R v Kochai

District Court of NSW|2022-06-20|Before: Gleeson CJ, Callinan JJ

Judgment

Khalid Kochai (the offender) appears for sentence after pleading guilty in the District Court to the following charges: 1. deal with property intending that the property will become an instrument of crime, contrary to s 193D(1) Crimes Act 1900. The maximum penalty for the offence is 15 years imprisonment; 2. supply prohibited drug not less than a large commercial quantity, contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is life imprisonment and parliament has specified a standard non-parole period of 15 years.
The offender also asks the Court to take into account on a Form 1 when dealing with the supply charge one count of possess prohibited drug being 1 gram of cannabis contrary to s 10(1) Drug Misuse and Trafficking Act 1985.

Approach to sentencing

I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.
The offender entered pleas of guilty in the District Court and is entitled to a 10% discount on sentence: s 25D(2)(b) Crimes (Sentencing Procedure) Act 1999.
To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Facts

The parties presented an Agreed Statement of Facts that can be summarised as follows.
The investigation was carried out pursuant to a cross-border controlled operation authority issued by an Assistant Police Commissioner. During the course of the investigation the offender met with an undercover operative (UCO) on 25 occasions between 26 September 2018 and 4 July 2019.
On nine of those occasions the offender purchased cigarettes from the UCO that he believed to be illegal for a total sum of $262,500 in cash.
On six or seven of those occasions, the offender supplied the UCO with over 3 kilograms of cocaine, in exchange for $11,000 in cash and cigarettes worth $587,500.
During 18 of the meetings the importation of heroin was discussed. Telephone calls were made from a public telephone on three occasions to an associate of the offender in Pakistan to discuss sourcing and dispatch of the heroin to Australia. These calls were recorded by the UCO. These discussions continued between the UCO and the offender throughout the period, but no arrangements for the importation of the drug were finalised.
A price structure for the cigarettes was agreed between the UCO and the offender at $5 per packet. Each carton contained 10 packets of cigarettes and each box contained 50 cartons of cigarettes or 500 packets.
The offender and the UCO communicated by phone and text messages. They developed a code for their communications to prevent detection.
On 26 September 2018 the UCO met with the offender and an associate of his, Mohammad Junaid Thorne, at a café in North Parramatta. On this occasion, the UCO told the offender that the cigarettes he could supply were banned by the government and illegal to sell. The offender agreed at the meeting to buy 44 cartons of cigarettes. He offered the UCO $20,000 in cash that he had with him. The UCO declined payment stating that he wanted to receive payment on delivery. The offender said that he would buy any cigarettes that the UCO had to sell and that it would be an ongoing arrangement. The offender indicated that he knew that the tobacco being sold was illegal.
On 9 October 2018 the UCO met with the offender at a car park in Northmead. The offender purchased a carton of cigarettes for $22,500. The offender asked about receiving more in the future and the UCO told him that he would let him know when his container arrived from Customs.
On Monday 5 November 2018 the UCO met with the offender and Mr Thorne at a car park in North Parramatta. The offender stated that he was keen to buy a variety of brands of cigarettes. The UCO showed the offender that he had 20 boxes of cigarettes and the offender was excited by the quantity. He told the UCO that he had only brought $39,000 with him. They agreed on a price of $50,000 and that the offender would owe the UCO $11,000. The offender paid the UCO the $39,000 and took the cigarettes. The offender informed the UCO that his associate had already sold the cigarettes purchased on 9 October 2018. The offender indicated that he wanted to purchase $100,000 worth of illegal tobacco later that day or the next day and that he wanted half a container by the end of the month. The UCO stated that he would continue to supply the offender on an ongoing basis with increasing quantities. The offender stated that he had an ounce of cocaine that had already been cut. He stated that despite being cut it was still of good quality and would usually sell for $6,500 an ounce, but he would supply it to the UCO for $5,500 in exchange for cigarettes. The offender claimed that he could supply cocaine of 94% purity in the future.
After these discussions, the offender called over Mr Thorne, who had been in the vicinity but not taking part in the discussion. They agreed to hire a van and return to pick up the cigarettes because their vehicles did not have sufficient capacity.
At 1.30pm the UCO and Mr Thorne took the cigarettes to an address in Guildford where they met the offender in a van that he had just hired. The cigarettes were loaded into the van being driven by the offender.
A short time later, the UCO called the offender and told him that he would prefer the outstanding amount of $11,000 be paid by the supply of two ounces of cocaine at $5,500 per ounce. The offender agreed and arrangements were made to meet a few days later for the cocaine supply.
On 6 November 2018 arrangements were made for the offender to give $11,000 in cash to Mr Thorne, who later gave it to the UCO.
On 9 November 2018 the UCO met with the offender in a car park in North Parramatta. The offender retrieved from his backpack two clear plastic snap lock bags containing white powder, which were later analysed as 28 grams of cocaine at 38% purity and 27.7 grams of cocaine at 55.5% purity. The cocaine was supplied to the UCO in exchange for $11,000 in cash. The offender stated that he could supply as much cocaine as the UCO wanted and that he had five separate phones that he used to communicate with different people, including one phone that was only used to contact the UCO. The offender said that he had $51,000 to purchase cigarettes. The UCO told the offender that he did not have any cigarettes with him, but arrangements were made for supply on a future date.
At about 11am on 26 November 2018 the UCO met the offender in a car park in Northmead. At this meeting the UCO agreed to sell the offender cigarettes to the value of $75,000. The offender only had $38,500 in his possession at the time and it was agreed that they would meet later in the day where the offender would provide another $30,000 in cash and an ounce of high-quality cocaine (98% purity) to account for the remaining $6,500. The offender provided 15,000 packets of cigarettes inside 30 boxes. The offender gave the UCO $38,500 in cash. At about 3pm the offender returned to the same location and gave the UCO $30,000 in cash. The offender was carrying a bag containing approximately $200,000. He told the UCO it was for a large purchase of cocaine he was about to make. He said he had changed cars from the one he had used earlier in the day to avoid detection.
At about 6pm on 4 December 2018 the UCO met the offender in a car park in Rydalmere. The offender told the UCO he did not have the ounce of cocaine he owed him for the supply of illegal tobacco on 26 November 2018. The offender told the UCO he had recently purchased 500 grams of cocaine for $117,000 and it was a "beautiful one". He stated he would have the cocaine ready for the UCO at their next meeting.
At about 10am on 12 December 2018 the UCO met with the offender in a car park in Northmead. The offender arrived in a Hertz rental van. The offender informed the UCO he had been unable to obtain the ounce of cocaine still owing from the purchase of illegal tobacco on 26 November 2018. Instead, he gave the UCO $6,400 in cash, along with a hand-written IOU note for $100 to settle the debt. The offender stated he would have the ounce of cocaine available on the next meeting for the UCO to purchase. The UCO provided the offender with 20 boxes of cigarettes (10,000 packets). The total value of the cigarettes was $50,000 which was paid in cash by the offender to the UCO. The UCO assisted the offender to load the boxes into the rental van. The offender stated he was expecting to purchase a larger quantity of illegal tobacco from the UCO in the future.
Between 14 and 16 December 2018 the offender and the UCO arranged via text message and telephone conversations, to meet on Tuesday 18 December 2018 for the purpose of the offender supplying the UCO with five ounces of cocaine valued at $6,500 per ounce in exchange for illegal tobacco. During their conversations the offender referred to cocaine as a "CD" (compact disc) and the $6,500 per ounce price as "six and a half doler".
At about 1.45pm on 18 December 2018 the UCO met with the offender in a car park in Northmead. The offender took a package out of a backpack wrapped in white coloured wrap. He placed the package under the driver's seat of the UCO's vehicle. He told the UCO that it was five ounces of the best quality cocaine and said that he had taken out one or two grams for himself. The offender and the UCO transferred 17 boxes containing 8,500 packets of cigarettes to the offender's vehicle. The offender handed the UCO 136.3 grams of cocaine from the offender as payment for the illegal tobacco as well as $100 in the IOU note previously given to him. The cocaine was located in several layers of plastic bags. Formal analysis of it confirmed it to be 136.3 grams of cocaine of 32% purity.
At about 5.55pm on Monday 7 January 2019 the UCO met with the offender at a car park in Rydalmere. The offender arrived in a white Toyota Hiace rental van. The offender placed a white plastic bag in the front passenger seat of the UCO's vehicle and told him it contained $50,000 in cash for the illegal tobacco. The two men then loaded 20 boxes containing 10,000 packets of cigarettes into the offender's van. The offender expressed interest in purchasing more of the illegal tobacco in larger quantities.
At about 5.10pm on 6 February 2019 the UCO and the offender met at a car park in Rydalmere. The UCO supplied the offender with six boxes (3,000 packets) of cigarettes in exchange for $15,000. They loaded the boxes into the offender's vehicle. The offender handed the UCO a white package containing $15,000 in cash.
On 20 February 2019 at a meeting with the UCO, the offender told the UCO he would supply him with 1 kilogram of cocaine in exchange for a quantity of illegal tobacco. The offender said he would have the cocaine ready within the following fortnight.
Between 26 and 27 February 2019 the offender and the UCO exchanged a series of text messages and had a number of telephone conversations. They arranged to meet on Thursday 28 February 2019 for the purpose of the offender supplying the UCO with half a kilogram of cocaine in exchange for cigarettes valued at $115,000. During their conversations the offender referred to the commodity as "boxes of shoes".
At about 11.10am on Thursday 28 February 2019 the UCO met with the offender in a car park in Rydalmere. The offender attended the meeting in a white coloured Mitsubishi Pantech truck. He told the UCO that he had just purchased the truck for $39,000 in cash and would be using it to transport soft drinks and similar items as part of his business involving the importation of those goods. During the meeting, the offender produced a Coles brand plastic shopping bag and handed it to the UCO. It contained approximately half a kilogram of cocaine, as previously arranged for the offender to supply 20 boxes (10,000 packets) of cigarettes. The UCO put the cocaine into his vehicle. The men moved the 20 boxes of illegal tobacco from the UCO's vehicle to the offender's vehicle. The UCO told the offender he would provide the outstanding illegal tobacco during their next meeting scheduled for 5 March 2019. The white powder was analysed and confirmed to be 492.5 grams of cocaine at 76.5% purity. Following this meeting the offender was observed attending a warehouse / industrial unit in Redfern Street, Wetherill Park. He parked the truck there and drove away from the location in a different vehicle.
At about 1pm on Tuesday 5 March 2019, the UCO met with the offender at a car park in Rydalmere. The UCO provided the offender with 26 boxes (13,000 packets) of cigarettes that was owing from the 28 February 2019 transaction.
At about 8.10pm on Monday 11 March 2019 the offender sent a text message to the UCO telling him that he had a birthday "gift exactly like last time" for him. The UCO understood this to be an offer to supply him with half a kilogram of cocaine in exchange for illegal tobacco.
Between 18 and 20 March 2019 the UCO and the offender made arrangements to meet for this supply. At approximately 9.30am on Thursday 21 March 2019 the UCO met the offender at a car park in Rydalmere. The offender attended this meeting in the Pantech truck. The offender produced a Coles brand shopping bag and handed it to the UCO. The bag contained approximately half a kilogram of cocaine for which the UCO gave the offender 44 boxes (22,000 packets) of cigarettes as previously arranged. They moved the boxes into the offender's vehicle. Subsequent analysis confirmed the white powder to be 491.2 grams of cocaine at 70.5% purity.
At about 2.30pm on Tuesday 26 March 2019 the UCO met with the offender in a car park in Rydalmere. The offender attended in the Pantech truck. The offender produced a Woolworths plastic shopping bag and handed it to the UCO. It contained approximately 1 kilogram of cocaine and was in exchange for 44 boxes (22,000 packets) of cigarettes valued at $220,000. The men loaded the cigarettes into the offender's vehicle. The UCO told the offender he would provide the outstanding 44 boxes of cigarettes at their next scheduled meeting on 5 April 2019. Subsequent analysis of the white powder confirmed it to be 988.2 grams of cocaine at 76% purity.
At about 1.26pm on Friday 5 April 2019 the UCO met the offender at a car park in Rydalmere. The offender attended the meeting in the Pantech truck. They moved 40 boxes (20,000 packets) of cigarettes from the UCO's vehicle to the offender's vehicle. This quantity of illegal tobacco represented the balance owed from the transaction on 26 March 2019. Later that same afternoon the offender sent the UCO a text message stating "I think u forgot. I told u my shoes number is 44 you sent me 40". The UCO understood this to be code for the proposition that the UCO should have supplied 44 boxes of cigarettes rather than 40.
At about 8.09pm on Friday 26 April 2019 the offender sent a text message to the UCO saying that he had "good stock" for a "good price", which the UCO understood to be an offering of cocaine.
At about 2.17pm on Monday 6 May 2019 the offender sent a text message to the UCO requesting the outstanding amount of the illegal tobacco owed to him from the 26 April 2019 transaction.
At about 11am on Wednesday 15 May 2019 the UCO met with the offender at a car park in Rydalmere. The offender told the UCO that he could supply him with as much cocaine as he wanted to purchase. The UCO did not commit to purchasing any cocaine from the offender and a short time later they both left the location.
On 19 March 2019 the offender sent a text message to the UCO stating "I already booked 2 palets for you received half palets when u ready I delever 2 u". The UCO understood this to mean that the offender had ordered two kilograms of cocaine from his upline supplier and had received 500 grams of cocaine ready to supply to the UCO.
Between 21 and 27 May 2019 the offender and the UCO made arrangements via text message to meet for the purpose of the offender supplying the UCO with 500 grams of cocaine.
At about 11am on Tuesday 28 May 2019 the UCO met the offender at a car park in Rydalmere. The offender attended in the Pantech truck. He told the UCO he was not in possession of cocaine but that he would collect it on the next day and would advise the UCO of the time and place to conduct the supply.
At about 11am on 30 May 2019 the UCO met the offender at a car park in Northmead. The offender attended in the Pantech truck. The offender placed a grey plastic shopping bag behind the front seat of the UCO's vehicle. The bag contained approximately half a kilogram of cocaine as previously arranged. The cocaine was in exchange for 30 boxes (15,000 packets) of cigarettes valued at $110,000. The UCO transferred the boxes from his vehicle to the offender's vehicle. Arrangements were made for the UCO to provide the remaining illegal tobacco at their next meeting on 19 June 2019. Subsequent analysis of the white powder confirmed it to be 491.7 grams of cocaine at 63% purity.
At about 12pm on Wednesday 19 June 2019 the UCO met with the offender at a car park in Northmead. The offender attended in the Pantech truck. The UCO provided the offender with 14 boxes of cigarettes owing from the 30 May 2019 transaction. The UCO also provided the offender with a gift.
On 4 July 2019 the UCO met with the offender in the Officeworks car park at Northmead. The offender offered to supply further quantities of cocaine to the UCO. The offender complained some of the previous illegal cigarettes had been damaged. The UCO provided the offender with four replacement boxes, each containing 50 cartons of cigarettes.
Between 12 July 2019 and 29 July 2019, the UCO arranged for the offender to supply him with half a kilogram of cocaine in exchange for 44 boxes of cigarettes valued at $110,000.
At about 11.45am on Thursday 31 July 2019 the UCO met the offender at a car park in Bankstown. The offender attended in the Pantech truck. After parking the truck, the offender got out and was standing, looking around the car park.
At about 11.49am on the same day, the offender was placed under arrest and cautioned. A search was conducted of the truck. The offender was found to be in possession of various items connected to the investigation including a Nokia brand mobile phone and battery (with the battery having been removed to prevent potential monitoring of his location), a knife and six cannabis joints. Located in the truck was a black backpack containing a Milo breakfast cereal box containing a clear resealable plastic bag with a white powder substance. Formal analysis later identified this as 367.1 grams of cocaine at 70.5% purity. This was the cocaine the offender had intended to supply on that date. The offender denied knowledge of the black backpack and its contents.
The offender was conveyed to Bankstown Police Station. He participated in an electronically recorded interview and denied any knowledge or involvement in the offences.
The offender has been in custody, bail refused, for these offences since 31 July 2019.

Reports of Dr Olav Nielssen

The Crown tendered three reports of Dr Olav Nielssen, psychiatrist, dated 18 August 2019, 18 November 2020 and 5 May 2021. Dr Nielssen's reports were obtained on behalf of the offender in his quest for bail. The first report was dated about two weeks after the offender was arrested.
Dr Nielssen had been briefed with a statement of the facts and a summary prepared by the offender's daughter, Najia.
The offender gave a history that he had been in custody since 31 July 2019 and that he planned to apply for bail. He told Dr Nielssen that he had been set up by the police and that he believed that he was not the real target of the police operation. His interest was in the illegal cigarettes but they asked him to supply drugs and guns in return. He told Dr Nielssen that he was "silly" and that he "got greedy". The offender told Dr Nielssen that he was smoking a lot of pot and doing a bit of coke. He assumed that he had been under surveillance for about one year. When asked about his emotional state and the period before his arrest, the offender told Dr Nielssen that he had "no problem whatsoever … I was working all the time … 13 years I work six or seven days a week … I am not one sitting home and lean back".
The offender told Dr Nielssen that his early childhood was normal and that he completed high school and the first year of medical school before having to leave Afghanistan. He attended some English classes and investigated continuing his studies in Australia but at that time he did not have permanent residency and would have had to have paid for the courses when he had to work long hours to support his family. He rarely went to doctors and did not report any contact with mental health professionals or being prescribed any medication for a mental condition including insomnia. He denied ever feeling severely depressed or having any common symptoms of a mental condition.
The offender told Dr Nielssen that he drank whiskey and occasionally beer on the weekends, but not on the days before he was due to drive or workdays. He did not report any periods of heavier drinking although he had a mid-range drink driving charge in 2005. The offender reported the use of cannabis in the last 10 years that had become more frequent in the years before his arrest. The offender told Dr Nielssen that he was not an especially heavy cannabis user but he was using one or two cigarettes mixed with cannabis at night and confirmed that he had cannabis in his possession when he was arrested. He used cocaine in social settings, depending on availability but never regularly or in large quantities. He smoked cigarettes, but not every day because he was concerned about his health. He tried to keep fit by training at a gym several times a week. He did not report any other addictions.
Dr Nielssen recorded a history that the offender was the oldest of seven children, with one sister in Australia and the rest of his siblings in Afghanistan. His family were of Pashtun ethnicity and spoke Pushtun and Farsi at home. His father worked for the government before the Taliban takeover in about 1996. When the more radical wing of the Taliban took over, the family moved to the north-east corner of Afghanistan that was not controlled by the Taliban government. His father advised him to leave and paid an agent $US10,000 to arrange his migration to Australia. His family had moved to the northern city of Kunduz near the family estates on the river that marked the border with Tajikstan. One of his brothers is now an assistant consul in Pakistan. The offender described the situation in Afghanistan as unstable.
The offender said he spent his early life in Kunduz and attended a well-regarded school, completing a year of medical science at university in Kabul. He married in his early twenties and had five children from his marriage, including an 11 year old son conceived on a visit home to his family from Australia while they were waiting to obtain their visas.
The offender came to Australia on his own and soon formed another relationship from which he had two children, which ended after his wife and other children arrived in Australia in 2010. His partner was angry and accused him of being violent towards her, resulting in an apprehended violence order that prevented him from seeing the children and resulted in the loss of his security guard licence. He told Dr Nielssen that he continued to provide financial support for the two children from the relationship.
The offender was granted permanent residency in 2006 and citizenship soon afterwards. For the first 12 years he worked as a security guard and then as a truck driver after his security licence was revoked including as an interstate truck driver. He applied for a job as an interpreter for American troops, which was a lucrative position. He did well in the translating courses but was not offered a position because of his father's association with the former government.
Dr Nielssen noted from the family summary prepared by the offender's daughter the family circumstances of each of his children.
Dr Nielssen opined that the offender did not seem especially anxious or depressed and did not conduct himself in any manner suggesting an underlying or emerging psychotic illness. His concentration and memory appeared to be unimpaired and Dr Nielssen assessed him as intelligent.
Dr Nielssen did not detect any mental condition. He did not believe that his substance use was sufficient to meet the criteria for a diagnosis of substance use disorder. Dr Nielssen noted that the offender reported some exposure to political instability in Afghanistan which prevented him from completing tertiary education and having to come to Australia as a refugee and to re-establish himself in work in low skilled occupations to support two families. The offender did not report any particular difficulty in adjusting to life in Australia and had been consistently employed for most of the time and able to provide for his children, who had done well. Dr Nielssen opined that the offender did not have a mental condition that would make it likely for him to fail to appear at any proceedings or commit a serious offence whilst on bail.
In his second meeting with the offender, Dr Nielssen was told that there had been no progress in his case and that he hoped to apply for bail again as he was severely limited in his ability to prepare his defence in prison. The offender told Dr Nielssen that as far as he was aware his physical and mental health were "all good … no problem". The offender had not seen psychologists or mental health workers or been prescribed any medication whilst in custody. The offender told Dr Nielssen that he did not believe he needed any. The offender was up-to-date with world events including the events in Afghanistan.
On Dr Nielssen's observations, the offender did not seem especially anxious or depressed and did not display any indicators of psychotic illness or impairment in attention, concentration or memory function.
In his second report, Dr Nielssen maintained his opinion that the offender did not have a mental condition. Dr Nielssen opined that the offender seemed fairly stoic, perhaps reflecting the adversity he faced during his upbringing and adult life.
For the third report, Dr Nielssen interviewed the offender by telephone. At that time, he was housed in the Corrective Services Medical Annex at the Prince of Wales Hospital. The offender told Dr Nielssen that he had been transferred to the Annex for medical treatment after a heart attack and complications with his bladder following the medical treatment. The offender reported concern about the coordination of various specialists, feeling that he would have had better care outside of the prison environment. He had been prescribed a number of medications, which he was given without incident.
The offender told Dr Nielssen that his trial had been delayed, and that he still intended to plead not guilty. He was suffering stress as a result of the physical limitations caused by his condition including breathlessness and chest pains. The offender had still not sought any treatment for his mental health. He had been told that he could see a psychiatrist but that had not been arranged. He told Dr Nielssen that he had not slept well since the heart attack and had lost five kilograms. He was aware of feeling anxious and unable to breathe.
Dr Nielssen opined that the offender was suffering from an adjustment disorder with anxious and depressed mood, being a clinically significant reaction to an adverse life event. Dr Nielssen noted that the offender had suffered insomnia, loss of appetite and weight, anxiety symptoms including panic attacks and realistic concerns about his health and access to medical care. Dr Nielssen opined that anxiety and depression was a common complication of heart attacks, especially in men, who have residual chest pain on minimal exertion. The fear of having another heart attack while locked in a cell without access to emergency services had added to the offender's anxiety symptoms including the feeling of being unable to breathe and constant worry about his health. Dr Nielssen recommended that the offender be followed up by a psychiatrist and possibly medicated for depression.

Evidence of Chafic Awit, psychologist

The offender tendered a report of Chafic Awit, psychologist, dated 3 May 2022 and a follow-up letter dated 17 June 2022. Mr Awit was required for cross-examination, which I will return to.
The offender gave Mr Awit the following history. He was born in Afghanistan and came to Australia by boat as a refugee in 2000 at age 30. Both of his parents were deceased and he was not exposed to domestic violence as a child.
Growing up in Afghanistan he was exposed to war and political instability from about the age of five. He had experienced gunfire, bombings and having to flee from place to place. When he was eight years of age his family home was raided by Russian soldiers and occupied for over five hours. His cousin was taken away, beaten and tortured. His family left their family home and moved from town to town, "always running and hiding".
He completed school but his schooling was disrupted. He did not continue with any further education. He completed Certificate courses at TAFE to be qualified as a security guard.
He completed one year military service at age 18. He did not obtain employment until he was 27 years of age when he got a job as a customer service officer in the Prime Minister's office. He worked there for eight months until the Taliban overthrew the government. The offender was next employed as a fruit picker in Adelaide about seven months after arriving in Australia. He did this for one year before moving to Sydney and completing courses to be licensed as a security guard. He worked as a security guard for 10 years, before becoming a delivery driver.
The offender described himself as a daily user of alcohol, consuming two to three drinks each night to wind down and binge drinking on weekends. There were times when he drank to relieve stress. He commenced using cannabis about one year after arriving in Australia and he soon used it daily. From about 2017 he began using cocaine and had become addicted to it by the time of the offences. He described drinking and using cannabis to wind down and as a way of "numbing himself".
The offender was married at 18 years of age and he had five children from that union ranging from 13-35 years of age. He came to Australia by himself and his family followed in 2010. He stated that he had to leave Afghanistan or faced being killed and he fled as a refugee. His life had always been up and down and he became addicted to illicit substances for a long time.
The offender described suffering symptoms of anxiety and depression stemming from the trauma of war he was exposed to as a child and young adult. He stated that he now recognised that he should have sought help but did not because he was too busy working to support himself and his family. He was concerned that a diagnosis would preclude him from working. In the last five years he reported feeling uncomfortable around people including his extended family, broken sleep, feelings of worthlessness and uncontrollable worry, concentration and memory issues. He took up interstate truck driving to be alone.
The offender believed that his heart attack was caused by the stress he had been under. He expressed remorse for his actions and acknowledged that he had brought shame on his family. He was upset at missing out on his children and grandchildren growing up. He reported that the conditions of his incarceration had been difficult during the pandemic, with constant lockdowns, very little time outside of his cell, and no family visits.
Mr Awit administered the Depression and Anxiety Scale 21 (DASS-21), a self-reporting test of symptoms of anxiety, depression and stress. Mr Awit asked the offender to complete the DASS-21 based on the way that he was feeling leading up to and during the offending period (September 2018 to July 2019), but before he was arrested, being a period of about three years prior. On that basis, the offender scored in the "extremely severe" range for anxiety and depression.
On all of the evidence presented to him, Mr Awit opined that the offender satisfied the diagnostic criteria provided for in DSM-V for: 1. Generalised Anxiety Disorder; 2. Major Depressive Disorder; 3. Substance Use Disorder; 4. Alcohol Use Disorder.
Mr Awit stated that these conditions can lead to cognitive impairments that can have some impact on decision-making ability.
In relation to the offences, the offender expressed remorse to Mr Awit for the offences, acknowledging that his actions were "inexcusable" and that they have had a significant impact on his family.
Mr Awit opined that the offender had suffered symptoms of anxiety and depression for a long time, stemming from the trauma of multiple wars that he sought to numb with alcohol and illicit substances. The offender resisted becoming involved in the offences on four or five occasions before succumbing. His decision was rushed and he was struggling to make ends meet and struggling with his own addictions. He felt under pressure with the demands made of him to supply more drugs and he was considering ending his involvement. Mr Awit opined that the offender was suffering from an exacerbation of his symptoms and made a number of poor decisions. His conditions are well known to impact decision-making ability and for the sufferer to feel bombarded with negative thoughts and emotions. Mr Awit recommended that the offender participate in an intensive program of psychological intervention.
In preparing his follow-up letter, Mr Awit was given a copy of Dr Nielssen's reports and he spoke to the offender again by audio-visual link.
Mr Awit stated that he thought the histories given by the offender to both practitioners had strong similarities. Mr Awit stated that the offender's experience of the trauma of war and his refugee status were of particular importance, especially considering that research suggests that more than 70% of mental conditions begin before the age of 25. Mr Awit stated that he focussed on the first 18 years of the offender's life when taking his history and that it was not different from the histories of other patients with similar backgrounds.
Mr Awit opined that it was normal for people from war torn backgrounds to attempt to normalise their experiences. He stated that the offender had to work to support his family and was concerned that seeking psychological help would preclude him from working. The offender's history of working long hours was a way of numbing himself or distracting himself from symptoms.
Mr Awit questioned the offender about the discrepancies between the histories of drug and alcohol use given to both practitioners. The offender told Mr Awit that he was concerned that if he told Dr Nielssen the true position that he would be refused bail. Mr Awit stated that, during his first assessment, the offender queried the need for such detail, concerned that it would reflect poorly on him in sentencing. Mr Awit opined that he believed that the offender still met the criteria for a diagnosis of alcohol use disorder and substance use disorder.
Overall, Mr Awit stood by his original opinion as to the various diagnoses. He maintained his opinion that the offender's decision making was impaired at the time of the offending conduct as a result of his mental condition but could not state to what extent.
In cross-examination, Mr Awit agreed that the DASS-21 was at its most valid and most reliable for the week before it was administered and that it was designed for use relating to that timeframe. Mr Awit accepted that there were some discrepancies between the histories relating to the drug and alcohol use, most significantly relating to alcohol and cocaine use. Mr Awit gave evidence that he thought that the offender told him the truth about why he had given a lesser account to Dr Nielssen, because the offender had queried him on the detail that Mr Awit was eliciting, namely would it be used against him, and by reference to his demeanour during the first interview. Mr Awit accepted that his instruction to the offender to respond to the DASS-21 scale by reference to the offending period may have coloured his report of how he felt and that he expected that spending the last three years in prison and the impact of the pandemic may also have done so.

Letters from the offender's children

The offender tendered letters to the Court from two of his children, his daughter, Najia, and his son, Aminullah.
Najia stated that the offender had expressed remorse to her for the damage and embarrassment he has caused the family. The family have missed him and were very concerned for his welfare during his ill health in gaol and as a result of not being able to see him during the pandemic. Najia described the offender as being close to his family and loving spending time at home with them.
Aminullah described the relationship with his father as "extremely close". He appreciated the sacrifices that his father had made to come to Australia and to work to make a life for the family. He stated that his youngest brother, who is presently 14 years of age, has found being separated from his father particularly difficult. Aminullah has visited his father regularly but that was stopped during the pandemic. The offender has expressed remorse to Aminullah for the offences, acknowledging that he did not consider the consequences.

Medical documents

The offender tendered a bundle of discharge summaries from Prince of Wales Hospital relating to the treatment of his physical conditions that can be summarised as follows.
On 25 March 2021, the offender suffered a heart attack in custody. He was taken to Prince of Wales Hospital and had a stent inserted. He was discharged the day after the procedure.
On 2 May 2021, the offender was taken to Prince of Wales Hospital suffering from urinary retention and blood in his urine as a result of a blood clot in his bladder. He remained in hospital for about one week.

Findings as to the offender's mental condition and subjective circumstances

The offender did not give evidence in the sentence proceedings and relied on what he told Dr Nielssen and Mr Awit as evidence of the facts of his subjective circumstances. It is well settled that a court should exercise very considerable caution in relying on those statements, where the offender does not give evidence: R v Qutami [2001] NSWCCA 353 at [58]-[59] (Smart AJ) and [79] (Spigelman CJ).
In this case, many of the features of the competing histories as to the offender's background are irreconcilable. Mr Awit's evidence was that the offender told him that he did not tell Dr Nielssen the whole truth as to his drug and alcohol use, because he thought it would adversely impact his application for bail. In other words, the offender tailored what he told Dr Nielssen to serve his own interests in procuring what he thought would be a favourable report for the purpose of obtaining bail. I am satisfied that he has also tailored what he told Mr Awit to obtain what he thought would be a favourable report for the sentence proceedings, and I should not accept what he told Mr Awit as truthful unless it is independently verified or adverse to his own interest.
I prefer the opinions of Dr Nielssen for the reasons that follow. First, the offender was more forthcoming with Dr Nielssen because he provided more information against his own interest, in terms of his involvement in the offences, his relatively privileged background in a war-ravaged country, and his involvement with another woman in Australia that ultimately led to the ADVO and the loss of his security licence. Second, Dr Nielssen had access to background information independently prepared by the offender's daughter, whereas there was no evidence of Mr Awit being provided with or seeking out any independent verification of what he was told. Third, Mr Awit's use of the DASS-21 scale over an extended period was in my view likely to lead the offender to exaggerate the symptoms referred to in the scale as being present during the offending period. Fourth, Dr Nielssen, an eminent forensic psychiatrist, had the opportunity to independently assess the offender's mental state at a time much more contemporaneous to the offending conduct, in fact two weeks after the offender was arrested. Dr Nielssen opined at that time that the offender was not displaying any signs consistent with him suffering from a mental condition.
The result is that I am satisfied that the offender has developed a mental condition in custody related to his physical health conditions and probably exacerbated by the circumstances of his incarceration caused by the pandemic.
I accept that the impact of growing up in Afghanistan in the relevant period would have been challenging, but because of the inconsistent statements of the offender about that, I cannot determine the impact of it on him or if it should lead to a reduction in his moral culpability for the offences. I do not accept that his decision-making capacity was adversely impacted at the time of the offending conduct as a result of him suffering from a chronic set of mental conditions.

Objective seriousness

The supply offence involved supplying significant quantities of cocaine on seven separate occasions, amounting to three times the large commercial quantity. Each supply involved some planning through negotiations, the making of arrangements, meetings, telephone conversations and text messages in code. The offender used a number of mobile telephones, code and changed vehicles to avoid detection. The offender had access to substantial quantities of cocaine through others. The purity of the drug varied, but the offender was able to supply some drugs of a higher purity. The offender was an active participant in the criminal organisation. The offender stated that he could arrange imports of heroin and participated in discussions with the UCO and others about doing so. The total value of the cocaine supplied was $587,500. There was a further agreement in place to supply 0.5kg of cocaine for $110,000 in place at the time of the offender's arrest. If the cocaine was disseminated to end users that would have been an aggravating factor, but the fact that it was not, is not a mitigating factor. The offence was committed over an extended period of 10 about months.
The instrument of crime offence is capable of broad application. The value of the cigarettes dealt with was $860,000. It was intended to facilitate the serious drug supply offence. The offender knew that the tobacco was illegal and being traded for an illegal substance. The offender's dealings with the illegal tobacco included receiving it, possessing it and disposing of it. The offence was committed over an extended period of about 10 months.
I have had regard to the maximum penalty for the offences.

Deterrence

General deterrence is of significance in sentencing offenders for serious drug supply offences and proceeds of crime offences. Persons considering committing these types of offences should be aware by references to the penalties given for them that they will meet with significant punishment if they choose to commit them.
Specific deterrence is also of some relevance because the offender has limited insight into his offending conduct.

Aggravating factors

There are no relevant aggravating factors.

Mitigating factors

The offender did not have a significant record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has strong family ties and I am satisfied that his time in custody has been hard on him, particularly with his physical health conditions. I am satisfied that the offender now understands the consequences of his actions and that he has good prospects of rehabilitation.
The offender has expressed remorse to his children and Mr Awit and has acknowledged the impact of his offending conduct on his family. I am not satisfied that he has established the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999, but the remorse that he has expressed can still be taken into account as a mitigating factor.

Other matters

I have had regard to the cases with comparable sentences provided to me by the parties.
I have taken into account the impacts that the pandemic has had on prisoners in custody, including the offender.

Penalty

I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.
The offender is convicted.
This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999.
The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:
9 years for the supply offence with a non parole period of 5 years, taking into account the matter on the Form 1; and
5 years for the instrument of crime offence.
I make a finding of special circumstances. This is the offender's first time in custody and he has health conditions that will be better treated in the community.
I impose an aggregate term of imprisonment of 10 years with a non-parole period of 6 years to date from 31 July 2019. The non-parole period will expire on 30 July 2025 and the head sentence will expire on 30 July 2029. The offender will be eligible to be released on parole on 31 July 2025.

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: 24 June 2022

At a glance

Court

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Before

Source

Judgment (15 paragraphs)

Parties

Cases Cited (2)

Cited By (1)