R v Rustom; R v Vernon

Form 1 matters

1. Each of the offenders asks me to take into account matters on Forms 1. Waeil Rustom asks me to take into account a supply of a prohibited drug namely cannabis. He also asks me to take into account the crime of dealing with property suspected of being the proceeds of crime. That property was $10,205 in cash. He also asks me to take into account the supply of another prohibited drug, heroin, in the amount of 54.4 grams. On Sunday 21 June 2015 in the late afternoon, Waeil Rustom contacted another person asking whether he had "any weed" and, having obtained a positive response, he asked that person to drop past the home of a lady who was known to be a girlfriend of Waeil Rustom and supply cannabis to her. At the time of Waeil Rustom's arrest police found $10,205 in cash in a bedside drawer. By asking me to take that matter into account on a Form 1, Waeil Rustom is in fact admitting that that $10,205 was the proceeds of supplying drugs. At the time of the same search police located in a pillowcase in the basement of Waeil Rustom's premises, a brown coloured powder inside a clear resealable bag. Forensic analysis showed that to be 54.4 grams of heroin with a purity of 59%. DNA testing conducted on each of the plastic bags detected the DNA of Vernon as well as of Rustom.
2. Vernon asks me to take into account three matters on his Form 1. They are the supply of the prohibited drug cannabis, dealing with property suspected to be the proceeds of crime, namely $400 in cash, and supplying a prohibited drug namely the same 54.4 grams of heroin that was found in the basement of Waeil Rustom's premises at the time of the police search. The supply of cannabis in which Vernon was involved was different to that which Waeil Rustom asks me to take into account. On 15 July 2015 Vernon informed a male customer that he had picked up some cannabis which he supplied to a customer. The code name for cannabis was "green smelly sock". There was reference to a quarter sock, meaning seven grams of the prohibited drug cannabis. After the arrest of Robert Vernon at Monterey, police searched the Subaru Liberty sedan which he had then been using in the supply of cannabis and police found within it $400 in cash and plastic resealable bags. By his asking me to take that into account on the Form 1, Vernon admits that the $400 found in his car was the takings from the sale of drugs.

Gravity of the offence

1. A number of things need to be said about the business of this drug syndicate. The syndicate was neither sophisticated nor overly elaborate. The "codes" used for description of drugs are obvious codes and ones with which the Courts and law enforcement agencies are quite familiar. Secondly little attempt was made to disguise those involved. The person whose disguise was greatest was, of course, he who did not deal with members of the public, but was the actual supplier, Waeil Rustom. However, police would have found it easy to work out what was happening from intercepted telephone calls and the like. The third point to note is that this syndicate was not the importer nor the manufacturer nor the ultimate supplier of the drugs. From what I shall discuss when pointing out the personal factors of Waeil Rustom, he had been a user of cocaine who found it convenient to become a supplier because in that fashion he could obtain drugs for "nothing". He would appear to have bought in bulk from someone higher up a distribution network and then formed this syndicate in order to sell cocaine in the Sydney metropolitan area.
2. The maximum penalty as I already stated for this offence is 20 years imprisonment. However 20 years imprisonment is designed for a worst type of case. It is easy to postulate a worst type of case. The small amount of cocaine is 1 gram. The trafficable amount of cocaine is 3 grams. The indictable quantity of cocaine is 5 grams and the commercial quantity of cocaine is 250 grams. A large commercial quantity is 1 kilogram. A worst type of case for an offence contrary to s 25(2) would be, for example, the supply of 990 grams of cocaine. In this case we are dealing with 355 grams of cocaine about one-third of a large commercial quantity and roughly a third of the maximum permissible for a commercial quantity of drugs. Secondly, a worst case would involve an elaborate or sophisticated scheme, which this hardly was. Thirdly, a worst case would be one where the motive for the sale of the cocaine or the distribution and supply of the cocaine was pure, economic gain, the cynical sale of drugs to make money, where those involved in the drug supply were not themselves users or drug addicts. A worst type of case might also include one where there was a second or third offence of the same type. In considering the objective seriousness of this supply, such matters must be taken into account.
3. It has been submitted on behalf of both Waeil Rustom and Vernon that this present supply was below the midrange of objective seriousness. With that submission I concur.

Personal circumstances - Waeil Rustom

1. I turn now to the circumstances of Waeil Rustom. There are a number of sources from which I can ascertain that background. The first is Waeil Rustom's criminal record. The second is a pre-sentence report prepared by Community Corrections on 27 July 2015. The third is an affidavit sworn by the offender himself, on 29 July 2017 and the fourth is a report from a psychologist, Danielle Hopkins, who interviewed the offender at Long Bay Gaol on 20 June 2017 for one hour and 40 minutes.
2. Waeil Rustom was born in Sydney on 24 December 1974. He is currently 42 years old. He is the eldest of nine children. His brothers and sisters currently are aged between 40 years and 20 years. His parents are both still alive. Each is aged 63 years. He attended primary school in Greenacre and then went on to high school at Punchbowl Boys High. Because he was struggling at school he repeated year 11, but it soon became obvious to him that he would not succeed in year 11 and he then left school to start work.
3. His family were involved in the fruit and vegetable markets at Flemington. He had first started working there at the age of 13. The family stall at the Flemington markets was owned by an uncle, Abdul Rustom, who is not to be confused with the offender's younger brother. Apparently all members of the offender's family had worked at this stall at various times. The offender worked in the family business until he married in 1996 when he would have been 22 years old. About that time he commenced working for Woolworths Supermarkets as the manager of a fruit and vegetable department at one of its supermarkets. He worked for Woolworths for about six years. In or around 2002 he left Woolworths and opened up a fruit shop with his brother Omar. That fruit shop operated for about four or five years and when it was operating the offender was working seven days a week and up to 16 hours a day. The business was sold in either 2006 or 2007. The offender then opened a stall at the Flemington Markets which he described as "an expanded venture from my uncle's business". According to the offender's affidavit that business has been successful and is still running at the current time despite the offender's incarceration. It is being run by his brother, Omar. This business employs four or five workers. The offender in his affidavit said that when he was working in the business he was still working five or six days a week and up to ten hours per day, starting work at 1am.
4. The offender admits to have a gambling addiction. He started gambling in 1992 when he was 18 years old. He commenced placing bets on horses in the Melbourne Cup. In his affidavit the offender stated that that led to an addiction to gambling which he has now had for some 22 years. Because of gambling losses he said that he is behind with his mortgage repayments, personal loans and payments for credit card debts incurred by his wife. Nevertheless in 1998 and 2001 the offender bought investment properties in Busby which had been refinanced on a number of occasions but still have outstanding mortgages of $450,000. In [31] of his affidavit the offender said that when he was working at Woolworths and at the markets his whole wage was basically being spent on poker machines and on horses.
5. In his affidavit the offender sought to attribute the onset of his illicit drug habit to an industrial accident at Woolworths in 2002 when he injured his back when he slipped off a ladder. That led to his being off work for six to eight weeks and then he returned to work on light duties. He said that he worked on light duties for about 12 months. He said that he was told that after that 12 month period he was told to return to normal work. In 2002 he was advised by a "work colleague" to take the drug "speed", that is amphetamine, which would help in relieving his pain and stress and could make him work faster. One must take such self-serving statements with a large grain of salt, especially when there is no corroborative evidence. The problem for the offender is that there is a hiatus, a causal hiatus, between what he attested to in paragraphs [32] to [35] of his affidavit with the contents of the following paragraph which is this: "Several months later I remember going to a friend's bucks party and accepted cocaine." He may have attended a bucks party and he may have been offered cocaine but there is no causal relationship between that and having a back injury. The use of some form of stimulant is usual at bucks party, although in our society the normal stimulant is alcohol.
6. The following paragraphs of the offender's affidavit are these: "When taking cocaine it made me feel alive. I had no stress. I was relieved from all the work drama and family problems I was having. After the bucks party I started to consume about a gram every few weeks. It got to the stage where I was consuming one gram of cocaine a week at home just to relax. Before I knew it, years had passed and I was consuming 3 - 4 grams a day." By the time that the offender was consuming three to four grams of cocaine daily he was taking Xanax to help him go to sleep.
7. In 2012 and again in 2014 the offender travelled to Lebanon "to get away from my drug addiction". The history suggests that when he was in Lebanon he did not take illicit drugs. However the offender never sought any professional help for his drug addiction when in Australia. Although he contacted Gambling Anonymous on about two occasions he never followed up his contact with that organisation in order to assist him in giving up his gambling addiction. The offender asks me to accept that his becoming involved in the supply of cocaine followed upon his personal addiction. This is not uncommon, unfortunately. In his affidavit he said this: "The first time I got involved in the supply of drugs was in late 2014 to early 2015. A friend of mine asked me if I could provide him with 2 grams of cocaine. I said, 'Yes', as at this time I was already an addict and had a regular contact that would provide me with cocaine on a daily basis. I contacted my contact and organised 2.5 grams of cocaine for the price of 2 grams. I remember it cost around $500-$600. I lied to my friend and gave him the 2 grams and kept the .5 of a gram to myself for personal use. The first time I supplied a drug wasn't even for money but for a drug gain." It is common for those who take up supplying drugs to have previously been supplied by others and for such persons to supply to others in order to obtain their drugs for nothing or to pay off an acquired drug debt.
8. In [57] of his affidavit the offender said that towards the end that "All day, every day, drugs were on my mind. The sensation of consuming cocaine provided me with such a high that I thought I was invincible and I didn't want to come down".
9. When interviewed by Ms Danielle Hopkins, a psychologist, on 20 June 2017 the offender stated that one of his younger brothers was sentenced to imprisonment for 17 years in around 2004. This would appear to be his younger brother Mohamed who is currently 38 years. Other evidence before me indicates that Mohamed was sentenced to such a lengthy term of imprisonment for a murder within the gaol system. According to the history obtained by Ms Hopkins the offender's brother's sentence was a pivotal point in his life because it started him on daily use of the drug thereafter. However, there is no such averment by the offender himself in his affidavit. Furthermore, he appears to have first taken up using cocaine in 2002. It is a common fallacy for psychologists, psychiatrists and many medical practitioners to argue that because something occurs after another thing that it is caused by it: post hoc ergo propter hoc. That is a fallacy in medicine as well as in logic and in law. It may have caused him to take more drugs than he had been before that time. That was not the genesis of his drug addiction which appears to have arisen in a social context.
10. The psychologist's report makes it clear that not only was the money earned by the drug syndicate used to service the offender's cocaine habit and also his gambling habit, but also to pay for prostitutes. Those were the offender's priorities rather than repaying his mortgages or using the money to care for his family. As a result of the offender's marriage to his wife Joanne, they have four children who are currently aged between 16 and 8.
11. Ms Hopkins has a history that the offender was introduced to cocaine by friends in his late 20's and his initial use of the drug was moderate, one gram once or twice weekly. However, by the age of 30 and leading up to his being arrested he had increased his dosage up to 5 grams a day. She also recorded a history of the need to take Xanax for sleeping, but also that the offender was drinking 10 to 20 standard drinks of alcohol in bi-weekly alcohol binges and that he used the drug ecstasy once a month until his arrest. Ms Hopkins diagnosed a substance use disorder, which is hardly surprising, bearing in mind the offender's addiction to cocaine.
12. The history she obtained confirms what comes through from all of the material before me that the offender became involved in drug supply to support his own significant cocaine use and to reimburse him for his gambling debts and his dissolute lifestyle.
13. The offender has a criminal history. On 12 January 1993 he was charged with hindering police and resisting arrest. Fines were imposed and a sentence of imprisonment until the rising of the Court. He committed similar offences on 22 May 1998 as well as driving whilst disqualified. On 26 November 2000 he committed an offence of having goods in personal custody reasonably suspected of having been stolen. For that he was fined. On 30 March 2001 he was charged with possessing a prohibited drug for which he was fined. On 17 June 2004 he was found guilty of a number of driving offences which are of no great moment except that one of them was driving on an expired licence for which he was fined. There was a further conviction for possessing a prohibited drug on 22 December 2012 for which he was placed on a bond to be of good behaviour for 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999.
14. On 23 November 2009, that is before that offence, he was found guilty of driving on a road while his licence was suspended. For that he was fined and disqualified from driving for 12 months commencing 3 February 2010. However, on 6 May 2010 he was found guilty of driving whilst disqualified from holding a licence, that is, within a number of months of his having been disqualified from driving he was found to be driving, but he was dealt with under s 10 and placed on a bond for two years. However, he breached that bond and was called up on 20 January 2011 and was placed on a s 9 bond for 18 months and disqualified from driving for 2 years commencing on 20 January 2011. The breach was caused by his driving whilst disqualified on 17 November 2010. For that offence he was ordered to perform 200 hours of community service and the same disqualification period (2 years commencing on 20 January 2011) was imposed. On appeal to this Court at Parramatta, the second disqualification period was to commence two years later, that is, on 20 January 2013. He again drove whilst disqualified on 17 October 2012 and on this occasion he was fined $2,000 and sentenced to imprisonment for two years which was suspended pursuant to s 12 on condition he enter into a good behaviour bond for two years commencing on 24 January 2013. On appeal to this Court at Parramatta the term of the suspended sentence and, therefore, of the bond was reduced to 6 months but this Court confirmed the earlier imposed disqualification period of 2 years commencing on 19 January 2015. Fortunately for the offender the good behaviour bond expired before the commission of the current offences.
15. Generally speaking driving offences are of little moment in a case such as this. However, the offender's continuing to driving whilst disqualified shows contempt for the legal system, contempt for the law, and displays an arrogance which is reprehensible.
16. Since being incarcerated the offender has committed two offences, each an offence of possessing a prohibited drug. For those offences he appeared before the Local Court at Lithgow on 4 May 2017 and was sentenced to two months imprisonment commencing on 4 May 2017. I know from cross-examination by the learned Crown Prosecutor that one of the drugs involved was methyl amphetamine and the other was buprenorphine. The offender said in cross-examination that they were not for his personal use, that he accepted them into his custody following a visit by family members and friends in order to pass those drugs on to some other inmate at Lithgow Gaol. I was highly sceptical about that explanation bearing in mind that the offender has not undergone any drug or alcohol rehabilitation since his arrest, but the same matter was deposed to in cross-examination by his brother Omar Rustom. There being some, albeit hearsay, corroboration for the offender's explanation, I am prepared to accept that he did take possession of these drugs in order to hand them on to another inmate. This does not display arrogance, but stupidity, putting himself in harm's way in order to big note himself with another gaol inmate.
17. Despite the fact that the offender has provided little, if any, physical support to his wife and children in recent times the offender's wife Joanne is prepared to stick by him despite the evidence before me of his dissolute lifestyle. His wife and children are now living in rental accommodation in Greenacre, dependent on government support and charity, in particular assistance from the offender's brother Omar. However, the presence of a supportive wife and children is positive for the future. The offender has a wife and children to whom to return, a wife and children to whom he owes much morally, and whose presence should work for the good in encouraging the offender to rehabilitate himself.
18. The offender is also supported by his brother Omar who is prepared to have him back working at the Flemington Markets in the business that he and the offender co-own. Omar Rustom also has a criminal history, but it is clear that he last offended in 2010 and for the last seven years has been living a law abiding and worthwhile life. Again, the presence of a business to return to and the support of his business partner, his brother, is again positive for the future, provided this offender rehabilitates himself. If I give credence to what he says in his affidavit that is his intention. He admits frankly to the fact that "I honestly believe the coming to gaol saved my life".

Consideration

1. It is well established that only in exceptional circumstances will a non-custodial sentence be appropriate for drug traffickers whether a profit has been obtained or not, although position is worse where there has been commercial exploitation. Learned senior counsel for Mr Rustom, Mr Walker SC, with whom Mr James appeared, on the first day of the sentencing hearing essentially conceded that that principle applied to Waeil Rustom.
2. I am prepared to accept that the offender's intentions at the moment are good and that he has not sought to mislead me as to how he presently feels about his position. He clearly wants to rehabilitate himself. He clearly wants to be free of his gambling and drug addictions, but it is easy to be abstinent of drugs and to refrain from gambling when one is in prison. There must be some form of positive reinforcement so that when released from custody the offender will have the physical and psychological resources to resist the temptation to take drugs and to gamble or to adopt other dissolute forms of behaviour such as drinking excess alcohol and the like.
3. I accept Mr Walker's submission that the need for specific deterrence should be considered to have been reduced because of the offender's intention to pursue a path of rehabilitation. Unfortunately, he has not been able in the gaols run by New South Wales Corrective Services to undertake any courses designed to rehabilitate him. It appears from the experience of Mr Vernon, who has been in privately run gaols, that courses are available to him, albeit that he has not yet been sentenced. The rehabilitation to which Mr Walker SC referred was a fact the offender has stopped taking drugs and stopped gambling and stopped using prostitutes since his incarceration. However, as I said, that is not the sole answer to the question of rehabilitation. It depends upon what courses and formal rehabilitation the offender may undergo that will keep him on the straight and narrow once he is released from custody.
4. Keeping the offender on "straight and narrow" has been the cause of another submission put to me by Mr Walker SC that I ought make a finding of special circumstances because the offender will need the assistance of Community Corrections when released from custody to stay on the straight and narrow and that is the best way of ensuring his rehabilitation.
5. Mr Walker SC in his written submissions listed a number of possible aggravating factors, but when one considers those aggravating factors carefully one can see that in essence they are a mere regurgitation of the underlying facts and elements of the offence that the offender committed.
6. On the other hand Mr Walker SC submitted that the offender is unlikely to reoffend and has good prospects of rehabilitation, but again that in my view is dependent upon the offender's undertaking meaningful formal rehabilitation whilst in custody.
7. It has been submitted on his behalf that the offender is also remorseful. Clearly he is ashamed of himself and cares for the shame he has brought upon his family, that is his parents and siblings, and on his wife and children. However, the Court is more concerned not with such matters, but with whether he realises the extent to which that he has hurt the community, the extent to which the supply of drugs hurts the community. Use of illicit drugs destroys lives. There may be many who use cocaine and only a small number of them may develop real social problems, but even a small number who develop real social problems is too many. Furthermore, the drugs are often supplied to people who pass them on to others who do not know how to use them or overdose. No supply of drugs is in any way justified, nor is the fact that cocaine might be thought to be a "party drug" or a drug for wealthy users is any adequate excuse or explanation for involving oneself in supply.
8. It is common ground between the Crown and the offender that the offender pleaded guilty at the earliest available opportunity in the Local Court and is therefore entitled to a 25% discount for the utilitarian value of his plea of guilty.
9. Although I accept that the question of specific deterrence is attenuated in this case by reason of the circumstances in which the offender came to be supplying and because the effect of his arrest and incarceration has had on him, the Court must still apply other principles of sentencing. Those principles include general deterrence, that is deterring others who might be tempted along the same path as this man, to commit the like offence. The Court is also required to pass a sentence which punishes the offender for his conduct and to adequately express our society's disapproval of his conduct.
10. There is a standard non-parole period of ten years. Such would need to be considered much more closely if this offender had pleaded not guilty, had been found guilty after trial and where the Court could find that this case was in the mid-range of objective seriousness. However, according to the usual principles of sentencing a case in mid-range should call for a head sentence of around ten years, not a non-parole period of ten years. This is another flaw in the system of standard non-parole periods. Such flaws are not uncommon in the standard non-parole period system.
11. I have reached the conclusion that the starting point for the sentencing exercise for Waeil Rustom is a sentence of seven years imprisonment. I discount that by 25% because of the offender's plea of guilty at the earliest available opportunity. That reduces the head sentence to five years and three months. The question then becomes what should be the non-parole period. Applying the statutory ratio, the non-parole period should be three years and 11 months. I have determined that the non-parole period should be three years and three months leaving the offender with two years to be under the direction and control of Community Corrections to ensure that the offender does maintain his resolution to stay clear of drug addiction, gambling addiction and a life of crime.
12. The offender must realise, however, that it is not automatic that he will be released from imprisonment after three years and three months. That is because it will be up to the Parole Board to make such a decision and no doubt the Parole Board will want to know that the offender has undertaken all such courses as could be provided to him to ensure that he does not relapse to drug and alcohol use or gambling addiction when released from custody.

Sentence

1. Waeil Rustom on the charge that between 16 June 2015 and 18 September 2015 in and around the Sydney area in this State you did supply an amount of prohibited drug, namely 355 grams of cocaine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, you are convicted. I sentence you to imprisonment. I set a non-parole period of three years and three months commencing on 18 November 2015 and expiring on 17 February 2019. I impose a further period of imprisonment of two years to commence upon the expiration of the non-parole period and expiring on 17 December 2021. The total sentence is, therefore, five years and three months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. I have taken the Form 1 matters into account in passing that sentence.
2. You were arrested on 18 September 2015, but I have commenced the sentence on 18 November 2015 to account for the two month period of imprisonment imposed by the Local Court at Lithgow earlier this year. SHORT ADJOURNMENT

Personal circumstances - Robert Max Vernon

1. Robert Max Vernon was born on 18 March 1975. He is currently 42 years old. His father is an Englishman with an Armenian background. His mother is a Swiss National who migrated to Australia in her childhood. His mother currently lives in a small town near Kempsey on the Mid North Coast of this State where she works as a part-time school teacher. Two and a half years after the offender's birth his parents separated. That was also shortly after the birth of his sister Natasha who currently lives in Darwin. The separation of his parents was not an harmonious one. There was substantial animosity between his parents and there was constant "fighting" regarding custody of the offender and his sister. The offender referred to the relationship between his parents as being "very volatile". His father has married on three further occasions and has divorced on three further occasions. In his childhood the offender came to live in Sydney with his maternal grandmother and his mother in Wollstonecraft. He attended the North Sydney Demonstration School. At the age of 10 he was struck by a motor vehicle whilst crossing the road and had a severe fracture in his right leg and was in a cast for the next six months. There were complications from the fracture and there is still a residual twisting of his right leg.
2. When the offender was nine or ten years old, he and his sister went to live with their father in Queensland for one year. During that one year the offender attended Elanora State School. This was not an easy period for the offender. He attests in his affidavit to his father having no experience in raising children and that might have been because he himself grew up without knowing his own father. The offender and his sister did not like living with their father and they returned to Sydney. Some two years later their father had relocated to Canada where his then wife had been born. The offender went there for a holiday but again there was a clash between the father and the offender. The offender in Year 7 was living with his mother, they had moved to live in Earlwood with her new partner Eric. His sister Natasha returned to living in Wollstonecraft after the visit to Canada, living with her grandmother. In Year 7 the offender attended Kingsgrove North High School. In the following year his mother and Eric moved to Guildford where the offender attended the Granville South High School. It was only after moving to Guildford that the offender was exposed to children from different ethnic backgrounds to his own ethnic background, that is a European background.
3. The offender completed High School in 1992. His better subjects were mathematics, engineering and English. At about the time that he finished school the offender's mother and her second partner separated. His mother moved to the country and the offender moved to live with friends. The offender's affidavit says this; "Between 1993 and 1998 I just 'lived'. I didn't have any goals or job aspirations or even a steady girlfriend. However, in 1993 I completed an Engineering Drafting Certificate at Granville TAFE. At the end of 1993 I was one of six people recommended for positions with Telstra. During this time I was accepted into Architectural Drafting Associate Diploma course at TAFE. I remember feeling torn between advancing my tertiary study and working. I decided to choose work and earning money over further education, and took a job at Telstra from 1994-1996 as a Data Entry Operator. Then from 1996-1998 I worked at Pickford's Records Management as a store-person. I then returned to Telstra from 1998-2012. I have always had a strong work ethic which is why I have always maintained stable employment. I was reliable and well-liked by my employers."
4. As could be expected the offender had immense freedom when he was living on his own. He attests that during that period he was earning good money but never saved any. He experimented with cannabis and smoked it for about 18 months but then stopped using that substance. In 1998 when he was working with Pickford's he met Caterina Fazio to whom he refers as "Cathy". They eventually married. Cathy was from a "very strict", southern Italian family. They married in 2000. After they were married they moved to live together at Chester Hill and, in 2002, their first child was born, a daughter who is now aged 14. Another daughter was born in 2004 and is now aged 12 and a third daughter was born in 2009, who is now aged eight.
5. The offender's wife's second pregnancy was very difficult. At five months gestation there were problems and Cathy was placed on bed rest by the doctor to avoid a premature birth. During that period he was responsible for running the household and looking after his first child as well as working for 11 to 13 hours each day at Telstra. The offender attested to being under a lot of pressure.
6. The offender said that about three months after the birth of his second daughter in 2004 he began to suffer from depression. He was referred to see Dr John Albert Roberts, a psychiatrist. A report of Dr Roberts is before me and attests to the facts that the offender was referred to him by his then general practitioner and has been under Dr Roberts' care since 23 November 2004. The history recorded by Dr Roberts at that time is this: "… Mr Robert Vernon had presented with a history of depression, he referred to having had a rough preceding six months during which his wife had given birth to their second child, that it was a difficult pregnancy; that he felt that he had not dealt with the stress too well; he referred to experiencing dizzy spells but not true vertigo. A variety of medications had been trialled in relation to the dizzy spells without success; that the experience of being dizzy was a further stressor. Mr Vernon stated that he had a responsible position of being in charge of 50 staff at Telstra. When depressed, Mr Vernon described himself as withdrawing from people, that he did not want to go out or be around his daughters and that he was uncomfortable with groups of people." Dr Roberts also obtained a history that the offender had tried various medications but prescription of Zoloft had given positive results and improved the offender's ability to sleep. Symptoms at that time included diurnal mood variation which is a pattern of depression.
7. Dr Roberts diagnosed a mood disorder of the bipolar type. He prescribed a course of antidepressants, an atypical antipsychotic as a mood stabiliser and a benzodiazepine anxiolytic. According to the offender's affidavit he continued to see Dr Roberts every six weeks after his initial referral to him. The offender stated in his affidavit that over the following two years he slowly learned to live with depression, recognising the triggers for that symptom and taking medication to control its onset.
8. In 2007 the offender and his wife and daughters moved to the suburb of Ashbury to be closer to his wife's parents. At the time he made the move to Ashbury the offender was doing well financially and he was able to keep hold of the Chester Hill property as well.
9. However, in 2008 the offender had a major relapse into depression and was hospitalised at a private clinic. This is not referred to by Dr Roberts in his reports but it is likely that he was admitted to that clinic by another psychiatrist. There is reference elsewhere in the material to his being admitted to the Sydney Clinic for that bout of depression. In his affidavit the offender deposed to two further stressors. In late 2009 his father came to live with him and his family briefly and in the same year his sister Natasha was separated from her partner. The offender was helping his father with his legal problems and supporting his sister during her estrangement from her partner which in itself put a strain on his own marriage. Furthermore, throughout the offender's marriage to Cathy there was ongoing conflict between Cathy and his mother. It is not unusual for there to be conflict between a lady and her mother-in-law. Because of their differing views over a number of things, the offender felt drawn into the conflict and tried to distance himself from his mother and his birth family in order to appease his wife.
10. In 2010 the offender and his wife decided to commence a limousine car hire business. The offender's affidavit continues thus: "We both remained working in our respective jobs, me at Telstra with Cathy at Pfizer. I used our savings of $100,000 and the equity in our house to start up Eclipse Limousines. I was warned to go slow and to be careful. Despite this advice, I was so full of confidence that I went all in and invested $500,000 (with loans) in the company. My business plan was that in five years the loan and our house would be paid off. I had my accountant and Cathy both look at the business plan carefully. They both gave the go-ahead, despite the risks involved. I met my business partner, Russell, through a friend. He ran a car company called Eco-taxi so through his contacts and assistance, I purchased three Lexus hybrid vehicles for $102,000 each as well as top of the range limousine for $232,000. My business partner convinced me to lease the vehicles to him as he would provide the drivers and work to cover his lease costs. Things started to go wrong immediately when Russell started doing illegal things with my cars, such as switching number plates, submitting fraudulent insurance claims, not providing the work and I later found out he was using the cars to deal drugs." The affidavit goes on to then point out that the business partner, Russell, borrowed $25,000 from the offender on the basis that it would be repaid within three months but it was not. In order to try to recover the $25,000 the offender engaged a "bikie" to seek to recover the money, obviously by some unlawful means. He paid the bikie $45,000 over a period of six months but never saw either the $25,000 again let alone have any return on the $45,000 paid to the "bikie". The business rapidly lost money. There were $2,400 weekly business costs that he needed to cover from the initial investment. After three months the offender removed his cars from Russell's business, from Eco-taxi, and ran the company himself, putting huge pressure on his Telstra job. He was missing days at work because he was too tired to attend work because he was driving one of the cars each evening as well as working fulltime with Telstra. The offender found it difficult to find a reliable driver for his vehicles.
11. The offender's affidavit continues thus: "It was at this time I began dealing cocaine to clients. I would often get asked by clients for cocaine. I always said 'No, sorry'. But when I was experiencing financial problems, I changed my mind and made the fatal mistake of getting involved in dealing. I began to make money. Cathy found out about the money I had leant out to both Russell and the "bikie" associate, and we began to fight about it, a lot. Together with me barely being at home due to the hours I was working, I moved out of the family home in October 2011 and in June 2012 we officially divorced. I have been going downwards ever since. I love my kids so much but cocaine was so addictive, it took over everything. It was in February 2011 I began using cocaine. It was a gradual use at first but by July of that year I would disappear for two days at a time. I was addicted. I lost my family, my home, I had severe debt, I was having problems at work and I had developed a cocaine habit which was out of control. I moved in with my younger sister for a bit who had no knowledge of my habit. So I was single, a drug addict with a lot of cash on me. I began gambling, spending money on partying and on girls, buying useless items. The bills were mounting from the people I was purchasing drugs from. In April 2012 I relapsed into depression and was admitted to the Sydney Clinic in Bronte and underwent a three week program. I went in with the wrong attitude and ended up just meeting more people who became customers and people to party with when I left."
12. According to Dr Roberts' report, he saw the offender on 28 June 2011 when the offender told him he had been using cocaine for 3 to 4 months. The offender told Dr Roberts that he was nasally ingesting cocaine, rather than using it intravenously. The offender told the doctor that the cocaine was "very weak" although the offender had attributed a decline in his libido secondary to the use of cocaine. Dr Roberts' report says this; "I cautioned Mr Vernon most strongly in regard to his 'experimental use of cocaine', since the inevitability is that such experimental use becomes addiction." Dr Roberts' advice was accurate but was clearly ignored. Dr Roberts saw the offender again on 25 January 2012 when the offender admitted that he had developed an addiction to cocaine. He told the doctor that the cocaine was offered to him by certain of his clients and he was now using cocaine two or three times per week. On 21 February 2012, four weeks later, the offender told Dr Roberts that he was using cocaine on a daily basis and trying to maintain contact with his wife and children. The offender told the doctor that he believed that his position at Telstra was in jeopardy as he was being "watched" and he thought that his employer intended to dismiss him.
13. The offender's affidavit says that he was made redundant by Telstra, that his younger sister, the fruit of the his mother's relationship with her second partner, moved out of the accommodation that she and her fiancé were sharing with the offender, when she found out about his drug use, and then, in February 2013, he was evicted and at the time that he was evicted, his limousines were repossessed. Without motor vehicles, he could no longer run a limousine car hire business.
14. By the beginning of 2013 the offender had acquired a large number of debts. He had borrowed $80,000 from his former wife Cathy to pay legal fees and loans and that money was still outstanding. He owed his sister, Natasha, $27,000, $6,000 to the State Debt Recovery Office, $25,000 on his credit card, $35,000 on his former business loan, he still owed $13,000 to drug dealers and still owed $2500 in rent. LUNCHEON ADJOURNMENT
15. HIS HONOUR: Mr Crown, just going back to Mr Waeil Rustom's matter, there was a 166 certificate and you wanted one of the offences to be dismissed. [Discussion] In the matter of Waeil Rustom, sequence 6 the allegation of possess prohibited drug on 18 September 2015 at namely, 54.4 grams of heroin is dismissed.
16. Eventually, Mr Vernon's cocaine habit brought him into contact with the law. On 27 October 2011, he committed the crime of possession of prohibited drugs. For that offence the Local Court at Balmain gave him the benefit of s 10 on condition that he enter into a bond to be of good behaviour for 12 months. However he breached that bond by another possession offence and on being called up for breach of the s 10 bond was fined $200. The second possession offence occurred on 2 March 2013 when he was given a bond to be of good behaviour pursuant to s 9 for 12 months and for an attempt to possess a prescribed restricted substance, was fined $200. Earlier, on 22 December 2012, he had again committed the offence of possession or attempting to possess a prescribed restricted substance for which he was fined $500 by the Local Court at North Sydney.
17. Prior to the offences now in question the offender committed a number of offences on 19 June 2015. The first was driving whilst under the influence of alcohol for which he was fined $300 and placed on a s 9 bond for 12 months. The second was another charge of possession of prohibited drug for which he was fined $200. The third offence was goods in personal custody suspected of being stolen for which he was fined $200 with the order that the property in question be returned to the owner. He was dealt with by the Downing Centre Local Court on 9 October 2015 for those offences after his arrest. The offences were charged by the Rose Bay Police Station, so I assume that he committed those offences on a visit to the Eastern Suburbs.
18. For the offences of 2 March 2013 the offender was remanded in custody at Surry Hills on 2 March 2013 before being admitted to bail. The offender's affidavit continues thus: "Once out on bail, I basically ran away and went to live with my mum on her property on the mid-north coast. It was a remote property and in order for me to report to police, I would have to hitch a ride into town [Kempsey]. But during this time, I made a huge effort to go straight. I applied for at least one hundred jobs whilst on bail. I went to a few interviews but basically never heard back from anyone. I initially applied for jobs in the areas I had previous experience in, but with no luck. I kept trying and trying. I knew I was smart with a strong work ethic, and managed large amounts of people before, but nobody would employ me. I would have taken anything just for the opportunity to work again. After being thoroughly frustrated with the whole situation, I ended up completing a certificate in Aged Care, just so I could get some work. While staying at mum's property, seeing my kids became difficult because they were in Sydney, which was 450 kilometres away and also because people who I owed money to were looking for me. I would sneak into Sydney to see my kids, then returned to the mid-north coast. I got a job at Bupa working as a nurse looking after elderly people with dementia. The pay was pretty good as I was employed as a casual. I was slowing getting my life back together including getting out of debt. I was repaying my sister $50 per week, SDRO $50 per fortnight. All other debts were still on hold but I managed to save $2000 to buy a cheap car. I was very thrifty with my money once I started working again. The friends I owed money to in Sydney contacted me to ask me to come and help out with some business things that were happening. It turned out that nobody was mad with me, but actually concerned when I disappeared. My friend, Waeil Rustom, was starting a new business and wanted someone with a business mind to run it. It was a convenience store in Wentworth Point. I thought it was a good idea as I would be close to my kids and so in September 2014 I started. My job was to set up the business for Waeil doing things like pricing, communications, advertising, negotiating lease agreements with contractors, et cetera. Within three month or returning to Sydney I was back on drugs, dealing, gambling, drinking and taking Xanax. Next thing I know, the police are knocking at my door to arrest me".
19. Another person who was working at this convenience store at Wentworth Point was the younger brother of Waeil Rustom, Abdul Rustom who is yet to be sentenced. I infer from the opening of the last paragraph of the offender's affidavit which I have just quoted, that those to whom he owed money in Sydney is a reference to those to whom he owed money for drugs, in essence, the co-offender, Waeil Rustom.
20. It is clear from the offender's affidavit, which is supported by the history given by the offender to Ms Caroline Hare, a forensic psychologist, who interviewed the offender for these sentencing proceedings at Parklea Correctional Centre on 20 June 2017 and conducted a second interview with him on the telephone on 10 July 2017, that the offender was a law abiding, hardworking man until his experience in the limousine hire car business was complicated by an unreliable business partner, Russell and opportunities to engage in dealing with those who used cocaine and that his use of that drug and his agreeing to supply that drug at that time in his life was due to the enormous financial difficulties in which he found himself because of his risky business venture. The pressure was such that his drug habit escalated, his indebtedness escalated and his marriage failed. Then in 2013, he left Sydney and moved to the mid north coast where he attempted to straighten himself out, to be abstinent from drugs without the assistance of any experts in the field. He did so. He found work as a nurse but then was tempted to return to Sydney to be near his children and fell in with Waeil Rustom and the other members of the drug syndicate, the subject of this sentencing hearing.
21. The offender has been in custody since his arrest on 18 September 2015, a period of almost two years. In his affidavit, the offender said this: "This is my first time in gaol. It has been a frightening first experience. To be told what to do and when to do it was a shock to the system. I felt the weight of the loss of my liberties that I had taken for granted. Upon arriving at Parklea, I immediately applied for work. Out of the 620 mainstream inmates here, I am one of 40 who works, as the only industry available is Engineering. I began working six weeks after arriving here and continue to do so. I start work at 7am and finish at 2pm, Monday to Friday. In the 17 months of working, I have only missed four days due to sickness. I now have attained the position of Health, Safety and Environment Representative for the Engineering Work Shop. My responsibilities include daily pre-start check lists of equipment, assist with inducting new workers and assist corrective service officer with the general running of the workshop. I have additional responsibilities including distributing lunches, a position only given to the most trustworthy of inmates in gaol. I am fully trusted to be in the officer's station at any given time. Another duty I have is to assess incoming work for what needs to be done, then document it for the officers and inmates before it can be worked on. I also cook the bi-monthly BBQ, another duty based on trust. Since arriving at Parklea, I put my name down for any courses available. I have now completed and attained three TAFE Certificates: (i) Work Ready Course; (ii) Barista; (iii) Manual Handling and OHS.... I have also commenced a course called, "Addictions" which is to help with identifying how you can become addicted to anything including drugs. I am also listed to participate in any new courses as they become available." The affidavit goes on to tell me how the offender has tried to do other positive things whilst in custody but then records that the greatest detriment of being in custody is not being able to see his children.
22. The offender has plans. He intends on his release from custody to return to live on his mother's property and recommence his job at Bupa as an aged care dementia nurse. He intends to try to re-establish his relationship with his children and his former wife and her extended family. He also states that he wishes to re-pay the money that he has borrowed from so many people. He believes that he will be able to do so in the future because he has been able to do so in the past.
23. In the affidavit, the offender tells me that he has had much time to think about what he has done that has brought him to be in custody. He then expressed remorse or, as he calls it, "regrets". There was the break-up of his marriage which he attributes, in part, to his depression. His other regrets, of course, is missing his children and missing married life. He acknowledges that the law exists to protect individuals and to ensure harmony and that in breaking the law he has broken a provision of the law which is designed to protect the members of the public - to protect members of the public from illicit drug use.
24. The offender's efforts to rehabilitate himself in custody are attested to by certificates from TAFE. The offender was not required for cross-examination on his affidavit and therefore I accept what he tells me about his own attempts in custody to rehabilitate himself and the positions of trust that he has achieved whilst in custody. However, what the offender said about his own activities in custody is corroborated by the pre-sentence report dated 20 July 2017 prepared by Community Corrections officer at the Parklea Correction Centre. Part of that pre-sentence report is this: "The Corrective Services New South Wales records indicate he has been employed in the metal shop at Parklea Correctional Centre since 18 November 2015 and has recorded consistently to be a core worker, with a strong work ethic. The records also state he is polite to staff, compliant within metal shop routine and often provides assistance in training new employees in the shop. Mr Vernon has not received any institutional misconduct charges." It could be said that the current offender is a model prisoner. The Corrective Services assess the offender as having a medium risk of re-offending. It records that since his incarceration the offender is prescribed an antidepressant medication which he takes in accordance with the prescription. The offender has been assessed as being suitable for community service.
25. The formulation of the forensic psychologist Ms Hare is that the offender is not currently experiencing symptoms of a clinically diagnosable mental disorder. However it was possible that his symptoms were being adequately managed by his ongoing antidepressant medication. In other words the offender might be suffering from depression but that is masked by his medication. It is highly likely that the offender still does suffer from depression. There are two obvious reasons for that. The first is the fact that he is incarcerated. The second is the fact that he awaiting sentence. Not to be depressed in such circumstances would, in my view, be abnormal. However, it has to be acknowledged that the offender has a long history of a depressive illness and it may be that that is yet another episode of a major depressive disorder. The ultimate diagnosis of Dr Roberts, is the same as his initial diagnosis, that of a "mood disorder of the bipolar type". Dr Roberts expressed this view: "Mr Vernon's downfall is associated with his business venture, of starting a luxury hire car business in which he made contact with certain people who were substance users; this substance use took place in Mr Vernon's car and Mr Vernon was introduced to such substance use by these persons who gave the substances to him without payment. A progressive addiction has developed over time with tragic consequences and aberrant behaviour. The end result of this [addiction] has been a cluster of problems including the ending of his marriage, business difficulties, unusual behaviour in terms of becoming extensively tattooed and a general disintegration in function." Dr Roberts appears to be of the view that being extensively tattooed is somehow aberrant behaviour, but if that were the case there would be thousands upon thousands of people in our community who were behaving in an aberrant fashion, including most professional footballers.
26. Affidavits have also been sworn and admitted into evidence from the offender's mother, Ruth Muller, from his sister Natasha Vernon, from his half-sister Naomi and from his half-brother Elijah. They all support the offender and believe that he is contrite and will not re-offend.

Consideration

1. I accept that the offender has in the past suffered from a depressive illness and was therefore prone to recurrence of that illness. The vicissitudes of life and the failed business venture, the limousine hire car business, contributed a large amount of stress which increased the depression and probably made it likely that the offender would succumb to the attraction of mind altering sensations of an illicit drug such as cocaine. The offender's moral culpability for becoming addicted is attenuated by those various vicissitudes.
2. However, the offender did participate as a loyal lieutenant in Waeil Rustom's drug supply syndicate. He clearly managed it when Waeil Rustom was in Melbourne, but the evidence does suggest that it was fairly strictly controlled by Waeil Rustom who had the ultimate say in who was to be supplied, what was to be supplied and when the drugs were supplied.
3. I accept that the offender is contrite. I accept that he has insight into his behaviour. I accept that he is well supported by his family and has responsible plans for the future which will assist him in living a law abiding life in the future, preventing him from involving himself in a criminal enterprise such as Waeil Rustom's drug supply syndicate.
4. The place of this offender in this criminal syndicate is clearly lower than that of Waeil Rustom, However he was essential for its continued existence. I am confident that there is no need here for further personal deterrence. However, general deterrence still must have its place, as must the community's desire for punishment and retribution.
5. I accept that the offender's prospects of rehabilitation are excellent. It is highly unlikely that he will re-offend. The offender's efforts whilst in custody to rehabilitate himself are rarely seen in this Court's experience and augur well for the future, bearing in mind what he has done in the past both in 2013 when he left for Sydney for the mid-north coast and managed eventually to obtain training to be an aged care nurse and finding such work, and his intention is to return to that milieu where there will be no temptation to relapse to drug use.
6. The sentence of imprisonment to be imposed upon this offender must clearly be less than that imposed upon Waeil Rustom. This offender does not seek to avoid the inevitability of a gaol sentence, bearing in mind the principles that I cited earlier when sentencing Waeil Rustom, that anybody who is actively involved in drug trafficking should expect a full time custodial sentence. The real issue is how long should be the custodial sentence.
7. Having carefully weighed all the matters and bearing in mind what I consider to be very good personal circumstances for this offender I determine that the appropriate starting point for this sentencing exercise is five years imprisonment. That is to be discounted by 25% for the offender's early plea of guilty and the utilitarian value of that plea. That reduces the head sentence to three years and nine months imprisonment. Applying the statutory ratio that would result in a non-parole period of 33 months. However, as I found with Waeil Rustom there are good reasons to vary the ratio between the head sentence and the non-parole period, that is special circumstances.
8. The circumstance here is the offender has done much to rehabilitate himself in custody. The experience in custody has been an unwelcome one for this offender, but such is most often the case. However, he needs firm assistance when released from custody to stay abstinent from drugs and other addictions, such as gambling and alcohol addiction. Fortunately, the offender has been able to commence a course in custody which will assist him in that regard but with a lengthy period on parole, the offender will be able to undertake, in Kempsey, further courses to assist him in staying free of drugs and alcohol. I should point out that there is a correctional centre at Kempsey so the Department of Corrective Services is well established in Kempsey and no doubt can provide courses in that town. I have determined that the appropriate non-parole period is two years imprisonment.
9. Robert Max Vernon, on the charge that between 16 June 2015 and 18 September 2015 in or around Sydney in this State you did supply an amount of a prohibited drug namely 355 grams of cocaine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, you are convicted. I sentence you to imprisonment. I set a non-parole period of two years commencing on 18 September 2015 and expiring on 17 September 2017. I impose a further period of imprisonment of one year and nine months to commence upon the expiration of the non-parole period and expiring on 17 June 2019. The total sentence is therefore three years and nine months comprising the non-parole period and the balance of the sentence. I have found special circumstances. 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 matters on the Form 1.
10. HIS HONOUR: Now the 166 Certificate? GILSON: The same as for Mr Waeil, just if your Honour would dismiss possess prohibited drug which is the back-up charge to the matter on the Form 1. HIS HONOUR: That is sequence 13 is it? GILSON: That's correct your Honour. HIS HONOUR: Sequence 13 possess prohibited drug on 18 December 2015 namely 5.4 grams of heroin is withdrawn and dismissed. [Further submissions]
11. MFI #X FIRST FORFEITURE ORDER MFI #Y SECOND FORFEITURE ORDER HIS HONOUR: Pursuant to s 35 of the Drug Misuse and Trafficking Act 1985 I make the following orders with the consent of the solicitor for each of the six offenders who appeared before me on Monday. The following mobile telephones are now forfeit to the Crown: 1. one white/silver iPhone, seized during the execution of a search warrant at 69 Maiden Street, Greenacre on 18 September 2015, being police exhibit X0002142713. 2. one Samsung mobile phone seized during the execution of the search warrant at 69 Maiden Street, Greenacre on 18 September 2015 being police exhibit X0002142714. 3. one Medion E4002 mobile phone seized from Cabdiqure Gure on 15 October 2015 being police exhibit X000890999.

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: 07 September 2017