R v Nassim Eid

Objective seriousness

1. The offender's conduct involved the use of a mobile phone with coded messaging, a vehicle with dark tinted windows and two bags of prohibited drugs weighing a total of 54.7 grams, of 89% purity and currency in multiple denominations that he conceded did not belong to him.
2. As the quantity involved is not less than the trafficable quantity it is deemed by s 29 of the 1985 Act to have been in possession for the purposes of supply. The offender did not seek to prove that he had the drugs in his possession, otherwise than for the purposes of supply. [4]
3. The threshold for an indictable quantity of cocaine is from 5.00 g to below 250.00 g. Whilst the amount in this case sits at towards the lower end of the weight spectrum it is still more than ten times the threshold indictable quantity. The purity is at the high end of the spectrum.
4. The state in which the drugs were found in (two bags) and their high purity satisfy me that the offender's role was somewhat more than a street dealer. However I am not satisfied that his role falls at the higher end of the distribution chain. Nonetheless the agreed facts satisfy me that the offender was involved in trafficking drugs to a substantial degree. [5]
5. The Crown made no submission that the offence was aggravated by reason of being part of a planned or organised criminal activity - it being acknowledged that it is generally an inherent part of an offence of supplying drugs. [6]
6. Overall I would regard this matter as sitting just below the mid-range of objective seriousness.

Financial gain/consumer of drugs

1. The offender acknowledged that the offence was committed for financial gain. [7]
2. As will be discussed below, the offender at the time of the offence was a user of illicit substances. Counsel for the offender submitted that the offender's drug addiction does not operate as a mitigating factor, but entitles his criminality to be assessed at a lower level than had he been dealing with drugs purely for greed. It was asserted that the offender's addiction served to explain (although not excuse) that the offence was committed whilst on bail. [8] Reliance in this regard was placed on the decisions of Studdert J in R v Selim [9] and Hall J in Vu v R. [10]
3. In Vu v R, Hall J (with whom James and Buddin JJ agreed) specifically referred to Wood CJ at CL in R v Henry. [11] The offender's submission did not specifically identify which of the principles referred to therein, were engaged. The offence was not impulsive. Nor was it committed in circumstances where the offender's state of mind or capacity to exercise judgment was affected. Even if the offender's judgment had been clouded by his use of drugs it was self-induced and provides little by way of mitigation. [12] Moreover Dr Nielssen notes in relation to the offender's use of methamphetamine and cocaine for three years "they made me feel superior … I was just high."

Conditional liberty

1. It was acknowledged that the offence was committed whilst the offender was on bail for other offences including another offence of supply a prohibited drug - an aggravating factor in sentence. [13]

Plea of guilty

1. The offender pleaded guilty to the charge on the second day that the matter was listed for trial and submitted that the appropriate discount, in accordance with the decision in R v Thomson & Houlton [14] should be 10%. The Crown for its part, accepted that it should be no higher than 15%. I accept that 10% is the correct discount in the circumstances.

Remorse

1. The report of Dr Olav Nielssen [15] records the offender's sister stating: "She said that he often spoke about his regret about what he has done and that he was 'trying to change.'"
2. The offender in evidence before me stated that as a result of this offence he has learnt the hard way. He stated that he had hurt his family, the community and others around him. He stated that he knows how bad drugs are. He stated that it was "half my fault" but "at the end of the day I make my own decisions."
3. The qualification in his evidence about it being "half his fault" does not on balance detract from the fact that the offender has accepted responsibility and I accept remorse has been demonstrated within the terms of s 21A(3)(i) of the 1999 Act.

Likelihood of re-offending and prospects of rehabilitation

1. The offender is the third of four children with a sister aged 24, who is married with children; a brother a year older than himself and works as a plumber; and a younger sister who has completed high school and works in childcare.
2. According to a report prepared by Dr Nielssen, the offender describes himself as the "black sheep of the family." [16] The offender's father is currently off work and his mother did not work because of health problems.
3. The offender grew up in Ermington and attended Ermington West Public School, Al Faisal College for Year 7 and Marsden High School in West Ryde to Year Ten, although he repeated Year 9 because of poor attendance and did not complete the School Certificate. He was taken on as an apprentice carpenter and completed a year of the TAFE course associated with the apprenticeship, but told Dr Nielssen: "it was too hard for me ... the fees cost too much and I was only getting $300 max a week." [17]
4. The offender reported several short term relationships but had been in contact with a girl since coming into custody and hoped to form a long term relationship on his release. [18]
5. He expressed the view to Dr Nielssen that he has "big plans" for the future, including staying out of gaol, seeking treatment for his anxiety disorder, finding work and "hopefully get[ting] married." [19]
6. Despite his relatively poor level of education, Mr Eid gave evidence that since entering into custody he has completed courses in English and Mathematics. The details of this are unclear. Overall, he is a person of limited education and skill.
7. Notwithstanding this, Mr Rabih Dandan, director of RNS Construction Pty Ltd, supplied a letter confirming that upon the offender's release, he proposes to employ him as a carpenter on a full time, permanent basis, six days per week from Monday to Saturday from approximately 7:30 am to 3:30 - 4:00 pm each day, depending on site locations and respective travel times. [20] Mr Dandan also gave evidence before me and was not challenged.
8. The offending record is a relatively recent one, dating from 2011. In short it is not unblemished, comprising a range of summary matters and it is not advanced as a ground of mitigation under s 21A(3)(e) of the 1999 Act. The prison term commencing on 24 June 2015 was the first occasion that the offender came into custody. It is also of concern is that since entering into custody, he has had seven correctional transgressions including three failures to comply with correctional centre routine, two failure to obey directions, and one of create and possess prohibited good and one of intimidation.

Previous drug use

1. The offender gave a history to Dr Nielssen as to his previous drug use. Dr Nielssen records that the offender previously worked as an apprentice carpenter but left when he "caught up with a couple of people … [and] they told me how I could make easier money." [21]
2. Dr Nielssen further records:- "When asked about his own drug use, Mr Eid said 'I had a bit of a drug problem from when I turned sixteen until I got locked up'. He said 'I was smoking Ice and I was on a lot of cocaine' and said that he used one or other of those drugs every day. He said that he often went days without sleep, and fell asleep from exhaustion after three or four days, often after smoking cannabis. Mr Eid said that being charged and taken into custody had allowed him to break the cycle of drug use and drug debt, and said 'I am happy this has happened to me … I am thinking about the positives … it has rehabilitated me.' When asked about his emotional state at the time, Mr Eid said 'I have this problem where I struggle to breathe and I think something is going to happen … like I am going to die … I get hot flushes … I feel sick in the stomach … I think something is happened but nothing is [sic] … I have been to the nurses and they told me it was anxiety … one of the inmates told me to get a bag and breather'. He said 'I have tried to do courses in gaol … I have done four or five courses but its nothing to do with that [management of anxiety symptoms]." [22]
3. Dr Nielssen reports that Mr Eid used methamphetamine and cocaine for three years from the age of 17 until he was incarcerated at the age of 20. The offender told him: "They made me feel superior … I was just high." Dr Nielssen also reports some use of medication to get to sleep, but no history of admission to drug rehabilitation centres or substance related counselling. [23]
4. The offender gave evidence that at the time of the offence, he was using four grams of cocaine a day and "three points" of ice. He described a "point" of ice as being 0.1 grams. He stated that at the date of the offence, he had been using for two years. He stated that all the time, he lived "day by day." He also stated that he was not scared of what happened, in terms of him being relieved when he was caught. He stated that he did not care much at the time but now that has changed. He feels as though he has been rehabilitated even though he has not had any drug rehabilitation.
5. In conclusion, Dr Nielssen diagnosed an anxiety disorder (panic disorder) and substance use disorder, in remission. Dr Nielssen noted that factors that are contributing to the development of the anxiety disorder include possible inherited vulnerability to the condition, as his mother had also been treated for anxiety and his sister reported being anxious and his use of stimulant drugs, which are a potent trigger to panic attacks. [24]
6. Dr Nielssen stated that the substance abuse disorder diagnosis was made on the basis of a history of use of a drug known to have harmful psychological effects and the complications of his drug use, including his history of transient perceptual disturbances and persecutory ideas, the role of stimulant drug use in triggering panic disorder and the role of his own use in his involvement in this offence. [25]
7. Whilst Dr Nielssen stated that the disorder has been described as being in remission, this was based on his account of what the offender describes as "nearly two years" of abstinence whilst in custody. [26]
8. Dr Nielssen in summary stated:- "Mr Eid has a common psychiatric disorder in the form panic disorder for which effective treatment is readily available in the form of evidence based face to face counselling or a free, Commonwealth funded online course at mindspot.org.au, which achieves results that are equivalent to face to face care. He did not appear depressed, or to have a major psychiatric disorder for which he required treatment with any kind of psychotropic medication. However, if he continues to have panic attacks, and develops a disabling pattern of avoidance of some situations because of fear of having an attack, treatment with antidepressant medication may complement face to face or self-guided cognitive behaviour therapy." [27]
9. Dr Nielssen also opines that the offender will need: 1. to remain abstinent from drugs; 2. to avoid drug using associates; and 3. to participate in longer term counselling and intermittent drug testing. [28]
10. The offender has not undertaken any courses to address his offending behaviour and substance abuse issues. It is submitted nevertheless that he has good prospects of rehabilitation bearing in mind that he was only 20 years of age when the offence was committed and since coming into custody, has ceased using drugs. The offender gave evidence about the availability of drugs within the prison system and the fact that he has not had a positive drug test.
11. Notwithstanding the submissions made, on the basis of Dr Nielssen's report and the custodial record, I would regard the offender's prospects of rehabilitation overall as reasonable and his likelihood of re-offending as medium-risk.

Commencement of sentence

1. At the time of committing the subject offence, the offender was on bail for an offence of supply prohibited drug of which he had been charged on 11 April 2015. The offender had also been charged with an offence of affray, said to have occurred on 23 September 2013. On 23 September 2014, he was sentenced to serve 70 hours of community service in respect of this offence. It appears that this order had not been satisfactorily completed, and accordingly on 24 November 2015, whilst still bail refused in relation to the matter before me, the community service order was revoked and the offender was sentenced to serve a period of 3 months imprisonment commencing on 22 May 2015 and concluding on 21 August 2015. In relation to the offence of supply prohibited drug of 11 April 2015, the offender was sentenced to a period of 5 months' imprisonment commencing on 24 June 2015 and concluding on 23 November 2015.
2. On the offender's behalf it was submitted that the commencement of any sentence in respect of the matter before me should date from the period of the mid-point of 22 May 2015 and 23 November 2015. It was contended that the course of action taken by the Magistrate in revoking the community service order and imposing a prison term, as well as the sentence imposed for the supply of prohibited drug, reflected the fact that the offender was then being incarcerated having been bail refused in relation to the charge before me since 31 May 2015.
3. Counsel for the offender drew attention to a photograph of the narcotics the subject of the supply charge dealt with by the Magistrate, in respect of the offence said to have taken place on 11 April 2015, being Exhibit 3 in the sentence proceedings.
4. The question of the date of commencement of the sentence is a discretionary decision.
5. The sentences imposed by the Magistrate were not appealed from and they in any event provided for a limited level of accumulation. This is not an occasion to go behind those sentences for the purposes of examining their merits. In all of the circumstances, I would propose to commence the sentence on 24 November 2015.

Sentence

1. The offence of deal with property suspected of being proceeds of crime is encompassed in the Form 1, which I have been requested to take into account pursuant to s 32(1) of the 1999 Act . I do so in accordance with the decision of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. [29]
2. The primary offence in respect of which I am imposing sentence carries a maximum penalty of 15 years imprisonment and/or 2,000 penalty units. [30]
3. Counsel for the offender and the Crown agreed that no sentence other than a sentence of imprisonment is appropriate within the terms of s 5(1) of the 1999 Act.
4. I have regard to the purposes of sentencing in s 3A of the 1999 Act.
5. In R v Shi, Wood CJ at CL stated: "[34] … the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402." [31]
6. The need for general deterrence and specific deterrence looms large. The offender's conduct needs to be denounced and he needs to be made accountable for his actions.
7. He is a young male with limited education and no vocational skills but with good family and community support. For the reasons given, I regard his prospects of rehabilitation as being reasonable and regard his likelihood of reoffending as medium-risk.
8. In light of the fact that that this is the offender's first period in custody when combined with the previous sentences, his youth, prospects of rehabilitation, the need for an extended time under supervision and the need maintain an overall balance in ratio between time spent in custody and parole, I am satisfied that the case calls for a finding of special circumstances.
9. The offender is convicted.
10. But for the plea of guilty I would have sentenced the offender to serve a term of 3 years and 9 months' imprisonment.
11. In light of his plea and bearing in mind my finding of special circumstances, I set a non-parole period of 2 years and 3 months' imprisonment commencing on 24 November 2015 and expiring on 23 February 2018 and an additional term of 1 year and 1 month imprisonment to commence on 24 February 2018 and to expire on 23 March 2019. [32]
12. The offender will be eligible to be released to parole on 24 February 2018.
13. The overall sentence is of 3 years and 4 months to commence on 24 November 2015 and expire on 23 March 2019.

Endnotes

1. Hereinafter referred to as the "1985 Act"
2. Hereinafter referred to as the "1999 Act"
3. Hereinafter referred to as the "1900 Act"
4. s 29(a) of the 1985 Act
5. R v Clark (Unreported, NSW Court of Criminal Appeal, 15 March 1990)
6. R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97; and Hutton v R [2008] NSWCCA 99 at [20] - [23] (James J with whom Campbell JA with Johnson J agreed)
7. s 21A(2)(o) of the 1999 Act ; see also: Wat v R [2017] NSWCCA 62 at [44] - [49] (Price J with whom Bathurst CJ and Walton J agreed)
8. Submissions for the offender, undated at [18]
9. (Unreported, NSW Court of Criminal Appeal, Smart, Studdert and Hidden JJ, 19 May 1998)
10. [2006] NSWCCA 188
11. See: Vu v R [2006] NSWCCA 188 at [61] - [63] (Hall J with whom James and Buddin JJ agreed); and R v Henry (1999) 46 NSWLR 346
12. R v Dang [2005] NSWCCA 430 at [30] (Howie J with whom Studdert and Whealy JJ agreed)
13. s 21A(2)(j) of the 1999 Act and Frigiani v R [2007] NSWCCA 81 at [24] (Howie J with whom Simpson and Barr JJ agreed)
14. (2000) 49 NSWLR 383; [2000] NSWCCA 309
15. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 5
16. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 4
17. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 4
18. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 4
19. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 4
20. Exhibit 2, Letter of Employment Verification for Nassim Eid from Mr Rabih Dandan dated 1 March 2017
21. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 2
22. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 2
23. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 3
24. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at pp 5 - 6
25. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 6
26. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 6
27. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 6
28. Exhibit 1, Report of Dr Olav Nielssen dated 2 March 2017 at p 6
29. (2002) 56 NSWLR 146
30. ss 32(1)(c) and 32(1)(g) of the 1985 Act
31. [2004] NSWCCA 135 at [34] (Wood CJ at CL with whom Spigelman CJ and Simpson J agreed)
32. Plea discount rounded up to five months 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: 16 May 2018