R v Nikro [2015] ACTSC 231

SCC 375 of 2011; SCC 146 of 2014; SCC 291 of 2014

1. Abdul Karim Nikro, on 11 September 2013, you were arraigned on an indictment dated 10 September 2013 containing two counts. The first count alleged that, between 18 January 2011 and 18 March 2011, you cultivated a commercial quantity of a controlled plant, namely cannabis, with the intention of selling any of the plants or their products, or believing that someone else intended to sell any of the plants or their products. This count was originally on Supreme Court file SCC 375 of 2011. The second count alleged that, between 14 August 2011 and 9 August 2011, you cultivated a trafficable quantity of a controlled plant, namely cannabis, with the intention of selling any of the plants or their products, or believing that someone else intended to sell any of the plants or their products. This count was originally on Supreme Court file SCC 146 of 2012.

2. You elected for trial by judge alone with respect to these two counts. The trial commenced before me on 11 September 2013 and continued on 12 September 2013. It was then adjourned to 16 September 2013 for further hearing. The matter was then listed for two days commencing on 2 April 2014. On 3 April 2014, count one was amended to allege that, between 18 January 2011 and 18 March 2011, you aided and abetted the cultivation of a commercial quantity of a controlled plant, namely cannabis, with the intention of selling any of the plants or their products. You entered a plea of guilty to that count. You maintained your plea of not guilty to the second count. The trial continued with the hearing of submissions on 8 May 2014. On 25 September 2014, I found you guilty of the second count, and published my reasons.

3. On 7 April 2015, you entered a plea of guilty to one count on an indictment of the same date alleging that, between 11 April 2014 and 23 May 2014, you trafficked in a controlled drug other than cannabis, namely cocaine. This charge is on Supreme Court file SCC 291 of 2014. You had been committed for trial to this Court with respect to this matter on 11 December 2014.

4. The charges on the indictment of 10 September 2013 related to two separate cultivations of cannabis in residential premises in the ACT. These are commonly referred to as grow houses. For convenience, I will refer to the cultivation involved in the first count as the O'Connor crop, and that in the second count as the Macgregor crop. A total of 105 cannabis plants were under cultivation in the O'Connor crop, being a commercial quantity. A commercial quantity is 100 plants. The offence to which you entered a plea of guilty carries a maximum penalty of 25 years' imprisonment, 2500 penalty units or both. The Macgregor crop involved 99 plants under cultivation, being the upper end of a trafficable quantity. A trafficable quantity is 10 plants. The maximum penalty for this offence, which was found proved after trial, is 10 years' imprisonment, 1000 penalty units or both.

5. Finally, the charge of trafficking in cocaine to which you entered a plea of guilty on 7 April this year carries a maximum penalty of 10 years' imprisonment, a fine of $150,000 or both.

6. On 19 January 2011, police installed an optical surveillance device directed to the front of the premises, including the driveway at 36 Waratah Street, O'Connor. It recorded visits by you to those premises on 19 January 2011, 23 January 2011, 12 March 2011, 15 March 2011, 16 March 2011, and 18 March 2011. On those occasions, you arrived in a silver Toyota HiLux, which you were driving. Your co-offender, Matthew Maybery, was recorded attending the premises on 22 January 2011, 23 January 2011, 25 January 2011, 30 January 2011, 2 March 2011, 9 March 2011, 12 March 2011 and 17 March 2011. On 12 March 2011, you and your co-offender carried a television inside the house.

7. On 17 March 2011, police executed a search warrant at the premises in O'Connor. At that time, your co-offender was located on the premises. A search of the premises revealed that the power connection to the premises had been interfered with so as to bypass the meter box. Police found cannabis plants being grown hydroponically in the 3 bedrooms of the main residence. There were dark coverings on all windows except for the front lounge room. In the front lounge room, there was a television, couch and a dining room table. The blinds on the lounge room windows were open. I am satisfied that this furniture was placed in the lounge room, and the blinds were kept open, so as to make it look as if the premises were being lived in. Police also found cannabis plants being grown hydroponically in two bedrooms in a granny flat and in a large metal shed, both at the rear of the premises. A total of 105 cannabis plants were found. In addition to the plants, police located hydroponic equipment including plastic pots, irrigation equipment, lamps, air extraction filters, power transformers, electrical leads and digital thermometers. They also located potting mix, plant nutrients and other items which appeared to have been used in the cultivation activities. A pair of pink latex gloves was found in a rubbish bin outside the premises, from which a partial DNA profile was obtained providing extremely strong support for the proposition that you were the source of the DNA. Your fingerprints were also found on a cardboard box found in the hallway of the premises.

8. This was clearly a sophisticated cultivation, and one in which you were intimately involved. On 4 June 2015, you gave evidence that there were four people involved in the cultivation and that you helped by setting up a hydroponic system and maintaining it occasionally. You said that you did not put any money into the crop, and you expected to receive about 10 percent of the profits.

9. On 15 July 2011, you were observed by police at a house in Macfarlane Burnet Avenue, Macgregor, again in a Silver Toyota Hilux. On 8 August 2011, police executed a search warrant on this house, which is a four-bedroom single level house with a double garage attached on the southern side. An examination of the meter box revealed that the electrical wiring leading into the house via the garage had been tampered with. In the garage, police located a white melamine workbench attached to the wall at the rear of the garage and situated on a purpose-built timber base. When the workbench was removed, a hole in the western wall of the garage was revealed. A timber door had been fitted to the hole which had a single key lock on the external side. Police forced open the timber door, revealing a void with a ladder allowing access to an underground basement. The room under the garage was approximately 12 metres by 12 metres in size, and was separated into two sections with a gyprock partition wall from the north side of the room. For the purposes of their examination, police designated the eastern section of the basement as room 1 and the western section was designated as room 2.

10. On the western wall of room 1, there was a fuse box without a front cover. There were 12 circuit breakers within this fuse box, all shown to be in the "on" position. Electrical conduit extended from this fuse box up into the ceiling cavity and through a hole in the gyprock partition wall into room 2. There were a number of air extraction filters extending from the roof cavity in the various areas within the room. Room 1 contained 48 plastic pots containing small cannabis plants laid out in 7 parallel rows across the floor. Each of the pots was placed within a larger plastic pot which was connected to a hydroponic irrigation system fed from three plastic water tanks on the western side of the room against the petition wall separating rooms 1 and 2. There were 30 heat lamp canopies suspended from the ceiling and positioned above the plants within the room. Each of the lamps was connected to a power transformer. Room 1 also contained 2 thermometers, 8 electric fans affixed to the wall, empty black plastic pots, black plastic bin bags containing green vegetable matter and a quantity of other material which appeared to have been used in the cultivation activities.

11. Room 2 had a similar layout to room 1 and contained 49 plastic pots containing small cannabis plants laid out in 7 parallel rows across before. Each of the pots was placed within a larger plastic pot, which was connected to a hydroponic irrigation system fed from three plastic water tanks on the eastern side of the room against the partition wall separating rooms at 1 and 2. There were 30 heat lamp canopies suspended from the ceiling and positioned above the plants within the room. Each of the lamps was connected to a power transformer. Room 2 also contained a thermometer, seven wall mounted electric fans and two pedestal electric fans, empty black plastic pots and bags of fertiliser.

12. In the garage of the house, adjacent to the workbench, police located a cigarette butt, from which DNA was extracted. A subsequent comparison between the DNA found on the cigarette butt and your DNA revealed that the DNA from the cigarette butt was at least 646 billion times more likely to have originated from you than to have originated from another unknown, unrelated individual selected at random from the Australian Caucasian subpopulation. I was satisfied that this was your DNA. Inside the house, police located another cigarette butt in the sink in the kitchen, from which DNA was also extracted. Comparison between the DNA found on the cigarette butt in the kitchen sink and your DNA revealed that the DNA from the cigarette butt was at least 1 billion times more likely to have originated from you than to have originated from another unknown, unrelated individual selected at random from the Australian Caucasian subpopulation. I was satisfied that the DNA extracted from the cigarette butt was your DNA. In addition, on 6 August 2011, you were arrested by New South Wales police fleeing a grow house in Jerrabomberra, New South Wales. At that time, you were found to be in possession of a number of keys. It was later ascertained that one of the keys found in your possession on 6 August 2011 operated the lock on the hidden timber door in the garage at Macgregor. Scientific analysis of the lock and the key satisfied me that the key found in your possession on 6 August 2011 had been used in the lock on the door leading to the underground room where the cannabis was cultivated at the Macgregor premises.

13. This was a particularly sophisticated operation. Considerable care had been taken to ensure that the cannabis crop would remain hidden. You gave evidence that four people were involved in the Macgregor crop, being different people to those involved in the O'Connor crop. You said that you did not put any money into the Macgregor crop, but you expected to be paid 25 percent of the profits. You said that you expected to receive a higher proportion of the profits for the Macgregor crop than you did for the O'Connor crop because you did more work on the Macgregor crop.

14. Between 11 April 2014 and 23 May 2014, you were under police surveillance and you were observed selling cocaine to various people, including undercover police officers. On 11 April 2014, an undercover police officer communicated with you by text message and arranged to meet you on Cocoparra Crescent, Crace in the Australian Capital Territory. At about 12.49 pm that day AFP surveillance commenced observations of you, and at about 1.34 pm saw you meet with the undercover police officer as arranged. You supplied the undercover police officer with a bag of white powder, and the officer handed you an envelope containing $8,000.00 cash. The undercover police officer also agreed to meet with you at a later date and pay the outstanding sum of $16,000.00. Forensic analysis determined that the white power purchased from you on 11 April 2014 contained cocaine and weighed 82.3 grams. An exchange of telephone calls and text messages on 16 April 2014, 22 April 2014 and 23 April 2014 from you eventuated in you meeting the undercover police officer at about 1.48 pm on 23 April 2014. The undercover police officer handed you an envelope containing $16,000.00 for part payment of the cocaine provided to that officer by you on 11 April 2014.

15. As a result of further communications between you and the undercover police officer on 1 May 2014 and 2 May 2014, the undercover officer met you again at about 2.12 pm on 2 May 2014 at Cocoparra Crescent. The undercover officer then had a conversation with you about purchasing 2 ounces of cocaine. You advised the undercover officer to wait at that location and you drove away. At about 2.19 pm, you returned, approached the undercover officer's vehicle and handed him a clear plastic bag containing white power, indicating to him that it contained 6 ounces of cocaine. The undercover officer then handed you an envelope containing $15,400.00 as part payment before leaving the location. Later forensic analysis determined the substance purchased from you on 2 May 2014 weighed approximately 166.6 grams and confirmed that the substance contained cocaine. At about 2.45 pm on 16 May 2014, you met with the undercover officer on Cocoparra Crescent as arranged and you were given $7,700.00 cash in part payment for the cocaine you provided on 2 May 2014.

16. On Thursday 22 May 2014, police obtained a number of search warrants, including warrants to search your then residential premises in Bunda Street in the City, premises owned by you at 14 Cocoparra Crescent, Crace, premises occupied by your girlfriend in Lyneham and your Toyota Hilux bearing ACT registration YFG20J.

17. On 23 May 2014, police observed you attending numerous locations in the suburb of Crace, both on foot and driving your Toyota HiLux Utility bearing ACT registration YFG20J. At about 1.40 pm that day, police saw you enter another vehicle that was stationary on the street adjacent to 14 Cocoparra Crescent. A short time later, police saw an exchange occur between you and the male driver of the vehicle. You handed a McDonald's bag containing a clear freezer bag of a white coloured powder substance to the male and in return the male gave you a yellow plastic JB Hi-Fi bag containing $50,000.00 in Australian currency. At about 2.18 pm, police arrested you and located $50,000.00 in Australian currency on your person and 278.47 grams of white power, confirmed to contain cocaine, in the vehicle driven by the male. Police then executed the search warrants and located $21,140.00 in Australian currency, a blackberry mobile phone and approximately 6.66 grams of white rock powder suspected of being cocaine in your vehicle. In addition police searched the Bunda Street premises and located $20,642.00 in Australian currency. During the search of 14 Cocoparra Crescent, Crace, police located approximately 240.2 grams of white powder confirmed to contain cocaine, a set of scales confirmed to contain residue of cocaine, and approximately 150 grams of crystalline substance suspected to have been used as a cutting agent. At your girlfriend's premises in Lyneham, police located $138,600.00 in Australian currency. Of that sum, police identified 230 marked notes provided to you by the undercover officer, to the value of $11,900.00.

18. You have a short but not insignificant criminal history. [redacted for legal reasons]. In 2008, you were convicted and sentenced to 12 months' imprisonment, which was fully suspended, for an offence of cultivating a trafficable quantity of cannabis for sale.

19. You are currently 29 years old and [redacted for legal reasons].

20. You lived in Lebanon up to the age of 15 years, before relocating to Canberra where you lived with a relative and commenced employment. You reported that you were living independently by the age of 16 years. Before leaving Lebanon, you secured your year 10 certificate, and you later completed a certificate in building construction by the age of 24. You worked as a renderer from 17 to 25 years of age, before forming a partnership with an associate to build homes. This business venture apparently collapsed when you were remanded in custody.

21. You told the author of the Pre Sentence Report that you commenced consuming alcohol at 17 years of age, and that you would consume up to 16 standard drinks every two to six months. For approximately one year from the age of 19, you used two to three ecstasy pills every weekend. From the age of 19 to 21 years, you claimed that you smoked up to 28 grams of cannabis each week. You commenced using cocaine when you were 21 and continued until you were 24, when you claim you stopped using illicit substances and abstained from drug use until 2009. You claimed that the stress from your employment was the reason you recommenced cocaine use at 26 years of age. You said that, prior to your incarceration, you were using up to 5 grams of cocaine per day, costing $1,500.00. You said that you funded this habit by selling drugs.

22. Upon your admission to the Alexander Maconochie Centre (AMC) on 24 May 2014, you were subject to drug screening which indicated cocaine use. In May this year, you graduated from the four-month Solaris Therapeutic Community Program at the AMC. Reports indicate you engaged well in this program, and you are an active participant in each aspect of the program.

24. I also note that you have undertaken employment in the AMC and that your participation is highly regarded.

25. The author of the Pre Sentence Report noted that you agreed with the Statement of Facts in relation to the offence of trafficking in cocaine, but you attempted to justify your offending behaviour by stating that it was fuelled by your addiction to illicit substances. You did acknowledge that your actions had compromised your own safety and that of other members of the community, and admitted that you had not taken this into consideration while committing these offences. You were assessed as at a medium to high risk of reoffending due to your history of illicit substance use and limited extended family support. The author of the Report considered that your risk of reoffending may be reduced through further engagement and interventions to address your illicit substance use and criminal attitudes and [redacted for legal reasons].

26. A report from a psychologist, Dr Michael Barry, was tendered on your behalf. Based upon psychometric testing, and impressions gained in interview, he considered that you suffered from post-traumatic stress disorder, major depressive disorder and substance use disorder. He considered that your use of drugs impaired your judgment and made it difficult for you to see the consequences of your actions. [Redacted for legal reasons]. Dr Barry said that since you have ceased using drugs after being remanded in custody you are now better able to cope, and you are calmer and able to think through the consequences of your actions. He considered that your motivation for offending was your need to support your drug dependency, however, your mental health issues and [redacted for legal reasons] and gain a sense of belonging, contributed to your need to use drugs. He considered that your overall level of risk of recidivism was low to moderate if your risk factors were addressed, which would require you to continue engaging with mental health and drug treatment services following your eventual release from custody.

27. Your mother gave evidence at the sentence hearing. She returned to Australia from Lebanon after you were remanded in custody to provide you with emotional support. She visits you regularly. [Redacted for legal reasons]. She was not aware that you were taking drugs, but she has noticed a change in you since you have been in custody. You are now willing to talk to her about problems. You have told her that you will never touch drugs again. I accept that your mother is a positive influence in your life, and that she will continue to provide support to you.

28. Your partner also gave evidence at the sentence hearing. She has known you for about six years. Before you were remanded in custody, your relationship was stormy and emotional because of your drug abuse. Your partner was not happy with you using cocaine, which caused arguments in the relationship. She described incidents in which you used cocaine continuously over a period of approximately 11 hours. She was not aware that you were selling cocaine, or that you were involved in the cultivation of cannabis. She has noticed changes in you since you commenced counselling. You now express your feelings and have been taught coping mechanisms to deal with stress. She testified that you have plans to continue your relationship, to marry and to have children. She has confidence in your ability to rehabilitate yourself from drug use.

29. You also gave evidence at the sentence hearing. You said that of the $138,600.00 found at your partner's house, about $80,000.00 was owed to a drug supplier. You testified that you purchased cocaine an ounce at a time from a supplier. You paid $7,500.00 per ounce and sold it for $8,000.00. You said that you were using on average 5 grams per day, and that you paid for it through your work as a plasterer. You have also constructed seven houses over about one and a half years, making a minimum of $30,000.00 profit per house. You initially attempted to minimise the extent of the financial return you anticipated making from your drug dealing. I found it difficult to believe that you did not anticipate a significant financial return from your involvement in the cultivation offences and trafficking in cocaine. You did ultimately accept that you were making a large profit, or anticipated making a large profit, from these ventures. Your acceptance of this proposition enhanced your credibility in these proceedings, and I accept it as a sign of true remorse. Because of your honesty regarding the profits you made or anticipated making, I accept your evidence that you intend to address your drug addiction while you are in custody and that you are willing to continue treatment or counselling after you are released. This reduces, but does not entirely eliminate, the requirement for personal deterrence in sentencing you.

30. There is no evidence that you provided any financial backing to the cultivations at O'Connor or Macgregor. I am satisfied, nevertheless, that you were a significant participant in those cultivations. Your role was sufficiently important to justify a share of the profits. You were not simply a labourer working for a fixed sum or at an hourly rate. You anticipated participating in the profits of these crops. These were sophisticated and costly ventures. It is quite clear that you and your co-offender anticipated that the profits would be large. Your culpability with respect to these offences is high.

31. It is also very clear that you made significant profits from trafficking in cocaine. I accept that you were addicted to cocaine at the time of these offences and that a proportion of the profits that you made or anticipated making through these offences was to be used in supplying your own needs, but I cannot accept that all of the profits or anticipated profits were used, or were to be used, to satisfy your own need for cocaine. As you well knew, cocaine is an addictive substance and your actions were calculated to release large amounts of that drug into the community, with inevitable concomitant damage to individuals and society. You were also on conditional liberty at the time you committed this offence. Your culpability with respect to the offence of trafficking in cocaine is also high. I do, however, take into account that this offence occurred over a relatively short period.

32. The fact that you were drug addicted at the time of these offences, and that you committed these offences in order to support your drug habit, does not significantly mitigate your offending. I accept that your willingness to participate in counselling and treatment to address your drug abuse, and psychological and emotional circumstances which may underline your drug abuse, is particularly relevant in determining the extent to which you need to be deterred from committing further offences, and also your prospects for rehabilitation. I also accept the fact that you are in a stable relationship, and that you have ongoing family support, at least from your mother, which are also positive factors enhancing your prospects for rehabilitation. I consider that you have reasonable prospects for rehabilitation so long as you continue to accept appropriate counselling and treatment.

33. I take into account your plea of guilty with respect to the charge of aiding and abetting the cultivation of cannabis at O'Connor. That plea came part way through the trial, but it was a plea to an amended charge. I will reduce by 15 percent the sentence that I would otherwise have imposed in order to reflect your plea of guilty. This is the same reduction that was given to your co-offender, Mr Mayberry.

34. You maintained your plea of not guilty with respect to the Macgregor cultivation, as was your right. You are not, however, entitled to any leniency by reason of a plea of guilty in the matter.

35. I take into account your plea of guilty to the charge of trafficking cocaine, although it was not a plea entered at the earliest opportunity. You were committed for trial with respect to three charges of trafficking cocaine on 11 December 2014. Those three charges were rolled into a single charge in this Court, to which you entered a plea of guilty on 7 April 2015. I accept that your plea of guilty revealed a degree of remorse, and also had a significant utilitarian value. Your evidence at the sentence hearing persuaded me that you feel remorse for all of the offences now before this Court. The evidence against you with respect to the charge of trafficking in cocaine was particularly strong, but I will nevertheless reduce the otherwise appropriate sentence by 20 percent to reflect your plea of guilty.

36. The offences for which I must sentence you are nevertheless very serious. In sentencing for offences of cultivation of large quantities of cannabis and for trafficking in cocaine, general deterrence, punishment and denunciation must be paramount sentencing considerations. You made the decision to become involved in these crimes as a mature adult. In my opinion, nothing less than immediate terms of imprisonment are appropriate for these offences.

37. I see little reason to distinguish between yourself and your co-offender, Mr Mayberry, with respect to the O'Connor cultivation. A sentence of 15 months' imprisonment is appropriate with respect to that matter.

38. With respect to the Macgregor cultivation, the maximum penalty is lower than for the offence involving the O'Connor cultivation, but there is little difference in terms of the number of plants cultivated. A sentence of 15 months' imprisonment is appropriate with respect to this offence.

39. In my opinion, a sentence of four years' imprisonment is appropriate with respect to the charge of trafficking in cocaine, but I will reduce this to three years' and three months' to reflect your plea of guilty.

40. I note that you have spent 328 days in custody as at 16 April 2015 attributable to these offences. As such, the sentences which I impose should commence on 23 May 2014.

41. On the charge of cultivation of a commercial quantity of cannabis, I record a conviction and you are sentenced to 15 months' imprisonment commencing on 23 May 2014 and expiring on 22 August 2015.

42. On the charge of cultivation of a trafficable quantity of cannabis, I record a conviction and you are sentenced to 15 months' imprisonment commencing on 23 January 2015 and expiring on 22 April 2016.

43. On the charge of trafficking in cocaine, I record a conviction and you are sentenced to 3 years' and 3 months' imprisonment commencing on 23 November 2015 and expiring on 22 February 2019.

44. The aggregate sentence that I have imposed is therefore one of four years' and nine months' imprisonment commencing on 23 May 2014 and expiring on 22 February 2019. I set a non-parole period of two years' and six months' commencing on 23 May 2014 and expiring on 22 November 2016.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.