R v Taleb

Objective seriousness

1. In terms of quantity this is far closer to the entry level for marketable quantity than it is to the upper level. The quantity of a drug of course is not a determinative factor but it is nevertheless one that needs to be taken into account.
2. The role of the offender would appear to be as a courier. His statement that he needs to "restock" in all the circumstances suggests that he is a person who does more than simply courier. As noted below however, the evidence does not establish his role to be beyond that of a courier, or perhaps collector.
3. The Crown argues that the role is more than a mere courier and points to the use of an encrypted app, and the fact the offender was liaising with the caravan park. I accept that dealing with the caravan park is beyond a mere function of collecting or couriering. The use of an encrypted app, without more, does not heighten the offender's status, though it does suggest the organisation the offender is involved with has a degree of sophistication. That the offender is not "management" is borne out by the fact he was to receive 28g of cocaine for his own use as payment for his conduct. The agreed facts show the offender offering to perform his role on 30 November, which further supports his role as a limited one.
4. The objective seriousness of the offending is below the mid-range.

Subjective case

1. The offender gave evidence. The offender's evidence as to his history was not the subject of any challenge. There was some challenge to the suggestion by the offender that what he was involved with was strictly for his personal use. In terms of his history, he has a significant work history having reached the position of executive chef which the evidence showed was a term used to designate the chef in charge of a large operation. He gave evidence of having been headhunted by sizeable restaurants and of being asked to go and work in a restaurant in Las Vegas. He has available to him, subject to the outcome of these proceedings, a job as a chef in the centre of Sydney which is said to be a "high-end" restaurant. In the past he has been responsible for as many as 150 chefs and was on a salary of $200,000 per annum. He maintains he is good at what he does and gave an example of having recently helped a restaurant increase its weekly turnover from $24,000-$44,000 in a period of just four months. He left that job without notice due to his drug use and in what might be something of an understatement said that his connections with the owners deteriorated. He said he went missing for a week at a time due to using so much cocaine.
2. The offender's substance abuse or to be frank drug addiction does not arise out of any circumstances of disadvantage. Quite the contrary it started when he was young as a form of recreation. He was working in an intense working environment involving long hours and split shifts and a great volume of work causing stress and he resorted to cocaine as a stress release. He said it just got out of control.
3. As a result of his drug use, he has lost his house, his marriage broke down, and he now has less time with his children.
4. On about 18 March 2023 the offender attempted suicide. He remained in the city apartment where he lived for three days and said that he tried to jump and that he tried to slit his wrists and took depression pills and was found by police and taken to St Vincent's Hospital. On the offender's case the admission to St Vincent's is his nadir; he says that he now wishes to turn his life around and no longer take drugs and drink and wants to be a better person. The last date on which he took drugs is uncertain on the evidence but no more recent date than shortly before 18 March 2023 was put forward so that he has now been abstinent for about six weeks.
5. On the day of his arrest roadside testing showed him positive for methamphetamine but more stringent testing returned a negative result. Consistent with that he said that his drug was cocaine though he would not rule out it being cut with other substances. He said he had only sought cocaine in the last five years and indeed longer than that. He was asked the obvious question as to why he thinks he can now beat his addiction when so many people have tried in the past to help him. He said he had ignored the offers to help in the past but he now knows he has a problem and that he needs to deal with it. He said six weeks was the longest period that he had not had drugs for years, or to use his expression "being dry".
6. The offender with his ex-wife have two children aged 12 and 8. The evidence was he speaks to them each day and he said he had spoken to the eldest on the morning of the hearing. His relationship with his ex-wife is not good. He described that things were "nasty there" and that there was an AVO against him which is to be before the court in July. They had a chicken shop in Wollongong which they lost due to his drug habit.
7. The offender has been subject to bail conditions since December 2021 a period of now approximately 18 months and apart from the obvious lawbreaking involved in drug addiction has been compliant with those bail conditions, with the possible exception of failing to report as noted at [2] above.
8. The offender gave evidence that he had attended a Narcotics Anonymous meeting. It was unclear just when, or how many meetings he has attended. He said he could not afford residential rehabilitation. He said he had never made plans for treatment in the past.
9. The offender's case is not a strong one when it comes to evidence of efforts at rehabilitation. A number of documents were tendered in this regard. All of them postdate the attempted suicide of 18 March 2023. There is a letter of 18 March from the hospital confirming the offender spent time at the hospital for a mental health crisis from 17 March to 18 March. There was also as Exhibit 2 a discharge summary confirming a discharge date of 18 March 2023 which is also said to be the admission date though this discrepancy in my view has no significance. The issues identified on the discharge summary were polypharmacy overdose referring to a staged overdose and refers to suicidal ideation in the context of recent stressors namely this sentencing hearing and relationship breakdown. The report goes on to state that the offender is now future focused and does not appear mentally disordered or ill. Exhibit 3 was a letter from his GP stating the presenting problem to be issues with depression and anxiety and referring him to a psychologist.
10. Exhibit 4 is another letter of the GP recording that when he attended an acute Centre for follow-up which I take to be a reference to counselling by a psychologist where the offender says he was dealt with in what is said to be an offhand way. Following that there was a referral to a private psychologist but he could not afford to go. Exhibit 5 is a GP mental health care plan which I presume is what led to the attendance at the psychologist that was unsatisfactory. Notably that unsatisfactory psychologist experience occurred on 11 April 2023. It is of concern that no better efforts have been made to make use of the mental health care plan the point of which is often said to be to gain government funded counselling. The initial action plan indicates little more than that there has been a diagnostic assessment and that he is being referred. Given the precarious position the offender is in as well as his obvious dire need for assistance with long-term drug addiction the efforts he has made are less than what one might expect.
11. Returning to his oral evidence the offender gave evidence as to what the agreed facts referred to as a conversation in which he referred to a need for him to "restock". That clearly has overtones of a person in the business of supplying drugs which of course is not the charge he is facing. His explanation was that he was trying to get cocaine from the person he was picking the package up for which would last him a couple of weeks, so that he asked the court to believe that the restocking was for personal use. The fact that cocaine was involved as the payment was said to be supported by, and I accept, the reference to the offender saying "tomorrow we should be okay nose?". The word "nose" is said to be and I accept slang for cocaine.
12. In cross-examination the offender admitted that when he told the sentencing assessment report writer that he did not know the package contained methamphetamine that he did in fact know that was in the package. He agreed that having multiple mobile phones and an extendable baton was consistent with dealing with drugs. He did not however admit to dealing drugs and made the point that one phone did not work and one was a work phone and the final phone a personal phone. At the time of the offending, he was working for an employment agency assisting people with disabilities to get work. He did not agree that he knowingly used methamphetamine. He said he had never met the person he was communicating with by text message in relation to picking up the package. He did not know the addressee of the package and said he thought he was fictitious. He said he had been told the day before by the unknown person, that is, the person he was texting, that it was methamphetamine. He said he bought drugs from that person through a third party. He said he had been more honest with his doctor about drug use since his suicide attempt. He said he did not want to take medication to assist with drug withdrawal and believes he can do it without those drugs. He accepted the connection between drug use and his mental health.
13. It was put to him that having been arrested in November 2021 and spending seven days in custody that the need to rehabilitate would have been obvious. He said he did think about it then. He said that when a person is ready to change, they can and that he was very remorseful. He said it is not who he is and he could not answer why he did not earlier seek to rehabilitate. In re-examination it was clarified that the phone he said was a work phone had indeed been returned to his employer.
14. Having considered the offender's oral evidence I am satisfied that the reference to "restock" was a reference to gaining cocaine for his personal use.
15. A sentencing assessment report dated 14 April 2023 was tendered as part of exhibit "A". It confirms his history of employment as set out above albeit very briefly. It refers to him minimising his behaviour by denying that he knew what the package contained and by saying that he was just helping a friend. The above evidence shows, and I find that that attitude has now changed though as with all the considerations concerning the offender's vows to have turned a new leaf it must be viewed guardedly given as it comes very late in the sentencing process and long after the offending occurred.
16. Favourably however the report states the offender shows sound insight into the impact of the drug trade on the community and he has a willingness to undertake intervention supported by having engaged Narcotics Anonymous. He is willing to carry out community service work and was considered suitable for that.
17. He was assessed as a medium to low risk of reoffending.

Sections 17A and 16A

1. By section 17A of the Crimes Act (Cth) ("CA") a term of imprisonment should only be imposed where no other sentence is appropriate. In determining what the sentence should be section 16A CA sets out a non-exhaustive list of considerations. The following determinations on these matters rely on the above review of the evidence and refer only to the considerations which are relevant.
2. The nature and circumstances of the offence have been considered above in determining the objective seriousness to be below the mid-range.
3. I note that upon arrest the offender was also charged with possessing an offensive weapon and possessing prohibited drugs for which he has now received a fine and a community correction order when dealt with in the Local Court. There was no submission that the principle of totality had any role to play in this case and in my view sensibly so given the outcome of those summary matters. Just why he was in possession of the steroids where his case is that his drug is cocaine is unclear. The Crown quite fairly did not make any submission of there being any larger involvement of the offender in criminal drug activity than the charge itself; as to the weapon, one can readily envisage that a weapon might be in possession of a person as heavily addicted to drugs as this offender.
4. This offending does form part of a course of conduct of criminal acts namely the continued illegal use of drugs leading up to the offending. The offender however is not facing any other criminal charges and in my view this course of conduct is something that should be taken into account in considering his prospects as to rehabilitation and reoffending
5. I take into account that due to the actions of the authorities none of the drugs in question reached the community. Whilst this aids the offender it must be noted that it is entirely due to the actions of others. I also take into account the potential for his conduct to have led to the drugs reaching the community and their potential harm and damage to society as a result should be recognised.
6. I accept that the offender has shown remorse and contrition. That acceptance is however somewhat guarded. The offender was very frank in the witness box and did not seek to avoid some difficult questions asked of him. He did come across however as somewhat stilted and to being in something akin to a state of shock and fear, doubtless due to the possible outcome of a term of imprisonment for his offending. His failure to take any adequate steps towards dealing with his addiction since his arrest prior to March 2023 does not strengthen a view of a person fully embracing his wrongdoing and having a determination not to continue the way he had been living his life. So much has gone wrong for him as a direct result of drug use; the loss of the shop at Wollongong, the loss of his family and his inability to hold down a job as a chef are each an instance on their own which might have made him realise the need to rehabilitate let alone his arrest and seven days in prison.
7. That said, there were the dramatic events of 18 March. Regardless of whether it was a genuine attempt at suicide or an extreme cry for help those events show the offender to have been at the lowest point he had experienced or at least arguably so.
8. I proceed on the basis that the offender is truly remorseful and certainly does wish to change his life but nevertheless I also adopt a guarded view as to his prospects of doing that given the obvious very strong hold on him that cocaine has. It is of assistance to him that he is assessed as being only a medium to low prospect of reoffending and I take that into account. It is also of assistance to him that he has work skills and a good job waiting for him if he was to remain in the community. He also has family support and I note that his brother, sister-in-law and current partner all attended court in Coffs Harbour to support him. There would also seem to be some continuing support from his ex-wife and children given that he speaks to the children each day. That his ex-wife permits that to occur shows that she is supporting the continuing relationship between the children and their father even in circumstances where there are AVO proceedings presently on foot.
9. As noted above the offender has not been the subject of any breach action in the now 18-month period of being on bail. Whilst he plainly has continued to use drugs in that time it does demonstrate that he is able to remain in the community without committing any offence. In that regard he does have a criminal history however his only offence between 2010 and this offending was driving whilst his licence was suspended in 2021. Up to 2010 his offending was largely in the nature of driving offences though there was an offence of dishonesty. Notably 2010 would approximate within a period of a year or so the birth of his eldest child. I would infer on the evidence that the period since 2010 in career terms was hectic and successful. This shows that when meaningfully engaged in prosocial activity there is a lack of criminal offending. The downside to this unfortunately is that the stress of work also played a role in the offender developing his addiction to drugs.
10. The offender pleaded guilty at the Local Court stage, and it is considered by the Crown that a discount of 25% would be appropriate.
11. It is necessary that any sentence in all the circumstances of the case bear in mind the purpose of sentencing of general and specific deterrence. The ultimate submission of the offender is to seek to have a form of community-based order and the most significant obstacle to that result is the need for deterrence. It is also necessary to ensure that the offender is adequately punished and that the sentence reflects suitable denunciation for his conduct.
12. I have referred to the offender's prospects of rehabilitation above. The offender is a long-term drug user so gripped by the effects of the drug that he has allowed it to ruin a life that many would envy, with a job, a wife and family and a family home. The steps he has taken to date are not overwhelming. For that reason, any assessment must be a guarded one. The submission that the offender is not part of a criminal milieu is not wholly accepted for he plainly does move in circles where criminality is the norm. I do accept the submission to the extent that it is intended to convey that the criminogenic factor here is the addiction so that, as is so often the case, the likelihood of reoffending is wholly tied to his ability to remain abstinent. The underwhelming efforts at rehabilitation taken to date are offset significantly by the fact that the events of March 2023 are likely to be the low point of his addiction and he does have family support, medical support and employment which are all matters that will assist the offender to maintain abstinence. Further that he has been free of offending since 2010 (but for the one driving matter) despite what has been an intense period of addiction encourages an outcome that would see him remain in the community.
13. No submission was made as to the effect that the sentence may have on the offender's family or dependents. This may well reflect the fact of the relationship breakdown and the current AVO proceedings. Nevertheless, he has two young children who speak to him each day and it would plainly be in the best interests of those children if their relationship with their father could be promoted and particularly so at a time when he is abstinent from drug use. Whilst it may in the overall scheme of things be of minor impact, I nevertheless take into account the likely benefit to his children of him remaining in the community.
14. Section 16A(3) expressly provides that in determining whether a sentence or order under section 20(1) is the appropriate sentence or order the court must have regard to the nature and severity of the conditions that may be imposed on or may apply to the offender under that sentence or order. Suffice to say that any community-based order will be subject to significant conditions involving community service work and interventions aimed at rehabilitation.

The issue

1. In submissions the offender's counsel frankly acknowledged that commonly a sentence for this offence would see a range for a head sentence of 4 to 5 years. If that was the outcome then the argued for community-based outcome would not be available. This is because an Intensive Correction Order would be prohibited by section 68 of the Crimes (Sentencing Procedure) Act ("CSPA") and immediate release by way of a release recognisance order would not be available pursuant to section 20 of the CA which permits immediate release on such a recognisance where the term does not exceed three years.
2. Reference was also made in submissions to the reality that drug offending carrying a maximum sentence of 25 years commonly sees a term of full-time imprisonment in custody.
3. Mr Korn for the offender was of great assistance and made reference to a number of cases of long-standing one of which may even be considered to be before its time. That was the case of R v Bardo NSWCCA unrep 14.7.92 BC9203244 which was an appeal against leniency for a charge of supplying 4.9 g of heroin. It was an isolated involvement by the offender in drug trafficking. A non-custodial sentence was imposed at first instance. The appeal was dismissed on the basis that the conduct of the offender did not constitute trafficking in drugs to a substantial degree. Reference was made to the case of R v Clark (unrep NSWCCA 15.3.90) which had held that where there was trafficking to a substantial degree it would only be in exceptional circumstances where there would be a non-custodial sentence.
4. Parente v R [2017] NSWCCA 284, nearly 30 years later, went further than Bardo in theory though perhaps not too much further in practice. Parente decided that the so-called principle from Clark offended the provisions of section 5 of the CSPA, which has its corollary in section 17A of the CA, which provide that it is only after having considered all possible alternatives and concluding that no other penalty was appropriate that there should be a sentence of imprisonment. The short point of Parente was to emphasise that each case is to be determined on its own merits without being the subject of some non-legislative prescription; see at [90]. At [94] it was said: "the task of the sentence is to take account of all the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis"
5. Commencing at [107] of Parente the Court set out the correct approach to sentencing in drug supply cases. The present case is of attempting to possess a substance as opposed to supplying, however as a matter of principle what is said in Parente is relevant. At [96] of Parente the Court cited the following passage from Markarian v The Queen (2005) 228 CLR 357: "The judgment is a discretionary judgment and as the bases for appellate review reveal, what is required is that the sentencing must take into account all relevant considerations (and only relevant considerations) informing the conclusion reached. As has now been pointed out more than once there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords the statutory regime that applies"
6. Reference was also made to the judgment of Simpson JA in Robertson [2017] NSWCCA 205, where her Honour stated that where it had been determined that there was to be a term of imprisonment, nothing in section 5 (and I would add section 17A) directs the judge to exclude any non-custodial means by which the sentence may be served.
7. The reference in the above citations to the statutory regime and the provisions of section 5 are of significance here. I have noted above the unlikely prospect of an ICO outcome in this matter due to the provisions of section 68 and the fact that there is just one offence the subject of the sentence. Yet the regime of the Commonwealth legislation by section 20 allows in an appropriate case for a person subject to a term of imprisonment of as much as three years to be immediately released upon a recognisance. The provision enlarges the availability of an outcome akin to an ICO for a single offence to a period of three years rather than just two.
8. It is in that background that the competing arguments of the parties need to be viewed. The argument for the Crown was that a parole-based disposition was appropriate by which is meant that the term of the sentence would require the setting of a parole period or non-parole period which indicates that within legitimate bounds the Crown was arguing that any term of imprisonment would need to be in excess of three years. I would note that the Crown tempered that view after having heard the evidence of the offender.
9. There was no argument that there was no sentence that was appropriate other than a term of imprisonment. With that I agree. There is a great need to deter in general terms the involvement of people in illegal drug activity for the obvious reason of the immense harm that it causes the community. The offender himself is a classic example of that.
10. In terms of the length of the sentence the Court was provided with a schedule of cases of which there were three. One of those is the case of Omorogbe v R [2013] NSWCCA 201. The drug there was cocaine in the quantity of 106.4 g pure so a larger pure quantity than in the present case. The offender had no history of drug use or addiction. He was in debt at the time of the offence and was found to have $805 on his person which was found to be payment for collecting the cocaine from a post office. The offender was in his 50s and had no criminal record. The initial sentence of five years with a non-parole period of three years was reduced to 4 years with a non-parole period of 2 ½ years.
11. Other examples showed more severe sentences than that. Statistics were also provided which showed that of 38 cases of offences under section 307.6(1) four had been dealt with under section 20(1)(b). Another seven cases had been dealt with by way of an ICO. The statistic is of principal offences only so this shows that 11 cases out of 38 received a sentence of three years or less.
12. The limitation on the use of statistics and comparable cases is recognised. The selection of cases referred to as comparable tended in a different direction than the statistics.
13. There are two broad points that most favour the offender and which need to be taken into account together with all the other considerations including the need for deterrence and denunciation. The first point is that whilst in order to source the drugs for his personal use the offender I infer had regular contact with criminal elements he is not a person who has been actively involved in ongoing drug offending. The offender expressly did not make the submission that his conduct was an aberration but the offender's point of the offender being entrenched in a drug milieu as distinct from a criminal milieu is accepted in part, and is relevant to considering his prospects, and in determining the appropriate outcome. The second is to remember that section 16A expressly refers to the prospect of rehabilitation of the person. The submission of the offender was that imposing a sentence of full-time custody would expose the offender to significant anti-social influences and may lead to a worsening of his anti-social characteristics rather than an improvement of them. There is in this case no evidentiary support for that proposition but it is an assertion that has the support of the second reading speech of the Attorney General in respect of the 2018 reforms relating to the State regime of intensive correction orders where it was recognised that short-term periods of incarceration have been shown to be not as effective as would be hoped in preventing recidivism. The submission of the offender which I accept is that the likelihood of reoffending is more likely to be reduced by providing as far as possible rehabilitation intervention and in an environment where that is supported. On the facts of this case rehabilitation in my view is more likely to be achieved in the community with the support of family and with work commitments and with ongoing counselling. In this way a community-based order better promotes community safety.
14. Whether the argued for a community based result can be considered requires the term of imprisonment to first be determined. Taking into account the range of matters discussed above, and prior to the application of the 25% discount, the term of imprisonment is 3 years and 9 months. The term after the discount is just under 34 months and after allowing for the 7 days in custody it will be rounded down to 33 months.
15. This means that the imposition of an ICO is prohibited by section 68 but that section 20 of the CA needs to be considered.
16. By section 20(1)(b) the offender may be sentenced to imprisonment but be released upon certain conditions either immediately or after having served a specified period of imprisonment. It is notable that the section goes on to provide that in respect of a child sex offence unless exceptional circumstances are shown there must be served a specified period of imprisonment. In other words, the legislation allows for a person who has committed a drug offence of the type presently being sentenced to be released upon a recognisance immediately without having served any time in custody (and here there has been 7 days spent in custody).
17. The obstacle identified above for this outcome for the offender, always remembering the instinctive synthetic approach being adopted, was whether or not it adequately serves the purpose of deterrence. In my view it does. To be released upon a recognisance which will be for the period of the term of imprisonment which is 2 years and 9 months in the circumstances of this case has significant deterrent effect. The offender has been arrested, has for the first time in his life endured 7 days in custody, has experienced the legal process for a period now of some 18 months where he was throughout on conditional liberty with bail conditions and now must submit to the conditions of the recognisance order for a further period of 2 years and 9 months. Throughout that time any non-compliance with the orders may result in further action taken under section 20A directing him to appear before the court with the prospect of the recognisance order being revoked and then being sentenced in any manner in which he may have been dealt with initially. In short it may see him resentenced to a term of imprisonment of full-time custody. For a person who has not experienced custody before and who has had the limited offending history of this offender and who finds himself in this position due to his drug addiction but otherwise having led a largely pro social life, that is a significant deterrent. The period for which his life is subject to some kind of restraint by reason of his actions is 4 years and 3 months. The consequences of the wrongdoing of the offender also serve as a general deterrent.

Orders

1. For those reasons the following orders are made: 1. Of the offence of attempting to possess an unlawfully imported border-controlled drug of a marketable quantity in breach of sections 11.1 and 307.6 of the Commonwealth Criminal Code the offender is convicted. 2. The offender is sentenced to a term of imprisonment of 2 years and 9 months from 5 May 2023 3. I direct that the offender be immediately released upon giving a security in the amount of $1000 and to comply with the following conditions: 1. To be of good behaviour. 2. To submit to the supervision of an officer of Community Corrections in which regard he is to report to the Sydney office of Community Corrections by no later than 12 May 2023. 3. That he obey all reasonable directions of the community corrections officer. 4. To undertake drug and alcohol counselling, as directed by the community corrections officer including unless directed not to do so in writing by the community corrections officer: 1. completing the mental health care plan being Exhibit 5 and; 2. By 12 May 2023 make an appointment to attend upon his GP to obtain any further referral to an appropriate drug and alcohol counsellor, as the GP considers appropriate (and it may be that there is no further referral), and to then within 7 days of receiving any such referral to make an appointment to engage with that process as directed by the person he is referred to. 1. That he not take any illegal drugs, nor any prescription drugs that are not prescribed to him. 2. That he not travel interstate or overseas without the written permission of the community corrections officer.

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: 05 May 2023