R v Jomaa

R v Jomaa - [2018] NSWDC 511 - NSWDC 2018 case summary — Zoe

The Facts

The facts are agreed and they are as follows. In July 2014 police commenced an investigation into the supply of prohibited drugs within the St George Local Area Command. On 9 July 2014 the controlled operation was authorised to investigate the activities of this offender as well as a person called Hussein Kadouh and their associates. Between 29 August 2014 and 14 January 2015 Mr Kadouh was subjected to ten controlled cocaine purchases. On each occasion an undercover police operative referred to as Sara in the agreed facts met with Mr Kadouh. He would then supply Sara with one ounce of cocaine. During two of those controlled operations the offender supplied an ounce of cocaine to Mr Kadouh prior to it being onsold to Sara.
In terms of the count on the indictment, on 29 September 2014 Mr Kadouh organised to meet Sara to supply 1 ounce of cocaine on the following day. On 3 October 2014 at about 5.07pm Sara sent an SMS message to Mr Kadouh stating "Be there in an hour", and Mr Kadouh responded "K", and within a minute calls this offender's mobile service. Mr Kadouh informed the offender that "The girl" was on her way saying, "Come straight away to my house. The girl is going to be here in about 45 minutes. She just sent me a message".
Phone calls between Mr Kadouh and the offender followed by which they arranged to meet up prior to Sara arriving. During this meeting the offender supplied to Mr Kadouh the ounce of cocaine destined for Sara and that relates to count 1 on the indictment.
At about 6.01pm that day Sara attended Arncliffe Street, Wolli Creek. Approximately 25 minutes later Mr Kadouh entered her vehicle where he supplied her with the ounce of cocaine provided by the offender. Sara handed him $8,500 in pre-recorded currency. The cocaine was subsequently analysed and was found to weigh 27.4 grams and have a purity of 49.5%.
In terms of the offence on the Form 1, on 7 October 2014 Mr Kudu called Sara and asked about a meeting the following day. She stated that was not possible after which Mr Kadouh informed her that he had already collected the ounce of cocaine.
On 9 October 2014 at about 2.48pm Sara called Mr Kadouh and asked him to bring the cocaine to a pre-arranged dinner meeting that night. Less than five minutes later Mr Kadouh contacted the offender and the following conversation occurred, Kadouh, "All good for today ha?", this offender, "Ha?". Mr Kadouh, "All good for today?", this offender, "Who, Sara?". Kadouh, "Yeah", this offender, "Yallah I will be at yours soon".
The offender proceeded to supply an ounce of cocaine to Mr Kadouh. At about 6pm Mr Kadouh was driven to the Ruby Hotel on Victoria Road, Rozelle by Sara. At that hotel they met another undercover operative known as Danny and during this meeting they discussed the supply of cocaine. Mr Kadouh then left and caught a taxi back to his residence.
Around 7.50pm Mr Kadouh contacted this offender and informed him about the meeting that had just occurred. Mr Kadouh told the offender that he and Mr Kadouh had come back to Arncliffe but was going back to Rozelle. The offender asked him why he was going back to Rozelle to which Mr Kadouh replied, "Because I went to Balmain, we had dinner ah, and ah the guy thought the thing was with me but it wasn't". The "thing" was a reference to the ounce of cocaine.
At around 8.27pm Mr Kadouh attended Evans Street in Rozelle near the Ruby Hotel. Here Mr Kadouh supplied Sara with 1 ounce of cocaine which had been provided to him by the offender in exchange for eight and a half thousand dollars. The cocaine was subsequently analysed and was found to weigh 27.2 grams and have a purity of 40.5%.
At around 9.09pm Mr Kadouh called the offender again. During this conversation the offender said, "I'll be there soon, I'll swing past and pick it up". The reference to "it" was a portion of the proceeds from the supply of cocaine to Sara.
Between 10 October 2014 and 12 October 2014 Mr Kadouh celebrated his birthday at Meriton Apartments in Waterloo. A surveillance device was planted there. The offender also attended the apartment during the weekend and was seen receiving an unknown sum of money from Mr Kadouh.
On 10 December 2014 the offender was arrested for unrelated offences. His person and vehicle were searched and small brown bag in the vehicle contained some $50 notes totalling $1,800. On the same day the police executed a search warrant at his parents' home where he was residing. During the search of his bedroom $15,100 in $50 notes was found in a box in his bedroom. That money has already been forfeited by another judge by consent, as I understand it, under the Confiscation of Proceeds of Crime Act. There was no charge however laid in relation to that cash.
Between 10 December 2014 and 7 January 2015 there were some intercepted calls while the offender was in custody between he and his partner, and there was discussion about instructing his partner to obtain some money said to be owed by Mr Kadouh.

[4]

Assessment of the Objective Seriousness of the Offending

I turn then to my assessment of the objective seriousness of the offence. In sentencing for supply prohibited drug offending, the quantity and when known the purity of the drug are relevant but not determinative factors in sentencing. Here the cocaine the subject of the count on the indictment was 27.4 grams with a purity of 49.5%. The quantity of cocaine is a little over five times the indictable quantity which is 5 grams, but only one/tenth of the commercial quantity, 250 grams.
His precise role in the offence is clearly that of being someone who can access and deliver ounces of cocaine. In my view it is a role that is above that of a street dealer as he is able to deliver to those engaged in effectively 1 ounce deals. Clearly the offender engaged in the supply for financial gain, although as is frequently the case I am not able to determine or to quantify the financial gain. I note that the cash found in his bedroom at his parents' premises on 10 December 2014 was not the subject of a charge, and the Crown agreed when the matter was before me on the last occasion that the finding of that cash was irrelevant to an assessment of the objective seriousness of the offence.
The supply was ultimately to an undercover officer so the drug fortunately did not enter the user marketplace, if I can use that expression. However, it is trite to observe that the offender would not have known that at the time. I assess the level of objective seriousness as toward the bottom end of the range, but clearly not at the very bottom.
In terms of whether this offender is above Mr Kadouh in what I will describe as the supply hierarchy, that is a difficult issue in my view. It is particularly difficult where, as I will shortly discuss, the evidence in the offender's subjective case is that he is intellectually impaired. On balance, it seems to me to be more probably the situation that Mr Kadouh organised the supplies and used the offender as, if you like, a delivery person.

[5]

The Offender's Subjective Case

The offender is 27 years of age. He does have a criminal history. The most serious matters on his criminal history in my view are as follows. On 19 February 2010 the offender received 150 hours community service for drive whilst disqualified which on appeal to this Court was reduced to a s 9 bond of 18 months duration, which on 3 August 2011 was called up and the offender was given a suspended sentence of 12 months.
On 26 July 2011 he received a suspended sentence of 12 months imprisonment for an offence of drive whilst disqualified. It was a condition of that suspended sentence that he attend treatment with a nominated psychologist. On the same date he was fined in relation to possess prohibited drug.
On 24 January 2013 that suspended sentence was called up and a sentence of full time custody was imposed with a non‑parole period of four months. The offences which breached the suspended sentences were behave in an offensive manner and intimidate a police officer in the execution of duty. He received a sentence of full time custody in relation to the latter matter.
On 2 October 2014 the offender was again given a suspended sentence for drive whilst disqualified. That is in fact the matter which I will need to revoke.
On 9 June 2017 the offender was convicted and fined in relation to an offence of drive with an illicit drug in his blood, a result of which was not disturbed on appeal to this Court.
On 10 July 2017 the offender received a s 10 bond for two years for an offence described as a failure to comply with prohibition or requirement. On the same day he was given a two year s 10 bond for an offence of drive while suspended. Both of those s 10 bonds were called up and a conviction recorded on 30 August 2017 in relation to the failure to comply with a prohibition offence and a 12 month s 9 bond was imposed in relation to the drive while suspended offence. That bond was made conditional that he comply with directions of Ms Hayek, a psychologist as to urine analysis and psychotherapy.
On 30 August 2017 he was given short terms of imprisonment of 28 days for two drive whilst disqualified offences and a conviction for possess prohibited drug.
His criminal history is primarily concerned with drive while suspended and drive whilst disqualified offences. It doesn't assist him in my view on this sentence, but it is not an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.
The offence I am to sentence the offender for was committed while on a suspended sentence for drive whilst disqualified. That suspended sentence was imposed on 2 October 2014, only one day prior to the commission of the offence that I am to sentence him for. That is an aggravating factor. That suspended sentence will be revoked and I will impose a sentence in relation to that breach of the suspended sentence prior to imposing a sentence on the supply offence.
There are a number of psychological reports concerning the offender that are before me. I will deal with them in chronological order. There is a report dated 27 April 2015 from Associate Professor Stephen J Woods, a forensic psychologist. He saw the offender when he was in custody in March 2015 and the offender underwent neuropsychological testing on 20 April that year. At that time in terms of diagnosis the psychologist reported the following: Intellectual impairment, persistent depressive disorder known as dysthymia, recurrent major depressive episodes, adjustment disorder with mixed anxiety and depressed mood, poly‑substance misuse disorders. There was also a provisional diagnosis of organic brain damage.
The most significant diagnosis in my opinion is the diagnosis of intellectual impairment. The report records the intelligent testing of the offender at that time revealed that his full intelligence score was 70, which is in the extremely low range, equating to the bottom 2.2% of the population. His verbal comprehension was in the extremely low range, his perceptual reasoning, working memory and processing of information speed were all in the borderline range. I note that for the offender at that time to complete the personality profiles when engaging in that testing it was necessary for the psychologist to read the questions to him and explain the meaning of the inventory terms. No doubt that was because of his intellectual impairment.
The report details a number of head injuries the offender has suffered when 20 and 22 years of age. At that time the level of the offender's intellectual functioning was such that Associate Professor Woods considered that he had doubts as to whether the offender was fit to plead, although no issue as to the integrity of his plea here was raised before me.
There is a further report from Associate Professor Woods that is before me dated 28 October 2015. The diagnoses previously recorded were confirmed. The report records that the offender had been attending for treatment with Ms Carol Hayek, psychologist, since 7 May 2015 regularly. It also noted that he had gained employment with Road Link and had married. There is also a report from Ms Hayek dated 7 May 2018 who has treated the offender from 7 May 2015. Ms Hayek's report records: "Background to the Offender He is the second of three children. He initially as a young boy had a significant weight problem and underwent what was referred to as gastric sleeve surgery when he was 18. He was said to have suffered significant bullying and abuse from family members and peers. He is recorded as experiencing anxiety, depression and self‑medicated with illicit drugs from adolescence to early adulthood."
The report records that the offender is currently employed as a contract excavator, a position he has maintained for three years. He is recorded as presenting with a persistent stutter when stressed. He was said to exhibit no evidence of delusions or perceptual disorder.
The report records the offender as being very responsive to psychological intervention and to benefit from psychological therapy. The report records that the offender is remorseful and ashamed of his behaviour, although fails to record how the offender has expressed himself in that regard. Statements by psychologists in that bland, general way should not be made in my view unless the psychologist sets out how remorse and shame have been exhibit by an offender.
The offender did not give evidence before me so it was not possible for me to make a meaningful assessment of the degree of his remorse and contrition. I note there are documents from his wife with whom he has two young children, his mother and his sister. To some degree those documents corroborate the background detail in the psychological reports. There is also a document from his employer which is supportive, although I note it is dated 30 September 2015.
A significant issue in relation to this sentence is the relevance of the diagnosis of an intellectual impairment, and the fact that the offender has an overall IQ of 70. The following passages from the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120 have some particular relevant here: "Sentencing Mentally Retarded Offenders". The following appears at para 50: "The assessment that the appellant suffers from a 'mild intellectual disability' should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. 'Significantly subaverage intellectual functioning' is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission."
It is a relevant report which I will not read onto the record but it is particular apt.
In para 51 of their Honour's decision, their Honours said: "The fact that the appellant had engaged in some paid employment and that he held a driver's licence does not detract from the assessment of his retardation."
In para 53 their Honours set out a passage which is well known from Young CJ: "General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."
Their Honours after setting out some observations from Lush J in the same case say the following at para 54: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
Those observations of the High Court in Muldrock are particularly apt here where the offender is someone who has a general IQ of 70, which the High Court in effect defines as being mentally retarded, but is able to hold down some form of employment. It is unnecessary to enquire whether there was some causal connection between his intellectual impairment and the commission of the offence. Someone with the intellectual capacity of this offender is likely to lack the capacity to reason as an ordinary person might as to the wrongfulness of his conduct. Arguably, the repeated commission of drive whilst disqualified offences by this offender is indicative of his lack of intellectual capacity.
There is some debate in the Court of Criminal Appeal as to whether the issue of an offender's mental health is relevant to an assessment of the objective seriousness of an offence. In Yun v R [2017] NSWCCA 317 at para 47: "It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender's mental condition at the time of the commission of the offence is a critical component of 'moral culpability' which in turn affects the assessment of 'objective seriousness'."
Recently in Stanley v R [2018] NSWCCA 93, a decision this year, Harrison J with whom Simpson JA and Johnson J agreed said: "It seems to me that it is presently unnecessary to consider the relationship between mental retardation and either moral culpability or objective seriousness in the context of sentencing this applicant in order to dispose of this ground of appeal. It is not in dispute that the applicant suffers from a significant intellectual deficit. As the High Court has made clear in Muldrock, somewhat different considerations apply to the calculation of a proper sentence in the case of an intellectually disabled offender."
I consider that the offender's limited intellectual functioning is something peculiar attaching to an offender and is therefore not relevant to the assessment of the objective seriousness of the offence. However, consistent with Muldrock it is clearly relevant to his moral culpability. Given this offender's intellectual impairment his moral culpability for the offence and the breach of the suspended sentence is considerably reduced in my view. I also consider that his potential to stutter when under stress and his intellectual impairment would make him vulnerable in custody and would make his time there more onerous than it would be for those who do not suffer from such conditions.
He has reasonable to good prospects of rehabilitation given his family support, his employment and the work he has done with psychologists to date. The plea was entered on the day of the trial; I will allow a 10% discount for the utilitarian value of his plea. I think there is limited evidence of remorse. There are some statements contained in the third party documents that have been tendered in the offender's subjective case and a late plea of guilty was entered.
According to the Crown cover sheet he has spent three days in custody related to the current offence. Between 2 August 2017 and 29 August 2017 he served a sentence for another offence. There is something of a complication it seems to me in this regard, and I have heard further submissions on this issue today and there were some submissions on the last occasion. It is clear from the material before me that he entered custody on 11 December 2014, bail refused in relation to a number drive whilst disqualified offences which are not directly related to the s 12 bond that I am to revoke. He remained in custody in relation to those matters until 28 April 2015 when he obtained bail. He was though during that period subject to the s 12 bond that I am to revoke.
Ultimately in relation to those other drive whilst disqualified matters he was discharged under s 32 of the Mental Health (Forensic Provisions) Act on 6 November 2015. He was not charged with the supply offence that I am to sentence him for until 29 September 2015. The period in custody between 11 December 2014 and 28 April 2015 does not therefore relate to the current supply offence, or indeed to the breach of the s 12 bond that I am to determine. However, given the issue of his mental health arose in the disposition of those other drive whilst disqualified offences, and that he was subject to the s 12 bond I am to revoke, I propose to have some regard to that period in custody when considering the degree of accumulation between the sentence on the breach of bond and the supply count. The Crown quite properly referred me to Hampton v R [2014] NSWCCA 131, and this concept of not being able to in effect take time spent in custody in relation to offences for which someone was ultimately acquitted and somehow use it in terms of "credit in the bank", as the expression was used in the decision.
Hampton v R is distinguishable from the facts here for the reasons I have given, and also I am not treating that period of custody as being in effect a credit which the offender can simply have applied to the sentences. Given the connection with his mental health and with the bond that I am to revoke I consider it is appropriate in the circumstances to have some regard to that period he spent in custody.
I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence and the rehabilitation of the offender. The supply of a prohibited drug such as cocaine is a very serious offence. The supply of such drugs is causing untold damage to lives, families and the very fabric of our society. Normally general deterrence must be given great weight when sentencing for such an offence. However, as I explained earlier, the offender's intellectual impairment means he is not a suitable vehicle for the expression of general deterrence.
I think there is some limited connection between his intellectual impairment and the offence based on the view I expressed earlier that someone with his intellectual impairment lacks judgment, the judgment of a person who did not have such an intellectual impairment. I have had regard to the recent reaffirmation of the appropriate principles when sentencing for this offence in Parente v R [2017] NSWCCA 284.
There is still some need for specific deterrence to be reflected in the sentence given it occurred while the offender was on a s 12 bond. The only appropriate sentence is one of imprisonment having considered s 5 of that legislation. The maximum penalty has been taken into account as a legislative guidepost, again as explained by the High Court in Muldrock. As I indicated earlier, it is necessary that I revoke the suspended sentence and impose a sentence in relation to the drive whilst disqualified offence. I have had regard to the facts of that offence. He was disqualified and he was speeding, although I need to be mindful of the De Simoni principles in my approach to that sentence. The offence was committed nearly some four years ago.
Just stand up for a moment if you would please, Mr Jomaa. In relation to the suspended sentence I revoke the suspended sentence and I impose a sentence of 12 months imprisonment. In relation to the supply of a prohibited drug offence the offender is convicted. Having regard to the matter on the Form 1 I impose a sentence of 18 months imprisonment. There should be some limited accumulation in the sentences given the different type of conduct involved, but having regard to the matters I referred to earlier in these remarks, I propose that the sentence on the supply a prohibited drug offence commence three months into the sentence on the drive whilst disqualified offence.
I indicate that there is to be an overall sentence of 21 months imprisonment. As the sentence is less than two years, given the offender's intellectual impairment, I propose to call for him to be assessed to serve the sentence by way of an intensive correction order.
The drugs are to be destroyed. I note the cash is already forfeited.

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Judgment (7 paragraphs)

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Cases Cited (5)