R v Ibrahim

Procedure

1. This matter first came before me in Sydney on 24 January 2020. Although documentary evidence was tendered on that occasion, the state of the materials was such that it was difficult to follow the agreed facts on which the Offender was to be sentenced. In these circumstances I granted an adjournment in order for a consolidated statement of agreed facts to be prepared. The matter thereafter came before me at Campbelltown District Court on 6 March 2020. On that occasion a revised statement of agreed facts was tendered in respect of Sequences 1 and 15, together with an agreed fact statement covering all matters including reproduction of facts relevant to Sequences 1 and 15. [7] Following hearing evidence and submissions, the matter was adjourned for sentence to 3 April 2020 in Sydney District Court. Shortly before that date it became apparent that due to logistical arrangements affecting the operations of the Court in Sydney it would not be possible to proceed to sentence on that occasion. A proposal to bring the matter forward was not suitable to the Defence and following consultation with both parties the matter was adjourned to 7 May 2020. Shortly before that date the parties were advised that I would not be able to sit that day and by arrangement the matter was adjourned to today's date for sentence. [8]
2. On 19 May 2020, Counsel for the Offender forwarded additional written submissions [9] to my chambers, together with a number of annexures relating to the Offender being diagnosed with an auto immune disease since 2006. Matters arising from this correspondence will be dealt with later in these reasons. Without objection, the annexures were tendered and will be referred to below. [10]
3. Earlier today the Crown forwarded additional written submissions [11] in response, along with annexures of material from Corrective Services as to their response to COVID 19 as at March and 20 April 2020. Without objection the annexures were tendered and will be referred to below. [12]

Agreed Facts

1. In May 2018, Strike Force Mick was established to investigate the ongoing supply of prohibited drugs by Mr Paul Muniak. As a result of that investigation, the Offender was identified as one of Mr Muniak's associates.
2. From 28 June 2018 to 8 August 2018, a mobile phone used by the Offender was intercepted by police. During that period, SMS' and calls were transmitted to and from the device.
3. From 13 July 2018 to 8 August 2018 the Offender agreed to supply to Mr Muniak a total of 3.7 kilograms of GBL over multiple separate occasions. The agreements to supply were by way of telephone communication, either spoken words or SMS. The communications involved the use of code words. An example of such a communication was given of the Offender and Mr Muniak engaging in several phone and text message conversations between 1:04pm on 14 July 2018 and 4:12am on 17 July 2018. In that conversation, the Offender confirmed he was in a position to supply GBL "in about 40 minutes". In another telephone communication between 7:13pm and 9:08pm on 21 July 2018, the Offender indicated that he was in a position to supply Mr Muniak with GBL "in 45 minutes". In another conversation between 7:23am on 30 July 2018 and 2:00pm on 31 July 2018, the Offender indicated to Mr Muniak via text message that he was he was in a position to supply forthwith.
4. During the date range, the Police intercepted 404 text messages and/or telephone calls. This is Sequence 1.
5. Between 14 July 2018 and 18 July 2018 the Offender supplied Mr Muniak with a total of 49 grams of methylamphetamine. He also used coded speech when engaging in these conversations. This is Sequence 3.
6. At about 12.39am on 9 August 2018, the Offender was in Newtown and left premises at Gibbes Street while wearing a satchel and carrying a large sports bag. He entered a white Corolla and drove onto Norfolk Street where he was arrested by police. He was subject to a search. Of the 3.7 kilograms of GBL the subject of Sequence 1, 700ml was with the Offender at the time of his arrest.
7. A separate amount of 313.3 grams of GBL was located on the Offender's person for the purposes of supply. This is Sequence 15.
8. At the time of the Offender's arrest, $206 cash was located on his person. During the search, the following items were also found in his possession: 1. 0.88 grams of dexamphetamine (Sequence 12) 2. 6.68 grams of diazepam (Sequence 13) 3. 0.49 grams of MDMA (Sequence 10) 4. 1 x NSW photo card and 2 x MasterCard debit cards in the names of persons unknown (Sequence 14)

Submissions

1. The Crown contended that the drug offences for which the Offender is to be sentenced are aggravated pursuant to s 21A(2)(n) of the 1999 Act.
2. Planning is generally an inherent characteristic in an offence of supply drugs, and can only be taken into account as an aggravating factor if the amount of planning exceeds that that would ordinarily be expected. [13] The Crown conceded that this submission "may be stretched". In the circumstances, I am not satisfied that the planning involved in the subject offences gave rise to the aggravating factor.
3. Next, the Crown contended that the drug offences was aggravated pursuant to s 21A(2)(o) as they were committed for financial gain. Again, I am not satisfied that this aggravating factor applies. The evidence of the Offender, which was unchallenged, was that he was supplying the drugs in order to support his own addiction. At the time of the offending he was estranged from his family and was living in his car. At the time of his arrest, he was found to have $265 in his possession. [14] Even if the evidence was otherwise, an aggravating factor would not be found unless the gain was significantly more than what would be expected of an offence of this kind. [15] I am not satisfied that this aggravating factor has been established.
4. The Crown submitted that Sequence 1 fell within the mid-range and Sequences 3 and 15 fell below the mid-range of offending seriousness.
5. The Defence submitted that the principal offences should be assessed as falling below the mid-range of objective seriousness for offences of this nature. It submitted that the Offender could be described as a street dealer/middleman who obtained drugs to provide to Mr Muniak. It drew attention to the fact that the commercial quantity of GBL is 1 kilogram and the large commercial quantity is 4 kilograms. It submitted that the only evidence of the supplies was that of the intercepted telephone calls and messages and it was uncertain as to the quantity of actual supplies as opposed to agreements to supply. The Defence also drew attention to the Offender's underlying anxiety and depression which were said to reduce moral culpability.

Consideration

1. In Vu v R [16] Hall J set out the following factors as relevant to determining the objective seriousness of an offence under s 25(2) of the 1985 Act: • The terms of the offer, in particular, as to the quantity of a drug, its price, etc. • Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs. • Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed. • Whether the offeror at all material times had the intention to fulfil the offer. • Whether the offeror had the capacity to fulfil the offer to supply. • Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.
2. There is an overlapping relevance of some of these features to the s 25(1) matters.
3. In relation to each of the sequences, the price is not known. Sequence 1 occurred over a period of just over three weeks. Sequence 3 involved a supply over four days. Sequence 15 amounted to a deemed supply.
4. The Offender gave evidence accepting that 1 litre of GBL was equivalent to 1 kilogram.
5. The Offender indicated in his evidence that he was using 50-60mg of GBL a day, and could use up to 300mg in 5-6 days. He stated that he was living out of his car with all of his possessions in it. The sentence assessment report also records that the Offender disclosed that he was residing with friends or living in his car. The Offender said that often he would remove himself from his family to continue his drug addiction without their knowledge as he knew they would not condone this behaviour. The report also records that the Offender stated he was consuming a combination of illicit and illegally obtained prescription drugs and using significant amounts during the offences. The Offender reiterated that he was not selling drugs for a financial gain but rather to continue his heavy drug dependence.
6. It is to be accepted in these circumstances that the offending was not motivated by commercial gain or greed.
7. As will be discussed below in the context of the Offender's drug history, Mr Chafic Awit psychologist confirms that in his professional opinion that there was a psychological nexus between the Offender's underlying psychological condition and the offences before the Court in that the Offender struggled with a number of anxiety/depression symptoms over the years, and in the lead up to the date of the offences. [17]
8. The Crown accepted that the Offender's anxiety and depression were such as to reduce his moral culpability. The Offender's anxiety and depression is discussed further below. It suffices to state that I accept that the Offender's moral culpability is reduced somewhat on account of his anxiety and depression, although I would set it apart from self-induced addiction which ordinarily does not diminish moral culpability for the predictable consequences of that addiction. [18] As Mr Awit acknowledges in his report the Offender himself made a choice, as he found it too difficult to go through crashes and deal with withdrawals or seek treatment at the time. Furthermore any suggestion of self-induced intoxication at the time the offending would not mitigate sentence. [19]
9. In relation to Sequence 1, it is apparent that the Offender's telephone conversations reveal a confidence in his capacity to fulfil the requests made of him. The circumstances in which he was arrested saw 700 ml of GBL (in Sequence 1) and 313.3 grams of GBL (in Sequence 15) found in his possession for the purposes of supply. In relation to Sequence 1, the Offender is to be sentenced in relation to an agreement to supply. Sequence 3 acknowledges an actual supply of the quantity concerned.
10. The Offender's role on the basis of the agreed facts was that of a middleman for supplying Mr Muniak. I accept, however, that in relation to the s 166 certificate matters (Sequences 10 and 12) he had what may be described as personal use quantities in his possession.
11. The quantity involved in Sequence 1 is above the threshold for commercial quantity and just below the threshold for a large commercial quantity. In Sequence 3, the quantity of 49 grams, whilst well above threshold for an indictable quantity of 5 grams, falls towards the lower end of the indictable amount (the indictable range goes up to less than 0.25 kilo grams). In Sequence 15, the quantity of 313.3 grams, whilst well above the threshold for an indictable quantity of 50 grams, falls at the lower end of the range below the commercial quantity threshold of 1 kilogram. The amount of MDMA in Sequence 10 falls within the small quantity, as does the dexamphetamine amount in Sequence 12.
12. In none of the Sequences is the purity of the illicit substances disclosed.
13. Taking into account only the objective factors affecting the relative seriousness of the offence, Sequence 1 falls within the broad mid-range of objective seriousness although not in its higher end. Sequence 3 falls towards the lower-range and Sequence 15 falls below mid-range.

Plea of guilty [20]

1. The Offender offered to plead guilty to Sequences 9, 10, 12, 13 and 14 in the Local Court. Matters that are subject to s 166 certificate are not subject to the application in Division 1A of the 1999 Act. [21] Nevertheless, a discount of 25% pursuant s 22 of the 1999 Act is appropriate in accordance with R v Thomson and Houlton. [22]
2. With respect to Sequence 3, a plea was entered into at the Local Court where the Offender was committed for sentence. In the circumstances, he is entitled to a discount of 25% pursuant to s 25D(2)(a) of the 1999 Act.
3. In relation to Sequence 1, the Defence contended that the Offender was entitled to a 25% discount, notwithstanding the fact that the plea was entered in the District Court. The circumstances were that the matter was listed for trial on 4 November 2019. On that occasion, the matter was stood over to 5 November 2019, where it was again stood over to 6 November 2019. The Offender had been arraigned on 2 May 2019 in respect of Sequence 1 in the following terms: On the 15th day of July 2018 in Sydney in the State of New South Wales, did agree to supply to a prohibited drug, namely gamma butyrolactone, in an amount not less than the commercial quantity for that drug.
4. The new charge reflected a broader period between 13 and 19 July 2018 and a quantity of GBL in the sum 3.7 kilograms. It appears from the case conference certificate that the new charge was in substitution for a number of sequences which the Offender had been committed for trial, being Sequences 1, 4, 6 and 8. The facts relating to each of these sequences is not disclosed in the agreed facts, although it can be accepted, as the Offender's Counsel contended, that the amount collectively was significantly above the quantity in the present Sequence 1. The Court otherwise did not have the facts or evidence that established the elements of the new count to be substantially the same as those contained in the brief of evidence or other material served on the Offender by the Crown in the committal proceedings relating to the original indictment. [23]
5. The Crown conceded that the present Sequence 1 fell within the definition of "new count offence" in s 25B(a) of the 1999 Act. In these circumstances, I am satisfied that the Offender is entitled to a 25% discount within the terms of s 25D(3)(a). The Crown did not contend that the offer to plead to guilty having been made upon the presentation of the new indictment and the Offender entering a plea on arraignment the matter did not fall within of s 25D(3)(a). Nor did it seek to adduce evidence to satisfy the exceptions under s 25D(4) of the 1999 Act.
6. In relation to Sequence 15, the case conference certificate indicates that the Offender was prepared to plead guilty to this offence on 6 December 2018. The Defence contends that in these circumstances, s 25E of the 1999 Act applied so as to entitle him to a discount of 25%.
7. The terms of the initial Sequence 15 to which the Offender offered to plead guilty were that:- On the 9th day of August 2018, at Newtown in the State of New South Wales, did supply a prohibited drug, namely gamma butyrolactone, being an amount not less than the commercial quantity for that drug.
8. That was different to the current Sequence 15, in respect of which the Offender has now pleaded guilty, in the sense that it relates to an amount greater than an indictable quantity, but less than the commercial quantity. The certificate indicates that in respect of the former Sequence 15, as phrased (in the Local Court), the Prosecution proposed for the matter to be certified to the District Court on 28 February 2019 and 4 March 2019 in context of proposals for the other sequences as well. Those offers were respectively rejected together with the other proposals on 13 March 2019 and 1 April 2019 respectively.
9. The Defence did offer to plead guilty to the former Sequence 15 on 1 April 2019. Whilst, the Prosecution had previously expressed a willingness to accept the plea before April 2019 in the context of the counter proposal put forward by the Defence as a whole, this was not accepted by the Prosecution. Subsequently on 12 April 2019, it was proposed by the Defence that Sequence 15 be withdrawn. This was not accepted by the Prosecution, who proposed to commit the Offender in relation to Sequence 15.
10. In those circumstances, it appears to me that s 25E(1)(d) of the 1999 Act does not apply. The discount cannot be determined in accordance with the section, as the proposal to plead to previous Sequence 15 was subsequently withdrawn.
11. However, in my view, Sequence 15 could amount to a new count offence under s 25B, in that it refers to "an amount not less than the indictable quantity for that drug" as opposed to "an amount not less than the commercial quantity for that drug."
12. Sequence 15 is now under s 25(1) as opposed to s 25(2) of the 1985 Act, as Sequence 15 previously was. As the plea was entered on 6 November 2019, following the ex officio indictment being presented, it appears to me for similar reasons for Sequence 1, that s 25D(3)(a) of the 1999 Act would apply.
13. Consequently, the matter would not fall under the exemptions in s 25D(4)(a) of the 1999 Act as the new count offence is for less than those for the offence in the original indictment. There is nothing to indicate that the facts or evidence establish the elements of a new count offence which are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in the committal proceedings relating to the original indictment. In these circumstances, I am satisfied that the discount of 25% should also be applied for this offence in accordance with s 25D(3)(a) of the 1999 Act.

Remorse

1. The Offender gave evidence that he was sorry and embarrassed about his offending and knew how bad drugs were. He stated that it affected his family and his wife and by attending drug rehabilitation he has seen how it can affect others. He understood the damage drugs do to the lives of people.
2. According to the statement of Mr George Guse, the Offender has told him that he is deeply remorseful and extremely embarrassed by these charges and wants nothing more in life but to focus on building a career, being there to welcome his first child and staying completely sober.
3. The Offender also attended the Centre for Addiction Medicine since 7 June 2019 when he attended the Staying Safer group, an educational group providing information on different pathways and ideas to help motivate people to lead a happier and drug free life. [24] The Offender was also noted to have attended the SMART Recovery Group for a total of nine occasions, [25] a free program assisting people with problematic behaviours including addiction. The Offender was reported as having engaged well in both groups and contributed and mentored others in the group by sharing life experiences.
4. The pre-sentence report also records that the Offender regretted his actions and understood that what he did was wrong. It recorded that the Offender understood the impacts of his offences as he lost the trust of his family and jeopardised his relationship with his wife.
5. On the evidence, I am satisfied that the Offender has demonstrated that he is genuinely remorseful pursuant to the provision of s 21A(3)(i) of the 1999 Act.

Prior record

1. The Offender does have a criminal record stemming from 2010. Included in that record are two offences of supply prohibited drug on 14 June 2010, in respect of which he was ordered to serve an intensive corrections order for two years. In respect of two further offences on the same date, he was convicted of possession of a prohibited drug and fined $300 and possession of a prohibited weapon and fined $2000.
2. The Offender was further convicted of a break, enter and steal offence which occurred on 24 November 2012. This resulted in a penalty of imprisonment for 2 years commencing on 9 July 2014, but with time served leading him to being released on parole on 19 June 2015, being the day of sentence.
3. From 2013 to 2018 there is no offending history until the Offender was found on 5 April 2018 to be in possession of prohibited drug which resulted in him being convicted without penalty pursuant to s 10A of the 1999 Act.
4. The sentence assessment report records the Offender advising that he attributed this to avoiding criminal associates and living a stable lifestyle without use or involvement in illicit drugs.
5. Otherwise the offending history has included a number of driving matters, possession and/or use of a prohibited weapon, custody of an offensive implement in a public place and make or furnish a statement which is false or misleading. These offences were not dealt with by way of custodial penalty. He was the subject of a Community Corrections Order for twelve months from 27 September 2018. The sentence assessment report records that overall during this period he was compliant and engaging. Supervision was suspended in May 2019 due to overall compliance.
6. No submission was advanced that the Offender's history amounted to a mitigating factor under s 21A(3)(e) of the 1999 Act, nor was any submission advanced that the Offender was a person of previously good character in the terms of s 21A(3)(f) of the 1999 Act.

Background

1. The Offender gave evidence before me. In that evidence he affirmed the contents and the history contained in the report prepared by Mr Chafic Awit. [26] Mr Awit records that the Offender was born in Abu Dhabi, however due to a failed business venture, his father moved the family to Southern Lebanon. The Offender reported growing up in a refugee camp from the age of two to the age of eight due to be being of Palestinian background, but not being able to return to Palestine due to the Israeli occupation of his family's particular town. He reported that witnessing a number of traumatic incidents, which included the deaths of children that he knew as well as many others. He advised that there were numerous incidents of bombings taking place throughout his six year stay. The Offender reported that at the age of eight, his family migrated to Australia and were granted refugee status. The Offender advised that he commenced experiencing anxiety symptoms from this time. He reported being placed in school quite quickly after migrating to Australia and that at the time he had poor English skills. He reported that it took quite a while for him to grasp the language and that due to this he was subjected to bullying throughout primary school and high school. He advised that he attended Riverstone Primary, followed by Riverstone High School to Year 10 and completed Years 11-12 at Wyndom College.
2. The Offender told Mr Awit that his father and two of his uncles established a construction business, which they all worked within for a number of years, until one of his uncles apparently stole a large amount of money from the business causing the business to crumble. Due to this, his family suffered severe financial instability, and when the Offender was a teenager, the family was forced to leave their home and seek assistance from the Housing Commission. They were later relocated to the suburb of Riverstone. The Offender reported a number of negative incidents that occurred when they moved to Riverstone due to their ethnicity.
3. After completing school, the Offender advised Mr Awit that he commenced an Electrical Engineering course at TAFE, however only completed one year of that course, and graduated with a Diploma in Electrical Technology. He advised that he shifted his focus to the fitness industry and completed a Certificate II and IV in Personal Training & Gym Instructor, as well as later completed a Diploma in Fitness Therapy.
4. The Offender's prior history is, to some extent, supported by the Statement of the Offender's father, Mr Adel Salameh. [27] He records in his statement, dated 22 January 2020, that the Offender has had a difficult life. He reiterated that he and the Offender's family lived in a refugee camp during a very violent and unstable period, and the Offender was 8 years of age before he "could get him out and come to Australia", and the Offender experienced plenty of childhood trauma due to these events.

Employment

1. The Offender advised that most of his employment centred on the construction industry and fitness industry.
2. The Offender advised that in 2007, his father had created his own company who had tendered and won a construction contract in the Emirates. Consequently, his father and brother placed all their life savings into the business and travelled to the Emirates where they spent a year before being affected by the Global Financial Crisis of 2008, resulting in the halving of the business assets. This led to the dissolution of the business and all parties lost their life savings and returned to Australia.
3. The Offender advised that he had a number of psycho social issues, as well as legal issues between the years of 2007 and 2015 and was employed on and off again throughout that time. The Offender advised Mr Awit that from 2015 until his recent arrest he had been focused in the fitness industry as a Personal Trainer. In 2017, he was in the process of establishing a business which would have seen him exporting Australian supplements to the Middle East. This process took much longer than he expected. He advised that he invested a lot of his savings into this venture, and the delay in the commencement of the process began to lead to a number of adverse symptoms.
4. Following his release on bail in 2019, the Offender reported that he has worked full time with Atlas Renewable as a Sales Manager. He has been working in this industry since then. The Court has before it a letter from Mr George Guse, Director of Atlas Renewables. [28] In it, Mr Guse states he met the Offender in April 2019 in response to an advertised vacancy. He stated that the Offender explained his current situation, including his recent time in custody and his pending charges. Whilst he was hesitant at first to employ him, he stated that the fact that he was honest about his past and current situation led him to respect the Offender's character. He stated that the Offender started as a Sales Representative and in September 2019 promoted him to Sales Manager. Mr Guse stated that he gave the Offender the chance he believed he deserved and it is a decision that he has not regretted. He refers to the Offender as a great asset to the company and states that being both the Offender's employer and now friend, he is in a good position to observe his behaviour and be witness to the positive changes he has made thus far. He otherwise states that he has no hesitation in continuing the Offender's employment should the sentence allow that.
5. In addition to the Offender's employment with Atlas, in evidence the Offender also confirmed that he had an ABN number and did some contracting work as well. The pre-sentence report indicates that he registered his business as of July 2019.

Health

1. As earlier indicated, on 19 May 2020 the Offender through his Counsel advised that he suffers from an autoimmune disease, Pemphigus.
2. According to a tendered report from the Offender's family physician Dr Bonovas, [29] he has been under his care since he was diagnosed with Pemphigus which is described as a serious and potentially fatal autoimmune disease in 2006.
3. Dr Bonovas states that the Offender has been treated with high doses of steroids and immunosuppressant medications consisting of Azathioprine, Plaquenil and Mycopheolate. In 2009 and 2012 he was given Rituximab which was described a very potent immunosuppressant. He was then under the care of Professor David Fulcher. Dr Bonovas noted that the Pemphigus recurred in 2016 at which time the Offender was once again treated with the same medication. Dr Bonovas opined that due to the nature of autoimmune disease it is likely that it will recur again without visible symptoms and without warning. He states that the timing is unpredictable and uncertain but treatment would again involve potent immunosuppressant's making him extremely susceptible to contracting COVID 19 amongst many other infectious diseases and viruses. In conclusion, Dr Bonovas states that the Offender's compromised immune system will place him in the high risk category.
4. The diagnosis of Pemghigus was confirmed by Dr Salvador Gala who wrote to Dr Bonovas on 24 August 2006. [30] Dr Gala had been treating the Offender regularly in respect of his symptoms commencing 1 May 2006. There is evidence that the Offender was admitted to Westmead Hospital on 8 April 2007 and discharged on 20 April 2007, complaining of a painful sore throat for six days and subjective fevers, rigors and night sweats. He was eventually unable to swallow and was nauseated, his tongue was coated with white material and ulcerated, and his tonsils were noted to be enlarged. Dr Frederick Lee, Registrar for Dr Ming Wei Lin, recorded a suggested HSV-2 infection but also a flare of his pemphigus could not be excluded. Later reports from Dr Wei Lin show that that thereafter the Offender had regular follow ups at Westmead Hospital's Department of Clinical Immunology and Allergy to at least 23 January 2008.
5. The Defence submission is that the Offender's disease is treated with immunosuppressant medications and due to its nature is likely to recur again. Such treatment will make the offender extremely susceptible to contracting COVID-19, amongst many other infectious diseases and viruses.
6. The Defence submitted that COVID-19 should be considered within the matrix of evidence and principles applicable to sentence. In particular it was submitted that: 1. I should take account of the impact of health issues on sentence; 2. The hardship faced by prisoners, including through the banning of personal visits to prisoners; 3. The safety of prisoners in custody and the community at large; 4. The state of uncertain suspense; and 5. Hardship to third parties.
7. The Crown disagreed with the contention that COVID-19 should be considered within the matrix of evidence and principles applicable to sentence.
8. It pointed out that to date, there is no known evidence that the virus has spread and made its way into the general prison population, and that Corrective Services NSW has implemented a number of policies in order to minimise the risk of the virus entering the prison population, as evidenced in Exhibit B.
9. The Crown submitted that the evidence of the Offender's medical condition that has been provided to the Court was not so compelling that it warrants a finding of special circumstances. It submitted that the medical records revealed that the Offender's medical diagnosis responded very well to treatment to the point of ceasing medication in December 2007. Furthermore there was no evidence of hospitalisation in respect of the recurrences in 2009, 2012, and 2016, nor evidence of treatment since 2016. The Crown contended that in the event that the Offender was infected with COVID-19 and/or experienced symptoms related to his condition, he would be able to receive medical treatment within the custodial setting.
10. In conclusion the Crown argued that the case of R v RC [31] was distinguishable and the Court would not attribute weight to this Offender's condition given his relatively young age and health.
11. I do not accept the Crown contention that the Offender's condition responded so well to treatment that he ceased medication in December 2007. The report of Dr Wei Lin dated 10 December 2007 certainly indicates a plan to reduce the Offender's medication. On 30 January 2008, Dr Wei Lin reported that the Offender remained on prednisone, dexamethasone mouthwashes and mycophenolate. Beyond that he has had the recurrences earlier described that led him to be prescribed Rituximab which Dr Bonovas described as a potent immunosuppressant. The Crown submission furthermore did not address the evidence of Dr Bonovas that the Offender's compromised immune system places him in the high risk category.
12. On the evidence, I am satisfied that the Offender by reason of suffering Pemphigus is in a higher risk category of contracting and suffering severe symptoms of COVID-19 amongst other infectious diseases. [32] Although there is no evidence at the present time of COVID-19 amongst the prison population, I accept that he will experience a level of stress, anxiety and even fear of the consequences to him were he to be infected beyond what would be the case of a prisoner not so compromised. [33] It is appropriate that this be taken into consideration.
13. Beyond that, I accept that the circumstances are such that the present COVID-19 pandemic is making incarceration more onerous generally. So much is supported by the "Report of COVID-19 and the impact on NSW prisoners" prepared by the Kirby Institute for Legal Aid NSW, [34] and the Corrective Services response to COVID-19 earlier referred to. In particular, social visits have been suspended although contact by telephone and video calls has increased. Prisoners, moreover, are subject to the control of authorities as to physical distancing. Whilst how long this situation will last cannot be known, if and when COVID-19 enters the correctional system early parole may be available pursuant to s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW).
14. In the end, the Offender's health issues need to be taken into account and I propose to do so subject to other sentencing constraints.

Drug History and Mental Health

1. In his report, [35] Mr Awit records that the Offender and his elder brother (who is now deceased) recreationally experimented with illicit substances shortly after high school. However, he also notes that the Offender ceased most of this when he began working with the fitness industry. Following the failure of the business venture in 2008, and on a return to Australia, the Offender recorded that that he began to experience symptoms of anxiety and depression and as a response to this he and his brother began to go to a number of social events and resumed taking illicit substances. These were described as "numbing his racing negative thoughts". Before long, both became addicted to illicit substances and the effects of this addiction led to further financial instability in that he was unable sustain employment. The Offender was recorded that he was on a downward spiral from 2010 to 2012 and he committed a number of offences to support his addiction to illicit substances.
2. After the Offender's brother passed away on 24 July 2013, Mr Awit reported that the Offender had a history of using drugs in the context of having symptoms of anxiety and depression, despite noting that following the passing of his brother the Offender was able to abstain from illicit substances. However, after returning from the Middle East in 2017, Mr Awit recorded that the Offender began to suffer anxiety and depression symptoms due to the delay of the business venture he was trying to establish. The Offender saw a General Practitioner requesting medication, however due to his previous addiction he was refused. In 2009, his ex-wife introduced him to ICE and GHB [sic]. [36] Mr Awit advised that the Offender was quite anxious during this period due to having a lot riding on the business venture and after a long abstinence from illicit substances, he found himself accepting the illicit substances before he realised he suffered a full relapse and had become addicted to ICE and GHB [sic]. The report indicated that the Offender found it too difficult to go through crashes and deal with withdrawals and his habit became a daily one.
3. Since being released on bail, Mr Awit records that the Offender has abstained from all illicit substances, and that a number of drug screening tests have been reviewed that showed ongoing clean urine drug test results. The urine test results were before the Court as Exhibits 6 and 8.
4. The Offender's wife, Ms Chala Cakir, [37] states that she has been with the Offender for four years and has noted that since the Offender has been released on bail he has been clear headed enough to seek professional help and engage with psychologist Mr Awit and regularly attended the Centre for Addiction Medicine at Mt Druitt. She states that she is proud that the Offender has remained drug free and that his mental health has dramatically improved. She notes that he has regained weight and has recovered his focus, drive and personality. She states that she has been residing with the Offender and his family since his release in April 2019 and is well placed to observe the remarkable transition he has gone through.
5. The Offender's father, Mr Salameh, states that while he has been overseas since November 2019, he has noted that the Offender accepted help and support from the family and together planned a life beyond drugs, and he has seen the Offender healthy again.
6. Mr Awit records that the Offender commenced psychological intervention with him in May 2015. He was seen on seven occasions across 2015 and a two further session whilst he was in custody in 2018. The Offender is receiving counselling treatment for anxiety, depression and drug use due to the reported history of long standing psychological issues. He noted that the Offender has struggled for years with an illicit substance addiction which was caused and exasperated by his underlying anxiety and depression condition. He recorded that the Offender advised that during these periods he constantly experienced a flooding of negative thoughts and symptoms of low mood, feeling of worthlessness, loss of interest in things he used to be interested in, a bleak outlook for his future, memory/concentration issues, easy agitation and uncontrollable worry about a number of things. Mr Awit recorded that the Offender advised that over the years he found it difficult to keep his racing negative thoughts from interfering with his attention to tasks at hand, inclusive of relationship and employment. These symptoms, he noted, had been present on and off again since 2008. He also noted that he had successful periods of abstinence, however due to the lack of ongoing psychological intervention, he relapsed.
7. Since being on bail in 2019, the Offender has attended eleven further consultations, and Mr Awit noted that there has been a significant improvement in his underlying conditions according to the Becks Anxiety and Depression Testing. All up, he records that based on the Offender's responses to an inventory he has completed, the Offender suffered from severe anxiety during the period of the offending, severe anxiety during the month of September 2018, severe anxiety during the month of November 2018 and low to moderate anxiety during the month of January 2020. He records that there has been significant improvement with the underlying conditions and reported symptoms that met the DSM-V Diagnostic criteria for Generalised Anxiety Disorder, Major Depressive Disorder and Substance Abuse Disorder.
8. In a subsequent report dated 28 February 2020, Mr Awit stated that he had seen the Offender for four further consultations, totalling to twenty-four sessions. He notes that the Offender has shown continued improvement in relation to his condition. He noted that the Offender has continued to work towards providing a stable environment for his pregnant partner and has continued to work full-time. He recorded that the Offender's symptoms have significantly reduced, but also notes, however, that there had been a new stressor in that his partner has suffered health issues within the last trimester of her pregnancy after developing a condition called Cholestasis which is said to likely result in early inducement to minimise risk to the baby. The Offender in his evidence confirmed the baby was due to be induced on the 28 March 2020 due to the complications.
9. Apart from the treatment with Mr Awit, the Offender has attended the Centre of Addictive Medicine since 7 June 2019, attending the Staying Safer group and the SMART recovery group on 3 December 2019, 17, December 2019, 14, January 2020 and 21 January 2020. As mentioned earlier, the report from the centre states that he engaged well in both groups and contributed and mentored others in groups by sharing life experiences. [38]

Prospects of rehabilitation and likelihood of reoffending

1. The Offender has, as I have indicated, taken a number of steps to address substance abuse since being released on bail. In evidence, he stated that he would not use drugs again as he has too much to lose. In particular, his relationship with his wife and the fact that she was, at the date of the sentence hearing, expecting their first child. He has attended regular therapy sessions with Mr Awit and has also attended the Centre for Addiction Medicine. His urine analysis has shown no sign of illicit substances. His partner states that the Offender has undergone a radical transition to become a reliable partner, son, father and a productive citizen. She states that ongoing attention to his mental health will be a lasting change. The Offender's father states that he is immensely proud of the progress the Offender has made and his release from prison has only been beneficial. He stated he is committed to staying sober and not being anywhere near illegal substances and he can see substantial change that he has undergone.
2. I note again in this respect the comments of the report from the Centre of Addictive Medicine earlier referred to. . [39]
3. The director of Atlas Renewables, Mr Guse, states that he is confident that the Offender would not reoffend. He has not known him to be involved in any illegal activity, including the consumption or sale of illegal substances.
4. The sentence assessment report records that the Offender displayed an understanding that his offending actions were wrong and as a result he almost lost the support of his family. It notes that the Offender stated that prior to the offences he was involved with other drug users which enhanced his anti-social behaviours to engage in drug activities. It records that he advised that he was relieved he was arrested as that lifestyle "is over." Moreover, he has divorced himself from all negative peers and has turned to the support of his family and faith. Nevertheless the report identifies as a specific risk "anti-social peers involved in criminal activities."
5. Mr Awit states that in his opinion, the Offender has stronger emotional regulation control but it is imperative that he continues with treatment to assist with lifelong abstinence. He notes that the Offender does require ongoing psychological intervention and has seen that this cannot be a short-term measure but has to be one in the long-term. At this end, he stated the Offender needs to:

• Continue fortnightly individual psychological sessions for a period of at least twelve months;
• Continue with Smart Recovery and Narcotic Anonymous
• Continue to receive Cognitive Behaviour Therapy (anxiety reduction and emotional regulation)
• Continue to receive skills to help cope with stress, this will take the form of being provided with stress reducing techniques; and
• Continue to receive problem solving skills. [40]

1. Overall, I accept the report of Mr Awit, which was unchallenged. The Offender has insight, appears well motivated and has good family and community support.
2. The Offender has been subject to stringent bail conditions and was released from custody on 11 April 2019. The Offender's bail conditions have included:

• To be of good behaviour;
• A daily reporting condition to Riverstone Police Station;
• Not to be absent from his residence between the hours of 8:00PM and 6:00AM unless in the company of specified persons;
• To present himself at the front door at the direction of any police officer to confirm compliance with the curfew condition;
• Not to drink alcohol or enter any premises in which alcohol is sold including licensed restaurants;
• Not to take any illegal or prescription drugs (other than a drug prescribed to the Offender by a doctor);
• To undertake a course of rehabilitation at the Centre for Addiction Medicine, Western Sydney Local Health as directed by Blacktown Community Correction and to report to Blacktown Community Correction within two days of release;
• To use one mobile number subscribed in his name and to provide that number to the Officer in Charge upon obtaining it; and
• To undertake any testing at the direction of any police officer to confirm compliance with the drug/alcohol abstention condition. [41]

1. There was no evidence that the Offender breached these or any other bail condition in the time he has been subject to them.
2. Overall I am satisfied that he has good prospects of rehabilitation.
3. Mr Awit's assessment of a low risk profile of re-offending is subject to the treatment he describes continuing. As at its date, the sentence assessment report assesses the Offender at T1/Medium risk of reoffending according to the Level of Service -Revised (LSI-R). I accept that this is so.

Sentence

1. In sentencing the Offender, his Counsel requested that I consider the fact that he has spent a total of 245 days in custody between the 13 July 2018 and 11 April 2019, and the additional time he has spent on stringent bail conditions since 11 April 2019. In taking those matters into account pursuant to s 24 of the 1999 Act, it was submitted that I should consider the imposition of an intensive corrections order, as it would be counterproductive for the Offender to be returned to prison after the "substantial gains he has made since his release on bail on strict conditions."
2. Two cases were cited in support being Parente v R [42] and R v Qi. [43]
3. Parente v R involved three offences in respect of which the following penalties were imposed by the sentencing judge: [44] 1. Section 25(1): Supply of methylenedioxyamphetamine (16.8 g) - 2 years 2. Section 25(2): Supply not less that commercial quantity of GBL (1.3728 kg) - 3 years and 6 months 3. Section 25(1): Supply prohibited drug 1,4 Butanediol (338.8 g) - 1 year and six months.
4. Three further offences were taken into account in relation to sentencing on the s 25(2) offence being goods in custody (s 527C of the 1900 Act), supply MDMA (s 25(1) of 1985 Act) and supply Methamphetamine (s 25(1) of the 1985 Act). The Offender was afforded a 25% plea discount,
5. Overall, a sentence of 4 years with two years non-parole was imposed. Whilst the Court of Criminal Appeal found the sentencing Judge erred in applying the "Clark principle" [45] , in that the principle should no longer apply, [46] it dismissed the appeal finding no lesser penalty was warranted.
6. Parente v R involved a finding that the s 25(2) offence fell in the very low level of objective seriousness. Beyond that, the subjective features of the case were more favourable than those in the instant case, it being noted that amongst other matters he was of previous excellent character with no previous convictions and was unlikely to reoffend. His rehabilitation prospects were found to be "excellent".
7. R v Qi involved a younger offender aged 24 at the time of sentence. The offending involved transportation of a large commercial quantity comprising 1,983.1g of methylamphetamine for financial reward. The offending was limited to transportation and found in the lower end of objective seriousness. Apart from youth which was regarded as a strong factor in itself, the subjective background showed a lack of previous offending and otherwise good character. At first instance, the sentencing Judge imposed an intensive corrections order of 2 years and 6 months. On Crown appeal, Button J accepted (with Payne JA and Lonergan J agreeing) that the sentence was manifestly inadequate in the circumstances, and re-sentenced the Offender to a period of 3 years imprisonment with 18 months non-parole.
8. Neither the sentencing outcome in R v Parente nor R v Qi is apposite to the facts of the instant case.
9. The Crown contended that all of the purposes of sentencing in s 3A of the 1999 Act need to be taken into account, notwithstanding the Offender's impressive rehabilitation to date.
10. The correct approach is to determine: first, whether no sentence other than imprisonment is appropriate (regardless of how it might be served); if so, second, the length of such a sentence (regardless of how it might be served); and, third, whether any alternatives to full-time incarceration are available and appropriate. [47]
11. Both parties accepted and I am satisfied that pursuant to s 5(1) of the 1999 Act that having considered all possible alternatives, no penalty other than imprisonment is appropriate.
12. In this case I am mindful of the statutory guideposts for each of the offences comprising the maximum penalties earlier referred to, and in the case of Sequence 1, the standard non-parole period. [48]
13. The Offender does need to be adequately punished, the conduct be denounced, and made accountable for his actions. The harm to the community whose laws he has violated must also be recognised. General deterrence and protection of the community ordinarily loom large in such matters of this nature and I have borne in mind the acknowledgment of reduced moral culpability earlier described. Moreover the Offender's impressive progress as to rehabilitation must not be overlooked and the sentence needs to provide for his continued rehabilitation. I accept that the Offender has been specifically deterred to an extent such that this matter requires no particular emphasis.
14. Ordinarily, any prior periods in custody should be taken into account by back dating any sentence unless there is good reason for not adopting that approach. [49] To this end the Offender should be credited with 245 days that he has been in custody from 9 August 2018 to 11 April 2019. I further bear in mind the stringent bail conditions to which he has otherwise been subject to in fixing sentence. [50]
15. Beyond that my findings as to objective seriousness when combined with the subjective features of this case satisfy me that a lesser period than the standard non-parole period is appropriate for Sequence 1
16. The sentencing remarks of King SC, DCJ of 29 July 2019 in respect of the co-offender, Mr Muniak, have been provided to me. Neither party submitted that any issue of parity arises. Apart from the different nature of those offences, one of them involved Form 1 matters.
17. For its part the Crown submitted that the matters on the s 166 certificate be adequately reflected without need for additional penalty.
18. In those circumstances and taking into account the pleas of guilty in respects of Sequence 9, 10, 11, 12, 13 and 14, I proceed to convict without penalty pursuant to s 10A of the 1999 Act. The Offender is disqualified from driving for the statutory period of 6 months pursuant to s 205A of the 2013 Act in respect of Sequence 9.
19. I am satisfied that by reason of a need for an extended period of parole to facilitate the rehabilitation of the Offender and the circumstances of the Offender's health, a finding of special circumstances is supported.
20. In respect of the remaining matters, taking into account the plea of guilty, I proceed by way of an aggregate sentence with indicative sentences as follows:- 1. Sequence 1 - 5 years imprisonment with a non-parole period of 3 years 2. Sequence 3 - 18 months imprisonment 3. Sequence 15 - 2 years imprisonment
21. In setting an aggregate sentence I bear in mind the overlapping features of the offending and have regard to principles of accumulation, concurrency and totality. In particular, I bear in mind the fact that the method of operation was similar and only one person was identified as the recipient or intended recipient of supply in Sequences 1 and 3. The time period was also overlapping. However different quantities and drugs were involved.
22. The Offender is convicted of each sequence.
23. I set an aggregate term of 6 years imprisonment for Sequences 1, 3 and 15 comprising: 1. A non-parole period of 3 years and 7 months from 19 September 2019 to 18 April 2023. 2. An additional term of 2 years and 5 months imprisonment from 19 April 2023 to 18 September 2025 during which the Offender shall be eligible to be released to parole.
24. The earliest possible release date shall be 18 April 2023.

Endnotes

1. Hereinafter 'GBL'
2. Hereinafter referred to as 'the 1985 Act'.
3. Hereinafter referred to as 'the 1999 Act'.
4. Hereinafter referred to as the '2013 Act'.
5. Hereinafter 'MDMA'.
6. Hereinafter referred to as 'the 1900 Act'.
7. Exhibit A, Tab 2.
8. Out of Court correspondence relating to scheduling was marked MFI 2.
9. MFI 4 and 5.
10. Exhibits 12, 13 and 14.
11. MFI 6.
12. Exhibit B.
13. R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97.
14. Cicciarello v R [2009] NSWCCA 272.
15. Huang v R [2017] NSWCCA 312.
16. [2006] NSWCCA 188 at [89].
17. Exhibit 1.
18. R v Henry (1999) 46 NSWLR 346 at [198].
19. S 21A(5AA) of the 1999 Act.
20. S 21A(3)(k) of the 1999 Act.
21. See s 25A(1) of the 1999 Act.
22. (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309.
23. See s 25D(4)(a) of the 1999 Act.
24. Exhibit 5.
25. Exhibit 7.
26. Exhibit 1.
27. Exhibit 4.
28. Exhibit 2.
29. Exhibit 12.
30. Marked as Exhibit 13 as part as a bundle of medical records/correspondence relating to the Offender.
31. [2020] NSWCCA 76.
32. Exhibit 14.
33. Scott v R [2020] NSWCCA 81 at [166] and RC v R; R v RC [2020] NSWCCA 76 at [253]-[255].
34. Exhibit 14.
35. Exhibit 1.
36. This is how the phrase appears in Exhibit 1. It is believed it should be GBL.
37. Exhibit 3.
38. Exhibit 5.
39. Exhibit 5.
40. Exhibit 1.
41. Exhibit 10.
42. (2017) 96 NSWLR 633; [2017] NSWCCA 284.
43. [2019] NSWCCA 73.
44. All offences under the 1985 Act.
45. R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) at pages 3-5 per Hunt J (with Sharpe J agreeing, Enderby J dissenting).
46. See R v Parente (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [101], [108]-[110].
47. R v Parente (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [114].
48. R v Parente (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [111], citing Muldrock v The Queen (2011) 244 CLR 120 at 132 [27] and Markarian v The Queen (2005) 228 CLR 357 at 372 [31].
49. R v West [2014] NSWCCA 250 per Adamson J at [40] citing Wiggins v R [2010] NSWCCA 30 at [3]-[8] and [14] per Howie J, Harrison J agreeing.
50. R v Webb (2004) 149 A Crim R 167 at [18].

Amendments 10 June 2020 - Typographical error 17 July 2020 - Coversheet error 02 November 2020 - Typographical error 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: 02 November 2020