R v Ismail

DELAY IN SENTENCE

1. Following the arrest of Mr Ismail on 31 July 2019, he was initially charged with the various drug offences which are now before me, either substantively or on the relevant Form 1 document. As I detailed in my remarks on 30 July 2021, Mr Ismail was subsequently granted conditional bail at Parramatta Local Court on 19 September 2019.
2. Following his release that day, he was then rearrested by police the following day, 20 September 2019, on which occasion he was charged with firearms offences relating to the ten pistols which had been located in the Lexus motor vehicle. He was initially bail refused and remanded in custody. However, on 26 September 2019, he was again granted bail in the Local Court at Parramatta, subject to the same conditions as his earlier grant of bail. Those conditions included a curfew between 10pm and 6am and daily reporting.
3. On 19 January 2021, Mr Ismail's bail conditions were varied by Judge Hanley SC in order to permit the offender to undertake a course of residential rehabilitation with Connect Global Ltd at Swan Bay, which is located on the New South Wales Central Coast. I have previously referred to the detail of that residential rehabilitation program and to the evidence given before this Court by the founder and coordinator of the program, Mr Ross Pene. For the reasons which I expressed on 30 July 2021, these sentence proceedings were adjourned pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in order to permit the offender to continue in the rehabilitation program. He has continued in that program up until the present time.
4. An updated report from Connect Global Ltd dated 30 November 2021 has been forwarded to the Court. It restates an overview of the program and supplements the oral testimony previously given by Mr Pene. Of significance, it reaffirms the previous expressions of regret attributed to Mr Ismail and the not inconsiderable steps towards appropriate rehabilitation that he appears to have taken. The offender has, to all extents and purposes, successfully completed the program. But for the sentence proceedings today, he would formally graduate from the program on 8 December 2021.
5. Given the way in which the continuation of the program was permitted to occur and the submissions previously made on behalf of the offender, it is somewhat disappointing to read in the updated report that the program founder and coordinator, Mr Pene, strongly believes that a return to custody may undo all the positive work that the offender had accomplished during his time at Connect Global.
6. The basis upon which the submission was made by Mr Lange of counsel for the matter to be adjourned pursuant to s 11 was that despite the inevitability of a term of imprisonment, the completion of the rehabilitation program would likely equip the offender to enter into custody armed with rehabilitative tools which would benefit him and ultimately society.
7. The inevitability of a term of imprisonment was also the subject of the content of the letter written by the offender himself to the Court, in which Mr Ismail said, "I know I have to go to gaol, but I would love to be able to at least finish my rehab to be in the best mindset before I do." The implicit invitation in the correspondence from Connect Global to release the offender at this stage back into the workforce and wider community and to grant him the opportunity to continue his rehabilitation is one which fails to recognise the objective gravity of the offending before this Court.

OBJECTIVE SERIOUSNESS - DRUG OFFENCES

1. I turn to the objective seriousness of the drug offences. The ongoing supply offence involved a total of 3.04 grams of cocaine arising from the three identified occasions. In each case, the cocaine was of a relatively high level of purity, ranging between 73.5% and 85.5%. The role of the offender was that of a literal courier or runner in effecting the deliveries to the persons who had placed their phone orders.
2. With reference to the small quantity actually supplied, as observed by Howie J in Mirza v R [2007] NSWCCA 248 at [11]: "It may well be the case that the seriousness of this type of offence will not be diminished simply because the overall amount of drugs supplied is small. But it does not follow that the amount of drugs supplied is an irrelevant matter in determining the seriousness of the particular offence."
3. The role of the present offender, similarly to Mr Bakri, was one where he was exposed to the danger of apprehension in the customary fashion of most couriers or runners.
4. The Crown submits that the objective seriousness of the ongoing supply falls just below the mid-range of objective seriousness for this kind of offence. Mr Lange of counsel submitted that it falls very much towards the lower end of the scale for such offences. Without embarking on a dissertation about the semantics involved in an attempt to place an individual factual circumstance at a precise point within a somewhat amorphous range, I agree that it falls below the mid-range.
5. The sophistication of the operation, notwithstanding the absence of autonomy or organisational authority in this offender, does not in my view place it at the lower end of a perceptible range of similar offending.
6. The offence of actual supply, being a roll-up or composite offence derived from some 68 separate occasions, gives rise to the somewhat perplexing conundrum that a lesser maximum penalty applies to the charge which has been preferred than would arise if the offence is construed as ongoing conduct, various examples of which would occur within a period of less than 30 days, by reference to the repetitive supplies identified on the particular dates throughout the Agreed Facts.
7. I should make it clear that I am well aware of what is described as the De Simoni principle and I intend to be careful to not take into account factors which would warrant a more severe maximum penalty. The Crown submits that the composite total in the single substantive offence of supply and the nature of the effecting of the supply leads to a conclusion that the objective seriousness falls within the mid-range.
8. On behalf of the offender, it was submitted that the supply offence falls below the mid-range. It was pointed out that the quantity involved was less than half the commercial quantity prescribed for cocaine. That, of course, is not the only, nor is it the chief factor to be taken into account. The significance of role is recognised in the offender's submissions as being more important than the specific quantity of drugs involved.
9. The somewhat awkward conundrum to which I have referred above in relation to De Simoni arises as a consequence of the composite act of supply which is relied upon being, in fact, a course of conduct. The actuality of the charge of supply is that it is constituted by 68 supplies of individually small amounts giving rise ultimately to the concept of a singular supply and the quantity of 121.92 grams.
10. I agree with the Crown's submission that the objective seriousness falls within a broad mid-range.

PARITY

1. I turn to the topic of parity. The two substantive drug offences were similarly charged against the co-offender, Kameal Bakri. The indicative sentences in relation to Bakri, taking into account the 25% discount for the plea of guilty, were 15 months with respect to the ongoing supply charge and 20 months with respect to the cumulative supply count. As noted earlier, Bakri was involved in half the number of separate supplies constituting the composite single charge, as compared to the present offender, and a total of 68 grams of cocaine in his substantive supply, as contrasted with the composite total of 121.92 grams supplied by Ismail.
2. Bakri was directed to serve the aggregate term of imprisonment of two and a half years by way of an Intensive Corrections Order for the reasons set out in my remarks on 30 July 2021. The drug offences were the only offences for which he was being sentenced. A consideration of parity with the sentence imposed against Bakri for the drug matters will be a relevant factor in the ultimate instinctive synthesis in the determination of the matter involving Mr Ismail.

OBJECTIVE SERIOUSNESS - POSSESSION OF FIREARMS

1. I turn to the objective seriousness of the possession of the firearms. Section 51D(2) of the Firearms Act 1996 (NSW) arises from the possession of more than three unregistered firearms, at least one of which is prohibited. The weapons possessed by Mr Ismail were eight prohibited pistols, being the eight Glocks, as well as two pistols within the relevant descriptions in the firearms legislation. The seriousness of such an offence is informed by the maximum penalty prescribed, namely 20 years' imprisonment, and the standard non parole period of ten years. These operate as guidelines or yardsticks with respect to the ultimate determination of an appropriate sentence.
2. The seriousness with which the possession of prohibited and unregistered firearms in the community is viewed is also reflected in the numerous statements of principle in a variety of decisions of the Court of Criminal Appeal. The then Chief Justice, Spigelman CJ, explained the rationale behind the introduction of s 51D in R v Brown [2006] NSWCCA 249 at [21] to [22]. His Honour described persons engaged in the warehousing of firearms as playing "a critical role in the perpetration by other criminals of the worst crimes of violence in this community".
3. While his Honour in that case was referring to the warehousing of weapons for sale, warehousing or safekeeping on behalf of others, as is claimed by the current offender, has an equally critical role in the perpetration of crimes by others.
4. The Court of Criminal Appeal has consistently referred to the Parliamentary intention to eliminate firearms from the community unless their possession is expressly authorised by law and that sentences for contravention of the firearms laws should "operate as real disincentives to those otherwise attracted to the illegal possession of firearms": see R v Jihad Mahmud [2010] NSWCCA 219.
5. In R v Lachlan [2015] NSWCCA 178, Gleeson JA stated, at [66]: "The basic offence under s 51D(1) of the Firearms Act prohibits the possession of more than three firearms if the firearms are not registered and the person is not licenced to possess them. This offence attracts a maximum penalty of 10 years imprisonment. Section 51D(2) is directed to an aggravated form of this offence and applies where a person is in possession of more than three firearms at least one of which is a prohibited firearm or pistol. The higher maximum sentence of 20 years under s 51D(2) reflects that this is an offence which the legislature regards with considerable gravity: R v Brown [2006] NSWCCA 249 at [20] (Spigelman CJ; Howie and Rothman JJ agreeing)."
6. In Taylor v The Queen [2018] NSWCCA 50, Johnson J stated at [59]: "The offence under s 51D(2) of the Firearms Act 1996 may be committed in a wide range of circumstances. The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s 51D is not limited to the punishment of criminals who warehouse and harbour illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent. This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms." (citations omitted)
7. In Mack and Mack v R [2009] NSWCCA 216, Davies J, with whom McClellan CJ at CL and RA Hulme J agreed, set out matters which inform the objective seriousness of offences contrary to s 51D(2) of the Firearms Act, namely: 1. (a) the number of firearms; 2. (b) the number of firearms that were prohibited or were pistols; 3. (c) the nature and type of the firearms; 4. (d) the purpose for the possession of the firearms; 5. (e) evidence which would show any relationship between the possession of the firearms and the drug industry being carried on at the premises; and 6. (f) the location of the property and the security under which the firearms were kept."
8. The present matter, as I have indicated, involved ten pistols, of which eight were prohibited pistols. The majority of the weapons had accompanying box cartridge magazines. They were in close proximity to the property at Claremont Street, Merrylands, which was owned by a person who would appear to have been the principal in the cocaine delivery operation.
9. As set out in detail in my remarks of 30 July 2021, those premises were subsequently searched and police located a little under 100 grams of cocaine, in excess of $360,000 in cash, a taser, and almost $900,000 worth of luxury goods. Substantial indicia of a cocaine supply operation included multiple ledgers, digital measuring spoons, cutting agents, scales, thousands of resealable plastic bags, a heat-sealing machine, mobile phones, and a two way radio. It is understood that the occupier and owner of those premises is yet to stand trial.
10. The circumstance in which the closed but not locked suitcase was in the boot of a motor vehicle adjacent to those premises might lend support to a possible inference of a connection between the activities emanating from the Claremont Street premises and the possession of the various pistols. However, no evidence in support of that inference has been adduced. Notwithstanding the weapons being stored in the boot of a locked motor vehicle, the inherent level of security was substantially less than many other factual circumstances which come before the Court.
11. They were not in a padlocked metal trunk in a locked building on a remote rural property (Weaver v The Queen [2020] NSWDC 556; Weaver v R [2021] NSWCCA 215); nor were they hidden in a cylinder which was in turn hidden in bushland (R v Shannon [2019] NSWDC 942); nor were they in a locked toolbox in a vehicle inside the garage of a locked residence (R v Aird [2019] NSWDC 512); nor in a locked storage unit (R v Smith; R v Campbell [2018] NSWDC 293; [2019] NSWCCA 1).
12. The location of the weapons in a motor vehicle parked in a public street does not require a close examination of the ease with which motor vehicles are regularly stolen in order to emphasise the extreme lack of security in the manner of the possession of these prohibited weapons. The seriousness of the offending, as I have earlier indicated, has been repeatedly stated by the Court of Criminal Appeal and was again emphasised in R v Smith and R v Campbell (supra). Rothman J said at [9]-[10]: "The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society. It must be accepted that the kernel of the criminal conduct involved in possession of firearm offences is the possession of the firearm."
13. His Honour repeated his firm view that firearm offences are treated too leniently. In that case, the aggregate sentences imposed by Judge Bright were quite substantially increased by the Court of Criminal Appeal. While there were a lesser number of prohibited firearms than in the present matter before me, both Smith and Campbell had been members and senior-ranking officers of outlaw motorcycle gangs. Smith had in fact been the sergeant-at-arms of two chapters of the Nomads outlaw motorcycle gang, and as such had been responsible for the security and management of club weapons including firearms.
14. The sentencing judge had found that the offending in that case fell well above the mid-range. Whilst clearly indicating that in his view, the overall circumstances of the case fell at a level where "it is difficult to imagine any more serious circumstances", Rothman J did not consider that a sentence beyond that which had been indicated in the disposition of the Crown appeal by RA Hulme J was necessary.
15. The aggregate sentence, which included numerous offences relating to the manufacture of prohibited drugs, was increased by the Court of Criminal Appeal from 11 years to 16 years. The non-parole period at first instance of 7 years 4 months was increased to 10 years 6 months.
16. The indicative sentence in the District Court for the offence under s 51D(2) had been, taking into account matters on a Form 1, 6 years with an indicative non parole period of 4 years, after allowing for a discount of 25%. The increased indicative in the CCA was 7 years 6 months with an indicative non parole period of 4 years 10 months. This would clearly reflect an undiscounted starting point of 10 years.
17. The purpose of the possession in the present matter is not as self evident as the connotation of the possession by the relevant officer of an outlaw motorcycle gang. No evidence has been called from the offender, nor did he proffer any explanation following his arrest. The letter of apology provided to the Court from him indicates that he had become involved with illicit drugs, which in his words, led him to "some bad choices and a lot of mistakes I made". In that unsworn and untested correspondence, he said: "I was using drugs and got lost along the road. I was stupid and started dealing drugs to support my own habit. Once you're in that world, you don't think properly, and it was so easy for me to get myself involved in more serious things. I clearly was around the wrong people and let someone use my car as storage. I didn't know exactly what or how many guns were there, but I should have, and that's not an excuse."
18. The offender went on to say that he himself had been the victim of a gun crime and that had changed his whole world. He said, "I just should have known better". The Court must bear in mind that this statement is not verified by sworn testimony, nor was it subject to the test of cross-examination. Judges at first instance have repeatedly been reminded of the reserve which should be entertained in such circumstances. I refer specifically to the expressions of principle in R v Qutami [2001] NSWCCA 353 and R v Imbornone [2017] NSWCCA 144 and similar cases.
19. I do note that the only relevant evidence before the Court in the Agreed Facts touching on the ability to access the vehicle and its contents is that there was one key to this Lexus and that it was in the possession of the offender, who had had exclusive use of the vehicle for some many months prior to his arrest.
20. The nature of the ten pistols, each of which was in working order and effectively untraceable, combined with their insecure location in a car parked on a public residential street, places this offence above an identifiable mid-range. I recognise, as submitted on behalf of the offender, that worse examples exist factually in circumstances where there are located veritable arsenals of hidden weapons.
21. Specific reference was made to Dionys v R [2011] NSWCCA 272 where the actual substantive offence under s 51D(2) related to five weapons, one of which was a light machine gun, but there were an additional 89 weapons which were the subject of charges on the Form 1. In that particular matter, whilst the separate counts were ultimately telescoped to some greater degree by the Court of Criminal Appeal, the sentence of 12 years with non parole period of seven and a half years with respect to the s 51D(2) offence following pleas of guilty was not interfered with. The offender's submissions also made reference to Taylor v The Queen [2018] NSWCCA 50 which concerned some 30 weapons.
22. In Goldberg v The Queen [2018] NSWCCA 99, Fullerton J, with whom Hoeben and White JJ agreed, found that the possession of four pistols in that matter did not fall above the mid-range of objective seriousness. The finding by the sentencing judge, his Honour Judge Blackmore SC, that the offences fell above the mid-range was held not to have been open to his Honour and error of the kind identified in House v The King was found to have been established. However, for the reasons that I have referred to earlier, I remain of the view that the possession of the particular weapons in the present matter, in all of the surrounding circumstances, falls above the mid-range.

MITIGATION AND QUASI-CUSTODY

1. I turn to relevant factors in mitigation. I dealt with a number of relevant aspects in my earlier remarks. It is noted that the offender entered his pleas of guilty in the Local Court and is accordingly entitled to a 25% discount to reflect the utilitarian value of those pleas. He has expressed remorse and contrition through those pleas, and such remorse and contrition is also evidenced by his adherence to the rehabilitation program. It is further reflected in various of the character references and other subjective material tendered on his behalf.
2. His perseverance in the program of rehabilitation increases the positive assessment of his prospects for ultimate rehabilitation. His prior good character is entitled to some weight, albeit that persons involved in the carriage and physical distribution of drugs are frequently of prior good character. The period of time that he has spent in residential rehabilitation is a period in respect of which he is entitled to have that viewed as quasi-custody. The principles applicable to such an assessment are well established since at least the decision in R v Cartwright (1989) 17 NSWLR 243. The generally accepted range of allowance for such time in residential rehabilitation ranges between 50% and 75%.
3. In Cartwright, the allowance of a further six months to the very substantial reduction on account of assistance to the authorities was a period which represented 75% of the eight months that Cartwright had been absent from his home in Sydney and resident in Canberra so that he could deal on a daily basis with the Australian Federal Police in the course of providing them with ongoing and further assistance. He was unable to return to his home in Sydney whilst he provided that assistance. In those circumstances, the Court assessed the additional reduction, including the loss of ability to earn remissions which were applicable at the time, as warranting an allowance of 75% for the period.
4. In Kelly v The Queen [2018] NSWCCA 44, Garling J, in his dissenting judgment at [9]-[15], set out various factors which his Honour was of the opinion should be taken into account in determining whether quasi-custody should be taken into account and also the extent to which they should be taken into account. Hidden J did not express a concluded view regarding those factors.
5. In the present matter, the offender has spent a total of approximately four months on conditional liberty when first granted bail, which was of course subject to curfew, and ultimately a period of 10 months 13 days in full time residential rehabilitation. Without undertaking a detailed analysis of the various decisions in which allowance has been made regarding pre sentence custody or quasi custody, I propose to allow a period of approximately seven months with respect to the substantial restrictions on the free movement of the offender in the course of his undertaking the residential rehabilitation program.
6. In combination with the time spent in actual custody, namely one month and 26 days, the sentence which I will impose will be backdated by nine months. I take that course rather than simply taking it into account, pursuant to the observations from R v McHugh (1985) 1 NSWLR 588.

SENTENCE

1. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, I propose to sentence the offender to an aggregate term of imprisonment. The indicative sentences will be as follows, in each case after allowing for a discount of 25%. Could you just stand up, please, Mr Ismail?
2. The indicative sentence for the ongoing supply, taking into account a 25% discount, will be a period of 2 years.
3. For the single substantive supply charge, taking into account the matters on the Form 1, I indicate a term, taking into account the 25%, of 3 years.
4. For the firearms offence, taking into account the matter on the Form 1, I indicate a term of 7 years 6 months after discount with an indicative non parole period of 4 years.
5. The aggregate term will be a head sentence of 9 years.
6. I find special circumstances based upon a recognition of the steps already taken towards rehabilitation, the fact that it is the offender's first time in custody, the practical effect including the delay in sentencing by virtue of the s 11 adjournment, and the ongoing circumstances of the COVID-19 pandemic within correctional institutions. There will accordingly be a non parole period of 5 years.
7. With the backdating of 9 months, the sentence will commence on 3 March 2021. The non-parole period will therefore expire on 2 March 2026 and the balance of term will expire on 2 March 2030.
8. Mr Crown, is sequence 1 to be withdrawn?
9. ISAACS: Yes, your Honour.
10. HIS HONOUR: I note that sequence 1 is to be withdrawn.
11. ISAACS: That's the one on the 166, to be clear--
12. HIS HONOUR: Yes.
13. ISAACS: --yes, that's left.
14. HIS HONOUR: All right. No other orders, Mr Crown?
15. ISAACS: No, your Honour.
16. HIS HONOUR: All right. Thank you all.

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