[2018] ACTSC 308

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - possession of drug of dependence, namely cocaine, for sale or supply to another person - plea of guilty - negligible criminal history - young offender with a good work history - wellconnected to family and the community - low risk of reoffending - positive prospects of living a law-abiding life - good behaviour order with a community service condition and a fine imposed

Crimes (Sentence Administration) Act 2005 (ACT)

Drugs of Dependence Act 1989 (ACT), s 164(2)

Bui v The Queen [2015] ACTCA 5

Legal Aid ACT (Offender)

1. Maen Mazaydeh has pleaded guilty to a single charge that on 20 August 2017 he possessed a drug of dependence, namely cocaine, for the purpose of sale or supply to another person. That is an offence against s 164(2) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty is 500 penalty units which corresponds to $75,000 or imprisonment for 5 years or both.

2. On 20 August 2017, police were called to the Burbury Apartments in Barton in response to a report that a person had attempted to enter or had forced entry into one of the rooms. Police arrived at the location. They were taken to the room. They entered the room lawfully and found four men sitting at a table. One of the men who had requested police attendance had blood on his nose. The Statement of Facts does not disclose the relationship between these men or whether, in fact, there had been any forced entry into the premises. Police observed evidence of drug use and conducted a lawful search of the premises under the Drugs of Dependence Act. Police found some drug related items. Police conducted searches of all four men. While searching the offender, police found a clear plastic bag that contained 14 small clip seal bags, which contained a total of 11.692g of a mixture of cocaine and norcocaine (hereafter referred to as cocaine).

3. The offence created by s 164(2) of the Drugs of Dependence Act 1989 covers selling, supplying or participating in the sale or supply of a drug of dependence, as well as possession for that purpose. In the present case, the offender had 14 clip seal bags of cocaine. I was told, without objection, that the offender possessed that cocaine for the purposes of supplying to the other men in the room. Possession is less objectively serious than sale. Considering the various factors referred to in Bui v The Queen [2015] ACTCA 5, the role of the offender, as disclosed by the evidence and what I have been told without objection, was a limited one relating to temporary possession of the drugs. Secondly, the weight of the amount of drugs was 11.692g which is a significant quantity and almost double the trafficable quantity identified under the Criminal Code 2002 (ACT). The motivation for the offence, so far as material before me disclosed, was to temporarily hold the drugs for supply to identified persons known to the offender rather than for the purposes of expanding the pool of drug users. In my view, the circumstances are in the low to mid range of objective seriousness for this offence.

4. Mr Mazaydeh is currently aged 21. He was aged 20 at the time of the offence. His personal circumstances are disclosed in a pre-sentence report prepared on a duty basis as well as in three references which were tendered. He reported a good childhood and maintains close relationships with his parents and siblings. He completed Year 10 at school. He has been regularly employed as a painter since then.

5. The offender has a history of use of illicit substances. He has used cannabis on a recreational basis since the age of 13 at a level, at its most frequent, of approximately weekly. He has used cocaine from the age of 19, once again, on a recreational basis. The levels of drug use are not such as to currently require a significant degree of rehabilitation. He apportioned some of the blame for his use of such substances to his peers and said that he has since changed his associates. He recognised that his actions were unlawful although said that he did not at the time understand the severity of the offending conduct.

6. The offender is assessed by the author of the pre-sentence report as being at a low risk of reoffending. Unusually, the author of the pre-sentence report has described him as unsuitable for supervision, I assume on the basis of that low risk of reoffending. He is assessed as suitable for community service work. He is wellconnected socially both to his family and also to the community generally through his participation in the activities of the Canberra Islamic Centre. The three references that have been tendered present a reasonably positive picture for the prospects of him being in the position to lead a lawabiding life in the future. He has a partner who is supportive and is presently studying law who attests to his otherwise good character and family orientation. His employer, Mr Crkovski, provides a reference which attests to his diligent work and the reference from his mother attests to his strong family connections. All of these are factors which present a positive picture for his prospects in the future.

7. The offender has a very limited criminal history, being charged with drug driving in New South Wales, a charge which was dealt with without conviction and with a bond.

8. The offender was initially charged with the more serious offence under s 603(7) of the Criminal Code 2002 (ACT) which has a maximum penalty of 10 years. A fresh indictment was filed on 17 October 2018 and the accused was arraigned and pleaded guilty on 18 October 2018. He has had the benefit of a reduction in the seriousness of the charge. The plea was a late one in that it was at the callover prior to the commencement of the hearing. I have taken into account the plea of guilty in determining the sentence to be imposed.

9. The offender spent a short period in custody on the evening when he was arrested before he was granted police bail.

10. The charge is a serious one. So far as the author of the pre-sentence report is concerned, the offender has a low risk of reoffending. He has a negligible criminal history. He is young. He has a good work history. He has strong family ties and social connections reducing the prospect of reoffending. He is entitled to considerable leniency.

11. Having regard to the alternative sentences available, I do not consider that a custodial sentence is the only appropriate sentence. The matter may be appropriately dealt with by a combination sentence involving both a fine and a period of community service, as well as a good behaviour order. This is designed, on the one hand, to reflect considerable leniency and, on the other to impose a sufficient penalty so as to ensure that the offender is deterred from going further down the track of criminal behaviour by, amongst other things, requiring a period of good behaviour to be completed before the offender is free of the consequences of his offending conduct. I do not consider that a period of supervision is required under the good behaviour order in the light of the terms of the pre-sentence report. Clearly, if the offender does not take the opportunity given to him, by reason of the lenient sentence imposed, and commits further offences during the period of the good behaviour order, it may be appropriate to reassess the appropriateness of such leniency.

1. The offender is convicted of the offence of possessing a drug of dependence for the purpose of sale or supply.
2. The offender is fined the sum of $2000 and allowed three months to pay.
3. The offender is to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years which includes:
   1. A requirement that he perform 60 hours of community service within 12 months.
   2. A probation condition for a period of 12 months or until the community service is complete.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.