R v Ismail; R v Bakri

District Court of NSW|2021-05-26|Before: Mr P

SENTENCE

Fadi Ismail and Kameal Bakri appear for sentence with regard to substantive offences relating to their supply of a prohibited drug, namely cocaine. I will come to the detail of the particular charges in due course.

FACTUAL BACKGROUND

The background giving rise to these charges is that in February 2019, investigators attached to the Wetherill Park Regional Enforcement Squad commenced an investigation into the distribution of cocaine throughout south- western Sydney. Cocaine was being distributed by motor vehicle delivery drivers pursuant to "orders" which were being placed by prospective purchasers via mobile phone.
Investigators ascertained that a drug supply network was being operated out of residential premises at an address in Claremont Street, Merrylands. The operation, described accurately by Senior Counsel in the proceedings before me as "dial-a-dealer" was a 24-hour business with the drug runners working as delivery drivers, on a shift-like basis.

OBJECTIVE SERIOUSNESS RE DRUG MATTERS

I turn to the question of objective seriousness. The learned Crown submitted that so far as Mr Bakri was concerned, each of his offences fell to some degree, under the mid-range of objective seriousness. Without getting into a fine analysis of just where precisely within the scale that falls, I agree with that description.
So far as Mr Ismail was concerned, the learned Crown submitted that the ongoing supply charges fell below the mid-range but so far as the actual supply offences, given the number of them and the amount of drug that it would fall broadly, within a mid-range. That categorisation was not disagreed with by Mr Lange of counsel, who appeared on behalf of Mr Ismail, and I consider it appropriate in the circumstances.

SUBJECTIVE CIRCUMSTANCES - ISMAIL

I turn to the subjective circumstances of Mr Ismail. He was born on 25 November 1988 and was 30 years of age at the time of his offending. His criminal history commences with driving matters which were dealt with in the Children's Court when he was approximately 17 years of age. His transgressions of the motor traffic law continued in the adult courts. Matters such as driving while suspended and exceeding the speed limit, constitute the height of his criminal transgressions, prior to the present offences.
With the sole exception of being charged in January 2012 with an offence of driving whilst disqualified, which was subsequently withdrawn, he would appear to have never been held in custody. Following that charge being preferred, the record indicates he was arrested on 8 February 2012 and charged with breaching his bail. He was detained on that day until granted bail later the same day at court. As I have already indicated, the original charge was subsequently withdrawn. Prior to his arrest for the present matters, he had spent no time in police custody or other custody, other than that brief period of hours on 8 February 2012, which did not culminate in a conviction.
On 31 July 2019, Mr Ismail was charged with a variety of the drug offences which are now before me either substantively or on the Form 1. On 19 September 2019 Mr Ismail was granted conditional bail at Parramatta Local Court. He was released the same day. He was re-arrested by police the following day, 20 September 2019. He was then charged with the firearms offences relating to the 10 pistols which had been located in the Lexus motor vehicle. He was bail refused and remanded in custody.
On 26 September he was again granted bail in the Local Court at Parramatta subject to the same conditions that he had previously been granted on 19 September.
On 19 January 2021, bail was varied by Judge Hanley SC to permit the offender to undertake a course of residential rehabilitation with Connect Global Limited at Swan Bay. He was admitted into that residential rehabilitation program on 20 January 2021 and has remained in that program to date.
The subjective circumstances of the offender Ismail have been placed before the Court from a number of sources.
In a letter of apology dated 25 May 2021, the offender expresses his feelings of shame and remorse. He described in that letter having been blinded by drugs and what he described as "false hope". He acknowledges that his actions were clearly wrong and expresses deep disappointment in himself and also for having let down his family and friends. In his letter he describes having hidden his problems in life from his family. He described having had issues with depression and how the death of his younger brother had affected him.
He said that instead of getting the right help he chose to use drugs which had led him into making bad choices and a lot of mistakes. He said that he was stupid and had started dealing drugs to support his own habit.
With respect to the weapons found in his vehicle, he said, "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".
He claims in his letter of apology that he is "Not a violent person and never have been". He also said, "I've been a victim of a gun crime and it changed my whole world. I just should've known better".
He said that in the two years since the offending he has tried to make himself a better person. He said that he is now clean and clear-minded. I take that to refer to being clean from drugs and clear-minded as a result of abstaining from drugs. He said that he has a much better relationship with his family.
He claims to have cut all ties from his past life. He says that he is now stronger and healthier than ever.
In his letter of apology he refers to the residential rehabilitation program which he is undertaking and said that he has taken the time, whilst at Global Connect, to reflect on his wrongdoings.
He 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."
An affidavit from the offender's father, Mr Abdul Ismail, affirms a number of aspects of the offender's upbringing.
Mr Ismail senior indicates that he is now 67 years of age and retired. He ran his own business as a manufacturer of kitchen cupboards and benchtops for 22 years. Since arriving in Australia in 1971 he has never been in trouble with the police.
In his affidavit the offender's father indicates the ages of his five children, of whom the offender is the youngest. A sixth child, who was the offender's younger brother, had been killed in a motor vehicle accident in February 2012. That brother had only been 12 months younger than the offender who was some 15 years younger than the next elder child.
His father describes the offender as being the most affected in the family, because of how close the two younger brothers were. The offender was 22 years of age at the time of his brother's death.
Mr Ismail senior indicates that the offender left school in Year 9 and then began work as an apprentice in the kitchen manufacturing business. Following a workplace accident in 2012, the offender had stopped working in the kitchen manufacturing business and had started up his own mobile phone repair and accessory business.
In due course, the offender had opened a shop called "Phone Gallery". For reasons which are not disclosed in the affidavit the offender is described as having lost that business at the end of 2018.
Mr Ismail recounts the many expressions of regret from his son and describes that the circumstances may be a wake-up call from God to come back to his family, to stay on the right path and to stay away from certain friends.
His father has continued to stay in regular contact with the offender during his son's time in rehabilitation.
A psychological report under the hand of John Machlin, clinical psychologist, was also tendered. Mr Machlin's report describes the offender's family and personal background in overview. It sets out similar detail regarding the family background as was set out in the affidavit of Mr Ismail senior.
The psychological report refers to literacy problems during the offender's time in Primary School at Auburn West. He was described as being a poorly adjusted, although average student, at Granville Boys' High.
A history was described of the offender being depressed and turning to drugs before leaving school at the end of Year 9.
After working in his father's business from the age of 14 until 19 the offender then worked in a variety of construction jobs, including gyprocking and plumbing. The offender's involvement with mobile phone repairs was described, including the running of his shop within a shopping centre, and also the opening and running of a second store. The failure of that business was attributed to "high rents and problems with accountants".
The history given to the psychologist included the circumstance that the offender's drug use was always operating in the background. Episodes of depression leading to the formation of drug habits whilst still at school were described in detail.
The offender described to the psychologist, in substantial detail, the circumstances of his brother's death in the motor vehicle accident including having witnessed the fatal injuries. The prolonged bereavement and persistent trauma symptoms were similarly described in considerable detail.
A subsequent incident, a little over a month after the death of his brother, compounded the emotional trauma of the offender. He was described as being the victim of a shooting in circumstances that, according to Mr Machlin, "were not fully explained". The bullet was described as having hit a main artery in the offender's leg and he was said to have been fortunate to have survived the heavy blood loss.
His abuse of illicit substances was similarly described as being since his early teen years.
Following the collapse of his mobile phone business, the offender described to the psychologist having felt like a failure and having become depressed. He said that he hated his life and used cocaine to numb his pain. His cocaine use was said to have escalated to extreme levels. He commenced selling drugs to support his habit and because he needed money to pay off debts. He also endeavoured to demonstrate to his family that he was not a failure.
However, he gave the psychologist little explanation for the firearm offences. The offender acknowledged that they were in his possession and confirmed his guilty plea.
The offender described to the psychologist his active participation in therapeutic groups and daily chores within the residential rehabilitation program. The offender said that he had passed all urinalysis tests during the course of the program. The urine drug analysis results which corroborate that account have also been tendered.
The psychologist formed the professional assessment that the information supplied to him was appropriately detailed and coherent. The offender impressed the psychologist as being of sound intelligence. There were no signs of cognitive impairment or psychotic disturbance and he completed the psychometric testing without impediment.
Aspects of the offender's history were corroborated by interviews conducted with the offender's father and with Mr Pene, the rehabilitation coordinator. Psychometric testing suggested significant post-traumatic stress symptoms, relating primarily to the offender's brother's fatal car accident and having witnessed the same.
Detailed DSM-V diagnosis demonstrated a severe Cocaine Use Disorder against a background of Post-Traumatic Stress Disorder and a Major Depressive Disorder. The Cocaine Use Disorder was in remission following his period of time in the rehabilitation facility and the other conditions were considered to have each improved.
The psychologist recommended that Mr Ismail be permitted to complete the rehabilitation program. Mr Machlin thought that successful completion of the program was the offender's best chance of ultimate recovery from his cocaine addiction. He expressed the view that this would substantially reduce the likelihood of recidivist behaviour.
A number of personal testimonials were also tendered. Catherine Romel, a project coordinator for the John Holland Construction Group indicated that she has known the offender for 11 years. She considers him as a close friend. She said that when she became aware of the charges against the offender, "to say that I was shocked when I found out would be an understatement".
She described the incidents following the death of his brother including being the victim of a shooting and the subsequent closure of his phone business. She thought he had never really recovered and that he had turned to drugs when he should have got professional help. She deposed to his expressions of great remorse and regret and the positive step of him having checked into the rehabilitation program.
A letter from his brother-in-law, Jalal Arja, refers to his surprise at becoming aware of the offender's involvement in supplying drugs and the possession of drugs. His brother-in-law described him as being in essence, "a good man who can and is trying to redeem himself". He described the offender as having been a good friend and providing support to other members of the family.
A second brother-in-law, Ronni Mukhallalati, described the conduct and behaviour of the offender with respect to the current criminal charges as being out of character. His reference described the complete surprise that this member of the family felt, notwithstanding his knowledge of the motor traffic offences.
A further reference was provided by Jake Katrakis-Larkin who is an IT professional. He indicates that he had known the offender for seven years and was first hired by him as a junior technician in the mobile phone repair business. He described having developed a great friendship with Mr Ismail over the following years. He said that he was dumbfounded when he became aware of the current charges and that it was beyond his imagination that the offender would become involved in such offences.
However, he also described being aware of the offender having an involvement in drug use whilst running his mobile phone business. He described his relief at hearing about the more recent attempts at professional help in the rehabilitation program. He expressed confidence and optimism regarding the future of his friend.
A letter from the program founder and coordinator of the residential rehabilitation program, Mr Ross Pene was also tendered. Mr Pene was also called to give sworn evidence. The Connect Global and Drug and Alcohol Rehabilitation Education and Training Centre is conducted at Swan Bay near Port Stephens in New South Wales. The program has been running for some 10 year and claims a very, very high success rate as a result of the model that they run.
The claim of a high rate of success would appear to be supported by the evidence that 1,000 people were said to have successfully completed the program in the 10 years and only 2 had been sent back into custody.
Mr Pene described the contract that all participants were required to enter and although not described actually as a gaol he indicated a very tight rein being held on every individual that goes into the program. He described the detail of the daily activities and the aims of the program in developing what are described as lifestyle solutions. In conjunction with the positive steps including participation in cognitive behaviour therapy and individual case management and counselling, the program also includes the conducting of random urinalysis on a weekly basis.
In his oral testimony, Mr Pene described the generality of the program and also the specific application and commitment to the program demonstrated by the present offender. He said that it required big changes to take place, predominantly with people who had come out of prison and that the process takes time and accordingly runs between 6 and 12 months. His recommendation was for a further 6 months of rehabilitation with respect to the present offender.
He was cross-examined in appropriate fashion by the learned Crown Prosecutor. I ultimately was extremely impressed by the nature and description of the program and Mr Pene's obvious commitment to it.

SUBJECTIVE CIRCUMSTANCES - BAKRI

Kameal Bakri is 25 years of age, having been born on 28 September 1995. He was 23 years of age at the time of the commission of the offences. Bakri did not give evidence in the proceedings on sentence. However, material touching upon his subjective background and circumstances has been tendered in a number of character references and in a psychological report from Mr Chafic Awit, Registered Psychologist.
The offender was born in Sydney and is the fourth child of seven in his family. According to the account provided to the psychologist, the offender's father was verbally abusive towards his mother and physically abusive towards the various children. Mr Bakri's father was unemployed as far back as the offender can remember. He described his mother as always being a homemaker. He ultimately described his childhood as "good and bad".
Mr Bakri attended Granville East Public School until the end of Primary School. He then attended Granville Boys' High School through to Year 12. He described behavioural issues at school and was often in trouble for being the "class clown". The history provided to the psychologist suggests that the offender first commenced employment at the age of 15 as a tree-lopper labourer for one year. Given his apparent completion of 6 years of High School, I can only assume that this employment was casual.
After leaving school, he attempted an electrical apprenticeship. This only lasted for six months. He then worked as a plumber's labourer for one month. The history recorded by the psychologist then suggested that he worked on and off for the next seven years as a labourer working variously with an electrician, or in a factory which made kitchens. I note some difficulty in reconciling the sequence of employment and more particularly, the lengths of such employment, with the offender's chronological age. I do accept however, in broad terms, that he has worked on and off as a labourer since leaving school.
The history of the offender with respect to substance abuse which was provided to the psychologist indicates that he commenced consuming alcohol at the age of 15. He described consuming a large volume of alcohol twice weekly. This habit continued up until his arrest in 2019.
He was also introduced to cannabis at the age of 15 and pursued that habit daily from the age of 16. His drug use continued until he turned 21, when he graduated to using cocaine rather than cannabis.
The history given to the psychologist asserted that he did not use cocaine regularly until the time that his sister-in-law was diagnosed with cancer in about 2018. Thereafter he used cocaine regularly, up until the time of his arrest in 2019.
Coincidentally with his increased abuse of cocaine, he commenced gambling at around the same time that his sister-in-law fell ill. The offender and his sister-in-law were described as best friends and she passed away from the cancer in 2020.
He described having ultimately seen a general practitioner in relation to symptoms of anxiety and depression following the death of his sister-in-law. Mr Bakri described in some detail to the psychologist a variety of difficulties in his schooling, as well as at home and at work, which the psychologist concluded met the DSM-V diagnostic criteria for Attention Deficit Hyperactivity Disorder or ADHD. The psychologist opined that it was "clear and evident that Mr Bakri was suffering a mental health condition, prior to/during the offending period".
The Depression Anxiety Stress Scale 21, or DASS 21, was also administered. The results indicated that Mr Bakri suffered from extremely severe depression and extremely severe anxiety in the lead-up to the period of the offending. These results were consistent with the DSM-V diagnostic criteria for generalised anxiety disorder and major depressive disorder.
Additional testing by the psychologist yielded results which were consistent with the symptoms reported and which also met the DSM-V diagnostic criteria for Attention Deficit Hyperactivity Disorder.
The psychologist also concluded, according to the specific criteria of DSM-V, that the offender was suffering a Substance Use Disorder and a Gambling Disorder.
Mr Awit, the registered psychologist, described expressions of remorse and shame by Mr Bakri in relation to his involvement in the offences. The offender expressed that he had no justifiable excuse for doing what he had done. He described his addiction to illicit substances as a means of escape from reality. He explained his involvement in the offending behaviour as having been struggling financially and being unable to support his cocaine addiction, and also to support his gambling.
He told the psychologist that he fell into his involvement in the supply of cocaine in order to support his own addictions. It was the professional opinion of Mr Awit that ongoing psychological intervention and assistance as well as drug counselling was, in his terms, "a must". A treatment plan was anticipated which would involve individual psychological sessions fortnightly over the next 12 months.
Mr Bakri would be required to enrol in Narcotics Anonymous whilst receiving drug counselling from the psychologist, Mr Awit. The offender would also receive cognitive behaviour therapy from the psychologist. He would also receive counselling to lower impulsive behaviour. A referral to a psychiatrist would be considered, if it was thought necessary.
In addition to the expert advice from the psychologist a number of character references were also tendered.
Mrs Mirvat El Zaphir, the mother-in-law of the offender's sister, describes having known the offender since he was 15 years of age. She described him as always being a good boy and having never seen anything wrong coming from him. She described him as always respectful and kind to others. She was surprised at his offending. Mrs El Zaphir described having had many discussions with the offender since his release on bail.
He told her about the difficult time in his life that he had been going through which had resulted in him taking drugs thinking that it would make him feel better. She said that he now understands that this was wrong path to take. She described him having stated that he would never do drugs again after seeing the heartache that it had caused his family, his friends and himself. She said that since his release he had been living with her son's family, in the back house of the premises where she resides in the front. She said that, "Since Kameal has been living with my son's family, I have never seen him do anything wrong. I see him leaving for work and coming back home from work. I see him playing with his nephews and nieces. Coming at the right time home, before his curfew" (sic.)
Mrs El Zaphir expressed the opinion that he had changed for the better and had worked on his social skills to be able to talk openly about his wrongs.
A further reference was provided by the offender's eldest sister, Sussan Bakri, who is employed by the Department of Education as a primary school teacher. She was the offender's supervisor, together with her husband, during his time on bail and was aware of the detail of all of his charges. The offender had lived with her and her family since he was granted bail in October 2019. I note her recollection was that it was September but the records indicate that it was October.
She described in detail the offender being a caring and loving uncle to her five children and the considerable assistance that he provided around the house. She described his considerable improvement both mentally and physically since he had been granted bail. She described him having sought guidance from friends and family, seeking religious guidance from counsellors at the mosque, as well as attending upon the psychologist.
She described observing the offender having worked on his health, both physically as well as mentally, since being granted bail in 2019. She said that he had lost about 10 kilograms by eating a healthy diet, by working out at the gym and by stopping smoking cigarettes. She expressed a belief that he had turned to drugs in order to distract him from the stress that he was going through in his personal life at that time. At the end of 2018, their sister-in-law and a brother of the offender's close friend, as she described it, had been diagnosed with Stage 4 cancer. As noted earlier, that sister-in-law in due course passed away at the age of 25 in April 2020.
As well as assisting his eldest sister with her children, Mrs Bakri described the offender as having been there for their brother and his two children following the death of their mother. He had been employed in electrical work whilst on bail but had to stop that specific employment because of circumstances surrounding restrictions from Covid.
She said that he was currently working to gain a water-proofing licence in order to expand his work skills for the future. He had been offered a full-time job after he is sentenced, as she understood it.
It is appropriate to note that in addition to the observations of members of his family, the material tendered on behalf of Mr Bakri includes pathology reports confirming the absence of illicit substances in the offender's blood, following urinalysis earlier this year.
An additional reference was provided by Ahmed Taleb, the offender's brother-in-law and the husband of his sister, Sussan Bakri. Mr Taleb described having known the offender for some 11 years and having been able to witness him at close quarters as a result of the offender living with his family since October 2019.
He described having witnessed substantial changes in the offender. He described him "having become more alert and driven, positive, healthy, hardworking and physically and mentally more of a family man". He described the offender having put his head into work and study, and having pursued studies for a different trade as a result of the absence of work in the electrical trade due to Covid. He described the offender as having changed his thinking positively and confirmed that he had stopped smoking for more than a year and had been working out in a gym in order to be physically healthy, as well as mentally.
Mr Taleb described the discussions that he had with his brother-in-law, the offender, and his earnest belief in the genuine nature of the offender's demonstrated rehabilitation.
Of additional importance was a reference provided by Mr Bilal Issa. He is the proprietor of an electrical contracting business for which the offender had worked prior to the difficulties caused by Covid restrictions. He described his observations of the offender at work whilst he had been on bail as punctual, hardworking and very responsible on a work site. Mr Issa indicates that he has offered the offender a full-time, six day a week job, once his court sentencing is finalised.
Clearly, such an offer will be subject to the current and ongoing difficulties in the construction industry as a result of the emergency provisions surrounding the present situation with regard to Covid in Greater Sydney. Notwithstanding that obvious reservation, the letter from the employer provides additional support indicative of the offender's very substantial steps towards rehabilitation, taken by him during the period of almost twenty-one and a half months since he was granted bail.
The Court was also provided with a Sentencing Assessment Report dated 3 May 2021. That report, by an officer from Fairfield Community Corrections Office, set out a similar account to that provided in the references with regard to the background of the offending. Significantly, the offender's response to supervision during the assessment period was found to be satisfactory and he was ultimately assessed as having a low risk of offending, according to the Level of Service Inventory-Revised (LSI-R).
The offender was assessed as being suitable to undertake Community Service work.
I should note, before leaving the offender's subjective circumstances, that he has never previously served any term of imprisonment. His past criminal history contains only one offence of driving a vehicle when the presence of an illicit drug was detected in a blood sample. He received a fine and a short disqualification from driving for that offence. He has no other criminal convictions.

DISPOSITION - ISMAIL

It is beyond argument that offences relating to the repeated and ongoing supply of illegal drugs are viewed seriously both by Parliament and by the courts. The maximum penalties available for the different kinds of supply charged function as guideposts for the Court.
A veritable litany of appellate authority, historically, from the earlier provisions of the New South Wales Poisons Act and flowing through to the current legislative proscriptions, repeatedly emphasise the importance of general deterrence, particularly with regard to organised drug supply operations (see for example the observations of the Wood CJ at CL in R v Kairouz [2005] NSWCCA 247).
As has been made clear in a series of comparatively recent decisions of the New South Wales Court of Criminal Appeal, notwithstanding the removal of the "so-called" Clarke principle, the circumstances that would justify a non-custodial sentence will be rare (see Robertson v R [2017] NSWCCA 205 at [50] and Parente v R [2017] NSWCCA 284 at [112]).
The situation with Mr Ismail is complicated by the circumstance that, not only were there a greater number of supplies but the amount of drugs supplied by him was also substantially greater than that supplied by his co-offender, Mr Bakri.
In addition, there is the very serious issue of the firearms found within the vehicle in respect of which, as the psychologist noted, there has been little if any adequate explanation.
The position so far as Mr Ismail is concerned is somewhat unusual. He was granted bail and then in the course of that bail, granted in effect leave, by a variation of his bail conditions by a judge of this Court, to undertake a rehabilitation program. That is a program about which, to my certain knowledge, the judge who granted the variation had some degree of knowledge.
That program lasts for a period of up to 12 months. The Court received the benefit not simply of a written letter by Mr Pene, the coordinator of that program, but detailed evidence from him given orally in court. That evidence was, as I have already described, the subject of cross-examination.
Mr Lange of counsel, in his customary and competent fashion, went straight to the heart of his submissions in urging the Court to permit Mr Ismail to complete that rehabilitation program, notwithstanding the inevitability of a custodial term due to the seriousness of the offences to which he has pleaded guilty and particularly bearing in mind the additional firearms offences.
It is unusual and indeed properly described as exceptional, that a court will rely upon the power to grant what at common law was described as a "Griffiths Remand", now statutorily an adjournment under s.11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in circumstances where a prison term will be the ultimate disposition.
However, it is clear that the Court does have such a power and the fact that a full-time custodial sentence is taken to be inevitable does not preclude the making of such an order under s 11 (see R v Brown [2009] NSWCCA 6; 193 A Crim R 574 at [22] and R v Rayment [2010] NSWCCA 85; 200 A Crim R 48 at [22] and [160]). At [22] Tobias J made reference to the previous law in relation to such an adjournment, as did Rothman J at [160]. In particular, their Honours made reference to the observations of Smart AJ (Spigelman CJ and Grove J agreeing) in R v Trindall [2002] NSWCCA 364; 133 A Crim R 119, relating specifically to the circumstances of a Griffiths Remand.
In the present matter, I have come to the view that given the lapse of time and what is now a shortened application to complete the course, and by that I am referring specifically to the additional two months that has passed since the matter was last before me, that I do propose to take what otherwise is described as an exceptional course.
The various statutory provisions permitting the utilisation of s 11 in my view are enlivened, in particular permitting the offender to demonstrate further than has presently been demonstrated, that rehabilitation has taken place.
In my view, given the very impressive nature of the program which he is involved in, it will be important to give consideration to its full completion in order to properly determine the length of an appropriate non-parole period in due course.
Accordingly, the formal order of the Court in relation to Mr Ismail will be that the matter is adjourned, part heard before me, subject to the availability of his representatives, to Friday 3 December 2021.
Before I turn back to Mr Bakri, I just want to say this to Mr Ismail. May I both commend and counsel you, to continue with the diligence about which I have heard to this point in time, in completing the program. It will be absolutely inevitable that the matter will be brought back to me sooner than that date, should you transgress the requirements of your contract in that program. Do you understand?
OFFENDER ISMAIL: Yes, I understand.
HIS HONOUR: Thank you. I will turn back to Mr Bakri.

DISPOSITION - BAKRI

In relation to Mr Bakri, I have earlier in my remarks, referred to the various and comparatively recent decisions of the New South Wales Court of Criminal Appeal, touching upon the circumstance in relation to involvement to a substantial degree in drug supply that a non-custodial sentence will be rare.
I can say clearly that in the present matter, I have no doubt that the s 5 threshold is crossed and that no alternative sentence would be appropriate. MrJames of Queen's Counsel did not submit otherwise. In my view, an aggregate sentence is an appropriate method of proceeding, with respect to the offences to which Mr Bakri has pleaded guility.
I note the submissions of the Crown, that each offence falls below the mid-range of objective seriousness, noting the role of the offender, namely as a courier, rather than as an operator of the business. In that regard, compare and contrast R v Mandramas [2021] NSWCCA 97. Taking into account the nature and quantity involved in the individual transactions, the number of transactions, the period of a little over two and a half months spent in actual custody, the extended period of some 21 months on bail, or 21 and a half I think, and the substantial steps taken towards reformation and rehabilitation, I consider that a term of imprisonment of 30 months, taking into account a reduction of 25 per cent for his pleas of guilty, would be appropriate.
I should note that the indicative sentences are 15 months imprisonment, with respect to the ongoing supply and 20 months, taking into account the various matters on the Form 1, with respect to the cumulative supply count. I turn next to a consideration of how such a term should be served. The recent decision of Mandramas, provides additional guidance with respect to a proper consideration of the application of s 7(1) of the Crimes (Sentencing Procedure) Act.
I have given careful deliberation to the paramount consideration of community safety, to the remarks of Simpson J in Mandramas and Harrison J in R v Pullen [2018] NSWCCA 264.
I should state clearly that I am extremely impressed by the steps taken towards rehabilitation by the offender and to the clear support that he has had in taking those steps from his family, and from his prospective employer. The degree of optimism in this regard expressed by his treating psychologist and also by the officer from Community Corrections lend considerable support to the view which I have formed.
In the particular circumstances of the offending in this matter, I direct that the term of imprisonment is to be served by way of an Intensive Correction Order. That, of course, will commence on and from today's date.
The formal orders of the Court are as follows: Mr Bakri, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 30 months.
Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. That sentence will commence on today's date. You must report and I take it that reporting in the present pandemic and public health safety provisions will need to be by telephone, to the Community Corrections Office at Fairfield, I take it, will still be?
OFFENDER BAKRI: Yes, your Honour, Fairfield, your Honour.
HIS HONOUR: At the Fairfield Office, initially by telephone, unless otherwise directed by them, as soon as practicable but no later than seven days from today's date.
The standard conditions of the Order will apply, Mr Bakri. Firstly, you must not commit any offence. Secondly, you must submit to supervision by a Community Corrections Officer. I am not satisfied that there are exceptional circumstances that would warrant not imposing an additional condition. You have been assessed as suitable for community service work.
Notwithstanding my lack of present perception as to precisely how that will be enforced, I direct that you perform Community Service work for a period of 250 hours, as directed by Community Corrections. A further condition will require you to abstain from drugs. That is illicit drugs.
You need to understand, Mr Bakri, that if you fail to comply with the conditions of this Order, the Commissioner of Corrective Services or the State Parole Authority, may impose sanctions. Such sanctions, that is the action that they might take, may include a formal warning, or it may include imposing more stringent conditions. Or, depending upon your transgression, it may include revocation of the Order.
If the Order is revoked, you may be required to serve all or some of the period that I have indicated, that is, of the sentence of 30 months, in full-time custody. I will direct that the Court registry cause a copy of this order to be forwarded both to you and to your legal representatives.
In addition to the orders that I have formally made, there is an application for a Confiscation Order.
ISSACS: Yes.
HIS HONOUR: Pursuant to the Confiscation of Proceeds of Crime Act 1989 (NSW), in relation to the cash sum of $725. I make the following orders:
(1) Pursuant to s 18(1), the cash in that sum, found at Old Guildford on 31 July 2019, be forfeited to the State.
(2) I give leave, pursuant to s 19(3)(a) that the property forfeited be disposed of forthwith.
I note that those orders were, I understood that they have been consented to but I do not seem to have a signature of the legal representative for--
ISSACS: There was certainly the indication of consent on the last occasion by counsel appearing.
HIS HONOUR: That was my understanding. That's the position, is it not?
KAK: Yes, your Honour.
HIS HONOUR: Yes, thank you. I make the Orders in accordance with the Short Minutes of Order. Is there anything I have overlooked, Mr Issacs?
ISSACS: Your Honour, just in relation to Mr Ismail, obviously, bail is to continue, presumably on the same conditions as before.
KAK: To the extent your Honour neglected to articulate, I should add that part of those words, bail is to continue on previous terms.
HIS HONOUR: To the extent that I neglected to articulate that, I should have uttered those words, bail is to continue on the previous terms.
OFFENDER BAKRI: Thank you.
ISSACS: The only other matter really, of housekeeping which should be recorded by really falls away in a way now, as to both the Firearms Act and the Drugs (Misuse & Trafficking) Act provided for, the Court does not need to structure orders any more in relation to the items seized under that. They're a matter for Police to make application, as I understand it. So there is no further order that is required.
HIS HONOUR: I am grateful for that understanding.

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: 29 June 2022

Drug (Misuse & Trafficking) Act 1985(NSW)

Therapeutics Goods Act 1966(NSW)

At a glance

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Judgment (8 paragraphs)

Legislation Cited (5)

Cases Cited (8)

Cited By (1)