R v Kamara; R v Kassem

Subjective Material - Kamara

1. Omaru Kamara has criminal record which includes a number of driving offences in 2011 and 2012, in 2017offences of possess prohibited drug and driving with illicit drug in his blood, dealt with by way of fines.
2. Kamara has been in custody since his arrest in this matter on 19 December 2017 and it is common ground that a period of one year and seven months will be taken into account in imposing any term of imprisonment.
3. The Sentencing Assessment Report (SAR) contains a history which is largely consistent with that taken by a psychologist, Mr Awit in a bundle prepared by Mr Tabchouri for the offender. His custodial record indicates that he has been of good behaviour while in custody.
4. I was shown a video of a television program called Australia's Got Talent. The offender was a part of a dance group called Justice Crew, which won that national television competition in 2010. In short, he says that his life changed when he was thrown out of that dance group. He became a recluse and turned to drugs. As Mr Tabchouri acknowledges, getting thrown out of a dance group does not turn one into a drug dealer but the effects upon him and the drug taking and drug dealing that he engaged in, are matters that can be taken into account in some moderate reduction of moral culpability.
5. The histories given in the documents on behalf of both offenders have not been tested or subject to challenge in the witness box and they are treated with some caution, given cases such as R v Qutami (2001) 127 A Crim R 369 and in Imbornone v R [2017] NSWCCA 144, but they appear to be a reasonable basis upon which to proceed to sentence.
6. Kamara was unemployed before going into custody. He had not been employed since terminated from Justice Crew in about 2013. He said that he was depressed and unable to discuss his feelings with his family and he started using cannabis and ice, and then later on MDMA and cocaine. He said he stopped using ice in 2016 and that he has financed his drug use by supplying drugs and reported that he was under the influence of drugs at the time of offending.
7. He displayed no insight into his offending behaviour claiming that he did not seek out customers as they approached him for drugs. He did not express a willingness to participate in intervention but he did tell Mr Tabchouri in court, and it was conveyed to me, that he despite that statement is keen to do whatever he can to rehabilitate himself.
8. He was assessed as being a medium risk of re‑offending. There is a lengthy handwritten letter from the offender which expresses his remorse. He was obviously a talented artist and dancer. He said he was struggling financially after school but he wanted to make a living doing what he loved and he and his friends started a group called Justice Crew. They represented Australia in the world hip‑hop championships, and went onto win Australia's Got Talent. Three years after that, he was kicked out of the Crew due "to selfish reasons of some individuals in the Crew, money changes certain people." After leaving the Crew he went into deep depression. He acknowledges that he started selling drugs so he could feed his addiction, but he is looking to the future. He says he is off drugs and wants to start his own courier business and get a Diploma in Audio Engineering. He acknowledges that he has made a big mistake and let down his family. He does have family support. A bundle of documents containing references indicate that he has a significant degree of support in the community and I take those references into account. No doubt that when he was functioning and performing in the dance group, he was a creative and an appreciated member of the community and he has skills which can be used in a beneficial way for the community in the future.
9. Mr Awit, the psychologist, expressed the view that there was a psychological nexus between Mr Kamara's condition and the offences before the Court, stemming from the underlying anxiety and depression and his impaired decision‑making ability at the time of the offences, given that he reported significant symptoms of depression and anxiety.
10. Mr Awit expresses the view that he is at a low risk of re‑offending, given his absence of significant prior criminal record and his ability to abstain from illicit substances. He clearly needs ongoing support and treatment, and Mr Awit has offered to undertake a counselling and treatment program for him.

Subjective Material - Kassem

1. The evidence for Ahmed Kassem includes a pre‑sentence report. He had suffered from a stutter for most of his life. It is described as a child onset fluency disorder. He says that his offending was motivated by his drug addiction which he believed gave him the confidence to socialise. His drug use commenced at age 24 when he was experimenting with a range of substances and said that he was motivated by his social anxiety. He progressed to daily use, but he has been abstinent for some 18 months.
2. He has served 27 days in custody and it is common ground that any term of imprisonment should be backdated to take that into account.
3. He acknowledged that his co‑offender was a long‑time friend, and he appeared to understand the seriousness of his offending. He said that he was remorseful for his actions. He was assessed as being at a low to medium risk of re‑offending. Mr Ehrlich also provided a report following his consultation with Mr Kassem and the history is relevantly consistent with that given to the Community Corrections Officer.
4. His time in custody had given him time to think and reflect on what he had gone into He was diagnosed as having childhood onset fluency disorder, generalised anxiety disorder and a major depressive disorder. He acknowledged that he embarrassed himself and his family and there was no excuse for his behaviour, and that he was under the heavy influence of heavy substances.
5. A seriously aggravating factor, as Mr Stanton conceded, was that while he was on bail for the first two principal counts, he then went out to commit further drug supply offences in October 2018. Police were performing surveillance duties near the Allan Border Oval in Mosman. The offender parked in a no parking zone outside the school. Detective Senior Constable Madden approached him. The offender looked back and saw the detective and he wound down the window and said, "hey mate jump in", and the detective said, "sorry?" The offender said, "jump in I've got it". The detective said, "mate, my name is Detective Constable Madden from the Silent Crime Squad, why are you here", and he showed him his police badge and the offender said, "I'm here to buy some brocc", which is a code for cannabis.
6. Both Kassem and his vehicle were searched, and that is where the items, that are the subject of theH769625871/001, were found. He was interviewed and he said that he got back into drug dealing about a month and a half before. He advertised the drugs on a web page called, "Vegetables Australia", and he travelled all over Sydney to complete sales. He was the one who packed the capsules containing the MDMA and he packed all of them about two weeks beforehand at his mother's place. He packed half an ounce which he thought was 120 capsules. He sold the other 65 the day he was arrested at Mosman. He intended to supply eight capsules before he was arrested and he usually sold each one for $30 and he intended to keep half the cocaine and half for his own personal use. He sold each bag for $200- $250.
7. He wrote a letter to the Court in which he said, and I accept, that he is ashamed, embarrassed and sorry for his offending; that he let himself, his family, those around him, and the wider community down. He acknowledges there is no justification or excuse.
8. He says that his severe stutter affected many aspects of his life such as his self‑confidence, his ability to socially interact and build relationships with other people, his employment opportunities and many other aspects and he felt like a social outcast for a long time.
9. He regretted turning to drugs which he acknowledges was foolish, childish and stupid. In a way, he says he is thankful that he has been caught, because he is now engaged with a psychologist who has seen him on ten occasions and has offered to continue looking after him. He feels that with that support, he will be able to cope with symptoms of stress, anxiety and depression. He enrolled at the university and tried a few different degrees but his stutter made him not want to attend classes and ending up dropping out. He is now enrolled in a Fitness Certificate at TAFE.

Submissions

1. Mr Tabchouri for Kamara, did not take any issue with the Crown's comprehensive written submissions, and neither did Mr Stanton. However Mr Tabchouri pointed out as I have indicated, Kamara's dealing by was not purely for financial gain, but also to support his own habit. He said he was doing what he wanted and loved; living the dream in the dance troupe, and things spiralled downwards and out of control after that. That is of course not an excuse but I do take into account as explaining to some extent how he dealt with his predicament.
2. The Crown sets out a chronology of the way in which the courts have refined the principles to be applied in sentencing for drug offences leading to the recent affirmation of the general principles in Parente v R [2017] NSWCCA 284.
3. In relation to the s 25A, ongoing supply offences, I take into account what the Court of Criminal Appeal said in R v CBK [2002] NSWCCA 457, namely An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can [he] expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentence must be imposed in such cases in order [to] give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depend entirely upon the availability of a person such as the present applicant.
4. A section 25A offence is generally considered to be more serious than a simpliciter supply under s 25, because it is directed to the business operation of supply meaning the objective criminality of contravention is determined by reference to repetition, systems and organisation and not merely the frequency of supply and the quantity supplied.
5. In total Kamara's offending spanned two and a half months, and involved at least 17 individual supplies for a reward of more than $18,500 and involves a total amount of MDMA of over twice the commercial quantity. Kamara's second count of ongoing supply alone, included more than the commercial quantity of MDMA and was double the number of individual transactions required to engage s 25A. There are a further six offences of supply, each carrying a maximum penalty of 15 years to be taken into account on a Form 1 attached to that. He had 111 grams of MDMA on his person on arrest, which is almost 90 times the indictable quantity. His offending renders his case one of particular seriousness.
6. Kamara was the primary point of contact for the supply of prohibited drugs. He was willing to, and did, travel throughout Sydney to supply them. He had access to large quantities of drugs beyond what would be expected of a pure street level dealer. He had access to multiple types of drugs in various forms. He was able to supply large quantities at short notice, and he took steps to evade detection by authorities, using encrypted messaging and telling buyers not to text too much. He worked closely with his co‑offender, Kassem, on multiple occasions arranging for Kassem to fulfil orders. His involvement was far exceeding that which could sensibly be described as being for the purposes of supporting a drug habit. The evidence plainly shows a significant financial gain.
7. The Crown does not submit that it goes beyond that inherent in such significant drug supply. Overall, the Crown assessed the first ongoing supply count as below midrange, the second ongoing supply as slightly above midrange and the final supply count as above mid-range and I accept those unchallenged characterisations.
8. Kassem's offending spanned more than 12 months. The first period of offending, with Kamara, spanned two months from October to December 2017. The second period occurred in October 2018 while he was on bail for the first period of offending. During the first period, he worked with Kamara to fulfil at least eight individual supply transactions in exchange for $3,020. On each occasion, Kamara was the primary contact point and Kassem would then facilitate each of the supplies, primarily by using a motor vehicle registered to his home address to drive the co‑offender across the Sydney area to deliver the drugs. On multiple occasions, Kassem also delivered drugs directly to buyers after being asked or directed to do so by Kamara.
9. During the second period of offending he was in the process of delivering a prohibited drug to a buyer outside Mosman Public School, when he inadvertently mistook a police officer as a buyer. As previously indicated, upon the search of the offender and his vehicle police found five clear resealable bags containing two 2.38 grams of cocaine, 60 individual caps of MDMA weighing 5.5 grams, more than four times the indictable quantity. They were hidden inside cigarettes to avoid detection although he was frank and admitted them to the police. He told police he had been supplying drugs from mid‑August 2018 through to 11 October 2018. He was advertising them for sale on a website and he was travelling around Sydney to complete the supplies and preparing the packing them themselves.
10. His role during both periods of offending was fairly described as a street level dealer. During the first period of offending, he was very much working for and with Kamara, with Kamara acknowledged to have taken a more substantial role in the drug supply operation. During the second period of offending he was in control and overall the assessments proffered by the Crown are accepted as being below midrange for the first ongoing supply count, slightly above midrange for the knowingly take part, and slightly below midrange for the third supply count in October 2018.
11. The previous records of both offenders disentitle them to leniency. Both offences were committed while they were on conditional liberty. Kamara was less than one month into a section 9 bond, and Kassem was on bail when his second set of offences was committed.
12. The Crown acknowledges the pleas of guilty as mitigating factors in each case. I take into account those pleas and the expressions of remorse by both offenders, and I accept that both of them have reasonable prospects of rehabilitation.
13. As the Crown points out, addiction to drugs is not generally of itself a matter of mitigation and sentence, and I note the principles set out in R v Henry (1999) 46 NSWLR 346. The authorities establish that irrespective of whether the motivation for drug trafficking is need or greed, the overriding principle is that a custodial sentence is normal for trafficking to any substantial degree regardless of whether or not a profit has been obtained. That sentence still applies even bearing in mind the principles affirmed in Parente.
14. As the Crown points out, Kassem told the author of the sentencing assessment report that he had been abstinent from illicit substances for 18 months but that was clearly false because it directly contradicts the agreed facts for the second period of offending in which after the cocaine was located in his car he said it was for his own personal use and he told the psychologist, Mr Awit, that he had relapsed on August 2018.
15. In summary, the Court said in Parente that what Simpson JA had said in Robertson v R [2017] NSWCCA 205 at [50], was apposite: [I]t may be accepted that examination and analysis of sentencing practices establishes that where, the facts of an offence demonstrate drug dealing "to a substantial degree", a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implication of drug dealing (reflected, if in nothing else in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives.
16. These are both cases of drug dealing to a substantial degree over a considerable period. I accept the Crown's submission that in each case, no sentence other than fulltime imprisonment is appropriate.
17. Specific and general deterrence must be taken into account along with the other purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Each offender needs to be specifically deterred from engaging in the supply of drugs in the future, and the courts must send a consistent message to others who might consider engaging in such criminal conduct.
18. Mr Stanton put that while a term of imprisonment may be justified for his client, it could appropriately be dealt with by way of an Intensive Corrections Order. I reject that submission. The level of criminality involved in his client's drug supply that I have outlined, requires the imposition of a period of fulltime imprisonment.
19. I accept that, in each case, a finding of special circumstances is justified in each case due to the relatively young age of the offenders, the fact that this will be their first time in custody and the fact that they both require an extended period of supervision on their ultimate release.
20. The orders that I make are as follows:

Omaru Kamara 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of three years commencing 19 December 2017 and expiring 18 December 2020. 3. I impose a non-parole period of one year and ten months, expiring 18 October 2019. 4. The indicative sentences are: 1. 024, taking into account the Form 1 matter (001): 18 months 2. 026, taking into account the Form 1 matters (011, 013, 015, 016, 017, 021): 20 months 3. 023: 10 months 1. I make confiscation orders pursuant to the Short Minute of Order dated 19 July 2019. 2. I make a drug destruction order.

Ahmed Kassem 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of two years and ten months, commencing on 22 June 2019. 3. I impose a non‑parole period of one year and eight months, expiring 21 February 2021. 4. The indicative sentences are: 1. 012, taking into account the Form 1 matters (005, 007, 008, 009): 16 months 2. 011, taking into account the Form 1 matters (006): 12 months 3. 001, taking into account the Form 1 matters (002, 004): 14 months 1. I find special circumstances. 2. I make confiscation orders pursuant to the Short Minute of Order dated 19 July 2019. 3. I make a drug destruction order. 4. H69625871/005 is withdrawn. Note - These extempore remarks were revised without access to the court file.

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: 30 November 2020