New v R [2018] NSWCCA 186
Matu v R [2019] NSWCCA 23
R v Achmar [2018] NSWDC 461
R v Khalil
R v Bilson [2019] NSWDC 271
R v Rustom
R v Vernon [2017] NSWDC 245
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
New v R [2018] NSWCCA 186
Matu v R [2019] NSWCCA 23
R v Achmar [2018] NSWDC 461
R v KhalilR v Bilson [2019] NSWDC 271
R v RustomR v Vernon [2017] NSWDC 245
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Judgment (5 paragraphs)
[1]
Mr E Ozen, counsel for Malas
File Number(s): 2018/335887; 2019/17453; 2019/14504
[2]
Judgment
Two young men appear for sentence in relation to their involvement in what has been accurately described as a small, on demand business supplying relatively small quantities of methylamphetamine to a small number of customers in the Sydney metropolitan area. Customers would place their orders by phone and it would be delivered to them by Mr Malas, usually at the request of Mr Chaouk, in return for payment.
Typically the deliveries involve quantities between 1.75 and 14 grams of methylamphetamine. The largest amount supplied was 28 grams. The purity of the drugs was never ascertained, but it is likely that it was consistent with typical street supplies and not particularly high quality.
While the operation was organised it was not terribly sophisticated. Of course the participants did not refer to methylamphetamine in their telephone communications with each other, but it was one carrying the features that one frequently sees in this type of distribution business.
There is no evidence of the source of the drugs. It follows that Chaouk had to pay for the drugs and while it is conceded that he intended to profit from the sales there is no evidence about how much was made as a result of the transactions, bearing in mind the purchase cost of the drugs and any overheads, including driver's fees.
Against that brief background the principal offender, if I may use that term, is Tamir Chaouk, aged 29.. He has pleaded guilty to one count of supplying a large commercial quantity of a prohibited drug namely, 772 grams of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (DMTA). The offence carries a maximum penalty of life imprisonment with a standard non‑parole period of 15 years.
There are a number of charges to be dealt with on a Form 1 attached to that principal offence and those matters, as well as the Form 1 matters to be dealt with in relation to Mr Malas, will be dealt with in the way suggested by the Chief Justice in the guideline judgment on those matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146). The Form 1 matters include two offences of possess prescribed restricted substance contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966, namely two Valium tablets, and a number of tablets of Xanax being prescribed restricted substances, an offence of possess prohibited drug contrary to s 10(1) of the DMTA, for possession of 20 millilitres of GHB, and finally an offence of supply prohibited drug contrary to s 25(1) of the DMTA for the supply of 280 grams of GBL.
There is a related offence of common assault, contrary to s 61 of the Crimes Act 1900, which it is agreed will be dealt with under s 10A of the Crimes (Sentence Procedure) Act 1999.
Mr Chaouk has been in custody since his arrest on 15 January 2019. He was on conditional liberty at the time of the offending and it is agreed that the balance of his parole expired on 4 March 2019. In the exercise of my discretion I will commence the term of imprisonment on 1 February 2019.
The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, have to be taken into account. It is common ground that in each case a term of full-time custody is required and it is unnecessary for me to consider any alternatives.
The agreed facts in Mr Chaouk's case run to 22 pages. It is unnecessary for me to summarise them in greater detail.
I note that each offender has pleaded guilty in circumstances which it is agreed justify a 25% discount for the utilitarian value of the plea.
The Crown acknowledges that despite the detail in the agreed facts, it is difficult to determine the precise contours of Mr Chaouk's role in the supply enterprise and his involvement could not be reduced to convenient shorthand. It is noted however, that the supplies occurred almost daily and took place over a period between 5 October 2018 and 15 January 2019. There were at least 80 supplies to various people. There was cash received in return for each supply and the offender employed several drivers apart from Mr Malas. While the quantity of the drug supplied in total is somewhat greater than the prescribed large commercial quantity, it is recognised that there is no upper limit, and as Mr Boulten puts, there are many cases that come before the Courts of many kilograms or even hundreds of kilograms for this type of offence under the same provision.
The activities were under surveillance of a police task force for a considerable period of time and the police were intercepting telephone communications. The modus operandi can be summarised as being the order phone used by Chaouk would receive SMS messages from customers. The contents of the messages were short and coded and the offender Mr Choauk would use this order phone to provide instructions to the delivery driver who would complete the transaction. Often both the driver and the customer would be communicating simultaneously with Mr Chaouk.
Some of the transactions were identified where it was likely that Chaouk conducted the physical supply himself.
On average the supply was 7 grams of methylamphetamine for $1,000.
Mr Malas was arrested and granted conditional bail on 1 November 2018. He changed phones and further transactions continued to occur.
On 13 January 2019 police stopped Chaouk while he was driving his Mercedes in Leichhardt. They searched his car and found the GBL which is the subject of one of the Form 1 counts. He was arrested on 15 January 2019. Upon searching his home Police located the GHB, Valium and the Xanax tablets which are the subject of the remaining Form 1 charges.
During his apprehension he spat on a police officer, and that is the subject of the related offence of common assault.
As I have indicated, the total amount of methylamphetamine supplied was 772 grams and as a conservative estimate the agreed facts acknowledge that the minimum amount of cash exchanged was $64,000 which is to be the subject of a confiscation order by consent.
Mr Chaouk's record includes a previous supply offence leading to a term of imprisonment of 18 months with a non-parole period of 8 months. The offence was committed in 2014 and he was sentenced in September 2016.In 2011, he was charged for aid and abet robbery armed with offensive weapon and he was given a two year suspended sentence.
Mr Chaouk's subjective case is set out in a sentence assessment report and a report of Dr Nielssen, psychiatrist, together with a letter from the offender and letters from his cousin and previous employer, as well as a childhood friend. They are treated with some caution as suggested in R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144 not having been adopted or tested, but as Mr Boulten points out their history appears to be a reasonable basis for the most part upon which to proceed.
Mr Chaouk is a single man with no dependents. He says that he started selling drugs to fund his own drug habit. He was assessed as being at a medium risk of reoffending. He told Dr Nielssen that he was not a big fan of the drug but people around him were using it, and he was using cocaine and liquid fantasy, that is, GBL and GHB.
The history given to Dr Nielssen was that his parents were Sunni heritage from the north of Lebanon. He and his siblings were born in Australia but the family went back and forth to Lebanon for several years when he was young. He returned and completed school in Australia. He had various jobs in demolition and in restaurants and takeaway businesses. Dr Nielssen diagnosed a substance use disorder in remission and substance related mood disorder also in remission.
Mr Boulten does not put that any De La Rosa (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1) type condition is to be taken into account in mitigation of the sentence.
In a letter to the Court the offender expressed his remorse, that he is sorry to the Court and the community, he acknowledges that drugs ruin lives and he is ashamed of what he has done and he professes a wish not to come before the Court any more. His cousin, his previous employer and family friends all speak favourably of their experiences with him and how he has expressed to them his regret and remorse.
Turning to the Crown case against Mr Malas; He was born in 1999 and is now aged 21. He pleads guilty to two offences, namely, one count of sSupplying a prohibited drug, being 12 grams of methyl amphetamine contrary to s 25(1) of the DMTA. The offence carries a maximum penalty of 15 years imprisonment with no standard non-parole period. And to a second, ex officio count of supplying 234 grams of methyl amphetamine also contrary to s 25(1).
There are four matters on a Form 1 to be dealt with in relation to the ex officio count: an offence possessing a prescribed restricted substance , namely four Diazepam tablets;two offences of possessing a prohibited drug in relation to .5 grams of methylamphetamine and 15 grams of cannabis; and an offence of supply prohibited drug in relation to 66 grams of GBL.
There is also a related offence of deal with the proceeds of crime charge in relation to $300 cash and that will be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
He has been in custody since his arrest on 17 January 2019 and it is common ground that the term of imprisonment to be imposed should commence on that date.
The agreed facts for Mr Malas are shorter, and reflect his more limited role in the operation as a driver. He turned 19 during the period of his offending. He was identified as the delivery driver on at least 30 out of the 71 individual occasions of supply during 5 October and 19 December 2018 and as with his co-offender the average supply was seven grams for $1,000.
On 1 November he was pulled over by police officers in Punchbowl. Police suspected he had prohibited drugs on him, and on searching the vehicle they found $300 in cash which is the subject of the related offence and also there were ten plastic packages containing a white substance which were found to be the 12 grams of methylamphetamine, the subject of the first count. He was granted conditional bail. He changed phone numbers and continued in the operation with further transactions from 16 November.
On 17 January 2019 Malas was arrested again at Belmore. Police located the items which are the subject of the four Form 1 offences. In conclusion, the facts note that he supplied 234 grams of methylamphetamine during the offending period.
He has a very lengthy record including fines for driving while suspended and fines for goods in custody.
His subjective case is also set out in a letter from the offender and in a number of references. They are treated with a degree of caution as previously indicated. He expresses in his letter to the Court that he is extremely ashamed and deeply remorseful for his actions. He expresses a desire to show the Court, his family and the community that he can do much better than he has.
He describes his history of drug taking starting at age 14, his habit being exacerbated in 2018. He acknowledges that he was a young man and he has made some foolish mistakes and wants to return to his trade as a carpenter and contribute usefully to society.
Counsel for Mr Malas refers to an article from the Brain and Mind Research Institute confirming what is well known, namely that frontal lobe development continues well into the third decade of life, that is age 22 to 25 and may be further prolonged in young men and that key parts of the frontal lobe continue to undergo development during that period in support of the proposition that it is not challenged by the Crown, namely that his youth is an important consideration in the sentencing exercise.
Ihave a number of references from his brother-in-law, his brother and a work colleague and a lengthy report from a psychologist, Mr Borenstein.
Mr Malas was born in Lebanon and arrived in Australia when he was aged three.
He had a slightly unsettled childhood, but went to school to the end of Year 9. He said that he was diagnosed with ADD and ADHD.
He was taking methamphetamine in the period leading up to the offending in late 2018.
He has had significant health problems and the Justice Health records confirm benign prostatic hypoplasia which requires weekly insertion of a catheter by himself. He also has chronic asthma and undoubtedly his time in custody while dealing with those medical conditions has been more onerous than for someone in good health.
The records show that consideration has been given to surgery and there have been complications with bleeding from the self-catheterisation process, and I take into account the medical condition described in detail in those records.
I accept Mr Boulten's submission that the objective seriousness of Mr Chaouk's offending was somewhat below mid-range but certainly not at the bottom of the range as he concedes in light of the facts that I have set out. The Crown does not assert that a s 21A aggravating factor of being involved in multiple criminal acts applies in this case, but the fact that there were multiple supplies is a matter which has been taken into account in assessing the objective gravity of it. It is acknowledged that there was a limited degree of planning and organised criminal activity and he also has a prior record, including for drug supply and was on conditional liberty at the time, which disentitles him to leniency.
To a limited extent, I accept the expressions of remorse and I acknowledge the guilty plea as mitigating factors. His prospects of rehabilitation are reasonable and as I have indicated he has been assessed as being in the moderate risk of reoffending which one hopes is the worst case scenario for him given his expressions of a desire to turn his life around.
I accept that the current gaol sentence is, as Mr Boulten puts, one which comes at a critical juncture in his life. He needs a structured supervised period that deals with his drug related problems and supervision for an extended period and to engage in drug and alcohol counselling. There is a clear basis for a finding of special circumstances in view of that need for an extended and intensive period of supervision while in the community.
There are no aggravating factors identified or apparent in Mr Malas's case. The Crown acknowledges that it is not possible to disentangle the criminality of the two offences and there is a compelling argument for concurrency or minimal accumulation. It is common ground that the court should impose a greater term of imprisonment on Mr Chaouk than Mr Malas because Mr Chaouk occupied a position in the enterprise well above Mr Malas, and his role was objectively more serious. He is facing sentence for an offence involving a maximum penalty of life imprisonment and greater amounts of the drug. He was on parole at the time and he was eight years older than Mr Malas who has youth very much on his side as an important consideration in the sentencing exercise.
Mr Boulten quite properly acknowledges the need for emphasis on both specific and general deterrence in the sentencing process. In light of the evidence of his health problems and the fact that it is his first time in custody, there is a clear basis for a finding of special circumstances for Mr Malas.
I have been greatly assisted by reference to a range of statistics and cases and by extracts from the Public Defender's website provided by both counsel. The limitations of the statistics as a blunt and sometimes opaque tool are acknowledged, but they do have a significant role to play in a case such as this where the field over the last twelve years covers some 550 cases and they provide a reasonable indication of the sentences that have been imposed in cases under these sections.
Mr Boulten in particular took me to a number of decisions, namely R v Khalil; R v Bilson [2019] NSWDC 271; Assam v R [2019] NSWCCA 12, Matu v R [2019] NSWCCA 23, Ebrahami v R [2019] NSWCCA 27 and R v Rustom; R v Vernon [2017] NSWDC 245 and R v Achmar [2018] NSWDC 461, each of which involve obviously differing objective and subjective circumstances but provide useful guidance in the sentencing process.
Mr Ozen for Malas took me to the Public Defender's website and the case of Matthews v R; New v R [2018] NSWCCA 186and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 which are also relevant in looking at the sentences imposed for offences which his client is being sentenced. It is unnecessary for me to go to the distinguishing or common features of any of those cases only to note the careful work of counsel in isolating the relevant factors.
I acknowledge, as Mr Ozen puts, that specific deterrence is of somewhat lesser importance in his case given the subjective circumstances to which I have referred.
The orders that I will make are as follows:
[3]
Tamir Chaouk
1. Mr Chaouk is convicted.
2. Taking into account 25% discount for the plea of guilty and the Form 1 matters I impose a sentence of six years imprisonment commencing 1 February 2019.
3. I impose a non‑parole period of four years expiring 31 January 2023.
4. I find special circumstances.
5. Sequence 9 is dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
6. I make a drug proceeds order pursuant to the short minutes dated 17 December 2020.
[4]
Mustapha Malas
1. Mr Malas is convicted of each offence.
2. Taking into account 25% discount for the pleas of guilty, the indicative sentences are:
1. H69504119/003: 6 months;
2. H135510401/Ex officio (Count 2), taking into account the Form 1 matters: 4 years.
1. I impose an aggregate sentence of four years imprisonment to commence on 17 January 2019
2. I impose a non-parole period of two years and three months expiring 16 April 2021.
3. I find special circumstances.
4. The matter on the s 166 certificate is dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
Note - These extempore remarks were revised without access to the court file
[5]
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: 29 April 2021