R v Hawat

Facts

1. In the period from 20 July 2021 to 17 August 2021, a period of at least 30 days, the offender made offers to supply drugs on 28 occasions. Most occasions were to supply methylamphetamine. There was one supply of gamma-butyrolactone and one supply is of an unknown drug.
2. The total amount of methamphetamine was at least 177.675 grams. The amount of gamma-butyrolactone provided is unknown. The total value of the supply was at least $60,930. That is the sequence 1 offence.
3. The sequence 2 offence is supplying prohibited drugs on an ongoing basis between 18 August 2021 and 16 September 2021. During that period there were 20 supplies, most of them being of methylamphetamine, but there was also supply of buprenorphine strips.
4. The weight of the methylamphetamine supplied was at least 106.515 grams. The number of buprenorphine strips supplied was 100 grams. The value of these transactions was at least $15,537.
5. Sequence 3 is supply prohibited drugs on an ongoing basis. Sequence 3 is to be taken into account on the Form 1. During the period from 17 September to 16 October 2021 there were eight supplies. There were a number of supplies of methylamphetamine which weighed at least 16.77 grams, a further supply of buprenorphine strips, 51 in total, and the total value involved in the transactions was at least $3,715.
6. Sequence 4 is again supplying a prohibited drug on an ongoing basis. The drugs supplied were mainly methylamphetamine but also more buprenorphine strips and gamma-butyrolactone. During the period from 4 October 2021 to the 2 November 2021, there were 21 supplies. The weight of the methylamphetamine was 63.51 grams. 49 buprenorphine strips were supplied. They were somewhat under four litres of G gamma-butyrolactone supplied and the total value of the transactions was at least $10,240.
7. Sequence 13 is also a matter to be taken into account on the Form 1. A telephone intercept revealed that between 23 July 2021 and 20 October 2021 the offender made nine offers to supply a total of 2,503 grams of cannabis for a total sum of $10,000.

Criminal History

1. The offender has a criminal history, including a conviction for supplying drugs. The upshot of the criminal history is that the offender cannot expect any leniency. According to histories given by the offender to psychologist his offending started when he was a minor but that must be ignored.
2. In reciting the criminal history, I also ignore mere traffic offences but I do take into account driving whilst suspended or driving whilst disqualified because that indicates contempt for the law.
3. On 23 October 2020, the offender possessed a prohibited drug for which he was fined and also for driving whilst suspended. For that he was fined and also disqualified from driving for 12 months.
4. On 4 November 2013, the offender drove whilst his licence was suspended.
5. On 26 December 2013, the offender drove a motor vehicle during a period of disqualification. For that he was fined $1,500 and was disqualified from driving for two years.
6. On 24 February 2014, he was found guilty of possessing a prohibited drug and possession of equipment for administration of prohibited drugs. For those offences he was fined.
7. On 14 May 2014, he resisted an officer in the execution of his duties. For that he was given a bond to be of good behaviour for a period of six months but breached the bond and was sentenced to imprisonment for nine months, commencing on 9 December 2015 and expiring on 8 September 2015.
8. On 14 August 2014, the offender committed drug offences, possessing prohibited drugs.
9. On 15 June 2016, the offender appeared before this Court sitting at Paramatta for offences occurring on 9 January 2014, 23 January 2014, 9 July 2014 and 5 March 2014 and 27 March 2014. The latter two offences was each supplying a prohibited drug in the amount greater than the indictable quantity. The drug was not cannabis.
10. For those offences he was sentenced to an aggregate sentence of imprisonment of 30 months with a non-parole period with conditions of 15 months, commencing on 9 December 2015 and expiring on 8 March 2017.
11. On 21 April 2014, the offender drove whilst disqualified. He drove whilst disqualified again on 1 December 2014 and on 16 December 2014.
12. On 20 July 2014, he committed the crime of aggravated breaking and entering and committing a serious indictable offence whilst he was in company with others. For that offence he was sentenced to imprisonment for two years with a non-parole period of 16 months. That non-parole period expired on 29 September 2017.
13. On 3 April 2019, the offender possessed a prohibited drug. On 23 December 2020 the offender committed an offence of possessing a prohibited drug and driving whilst suspended. On 24 November 2021, he was found guilty of possessing or using a prohibited weapon without a permit. For that offence he was given a community corrections order for two years. I do not know whether the prohibited weapon was anything to do with a firearm or not. Again, no leniency can be given to the offender because of that criminal history, in particular because his previous conviction for supplying drugs.

Personal Circumstances

1. The offender's personal circumstances excite some sympathy. I have before me three reports from three different psychologists. I have one made by Ms Juliet Ardren, who has qualifications both as a psychologist and a social worker. She was qualified by the offender's then solicitors on an application for bail made to the Burwood Local Court. The report bears the date 25 September 2022.
2. The next report I have is from Dr Kim Dilati, another psychologist with a doctorate in philosophy. She prepared a report bearing date 1 June 2023. The third report is from Mr Chafic Awit, who did not examine the offender but has been treating his wife and two of his seven children.
3. Ms Ardren had at least three interviews with the offender spanning a period of five hours. She also had an interview with the offender's wife, Anna, and with his son, Sam.
4. Under the heading "history" Ms Ardren records this: "Thoroughly exploring Mr Hawat's history, inclusive of all past medical, therapeutic and observational investigations, uncovers a childhood riddled with a history of multiple incidents of significant trauma, abject poverty, neglect, and chronic intermittent parental abandonment inclusive of: Mr Hawat was diagnosed with ADHD (attention deficit hyperactivity disorder) at the age of five by clinical psychologist Dr Serfentine. This diagnosis was based upon QEEG brain scans, cognitive processing skills and emotional status. However, due to financial hardship, this disorder remained untreated. Clinical studies have confirmed that there is a strong connection between ADHD and chemical addiction. The National Alliance on Mental Health Illness points out, that in a large majority of cases, the symptoms of ADHD appear before substance use begins, indicating that a high percentage of those with ADHD use drugs and alcohol to cope with the symptoms of having this neurodevelopmental behavioural disorder. Mr Hawat meets all criteria in the DSM for the above-stated diagnosis. Research informs, 'Adults with ADHD and anxiety' are at a higher risk to use substances than their non-clinical peers. Increased levels of impulsivity are generally thought to contribute to their increased levels of risk".
5. For the last proposition the author quoted from the American Journal of Psychiatry published in 1995. She makes further additional comments on the aspect of impulsivity.
6. Further on in the same section of her report Ms Ardren said this: "Further exploring Mr Hawat's childhood, growing up in a cultural milieu of racism and harsh bullying. Mr Hawat stated 'I didn't feel like I belonged anywhere, my parents, I often felt left out and alone'. Mr Hawat experienced poly-victimisation and in my opinion it clearly becomes apparent why substance use, became the remedy and maladaptive behaviour as a coping mechanism for chronic exposure to violence, neglect, bullying, racism and abject poverty. Mr Hawat was born into a Lebanese family, with parents gaining refugee status in Australia after escaping the war-torn country of Lebanon in search of a better standard of living. The eldest of 15 siblings, positioned Ibrahim into duties typically considered to be adult responsibilities. Consequently, Ibrahim had to mature quickly potentially skipping important developmental stages. Studies highlight the impact this can have on self-concept and ego development".
7. One can easily cavil with the use of the adjective "abject" before the noun poverty. Abject poverty is not something that is generally known in this country because of our social security system. That is not to say that it does not occur in certain cases but other histories do not indicate that the offender's parents and his siblings were so badly affected. As I understand it the offender's father worked and worked hard and no doubt needed to work hard in order to raise 15 children.
8. The history recorded by Dr Dilati contains this history: "Mr Hawat provided a brief personal history. He was born in Sydney, NSW, and is the eldest born of 15 siblings from his parents union (with eight sisters and six brothers). His parents were born in Lebanon and migrated to Australia after the war. His parents are alive, well, and reside in Granville, NSW. His father was employed as a boiler maker, however resigned due to his health, whilst his mother was a home maker. As such, he reported a history of financial difficulties. Mr Hawat reported a difficult childhood including history of violence and abusive and harsh discipline by his father. Regarding bonding and attachment, Mr Hawat reported that he was 'the black sheep of the family' and did not identify close relationships or bonding with his parents, siblings or friends. In relation to developmental milestones, Mr Hawat reported major difficulties with learning, literacy, numeracy, disruptive behaviour, attention, concentration and focus during childhood/adolescence which interfered with his learning. He believes he was targeted by peers due to his ethnicity in a mostly Caucasian school environment. He noted a history of suspensions during primary and high school due to not respecting teachers and truancy. He was then expelled during Year 8 and Year 9 for poor behaviour".
9. Dr Dilati thought that there was, on the history provided to her, a diagnosis of attention deficit hyperactivity disorder and conduct disorder and oppositional defiant disorder but was unaware that the ADHD had in fact been formally diagnosed when the offender was five years old. Dr Dilati thought that the offender demonstrated symptoms of both ADHD, conduct disorder and oppositional defiant disorder.
10. The history of Dr Dilati continues thus: "He reported a history of minor fire setting, graffiti, property damage, cruelty towards cats, callous-unemotional traits, bullying, gang involvement during adolescence and early adulthood, violence towards others, 'I got into a lot of fights', and shoplifting 'a few times until I got caught' however was remorseful for his conduct".
11. There was a history given of sexual abuse when the offender was in Year 7 by a male teacher at Macquarie Boys High School however his father did not believe the offender's complaints about that sexual abuse and the offender reported suicidal thoughts after that time.
12. He was sent to Lebanon, to Tripoli, at the age of 13 or 14 for a period of four months. There he was exposed to a traumatic event. He was playing cards at his grandparents' house and a young male neighbour approached them holding his neck, trying to stem a flow of blood from his neck. That young man had been shot by his father and he died at the scene.
13. The offender told Dr Dilati that he was traumatised by that incident which had continued to haunt him and caused him other symptoms before he commenced using methamphetamine. The offender also reported that at one stage he had "a gun stuck to my head" in Sydney and had been bashed with a baseball bat and after he was set upon by four or five other men.
14. After leaving school, the offender commenced a plumbing apprenticeship, but he did not complete it. He then commenced doing formwork carpentry which he had done "on and off" for, according to Dr Dilati's history, about 20 years. His services were terminated on two occasions.
15. When the offender was in Year 7, after he was sexually abused, the offender started using cannabis and alcohol on a daily basis. At the age of 17 or 18 he began using amphetamines, ecstasy, cocaine and heroin recreationally on Fridays and weekends. He ceased that drug intake when he met his wife at the age of 26 or 27, however he relapsed three or four years later because of "financial difficulties".
16. At the age of 32 or 33 he began using methamphetamine, which developed into a daily habit after about 12 months. The offender also gave a history of misuse of Valium before he was incarcerated. He has overdosed on a number of occasions, requiring treatment.
17. The offender has seven children. Two sons, Ahmed, who is 16 and Sam, who is 13. He has daughters who are 19, 17, 12, 9 and 3 years of age.
18. Clearly the offender's conduct has caused substantial damage to his family. I have closely read the psychological report of Mr Awit. It is clear from the history obtained from Dianna Hawat that what has caused her need for psychological treatment for a generalised anxiety disorder and/or a major depressive disorder was the conduct of the offender.
19. She gave this history to Mr Awit: "Ms Hawat advised that after her fourth child was born, she commenced noticing that her husband was not spending as much time with her and the family as he did before. He would spend less time at work, sometimes missing out on work, and when he was at home, he was barely interacting with his family. This is one of the reasons as to why she commenced using contraception. Her husband's dwindling presence at home, and the increasing family led to a number of financial pressures within the home. This led Ms Hawat to developing underlying symptoms of anxiety and depression. They were struggling to meet their mortgage and other financial pressures, and it appeared that her husband was buckling under the pressure. Ms Hawat further recognised her husband becoming a different man altogether. Ms Hawat advised that they had to sell the house when she was pregnant with the sixth child. By this stage, her husband had been taking too many days off from work (she found out later that this was due to his drug use). She didn't know why at the time, and then he lost his [job]. The bank was coming to repossess the home, however she was able to get in early and sold it and paid out the mortgage. More and more pressure kept falling upon them. Since 2013, Ms Hawat and her husband separated on numerous occasions. She advised that she loved him and for the sake of her children, she had to find a way to make it work. The sale of their home, led to exacerbate Ms Hawat's underlying symptoms. Ms Hawat's husband was first arrested in 2013 and was gaoled between 2015-2017 and then again for his most recent offences in November 2021. This all had to do with illicit substances. Ms Hawat expressed mixed feelings about her husband's arrest. In one way it was a relief, because he was becoming paranoid towards the end; however, this has placed the whole pressure of the family on her. At least he was there when she most needed him, and could assist with some things around the house or with the kids. Right now, it's all on her. Ms Hawat is struggling financially to support her seven children, and is barely making ends meet. Ms Hawat has been suffering symptoms of anxiety and depression over the last few years. She has had a shimmer of hope, stating that her husband has undergone some drug rehabilitation in prison and feels perhaps the promises he has made recently to be better, can be achieved".
20. The custodial records tell me that the offender was in prison from 9 December 2015 to 29 September 2017 when he was given parole. During that period the offender did not do anything by way of rehabilitation. Since he has been in custody he has turned a corner, so to speak, in that he has started doing what he can do rehabilitate himself.

Rehabilitation

1. A report, dated 5 August 2022, tells me that the offender commenced with the Offender Services and Programs at John Moroney Correctional Centre to participate in the Remand Addictions Program. He also completed a Domestic Abuse Course on 1 December 2022. He has since 5 December 2022 commenced an Alternative Sanction Program which is a combination program which is described in a number of letters that are contained in Exhibit 5.
2. It involves the Connect Program which consists of a number of sessions which address antisocial attitudes and beliefs, poor self-control, impulsivity and difficulties with self-management, such as poor decision making and lack of interpersonal skills. The program uses dialectical behavioural therapy. There is also an Addictions component which comprises 20 sessions of two hours each. The offender completed the Alternative Sanctions Program on 29 March this year.
3. In February of this year, he also completed a Positive Lifestyle Program run by the Salvation Army. The offender has expressed to psychologists his desire on this occasion to be abstinent from drugs and to turn his life around. He is now 49 years old.
4. According to the Sentencing Assessment Report there is, however, a medium risk of reoffending. The offender has had a very lengthy history of drug abuse and a history of irregular employment with many financial demands upon him that, if they occur again, will no doubt lead to further criminal behaviour.
5. The defence has submitted that the prospects of rehabilitation are good. I would not make that assessment. I would assess the prospects as being fair. The history is not a bright one for rehabilitation but the offender's renewed attitude to rehabilitation is what changes this from a guarded prospect of rehabilitation to a fair prospect of rehabilitation.

Seriousness

1. It is conceded by the defence that the s 5 threshold imposed by the Crimes (Sentencing Procedure) Act 1999, s 5, has been crossed and that the offender should properly be sentenced to a fulltime custodial term of imprisonment.
2. The Crown has submitted that the offender's conduct, that is for the two primary offences for which he stands for sentence, the ongoing supply of prohibited drugs, are towards the high end of the range of objective seriousness. It has been submitted on behalf of the offender that this is a midrange offence.
3. When one adds up the drugs supplied, the numbered of occasions it was supplied, and the value of the supplies one can understand the Crown's submission. However, the methodology employed by the offender was hardly sophisticated. He was using two phones, each of which could be intercepted by the police. He was providing drugs from his own home and from his own vehicle and would often meet people in his garage.
4. The offender told the Community Corrections officer who interviewed him for the making of the Sentencing Assessment Report this: "In relation to the ammunition and pistol part, Mr Hawat denied any knowledge of them being in his possession. He claimed that he is a 'hoarder' but also that 'people come and go all the time, and anyone could have left it there'."
5. However, the offender by his asking me to take into account the offences, acknowledges his guilt. He must have known that they were there. However, the important point to note is that people were coming and going from his garage and property and one can understand that it would be fairly easy for the police to both intercept his telephones and to track what he was doing leading to his arrest for these unsophisticated activities of supply.
6. In Daher v R [2018] NSWCCA 287, Payne JA, with whom Simpson AJA and Johnson J agreed said at [52]: "It is well established that s 25A of the Drug Misuse and Trafficking Act is directed to the business operation of drug supply, meaning that the objective criminality of a contravention of the provision is determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied. It must be remembered, however, the quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance. They take their place beside the number and quantities of individual incidences of supply".
7. Here there was a repetitious behaviour clearly, supplying drugs, but there was hardly any sophisticated system, it was a naive one, nor would it appear that there was any great organisation. True it is that the offender had to obtain the drugs from another source, but he was obtaining the drugs inter alia to support his own habit as well and to do that he had to turn to this illegal activity. However, again the law says that I cannot take that factor into account.
8. The authority against taking into account the fact that the offender turned to illegal conduct to support his own drug addiction is R v Henry (1999) 46 NSWLR 346. I accept the submission on behalf of the offender that objectively the offending conduct falls within the midrange, not the higher range as has been submitted by the Crown. That is because there was hardly any system and detection was easily done by the authorities. There was hardly any organisation at all other than making his phone numbers available to those who wished to obtain drugs.

Hardship to Third Parties

1. A submission has been made that special circumstances exist because of the need of the offender's wife and children to have the offender back to maintain his role in his children's development and perhaps to add to the family income. However, in R v Edwards (2006) 90 ACrimR 510, Gleeson CJ said at 515: "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment".
2. The usual exception on this basis is where the offender is a young nursing mother and the child needs the mother to continue to provide for it. This is not such a case, unfortunately.

Consideration

1. Statistics available from the Judicial Commission tell me that 583 people have been sentenced for an offence contrary to the Drug Misuse and Trafficking Act 1985, s 25A(1). The maximum penalty for the offence is imprisonment for 20 years. There is no standard non-parole period.
2. Of the 583 cases, 47% have resulted in the imposition of an intensive corrections order. 44.8% of cases involved a sentence of fulltime custody. The 80% range of head sentences is between one year and six months and four years imprisonment. The 80% range of non-parole periods is between 12 months and 24 months.
3. In the current matter it is appropriate to impose an aggregate sentence. For the sequence 1 offence, bearing in mind the five other offences that I am asked to take into account on the Form 1, I commence with a head sentence of five years imprisonment. I reduce that by 25% because of the offender's plea of guilty at the earliest available opportunity. That reduces that indicative head sentence to three years and nine months.
4. As far as sequence 2 is concerned, I commence with a theoretic head sentence of two years and six months which, after the deduction of 25%, becomes one year and nine months, rounded down in favour of the offender.
5. The total of the aggregate sentences is five years and six months, that is after the deduction. I have reached the view that the appropriate aggregate sentence should be five years imprisonment. That would result in a statutory non-parole period of three years and nine months.
6. The question then becomes whether I should find special circumstances to break the statutory nexus between the head sentence and the non-parole period. It has been submitted by the defence that the reasons for special circumstances include firstly the risk of institutionalisation, secondly the severity of the offender's addiction to methamphetamine, thirdly the need for a drug rehabilitation upon release, fourthly the need for extended supervision upon release, fifthly the third-party hardship to family members and lastly, the offender's own mental health issues.
7. I agree that the need for drug rehabilitation is paramount and that is best achieved by there being a lengthy period of supervision by Community Corrections on the offender's release to parole, in particular, the ability of the Community Corrections to require the offender to attend a residential rehabilitation program for drug addiction which will highlight and enhance what the offender learns during his period of imprisonment.
8. I have come to the view that the appropriate period of supervision should be two years, such that the non-parole period should be three years. I had, as I have mentioned earlier, thought that the 1 April 2022 was the appropriate date to commence any sentence but I note that the offender was arrested on 4 November 2022 and according to the records from Corrective Services he was in custody between 6 November and 9 November 2022, which would indicate that from the date of his arrest on 4 November 2021 he was in custody until 9 November 2021, a period of five days, so that the sentence should commence five days prior to 1 April 2022.

Sentence

1. Ibrahim Hawat, you are convicted of the crimes to which you have pleaded guilty. I sentence you to imprisonment. I set a non-parole period of three years commencing on 27 March 2022 and expiring on 26 March 2025. I impose a further period of imprisonment of two years to commence upon the expiration of the non-parole period and expiring on 26 Match 2027. The total sentence is therefore five years, comprising the non-parole period and the balance of the sentence.
2. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. I have taken into account in respect of the sequence 1 offence, the matters on the Form 1.
3. For the sequence 6 offence dealing with the property the proceeds of crime, and for the sequence 9 offence, possessing a prohibited drug, namely 15.4 grams of cannabis, I record convictions under s 10A of the Crimes (Sentencing Procedure) Act 1999, but impose no other penalty.
4. By consent, orders in accordance with short minutes of order, which I have executed and left with the papers.
5. HIS HONOUR: Any other orders sought?
6. FAY: Nothing further, your Honour.
7. ANGELOUSKI: Nothing further, your Honour.
8. HIS HONOUR: Thank you.

Amendments 17 May 2024 - Changed 'please' in catchwords to 'pleas'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2024