R v Nehme; R v Suleski

Early Guilty Pleas

1. Each offender pleaded guilty in the Local Court. Each of them is entitled to a reduction of 25% from each indicated sentence to reflect its utilitarian value. A guilty plea has other benefits, which will be considered. Obviously, as will become clear from the facts, they involved themselves in organised criminal activity. Obviously, the offences reflect a course of criminal conduct. They were, although not separately charged, part of organised criminal activity. They played their role in a pernicious offence, and for that, they must be punished.

Rolled up drug quantities

1. Each played a role in those supplies. The quantities in relation to each offence are rolled up from the amount supplied in the various transactions.
2. This method of dealing with the matter was accepted by the defence. It does, on one reading expose, each of the offenders to the greater maximum penalty, but if each of the transactions had been charged individually, collectively a very significant maximum penalty would still have been available to the Court.

Agreed Facts

1. The agreed facts tendered against each offender differ only in the minor details. What follows is a summary.
2. In September 2020, a police witness began negotiating with a drug dealer who called himself "the Godfather". They used an encrypted messaging application. It is not yet known, at least to the Court, who this person is. "The Godfather' agreed to supply the police witness with quantities of cocaine, and methylamphetamine. On 2 October 2020, Nehme drove with those drugs to a location in Unanderra. Shortly after, Suleski arrived at that location and parked near him. Nehme then took the drugs from Suleski's car and returned to his car. When the police witness arrived by car Nehme went to that car. There a transaction took place involving the quantity of cocaine and methylamphetamine earlier agreed - $33,200 was handed over by the police witness.
3. Nehme then gave the money to Suleski. Both then left. Similar arrangements were made and followed through in relation to the second supply on 7 October 2020. It involved 110 grams of cocaine and 27.8 grams of methylamphetamine, for which the police witness handed over $42,000.
4. Similar arrangements applied so far as the third supply on 1 November 2020. It involved 138.5 grams of cocaine and 83.4 grams of methylamphetamine. The police witness handed over $66,350.
5. Similar arrangements occurred for the fourth supply on 5 November 2020. It involved 276 grams of cocaine and 81 grams of MDMA. The police witness handed over $78,500.
6. The fifth supply, on 23 November 2020, involved 250 grams of methylamphetamine, and 248 grams of MDMA in tablet form. The amount exchanged was $73,500.
7. The sixth supply was arranged, but the offenders were arrested before it could be completed. The supply involved 860.5 grams of MDMA, and 470 grams of methylamphetamine, and 470.5 grams of cocaine. The agreed price was $266,800.
8. It is clear, given the amounts involved and the amounts that had already been expended, that a decision was made to terminate the operation at this point. After the drugs were handed over both offenders were arrested and placed in custody.
9. Search warrants were executed on Suleski's premises. Additional methylamphetamine and cocaine and cash were found, as was, 367 grams of cannabis leaf and $4,875. Offences relating to supply of the cannabis leaf and cash being the proceeds of crime will be dealt with on a Crimes (Sentencing Procedure) Act 1999 Form 1.
10. When Nehme's car was searched, police found to have $5,775 and a quantity of cocaine. Cannabis was found at his house. Offences relating to the cannabis and the cash were placed on a Form 1 for him.
11. When I sentence for the cocaine offences for both young men, I take into account the supply of cannabis. While some cannabis supplies can result in custodial penalties, this one may not have. I have to have regards however, to the commission of that crime as I do with regard to the possession of the cash when I sentence for the offence to which the Forms 1 relate.

Objective seriousness

1. Although more than $500,000 was involved, of course, the final transaction, involving about 50% of that amount was never finalised. There were several transactions over a period of two and a half months. The quantity supplied sets the range for punishment and is of some importance. The larger the amount supplied, the larger the potential profit, the larger the number of end users that can be impacted on, and one would presume a greater reward expected.
2. The large commercial quantity for cocaine is one kilogram. This quantity was just above that. The large commercial quantity for methyl amphetamine is 500 grams, as it is for MDMA. I note that for a s 25(2) offence, these are the bottom of the penalty range, and that the top of the range is open ended.
3. There was obviously a system in place. There was obviously some organization. Security encrypted phones were used. This was organised criminal activity, but as is obvious from these facts, it was not the so-called "Godfather" who was taking any risk, but the two offenders. That the operation put in place was in fact a sting, and not a genuine drug transaction does not mitigate.
4. They appear to be at the bottom of the hierarchy. I have no organisational chart for the operation. This is not uncommon; drug supply operations rarely come with a business plan or chart. What is clear is that each of the offenders, by publicly involving themselves in the transaction, risked what ultimately happened - arrest and gaol.
5. Both offenders were only involved for short terms as part of the delivery of the drugs, and the collection of the money. But without people such as Nehme and Suleski, the huge profits made by those up the chain and higher in the hierarchy, could not be made.
6. There was no indication that either young man had any decision-making role, however, both expected some reward; either in drugs and or cash. I note that on arrest both were found with drugs and cash in their possession, other than what was the subject of the last transaction. This indicates that they were receiving some cash reward, in addition to any drugs that might have been given to them.
7. One reason for my determining that these offences do not fall into the middle of the range, is the role of the offenders. It is accepted that neither was a principal. But as I said, absent involvement of people such as them drug supply networks would simply collapse.
8. There is a strong suspicion that the cash resulted from the work they were doing for "the Godfather". Cash is a necessary incident of any supply operation, and as I have found, each offender expected a reward. This seems logical. The logic of events compels a conclusion that the money was part of that reward. A matter that should not be double counted against them. Nevertheless, the Form 1 must be taken into account when I synthesise all relevant matters, but I must be careful not to double count matters particularly in relation against the offender.
9. At the time of the offending Nehme was serving a sentence for supplying drugs and dealing with the proceeds of crime. That sentence was being served subject to an Intensive Corrections Order. While that is on his record and will be taken into account as a matter of aggravation, matters relating to that conviction were put before me for another particular purpose so far as both Nehme and Suleski were concerned. It went to inform evidence that Nehme gave in relation to his motivation for engaging in the supply.

Duress - Nehme

1. Nehme told me in evidence that following his arrest for the December 2019 matter, he was told by his then supplier that he would have to re-pay with interest, the debt that he owed his upline supplier. He told me that he was; kidnapped, tied up, kept in isolation, assaulted and threatened. He was told that $80,000 would have to be repaid or that more violence would be inflicted on him, and possibly his family. He said that was the reason he engaged in these transactions; to repay the debt, and out of concern for his family.. He indicated, against interest, that there were other transactions which were not the subject of charges.
2. Mr Lang who appeared for Nehme submitted that I would accept that evidence as being a logical basis for why, despite him having been arrested previously, and despite promises he clearly made to the Court and his family and his parole officer that he would no longer engage in drug supply, he did so on this occasion. That is, because of duress.
3. Mr Rollestone, solicitor for the Director of Public Prosecutions submitted that I would be very, very guarded in accepting that explanation. He noted the that when he was previously before the Court for sentence Nehme presented as someone who had successfully dealt with his drug problem and was attempting to get his life in order; Someone with good prospects for rehabilitation. He submitted that of the duress evidence is now to be accepted, I would then have to at the same time accept that he told a lie to his family and the Court about the real situation. Thais is that being; he was professing to be rehabilitated but in reality he was still engaged with his upline supplier, and supplying to others.
4. If they are to be taken into account in mitigation of a penalty contested maters such as these must be established on balance of probabilities.
5. Duress implies forcible restraint and compulsion. It is not suggested that it excuses the offending, but it is capable of being a mitigating factor at sentence s 21A(3)(d), Crimes (Sentencing Procedure) Act 1999. It can, and Mr Lang urges upon me to be taken into account as effecting the degree of the offender's subjective moral culpability and prospects: Tiknius v R (2011) 221 A Crim R 365. It is also relevant to any assessment I make of the objective gravity of the offence committed my Nehme. That is, if it was committed out of fear of harm rather than for financial profit or greed. I am entitled to approach such claims with a significant degree of circumspection: Giang v R [2017] NSWCCA 25 at [13]; R v Z [2005] 2 AC 167 at [22]. Such claims can be easily made and are because they are not reported until much later, almost impossible to challenge by independent evidence. The weight to be given to it, if I do accept it, depends on; the form and duration of the criminal conduct, the nature of the threats, and the opportunities available to the offender to report the matter to the authorities. In any event, as Justice Johnson said in Tiknius v R, citing Lindsay v R [2012] NSWCCA 124: "Court should be astute not to permit general deterrence to be diluted by the claim of some threat or intimidation. Of course, every case must be examined on its own particular facts, and the evidence led."
6. While a debt was claimed, an economic duress and continued association with career criminals does not of itself mitigate offender's objective criminality: R v Ceissman [2004] NSW CCA 466 at [24].
7. I am prepared on balance, given the detail of the evidence given by the offender, to accept that a principle, motivation for his involvement in this offence at such a low level, and for such a number of times, was influenced by a real threat that had been made towards him. I also note however, that he was in regular contact, with his family, and with parole officers, and that there were other options available to him.
8. Those other options must be explored when he is released to parole because obviously, if there was a debt claimed previously, that debt has now substantially increased. He has to mature and face his responsibilities as a citizen and an adult, and everyone in the community has to understand that if a threat is made, that does not excuse your conduct. It is a matter that is taken into account, and will be synthesised along with all other matters, but it does not absolve a court from its responsibility to impose significant and deterrent sentences.

Subjective case - Nehme

1. Nehme was arrested on 16 December 2020. He has been in custody ever since. At the relevant time, he was on subject to a sentence with an Intensive Correction Order, to which I have referred. That sentence was converted back to a full-time sentence involving a balance of one year and two months. If he had been breached in the ordinary event, some of that sentence would most likely have been spent on parole or a reinstituted ICO. I will not accumulate this sentence at the expiry of that sentence. But I do take into account that there should be perhaps some additional punishment in terms of starting date, so far as that matter is concerned to reflect the fact that some custodial penalty was required for the breach. I note that it was for the same type of offence, and that Nehme broke a number of promises to be of good behaviour.
2. His record does not entitle him to any leniency, but it is not an extensive record. His evidence was, that he has moved on. Well, he will have to prove that when he is released to parole. He expressed ownership of his crime despite the duress, and he gave me some of his personal history, which is also set out in the report of Dr Furst. His family history and background was not in contest. It is uncontroversial. Nehme comes from a good family.
3. His father who gave evidence in support of the duress matter and generally. He is not well and ready to retire. His son can take over the family business on release.
4. Nehme has strong family support. His mother has several medical problems and having her son in gaol has not helped. His family strived all their life to give him every support and a happy life. Obviously he will suffer while he is in custody because he has let his family down, a matter, I can take into account.
5. It appears Nehme fell ill during his high school certificate and left school early. He has worked with his father and attempted to better himself by work. But he suffers from anxiety, and it would appear he self-medicated with cocaine. From the material before me, including the material in relation to the other matter, it appears that the lifestyle associated with drug use and partying appealed to him.
6. Dr Furst says he has a substance use disorder and an underlying long-term anxiety disorder, including panic attacks. He indicates that a significant cause of his drug use is that underlying anxiety disorder. It would appear that Nehme's cocaine use was a maladaptive way of coping with a number of underlying mental health problems.
7. Dr Furst sets out a solid plan for dealing with his underlying problems of drug abuse and anxiety. He notes Nehme has adjusted well in custody.
8. I accept that his involvement in this offence, and the earlier offence, relates back to his drug use and it is in turn causally linked to mental health problems, but drug use cannot and does not excuse drug supply matters.
9. The fact of an addiction, the fact of its consequences, and how it came about must be taken into account as a relevant factor on sentencing.
10. That applies to both offenders. It can help explain to me why they were not thinking clearly. If the problem is dealt with, it can impact on their prospects as I will take into account.
11. Nehme appears to have done well while in custody. He appears to have strong family support. He has a plan, and he will be better treated for his underlying conditions. These can be better treated in the community.
12. Despite his failure to abide by his Intensive Correction Order conditions, as is obvious by the commission of this offence, he is still young enough to benefit from extended supervision on parole. There are a number of underlying matters, to which I have referred, which justify a finding of special circumstances; increasing the amount of time he should be supervised in the community and reducing his time in custody.

Subjective case - Suleski

1. Turning now to Suleski. One factor that I found disturbing matter and is that for one of the transactions, he brought his heavily pregnant partner with him. This I accept reflected his desperate state of mind, at the time and the impact of the drugs upon him.
2. As I noted during the hearing, there is a marked contrast between the photograph of the man on his criminal record, and the man who appeared before me
3. Suleski, has no criminal record of any consequence. I treat him effectively as a first offender. He was arrested on 16 December 2020, but Supreme Court bail was granted to him on 21 February 2022, after he had been in custody for one year and two months. He then was granted bail to engage in a rehabilitation program at City Sleep Safe.
4. Material provided on the bail hearing indicted that he had several underlying mental health problems. His drug use needed to be addressed, and his capacity at the time to weigh the risks of engaging in such criminal activity was impacted on by his mental health and consequent drug use. It would appear that he did utilise his time at City Sleep Safe to his advantage, and that he was supported by their counsellors. He was however, asked to leave that facility. He was doing well, but after he was given a leadership role he was simply not up to it.
5. I will take into account his time in City Sleep Safe. It has enabled him to demonstrate that he is capable of rehabilitation. His counsel, Mr Skinner, submitted that time at City Sleep Cafe was a form of quasi custody requiring appropriate recognition by a reduction in sentence. Mr Skinner suggested between 50% to 70% of the time spent in the rehabilitation centre. He referred me to appropriate authorities.
6. However, the material I received both about City Sleep Safe and from them indicates that it could not be equated with quasi custodial conditions. The conditions to qualify for a full discount require the conditions on the program closely resemble imprisonment. City Sleep Safe differs from the sort of restrictions on liberty in places such as Oolong House or Odyssey House that commonly come before the Court. It is a more open institution. He was able to work and to come and go, but he was subject to limitations, restrictions, curfews and the like, and he did keep to those conditions. I do not hold against him his failure to finalise his course of treatment there. It was a productive program so far as his rehabilitation is concerned. The rationale for any allowance in reduction of sentence is not success, but the degree his liberty was restricted.
7. Staying at City Sleep Safe is not quasi custody but it does involve some restrictions on a person's liberty. I will take Suleski's time there into account. For transparency's sake I note that I will backdate the appropriate sentence by two months to take into account that program's quasi custodial aspects. But I will also take into account when I formulate an appropriate sentence, that he has shown some progress during his time on bail towards rehabilitation and has shown a capacity to lead a lawful life in the community.
8. Obviously, I will backdate the sentence to take into account his pre-sentence custody. His subjective case put before me indicates that he witnessed and was subject to domestic violence and exposed to the use of illicit drugs from a very early age. Those matters were succinctly summarised by Mr Skinner and I will take them into account.
9. Mr Skinner, in his written submissions, at [21], says that Suleski grew up witnessing violence on the part of his mother towards his father, and her next husband. He witnessed drug use including intravenous drug use. He was exposed to family members committing crimes, and was present when they did so. He was subject to abuse when he was a child. He witnessed his father's attempted suicide. He struggled at school, and in the opinion of his psychologist, suffers ADHD. There is a history of depression, anxiety and ADHD. He has had little support in the past. By the age of 21, he had a problematic cocaine problem.
10. Suleski took up the use of cannabis, and then other drugs when still too young to make rational decisions. He was born in 1994. He is still a young man. I accept by the time he committed this offence he was using an inordinate amount of cocaine, which he had to pay for in some way.
11. He has qualifications as a light vehicle mechanic. He is able to work in the community. He still has the support of his partner, the child I referred to earlier has been born. He is committed to changing his life and living a normal life in the community.
12. I accept those submissions and that summary. It is supported by the Sentence Assessment Report that was put before the Court.
13. His partner still speaks highly of him as a father to their daughter. He notes his commitment to change.
14. Mr Arwit's report provided detailed personal history. It was with respect a little disjointed, but it noted that when released from prison, it is important that Suleski engage in individual psychological sessions. Mr Arwit recommends he engage in cognitive behaviour therapy and that he see a psychiatrist for a review of his ADHD. Any therapy should focus helping him identify and deal with high-risk situations that could cause a relapse of symptoms. He must get help learning to recognise when negative emotions are building up and finding a way to reduce exposure. He will need help in doing so. Particularly problem solving.
15. An offender who had the starting life that Suleski did cannot be regarded as bearing equal moral responsibility for someone who had what might be termed a normal or advantage upbringing. That background has clearly left a mark on Suleski. It doesn't mean he doesn't have any moral responsibility for what he did, but his moral culpability is likely to be, and I find it was, less than the culpability of an offender whose formative years have not been marred in the way set out in the material before me.
16. As with Mr Nehme, his drug use does not and cannot excuse his crimes, but it helps inform this sentencing decision.

COVID

1. Both offenders have spent time in custody during the COVID pandemic and subject to the restrictions imposed in an attempt to prevent the spread of infection. I don't ignore the lived experience of gaol, as I noted when discussed the fact Nehme was assaulted in gaol. These are matters that must be taken into account is increasing the potential for anxiety the longer he spends in custody. Similarly, with the COVID pandemic. Prisoners can't care for themselves. They are subject to numerous lockdowns as Nehme's evidence makes clear.
2. Visits are restricted. Programs are restricted. Serving time in prison prior to the covid pandemic was hard; it got even harder. Something the community have to understand, and the Courts must take into account.

Sentence Structure

1. Both young men are still young and still immature. When I come to structure their sentences, as I have said earlier, there must be some accumulation, but many considerations relevant to the purposes for sentencing overlap.
2. I will make findings of special circumstances. I will take into account the Forms 1.

Parity

1. The sentences for both offenders must be determined having regard to the sentence to be imposed on the other. I must have regard to their respective degrees of culpability; as like must be compared with like. Different personal and criminal histories can justify a difference in the time each will serve in prison and the length of any non-parole period. This principal is known as parity. It is a classic example of the need, so far as possible, to ensure equal justice.
2. The objective cases for both offenders are the same. A submission was made by Mr Skinner that I differentiate between them. For reasons advanced in discussion, I could not accept that submission. While both offenders played slightly different roles, what they did was of equal criminality.
3. However, Nehme has another matter on his record, he is older, he does not have the deprived background of his co-offender. To the contrary, he had full support from his family, and was given every advantage. I do not under value the matters to which I have already referred, matters made him more vulnerable to the use and abuse of illicit drugs. There is also a suggestion in the evidence that drug dealing was a way of life that he was attracted to and it in turn made him susceptible to, as I have found, the duress.
4. On the other hand, Suleski's; background, age, his lack of criminal history, entitle him to a greater degree of leniency.
5. While the evaluation of both offender's histories will ultimately, , lead to the imposition of similar sentences, and the indication of similar sentences, that is because each of them is individual, and each has relevant matters which differ from the others. All must be taken into account.
6. When I adjust the sentence to give effect to my finding of special circumstances, I will allow Suleski a greater proportion of the aggregate sentence on parole. To be blunt, Nehme breached conditional orders in the past and he is older.

Submissions

1. I am in debt to Mr Rollestone for his careful submissions on behalf of the Director, and Mr Lang and Mr Skinner. Each counsel provided written submissions which were very helpful and spoke to them in the context of the matters which went late into the other day.

Synthesis

1. Synthesising all those matters. Although these offences carry life in prison, the amounts involved, and the role of the offenders puts them at the bottom of the range for matters of this type. But that does not mean that their crimes were not significant. They were and what they did requires significant punishment; given the amounts of drugs involved and the number of transactions.
2. A meaningful sentence is required, not just to give proper effect to the guidance offered by the maximum penalty and the standard non-parole period, but to signal to others who might be tempted to involve themselves in such serious of crimes, that they should think again. Despite all the matters put on behalf of each offender, both specific and general deterrence have to be considered.
3. In relation to Suleski. The agreed commencement date to take into account time served was 14 July 2021, but I propose to commence his sentence on 14 May 2021, to give him some direct credit for time spent at Sleep Safe.
4. Nehme's starting date cannot be the date of his arrest. There have to be some independent punishment for the ICO sentence whose conditions he breached. That is primarily because he was as he admits not complying with the Intensive Correction Order. He was breaching it every day. I have to be careful not to double count matters, aggravating sentence. I have taken into account his criminal record as an aggravating feature, but there is a requirement for some independent punishment in addition to whatever benefit he got from the intensive correction. I propose to start his sentence five months after he went into custody on 16 May 2021.
5. As I have indicated earlier, I have taken into account his duress, and that his subjective case was not as strong as that put forward by Suleski. Similarly, I have determined that there is a need for a greater period in custody before becoming eligible for release to parole even though sentences imposed will be the same.

Salim Sam Nehme

1. I indicate the following sentences, which take into account the guilty plea reduction of 25% and my finding of special circumstances: 1. Sequence 14: Taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of 3 years 9 months with a non-parole period of 2 years 5 months. 2. Sequence 15: As it carries a standard non parole period I indicate a sentence of 3 years 9 months with a non-parole period of 2 years 5 months. 3. Sequence 16: As it carries a standard non parole period I indicate a sentence of 3 years 9 months with a non-parole period of 2 years 5 months.
2. There will be some rounding down to the offender's advantage.
3. There will be an aggregate sentence of 5 years and 6 months. The non-parole period is 3 years 3 months to date from 16 May 2021. Nehme will be eligible for consideration for release to parole on 15 August 2024. Whether he is released on that date will be up to the State Parole Authority. The balance of the sentence of 2 years and 3 months will commence on 16 August 2024. The total sentence will expire on 15 November 2026.

Simon Dimitrija Suleski

1. I indicate the following sentences, which take into account the guilty plea reduction of 25% and my finding of special circumstances: 1. Sequence 14: Taking into account the matters on the Form 1, as it carries a standard non‑parole period I indicate a sentence of 3 years 9 months with a non‑parole period of 2 years 5 months 2. Sequence 15: As it carries a standard non‑parole period I indicate a sentence of 3 years 9 months with a non‑parole period of 2 years 5 months. 3. Sequence 16: As it carries a standard non‑parole period I indicate a sentence of 3 years 9 months with a non‑parole period of 2 years 5 months.
2. There will be an aggregate sentence of 5 years and 6 months imprisonment. There will be a non-parole period of 3 years imprisonment commencing on 14 May 2021. Suleski will be eligible for consideration for release to parole on 13 May 2024. The balance of the term of 2 years and 6 months will commence of 14 May 2024 and expire on 13 November 2026.

Forfeiture orders

1. In relation to each offender, there is a motion before the Court seeking forfeiture of the cash, the subject of the matters on each of their Form 1. Those orders are not opposed, and I will sign those orders forfeiting the amounts requested to the state of New South Wales.
2. Pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989, I order that: 1. the respondent Salim Sam Nehme pay to the State of New South Wales a drug proceeds order in the sum of $5,775. 2. the respondent Simon Dimitrija Suleski pay to the State of New South Wales a drug proceeds order in the sum of $4,875.

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: 21 February 2023