Mr P Strickland SC (Counsel for the offender)
File Number(s): 2019/346638
[2]
Judgment
Bilal Osman, aged 31, pleaded guilty to three counts in circumstances which it is agreed would justify a 5% discount on any sentence for the utilitarian value of the pleas.
Count 1 is an offence of participate in a criminal group contrary to s 93T of the Crimes Act 1900. The offence carries a maximum penalty of five years imprisonment with no standard non‑parole period.
Count 2, an ex officio count, of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug, namely cocaine between 30 October and 4 November 2019, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years.
Attached to Count 2 is a Form 1 matter of possessing ammunition without authority or licence (sequence 6). The sequence will be dealt with in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).
Count 3 is an offence of supplying in excess of the indictable quantity of a prohibited drug, being 32 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years of imprisonment with no standard non-parole period.
The maximum penalties, and where applicable, the standard non-parole period, are important yardsticks in the sentencing process which must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
He spent a total of 45 days in custody after his arrest on 4 November and has been subject to strict bail conditions including for some time home detention and a nightly curfew and subsequently strict reporting.
His criminal record includes only a minor charge of possess prohibited drug in 2015 dealt with by s 10 bond and in April 2020 a driving whilst suspended charge was dealt with by conditional release order without conviction, so he has no prior convictions.
The agreed facts relate to the activities of a drug supply syndicate. The principals Chami, Halloum, and Hassoun, all of whom have been sentenced by me to a lengthy sentence of imprisonment (R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519). As well as those principals there have been at least three people described as runners for the supply syndicate named Hogan (R v Hogan [2021] NSWDC 747), Naghdi (R v Naghdi [2021] NSWDC 635) and Wu (R v Wu [2021] NSWDC 634) who have also been sentenced by me. The facts of each case and their subjective circumstances, the submissions and findings as to objective seriousness have been set out in remarks on sentence for each of those offenders who have previously been dealt with and it is unnecessary to refer to them here.
In short, the syndicate was operating a call centre service for enabling the provision of small quantities of cocaine by runners throughout Sydney. It usually sold a bag for $300 each containing .64 grams of cocaine.
The runners used a number of different vehicles to supply cocaine to customers. One of these vehicles was registered in the name of Osman and it was identified as being used by the syndicate on a number of occasions during the period in which it was registered in his name from3 September 2019 up to the date of his arrest.
Police identified two houses that were used by the syndicate, one at Croydon Park and another at Bankstown. Police surveillance monitored the Croydon Park premises. The evidence does not show that the offender provided any deal bags to the runners, nor that he had any involvement in the decision-making functions of the criminal group. The premises were used by the principals to facilitate meetings in which the running of the criminal group was discussed. He attended these premises on at least three occasions between 25 June and 3 November 2019.
The call centre mobile phone services were monitored, and over the period between 11 July and 3 November 2019 at least 1,913 bags were supplied. The agreed facts are that while the evidence demonstrates that the offender had knowledge of the activities of the criminal group, it does not show that he had knowledge of the quantum supplied by the runners.
In October 2019, surveillance devices were also installed at the premises at Bankstown. They were used for storage, cutting and bagging of cocaine by the principals. Surveillance footage shows the offender attending on one occasion only, namely 30 October, at which time he was observed handling and bagging a substance which the offender accepts was cocaine.
He was given some direction by Mr Halloum, one of the principals.
A search warrant was executed by police on 4 November at the Bankstown address and in various locations. A total of 1,132 grams of cocaine was located. The significance of that figure will emerge. Police then attended Osman's residence at Condell Park. They searched a car and found a total of 32.5 grams of cocaine in bags, the subject of count 3.
They also located 13 rounds of shotgun ammunition in his bedroom. He does not hold a licence or other authority to possess that ammunition.
The agreed facts state that the factual basis for the plea is as follows: that on 30 October 2019 he was observed at Bankstown with Chami and Halloom handling a white substance which he agrees was cocaine. It is also agreed that he was in joint possession of the cocaine located at Bankstown.
It is agreed that the Crown cannot establish beyond reasonable doubt that he knew or reasonably believed that the quantum of cocaine exceeded the large commercial quantity threshold of 1,000 grams, but the offender concedes that he knew the substance exceeded the commercial quantity threshold of 250 grams and on that basis, a plea of guilty was entered to a charge of knowingly take part in the supply of the commercial quantity of cocaine, that being in excess of 250 grams. Notwithstanding that, it is agreed that he was in joint possession of the cocaine located at Bankstown which was described at 1,132 grams. The Crown acknowledges that it cannot show that he knew there was more than 250 grams of cocaine present at the premises on the basis of the agreed facts.
The subjective case for Mr Osman is contained in a large bundle of documents which have not been challenged by the Crown, or the subject of any submission by the Crown.
The offender did not give evidence and while it is customary to treat histories in such documents with some degree of scepticism, in the absence of any challenge by the Crown and in light of the fact that the assertions by the offender are relatively consistent with other material in the bundle, it seems to be a reasonable basis upon which to proceed to sentence.
It commences with a detailed letter of apology to the Court, expressing his sincere regret for his irresponsible and dangerous conduct and does not seek to excuse his actions, except to provide some insight into his behaviour.
He was born in Lebanon in September 1990 and came to Australia when he was seven. He finished his HSC and did a Diploma in financial services, and then graduated from university with a Bachelor of Commence and Accounting, being the first member of his family to go to University.
His father is 72. He was diagnosed with Crohn's disease in 2019. He provides assistance for him and takes him to his medical appointments.
He was married for a short time in 2018 but divorced shortly before the commission of these offences.
He says he was working as an operations manager for an insurance claims outfit. He says things had gone downhill when he bumped into some ex‑high school friends and these people got him involved in drug dealing. He says he thought it was only small scale, he later realised that he was caught up in a much bigger drug supply chain. He could not have imagined himself being in such a dangerous situation and feels ashamed for putting poison into the community.
As to the possession of the ammunition, he says that it had been in his closet since a hunting trip in 2016, and he had forgotten about it. He had a firearms licence for recreational hunting purposes, but he had not renewed the licence after it expired in 2017. He says that he did not have the ammunition in his house for any malicious purpose whatsoever.
Since being granted bail and released from custody he has reflected on his behaviour. He is working as a sub-contractor for a construction company. He has undertaken numerous drug tests to prove that he is free of illicit substances, and he has associated with a pro-social circle and has improved his attitude to life.
He has not used drugs since his arrest.
He gave a more detailed history to a psychologist, Sam Borenstein. He said that he started using cocaine when he was aged 24, but was not a regular user before the dissolution of his marriage.
Mr Borenstein says he does not demonstrate any criminogenic or antisocial tendencies.
There are detailed references from his brother and sister, father and mother. They speak uniformly in favourable terms of him and the chastening experience of his arrest and custody. He also has support from a friend who is a solicitor and another solicitor who runs a service operation as well as his accountant. There are various documents to corroborate his assertions of a drug-free existence, his educational achievements as well as medical material in relation to his father's condition.
The written and oral submissions by the Crown Prosecutor and by Mr Strickland SC for the offender do not demonstrate any significant contest as to the principles to be applied, and the way in which the objective seriousness of the matter should be assessed. Perhaps surprisingly, neither counsel submits that the sentences imposed on other offenders involved in this syndicate should be given significant weight in the sentencing process. As Mr Strickland SC put his position, the sentences imposed on the other offenders should not be the starting point, but the Court should, in accordance with orthodox sentencing principles, examine the objective and subjective matters and not elevate the question of parity beyond something to be examined as a factor having modest significance in the sentencing process.
Mr Strickland's ultimate submission, which he put at the forefront of his oral submissions, was that having conceded that the s 5 threshold had been surmounted, an aggregate sentence of three years of or less should be imposed, and if that is to be accepted then the sentence might be served by way of intensive corrections order having regard to the dictates of s 66 of the Crimes (Sentencing Procedure) Act 1999.
[3]
Role and Objective seriousness
As to the first count of participate criminal group, the Crown points to him knowingly participate in the group for a period of four and a half months, attending the base of operations at Croydon Park on at least three occasions and allowing a vehicle registered in his name to be used by a syndicate to supply cocaine.
He did not provide deal bags to the runners, although he knew of activities of the criminal group, he did not know the quantum supplied by the runners. He was not involved in the decision-making of the functions of the criminal group.
I accept Mr Strickland's submission that the objective seriousness of the offence is towards the lower end of the range given that he did not know the scale of the enterprise of the criminal group, and his participation in the group was peripheral.
As to count 2, he is to be sentenced on the basis that he jointly possessed the cocaine located at Bankstown and that he knew or reasonably believed that the quantity of cocaine was not less than 250 grams. In addition, on 30 October, he handled bags and cut a quantity of that cocaine. Later the same day he secreted the cocaine within the cavity behind the oven face.
The Crown submits, and the offender accepts, that the evidence suggests that he was trusted sufficiently to handle a significant quantity of cocaine on 30 October 2019.
As to objective seriousness, I accept the common ground, namely that the offending falls towards the lower end of the range of objective seriousness, given that the offence appears to have taken place on a single day, namely 30 October 2019. The offence of knowingly take part of the supply of drugs involved assisting the principal with the storage of the cocaine on a single day.
As to count 3, the knowingly took part of the 32 grams of cocaine on 4 November 2019, that being the cocaine seized in his car. it is true that the agreed facts are "spartan" about this offence. I accept, as does the Crown that it falls towards the lower end of the range, it being in excess of the 5 gram indictable quantity.
The Crown does not identify any aggravating factors under s 21A. There is no evidence of any financial reward provided to the offender, and he told Mr Borenstein that he was given cocaine for participating in the offences.
As to the context of his offending, he was in the breakdown of his marriage, lost his employment and a period of hopelessness and aimlessness for some time. He does not seek to blame anyone but himself for his offending.
The principles set out by the Crown are not in contest. The quantity of the drugs involved is not the sole or even the principal determinant of the sentence, although it is a significant matter. The important matter is to focus on the role of the offender. Even if a person plays a less important role in the supply of drugs, that does not necessarily mean that they will receive a less serious sentence than a person more involved, because drug trafficking requires middle-men and couriers.
A standard non-parole period is specified for count 2, and of course it relates to an offence in the middle of the range of objective seriousness.
In terms of mitigating factors, he is of previous good character and lack of convictions is taken into account. I accept that in light of his significant family and community support his prospects of reoffending are low and he has good prospects of rehabilitation.
As the Crown points out, general deterrence and specific deterrence both must be taken into account in the sentencing process and the sentences imposed for drug supply offences must send a clear message to the community.
Mr Strickland SC accepts that the medical condition of his father does not constitute exceptional hardship within the authorities such as R v Edwards (1996) 90 A Crim R 510 , but it is relevant to the subjective mix of factors to be considered by the Court. Mr Strickland puts that in terms of parity, his involvement in count 2 is less serious than all the runners who were admitted suppliers of significant quantities of cocaine, over hundreds of occasions. In the case of Ms Wu, 266 grams in 416 bags. In the case of Ms Naghdi, 393 grams, and in the case of Ms Hogan, 376 grams of cocaine.
Mr Strickland SC referred to the well-known process by which the Court must assess a submission such as his. First the Court must be satisfied that the s 5 threshold has been surmounted; and that is not in contest. The length of the sentence must then be determined having regard to the objective and subjective features to which I have referred in the light of the submissions that have been summarised, and if it is of an appropriate length then the Court must consider whether any alternative to full-time imprisonment may be imposed.
Section 66 of the Crimes (Sentencing Procedure) Act 1999 provides that community safety must be the paramount consideration when a sentencing court is deciding whether to make an intensive corrections order or not. The Court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. However, in deciding whether to make an intensive corrections order the sentencing court must also of course consider the provisions of s 3A and any relevant common law principles and any other matters that the Court thinks relevant.
As Simpson AJA said in Mandranis v R [2021] NSWCCA 97, one factor which must be taken into account in consideration of community safety is the likelihood of re-offending by the offender, and which of an ICO and full-time detention would be more likely to address the risk. Here Mr Strickland's submission is that community safety would be not endangered by allowing the offender to serve his sentence in the community. There is no evidence that he is a danger to the community and his risk of reoffending is better addressed by the imposition of an ICO rather than full-time detention.
To get to the point that Mr Strickland urges, the sentences to be imposed after a 5% discount as indicated, must first be established. In my view, the indicative sentences would be:
1. Count 1: 12 months
2. Count 2, taking into account the Form 1 matters: 30 months
3. Count 3: 3 months
I would impose an aggregate sentence of 34 months.
I am presently minded to accede to Mr Strickland's submissions, in light of s 66 and s 3A. However as there is no sentence assessment report it will be necessary to adjourn the matter to enable preparation of such a report to determine amongst those other matters; suitability for community service which Mr Strickland acknowledges would be at least one essential term of any order.
I refer the offender to CCS for a sentence assessment report relating to imposition of a community service condition and suitability for an ICO generally, pursuant to s 17D(4) of the Crimes (Sentencing Procedure) Act 1999.
Pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is stayed pending the completion of the assessment.
The offender is to report the OIC at Bankstown CCS by 5pm, Monday 31 January 2022.
I adjourn the matter part-heard to Thursday 31 March 2022 at Newcastle District Court.
Bail to continue.
I order a transcript of today's proceedings and remarks on sentence.
[4]
Amendments
31 March 2022 - "Friday" corrected to "Thursday" at [58].
Duplicate of paragraph [56] deleted.
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Decision last updated: 31 March 2022