R v Karanouh

District Court of NSW|2023-04-04

Remarks on sentence

The offender appeared at the Downing Centre Local Court on 15 December 2022 and pleaded guilty to one charge of supply prohibited drug, Gamma-Butyrolactone ("GBL"), not less than the large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The plea of guilty was adhered to at the sentence hearing on 4 April 2023. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence of supply prohibited drug not less than the large commercial quantity is life imprisonment. In accordance with Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999, the offence has a standard non-parole period of 15 years. The maximum penalty of life imprisonment and the standard non-parole period of 15 years is an indication of its seriousness and acts as a sentencing guidepost or reference point.
In addition to the one substantive matter, the offender asks that when passing sentence, the Court take into account the following five additional offences on a Form 1: 2021/354467 1. Seq 11 - Possess a prohibited drug, namely 0.07g of methylamphetamine, contrary to s 10(1) of the Drug Misuse and Trafficking Act. 2. Seq 12 - Deal with proceeds of crime, namely $1590 (AUD) cash, contrary to s 193C(2) of the Crimes Act 1900 (NSW). 3. Seq 13 - Supply prohibited drug, namely 150g of GBL being an amount which was more than the indictable quantity but equal to or less than the commercial quantity for that drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act. 2021/295808 1. Seq 1 - Supply a prohibited drug, namely 182.0g / 163mL of GBL being an amount which was more than the indictable quantity but equal to or less than the commercial quantity for that prohibited drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act. 2. Seq 2 - Deal with proceeds of crime, namely $11,050 (AUD) cash contrary to s 193C of the Crimes Act.

Agreed facts

In September 2021 a Strike Force was established by South Sydney Police Area Command targeting drug supply activities by the offender and other persons associated with him. A number of co-accused were involved in the operation including the two co-offenders, Jahralee George ("George") and Bilal Sowaid ("Sowaid"). As part of the controlled operation Police used an authorised person (Witness A) to contact and participate in the supply of illicit drugs.

Sequence 16: Supply prohibited drug - large commercial quantity

On 22 September 2021 the offender supplied Witness A with two bottles of Gamma Butyrolactone ("GBL") (880.3g and 212.8g), with a purity of 88.5% and 89.5% respectively. The supply occurred following a request from Witness A to the offender on 21 September for the purchase of 1L of GBL for the sum of $4,500. The supply occurred in the vicinity of 790 Bourke Street Waterloo. Following the supply, the two continued to have conversations in relation to the future supply of drugs. Witness A then provided the two bottles to Police.
On 29 September 2021 the offender supplied Witness A with two bottles containing liquid which, when later examined, were found to contain 1040.6 g of GBL at a purity of 71% and 402.2 g of GBL at a purity of 69.5%. Witness A paid the sum of $6000 for the GBL. The supply occurred following communications over the previous two days between Witness A and the offender. Following the supply, the two had a conversation in regard to the future supply of prohibited drugs.
On 4 October Witness A and Karanouh discussed on Signal the purchase of 2L of GBL. On 5 October 2021 the offender supplied Witness A with 1019g of GBL at a purity of 88.5% in a single 1L branded water bottle. Witness A paid the sum of $4000 for the supply.
On 12 October 2021 there were various messages between the offender and Witness A in respect to the supply of two bottles of GBL. There were further communications on 18 October 2021 to the same effect. On 20 October 2021 the movements of the offender were monitored. At 1:26pm Witness A attended a petrol station on Erskineville Road where he met the offender who was driven to the location by a female. The sum of $7800 was provided to the offender in exchange for two plastic bottles filled with liquid. When subsequently examined, the first bottle was found to contain 975.3g of GBL at a purity of 92.5%, the second bottle containing 968.5g of GBL at a purity of 90.5%.
On 22 October 2021, in response to a request by Witness A for the supply of further drugs the offender offered "five for 3500 each". On 23 October 2021 there were further messages exchanged between the offender and Witness A in respect to the supply of "five drinks". On 25 October 2021 arrangements were made for the offender to meet Witness A the following day to effect the purchase of 5L of GBL for $17,500.
On 26 October 2021, the offender and co-offender Sowaid were in communication ahead of the supply. Sowaid called the co-offender, instructing him to have "17 straight away ready". The offender replied, "Cuz whatever he's got I'm giving it all to yous and then yous work out what you're going to take off the bill". Later that morning the offender provided Witness A with a bag containing five white plastic bottles in exchange for the sum of $17,500 in cash.
When examined, the five bottles were found to contain the total of 4928g of GBL between the five bottles as follows: 1. 988.8g of GBL at a purity of 87% 2. 979.7g of GBL (purity not tested) 3. 995g of GBL at a purity of 89% 4. 980.6g of GBL (purity not tested) 5. 983.9g of GBL at a purity of 86%
On 30 October, Sowaid provided a mobile number to the offender to transfer money via pay ID: "all right can you please pay ID me the thing". The phone number was attached to an NAB account in Sowaid's name. At 9:35pm the offender texted "done" after paying a transaction.
On 7 November 2021, Witness A and the offender discussed the purchase of a further 5L of GBL for the sum of $17,500.
At 3:20pm on 9 November 2021, Witness A attended 788 Bourke Street Waterloo and observed the offender standing near the intersection with Danks Street. At 3:26pm the offender walked to Witness A's parked vehicle and sat in the front passenger seat. The offender then called Sowaid saying "Cuzzy do you want to bring the bag down?". At 3:29pm Witness A observed Sowaid walking from the vicinity of the Bourke Street address towards the vehicle. He then walked into an alcove at the front of the building before he was seen walking out of the same address carrying a backpack. The offender exited the vehicle and walked to Sowaid during which time Sowaid handed the offender a backpack and both walked to Witness A's vehicle. The offender removed a red-and-white plastic shopping bag from the backpack containing five 1L plastic bottles in exchange for which a bag containing $17,500 was provided to Sowaid. The offender and Sowaid subsequently left the vehicle and Witness A departed.
When subsequently examined, the five plastic bottles were found to contain a total of 4943.4g of GBL between the five bottles as follows: 1. 1979.2g of GBL at a purity of 89% (bottles 1 and 2) 2. 991.2g of GBL at a purity of 89% (bottle 3) 3. 1973g of GBL at a purity of 88.5% (bottles 4 and 5)
On 15 and 16 November 2021 there were various communications between Witness A and the offender in respect to the supply of further drugs.
On 17 November 2021 the offender was observed travelling in a vehicle between addresses in Bankstown. A co-accused was subsequently observed entering the vehicle in which the offender was a passenger, and that vehicle was subsequently driven to an underground parking area at the Bourke Street Waterloo address. CCTV footage recorded the co-accused meeting with the offender in the underground car park carrying a backpack containing GBL. The vehicle subsequently left the underground parking and parked against the eastern curb of Crystal Street Waterloo. Following further messaging, Witness A arrived in the vicinity of Bourke Street Waterloo and the offender was seen entering Witness A's car. The offender provided Witness A with a bag containing five 5L plastic bottles in exchange for which Witness A provided the offender with $17,500 as payment.
When analysed the five plastic bottles contained the following: 1. 985g of GBL at a purity of 88% (bottle one) 2. 1973.5g of GBL at a purity of 88% (bottles two and three) 3. 1959.9g of GBL at a purity of 82% (bottles four and five)
On 6 December 2021 the co-offender George agreed to supply the offender with two bottles of GBL. George subsequently met the offender in a car park of a brothel at Exceller Avenue Bankstown. George was seen entering a taxi and receiving a wad of $50 notes from the offender. Shortly thereafter George returned with two white bottles of GBL.
On 8 December 2021 George had been negotiating with the offender in respect of the supply of 2L of GBL.
On 9 December 2021 George contacted the offender to advise that her "guy" had two bottles ready for the next day.
On 10 December 2021 George arranged for the supply of 2L to the offender from an unknown associate. There were further communications between the offender and George in respect to the supply of GBL. Later that day George and the offender were seen smoking in the back of a vehicle during which time the offender discussed how he wanted to take the GBL and sell it in 50ml bottles to customers. The offender mentioned that he could sell it for $10 per ml.

Sequence 1: Supply prohibited drug - commercial quantity (Form 1) and Sequence 2: Deal with property proceeds of crime (Form 1)

On 18 October 2021 police attended a unit complex in May Street St Peters in relation to a property offence which had occurred at the complex the previous day. The police interacted with the offender who was observed exiting the foyer elevator with a large bicycle, wearing a black face mask and in possession of a black backpack and satchel bag. Whilst checks of the offender's identification were being conducted he attempted to flee without success. During a physical altercation with the offender, he dropped the backpack and threw his phone against the wall. As the bag dropped its contents fell out onto the floor which included a 1L plastic bottle containing clear liquid. When challenged in respect to the bottle's contents, the offender stated that he was "a junkie" and suggested that the bottle merely contained water.
A search of the satchel bag revealed a large bundle of $50 notes. The offender claimed that the money was proceeds from playing poker machines. He further claimed that he intended to start a business and obtained a "nine grand grant". Both the bottle and cash were seized, and the offender was conveyed to Newtown Police Station. The bottle of liquid, when analysed, returned a mass quantity of 182g of GBL.
The cash found on the offender totalled $11,050. Records from NAB indicated that the offender had recently received a payment from Medicare in the vicinity of $9000 which was deposited into the offender's account in relation to a Covid-19 grant that had been applied for by the offender.

Arrest

At 6:49am on 14 December 2021 a conversation occurred between a co-offender, Alemdarogullari and another male in respect to the supply of drugs. Reference was made to a third male being asleep. Several hours later a search warrant was executed at the residential premises of the offender at unit 71/788 Bourke Street Waterloo. At the premises was the offender, the co-offender Alemdarogullari and a female. During the search warrant the offender ran to the balcony and threw five mobile phones over the edge and onto Bourke Street Waterloo.

Sequence 11: possess prohibited drug (Form 1)

At 8:38am, whilst waiting for the caged vehicle to arrive, $390 was found in the right-hand pocket of the offender, as well as a small quantity of white crystal substance which, after analysis, was determined to be 0.07g of methylamphetamine. The offender and Alemdarogullari were placed in separate caged trucks and conveyed to Mascot Police Station. The offender exercised his right of silence however consented to a forensic procedure in the form of the buccal swap and photographs.

Sequence 12: Deal with proceeds of crime less than $100,000 (Form 1)

Sequence 13: Supply prohibited drug indictable and commercial quantity (Form 1)

During a search warrant various items were found including five phones, scales, cash found in various places and in various denominations, various smaller bottles of GBL, drug ledger and dry ledger. The total cash found belonging to the offender was $1590. The total GBL found at the premises belonging to the offender was 150 ml.

The offender's criminal history

The offender has a lengthy criminal history commencing in 2002 with common assault and custody of a knife in a public place. There are further convictions in 2010 of goods suspected of being stolen and possess instructions for manufacture of a drug. There is a further drug-related offence in 2010 and property offences in 2013. Further in 2013 the offender was convicted of reckless grievous bodily harm in company. There are further drug convictions in 2015 and 2019. Goods in custody convictions were also recorded in 2019.
In 2021 there is a conviction for contravene prohibition or restriction in AVO. In 2008 the offender was convicted for drive vehicle with illicit drug present in his blood and a similar offence in 2021. In 2020 the offender was convicted of resist or hinder police in the execution of their duty. The offender also has convictions recorded in Queensland including drug-related offences in 2014 and false identity on air travel documents from the same year.

Report of Mamta Sidhu, Psychologist

Mr Sidhu assessed the offender on 10 March 2023 via audio visual link. The offender's account in the interview was consistent throughout and was also consistent with the documentation. The offender impressed with a good insight into his difficulties and ability to be reflective. The offender provided a history to Mr Sidhu that he was the second eldest of seven siblings to parents who migrated to Australia from Lebanon at the time of the offender's birth. His parents apparently struggled with settling into Australia and were the subject of racial abuse.
The offender denied drug or alcohol difficulties from either parent or any pattern of domestic violence. He described a loving family although noted there was significant stressors within the family unit on account of financial instability and the lack of financial resources. In summary, the offender, whilst acknowledging his childhood was tough and at times financially insecure, was raised by loving parents who placed good boundaries. He considered he had a generally happy childhood.
The offender attended four primary schools due to the family relocating frequently which made it difficult for him to make friends or feel settled in the school environment. Whilst generally well-behaved, he did struggle with his learning. In high school he experienced difficulties due to racially motivated bullying and was involved in several fights and suspended on one occasion. However, he denied any regular pattern of suspensions or ever being expelled. He continued to struggle academically in high school although he completed his high school certificate.
After leaving school he worked in the retail industry and otherwise held employment across his lifetime. He worked in his father's transport business for several years which he found meaningful and enjoyable. He also described holding various other positions in warehousing. Ultimately his main area of work had been in cabinetmaking which had been the vocation he enjoyed most. The offender was last in employment six months prior to his arrest. He denied a pattern of lengthy periods of unemployment aside from periods whilst in jail. It was his intention to return to work which he felt provided him with stability and routine. He denied any significant medical history.
The offender reported that he first began drinking alcohol at the age of 15 although he did not consider himself a big drinker. He started using minimal cannabis as a teenager in an experimental manner although he denied any form of addiction.
Following his divorce at the age of 33 the offender described a pattern of using drugs to cope with his distress from the end of the relationship and the separation from his son. He reconnected with old school friends and was introduced to ecstasy, crystal methamphetamine and GHB. Within months he was addicted and used it almost daily.
At the time of the assessment the offender was attending an addiction program on remand. He was motivated to receive treatment since reconnecting with his son and his father's recent ill-health. He demonstrated a good understanding of the factors involved in his drug addiction including unhelpful peer groups and lifestyle choices. He was motivated to attend treatment in the community to sustain his progress. The offender recognised that he had previously managed to stop using substances during periods of incarceration however reverted back to drug use to cope when experiencing distress or life stressors. He would hope to attend a residential rehabilitation facility in the community to avoid this pattern of relapse.
The offender claimed to have been drug effected at the time of the offence, and in particular was addicted to ice and GHB. He acknowledged the interplay between his drug use and offending behaviour stating that his addiction and acute drug use at the time impacted his ability to think clearly and logically. He was not thinking about the consequences of his behaviour in the long term. The offender demonstrated good insight into his drug use behaviour and appeared to be genuinely motivated to engage in treatment and address his substance use difficulties.
The offender also referred to difficulties with gambling which was problematic. He reported correlation between his drug use and gambling and considered that his change of attitude towards drug use lowered the risk arising from his gambling.
In terms of mental health, he considered he had been generally stable although described a period of depression when informed that a child that he thought was his was not biologically his daughter. As a consequence, he withdrew socially from loved ones, had difficulties with sleep, low motivation, and loss of pleasure. His symptoms of depression triggered drug use. His incarceration and drug abstinence has improved his depressive state. In this respect he was not motivated to use substances as he was no longer attempting to block out the painful emotions he was experiencing.
The offender entered a new relationship in 2017 and had a child to this relationship being a daughter who is turning three. However, the child was removed from the care of the mother due to concerns regarding her ability to care for the child appropriately. The offender's mother was now the legal guardian of the child, and the offender was motivated, when released, to provide a stable life and environment for his child. However, as previously reported, the offender was devastated by the news that he was not the biological father.
The offender reported positive relationships with his parents and siblings who remained supportive although he did not have any real friends which resulted in him feeling lonely at times. He was determined to keep away from "bad social circles".
The offender's offending commenced at the time he started using drugs at around the age of 33 in the context of his addiction consuming his life and his behaviour being driven by such addiction. His criminal history largely revolved around drug possession offences although there was an offence of violence which he claimed occurred whilst in a drug effected state. The offender was conscious of not becoming institutionalised and was motivated to live with his family and community rather than being reliant upon the jail system.
In respect of the subject offences, he described his motivation was to support his drug addiction and procure money in order to do this. He recognised the impact of his actions upon the wider community through the sale of drugs. The offender's remorse seemed genuine, and he reflected on his long-term stability and rehabilitation which would require him to engage in treatment.
Mr Sidhu considered the offender had "protective factors" available to him including a loving and supportive family unit and regular contact with his parents and siblings. He was motivated to reengage in employment to provide structure. He appeared genuinely motivated to engage in treatment in the community which he had commenced whilst on remand.
Dr Sidhu considered that the offender would benefit from the Way Back Program involving a stepped approach to reintegration back into the community and provide him with support to manage his addictions in the long-term. In circumstances where his previous offending had been driven by substance abuse, such a program would reduce the risk of reoffending. It was also considered that the offender would benefit from developing healthy coping skills including dialectical behaviour therapy which, to an extent, could be provided whilst in custody. It was noted that the offender might benefit from a longer parole period, mandating treatment and reducing further exposure to anti-social attitudes. It would also assist the offender in addressing his substance use issues which were likely to impact on his future risk of reoffending and broader rehabilitation needs.

Affidavit of Sarah Black

Ms Black is an employed solicitor with Sans Law who have acted for the offender since his arrest. Having reviewed the report of Dr Sidhu, the offender advised that the report failed to mention the offender's two admissions to hospital due to overdosing from GBL.
Ms Black also confirmed the following circumstances in relation to the offender's period in custody: 1. He had spent a significant portion of his time in custody under Covid isolation and lockdowns including full lockdowns during the following periods: 1. 14 December 2021 to 4 January 2022 2. 8 January 2022 to 22 January 2022 3. 26 January 2022 to 4 February 2022 4. 9 February 2022 to 19 February 2022 5. 20 February 2022 to 2 March 2022 6. 7 July 2022 to 26 July 2022 1. On 17 February 2022, following testing positive to Covid, the offender remained in isolation from 17 February 2022 to 27 February 2022. Following tablet visits being introduced in late 2022, the offender has had limited AVL visits with his parents and daughter. Most of the communication with his family had been through the jail phone for calls which lasted six minutes. 2. There has been no access to psychological services and limited access to rehabilitation and addiction programs. 3. The offender was employed in the kitchen at Shortland Correctional Centre working Monday to Friday 8:30am to 1:30pm and being paid $30 per week. 4. The offender worked in the Hygiene team at the Hunter Correctional Centre seven days a week, two hours each day and being paid approximately $54 per week. 5. The offender has had three in-person visits during his entire period in custody with the first visit being around June 2022. 6. The offender has never attended a psychologist for treatment before however expressed an interest in obtaining such treatment. 7. The offender had never attended a full-time residential rehabilitation centre before but expressed an interest in attending a rehab centre and acknowledging that this would assist him. 8. Documents also confirmed the offender attended a remand domestic violence program as well as an addiction program.

Wafa Karanouh

The younger sister of the offender has provided a letter of support noting that prior to his drug addiction he was a loving and supporting member of their family. However, in later adult years he became addicted to drugs and become involved in a life that was never known to him or his family for his first 30 years. Ms Karanouh also corroborated the offender's history as to his devastation following the discovery that he was not the biological father of his daughter. In particular, the previous progress the offender had made in relation to drug rehabilitation had been destroyed following these events. Ms Karanouh also spoke of the difficulties arising from their father's stroke and seven months in ICU. The offender had expressed his disappointment in being unable to support his family during this period. Ms Karanouh spoke of the offender's dedication towards rehabilitation upon his release.

Bianca Murdaca

Ms Murdaca was the offender's former wife and mother of their 19 year old son. She corroborated the offender's apparent remorse and acceptance of responsibility for his actions. She referred to various conversations with the offender in respect to his future positive intentions upon release. Ms Murdaca offered to personally assist the offender in regards to obtaining future employment post incarceration. Further she would support the offender in his counselling and rehabilitation to prevent reoffending and to assist in his relationship with their son. She expressed optimism that the offender would successfully rehabilitate with the support of his family, friends and professional assistance.

Chantelle Karanouh

Ms Karanouh is the offenders sister-in-law and had known the offender for more than 20 years. She noted the offender's deterioration following his divorce and his spiral into addiction. She noted that the offender was seeking to get his life back on track when he discovered that he was not the biological father of his daughter resulting in a relapse into drugs.
She referred to the fact that the offender had remained supportive of his daughter and had attempted to maintain a relationship with his family. She referred to the difficulties the offender had in coping following his father's stroke and needing daily care by members of the family. She referred to the offender's intentions to change his life with the support of his family.

Crown submissions

The Crown noted that the entire quantity of GBL supplied by the offender over the course of seven separate transactions was 20,288.5g or just over 20kg. It was noted that this was over five times the large commercial quantity of a prohibited drug with the purity uniformly tested between 80% and 90%. The Crown contended that the circumstances were such that the offending was not an isolated one off incident, and whilst the initial supplies were smaller quantities, they increased over the course of two months to very large quantities of the same drug. This reflected the financial benefit which the offender stood to derive from these increased quantities.
It was submitted that the offender's role in the hierarchy of supplying drugs could be readily inferred from the quantity of the drug he was supplying as well as large amounts of cash being exchanged during individual transactions. It was contended in the circumstances that the offender was not a low level supplier.
It was further observed that simple requests for large quantities of GBL were easily and willingly facilitated by the offender. Further the items seized from the offender's residence highlighted his significant and substantial involvement in drug trafficking for a commercial purpose noting that the police seized drugs, cash, scales, multiple mobile phones, and other electronic devices. It was noted that upon police arrival the offender ran to the balcony, throwing five mobile phones to the street below which confirmed the offender's immediate appreciation of the implication from his high level drug dealing. The fact that the significant quantities of prohibited drug never reached the public in no way diminished his culpability. The Crown further contended that the need for personal deterrence was elevated by the reference to the matters appearing on the Form 1.
With respect to the subjective case, it was noted that the offender was 44 at the time of the offending yet sought to attribute his commencement of substance abuse from the breakdown of his marriage at the age of 33. It was noted this period was interspersed with lengthy periods of custody where the offender claimed he remained sober.
In respect to the report attributing the offender's conduct to the need to fund his own drug addiction, there was no tested evidence before the court relating to the offender's using habits, and in particular there was no evidence before the court demonstrating the frequency with which the offender used prohibited substances. In any event, the scale upon which the offender was supplying GHB was entirely disproportionate to any personal use requirements and that, given the sheer quantities being supplied, the offender would be obtaining a significant financial benefit which went well beyond that which was required to fund his own drug consumption habits. Further there was no indication in the report of the offender's prospects for rehabilitation. Although he had indicated some degree of insight into his offending and attempts to rehabilitate whilst in prison, the Crown contended that his prospects remained guarded.
In oral submissions the Crown contended that it was the offender who was escalating the quantity of drugs supplied over the various transactions. In respect to the subjective material the Crown contended that the Court would have difficulties accepting the breakdown of the offender's marriage at the age of 33 given it was a significant period prior to the offending, would be of no consequence. The sheer quantity of drugs supplied were inconsistent with the submission that the offending was merely to support his own addiction.

Offender's submissions

The offender, citing Filippou v R [2015] HCA 29; 256 CLR 47, noted that the court must sentence on the basis of those facts which are proved to the requisite standard. Reference was also made to R v Olbrich [1999] HCA 54; 199 CLR 270; 73 ALJR 1550 that the level of the offender's involvement in the overall supply was determinative of the objective seriousness of the offending; in this respect, citing Roberts (pseudonym) v R [2019] NSWCCA 102. It was submitted that it was an error to place too much emphasis on the weight of the prohibited drugs although this must be considered in the context of the overall facts of the case. Financial reward was a factor which the court would consider when assessing the seriousness of the offending. The offender referred to the decision in Petkos v R [2020] NSWCCA 55 that, in addition to the weight of the drugs, the financial reward received or anticipated by the offender was relevant to the objective gravity of the offence.
In considering the harm to the community the court was entitled to consider whether the drugs were disseminated into the community and in this respect the offender was not to be sentenced for supply to any member of the community, but rather to a registered source where drugs were handed over to investigating police.
The offender contended that the judgment of R S Hulme J in R v DW [2012] NSWCCA 66 sought to qualify earlier authorities that supply to a police informant did not assist in reducing the moral culpability of the offender. It was contended that while any reduction in criminality was to be small, the primary submission was that any dissemination to the community was not existent when considering the harm to the community provided in s 3A of the Crimes (Sentencing Procedure) Act. Whilst it was acknowledged that the offender received a financial reward, the extent was unknown in circumstances where GBL was found to be a drug of "low reward" when compared to values obtained from different drugs of the same weights.
Given the nature of the offender's role in performing the exchanges, thereby increasing his level of exposure to law enforcement, this was not a sophisticated supply operation. Whilst it was conceded that the drug supply was planned and for profit, it was submitted this fact was not to be considered as an aggravating factor pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act citing Wat v R [2017] NSWCCA 62.
Given the report of Dr Sidhu, the offender contended that his history of drug addiction and use gave rise to a lowering of his moral culpability due to the effect of these disorders. The offender pointed to the difficulties with accessing appropriate treatment and rehabilitation whilst in custody given the effect, amongst other matters, of the Covid-19 pandemic, citing the judgment of Hamill J in Rakielbakhour v DPP [2020] NSWSC 323. It was contended that in respect to rehabilitation the court would note that being in custody was more onerous given his needs for drug rehabilitation integration programs. His offences were not reflective of ingrained criminal tendencies but rather related to mental health and drug addiction issues and the need for an extended period of support in the community whilst on parole.
It was conceded that the offender's criminal history disentitled him to leniency although it was not an aggravating factor. The offender was entitled to a 25% discount on sentence given the early plea and that the full range of subjective considerations attracted a finding of special circumstances. It was contended that the court would find that the circumstances of the offence fell well below the mid-range and that this was a relevant consideration in respect to the standard non-parole period citing Tepania v R [2018] NSWCCA 247 at [109] - [112].
It was contended that the court would be confident of the offender's prospects of rehabilitation and in assessing the likelihood of reoffending, there were good prospects in the future given the plea of guilty, the expressions of remorse, the acceptance of responsibility, the support of the offender's family and the offender's apparent insight into the mental health and drug/alcohol issues. In respect to parity, it was contended the court need not look at the differing roles with great precision although the difference in culpability was a relevant factor on sentence, citing KR v R [2012] NSWCCA 32 at [18] - [19].
In oral submissions counsel for the offender contended that there was no level of sophistication in the supply operation, whilst conceding there was an exchange of large commercial quantities. There was no suggestion that he "warehoused" the drugs and that there was only a modest amount of drugs found in the house at the time the search warrant was executed. Further evidence of a lack of sophistication was the fact that the offender did not seek to keep his identity hidden. All of the relevant supplies occurred in the same way. It was contended that the offender was not receiving the entire proceeds of the supply of drugs for his own benefit, and indeed in respect to the supply on 26 October 2021 the entire proceeds from the supply were given to the co-offender Sowaid.

Consideration

The court is not entitled to take an account of facts adverse to the interests of the offender unless they have been established beyond reasonable doubt. However, circumstances favourable to the accused need only be proven on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270; 73 ALJR 1550.
The offending conduct involved the supply of just over 20kg of the prohibited drug through seven separate transactions over several weeks. They involved substantial sums of money, the last three being for the negotiated price of $17,500 each. I accept the Crown's submission that the supply by the offender was effected easily and willingly following requests from the undercover operative. Given these circumstances, and the significant volume of drugs transacted, I am satisfied that the offender was more than a low level supplier. This is also consistent with the items seized from the offender's premises, including multiple mobile phones (5 being thrown from the balcony at the time the offender was arrested). The amount supplied was five times the specified amount of a large commercial quantity arising from the offence. However I note that the circumstances of the supply was such that he was more exposed to law enforcement.
In Pham v R [2013] NSWCCA 217 McCallum J concluded at [27] that: "The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said, as recently explained by Latham J, the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act."
I accept the Crown's submission that the objective seriousness is above the midrange for this particular offence.
I do not accept the offender's submission that the judgment of RS Hulme J in R v DW qualified earlier authorities that supply to a police informant did not assist in reducing the moral culpability of the offender. In Cam Huynh Giang v R [2017] NSWCCA 25 Latham J (with whom Hoeben CJ at CL and Walton J agreed) said the following in respect to a submission that the drugs were not disseminated in the community at [24]: "This submission was not made to the sentencing judge. Once again, it is a submission that would have been unwise in the circumstances, given that the judgment of RS Hulme J (Hall J agreeing) in R v DW [2012] NSWCCA 66 at [117] upon which the applicant relies, has since been qualified by Johnson J in AB v R [2013] NSWCCA 273 at [92]. As his Honour there points out, the dissemination of drugs into the community constitutes a significant aggravating factor. However, the absence of an aggravating factor does not thereby constitute a mitigating factor. The fact that drugs are not actually disseminated into the community as a result of a police operation is not a factor that reduces the moral culpability of an offender."
In AB v R [2013] NSWCCA 273, Johnson J (with whom Hoeben CJ at CL and Bellew J agreed) observed the following at [92]: "His Honour's finding, as a mitigating factor, that no substantial harm was caused because all the drugs were seized, was very generous to the Applicant. If the drugs had been disseminated into the community, it would have constituted a significant aggravating factor on sentence. However, the absence of an aggravating factor does not translate the matter into a mitigating factor. This Court has observed repeatedly, in the context of offences where police operations mean that the drugs are not actually disseminated into the community, that the moral culpability of an offender is not thereby reduced (see the cases gathered in R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at 166-168 [88]-[100]). This was a very large quantity of the relevant prohibited drug with the potential to cause a great deal of harm both individually and socially: R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 at 524 [73]." (Emphasis added)
As the Western Australian Court of Appeal observed in Ngo v R [2017] WASCA 3, the illicit drug trade is a "scourge" inflicting significant damage on those who consume the drugs.
Counsel for the offender cited the decision of Wat v R [2017] NSWCCA 62 to support a submission that whilst the drug supply offending conduct was planned and was for profit, this factor was not to be considered an aggravating factor pursuant to s 21A(2)(n)(o) of the Crimes (Sentencing Procedure) Act 1990. Contrary to the submissions of counsel for the offender, that decision stands for the proposition that the financial gain or planning, if significant, are to be treated as aggravating factors. Price J (with whom Bathurst CJ and Walton J agreed) said the following: "[44] an offence of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act, it will almost inevitably be the case that inherent characteristics of that class of offence are a level of planning and financial gain. These inherent characteristics are not to be treated as aggravating factors, unless "the financial gain or the planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence" Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing); Farkas v R (2014) 243 A Crim R 388; NSWCCA 141 at [62] (Campbell J, RA Hulme J agreeing)."
Price J determined that the sentencing judge had not erred in finding planning and financial gain were aggravating factors in circumstances where such planning and gain went well beyond what might be expected in the lowest level of the relevant drug supply offence.
As previously found, the supply by the offender, over seven separate transactions, involved the supply of five times the specified amount of a large commercial quantity arising from the offence. It involved substantial payment of cash for those supplies. Consistent with my earlier findings, the financial gain was substantial and well beyond what might be expected in the lowest level of offending for this type of offence. In all the circumstances, I am satisfied that the supply was for financial gain.
The offender has a not insignificant criminal history which disentitles him to leniency. The offender's history however is relevant, not to increase the objective seriousness of the offence, but is relevant to issues of retribution, deterrence and protection of society; R v Shankley [2003] NSWCCA 253.
I accept, consistent with the opinion of Dr Sidhu that the offender suffered from depression, having been informed that the child he thought was his was not biologically his daughter and that it was this depressed state that ultimately triggered his drug use. Further, I am satisfied that the offender reverted to drug use to cope with his distress during this period. In the circumstances I am satisfied that the offender's moral culpability and the need for general deterrence is reduced but only to a slight extent.
I further accept the opinion of Dr Sidhu that the offender's expressed remorse was genuine, consistent with the offender's plea of guilty. I accept the offender has reasonable prospects of rehabilitation given his acknowledgement of the factors leading to the offending and the support of his family and ex-wife.
I also take into account the hardships suffered by the offender arising from the Covid-19 pandemic referred to in the affidavit of Sarah Black; Rakielbakhour v DPP [2020] NSWSC 323.
The parity principle is one of equal justice, requiring that like offenders should be treated in a like manner and allows for different sentences to be imposed on co‑offenders where it is justified for some reason, for example, a differing role and/or differing personal circumstances, such as for example age, background, criminal history, findings that have been made in terms of their prospects of rehabilitation or mental health issues. If there are differences, the question is always one of due proportion being maintained between the sentences having regard to the different circumstances of the co‑offenders and having regard to their different degrees of criminality.
In terms of differing charges faced by differing offenders, the majority of the High Court (French CJ, Crennan and Kiefel JJ) stated in Green v R; Quinn v R (2011) 244 CLR 462 at [30]: "The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v R, [48] there can be significant practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitation, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.' (Emphasis added)
In applying the parity principle, the offender is to be sentenced for the more serious offence than the co-offender George, and for a quantity five times the threshold for the offence. This is to be compared to the co-offender Sowaid, who is to be sentenced for the same offence, where the quantity supplied was just over the threshold for the offence. The offender has a more significant criminal history. There are absent the more significant subjective features of the two co-offenders and accordingly moral culpability and general deterrence are not reduced to the same extent. There is an expression of remorse as with the two co-offenders and the prospects of rehabilitation have been found as good. Unlike the two co-offenders, the offender was not subject to a conditional release order.
The maximum penalty for the offence is life imprisonment with a standard non-parole period of 15 years. Whilst I am sentencing for the relevant principal offence, I take into account the further offences (5) for which the offender has admitted his guilt that are on the Form 1, with a view to increase the penalty that would otherwise be appropriate for the principal offence. Given the nature of those offences, I find that they warrant a slight increase in the sentence that is otherwise appropriate.
The appropriate sentence is 9 years from which is to be deducted the 25% for the utilitarian plea of guilty, resulting in a sentence of 6 years 9 months.
I find special circumstances given the offender's need for rehabilitation which will be more adequately met by programs whilst not in custody, the significant hardship suffered by reason of the Covid-19 pandemic and his incarceration during the period his father was unwell. In comparison to the co offenders this is not the offender's first time in custody and the subjective features are not as significant. In the circumstances, the standard non-parole period will be reduced.
The offender was arrested on 14 December 2021 for this offence and has remained in custody since that date. Accordingly, the sentence is to be backdated commencing from the date of his arrest to take into account time already spent in custody referable to the offence.

Orders 1. In respect of the offence to which the offender has pleaded guilty, the offender is convicted. 2. I impose a sentence of imprisonment of 6 years, 9 months to date from 14 December 2021 and to expire on 13 September 2028. 3. I impose a non-parole period of 4 years, 7 months to expire on 13 July 2026. 4. The earliest date the offender is eligible to apply for release on parole is 13 July 2026.

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: 08 May 2023

Crimes Act 1900(NSW)s 193C

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