R v Maalla

District Court of NSW|2024-01-23

Introduction

HIS HONOUR: The Offender, who is currently 32 years old and was 31 years old at the time of offending, has pleaded guilty to and is being sentenced in respect to the following matters. SEQUENCE PARTICULARS MAX PENALTY Sequence 1 - Knowingly take part in supply (4.961kg of 1,4-Butanediol) S25(2) Drug Misuse and Trafficking Act 1985 Life imprisonment (SNPP 15 years) Sequence 4 - Possess Prohibited Drug (16.09g of methylamphetamine) S10(1) Drug Misuse and Trafficking Act 1985 2 years imprisonment and/or 20 penalty units (No SNPP) To be dealt with under s 166 Sequence 14 - knowingly take part in supply (1,4-Butanediol) S25(1) Drug Misuse and Trafficking act 1985 15 years imprisonment and/or 2,000 penalty units (No SNPP)

In addition to the pleas of guilty entered, the Offender also asks the Court to take into account on sequence 1 the following matters on a Form 1. SEQUENCE PARTICULARS MAX PENALTY Attached to Sequence 1 Sequence 5 - Deemed Supply of 438.8g of 1,4-Butanediol s25(2) Drug Misuse and Trafficking Act 1985 15 years imprisonment (no SNPP) Sequence 7 - Possess prohibited weapon in contravention of weapons prohibition order S34(1) Weapons Prohibition Act 1998 10 years imprisonment (No SNPP) Sequence 10 - Possess prohibited drug (12g cannabis) S10(1) Drug Misuse and Trafficking Act 1985 2 years imprisonment (No SNPP) Sequence 13 - Deal with property suspected of being proceeds of crime ($7,500) S193C(2) Crimes Act 1900 3 years imprisonment (No SNPP)

Early plea of guilty

The Offender entered pleas of guilty in the Local Court on 20 September 2023.
The Offender is entitled to a reduction of 25% from what would otherwise have been his sentence in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

Time in custody

The Offender was arrested on 17 November 2022 and has been bail refused since this date.
As of today (8 February 2024), the Offender has spent 1 year, 2 months and 18 days (or 444 days) in custody.
On 4 December 2023, the Offender was sentenced in the Local Court to 6 months' imprisonment for contravening an Apprehend Violence Order (AVO) pursuant to s14(1) Crimes (Domestic and Personal Violence) Act 2007. The sentence was back-dated to commence on 17 November 2022 and expired on 16 May 2023.
On 23 February 2024, immediately prior to the sentencing hearing the subject of these reasons, I heard and determined an appeal against the Magistrate's sentence for contravening the AVO and for reasons I gave then, determined to set aside the sentence of the Magistrate and instead imposed a Community Corrections order.
I should say that some of the many phone calls relied upon on the conviction for the breach of the AVO, phone calls between the Offender and the protected person (his former partner and mother of his child), the topic of which was the sale of drugs the subject of the charges before me. The protected person is the person referred to as "WM" in the agreed facts before me.
What that all means in the context of this decision is that the Offender has been in custody since 17 November 2022 for reasons only connected with the matters before me.
Accordingly, if I decide to impose a custodial sentence it will be backdated to commence on 17 November 2022.

The Agreed Facts

The parties have tendered a lengthy document setting out the agreed facts. Most of those agreed facts are transcripts of SMS messages and/or telephone calls involving the Offender. That part of the agreed facts is annexed to this judgment and marked A. I do not propose to read them out. Suffice to say, they clearly demonstrate that the Offender was involved in 54 transactions involving the sale of drugs between 2 September 2022 and 15 November 2022. The balance of the agreed facts are as follows.

Background

In 2022, detectives began investigating the Offender as part of an investigation into organised crime.
On 19 May 2022, a Drug Supply Prohibition Order was authorised for the Offender and this was served on the Offender at his residence on 31 May 2022.
The Offender is also subject to an enforceable Firearms Prohibition Order.
From 30 August 2022, police began to lawfully intercept the Offender's mobile phone XXX XXX XXX. The Offender was the sole user of this phone.

Sequences 1 and 14: Knowingly take part in the supply of prohibited Drugs (s 25(1) Drug Misuse and Trafficking Act 1985)

Between 2 September 2022 and 3 November 2022, telephone intercepts captured the Offender offering or agreeing to supply prohibited drugs 54 times (Annexure A). The person described as "WH" is one of the purchasers and was the Offender's girlfriend at the time.
The telephone intercepts also contained a number of conversations between the Offender and his suppliers.

Sequence 5 - Form 1 Deemed Supply 438.8g of 1,4-Butanediol (s 25(2) Drug Misuse and Trafficking Act 1985)

Sequence 7 - Form 1 Possess prohibited weapon in contravention of weapons prohibition order (s 34(1) Weapons Prohibition Act 1998)

Sequence 10 - Form 1 Possess prohibited drug 12g cannabis (10(1) Drug Misuse and Trafficking Act 1985)

Sequence 13 - Form 1 Deal with property suspected of being proceeds of crime $7,500AUD (s 193C(2) Crimes Act 1900)

Sequence 4 - Possess prohibited drug - 16.09g methylamphetamine (s 25(1) Drug Misuse and Trafficking Act 1985)

On the basis of the intercepted telephone calls, police were granted a search warrant for the premises at Bankstown.
At 4:25pm on 17 November 2022, police attended the Bankstown premises and executed the search warrant.
Police gained entry to the house and found the Offender in front of the sink in the kitchen. The Offender had been attempting to pour a freezer bag containing a white crystal substance down the sink. The crystal substance was scattered in the sink, on the tiled kitchen floor, through the living room, into a bedroom and into a bathroom.
There was some of the crystal substance on the bottom of the toilet bowl in the bathroom.
At the time police gained entry, the Offender was the sole occupant of the house. The Offender was arrested and conveyed to Bankstown Police Station.
The crystal substance across the floor of the house was swept up by police and placed into evidence bags. In total, this amounted to 16.09g of methylamphetamine made up of: 1. 0.07g found in the inside the kitchen sink (indoor); 2. 0.28g found on the kitchen floor; 3. 6.22g found on the hallway floor; 4. 7.66g found on the bathroom floor and toilet seat; and 5. 1.86g found on the bedroom floor.
During the search police also located: 1. A tinted plastic bottle labelled "shower gel" containing 325.8g of 1,4-butanediol under the sink in the outdoor kitchen; 2. A tinted bottle labelled "shampoo" containing 113g of 1,4-butanediol on the second shelf of an outside cupboard; 3. A knotted plastic bag and a resealable plastic bag containing cannabis on top of the outdoor fridge; 4. A black container containing cannabis on top of the outdoor fridge; 5. A knotted plastic bag containing a white powder in the Offender's bedroom; 6. $7,500 AUD in $50 notes in the Offender's bedroom wardrobe; 7. A black butterfly knife in the Offender's bedroom wardrobe; 8. A 2.5L container labelled "Fofo Bebe" containing 4.961kg of 1,4-butanediol on the outdoor front step; and 9. Drug paraphernalia, including tubing, a syringe and scales, in an outdoor cupboard.
DNA analysis was conducted on the knot on the plastic bag containing methylamphetamine that was found in the Offender's bedroom. The DNA recovered matched the Offender's DNA.
The butterfly knife was examined by a qualified forensic firearms examiner who confirmed that it was a prohibited weapon as described in Clause 1(6) of the Weapons Prohibition Act 1998.

Some principles of Sentencing

In determining the Offender's sentence, the Court must have regard to the purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
There is considerable overlap and often real tension between the various competing purposes of sentencing (Veen v R (No 2)(1988) 164 CLR 465) and none can be considered in isolation. They will often point in different directions. Each purpose must be considered and balanced, without giving undue weight to any one purpose over any other.
The ultimate objective is to impose a sentence that is 'just and appropriate, having regard to all the circumstances of the offence and the Offender' (R v Way (2004) 60 NSWLR 168 at [121]).
Whilst accepting that the purposes of sentencing should not be considered in isolation and that there is no rank in terms of which of the purposes is to be given priority, the Crown emphasises in the type of offence before the Court today: 1. general deterrence; 2. specific deterrence; and 3. the protection of the community.
I agree that general deterrence is very important in drug supply cases so that a consistent message from sentencing judges to the general community is necessary: Parente v R [2017] NSWCCA 284 at [109]. The protection of the community will usually be of significance, because of the negative social impact of drug use, particularly as an underlying cause of other criminal offending: Parente v R at [110]. In my opinion, how much weight specific deterrence ought be given in a particular case will often depend on the Court's assessment as to the impact of any sentence on the particular offender in the sense of whether it will cause the offender to change his or her ways.
The maximum penalty is a legislative guidepost but is set at a very high level for drug supply offences: Parente v R at [111]. This is a reflection of the seriousness of such crimes as determined by the community through its elected representatives.

Objective seriousness

On behalf of the Crown, I was reminded that when assessing the objective seriousness of drug supply offences the Court must consider "the quality and purity of the drugs involved, the role of the Offender and the degree of planning" in each particular case: AB v R [2013] NSWCCA 160 at [54].
The Offender emphasised that whilst the quantity of drugs involved is an important consideration, it is by no means the only or most important factor: Elchikh v R [2016] NSWCCA 225 at [42].
In relation to the Sequence 1 and 14 offences (knowingly take part in supply of a large commercial quantity/indictable quantity of Butanediol), the Crown submits that these matters fall at the midrange of objective seriousness emphasising the objective facts that there were 54 phone calls over a 63-day period, and the quantity and value of the drugs involved.
The Crown also submits that there was a level, albeit I think the Crown accepts it was at a low level, of sophistication and organisation by the use of rather obvious codewords. To my mind the code words are reasonably hopeless and the whole operation has the hallmarks of being amateurish. I am not persuaded that I should find any particular kind of sophistication at the level the Offender was involved. That being said, he was obviously involved in what was a large scale professional operation to sell drugs, albeit his role was as a low level retailer.
On behalf of the Offender, it was submitted that the only conclusion the Court ought draw is that whilst the Offender was doing what he was doing for financial reward, he was not doing it to generate wealth for himself, rather he was selling drugs so as to fund his own habit. It was also pointed out that whilst there were many phone calls during the relevant period, the quantum of the drugs being dealt on each particular occasion was not of great value, and many of the recipients appear to be "repeat customers" of the Offender including, as I have said, his former partner who somewhat bizarrely was regularly buying drugs from him, placing him in breach of an AVO put in place to protect her.
As to the value of the drugs, the highest the Crown could put it was that it was "not invaluable".
All in all, I have concluded that in relation to the supply offences the Offender was a very low-level retailer of drugs who was selling drugs as a direct consequence of his own drug habit, his plan was to use any profits he made to buy drugs for himself. No doubt he was one part of a large drug supply operation but he was at the very bottom of the ladder in terms of involvement and of course was the most likely to get caught.
For all of those reasons, I have concluded that the objective seriousness of the supply offences (Sequences 1 and 14) is somewhat below the midrange.
As to the Sequence 4 possession offence, it is well and truly towards the lower end of the range of possession of methamphetamines. I don't think this charge of possession looms large because on its own, I do not think it would carry a term of imprisonment. I indicate that I would have dealt with that matter by a sentence to be served in the community if it was the only matter before me.
The Form 1 matters need to be taken into account with a view, if appropriate, to increasing the penalty that would otherwise be appropriate for the primary offence: Nguyen v R [2019] NSWCCA 209 at [58]-[64]. Any increase in sentence need not necessarily be significant: Oritz v R [2014] NSWCCA 260. Those matters include: deemed supply; possess weapon, possess prohibited drug, and proceeds of crime.
The Offender has submitted that the fact the supply is "deemed" and there was no actual supply is relevant to objective seriousness. I don't accept that. The change is one of "deemed supply" so the fact that no supply occurred is built into the charge itself and should not be used to reduce its objective seriousness.
In relation to the Form 1 offences, if I was sentencing for them on their own, I would have imposed an aggregate term of imprisonment of 2 years to be served by way of an Intensive Corrections Order (ICO).
All in all, whilst I will take those matters into account, I do not think they loom large and consider they are towards the bottom of any notional range for those types of offences. I will take them into account to slightly increase what would otherwise be the sentence for the matters directly before me.

Criminal history

The Offender has a significant history of previous convictions for like offences. He was first convicted of supplying and possessing prohibited drugs in 2010 and since that time has had a number of convictions for the same charges as well as for other offences such as driving offences and assault. Perhaps notably on 12 August 2021, he was sentenced to 15 months imprisonment for supply prohibited drug greater than indictable quantity and less than commercial quantity. This is an aggravating factor pursuant to s 21A2(d).
The principled way to deal with his criminal history is to acknowledge that it disentitles him to leniency, but I must be cautious to avoid not double punishing him for earlier offences. The issue is also to be factored in when considering the important questions of rehabilitation and prospects of reoffending. I also think the Offender's history reduces the weight to be given to subjective deterrence in this case because being sent to prison does not seem to deter the Offender from re-offending much if at all.

Subjective matters

As I have said, the Offender is now aged 33 and was 32 years old at the time of the offences.
He is the second eldest of four children, his parents were born in Lebanon and migrated to Australia sometime in the 1970s.
He is a father to a 2-year-old child but does not have regular contact with her.
As a child he was exposed to and experienced physical violence. His father, now deceased, was a chronic gambler and drug addict.
He completed year 12 but did not obtain an ATAR. Whilst at school he experienced behavioural issues.
After school, The Offender completed Certificates III and IV in glass and glazing apprenticeship and a Certificate IV in aluminium fabrication while working with his uncle for 7 years in a glass company.
The Offender ceased working with his uncle when he started his own glass company which went "alright" for a couple of years but "crashed when I hit the drugs hard". The Offender closed down the company approximately 7 years ago.
He has a work history in a car yard and doing labouring jobs. Immediately prior to his incarceration, he was unemployed and in receipt of a Centrelink payment. He says he hopes to return to work in the future.
He has a long-standing history with drug abuse and misuse. He commenced using drugs socially, at school in Year 12, but quickly graduated to daily smoking of marijuana along with cocaine use. His use of drugs increased and by the time he was 25 years old he had added use of heroin and crystal methamphetamine to his repertoire, his use of which eventually became "heavy", using approximately 2mg daily.
In the last three years the Offender started using GHB and "used everything… whatever I could get my hands on" which subsequently led to repeated criminal activity as a means of getting money to feed his addiction.
So, it can be seen that by the time of the offending he was a long-term drug addict, using heavily, with a significant criminal record.
He has strong family support, particularly from his mother, who has written a letter to the Court. He has a "very good" relationship with her as well as his three sisters who are all married and living out of home.
The Offender has been diagnosed with a variety of mental health issues to which I will come.

Statutory Mitigating Factors

As I have said, the Offender entered pleas of guilty in the Local Court, and a 25% discount on sentence is appropriate - see s 25D(2)(a) of the Act.

Remorse - s 21A(3)(i) Crimes (Sentencing Procedure) Act

Notwithstanding his sorry criminal history, there is some evidence of recent remorse and contrition in this case.
The Offender appeared to me to understand the gravity of the offences. Although he tended to gravitate towards explaining his substance use history and family circumstances rather than talking about the offences. He displayed good insight into the challenges he has faced with his mental health, addiction, and upbringing.
The Offender's plea of guilty can be taken not only as a reflection of the utilitarian value but is also demonstrative of remorse. I do take it into account but have not overlooked the fact that he was confronted with a very strong Crown case.

Rehabilitation and Risk of Recidivism

Any sentence I impose should not leave the Offender devoid of an incentive to rehabilitate himself: R v Denyer [1995] 1 VR 186 at [193].
The Offender has many like offences on his record which makes me sceptical of a positive finding as to his rehabilitation prospects. That being said, the material does demonstrate some cause for optimism. My reasons for that optimism include:
First, since 15 February 2023, he has not incurred any institutional misconduct charges. This is a marked improvement on his previous conduct.
Second, he has an established work history and a desire to continue full time employment.
Third, he now acknowledges the challenges faced with his substance use and addiction. He seems to be honestly determined to become drug free. That does not mean he will succeed but it is a positive step in the right direction.
Fourth, whilst in custody, he has self-referred for the Suboxone program "that would keep me off the drugs for a bit." The documentation confirms that the Offender self-referred a request to commence the Suboxone program on 24 March 2023 and 1 June 2023.
Fifth, he has plans to return to live with his mother, who has assisted him in the past with his mental health issues. She lives a pro-social life and is supportive of him.
Finally; his expression of remorse and insight which I accept.

Other matters in mitigation bearing upon the Offender's culpability

My assessment of the Offender's moral culpability is an important factor that bears on the appropriate sentence; see R v Henry [1999] NSWCCA 11 at [200] and [250]; Filippou v The Queen (2015) 256 CLR 47 at [70]; Muldrock v The Queen (2011) 244 CLR 120 at [58]; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]; Kim v R [2019] NSWCCA 165 at [65]. This is because it informs the extent to which a person deserves to be punished, in the sense of retribution and denunciation.
It was submitted that the Offender's culpability in the offending conduct is moderated in two significant ways:
First, the relevance of the Offender's relative social disadvantage and difficult upbringing.
I find that the Offender has lived through a range of adverse experiences starting from his early childhood including witnessing of domestic violence (i.e. verbal and physical violence perpetrated by his father towards his mother), his father's substance use and consequences of his father's gambling behaviour which led to significant financial problems, changing schools as a result of the family's relocation in the context of financial difficulties and forms of physical abuse as a means of disciplining by his father.
Second, his mental health conditions. These are relevant as explained in cases such as Moiler v R [2021] NSWCCA 73 at [55]-[57]. This is so regardless of a direct link between those issues and the offending.
Ms Georges opines, and I accept, that in her opinion, and from a review of the medical records provided, that the Offender meets the diagnostic criteria for: 1. Schizophrenia. 2. Substance Use Disorder. 3. Major Depression Episode and Generalised Anxiety Disorder.
The third factor relevant to the Offender's moral culpability is his long-term drug addiction. Whilst not an excuse it is an explanation for his conduct.
The following portions of Ms Georges' report are. to my mind, important. 1. "Mr Maalla stated that he continued to be under the influence of drugs at the time of the offences, which not only clearly impairs his reasoning and decision making, but the nature of the offences themselves serving to access future funds or drugs to feed his addiction. This appears to be the most prominent contributing factor to Mr Maalla's offending behaviour but complicated by the complexity of prior psychological vulnerabilities and drug-intoxication as mentioned throughout this report." 2. "The physical disciplining and exposure to domestic violence likely contributed to difficulty with emotion regulation and not learning through experience in a 'safe' environment. Mr Maalla's learning about 'rules' was driven by fear of punishment rather than the gradual development of an inner compass through individuation. Once he was afforded independence, it is evident that Mr Maalla had difficulty in learning how to think for himself, make well thought-out decisions and consider consequences."

Resolution

Taking into account the objective seriousness of the crimes as I have found them to be and the matters on the Form 1 and the s 166 matter, using the penalties imposed by Parliament as a guidepost only, but understanding that Parliament has made it entirely clear that offences of these kinds are to be treated extremely seriously and acknowledging the reasonably strong subjective case presented by the Offender, I am left in the position that at the heart of this sentencing exercise, it is obvious to me that the Offender's offending the subject of this sentence, but also generally, if it is not a direct result, is fundamentally connected to his mental health issues and his drug addiction. His prospects of rehabilitation and his risk of re-offending are directly proportional to his prospects of becoming drug free and successfully treating his mental health issues.
His various stints in prison to date do not appear to have deterred him from further offending, however, I am somewhat heartened by what I think is a recent change in his attitude.
The Community Corrections Officer, the author of the Sentencing Assessment Report, has assessed the Offender at a medium/high risk of reoffending. The Crown adopts that as its submission. On the other hand, for the Offender, it is contended that I should proceed upon the basis that he has a reasonably strong prospect of getting off drugs (which in the context of the Offender is the critical matter). This is shown objectively because he has done well whilst in prison and in the past has performed well whilst under the supervision of parole officers.
The Offender's submission can be summarised as follows: "Notwithstanding the seriousness of the offences charged, the offending for each matter can be properly characterised as falling in the low range of objective seriousness for offences of their kind. In this case, the evidence demonstrates that the Offender was a user/dealer. He was not operating a sophisticated and widespread criminal syndicate. He was not living a lavish lifestyle and all 'profits' were utilised to furnish his own addictions. The Court will be asked to consider the complex subjective case of the Offender in considering the role it has to play on his moral culpability, and the weight to be given to general deterrence, retribution and denunciation. Having regard to the objective seriousness of the offences, Mr Maalla's culpability in the offending conduct, his compelling subjective case, the demonstration of remorse/insight into the offending, and the existence of family/community support, it will ultimately be submitted that this is an appropriate case in which special circumstances ought to be found and a significant adjustment to the statutory ratio is required."
As to rehabilitation, I think in light of the Offender's history, the best I can do is to conclude that he has some realistic prospect of getting off drugs in which case it is unlikely that he will reoffend, but on the other hand, if he does not get off drugs, it is almost certain that he will continue to offend and pose a serious risk to the community.
It is common ground and I agree that the s 5 threshold has been satisfied for the sequences 1 and 14 offences alone.
Leaving to one side the factor of specific deterrence, I think of the matters identified in s 3A of general deterrence, protection of the community and adequate punishment of the Offender are all important and must be given significant weight. On the other hand, I must be careful not to impose a sentence which "crushes" the Offender and reduces to nothing his prospects of rehabilitation, such as they are.
Doing the best I can, taking all those matters into account the indicative sentences I propose are as follows: 1. Sequence 1: "knowingly take part in supply", taking into account the matters on the Form 1, 3 years imprisonment reduced to 2 years 3 months after the 25% discount for the plea of guilty; with an indicative non-parole period of 18 months imprisonment. 2. Sequence 4: (s 166) "possess methamphetamine", 9 months imprisonment reduced to 6 months, after the discount of 25% for the plea of guilty, (with rounding in favour of the accused), to be served in the community by way of an Intensive Corrections Order. 3. Sequence 14: "knowingly take part in supply" (Butanediol) - 2 years imprisonment, reduced to 1 year 6 months after the 25% discount for the plea of guilty.

Totality / accumulation / concurrency

The Offender accepts that there must be some accumulation to reflect that each offence represents a separate and discrete act of criminality.
However, I accept that there should be a significant degree of concurrency between each individual sentence because to do otherwise might result in an overly harsh result which might well crush the Offender's prospects of rehabilitation. I also think that it can be fairly said, that because of the connection of the offending to the Offender's own drug addiction, the various offences can be described as forming part of a continued pattern of offending.

Aggregate sentence

Taking all the matters I have mentioned into account, I have concluded that the s 5 threshold has been satisfied. I have decided to impose an aggregate head sentence of 3 years.

Commencement date

For the reasons I have explained the sentence should be taken to have commenced on 17 November 2022.

Intensive Corrections Order

I have considered an ICO as commanded by s 66 of the Crimes (Sentencing Procedure Act) 1999, and have concluded in all the circumstances, that the use of that power is not appropriate. I am satisfied that a term of full-time custody is the only option.

Special circumstances

I do find that there are "special circumstances sufficient to justify variation in the ratio between the head sentence of 3 years and the non-parole period.
Most importantly I think it is critical for the Offender that after he leaves gaol he spends more time rather than less under supervision to assist him in hopefully remaining drug-free thus reducing his risk of re-offending which is protective of the community.
I also take into account that there is a risk of the Offender becoming institutionalised and his experience in custody has for reasons I do not propose to go into, has been more arduous than might otherwise be expected.
I propose to increase the proportion from 25% to 40%.

Conclusion

After considering all the material before me and the helpful of submissions of counsel I intend to impose an aggregate term of imprisonment.

Orders 1. You are convicted.

For the two offences of 'knowingly take part in supply', the matter being dealt with under s 166 and the matters on the Form 1, the sentence I impose is an aggregate term of imprisonment of 3 years with a non-parole period of 1 year, 9 months and 19 days imprisonment,
Your sentence will commence on 17 November 2022 and expire on 16 November 2025. The first date the offender will be eligible for release to parole is 4 September 2024. T v Maalla Annexure A (227184, pdf) 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 February 2024

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Parties

Cases Cited (13)