R v Odisho

Facts

1. The offender was born in December 1994. At the time of the offences to which I shall now refer, he was 24 years old. He was living at an apartment in East Street, Five Dock. He lived there with a flatmate, John Odisho. While the two men share the same surname, they were not closely related. They were however close friends and had been for some 10 years. They were of the same age and had grown up together, playing soccer together. The apartment had been rented by John Odisho in January 2009, for a period of six months. John Odisho had the master bedroom and the offender had the second bedroom. Access to the apartment block was by way of the use of a swipe card which permitted entry to the apartment block, the underground car park, to the lift and to the communal terrace where there were BBQ facilities.
2. On the evening of 1 April 2019 the offender and John were at home. At about 9.45pm John's girlfriend, Larissa, arrived at the apartment to spend the evening. Larissa had met the offender previously through her relationship with John. She knew him to be a recreational drug user and a person who was prone to partying. She had seen him ingest cocaine through the nose. The offender was seen by Larissa snorting cocaine on this evening. Around midnight he left the apartment and went to the Five Dock Hotel where he spent some two and a half hours. He was observed on closed-circuit television at the hotel to be playing poker machines. He did not meet up with anybody.
3. Whilst the offender was at the hotel John and Larissa retired to bed at around 2am. The offender left the hotel and returned home at around 2.45. At 3.40am, on 2 April 2019, there was what could be described as a "home invasion". Two men entered the apartment. There was an altercation and during that altercation the entrance to John's bedroom was forced open. John was then shot in the head and the offender was shot in his left arm. The two intruders left the unit by climbing over the balcony. John died from his gunshot wound. Two persons have been charged with his murder. They are yet to stand trial.
4. Immediately after the shooting the offender took a Country Road brand bag upstairs and tried to hide it under the hood of the BBQ in the communal rooftop area. At that time the offender was bleeding from his injuries, leaving blood on the bag and on the handle of the BBQ and on the wall and floor of the rooftop communal area. He used the lift to get to the rooftop, and his use of the lift was logged electronically as each swipe card was issued to a unit and the unit's number was recognised by an electronic recording device.
5. Having disposed of the bag the offender returned to try to assist Larissa in giving assistance to John. Larissa phoned 000 following the shooting and stayed on the phone for some 11 minutes, seeking directions from the 000 operator. The evidence suggests that John died during this period of time as the offender was cradling his friend's head in his lap. John could not be revived at the scene and was later pronounced dead and his body was taken to hospital.
6. The offender was also taken to hospital for treatment of his gunshot injuries. I have been told from the Bar table that he spent some three days in hospital. The nearest hospital to Five Dock appears to me to be the Royal Prince Alfred Hospital and it is likely that he was admitted to that hospital for treatment.
7. The Country Road bag was found and seized by the police. It was found to contain the following: 1. a vacuum-sealed plastic bag containing six packages containing 173.7 grams of the drug known as ecstasy with a purity of 76%; 2. a sealed plastic bag containing a compressed block of cocaine weighing 507.3 grams with a purity of 13.5%; 3. 8 knotted plastic bags containing a total of 218.9 grams of cocaine; 4. 2 plastic bags containing a total of 41.4 grams of cocaine; 5. a Sistema plastic container containing 12 plastic packages of cocaine with a total weight of 447.7 grams and a purity of 86.4%; 6. a block of compressed cocaine weighing 729.8 grams with a purity of 75.5%; 7. a knotted plastic package containing a compressed block of 28.9 grams of cocaine with a purity of 28.9%; 8. 3 plastic bags containing a total of 15.13 grams of cocaine in compressed form; 9. 4 envelopes containing a total of $16,500 cash; 3 of the envelopes each contained $5,000 in cash and the fourth envelope contained $1,500 in cash; 10. a .38 Smith & Wesson Special calibre six chamber revolver Model 64 with its serial number obliterated, and containing six cartridges in the chambers, those cartridges having been fired; 11. a .22 Hammerli model X-ESSE self-loading pistol.
8. Both firearms were later analysed and were classified as pistols - as pistols are defined in s 4(1) of the Firearms Act 1996.
9. In addition the police found certain matter in the offender's bedroom. In it they found these items: 1. a 12 gauge shotgun Akkar Churchill TS 870 with a double barrel; 2. a mechanical press, no doubt for compressing the cocaine; 3. a plastic bag containing 3.09 grams with a drug commonly known as ecstasy; 4. a plastic bag containing 0.52 grams of cocaine; 5. a metal cylinder containing 14.01 grams of cocaine; 6. 2 rolls of plastic heat-sealable bags.
10. In the communal kitchen and lounge area the police found further items. These would be in law deemed to be in the possession of this offender and the late John Odisho: 1. a laser-style anti-personnel conducted energy device with two cartridges. Its manufacturer could not be determined; 2. a vacuum-sealed package containing 28.55 grams of the drug commonly known as ecstasy; 3. a plastic bag containing 99.8 grams of cocaine; 4. another Sistema plastic lunchbox containing 0.49 grams of cocaine; 5. a compressed rock of 1.50 grams of cocaine; 6. a plastic package containing 1.96 grams of cocaine; 7. a plastic package containing 0.49 grams of cocaine; 8. a silver-coloured electronic scales with white residue, most probably used for the weighing of cocaine.
11. It is agreed that the total amount of cocaine recovered from the premises was 2.1519 kilograms. It is agreed that the total amount of "3,4 MDMA" was 205.34 grams. It is also agreed that the offender did not hold any relevant licence or permit authorising him to possess any of the firearms or weapons.
12. The agreed facts tell me where the offender's fingerprints and DNA were found. Suffice it to say that his fingerprints and DNA were found on the Country Road bag and on certain of its contents and in the blood which was found on the BBQ and on the wall and floor of the rooftop BBQ area. The offender's DNA was also found on the trigger of the Smith & Wesson revolver and on a swab taken from the cartridge cases in the Smith & Wesson and from part of the slide and trigger of the Hammerli X ESSE self-loading pistol and on one of the Taser cartridges. That does not indicate the offender had used them, merely that they had been touched or handled by him.
13. A later analysis of the offender's mobile phone revealed messages consistent with his being the supplier involved with supply of prohibited drugs in the months prior to the offence, but that could be described as "street supply" not supplies of any large quantity. Supplies were only of one gram quantities. The messages also are consistent with the offender being himself a user of the prohibited drugs, cocaine and ecstasy. The agreed facts tell me that conservatively the value of the cocaine found in possession of the offender would be in excess of $300,000.
14. There is more to be said about how the offender found himself in possession of such large quantities of drugs and of those firearms and weapons, but it is convenient to commence discussing the offender's background because that background explains other relevant facts that weigh upon the offender's criminal culpability for the offences which he committed.

Personal circumstances

1. The offender is a Christian Assyrian. He was born in Iraq. His father comes from Baghdad and his mother was born in Kirkut. The offender has an older brother, Yousif. His parents fled Iraq in 1995 during the first Gulf War. The offender was 10 months old when his family fled to Jordan. They lived in Jordan for some 10 years as refugees. Whilst the family was living in Jordan a younger brother was born. The offender and his family were subjected to religious discrimination both in Iraq and, in particular, in Jordan. The offender spent, in essence, the first 10 years of his life in Jordan where he was the subject of sustained bullying both at school and out of school.
2. The offender's family were accepted as migrants for Australia on compassionate grounds. They were sponsored to come to Australia by the offender's paternal uncle. The family came to Australia in 2006. They lived with his uncle in Bossley Park for about 12 months and then moved to live in Fairfield. After the offences now in question the offender returned to live with his parents at Edensor Park, but for the period between January 2019 and the murder of John Odisho on 2 April 2019 the offender had always lived with his family.
3. When he arrived in Australia the offender could not speak English. He attended St Hurmizd, an Assyrian primary school in Greenfield Park, where he learnt to speak English as a second language and then completed primary schooling. He then attended St Narsai Christian College at Horsley Park.
4. In addition to being discriminated against in Iraq and Jordan because of his religion the offender was also discriminated against and bullied because he has a pronounced lisp; one infers that the lisp interfered with his ability to speak both Arabic and English. During his school years he often was in trouble with the school authorities for fighting back against those who were bullying him.
5. The offender started working about the age of 16 or 17, working on weekends or after school hours. He completed the Higher School Certificate. He then obtained an apprenticeship in fencing but he did not like that work and left it. Eventually he found work installing aluminium window frames and doors and eventually starting working for his elder brother, Yousif, who was a subcontractor to the window installation company for which the offender had worked when he first turned to that employment. The offender lost his employment with his brother when he became unreliable because of his drug and alcohol use.
6. The offender started using cannabis when he was 16 years old. That is not uncommon amongst teenagers in our society. However, he started using cannabis regularly, which generally does not occur. He continued smoking cannabis until the early months of 2019. He commenced using cocaine around 2015, initially occasionally, but then two to three times per week by 2016. He had starting using cocaine regularly, that is daily, from 2017. He continued using cocaine throughout 2018 and into 2019. He was still using cocaine and cannabis up until the time of the murder of his friend, John Odisho.
7. In 2016 the offender commenced suffering from panic attacks which probably resulted from his ingestion of illicit drugs. He also started to suffer from anxiety. He started treating himself with Xanax, which is also known as Alprazolam. He would take two or three Xanax pills per day to attempt to alleviate his symptoms of anxiety and to help him sleep.
8. In addition the offender was using ecstasy, four or five tablets over a weekend, and had been for some considerable time. The offender then began to gamble and he has usually gambled on poker machines. Eventually his habit led to his losing between $500 and $800 per day on poker machines. He also turned to drinking alcohol. One history tells me that he was drinking one bottle of tequila every day.
9. The offender's drug taking, alcohol drinking and gambling led to his losing his job with his brother. He then borrowed money from his brother. When his brother found out what was happening with the monies that he had lent to his brother, he stopped lending his brother any money. The offender then ran up a large debt owed to his drug dealer.
10. A very significant exhibit in this case is the five and a half page handwritten statement made by the offender to me in which the offender has been extremely frank, forthright and, I infer, honest. To use the vernacular the offender "spilled his guts" to me, admitting his guilt and the circumstances which led to his offending. It is worthwhile considering large amounts of this letter, and I shall quote it: "Since my arrest I have had a lot of time to think and reflect, which has helped me gain an insight into my life prior to my arrest. I feel that my life could be best described as self-destructive and full of irrational behaviour caused by a lack of judgment due to chronic daily cocaine addiction. Although I don't want to be seen as an excuse, I feel it is relevant to provide an insight into the events and my life leading up to my arrest. I was using cocaine every single day for between three-four years. Accompanied by daily alcohol consumption. This daily use substance completely fogged my mind and changed me as a person. My drug abuse became a normal way of living to a point in which if I didn't use cocaine I felt like there was something wrong with me. I was a good worker and never missed a day off work until I started using drugs. A few months into my drug taking I started taking days off work which ultimately led to me being fired. At this point my life had started to spiral out of control. I started spending all my hard earned money on cocaine which further led me to gambling. Once I squandered all of my money I then turned to my brother who lent me money on several occasions. Eventually my brother stopped lending me money once he learned where and how it was being spent. I raised my lack of money issue with the person I had been purchasing my cocaine from and he offered me a potential solution. I could be paid what I thought of at the time a generous sum of $1,000 per week if I was to store his drugs in the apartment. I thought this was a great idea considering my financial position. So I gave it no thought and accepted right away. I started to steal some of the cocaine I was storing to support my habit, which further led me to start stealing grams to sell and help pay for the cocaine I was taking. Instead of using the money to replace the cocaine I was taking I used the money to gamble. At this stage I owed two other people money. One of which was the first dealer I was purchasing off and he stopped giving me drugs when I had accumulated a large sum of debt. Me not being able to pay my debt led to me being hit and three weeks later I was pistol whipped because I didn't have any money to pay. I was told if I didn't come up with a down payment or any money then I would be shot. The decision to store drugs ultimately led to me also storing guns after I told the person I was storing drugs for about me being pistol whipped and threatened to get shot by my old dealer. That's when he offered me guns to store for him because he didn't want to store it at his house. At the time I was extremely paranoid and stopped sleeping so I thought it was a wise idea to store the guns and feel safe".
11. The letter goes on to point out that the offender was paying $350 per week in rent. The rest of the $1,000 was spent on poker machines and he was stealing drugs from the person who owned them in order to get money to try and pay for his drug addiction. He points out in his letter that he did not have anything that might indicate that he was making money. He was driving a Toyota Camry motor vehicle. He did not have any expensive watches or gold jewellery, and he had no financial assets or any other form of property.
12. A little later on his letter the offender said this: "Living in prison has shown me firsthand the damage and impact drugs has on families and the wider community. I have been exposed to large numbers of mentally ill inmates which have been induced [by] years of drug taking. I have also been exposed to tears and broken hearts of family members in visiting rooms, seeing this firsthand I was overwhelmed with remorse for my offending. It hurts my heart and I feel so ashamed for my past actions and how they affected people in this way. I realise now that drug dealing is not a victimless crime." The letter goes on to say more which indicates even more significantly the extent of the offender's remorse for his crimes and his insight into his offending.

Seriousness of the offences

1. How the offender came to be in possession of large quantities of prohibited drugs, such that he has been charged with the deemed supply of the drugs, indicates that the crimes which he has committed do not have the significance which they might otherwise indicate. The possession of firearms and weapons is common amongst those that deal with large amounts of drugs but here the offender was only a warehouse man for both drugs and the weapons. The offender's culpability is thus attenuated. Each of the offences to which he has pleaded guilty is below the midrange of objective seriousness and, indeed, well below the midrange of objective seriousness.
2. The offender is still supported by his family and by his girlfriend. The offender's brother, Yousif, has written on behalf of himself and his parents who are not fluent in the English language. Mr Yousif Odisho said this: "Your Honour, I want you to have a view of what kind of person my brother was before he lost himself. He has such a good impact on people. Always been the person to go to when you feel down because he would change that instantly. I have never seen him hurt anybody verbally nor physically. He is a big soccer fan. He played for countless number of years for our local Assyrian sports club. He was a very talented soccer player. His personality made him everyone's favourite. He played beside our cousin John for a long time. Has always been a hard worker, with me and when he worked for other companies. Seeing him for the first time in the visitation room [at gaol] was definitely one of the hardest moments of my life. In saying that when I saw him and he had been off drugs and alcohol for a couple of weeks, it actually made me smile because I knew I got my brother back, he looked healthy and most importantly he looked normal. Not a single visitation has gone by for the last year and our mother hasn't cried when seeing him, simply because she knows that he made a big mistake and that it was not him. He is a good person with a very good heart".
3. What Yousif Odisho said about the offender's involvement in soccer is corroborated by Mr Sanah Nissan who coached him when he was a teenager and who has been an active member of the Fairfield Bulls Soccer Club, being at one stage its president and at another stage its secretary, being a committee member as well as being a coach.
4. The offender's girlfriend is Ms Carmelina Fondez. Like Mr Yousif Odisho, she is present in Court, as is the offender's mother. Unfortunately for them the offender is not, he appears by way of audio visual link from the Metropolitan Remand Centre. Ms Fondez commenced her relationship with the offender by way of friendship in 2010. They started dating each other in 2018. In her letter she said this: "The day he got arrested I thought to myself that Sargon has to change and grow and to be honest, it only took about two weeks of him being in gaol to realise. I was surprised of how quick but just proud when Sargon admitted to me all his bad habits and his deep regret. He told me how sorry he was for what he has done and what he had caused to the community. He said he realised how bad drugs were to the community when he saw people in gaol for their own drug addictions. I can tell you he is really sorry for what he did. He understood what he had done to the people around him and himself. He understands that the decisions have lead him to where he is today and he never wants to do that again. He blames no-one but himself". Ms Fondez is a fulltime community nurse for the elderly. She is Australian-born, of Chilean parents. Ms Fondez has said that she believes the offender is a good man and she is committed to staying as his girlfriend, although they cannot pursue their common relationship whilst he is incarcerated. She is a brave lady because the offender's incarceration could be quite long bearing in mind the maximum penalties for the offences that he has committed. However, it is clear that the offender has her support which augurs well for rehabilitation. The offender also has the support of his family and his brother will provide him with employment on his release from prison.

Rehabilitation (1)

1. The sentencing assessment report says that the offender has a medium to low risk of reoffending. Were I to make an order for the supervision of the offender in the community, Community Corrections would suspend that supervision because they do not believe that it would be necessary. The same assessment of the offender's risk of reoffending has been made by Ms Ann Marie De Santa Brigida, a psychologist who assessed the offender on 22 April 2020.

Medical Assessments

1. The offender has been also assessed by Dr Richard Furst, a forensic psychiatrist. Dr Furst diagnoses a Substance Use Disorder, a Gambling Disorder and Post-Traumatic Stress Disorder. Considering the offender's addiction to cocaine and cannabis and his use of MDMA the diagnosis of a Substance Use Disorder is entirely understandable. Considering the offender's dangerous gambling addiction, the fact that he is also suffering from a Gambling Disorder cannot be doubted. According to Dr Furst, the offender's Post-Traumatic Stress Disorder (PTSD) is severe and chronic. It appears that post-traumatic stress disorder results from the extremely frightening events of 2 April 2019, when the witness saw his close friend murdered and was himself the subject of gunshot wounds. Dr Furst also expressed the opinion that the offender's self-esteem would have been low because of the bullying that he experienced in Jordan because of his religious and ethnic background and because his social integration was impeded as he was a refugee in Jordan, came to Australia as a migrant, and did not speak English when he arrived in this country. Whether the offender's childhood problems rendered him vulnerable to the development of PTSD is not clear from what I have read.
2. Ms De Santa Brigida appears to have accepted not only drug dependency but alcohol dependency which would give an Alcohol Abuse Disorder. She also believes that the offender has a "trauma response" to childhood bullying in Jordan which might indicate that he was vulnerable to developing a PTSD after the events 2 April 2019. She also diagnosed a Generalised Anxiety Disorder which is severe.
3. One would anticipate that as the offender stays abstinent from drugs and alcohol whilst in the prison system his symptoms referable to drug and alcohol addiction would abate and he would go into remission. For the PTSD, the offender requires treatment and the need for treatment is referred to by Dr Furst in his report. Considering his practice as a forensic psychiatrist Dr Furst has told me that treatment can be provided to him by Justice Health for his PTSD, however, it might not be as good as what might be provided in the community.

Extra Curial Punishment

1. The current offender should be seen as having had extra curial punishment. Firstly, there is the wounding that he sustained to his left arm by being shot, and his letter to me he says he still has ongoing problems with his left arm. Just as significantly, there is the ongoing psychiatric trauma due to observing the murder of his best friend, his best friend dying in the circumstances that I have already described. That may result in an lifetime psychiatric illness, requiring ongoing treatment. The Court can reduce the length of any gaol sentence because of extra curial punishment.

Rehabilitation (2)

1. I accept that there is a very small risk of the offender's reoffending. Considering his current determination, and the support he has from his girlfriend and his family, I believe that his prospects of rehabilitation are excellent. However, when he is paroled and admitted back into the community he will require as much assistance as is possible to maintain his current determination to remain abstinent of illicit drugs and alcohol. That, in my view, entitles him to a finding of special circumstances to break otherwise the statutory nexus between head sentence and the non-parole period.

Consideration

1. In summary therefore, we have a man who, whilst he committed very serious offences, his objective culpability is below the midrange of objective seriousness and well below midrange of objective seriousness. Whilst he has actually peddled some drugs he has only done so at a street level, and has done so in order to maintain his own drug addiction and, in particular, to pay off his drug debt, he agreed to warehouse both illicit drugs and firearms and other weapons and those warehousing activities lead to the substantive crimes to which he has pleaded guilty.
2. The prospects of rehabilitation are, as I have said, excellent and therefore the need for specific deterrence is attenuated, and because of the extra curial punishment the need for general deterrence is somewhat ameliorated or lessened itself.
3. This is clearly a case calling for an aggregate sentence. The offender pleaded guilty at the earliest available opportunity. It is common ground the offender is entitled to discount of 25% of the sentence properly to be passed upon him because of the utilitarian value of his guilty pleas. As well, they indicate remorse and contrition for his crimes, but that has otherwise been amply demonstrated in the evidence before me.
4. Mr Lloyd QC has referred me to some recent decisions of my colleagues, Weinstein and Priestley DCJJ. In particular, the decision of Weinstein DCJ in R v Finigan [2019] NSWDC 590 has a number of similarities to the current offence. In that case the offender pleaded guilty to possessing an unregistered firearm, a Remington pump-action rifle, and supplying a large commercial quantity of methyl amphetamine, 5.484 kilograms of that drug. However, the personal circumstances of Finigan are quite different to those of the current offender.
5. For the sequence 1 offence, supplying a large commercial quantity of cocaine, I shall start the sentencing exercise with a head sentence of five years. I discount that by 25% which gives me a head sentence of three years and nine months. The appropriate non-parole period should be two years and three months.
6. For the sequence 2 offence, the offence of supplying a commercial quantity of the prohibited drug 3,4-methylenedioxymethylamphetamine, I start with a head sentence of four years. After the 25% discount that becomes three years. I would fix a non-parole period of two years.
7. For the sequence 3 offence, the possession of the Smith & Wesson .38 calibre Special revolver, I would commence with a head sentence of two and a half years. Applying a 25% discount, one comes to a head sentence of one year and nine months. I would appoint a non-parole period of one year and three months.
8. For the sequence 10 offence I start with a head sentence of two years. Reducing that by 25%, one gets to a head sentence of one year and six months, and for that I would fix a non-parole period of one year.
9. In making those findings I take into account the sequence 5 events on the Form 1 for the sequence 1 offence, the sequence 4 offence for the sentence on the sequence 3 offence, and the sequence 1 offence for the sequence 10 sentence.
10. Were all of those sentences to be consecutive or cumulative, the head sentence would be 10 years, and the non-parole period would be six years and six months. I have determined that the appropriate head sentence is seven years, and the non-parole period will be four years. That sentence should commence at the time of the offender's arrest on 6 June 2019.
11. It is to be noted that he was not arrested on 2 April 2019 because the police had yet to make the searches which led to the finding of material in the offender's bedroom, in the common BBQ rooftop area, and in the rest of the home unit. It should be clear that the police would have been preoccupied in investigating the murder initially. The offender's self-treatment appears to have started not when he was arrested on 6 June, but immediately following upon the murder of his friend.
12. I have enquired of the solicitor for the Crown and learned Senior Counsel for the offender whether any further reasons are required, and are told that none is so required.
13. Sargon Odisho? OFFENDER: Yes, your Honour. HIS HONOUR: For each of the offences to which you have pleaded guilty you are convicted. I sentence you to imprisonment. I set a non-parole period of four years, commencing on 6 June 2019 and expiring on 5 June 2023. I impose a further period of imprisonment of three years to commence upon the expiration of the non-parole period and expiring on 5 June 2026. The total sentence is therefore seven years comprising of the non-parole period and the balance of the sentence.
14. I have found special circumstances.
15. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the three matters on the three Forms 1.
16. The indicative sentences are: Sequence 1, three years and nine months. Non-parole period of two years, three months. Sequence 2, three years. Non-parole period of two years. Sequence 3 offence, one year, nine months. Non-parole period of one year, three months. Sequence 10 offence, one year and six months. Non-parole period of one year.
17. By consent order in accordance with short minutes of order which I have executed and left with the papers.

Amendments 03 September 2021 - Typographical error in catchwords amended. 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: 03 September 2021