998:
"A combination of subjective circumstances each strong in itself does not add up to exceptional circumstances unless the aggregate of all the circumstances point to the case being one of real difference from the general run of cases".
In any event when I have regard to the purposes of sentencing pursuant to s 3A and I have regard to s 5 having determined that I cannot conclude that no penalty other than imprisonment is appropriate.
When I have regard to the mitigating factors which are few, particularly bearing in mind that I could not conclude that the prisoner was a person of good character, the prisoner is unlikely to re-offend, that the prisoner does not have good prospects of rehabilitation and that the prisoner cannot be said to have no record or not any record that is significant, it seems to me that the determination of the matter by the penalty I have foreshadowed is the appropriate way to dispose of it notwithstanding the urgings of his counsel.
Mr Fahmy, you can stand up thanks very much. In relation to the offence for which you have been found guilty by the jury you are convicted, you are sentenced to a term of imprisonment by way of non-parole of six months, that will commence on 8 August 2015, that will expire on 7 February 2016. Excuse me what are you talking about, I do not understand you?
OFFENDER: I thought you said six month parole.
HIS HONOUR: Mr Fahmy would you just keep quiet for a moment and listen. I gave some thought actually to considering whether I should make the order that I foreshadowed in light of your conduct in the dock but I thought it would be unfair to penalise you any further for your conduct.
The balance of the sentence will be 12 months, that will mean that the sentence that I impose will expire on 7 February 2017.
Just take a seat thanks very much. Thus, the sentence is for abundant clarity not six years non-parole but a non-parole period of six months to date from 8 August 2015 to expire on 7 February 2016. I direct that the offender be released to parole on that date. It will be a matter for the Parole Authority as to the conditions of his parole.
Yes Mr Turner?
TURNER: No further matters your Honour.
HIS HONOUR: Anything from you Mr Crown?
PATRICK: No your Honour.
HIS HONOUR: I will consider those matters that you put in a motion Mr Crown, I will make an order in chambers next week.
[3]
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Decision last updated: 23 March 2016