Elias Nassif pleaded guilty to supply of a prohibited drug, namely Gamma Butyrolactone ("GBL") in an amount of 478.8 grams, an offence under s 25(1) of the Drug Misuse and Trafficking ("DMT") Act 1985.
Mr Nassif also pleaded guilty to possession of a prohibited weapon, namely an extendable baton, without being authorised to do so by a permit, an offence under s 7(1) of the Weapons Prohibition ("WP") Act 1998. Both offences occurred on 28 April 2017.
The amount of 478.8 grams of GBL is an indictable quantity under sch 1 of the DMT Act. The statutory maximum penalty for the offences of supply of the prohibited drug, GBL, involving an indictable quantity carries a penalty of 15 years and/or 2,000 penalty units under s 32 of the DMT Act.
The maximum penalty for conviction on indictment for possessing a prohibited weapon is imprisonment for 14 years. When prosecuted on indictment, the offence of possession of a prohibited weapon carries a standard non-parole period of five years.
Section 55A of the Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period represents the non-parole period, taking into account only the objective factors affecting the relative seriousness of that offence, that falls within the middle of the range of objective seriousness.
Section 54B provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account, and requires that the Court record its reasons for setting a non-parole period that is shorter or longer, identifying each factor taken into account. The maximum penalty and, when one exists, the standard non-parole period are among the legislative guideposts for the sentencing court.
Whilst on bail in respect of the charges, on 22 January 2019, Mr Nassif was charged with driving a motor vehicle whilst disqualified. He was refused bail on that and these other charges. He was sentenced on 31 January 2019 for driving whilst disqualified and received a non-custodial sentence. Accordingly, he is to be regarded as having been in custody from 22 January 2019 in respect of the present offences. [1]
Mr Nassif asks that I take into account on sentence, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, two further offences listed on a Form 1. Both were committed on 28 April 2017. The first is supplying 6.83 grams of methamphetamine, an indictable quantity, and the second of supplying 0.93 grams of MMDA, which is a small quantity under the DMT Act.
Mr Nassif must be sentenced to a term of imprisonment that will provide appropriate punishment for the offences to which he has pleaded guilty, but in the imposition of that sentence the Form 1 offences must be taken into account. Having availed himself of this arrangement, Mr Nassif has the benefit of not facing separate punishment for the additional offences.
I have reviewed the principles enunciated in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002. [2] The additional offences should impinge upon the sentences for the principal offences in which they are to be taken into account, requiring an appropriate increase in the sentence that would otherwise be applied to the principal offence standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender's misconduct, and the community's entitlement to retribution for those offences. [3]
Mr Nassif is entitled to a discount for the utilitarian value of the plea in accordance with the decisions of Borkowski, Dibb and Mooney. [4] The plea was given on the first day of trial and the Crown submitted an appropriate discount was 10%. Mr Nassif contended that a greater discount, less than 15%, should be granted given the circumstance that Mr Nassif was proposing to plead guilty some weeks earlier but the plea was not formalised. Given that until the plea was formally made there was no certainty that it would be given, I think the appropriate discount is 10%.
The statement which Mr Nassif accepted in pleading guilty contained a narrative embracing the two charges and the Form 1 matters. It recorded how a search warrant was executed at Mr Nassif's place of residence. Mr Nassif acknowledged that he lived at the premises. A co‑resident and three visitors were also present. The statement continued, omitting the numbering:
"There were various items on the coffee table in the lounge room, including: scales, a bong, an ice pipe, a piece of foil and a number of lighters.
...
Police located a Powerade bottle on the ground next to the coffee table in the living room. The Powerade bottle contained clear liquid. When police asked Nassif what the clear liquid was Nassif initially indicated that the bottle contained water. There was an empty methylated spirits bottle next to the Powerade bottle.
Police could see the liquid was not the same consistency as water and made a comment to this effect to Nassif. Nassif responded and said, 'It's metho', indicating towards the empty bottle of methylated spirits found next to the Powerade bottle…
The Powerade bottle was seized and its contents sent for analysis. The liquid was found to be 478.8grams (or 435mL) of gamma butyrolactone.
The indictable quantity for gamma butyrolactone is 50grams.
…
Police continued searching around the coffee table and located a plastic container with a crystallised substance inside. When asked about this item, Nassif said, 'It's for everyone…so everyone can have a smoke'. Nassif says the substance is 'ice' and that that is why everyone had come to their house, to smoke the ice. He maintained it belonged to 'everyone'.
This item was seized and sent for analysis and found to be 6.83 grams of methylamphetamine.
…
A small yellow plastic container was also located on the coffee table. The container had 10 brown tablets and some powder inside. Nassif denied any knowledge of the container.
It was seized and sent for analysis. It was found to contain…
• 0.93g (total) of 3, 4-methyIenedioxy-methylamphetamine (MDMA) in 10 capsules…
Nassif indicated to police which bedroom belonged to him. Police searched the bedroom and located an extendable baton in the top drawer of his bedside table. Nassif was asked questions by police about the baton. He admitted ownership of the baton and said, 'yeah, that was given to us'.
The item was seized by police and examined at the forensic ballistic investigation unit. Examination confirmed it to be a prohibited weapon.
…" [5]
By his plea, Mr Nassif accepted that the GBL was possessed by him for the purposes of supply. The evidence indicates that the supply was only for friends or associates. There was no evidence of any commercial gain to him or that he was motivated by greed or profit. There was no evidence of any repetition, system, organisation or business operation of supplying prohibited drugs. None of the aggravating factors listed in s 21A of the Crimes (Sentencing Procedure) Act 1999 are present, save that Mr Nassif has a record of previous convictions, though not serious personal violence offences and these were not such offences. Nor is there any of the mitigating factors listed in s 21A(3) present. Taking these matters into account, the offence of supply of the quantity of GBL falls towards the lower end of offences of this type.
Yet general deterrence is important in drug supply cases. The quantity of the prohibited drug is nine times the indictable quantity.
So far as the offence of unauthorised possession of a prohibited weapon is concerned, the use of the baton can involve significant violence and inflict significant injury. Yet its possession does not involve quite the danger or risk of damage of firearms or other prohibited weapons such as knives, explosives, spear guns and crossbows. Nor was there evidence indicating that the extendable baton was used in the crime of supplying prohibited drugs, although possession of prohibited weapons for personal security is not a factor in mitigation. The evidence in the Statement of Facts that the baton was given to Mr Nassif does not permit an inference that its possession was deliberate. There was no evidence of how long it was possessed.
In these circumstances, the possession of the extendable baton also falls towards the lower end of possession of a prohibited weapon and indicates a lesser non-parole period than that provided by the standard non‑parole period.
Mr Nassif is 40 years of age. He has a significant criminal record that includes driving whilst disqualified offences, goods in custody, possessing prohibited drugs, larceny, dishonestly obtaining a financial advantage, driving in a dangerous manner and break, enter and steal.
Mr Nassif has accepted that any period of parole or a non-custodial serving of the penalty should be conditioned on attendance at a drug and alcohol program.
There was no evidence of remorse. A psychologist's report dated 23 May 2019 tendered by Mr Nassif indicated an absence of recognition by the offender and says:
"It is not clear if Mr Nassif lacks insight, is in denial, or simply refuses to accept responsibility for his offending and further investigations are needed to inform his management and treatment planning. Regardless, he presents as a psychologically vulnerable individual and it will be important to monitor his mental state for deterioration and suicide risk throughout the sentencing process. He is mourning the death of his brother and may benefit from grief counselling. He will likely require professional supervision (such as that offered by Probation and Parole Services) to support his reintegration and stable functioning in the community upon his release from custody." [6]
I take into account that more than two years have elapsed since the offence and that Mr Nassif has served more than five months' imprisonment while on remand. He has undertaken several drug tests while in custody, each showing a negative result. He has successfully completed a narcotics program and a self‑management program whilst in custody. He is willing to undertake to remain drug free as a condition of parole or an Intensive Correction Order. These matters, together with his response to his brother's violent and tragic death, may indicate that Mr Nassif has some prospects of rehabilitation and that his prospects of rehabilitation are better than what his past record might suggest.
I intend to impose an aggregate sentence in respect to the two offences. I have considered the statistics in respect of the supply of a related drug, GHB, of less than a commercial quantity in respect of both the types of sentences imposed and the periods of imprisonment, and also the statistics in respect of the types of sentences imposed for possessing a prohibited weapon without a permit, although these statistics are necessarily generalised and are of limited value.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that the purposes of punishment are:
1. to ensure that the offender is adequately punished for the offence;
2. to prevent crime by deterring the offender and other persons from committing similar offences;
3. to protect the community from the offender;
4. to promote the rehabilitation of the offender;
5. to make the offender accountable for his or her actions;
6. to denounce the conduct of the offender; and
7. to recognise the harm done to the victim of the crime and the community.
In drug supply cases, the purpose of deterring other persons from committing similar offences and the protection of the community having regard to the adverse impact of drug use and it being an underlying cause of other criminal offending are important matters to consider. An offence involving a substantial degree of drug dealing ordinarily results in a sentence of imprisonment and a sentence other than imprisonment will in this case fail to meet sentencing objectives.
Counsel for Mr Nassif readily accepted that the requirement of s 5 of the Crimes (Sentencing Procedure) Act 1999 - that no penalty other than imprisonment was appropriate - was satisfied here. Having considered conditional releases and community corrections orders, I agree with this concession. Whether a sentence of imprisonment might be served by non‑custodial means is a matter I will consider.
Amendments to sentencing legislation were enacted on 24 September 2018 for the purposes of improving the availability and nature of community based sentencing options, protecting community safety by reducing offending, reducing the number of offenders receiving short prison sentences (less than two years) and enabling a greater number of appropriate offenders to serve community based supervised sentences with conditions tailored to address their offending behaviour and criminogenic needs. Those conditions might include rehabilitation or treatment, abstention and other matters.
Mr Nassif submitted that an Intensive Correction Order was appropriate to his circumstances. "Community safety" is of paramount consideration and an Intensive Correction Order is only available where the aggregate sentence proposed is no more than three years' imprisonment, or two years in the case of an individual sentence. In my view, the appropriate period of imprisonment for Mr Nassif is an aggregate sentence of 2 years taking into account the matters that I have identified, including the guilty plea and the Form 1 matters, with an indicative sentence of 21 months for the possession for the purpose of supply of GBL, and four months for the possession of the prohibited weapon without a licence.
In deciding whether to make an Intensive Correction Order, I have also had regard to the contents of the Sentencing Assessment Report in relation to Mr Nassif.
In the event that an Intensive Correction Order was imposed, Community Corrections have advised that Mr Nassif would be required to report to a Community Corrections Officer every 2 weeks and receive home visits from the officer every 12 weeks and that Community Corrections will implement the following supervision plan:
"• Engage in an [alcohol and drugs] assessment and referral to a suitable service provider for ongoing intervention and counselling
• Referral to a suitable counselling service to address grief
• Regular and random drug testing to monitor any illicit substance abuse
• Regular contact with NSW Police in relation to any intelligence findings, concerns, other police contact or contact with negative associations
• Regular contact with Mr Nassifs community support networks to monitor his progress and reintegration in the community
• Engage in activities and interventions that focus on constructive ways to deal and react with stress, recognising triggers and preventing relapse to drug use."
The Crown did not make submissions against Mr Nassif serving his sentence by means of an Intensive Correction Order.
I am of the view that Mr Nassif could appropriately serve the residue of his two-year sentence by means of an Intensive Correction Order. The standard conditions of an Intensive Correction Order are that he must not commit any offence and that he must submit to the supervision of a Community Corrections Officer.
In addition, I propose to impose two additional conditions under s 73A, that he abstain from all illicit drugs for the period of the sentence and that he attend at a drug and alcohol program.
Elias Nassif, would you please stand.
1. Elias Nassif is convicted of the offences of:
1. supply of a prohibited drug, namely 478.8g of Gamma Butyrolactone (Count 1); and
2. possession without a permit of a prohibited weapon, namely an extendable baton (Count 2).
1. Note that there being no other appropriate sentence, I would have imposed an aggregate sentence of a term of imprisonment for a period of two years dating from 22 January 2019 and ending on 21 January 2021.
2. Taking into account that Mr Nassif has served a period in custody from 22 January 2019 until today, I impose an aggregate sentence of imprisonment for a term of 18 months and 28 days starting today and ending on 21 January 2021.
3. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, order that the sentence of imprisonment is to be served by way of intensive correction in the community.
4. Mr Nassif must report to the Community Corrections Office as soon as practicable but no later than 7 days from today.
5. The standard conditions apply to the Intensive Correction Order, namely:
1. Mr Nassif must not commit any offence; and
2. Mr Nassif must submit to supervision by a Community Corrections Officer.
1. The following additional conditions apply to the Intensive Correction Order, namely:
1. Mr Nassif must abstain from all illicit substances for the period of the Intensive Correction Order, namely until 21 January 2021.
2. Mr Nassif must attend at a drug and alcohol program during the period of the Intensive Correction Order.
1. Note that the two offences of supply prohibited drug on the Form 1 were taken into account.
2. In respect of Count 1, supply prohibited drug, namely, Gamma Butyrolactone, the indicative sentence is 21 months of imprisonment.
3. In respect of Count 2, possess or use a prohibited weapon, the indicative sentence is four months of imprisonment.
[2]
Endnotes
Exhibit A, p 1.
[2002] NSWCCA 518.
Attorney General's Application under s 37 at [42].
R v Robert Borkowski [2009] NSWCCA 102 at [32], Regina v Dibb [2003] NSWCCA 117, Mooney v R [2016] NSWCCA 231 at [32]-[36].
Exhibit A, tab 3 at [7]-[17].
Exhibit 1 at [15].
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: 14 August 2019