Mr I Wallach (Counsel for the Offender)
File Number(s): 2019/347794
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Judgment
Mandana Naghdi, now aged 29, has pleaded guilty to one count of supply prohibited drug in excess of the commercial quantity contrary s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The maximum penalty and the standard non-parole period are both important yardsticks in the sentencing process, which must take into account the purposes of sentencing outlined s 3A of the Crimes (Sentencing Procedure) Act 1999.
The plea of guilty was entered in circumstances justifying a 25% discount on any term of imprisonment.
The offender was in custody for 44 days, following her arrest on 5 November 2019, before being granted bail. Any term of imprisonment imposed should take that period into account.
The facts surrounding the offending are, for the most part, common to those of a number of people who have already been sentenced in relation to this drug supply operation.
On 18 June this year I imposed sentences as follows (R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519) :
1. Mohammed Chami - A term of imprisonment of seven years and ten months with a non-parole period of four years and eight months
2. Ahmed Halloum - A term of imprisonment of eight years and three months with a non-parole period of five years
3. Nouril Hassoun - A term of imprisonment of seven years and six months with a non-parole period of four years and six
On 5 October 2021, I sentenced Isabella Wu to a term imprisonment of four years with a non-parole period of two years and one month commencing on the date of her arrest, on 5 November 2019 (R v Wu [2021] NSWDC 534).
In very broad terms, Wu and Naghdi are in the same category, namely they were runners for the drug supply syndicate for the period between 11 July and 3 November 2019.
In short, those higher up in the syndicate, including Chami, Halloum and Hassoun, were running a drug supply operation throughout Sydney, through a call centre. The syndicate supplied around 200 bags of cocaine per week, with estimated values of $60,000/ week or $3.1 million/year. The runners were paid $20 or $25 per bag deal that they sold.
The detailed facts as to the syndicate's operation have been set out in my earlier sentencing judgment in June (R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519) and need not be repeated here. In relation to this offender, it is agreed that she worked as a runner between 11 July and 3 November.
Police intercepts of the call centre mobile phone services showed that she supplied not less than 615 bags of cocaine, which equates to 393 grams of cocaine. She also frequently cleaned the Croydon Park residence used by the syndicate and purchased items such as rubber gloves, bin bags and freezer bags which could be used by the members of the criminal group.
Ms Wu, in her period as a runner, dealt with 216 bags, a total of 266 grams of cocaine.
After her arrest on 5 November she was interviewed, and it was said that she acknowledged that she had supplied drugs every now and again. She said it was for money. She said she had been doing it for about three months, and she said she took some of the money back to the Croydon Park safehouse. She agreed that she played a part, albeit she was the lower level street level supplier of cocaine and she acknowledged in that interview, as she did in her evidence before me on 8 October 2021, that she was receiving financial reward.
Her criminal record is very limited. There is an offence in June 2020, after this offence and while she was on bail, of driving with illicit drug in her blood and her evidence as to that is not one that does her any favours. She was fined and disqualified for three months. There was further offending of driving whilst disqualified, and not stop at a red light on 25 January 2021, also while she was on bail.
She certainly is not in the same position as Ms Wu, who had a prior conviction for similar drug supply, leading to a nine months intensive corrections order.
Her subjective case is set out in a number of sources, firstly a sentence assessment report, and a lengthy report of a psychologist, John Macklin.
She has been residing in stable accommodation with her mother and her dependant daughter in Fairfield. She is the sole carer for her child. She describes a turbulent upbringing, fleeing from her homeland of Iran. She was ultimately held in immigration detention and exposed to many traumatic events there. Her mother attempted suicide during this period. She has been a victim of domestic violence, perpetrated by her ex-husband, brother-in-law and also her ex-partner.
She provided contact details of an associate who said that Ms Naghdi had been exposed to traumatic events throughout her life and had supported her throughout the past 15 years of friendship but she has minimal pro-social supports other than her limited associates.
She attributed her offending to homelessness, lack of finances, drug related issues, untreated mental health issues and a sense of protection that she would receive from the males of the group. She said she was under the influence at the time of the offences and would self-medicate her mental health issues with illicit substances. She said she knew what she did was wrong, and she took full responsibility.
She has a longstanding history of cannabis use, and a short stint of methamphetamine use but denied any substance use since her arrest. A matter which was subject to some further evidence.
She displayed insight into the impact that the offending had upon her daughter. She was expressed as being medium-to-low risk of re-offending.
The Crown bundle contains the material on sentence in relation to Chami, Hassoun and Halloum and, of course, I take into account that material, as well as the evidence in the case of Wu, who has also been sentenced recently.
In addition to the sentence assessment report and the psychologist's report, there is a significant quantity of material, including references and letters from her employer and other people who speak well of her.
First, there is a letter from the offender. She did affirm in evidence the truth of the statements contained in these various documents. She acknowledges that her involvement in commercial drug supply was a series of reckless and pathetic decisions. She understands that drugs are ultimately harmful and debilitating to the community and that her actions need to be halted.
She describes in more detail the difficult conditions in Iran and the constant threat of an alcoholic father. Her childhood was filled with trauma from her father's violent abuse towards herself and her mother. They fled Iran by boat when she was seven and were taken to Woomera Detention Centre on their arrival in Australia, where her trauma intensified. She witnessed unimaginable horrors around her every day. She saw people sew their own mouths shut as a form of protest and people throwing themselves onto barbed wire fences.
She then lived with a foster family in Adelaide, and when she was eventually returned to the care of her mother she did not know how to approach her. She had forgotten her language and culture, the basis of her connection with her mother.
She was diagnosed with post-traumatic stress disorder and she felt suicidal from age 13. She says there is no excuse for her disgusting behaviour, and she is deeply ashamed and she has to live with this for the rest of her life.
Her mother describes things from her perspective, and acknowledges that her relationship with her daughter was strained after a suicide attempt. She watched her marry a man who she thought would provide a stable household, but he ended up abusing her and, having run away from her own husband in Iran to give her daughter safety, she was distressed at seeing her daughter in a similar position.
Her employer at the Yum Yum Bakery in Guildford speaks favourably of her as an employee and her engagement with customers.
She has engaged with the Family Support Services, a domestic violence response enhancement service because she and her daughter felt unsafe as a result of ongoing threats and intimidation made by her ex-husband. The Department of Communities and Justice became involved in July 2020.
I take into account further references from the Chester Hill Early Learning Centre where Ms Naghdi's daughter is enrolled, from her cousins, Ms Askari and Ms Sobbi, in addition to further references from Debbie Bechara, Priscilla Chaalan and others, who speak uniformly of the difficult circumstances, of which they are aware, and the positive changes that she is making.
Michelle Pal, the psychologist who has been treating her since July 2019, against a background of the history of severe, complex trauma, which I have described, and she has been following a treatment plan since her released on bail in December 2019.
There is some controversy as to the history given to Michelle Pal about whether she was using cannabis as a way to cope with the PTSD symptoms and using cocaine sometimes. A similar history was given to Mr Machlin. She said she started using cocaine as a means of dealing with stress and it became a daily habit. He diagnosed a cocaine use disorder.
She demonstrated a high degree of remorse, given that she was contrite and apologetic about her offending, and she expressed her fears of a return to custody, having progressed in her rehabilitation.
There are a number of medical reports in relation to the condition of her mother and a number of police reports in relation to domestic violence incidents involving her ex-husband.
She said in evidence that one of the reasons that she separated from her husband was because of the violence that he displayed towards her and her child. Until the middle of 2019 he said he had breached his apprehended violence orders on a number of occasions, and it had come to the point where DOCS had advised her to go to a refuge as her ex-husband was not staying away.
By 2019 she was working in a role as a manager at the Havana Lounge in Wetherill Park. She said she was earning $1,200/week working there and supporting her daughter and her mother with their care, needs, medical equipment that they required, but was unable to maintain her employment due to her ex-husband's behaviour whilst she was at work. She resorted to selling cocaine instead of finding other employment as she did not want to put another boss or business in an embarrassing position and did not want to ruin her reputation in the hospitality industry.
Mr Wallach, for the offender, puts significant stress on in his submissions on the husband intentionally disrupting her legitimate employment as a major factor explaining her offending. However her evidence was that she began using cocaine in March or April 2019. She had worked at the Havana Lounge since 19 May of that year. She then later said she was not using cocaine while she was working at the Havana Lounge, claiming she was just using cannabis, which was a contradiction of her earlier evidence. She then again said that she was using three bags of cocaine a week while she was working at the Havana Lounge. I should add that this evidence has been comprehensively and accurately summarised in the Crown's supplementary written submissions following her evidence on the last occasion.
She said she was paying about $250 or $300 a bag, and when challenged as to how she was able to afford a habit of $750 to $900 a week, she changed her evidence to suggest that she was purchasing three bags for $600.
She said that she had not told Michelle Pal about her cocaine use, as she was coming to terms with the cocaine addiction. I accept the Crown's submission that Michelle Powell accurately records what she said and that that was the truth, namely that she was not addicted to it, but a casual user.
On p 24 of the transcript dated 8 October 2021, she was saying that she was paying $1,400 a week for her bags of cocaine and she was receiving, on average, about $800 per week from the syndicate for her work as a runner. When challenged as to how she was able to afford a habit of $1,400 a week, she initially said that some of the bags were on credit and she would pay them off the following week. Later she said the syndicate would give her two or three bags a week, each for free, which does, as the Crown submits, sound like an implausible proposition, in light of the agreed facts, as to her being paid $20 to $25 per bag.
While she was living at women's refuge, her daughter was in child care five days a week. Most of her supplies for the syndicate occurred at night arriving home by 11 or 12 o'clock.
She was unable to provide any satisfactory explanation as to why she did not obtain employment in an industry other than hospitality, other than to suggest lack of experience in other places was a factor.
Turning to written submissions and, firstly, the question of objective seriousness. In this case, it is, in my view, similar to the finding in relation to Ms Wu. That is that the offending is towards the mid-range, bearing in mind the quantity of cocaine supplied here, 393 grams, which is in excess of the commercial quantity (250g); that she worked as a runner for a syndicate supplying a total of 1.224 kilograms of cocaine over a period of about five months. Her involvement was, as I have said, for almost four months, involving the supply of 615 individual bags, which she supplied to hundreds of customers during that period. She actively assisted the syndicate by cleaning the base of operations and purchasing necessary items.
The mere quantity of drugs involved is, of course, not the sole or even the principal determinate of the sentence. The role of the offender must be carefully considered and analysed. Here, as I have said, she was a street level runner for the syndicate.
The Crown does not identify any aggravating factors and acknowledges, as mitigating factors, her plea of guilty, the fact that she does not have any significant record of previous convictions. I accept her expressions of remorse. I accept that her prospects of rehabilitation are reasonable, in the light of the significant quantity of subjective material.
The Crown has provided an analysis of the relevant statistics which may serve as a guide to the range of the proposed sentences.
Mr Wallach concedes that the s 5 (Crimes (Sentencing Procedure) Act 1999) threshold has been crossed and that a term of imprisonment is inevitable, but contends that a term of imprisonment to be served by way of intensive corrections order is available, relying upon her low level role, the subjective case, her deprived background, the pre-sentence custody and the bail conditions, which he describes as "quasi custody", for a period of one year and ten months and her good prospects of rehabilitation.
In support of that, he points to the subjective case and notes that, even though the offender has sought the help of police, they were unable to stop her ex-husband's behaviour.
As I have indicated, Mr Wallach places significant stress on the asserted loss of employment in the Havana Lounge due to the intrusions of her ex-husband, but that does not justify resorting to drug dealing, rather than seeking legitimate employment, particularly given her background and her obligations as a mother to a young daughter and support for her mother, who is not in good health.
I take into account the unchallenged evidence as to the graphic nature of her deprived and perilous childhood in Iran, her difficult journey to Australia, the horrifying experience on that voyage and her experiences Woomera Detention Centre. All of those, I accept, amount to a deprived background which reduce her moral culpability, to some extent.
Mr Wallach relies upon the conditions of bail after December 2019, which involved virtual home detention for one year and four months and a curfew for about six months. He submits that the court should take those into account to reduce the head sentence by appropriate periods, in a range of between 25-50%.
As the Crown points out, Garling J said in Kelly v The Queen [2018] NSWCCA 44 that common restrictions found in bail conditions, such as curfew, do not ordinarily constitute quasi custody for the purposes of being considered sufficient for backdating the commencement of the sentence, but it is a question of fact as to whether the restrictions amount to quasi custody.
The Crown notes that during this period she had unlimited access to her mobile phone and the internet, and no restrictions on visitors and her visitors included a friend who supplied her with cannabis. The Crown correctly asserts that, in the main, the authorities on the question of quasi custody are based on the context of fulltime residential rehabilitation programs or confinement in an immigration detention centre.
The Crown also notes that the offender had not complied with her strict bail conditions. On 12 June 2020 and 25 January 2021, she committed serious driving offences to which I have referred. Each of those were a breach of the bail. I accept that it would be remarkable if, indeed, the offender was caught by police on the only two occasions that she left her home in the period while on bail.
She also breached her bail by smoking cannabis on numerous occasions.
I also note that, for a significant portion of the time while she was on bail, the entire Greater Sydney area was subject to stay at home orders and for several months this year large parts of Western Sydney, including the suburb where she resided, were subject to a curfew and strict stay at home orders.
I take into account, to a limited extent, the restrictions imposed on her liberty after the grant of bail, without specifically nominating a number of days or months for reduction of sentence, as was done by the court in Hoskins v R [2016] NSWCCA 157, relied upon by Mr Wallach.
Mr Wallach relies upon hardship to third parties in mitigating the sentence and asserts that it is highly exceptional. However, as the courts have often said, the fact of imprisonment almost inevitably leads to hardships, sometimes very serious hardships, to third parties and justice would not be seen to have been administered evenly handedly if exceptions are made in cases which are not wholly or highly exceptional.
Here, the offender gave evidence that she has arranged a caregiver to attend and take her care of her mother twice a day and arranged for an educator to take her child to school, pick her up and drop her off. On weekends, some of the offender's friends will assist with care and her mother will have support from the friends, no doubt including many of the friends and family members who have provided letters of support to the offender.
The Crown acknowledges that this is not to say that the impact of a sentence of fulltime custody on the offender's daughter and, to a lesser extent, her mother is irrelevant to the sentencing exercise. It is to be taken into account as part of the general mix of subjective factors in the case.
I bear in mind what was said by the court in R v Hopley [2008] NSWCCA 105,
"The sentencing discretion is especially demanding where a sole parent is to be sentenced for a serious crime. The consequences upon children of imprisonment of an offender in these circumstances will invariably be detrimental. It remains a question of fact and degree for the sentencing judge to determine whether the facts of a particular case are wholly or highly exceptional to allow express account to be had in passing sentence to the hardships of the child arising from the imprisonment of the offender."
The court said in R v Edwards (1996) 90 A Crim R 510, citing Wirth (1976) 14 SASR 291,
"Hardship to spouse, family and friends is a tragic but inevitable consequence of almost every conviction and penalty recorded in a criminal court … courts would often do less than their clear duty - especially where the element of retribution, deterrence or protection of society is the predominant consideration - If they allowed themselves to be much influenced by the hardship that prison sentences which, from all other points of view, were justified, would be likely to cause those near and dear to prisoners."
I accept that there are numerous grounds upon which a finding of special circumstances should be made, leading to a significant reduction in the statutory ratio. A sentence of imprisonment will be the first fulltime period of custody for the offender. There is a clear need for counselling and supervision for an extended period.
I have taken into account the hardship to her daughter and invalid mother and the separation from her family, particularly during the COVID pandemic, bearing in mind the well acknowledged evidence in most sentencing cases at this time of lockdowns, including restrictions on visits and the risk of contraction of COVID while in custody.
Balancing all of those competing factors to which I have referred and the subjective case and bearing in mind the purposes of sentencing, which include rehabilitation, denunciation, punishment, making the offender accountable for her behaviour, I am not persuaded by Mr Wallach that a sentence of imprisonment should be in the range which would allow consideration of service by way of an intensive corrections order. I am satisfied that there is a justifiable basis for a reasonably significant difference between the sentence to be imposed on Ms Naghdi and that which was imposed on Ms Wu.
The orders I make are:
1. The offender is convicted of the offence.
2. Taking into account the 25% discount for the plea of guilty, I impose a sentence of three years and ten months, to commence on 31 August 2021.
3. I impose a non-parole period of 18 months, expiring 28 February 2023.
4. I find special circumstances.
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Decision last updated: 25 November 2021