CRIME - sentence - knowingly take part in supply of prohibited drug
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CRIME - sentence - knowingly take part in supply of prohibited drug
Judgment (2 paragraphs)
[1]
Judgment
My practice is to tell people in advance what sentence I am going to impose. I have to give reasons for my sentence but you are more interested I would expect in the final outcome. I propose to sentence you to a non-parole period of two years two months commencing from 2 February 2018, that non-parole period will expire on 1 April 2020. I propose to fix a balance of sentence of one year seven months, that will expire on 1 November 2021. It is a total sentence of three years nine months with a non-parole period of two years two months. Do you understand that?
OFFENDER: Yes, your Honour.
HIS HONOUR: You will be eligible for release to parole on 1 April 2020 but as you know, it is likely that you will be taken into immigration detention and likely be deported. Do you understand that?
OFFENDER: Yes, your Honour.
HIS HONOUR: Thank you. Now, I want you to understand, Mr Wandji Watchou, in sentencing you, I have treated you as I would treat an Australian citizen. Do you understand that?
OFFENDER: Yes, your Honour.
HIS HONOUR: I realise of course that if you get released on 1 April 2020, you will not be subject to parole supervision because you will go overseas.
OFFENDER: That's right, your Honour.
HIS HONOUR: I cannot take that into account. I am not saying I should but the truth of the matter is ultimately you will not actually be subject to parole supervision but that has been the law of Australia or of New South Wales for many, many years. Now, I will give my reasons and then I will make the final order when I am finished, do you understand?
R v Wandji Watchou [2019] NSWDC 907 | Case summary | Zoe
OFFENDER: Yes, your Honour.
The prisoner, Walter Williams Wandji Watchou, appears today in respect of an offence for which he was committed for sentence, that is an offence that alleges that he between the seventh day of December 2017 and the second day February 2018 in the State of New South Wales did supply and knowingly take part in the supply of an amount of a prohibited drug to wit 586.75 grams of 3,4-methylenedioxymethamphetamine being an amount which is not less than the large commercial quantity applicable to that prohibited drug.
This is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of life imprisonment and or 5,000 penalty units. There is in this matter a standard non-parole period of 15 years imprisonment. I am also required to take into account three other offences that are closely related to that principal offence. These matters are taken into account on a Form 1.
Firstly, there is an offence of dealing with proceeds of crime which is $9,800, an offence of supplying a small quantity of a prohibited drug, to wit 0.92 grams of cocaine, which is sequence 7 in the court attendance notices and a further offence which is sequence 13 of participating in a criminal group and contributing to criminal activity. Each of these offences are to be taken into account in relation to the principal offence, the sequence 6 offence which I have already outlined.
The prisoner was born in August 1992. He pleaded guilty at the Local Court and was committed for sentence and will receive for the utilitarian value of the plea of guilty, a discount of 25% of what would otherwise be the appropriate sentence for the principal offence. In sentencing the prisoner in relation to the principal offence, I take into account the matters in the Form 1 in accordance with the guideline judgment of the Court of Criminal Appeal from 2002 in respect of such matters, that is Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147, particularly the observations of the Chief Justice at [18]-[44].
Of course, in sentencing an offence taking into account matters on a Form 1, one is required to concentrate on the appropriate sentence for the principal offence. However, the fact that matters are taken into account on a Form 1 may give need to put greater weight upon personal deterrence and the community's entitlement to extract retribution. His Honour said in relation to the process, at [15], that:
"The entire point of the process is to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the primary offence had stood alone."
His Honour went on to say:
"It is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial."
However, there are limits to this. First of all, the maximum penalty for the primary offence, the principle of "totality" is a relevant matter, the relationship of the offending on the Form 1 to the principal offence. In this particular matter, the deal with proceeds of crime offence and the participate in a criminal group and contribute to criminal activity offence, which are the more serious offences on the Form 1, are intimately connected with the character of the offending for which the prisoner is for sentence today.
In relation to this matter, I mentioned at the outset that I have sentenced a number of offenders concerned with a criminal enterprise with which the prisoner was concerned. I have sentenced Mr Hannachi and Mr Chamon when they last appeared before me on 19 July 2019. There have been two other people that I have sentenced including a Mr Micah and a Mr Bianchi who were offenders connected with the criminal organisation of which the prisoner was a member, but at substantially lesser roles than particularly Mr Hannachi and Mr Chamon. Of course, the role of this particular prisoner is a significant matter to analyse.
The Agreed Statement of Facts that I have is concerned with this prisoner, Hannachi, Chamon and Micah. It sets out the character of a police investigation between 2 November 2017 and 6 April 2018 targeting this particular prisoner and those other people as well as man called Coulaud, a French citizen who was intimately involved in a range of criminal activities but apparently left the jurisdiction before he could be charged. This prisoner, unbeknownst to him, was the subject of extensive surveillance, both electronic and physical, over a period of time and there were controlled operations enabling negotiations to occur between this prisoner and others with operatives working on behalf of the New South Wales Police Service.
The facts set out the statement that the prisoner was in possession of what was called a "run phone", which assisted him to facilitate drug supplies. It is clear from an overall assessment of the statement of facts as it relates to each of the related offenders, that Mr Hannachi was a person not only with greater responsibilities than this prisoner, but he was directly involved in giving instruction to this particular prisoner, and to whom this prisoner reported. The matter on the Form 1 of supplying the very small amount of cocaine, arose between the 6th and 7 December 2017, and was a drug supply arranged by this prisoner to a known person for $300. The cocaine had a purity of 37%.
The principal offence of supplying a large commercial quantity committed by this prisoner, occurred on a number of occasions. In other words, the total amount of the prohibited drug is an accumulation of MDMA supplied on different dates. The dates on which the prisoner supplied MDMA include 14 December 2017 and 21 December 2017, when the prisoner supplied 28.71 grams of MDMA. On a previous occasion, he had supplied 3.14 grams. On 28 December 2017, the prisoner was involved in the supply of 194 grams of MDMA. The prisoner was further involved in the supply of 219.9 grams of MDMA on 4 January 2018, in circumstances where I hasten to say, he was recorded as stating that, "20 ounces", of the drug was his, "maximum supply", but his supplier could move, "5 kilograms".
Furthermore, the prisoner was involved in a further supply of 141 grams of MDMA on 30 January 2018. Then ultimately, as the facts revealed, he was arrested on 2 February 2018 in possession of $9,800 in cash, in addition to the, "run phone", when he was stopped by police in Goulburn Street, Surry Hills on that date. That brought to an end his role in the, "syndicate" and the $9,800 constitutes his involvement in the offence on the Form 1 of dealing with suspected proceeds of crime. Clearly that cash was related to some of his drug supply activities.
I also note in relation to the further matter on the Form 1, of participating in a criminal group, the facts state, and are agreed by the prisoner, that he participated in the group knowing that his participation in that group contributed to the occurrence of criminal activity, as exemplified by the "controlled buys", as they are described, to which I have referred. Each of those supplies were controlled supplies where the drugs fell to people acting on behalf of the police.
The facts also identify the prisoner as being within the thrall of Mr Hannachi. Part of the facts note in the context of the supply on 28 December 2017, of 194 grams of MDMA that the prisoner, Hannachi, and another man were, "holidaying", on the Gold Coast. The prisoner, again unbeknownst to him, was monitored by electronic and physical surveillance, "organising and sourcing" 7 ounces of MDMA for supply and the prisoner was directly contacted for the purposes of that supply. It is clear from the facts as they relate to each of the supplies that the prisoner was not only an active participant in the supplies but was making arrangements for the particular amounts that were to be supplied. However, in any understanding of the facts, the prisoner was reporting to Hannachi or alternatively seeking Hannachi's assistance in order to meet the particular order that he had made. On 4 January 2018, when he supplied 219.9 grams of MDMA for $17,500 and he made the claim that his "supplier" could move 5 kilograms, it could be taken that this was a reference either to Hannachi or people to whom Hannachi could seek drugs from at the appropriate time.
I should point out in relation to that particular supply on 4 January 2018, that the purity of the MDMA was 75.5 to 76%. The drug being in, as I understand it, powdered form. The purity of the drug that he supplied, in the circumstances of the supply of 194 grams of MDMA which was supplied on his behalf by Micah, in circumstances where the prisoner was on the Gold Coast, was 77%, and so it goes on. The purity of the drug supplied was very high indeed. The supply on 30 January 2018, involved a quantity of drugs that I have earlier identified, that had a purity of 76.5%. I point out in relation to that supply, to confirm Hannachi's overarching supervision of what occurred, that prior to the actual supply that occurred on that date, telephone intercepts recorded Hannachi communicating with Wandji Watchou, stating in French, "yeah we'll go ahead, see with him then, five we can give him, we have the five", reflecting his supervisory role. The prisoner was also answerable to Chamon, who is recorded through surveillance as providing drugs to the prisoner to supply to others.
This understanding of the prisoner's role reflects upon an aspect of the submissions made by his learned counsel, that the prisoner's involvement in the context of an offence of this severity, which is a very serious offence indeed, can be seen at the lowest level of objective seriousness. This cannot possibly be true. Putting aside the issue of the quantity of the drug which I will come back to, it being in context, marginally above the minimum quantity for a large commercial quantity, the prisoner's role was not of a mere cipher or a conduit, or a middleman slavishly doing what others told him to do, receiving drugs and handing them over, receiving money and handing it back to others. The prisoner's role was more sophisticated than that and thus I could not categorise this offence at the "lowest" level of objective criminality.
I should point out at this stage, by reference to the remarks on sentence I made in relation to Mr Hannachi, that there are a number of points to be noted. It was a matter that was of particular importance in distinguishing Mr Chamon from Mr Hannachi at the time of sentencing. The fundamental complexity in this matter, bearing in mind the large number of people that I have had to sentence, is that I am required to sentence each offender by reference to the charges brought against the relevant offender. Therefore, in this particular matter, despite a number of different or separate transactions over a period of time, the prisoner is, in fact, for sentence for an offence standing alone that has a greater maximum penalty than the various offences with which Mr Hannachi was charged. There is for this offence, a more substantial standard non‑parole period than that for which Mr Hannachi was charged. For the purposes of identifying the complexity of the issue I note by reference to my remarks on sentence on 19 July 2019, the summary of the charges relating to him at pp 4 and 5 of that judgment.
I also note the detail of the facts in relation to Mr Hannachi appearing between pp 8 and 15 of that judgment although some of those facts of course relate to Mr Chamon. I note in relation to Mr Hannachi, in the context of the facts relating to him, that I concluded in respect of one of the offences brought in respect of a commercial quantity of MDMA, I determined that the offence was beneath the middle range of objective seriousness. That was what I have described in Mr Hannachi's matter as the sequence 3 offence. The sequence 5 offence I determined was "within the middle range of objective seriousness".
In relation to Mr Hannachi the sequence 3 and sequence 5 offences concern two of the supplies with which this prisoner was involved but have been rolled up into the one charge. It had the ironic result that this prisoner falls to be sentenced for a sentence with a greater maximum penalty that the maximum penalties relating to the offences to which Mr Hannachi pleaded guilty but in circumstances where Mr Hannachi faced more charges and in circumstances where it is quite clear that Mr Hannachi had a greater and more significant role than this prisoner. Those matters appear clear from not only what I have said about this prisoner's role but also the facts and observations I made about Mr Hannachi.
In relation to Mr Hannachi's charges the sequence 5 and sequence 3 charges carried a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years.
Having regard to the interrelatedness of their roles and having regard to the fact that there are different charges or separate charges levelled against Mr Hannachi than this prisoner, the situation is not one, as was discussed by Howie J in Jimmy a decision of the Court of Criminal Appeal from 2010 where Howie J identified the limitations on applying what are called the "parity principles" where two offenders are charged in effect with "different crimes". He noted, and I note following upon his Honour's wisdom, that there will be occasions when there are different charges brought against offenders concerned with the same criminal enterprise where the differences that arise from a prosecutorial decision as to how a person should be charged cannot be overcome.
It may be the situation that there may be significant practical difficulties in drawing any sort of comparison between offenders including practical difficulties such as the extent of difference between the crimes charged and the particular circumstances in which they occurred. It may not ultimately require consideration of avoiding the risk of what is sometimes called the "justified grievance" arising out of disparity. I have noted what his Honour said in that regard. In this particular matter however, I believe notwithstanding the differences I have identified and bearing in mind of course that part of the MDMA supplied is not charged against Mr Hannachi, but giving effect to the totality of the criminality of the prisoner in the context of his role as opposed to that of Mr Hannachi, one must have regard to the sentence I did impose upon Mr Hannachi in respect of that totality of the offending for which he was to be sentenced.
I bear in mind, for example, by reference to participation in the criminal group, that this prisoner and Mr Hannachi were both charged, and in various ways those charges are to be taken into account in considering the totality of the criminality, with participating in the same criminal group where it was acknowledged ultimately that Mr Hannachi's role was that of a "director" of the group, a principal of the group, a role more significant than this particular prisoner. I should point out in respect of Mr Hannachi that I concluded he should have an aggregate sentence comprising a non-parole period of three years and seven months with a balance of sentence of two years five months imprisonment. The indicative sentence I imposed in respect of the sequence 3 offence was three years imprisonment with a non-parole period of two years bearing in mind I was required to fix a non-parole period because of the operation of Part 1B Crimes (Sentencing Procedure) Act 1999.
In respect of the sequence 5 offence relating to him, taking into account matters on a Form 1, I sentenced him to four years imprisonment with a non-parole period of two years five months imprisonment. Those indicative sentences, albeit for sentences with a lesser maximum penalty than applies in respect of the principal offence relating to this prisoner, are of relevance in my view to give justice to the situation in the sentencing of this prisoner.
In the circumstances, despite the fact this prisoner was involved in what essentially was a greater quantity of the drug, given the prisoner's role and considering that the supplies the prisoner was involved in were activities of the same group that Mr Hannachi was directing, I have ultimately concluded that the principal penalty that I should impose on this prisoner should be of substance less than that effectively imposed upon Mr Hannachi so as to ensure that there is no "justifiable sense of grievance".
In the context of parity principles of course, as was stated by Rothman J in Jimmy (Jimmy v The Queen (2010) 77 NSWLR 540),the essence of the matter is that to effect "equal justice" one must treat alike as alike and unalike as unalike to the extent of their likeness and unlikeness on rational and reasonable grounds.
In respect of this particular prisoner I note by comparison to Mr Hannachi that he did not commit these offences with which I am concerned, including of course the matters on the Form 1, while subject to conditional liberty. I concluded in Mr Hannachi's case that I could not find that the offences were committed for financial gain as "an aggravating factor" as it was an integral part of the character of the offending. It was not an additional aggravating factor as s 21A (2) of the Act demands to be considered. It was part of the objective features of the case as quoted from s 21A (1) of the Act. There is in this matter on analysis, although it was not a matter discussed by the parties, an aggravating factor that arises that is not applicable to the comparable offences to which Mr Hannachi pleaded and that is that the particular offence with which I am concerned was an offence that involved "a series of criminal acts" in the true sense. But ultimately that is an aggravating factor that leads to the greater maximum penalty, because the series of criminal acts brings an accumulation of total prohibited drug above the 500 gram threshold for a large commercial quantity of the drug MDMA.
The prisoner's criminal history was somewhat comparable to Mr Hannachi's. However, this prisoner was not subject to conditional liberty. The prisoner had a conviction in December 2016 for larceny and dishonesty obtain financial advantage by deception for which he was fined modestly in each instance $600 for the first offence, $100 for the second. He was back in court on 2 February 2017 for an offence of "shop lifting" committed on 9 January 2017 for which he was again fined modestly $250. He was then in court again on 26 April 2018 to be sentenced in relation to offences that apparently were committed in early 2017 of having goods in custody suspected of being stolen, shop lifting, damaging property, failing to appear in accordance with a bail undertaking. Another offence of larceny and another offence of dishonestly obtain financial advantage by deception. These matters were dealt with by s 10A convictions, I am assuming primarily on the basis the prisoner was in custody awaiting committal for sentence in relation to far more serious offences. But I note the character of the penalties imposed were effectively very modest indeed, thus I am assuming that offending was relatively modest.
The prisoner has produced some material in his case. He has produced a report from a psychologist, which I have read, and character references. Firstly, one from a woman who is the mother of a child born to her when she returned to Germany around the same time the prisoner came into custody; a character reference from a person who lives in Australia who is an uncle, a character reference from his godfather, a character reference from the prisoner's father and a reference from a tutor of the prisoner. The prisoner is a native of Cameroon and the references coming from the godfather, father and tutor have been prepared in French, which I would understand to be one of the languages of Cameroon and translated to English. There are difficulties for the prisoner in having people come from his home country to be present in court.
I accept from the material from the various character referees that the prisoner has a partner, the mother of his child in Germany, awaiting a reunion with him. She speaks positively of his character. She was unaware of any criminal activity of the character with which I am concerned and the circumstances of her discovering that she was pregnant seemed to be that she went back to Germany after they had met in Australia, unaware at the time that she was pregnant. The baby was subsequently born in Germany but she would wish the prisoner to be reunited with her and her child if it is possible. She would support him and she speaks positively of his character.
His uncle in Australia is a public servant working in a government department, and I take from that he is a respected member of the community, he has known the prisoner since birth and he speaks to courses the prisoner had completed in Australia before his arrest. He was undertaking studies in relation to a degree in Public Health, which apparently was disrupted by financial difficulties which are said to have contributed to his offending in this matter. He describes him as friendly and polite, the character of the offending being a shock to him as it was to the family back in Australia. The prisoner, when he lived with his uncle in 2015 and 2016 was of assistance to the maintenance of his household and his children, he speaks of the employment the prisoner had over a period of time and speaks of both his good qualities and his remorse for his criminal conduct.
His father, as with the godfather and tutor, speaks in shock of his dilemma here in Australia. The references they write speak of his conduct in Australia being entirely uncharacteristic. As I said the family continues to support him. His tutor speaks of his positive performance as a student and his father and Godfather speak in terms of the prisoner falling ill to "temptation" and seeking the Court to be, if I could use my own words, merciful in the disposal of the matter.
As the father pointed out, the family live in "great sadness and sorrow" that their son is in this situation. His father notes that he trusts in:
"the justice of your country, we want to call upon your conscience and your indulgence when dealing with this young man the victim of the turbulence of an environment certainly foreign and unknown to him."
That last part of the matter may have been something of an oversimplification of the reality of this offending. But having said that, I understand the spirit of the concern of people living in a foreign country that their citizens and family members should be treated justly and fairly, noting the difficulties for a person of the prisoner's background to be in custody in Australia facing deportation.
I have taken into account as a relevant factor in fixing the appropriate sentence in this matter that the prisoner is a native of a foreign country. He speaks English well. He has not required an interpreter as the other accused did. He is a French speaker as were Mr Hannachi and Mr Chamon who are citizens of France. But he has not sought the services of an interpreter. He will serve his sentence with only an uncle here in Australia to be of support to him and thus he will serve his sentence in some circumstances of hardship. Being a native of Cameroon he would probably find very few countrymen that are within the custodial system. So to that extent he would be something of an outcast, I would imagine, although I am not alerted to any specific difficulties he has had. If the prisoner had come to this country to commit this offending one might approach his isolation somewhat differently, taking the view that isolation and disconnection from one's community is a self-inflicted wound. But in this particular matter I am not satisfied, nor is it suggested, that the prisoner came to this country to commit these crimes.
It seems to me if I be so bold to say so, looking at the objective facts, and perhaps to some extent reading between the lines, that the prisoner's involvement in this offending comes in the context of him coming into contact with, or developing friendships with, other French speaking nationals in this country and particular people like Hannachi, Chamon and the missing Mr Coulaud, living a lifestyle that the prisoner found attractive and was willing to become involved in.
These young men were involved in the business of drug trafficking; trafficking in both MDMA and cocaine on occasions. The fact that the prisoner was travelling around the Gold Coast in company with Hannachi and others, giving direction in relation to drug supplies reflects upon a lifestyle the prisoner was leading, which was certainly beyond his means, given the submissions made by his counsel concerning his financial difficulties that may have contributed to his offending.
I have a psychologist's report from a Dr Nasra dated 3 September 2019. It is largely dependent upon the history provided by the prisoner and some regard to the facts of the case and the prisoner's criminal history. The detail of the prisoner's background is to my mind uncontroversial particularly in the context of the fact that the psychologist does not conclude that the prisoner has ever suffered from any mental illness and has no mental disability which is causally connected or in any way related to the offending. This is a refreshingly honest analysis of a matter in circumstances that are common in this Court where persons come forward after an assessment by a psychologist with no prior history of medical or psychological treatment for any disability. But no disability is claimed.
In these circumstances given the lack of controversy about the history I am prepared to accept what the prisoner has said about his background, I have already noted that he was born in Cameroon, he is the oldest of four siblings, siblings studying outside of Cameroon in Germany, Canada and elsewhere in Africa, he maintains a close relationship with his family and feels supported by his family. There are some traumatic events in his life. He observed a traumatic event involving an aunt, he has used cannabis over a period of time. The experience of his aunt's abuse, if I could call it that, has had an effect upon him but it is not a matter that has caused a significant mental aberration. He himself claims no history of child sexual or physical abuse. He notes in the history he gave the psychologist his passion to work in public health but the difficulties he had with obtaining employment in Australia and difficulties he had fulfilling his study obligations, he being here on a student visa.
As I said so far as his background is concerned he denied any history of pervasive mental problems. To quote the report, he conceded the social, legal and moral implications of supplying and using illicit substances and expressed remorse for his conduct. I am prepared to accept in conjunction with his early plea of guilty the prisoner is relevantly remorseful, albeit that he has not given evidence before me. He speaks of himself as being resilient and independent but mindful of the fact that he will be deported from this country.
It was assessed on the basis of the material available, the prisoner's risk of "re-offending appears reduced" with a number of positive prognostic factors including pro-social attitudes, improved insight, and taking responsibility for his offending. I note in relation to his custodial history he has no custodial infringements, it would appear that he is a "model" inmate, as is often the case with people of this prisoner's background in our prison system. Although as I said I do not doubt the difficulties he may face. The psychologist noted his criminal history and concluded that at the time of the offending he may have been vulnerable to the influence of anti-social peers to gain acceptance. There are some hallmarks of that given what I said, the common thread of the French language and the lifestyle being led by the others who were principal offenders. I have taken into account all of the material that has been placed before this Court on behalf of the prisoner.
The Crown had prepared written submissions relevant to all of the offenders, or most of the offenders that I have had to deal with over the last number of months. The Crown's written submissions, if I may just refer to them as well as the oral submissions of the Crown, properly noted by reference to the decision of Parente [2017] NSWCCA 284 particularly at [113]-[114] that the Court was required to approach the matter by proper consideration of the purposes of sentencing pursuant to s 3A of the Act. In the terms of s 5 of the Act it is submitted ultimately that a term of imprisonment was the only appropriate penalty and there was no dispute in the submissions of the defence. The Crown properly identified the quantity of drugs as not the only determinative of the objective seriousness of the offence of the supply. There are other considerations, including the considerations of the role of the prisoner and the relativity of the conduct of the prisoner by relationship to other offenders.
The Crown submitted that this prisoner performed the role of a "trusted intermediary" thus performing a "critical role" in the objectives of the criminal group and I accept that that is so. Their activities were important in the "broader drug supply operation" as the facts make clear. The Crown did concede however that Mr Hannachi directed Mr Wandji Watchou which I have already noted. I have already dealt with the relevant aggravating factor that arises under s 21A by regard to the helpful submissions of the Crown. As I said the Crown's position was both in writing and in its helpful oral submissions that full‑time imprisonment was the only order that could be made. The Crown in his oral submissions went through precisely what the prisoner did by reference to the various paragraphs in the Agreed Statement of Facts, many of which I have included in my recitation of the objective facts in relation to the matter.
With regard to the submissions of learned counsel for the prisoner, Mr Townsend, he provided very helpful written submissions and oral submissions. He noted the maximum penalties for the matters on the Form 1. For dealing with suspected proceeds of crime, bearing in mind I am not fixing discrete sentences for these matters in accordance with the legislation and the guideline judgment the maximum penalty for that offence is three years' imprisonment. For the supply of less than a gram, the maximum penalty theoretically is 15 years' imprisonment. Although that offence I perceive standing alone would have been dealt with summarily, given the quantity was less than a trafficable quantity. I also note the maximum penalty for participating in the criminal group is five years' imprisonment. The matters on the Form 1 rarely provide context for the principal offending and of course the proceeds of crime are directly connected to an aspect of the offending.
Submissions were made about the discount for the plea of guilty which I have accepted. So far as the objective seriousness of the offender, it was noted that the entirety of the drugs was "less than 87 grams" over the limit for a large commercial quantity. That is by itself a substantial quantity of drugs and one cannot forget that the maximum penalty is life imprisonment with a standard non‑parole period as I earlier outlined. I agree however, that ultimately the offence is beneath the middle range of objective seriousness. This was expressly conceded by the Crown in his helpful oral submissions but he disagreed with the submission that this was at the lowest level of objective seriousness for an offence of this type and I agree with that as well.
Of course, Spigelman CJ in the decision of Way (2004) 60 NSWLR 168, swept aside in some material respects by Muldrock v R [2011] HCA 39 in the High Court seven years' later, did observe, and I do not believe that this is untrue, that the middle range of objective seriousness was not quite necessarily "a narrow band".
It could also be said in the context of many decisions from the Court of Criminal Appeal that the band of offending between the lowest level of objective seriousness and the lower cusp of the middle range of objective seriousness is itself not a narrow band. Of course we are not required to fix sentences with mathematical precision. There is no grid sentencing in New South Wales or under Commonwealth law at the present time.
In assessing the matter by reference to the objective seriousness of the offence in the terms of s 54A(2) of the Act, I would place this offence, by regard to the prisoner's role, as beneath the middle range of objective seriousness, not at the lowest level of objective seriousness. Perhaps to be seen within the middle of the range of activity between the lowest level of objective seriousness and the lower cusp of the middle range of objective seriousness.
Just saying those words reflects something of the precision that is required in some respects in identifying the level of objective seriousness of the offending. That having been said, bearing in mind the maximum penalty provides a yardstick or a guideline for the appropriate sentence, this offending is serious offending indeed. However in the context of s 54B(2) there are other considerations when taking into account the standard non-parole period.
The section states that the standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.
I agree with the submission of counsel for the prisoner, not opposed by the Crown, that there are "special circumstances" pursuant to s 44 of the Act established. The prisoner in the context of his offending, and also his personal circumstances, having never been previously sentenced to a term of imprisonment, needs professional assistance to adjust to community living. The psychologist points to the need for the prisoner to undertake programs that would assist him to avoid offending in the future.
Pursuant to s 21A(3) of the Act there are mitigating factors to be taken into account. I note that the prisoner did not have a significant record of previous convictions. Although, whilst he was not a person of bad character and he had some level of good character, it is not a significant mitigating factor in this matter. I am prepared to accept that his time in custody, since he was arrested on 2 February 2018 and his continued presence in custody, will be a salutary reminder of the risks of further offending and I am prepared thus to conclude that he is unlikely to re-offend.
Having regard to family support and his background, I am prepared to conclude that he has good prospects of rehabilitation. I have also indicated that I am prepared to accept that a mitigating factor is that he has relevantly shown remorse by taking responsibility for his actions and acknowledging the character of his crime. I am aware of the fact as a relevant matter, albeit because of the professionalism of the New South Wales Police Force, that the drugs supplied did not enter into the wider community. They were able to be monitored, identified, weighed and measured as to purity because they went to police operatives.
His plea of guilty is a mitigating factor but for that he also receives a discrete discount. His counsel in his oral submissions touched upon a number of the matters in respect of which I have made findings. I do not believe it is necessary to further dilate upon those matters identified by his counsel in those oral submissions or in the written submissions that were prepared. In that regard I should note I have taken everything that was written and said on the prisoner's behalf into account as the earlier remarks make clear.
There was a particular submission made about the effect upon the prisoner of experiences as a child, I have noted that matter, but it is not a matter that, by reference to the conclusions of the psychologist, gives rise to a consideration of giving lesser weight to general deterrence or lesser weight to matters of moral culpability, as discussed in decisions such as De La Rosa [2010] NSWCCA 194, particularly at [177]-[188].
So far as his likelihood of deportation, I accept that in the scheme of things it is not a significant matter that affects the approach that I should take to the sentencing exercise. I am aware of the need to have regard to s 3A of the Act. The various purposes of sentencing can sometimes point in different directions, as the High Court held in Veen (No 2) v R [1988] HCA 14. There is a requirement for adequate punishment, general and personal deterrence, some protection of the community, although this prisoner is not a danger to the community, making the prisoner accountable for his conduct and denouncing it.
But I am also required, notwithstanding his impending deportation, to promote his rehabilitation as the section makes clear. There are many factors to be taken into account in sentencing, as the High Court has acknowledged on a number of occasions, reflected in the decision of Muldrock to which I have referred, principally addressing the relevance of the standard non-parole period in the sentencing exercise but also, for example, in the earlier decision of the High Court in Markarian v R [2005] HCA 25 where the Court confirmed the requirement for a judge to the best of his or her ability to undertake the difficult task of intuitive or instinctive synthesis.
As I said from the outset, one of the overarching issues in this particular matter is having proper regard, to the best of my ability, to sentences I imposed on Mr Hannachi given what I regard as his greater, perhaps substantially greater, moral and objective culpability in relation to the activities of the criminal group.
I bear in mind, as the Statement of Agreed Facts makes clear, putting aside Mr Hannachi pleaded guilty to some substantive offences related to this prisoner but with lesser maximum penalties, that Hannachi not only had a greater role within the criminal group, but he did so over a greater period of time. This prisoner was arrested on 2 February, Mr Hannachi being arrested in early April 2018.
Mr Wandji Watchou I will announce the sentences. In relation to the sequence 6 offence, that is supply the large commercial quantity of prohibited drug, taking into account the matters on the Form 1, you are convicted, you are sentenced to a term of imprisonment by way of a non-parole period of two years two months, commencing on 2 February 2018 and expiring on 1 April 2020. The balance of sentence is one year seven months imprisonment expiring on 1 November 2021.
That order of course seeks to reflect in reality the "totality" of criminality required to be taken into account in accordance with decisions such as ? and the like. Furthermore, I make a confiscation order pursuant to ss 18 and 19 of the Confiscation of Proceeds of Crime Act 1989 in that the sum of $9,800 seized from the prisoner will be forfeited forthwith.
HIS HONOUR: Mr Wandji Watchou do you understand the sentence I've imposed?
OFFENDER: Yes your Honour.
HIS HONOUR: You'll be eligible for release to parole on the basis of the orders I made on 1 April 2020. Of course you have your rights of appeal and the Crown has its rights of appeal. I am a mere District Court Judge doing the best I can, I'm not the final word unless there's no appeal.
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Decision last updated: 10 June 2020