R v Rauf

Agreed facts

1. According to the agreed facts for sentence, in December 2020, police commenced an operation in relation to an organised crime syndicate involved in the ongoing supply of cocaine in Sydney. The syndicate operated three different mobile phone services over different periods to organise and facilitate the supply of cocaine to a large customer base. The phones were used solely for customers to place their orders for the supply of cocaine.
2. Between the three services police conducted a controlled operation between March and June 2021, in which undercover officers successfully purchased cocaine directly from those numbers.
3. Through electronic surveillance the offender was detected as regularly travelling between premises occupied by members of the syndicate and Kennards self-storage at Campbelltown. The offender's role was to deliver cash proceeds belonging to the syndicate to Kennards storage units leased by the syndicate.
4. Investigations reveal that the drug delivery drivers in the syndicate would be responsible for loading up cocaine and unloading cash profits at an address in Margaret Street, Newtown. The cash would then be collected and taken to another syndicate member's address where it would be collected by the offender and delivered to one of the storage units.
5. Police surveillance captured the offender attending the storage unit on eight occasions between 24 April 2021 and 30 June 2021. At times he was with a co-offender, Tamer Soufy, and on other occasions was seen with a Game of Thrones backpack.
6. On 7 July 2021, police executed a search warrant at the Kennards storage unit, seizing the Game of Thrones backpack previously seen in the possession of the offender. It was found to contain $238,050.00 cash in two vacuum sealed bags. On 8 July 2021 a search warrant of the offender's address found a total of $2360.00 in cash scattered around the home.
7. At the time of execution of various search warrants on 7 July 2021, the offender was observed to attend the Kennards self-storage unit and was recorded on CCTV running through the car park and unlocking and entering a relevant unit. The offender returned later that evening and was observed to clean the keypad lock at the front of the gate after he used it. The offender was seen to be wearing rubber gloves. The offender was then seen to run through the car park and enter the same storage unit and was seen to wipe and clean the lock of the unit.
8. As to the objective seriousness of the offences, I accept the Crown's submission that they fall into the mid-range for the two offences. As correctly noted by the Crown, the offender was involved in a criminal syndicate spanning several months. As the agreed facts note, the syndicate was involved in organising and facilitating the supply of cocaine to a large customer base. The offender was clearly a trusted member of the syndicate, involved in the transporting of large amounts of cash and was therefore involved in the syndicate's activities at a not inconsiderable level.
9. The offender's role clearly involved transporting large amounts of cash, self-evident from the fact that at the time of execution of the search warrant, a backpack, which the offender was seen to use on several occasions, contained a large amount of cash.
10. It must be acknowledged that the role of the offender in the circumstances of the present case is an integral part of any drug supply operation and accordingly such operations cannot occur without the work performed by persons such as the offender.
11. In July 2020, the offender was convicted of dealing with proceeds of crime, supply commercial quantity of prohibited drug and possess/use a prohibited weapon without a permit. In respect to the proceeds of crime, the offender was sentenced to twelve months imprisonment to be served by way of a community correction order (CCO). In respect to the supply prohibited drug, the offender was sentenced to nineteen months imprisonment to be served by way of an intensive correction order (ICO) and in respect to the possess prohibited weapon, the offender was sentenced to fifteen months imprisonment to be served by way of a CCO.
12. Accordingly, at the time of the offending, the subject of the current sentence, the offender was serving two CCOs and an ICO arising from the earlier convictions.

Deterrence

1. The fact that the offender was involved in a criminal group involved in the supply of prohibited drugs, leads to the issue of the need for general deterrence. The presence of drugs in the community remains a significant problem and the operation of a criminal syndicate such as the syndicate in which the offender was involved, perpetuates the ongoing issue with prohibited drugs in the community. In the circumstances, the sentence must reflect general deterrence from being involved in such activities, and individual deterrence relating to the offender.

Subjective case

1. A signed statement of the offender was tendered on the sentence. The statement is not sworn evidence and the offender has elected otherwise not to give oral evidence on oath as to the matters contained in the statement. In the circumstances the statement must be given little weight to the extent that the offender seeks to make exculpatory statements.
2. The offender states that he grew up in a strict Muslim household where he was socially restricted. He completed his High School Certificate in 2014 and subsequently enrolled in a double degree of Business and Law at the University of Western Sydney.
3. The offender states that his exposure at university was in stark contrast to the protected environment at home and school. He subsequently started using cocaine and became addicted to the drug. The offender states that he subsequently took up a role as a drug delivery driver in 2020, culminating in his conviction and sentencing on dealing with property of proceeds of crime, supply prohibited drug and possess prohibited weapon.
4. Despite the offender's claimed attempts to remain abstinent, he became involved in a relationship leading to the ongoing use of cocaine. It was in this context that the offending the subject of the present sentence occurred. The offender expresses remorse relating to his conduct, although this must be approached with some scepticism given the previous convictions, and his reoffending in similar circumstances to the previous convictions.
5. The offender spent 57 days in custody following his arrest, and claims that the period in custody had a profound effect on his approach to life. As a consequence, he claims to have turned his life around with the support of his treating psychologist, Billel Rababi, and the SMART Recovery Program. The offender claims that he is now drug free and has since removed himself from the social circles leading to his offending. He claims to have the support of his family and has also reconnected with his Islamic faith. The offender has continued his legal studies and is six months short of completing his degree. He has also found employment as a kitchen hand in a food truck.
6. The offender relies upon a report of Sam Borenstein, Clinical Psychologist, following an interview and assessment on 24 August 2022. The offender acknowledged his previous arrest and conviction on drug supply charges, claiming that his subsequent ICO was impacted by Covid-19. As a consequence, his attempts to abstain from drugs were unsuccessful given his failure to attend drug rehabilitation courses or psychological support.
7. Mr Borenstein was told that at the time of the offending, the offender had accrued a significant drug-related debt and therefore agreed to be involved in the offending the subject of the sentence. He claimed to have justified his conduct in that he was merely supplying drugs directly to persons who were addicted. The offender described his subsequent period of incarceration which he claims to have had a profound effect on him.
8. The offender provided a history to Mr Borenstein of his personal background, consistent with the offender's separate statement. At the interview the offender's mood was mildly depressed and his affect normal and reactive. On testing, the offender returned results indicating a marked potential for emotional and/or behavioural problems of clinical significance. The testing further reflected experiences of unhappiness and apprehension and was highly correlated with measures of depression and anxiety. High scorers such as the offender were likely to feel tense, worried, and demoralised. The prevailing emotions vary between tension and unhappiness and the affective quality is consistently negative. Testing further confirmed the offender's propensity to act impulsively and reliance on compulsive/addictive defences against symptoms of anxiety, depression and stress. The elevated result on social withdrawal indicated a degree of social detachment and some discomfort in close personal relationships, consistent with the offender's history of social anxiety disorders. Results on the depression anxiety scale confirmed moderate symptoms of depression, severe symptoms of anxiety and moderate symptoms of stress.
9. Mr Borenstein recorded that the offender had an acute understanding of the impact of drugs on individuals, relationships, and the broader community, expressing guilt and remorse for his actions. It was noted that the offender was well engaged in psychological treatment and a recovery program focusing on relapse prevention. The offender was learning strategies to manage symptoms of social anxiety and secondary depression. The offender had apparently gained a greater appreciation of how cocaine allowed for amelioration of long-standing social anxiety symptoms and allowed the offender to form social connections lacking throughout his adolescence. The reliance on cocaine as self-medication reflected the symptoms of social anxiety and secondary depression. He increasingly relied upon cocaine to access and express newfound freedoms and social connections. It was noted that the offender was now well engaged and motivated to attend psychological treatment and strategies to address his underlying symptoms.
10. Mr Borenstein concluded with the opinion that the offender's continued participation in psychological treatment and recovery programs, as well as avoiding contact with previous social groups, significantly reduced the likelihood of him reoffending.
11. In a supplementary report, Dr Borenstein confirmed that the offender suffered, and continued to suffer, symptoms of Social Anxiety Disorder, against which he used drugs as a form of self-medication. The offender separately developed secondary symptoms of depression and his use of drugs allowed for freedom to form social connections and self-medicate against the symptoms of depression and anxiety.
12. The offender also relies upon a report of his treating psychologist, Billel Rababi dated 5 September 2022. The offender had completed 10 one-hour sessions with the psychologist, commencing 21 December 2021. The offender provided a history of his previous drug use and his abstinence since. The psychological sessions centred around the offender's drug use and current and historical factors leading to that use, including the matters referred to in the offender's statement. The offender, on many occasions, expressed remorse for his offending, and desire to correct his life. The formal diagnosis was General Anxiety Disorder, Major Depressive Disorder and Post-Traumatic Stress Disorder. However, Mr Rababi commented that his condition had improved considerably throughout the ten treatments. In this context the offender was well supported by his family and friends and was currently employed whilst completing his university studies. This provided him with a positive sense of purpose.
13. Mr Rababi supported the opinion of Sam Borenstein that with ongoing treatment the offender's condition should improve considerably. He considered that the offender's rehabilitation would be more effective being completed in the community for various reasons, including the offender's engagement with such therapy, the ability to abstain from drugs in consultation with the SMART program and the offender's ongoing support from his family, who were aware of the offender's difficulties. The risk of reoffending was minimised given his supportive environment, ongoing employment and other strategies. Further, Mr Rababi noted that the offender's experiences in custody contributed significantly to his poor mental health and these triggers were likely to exacerbate his symptoms and his recovery may regress.
14. The offender relies upon a joint letter provided by the offender's parents Abdul and Maria Rauf. It is an unsworn document and neither authors have given evidence on oath, and accordingly it remains untested. The letter refers to the offender's strict upbringing, including adherence to the Islamic faith. It refers to the offender's apparent decline in his behaviour following attendance at university, including lengthy absences from the home on weekends and weeknights. This became a source of tension in the home regarding the offender's attendance at family or religious events. The parents were unaware of the offender's convictions in 2020. The first they became aware of the offender's criminal behaviour was at the time of execution of a search warrant on their home at the time of the offender's arrest. The parents refer to the offender's period in custody and its impact upon him. They also attest to the offender's rehabilitation since release, including attendances at psychologists and a return to the Islamic faith. They express concern if the offender was returned into custody.
15. The offender also relies upon a letter from Khalid Mohamad who is a Sheikh in the local Islamic community. He had known the offender through public lectures across varying venues. He attests to the offender being an extremely dedicated and committed individual to family and friends, who was a caring person and desires good for those around him. He considered the offender was a hard-working young man who was dedicated, well-mannered and driven. He noted the offender's apparent remorse for the offending and that he is motivated to change his life. Whilst the letter professes an awareness of the offender pleading guilty to the stated offences, it is not apparent that Mr Mohamad was aware of the extent of the offender's offending following his first conviction in 2020, or the extent of his offending for the matters the subject of the present sentence.
16. A letter has also been provided by Khaled Baluch, the offender's present employer. It confirms that the offender commenced working with Mr Baluch in February 2022 in a café and food truck business. He attests to the offender's hard work, and the fact that he considered the offender to be honest, loyal and genuine. Mr Baluch states that the offender has excelled in his job and appears to be focused on his employment and studies, prioritising these aspects of his life. He considered him to be a responsible, hard-working, committed young man who was a valuable and beneficial member of the team. He states that he sees great potential in the offender. Mr Baluch indicated that he would continue to provide support and assistance to the offender through his employment and would be supportive of any career progression.
17. A hair follicle drug test performed on 25 August 2022 confirmed a negative result for various drugs tested.
18. SMART recovery attendance sheets were provided confirming the offender's attendance at Odyssey House between 9 February 2022 and 24 August 2022. A separate medical certificate relating to the offender's mother is also relied upon. A bail chronology confirms that on 12 August 2021 the offender was granted bail on strict conditions, including daily reporting to police and not to be absent from his address unless in the company of his parents or sister for the purpose of complying with bail conditions and curfews.

Submissions

1. The offender concedes that the s 5 threshold has been met and that a sentence of imprisonment is appropriate. However, it is contended that the objective seriousness of the offending is between the low and mid-range. In this respect, whilst the first offence involved a substantial amount of money, the offender contends that it is not near the upper end of these types of offences. It is contended that the Court would accept on the evidence that the offender financially benefited only to the extent of having his drug debt expunged, and access to discounted drugs, rather than to fund a lavish lifestyle. It is submitted that there is no evidence that the offender was aware of the precise amount of money that was found in the unit. It was noted that the offender did not lead a lavish lifestyle, but rather lived at home with his parents and did not have assets of any substantial value.
2. Further the offender suffered from depression and anxiety, resorting to the use of drugs which, it is claimed, led to the offending behaviour. The offender relies upon significant subjective matters traversed in the reports of Sam Borenstein and Billel Rababi reviewed above. More specifically, it is contended that the offender is unlikely to offend and otherwise has good prospects of rehabilitation by reason of his age. It is contended that this is supported by the offender's steps towards rehabilitation and treatment since his release from custody, supported by the expert reports.
3. Whilst it is accepted that the offender committed these offences in breach of a previous ICO, in mitigation, the offender states that the conditions of this order, including rehabilitation and treatment, were significantly interrupted by the Covid-19 pandemic. It is noted that the offender has obtained and maintained employment whilst moving towards completion of his legal studies at university.
4. The offender highlights the expressions of remorse contained in his own statement and the history recorded in the various reports. Whilst it is acknowledged there is no evidence given on oath in respect of the high level of remorse, the offender notes it is otherwise reflected in some evidence of third parties.
5. In this respect, given the offender did not give evidence, I am left to reach my decision upon representations attributed to him by others, including a psychiatrist, which were not under oath or affirmation and which have not been tested by cross-examination. This is in addition to the offender's own unsworn statement referred to above. Caution is required when assessing out-of-court representations for the purpose of determining sentence, as was noted by Smart AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed the care required, with reference to Qutami amongst other authorities. Beginning at paragraph [57], her Honour summarised the statements that are derived from the authorities to which she referred and once more reminded sentencing courts of the caution one must bring to bear when dealing with factual matters drawing upon representations that are not affirmed or unsworn and remain untested.
6. Counsel for the offender, Mr Edwards, referred the Court to Lloyd v R [2022] NSWCCA 18 where McCallum JA (with whom Hammill and Cavanagh JJ agreed) noted that the observations of Smart AJ in Qutami are sometimes mistaken for principle, and that the weight and cogency of such evidence is a matter for the individual assessment of the sentencing judge. Her Honour observed at [47] that there is no principle of law that requires a sentencing judge to exercise "very considerable caution" before relying on the contents of an expert report absent evidence from the offender. In this respect her Honour acknowledged that the Court is not the only forum in which a reliable medical history can be obtained.
7. The offender highlights the diagnosis of Mr Rababi, supported by Mr Borenstein, that the offender has been diagnosed with a Generalised Anxiety Disorder, Major Depressive Disorder and Post-Traumatic Stress Disorder, whilst acknowledging that the conditions had improved considerably. Counsel for the offender noted the apparent causal nexus between the offender's psychological conditions and the offending behaviour. Reference was made to the evidence from both psychologists that a return to custody would likely impede the offender's progress in addressing his mental health problems and general rehabilitation. The offender contends that the good prospects for rehabilitation are supported by the strict bail conditions imposed on the offender and demonstrate a reasonable likelihood that the offender would adhere to any ICO conditions that might be imposed. In this respect the offender refers to the decision in R v Quinlan [2021] NSWCCA 284 on the basis that the bail conditions were "harsh and restrictive" to the extent they can be taken into account as "quasi custody".
8. Counsel for the offender urged upon the Court consideration be given to the imposition of an ICO in accordance with s 7(1) of the Crimes (Sentencing Procedure) Act 1999, particularly given the considerations provided in s 66. The Court was referred to the consideration of these provisions in R v Pullen [2018] NSWCCA 264, including the fact that an ICO still involves substantial punishment given the multiple mandatory obligations attached to any standard conditions. Further supporting an ICO, Counsel for the offender noted the opinion of the psychologists that any rehabilitation would be more effectively completed in the community, and that in these circumstances an ICO was more likely to address the offender's risk of reoffending than a sentence of full-time imprisonment.
9. The Crown contends that the s 5 threshold has been crossed, and as noted above, this is not in issue. It is contended that an appropriate sentence is one of full-time imprisonment, reflecting the objective seriousness of the offending and to give sufficient weight to the principles of general deterrence. As noted above, the Crown contends that taking into consideration the offender's role in the criminal syndicate, the objective seriousness is at the mid range for the offence. It is further contended that an aggravating factor on sentence is the fact that the offences were committed whilst on conditional liberty.
10. In respect to mitigating factors, whilst the offender is entitled to a 25% discount for each offence, given the early plea, the Crown contends that this is not purely a reflection of remorse but rather an acknowledgement of a strong Crown case. The Crown submits that general deterrence must be taken into account "to a significant degree" in circumstances where the Court has previously expressed the opinion that money laundering offences are serious and justify severe punishment (citing R v Huang (2007) 174 A Crim R 370 at [36]). It is submitted that the sentence imposed should deter individuals from engaging in criminal groups and committing like offences, and that given this was not the first offence committed by the offender there was a more specific deterrence to prevent the offender from further reoffending.
11. The Crown made further oral submissions, following service of the subjective sentencing material on behalf of the offender. The Crown noted that the amount involved was significant, and that the dealing in proceeds of crime, whilst charged as one offence, involved multiple episodes over a four-month period. It was further contended that there were occasions when the offender was acting on his own, as demonstrated by the surveillance. The Crown contends that a further aggravating factor was that it was self evident from the surveillance that on the day the search warrants were executed the offender took deliberate steps to conceal his involvement in the criminal enterprise.
12. In respect to the subjective material, whilst the offender attempts to attribute blame for his failure to comply with the previous ICO, the Crown contends that the offender had failed to acknowledge the need for help and take proactive steps to address the issues leading to his previous offending. It is submitted that an ICO is not appropriate in that it does not reflect the objective seriousness of the offending. The Crown further contends that drug addiction in any event involves a choice, and that not all users were subsequently involved in the supply of drugs. The Crown contends that the offender did have choices available to him and the sentence must reflect the consequences of the choices he has made. The Crown contends that general deterrence looms large and a specific deterrence for the offender should also be imposed.

Consideration

1. Given the seriousness of the offences, and the fact that the offender was subject to a previous ICO and two CCO's at the time of the offending I am satisfied, in accordance with s 5 of the Crimes (Sentencing Procedure) Act 1999, that no penalty other than imprisonment is appropriate. It is important that the offender is adequately punished for the offence, and in this respect imprisonment is appropriate. Deterrence as noted above, is an important factor given the offender was involved in dealing with proceeds of crime and participating in a criminal group in respect to the supply of drugs. In this respect it is important to recognise the harm done to the community generally by reason of the activities of criminal groups in the supply of drugs.
2. The sentence to be imposed will render the offender accountable for his actions whilst also promoting his rehabilitation. Self-evidently, I accept the Crown's submission as to the aggravating factor that the offences were committed whilst the offender was on conditional liberty in relation to the earlier convictions, and that the offence was part of a planned or organised criminal activity.
3. As to mitigating factors, the offender has good prospects of rehabilitation given the steps taken by the offender since his release from custody including active engagement in psychological treatment and the SMART program, and the fact that the offender has maintained stable employment and pursued his university studies which are close to completion. Whilst I accept the offender has expressed some remorse, for the reasons discussed above, this must be treated with some circumspection in the absence of the offender giving evidence on oath.
4. Although there are only two offences in which the Court is passing sentence (together with an offence on a Form 1), this is an appropriate matter for the Court to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed.
5. In respect of the count of dealing with the proceeds of crime (taking into account the matter on the Form 1 document) the appropriate sentence is three years and eight months imprisonment from which is deducted the 25% for the utilitarian value of the plea, resulting in a total sentence of two years and nine months. In respect to the offence of participate in a criminal group, I am of the opinion that the appropriate starting point is two years from which is to be deducted 25% for the utilitarian value of the plea making a total sentence of one year six months imprisonment. A total aggregate sentence of three years is appropriate.
6. The next consideration is how the sentence is to be served. A sentencing assessment report completed on 31 August 2022 involved an interview with the offender as well as contact with the offender's sister, treating psychologist and Odyssey House. The offender stated that he regretted his offending actions and claimed that the Court proceedings were a "wake-up call for him". The offender indicated that he has now ceased all contact with any drug-related peers since his current offences. Since the arrest for these offences, he had remained abstinent from drug use and had remained engaged in the SMART recovery sessions through Odyssey House. The report also confirmed his psychological treatment.
7. The offender expressed the willingness and ability to continue with alcohol and other drug treatment through his SMART recovery meetings, as well as ongoing psychological intervention. He also acknowledged that he was physically fit and willing and able to attend community service work if directed on any day other than Fridays due to his religious obligations. The offender was assessed at a low to medium risk of reoffending. Given this risk, if the Court made a supervised order, Community Corrections would monitor him for any indicators of increased risk. If the Court was to make a supervised order, Community Corrections considered that conditions should be imposed including the offender remaining engaged in current suitable alcohol and other drug and mental health treatment and interventions. The offender was also assessed as being suitable to undertake community service work.
8. Section 66 of the Crimes (Sentencing Procedure) Act 1999 provides that community safety must be the paramount consideration when the sentencing court is deciding whether to make an ICO in relation to an offender. s 66 (2) further provides that when considering community safety as required by s 66 (1), the sentencing 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. Further, when deciding whether to make an ICO, the Court is required to consider the purposes of sentencing provided in s 3A, as well as any relevant common law sentencing principles.
9. Since release from custody, the offender has taken active steps towards his own rehabilitation including: 1. removing himself from the social network which led to his offending; 2. abstaining from any further drug use; 3. actively seeking treatment for his psychological issues; 4. participating in the SMART Rehabilitation Program through Odyssey House; 5. obtaining and maintaining regular employment; and 6. pursuing his university studies towards completion.
10. I have already noted the report of Billel Rababi in that the offender's rehabilitation would be more effective being completed in the community for the reasons set out above. The psychologist notes that there is risk of regression in the event the offender was to return to full-time custody.
11. Given the diagnosed conditions from which the offender suffers, his previous regression when exposed to the appropriate social network, and the absence of rehabilitation, I am satisfied that an ICO is more likely to address the offender's risk of reoffending. Indeed, I am satisfied that there is a risk that the offender may reoffend if he was to serve the period of imprisonment by way of full-time detention, given he would be limited in his ability to engage fully in his rehabilitation activities referred to above.
12. However, the conditions which I intend to impose as part of the ICO will still involve substantial punishment as required by s 3A(a) of the Crimes (Sentencing Procedure) Act 1999. In respect of the other s 3A considerations, such an order is likely to promote the rehabilitation of the offender and minimise the risk of reoffending, thereby protecting the community. The imposition of various conditions will make the offender accountable for his actions and denounce his conduct.
13. The offender was in custody from 8 July 2021 to 2 September 2021 being a total of 57 days. In respect to the present matters for sentence bail was refused from 8 July 2021 to 12 August 2021, being a period of 36 days. The offender was granted bail on 12 August 2021 although he was not released until 2 September 2021 in circumstances where the decision to revoke the offender's parole from the previous offences was rescinded.
14. The parties agree that it is a matter for the Court's discretion as to the number of days, between 36 days and 57 days that should be taken into account as time served for the present offences. In all the circumstances, 45 days will be taken into account as time served for the offences.

Orders 1. In respect of the offences to which the offender has pleaded guilty, the offender is convicted. 2. The offender is sentenced to an aggregate sentence of three years imprisonment, to be served by way of an intensive corrections order. 3. That sentence will commence on 23 September 2022 and expire on 8 August 2025. 4. The standard conditions that apply during the terms of the order are that the offender: 1. must not commit any offence; and 2. must submit to supervision by a community corrections officer at the Campbelltown community corrections office, and to attend this office by 30 September 2022 to facilitate this condition. 1. The following additional conditions apply. The offender is: 1. to perform 500 hours of community service work; 2. to participate in a rehabilitation or treatment program; 3. not to drink alcohol; and 4. not to take any illegal or prescription drugs except for drug lawfully prescribed for the offender.

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: 27 September 2022