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[2011] NSWDC 62
District Court of NSW
2011-04-21
Original judgment source is linked above.
Introduction 1A joint operation by New South Wales Police and the New South Wales Crime Commission, Operation Schoale, has led to the charging of a number of people associated with the importation and distribution of cocaine in the community. John Youkhana, the offender, was a cocaine seller associated with this group, he was not involved in the importation of the cocaine. The investigation into the offender's activities included telephone intercepts, listening devices, a controlled purchase, an authorised covert search and the execution of a search warrant. The results of these investigations are summarised in the Facts Summary, Tab 1 of Exhibit A.
Matters in dispute 2Two factual matters were put in dispute by the defence, these were highlighted in the Facts Summary, Tab 1. Objection was also taken to the summaries of telephone intercepts in Exhibits B and C. I admitted Exhibits B and C as aides only to my review of the full transcript of the telephone intercepts that comprises Exhibit D. The defence also put forward an assertion that the offender was acutely mentally ill in the period leading up to his arrest and also that he was addicted to the drug cocaine. My conclusions in relation to these disputed facts are based upon facts not in dispute, the brief of evidence and my reading of the seven hundred plus telephone transcripts which are Exhibit D. I am also assisted by the written submissions of Ms Gray, for the Director of Public Prosecutions, and Mr Gartelmann, for the defence, that were provided to me today. In the limited time available to prepare these remarks I cannot do full justice to those comprehensive and helpful submissions, which I take into account. 3It is not in dispute that in January and February 2007 the offender received a large number of telephone calls; a very large number of telephone calls. Some of those calls involved customers making arrangements to purchase small amounts of cocaine for money or, occasionally, goods. In addition to what is contained in the telephone intercepts, on 4 February 2007 the offender was observed counting cash into piles of $50 notes. On 12 February 2007 he threw out a number of mobile phone boxes. On 6 February 2007 an undercover police operative purchased 0.17 grams of cocaine, seventy-three per cent purity, from him for $100. On 13 February 2007 when police searched his premises at Newington they found 657.83 grams of cocaine stored at different locations, some of it packaged in small bags. Other drugs were also found along with indicia of supply, such as multiple mobile phones and SIM cards, scales, boxes of plastic bags, over $38,000 in cash, firearms, prohibited weapons and ammunition: see photographs Exhibit A, Tab 13. The firearms were:
Firearms Act offences 27So far as the firearms offences are concerned, they were laid pursuant to s 71 of the Firearms Act 1996 and carry maximum penalties of fourteen years and a standard non-parole period of three years. Two firearms were found in the offender's flat: the pistol and the semi-automatic rifle. They are the subject of the charges. However, other firearms and prohibited weapons are to be taken into account on the Form 1s attaching to these two counts. The firearms were not stored safely. The pistol was loaded on 1 February 2007 and it was in the offender's bedside drawer. On 13 February 2007 it was in a bag on the balcony. The semi-automatic rifle was initially under the offender's bed and then found, after arrest, in a wardrobe of the bedroom. 28The possession of firearms, particularly a loaded pistol, in premises used for the storage, distribution and occasional sale of illicit drugs needs only to be stated to indicate the seriousness of what was done. There was considerable potential here for the firearms to cause harm to individuals and to the community. It is that potential for serious harm that requires strict rules for the licensing and possession of firearms. While s 7 criminalises both the possession and the use of firearms, in many cases their use would be a more serious offence and could bring the offence above mid-range. Here, the possession of a loaded pistol in the circumstances described falls within the middle of the range. The circumstance surrounding the possession of the rifle and its storage are slightly less serious and put this matter just below the middle of the range. 29Given my earlier conclusions in relation to the disclosure in Dr Nielssen's report, I make no finding one way or the other about the mitigatory or aggravating affect of the offender's purported mental illness but I note at this stage what fell from the then Chief Judge in Engert (1995) 84 A Crim R 67: mental illness, particularly where there is a danger to the public relating to the possession of firearms, is not always a mitigatory matter.
The assault offence 30Count 3 relates to an assault on the offender's partner, Ms Palumbo, on 13 February 2007. The facts reveal an assault in a domestic context but with no lasting physical effect. It was nevertheless a serious assault. Ms Palumbo was grabbed by the throat, slapped to the face and threatened. The Courts treat matters such as this with considerable seriousness. They can result in custodial sentences. When viewed in the context of the other matters on the indictment however and the time that has elapsed any penalty would be subsumed by those for the other counts. This is not to diminish the seriousness of the offence but simply to recognise that time has passed and that this matter falls into a different category than the other matters on the indictment. Had it been dealt with alone and in the Local Court alternatives to a custodial sentence might have been considered appropriate.
Subjective matters 31The offender has a long history of serious offending since he was a teenager. He has spent more time in custody than out of custody. He can gain no comfort from his record but he is not to be punished for it. He has, in my opinion, a significant risk of institutionalisation were he to receive a very lengthy sentence. He has been treated for psychosis and exhibited, at least since 2008, persecutory beliefs. Given my earlier findings, I am not prepared to find however that this matter was totally fabricated. It is not uncommon for people who have served long times in custody and are facing the stresses and strains of delay awaiting a serious sentence to develop psychiatric illnesses. I am pleased to note that all the reports indicate that he has responded well to treatment. 32The offender has the support of his partner and his family. He has a young child. Dr Nielssen says that his prognosis depends on his addressing his drug abuse issues and counselling is recommended. He has a motivation to change his pattern of behaviour. That said, past behaviour is the best predictor of future behaviour. Although there are three matters on his record and some self reports to doctors of breaches of prison discipline, including one occasion for the use of cannabis, the delay has not led to any significant indications that he has other than kept to prison discipline and used his time in custody to advantage. There is certainly no indication that he is going backwards. 33Given his age and family situation I make a guarded finding that he has some prospects for success if given assistance on release. Given the total sentence that I am about to impose, the length of the parole period of that sentence should enable the offender to have the assistance, one would expect, to enable him to adjust to community life. 34On occasions, special circumstances can reflect subjective matters and matters in mitigation. There are a few matters in mitigation here but because I have endeavoured to impose the lowest possible total non-parole period that is practical in the circumstances given the seriousness of the crimes involved, to further reduce that period by a finding of special circumstances would lead to a disproportionately lenient sentence. Accordingly, I find no special circumstances here other than the need to adjust the sentence I have imposed on Count 2 to make allowance for the accumulation of the sentences.
What is adequate punishment? 35A considerable sentence of imprisonment must be imposed. The severity of sentences however is not simply proportional to their length. Long sentences have a compounding impact on an offender: see Clinch (1994) 72 A Crim R 301 and MAK (2006) 167 A Crim R 159. A court must always stand back and look at the totality of offending and adjust sentences to ensure there is a just result. In this regard again I thank counsel for their helpful written and oral submissions. I have attempted to do so in this case, taking into account not only the case for the Crown but also that of the offender and the various purposes of punishment. The offender is clearly a man of some intelligence. With help he has the capacity to live a law-abiding life but the evidence so far indicates he has adopted a criminal lifestyle. A sentence should, if possible, avoid entrenching such attitudes. The offender must be removed from the community for a period but I do not find there is a need to further protect the community from the offender except for the period of the sentence that I must impose. 36The guilty pleas took some time coming. They were however indicated in the Local Court and although time is a significant factor when making an assessment of utilitarian value (Thomson and Houlton (2000) 49 NSWLR 383) it is not the only measure. The Crown concedes, here, that the pleas do have considerable utilitarian value and should attract twenty-five per cent reduction in the otherwise appropriate penalty. I agree. 37Any sentence must recognise the potential for harm to the community in large-scale drug supply and possession of illicit firearms. Sentences must operate to deter not only the offender but others from committing such offences. In fixing appropriate and individual sentences I take into account the matters summarised above, including my findings of fact and the facts, which are not in dispute. I take into account the maximum penalties that are attached to each offence. 38I also take into account the submissions of the parties. I note the cases I have been referred to and the other material available to me through the resources of the Judicial Commission. I note, in particular, the need to adjust the overall sentence taking into account the principles of proportionality and totality. I note the other sentences imposed on those arrested and so far dealt with after Operation Schoale, but each case is different and individual. Consistency is not always capable of mathematical expression: Wong (2001) 207 CLR 584. 39I note that where there are reasons for departure from the standard non-parole period this does not dictate a strict mathematical deduction must be made, even where the only significant reason for departure is the early guilty plea. Once reasons for departure exist, the Court's general sentencing discretion must be exercised. Nevertheless, the standard non-parole period remains as a guide and a reference point to the sentences where that standard non-parole period applies. I note that Counts 1, 4 and 5 have Form 1s attached. I take them into account and in doing so have regard to the guidelines of the Court of Criminal Appeal in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146. 40There must be, of course, a measure of personal deterrence and the offender must be held accountable. From what I have said, it is clear that the principle of general deterrence is also a significant factor. The community must understand that people who engage in conduct such as that of the offender will be sent to gaol for lengthy periods. 41What then is an adequate penalty? But for the plea of guilty, I would have imposed sentences of ten years in relation to Counts 1 and 2. In relation to Count 3, had it been the only matter before me I may not have imposed a custodial sentence but I have determined that a one month penalty be imposed. In relation to Counts 4 and 5, but for the guilty pleas, sentences of four years and three years nine months would have been imposed. 42If you could stand please Mr Youkhana. 43You are convicted on each count. On Count 1 on the indictment, taking into account three matters on Form 1A, you are sentenced to a term of imprisonment consisting of a non-parole period of five years and seven months and fifteen days, to commence on 13 February 2008 and expire on 27 September 2013, and a balance of term of one year and ten months and sixteen days. The total effective sentence is seven and a half years, to commence on 13 February 2008 and expire on 12 August 2015. 44In relation to Count 2, taking into account a finding of special circumstances, you are sentenced to a term of imprisonment consisting of a non-parole period of five years three months, to commence on 13 August 2008 and expire on 12 November 2013. You will be eligible for consideration for release to parole on that date, 12 November 2013. You will then serve the balance of term of two years three months. The total effective sentence on this matter is seven years and six months, to commence on 13 August 2008 and expire on 12 February 2016. 45In relation to Count 3 you are sentenced to a fixed term of imprisonment of one month, to commence on 13 February 2007 and expire on 12 March 2007. 46On Count 4, taking into account the two matters on Form 1B, you are sentenced to a term of imprisonment consisting of a non-parole period of two years and three months, to commence on 13 February 2007 and expire on 12 May 2009, and a balance of term of nine months. The total effective sentence is three years, to commence on 13 February 2007 and expire on 12 February 2010. 47On Count 5, taking into account the nine matters on Form 1C, you are sentenced to a term of imprisonment consisting of a non-parole period of two years, to commence on 13 August 2007 and expire on 12 August 2009, and a balance of term of nine months, to commence on 12 August 2009 and expire on 12 May 2010. That total effective sentence is two years and nine months, to commence on 13 August 2007 and expire on 12 May 2010. 48Now Mr Youkhana that means the total effective sentence is nine years, to commence on 13 February 2007 and expire on 12 February 2016. A non-parole period of six years and nine months is to commence on 13 February 2007 and to expire on 12 November 2013, on which date you will be eligible for consideration for release to parole. 49I note that in relation to the s 166 matters, sequences 9, 14 and 17, they are withdrawn and dismissed. Sequence 21 was not before the Court, having previously been withdrawn.
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: 19 September 2011
R
John YOUKHANA
(2004) 60 NSWLR 168
(2000) 49 NSWLR 383
(2001) 207 CLR 584
(2002) 56 NSWLR 146