Regina v Omar Kaddour

District Court of NSW|2007-05-31

CITATION: Regina v Omar Kaddour [2007] NSWDC 335

HEARING DATE(S): Trial - 19/2/07 - 23/02/07 Sentence - 20/04/07 & 31/05/07

JURISDICTION: District Court of New South Wales

CATCHWORDS: Criminal law - Sentence after guilty verdict - Deemed supply of a prohibited drug (2) - Supply for commercial purpose - Range of objective seriousness - Young offender (21yrs at time of offence) - First time in custody - Remorse - Hardship to third parties - Rehabilitation - Special circumstances - Periodic detention

LEGISLATION CITED: ss 21A, 66, 71, Crimes (Sentencing Procedure) Act 1999 ss 25, 29, 31, 39P Drug Misuse and Trafficking Act 1985

Regina v Gu [2006] NSWCCA 104 Regina v Nguyen (2006) 166 ACrimR 124 CASES CITED: Regina v Pilley (1991) 56 ACrimR 202 Regina v Ramos (2000) ACrimR 339 Regina v Simpson [2006] NSWCCA 117

PARTIES: Regina Omar Kaddour

Omar Kaddour was arraigned before a jury at Campbelltown on 20 February 2007 charged with two drug offences. They were both offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. They were both cases of deemed supply in that the offender had in his possession amounts of each drug that were not less than the trafficable quantity. Hence he was deemed to have the drug in his possession for supply in accordance with s 29 of the Drug Misuse and Trafficking Act because he failed to satisfy the jury by which he was tried that he had it in his possession otherwise than for supply.

The drug in the first count of the indictment was 3,4methylenedioxymethylamphetamine and the drug which was the subject of the second count was methylamphetamine. Each of the offences carries a maximum penalty of fifteen years imprisonment in accordance with s 32(1)(g) of the Drug Misuse and Trafficking Act.

I turn now to the objective facts of the offences. Drawing upon the evidence called before the jury I find the following as objective facts and they are proved to my satisfaction beyond reasonable doubt and in my opinion are consistent with the jury verdicts.

At about 5.45pm on Tuesday 10 August 2006 the offender was seen by police driving a car along Hume Highway at Yagoona. There was another man who was his passenger. His driving alerted the attention of the police who stopped him. He appeared very nervous and the two men behaved in a way which the police regarded as suspicious. The offender denied having anything illegal in his possession but the other man admitted to having some "pills on me". At the same time a sunglasses cases fell from the bottom of the other man's pants onto the ground. It contained a number of resealable plastic bags of tablets. The other man was arrested. He told the police that they Ecstasy tablets but denied that they were his.

At that point Mr Kaddour, who was sitting on a fence nearby waiting for his turn, approached the police and claimed the tablets as his, telling the police that he had asked the other man to take them out of the glove box and put them down his pants when the police stopped him. The offender Mr Kaddour was then arrested.

Mr Kaddour was taken to the Bankstown police station. The tablets were weighed and counted. There were fifty-six tablets in all. Thirty-two of them were lime coloured with a Euro Dollar emblem. Two of those tablets were loose, the other thirty were contained in six separate resealable bags, five tablets being in each bag. In addition there were twenty-four brown coloured tablets with a musical logo on them.

Mr Kaddour was interviewed at the police station and the interview was recorded. I saw the tape played before the jury and a transcript was also made available. During that interview, which occurred on 10 August 2006 at 7.15pm, Mr Kaddour gave an account that he had bought the pills "from this guy" about three or four months previously. The transaction occurred at MacDonald's Auburn and he had paid $500-$600 for the pills. The number he purchased was "whatever there was there" that he had been caught with. The reason for the two different colours was that he wanted "Euro Dollar" ones, but the vendor did not have enough of those "so he gave me those brown ones". He admitted taking two or three of the white tablets but denied selling or giving away any of the tablets. He was questioned about why he had them in the car and claimed that he was going to dispose of them in some big rubbish bins near the gym that he was going to attend. He did not want to dispose of them at home in case his parents discovered them and "never thought" of disposing of them in a rubbish bin in a park near his home. He had $410 in cash in his possession when he was stopped and explained that it was payday at work and he had withdrawn that amount from an ATM that morning. He denied that the cash was proceeds from the sale of any drugs.

Senior Constable Mitchell, one of the arresting officers, gave evidence before the jury. In cross-examination he agreed that he had found no evidence of actual supply, such as large amounts of cash or any diary of drug sales or scales. He agreed that the offender had no previous criminal history.

Detective Inspector Adney also gave evidence. He has a good deal of experience in drug investigation. He told the jury that the analyst had reported to him that the twenty-four brown coloured tablets weighed a total of 6 grams and that the thirty-two lime coloured tablets weighed a total of 7.74 grams. He reported that the brown tablets were a mixture of 3,4methylenedioxymethyl-amphetamine, known as MDMA, and N-methyl3,4methylenedioxy-methylamphetamine known as MDMA. Such tablets are also known as "Ecstasy". He also reported that the lime coloured tablets were methylamphetamine, also known as "speed". Both types of illegal drugs are most commonly sold by tablets rather than weight. He said that the tablets are most commonly sold in plastic resealable bags. He thought the brown tablets with the musical note symbol would have a street value, if sold individually, of approximately forty dollars. Hence the value of all the brown tablets on that basis was some $960. The lime tablets with the Euro dollar sign would have a street value of about thirty dollars if sold individually, hence the total value of those would also be in the region of $960.

Inspector Adney was cross-examined and acknowledged that the street value can vary greatly depending on the number, the purity, and whether there was an ongoing relationship between the parties. Not surprisingly it was not uncommon that vendors of illegal drugs would be unscrupulous. He acknowledged that there can be bad batches or impurities from the manufacturing process.

I now turn to the offender's account. Mr Kaddour gave evidence before the jury. By way of background he said that he had finished his trade and was now doing an advanced course in plumbing. He lived at home with his parents and his brother and sister. His parents had been born in Lebanon. He said that he and his brother assist his parents in paying the mortgage on their home. His own contribution was in the region of $200 per week. That partly explained the amount of money he had withdrawn on the day of the offence.

He had come across illegal tablets whilst clubbing with his friends. His first couple of experiences were stimulating and enjoyable. He realised that he could get a cheaper price for buying them in bulk so he purchased five tablets for $125 one night. A man known only as "Shack" gave him his phone number and said he could supply more. He made an arrangement to meet him at McDonald's in Auburn. He said he only wanted to buy thirty, which would have cost $450, but the man offered him sixty for $600 and he accepted that offer. The packaging from the dealer was the same as the packaging when he was arrested. He hid them at home because he knew that his parents would disapprove of them. He bought them in bulk to use when he went clubbing and so that he would not be forced to pay more when buying smaller amounts. However when he took some of the tablets he had bought his experience was quite different and he felt nauseous and very uncomfortable. That experience prompted him to get rid of the pills and, as he said in the recorded interview, he decided to dispose of them at the disposal unit near the gym. He said he would never use them again and had learnt his lesson.

In cross-examination he said that had decided to get rid of the tablets about three months before he was arrested. He never mentioned to the police during his recorded interview his bad experience with the pills because he was not asked. It did not occur to him that he could have got rid of them driving to work on any day. He thought putting them into a neighbour's bin might have been "a bit cruel".

I turn now to the convictions and the evidence on sentence. Mr Kaddour was found guilty of both counts on 23 February 2007. I convicted him and stood the sentence proceedings over to 20 April 2007. On that day the crown prosecutor tendered a pre-sentence report dated 18 April 2007 then closed his case on sentence. Defence counsel called his client, his client's mother and his client's sister. He also tendered statements by his client and his client's mother, as well as material from his client's employer, from TAFE, from a bank concerning loans, from his high school, the Board of Studies, as well as his client's CV.

Mr Kaddour in his statement which he verified from the witness box recorded that he was truly sorry for becoming involved with drugs and would never do it again. He has continued his employment and works five or six days a week in a secure position. He is still engaged in his advanced plumbing certificate course and hopes to proceed to an unrestricted plumber's certificate. He still lives at home with his parents and his brother and sister. He still contributes to the mortgage as well as paying off loans which he took out to meet his legal fees. He has changed his friendships to exclude those who engage in drug use and avoids venues where that may occur.

Mrs Mona Kaddour recorded in her statement that she and her husband were extremely shocked at their son's arrest and noted how much anxiety and concern it had caused within the family. He had been a good son and achieved well at school and in employment, and had contributed in purchasing the family home. She also recorded that the offender had communicated his extreme embarrassment and sorrow to his parents about what had occurred and promised that it would never occur again.

Mr Kaddour's sister, Zena Kaddour, is aged seventeen and is in year twelve. She has always lived at home. She has a close relationship with her brother, the offender. She had noticed up until his arrest that he had not been as caring and tended to be rude and immature as well as being not very respectful towards his parents. Since his arrest he his behaviour has changed. He had become more responsible and respectful and communicated more. He appeared more mature. She said he was more like a man now whereas before he had been more like a little boy. She confirmed that he had changed his social activities and had become more aware of right and wrong. He had become quieter since the trial and she thought that he was a little scared. His father had given him a big lecture. The offender took the lecture and did not shout back because he appeared to realise his mistake. The offender has recounted to his sister how he regrets what he did and has acknowledged how it has caused a lot of problems within the family. Ms Kaddour acknowledged that Mr Kaddour contributed some money to the mortgage and did not know what would happen if he stopped. She said the money from the offender was a big help. In cross-examination she said that she did not know how much was paid off the mortgage every month.

The Pre-Sentence Report was dated 18 April 2007. It recorded that Mr Kaddour was born on 22 April 1985 so that he has just recently turned twenty-two. It recorded no mental health, gambling, or other issues, and noted his claim that he had been abstinent from drugs since May 2006. It also recorded Mr Kaddour's embarrassment at his actions and that he had described his actions as "stupid", not realising how serious they were. He maintained his denial of selling or suppling Ecstasy to other people. The report noted his suitability for a low level of intervention from the Probation and Parole Service but thought it unlikely because there were no particular presenting issues. It assessed him as suitable for a Community Service Order although noting that there were no presenting issues that could be addressed through participation in a developmental program. It noted he was eligible for periodic detention.

His employer noted that the offender was an honest reliable and hard working employee who had been engaged since 10 May 2003 as an apprentice plumber. The TAFE documents noted that he would become eligible to apply for his plumber's licence in 2008 and the bank documents recorded a loan of some $22,000. In 2002 he had been regarded by his school principal in year 12 adviser as an honest and trustworthy person.

I turn now to the submissions which were put by the parties. In his submissions Mr Howen put to the forefront of his argument that I should consider something other than a full-time custodial sentence. The options were, a suspended sentence, periodic detention, or a Community Service Order. His primary submission was for a suspended sentence.

Canvassing the objective features he argued that there was no evidence of actual or commercial supply. He argued that there was no evidence that the offender had packaged the drugs, but they were in the same packaging as when he received them. There was no forensic evidence that the offender had handled the bags inside the glasses case. He argued that I should find that there was no actual supply only a deemed supply. He said that I could make a positive finding that no drug activity was intended by the offender. He said the objective facts of the offence were at the low end of the range. He argued that so far as the methylenedioxymethylamphetamine drugs were concerned the 6 grams was right at the very bottom of the indictable range so that it was not a significant quantity. He made the same submission in respect of the methylamphetamine weighing 7.74 grams. He asked me to make findings accepting the offender's account of the circumstances of the purchase of the drugs.

Turning to his client's subjective features, he pointed to his client's good character and hard working family, including his own financial contribution to the family home. He highlighted no drug or alcohol dependency problems and the difference observed by his sister after his arrest and after his trial. He invited me to find actual remorse, arguing that I was not bound in that respect by the jury verdict regarding actual supply. The remorse extended beyond being sorry because he was caught, to regret at implicating his family. He pointed to a small likelihood of re-offending given the change in his behaviour and social contacts. He highlighted how the family had everything to lose if the offender went to gaol full time or if he re-offended. He argued that the offender's rehabilitation had already happened, pointing to his change in habits. He argued that although his client had not pleaded guilty he did not deny the possession but at the earliest possible opportunity owned up to the fact that the drugs were his. He said that there were no aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. In fact he said it was not so much an organised crime as a disorganised crime.

Turning to the authorities and to the statistics Mr Howen pointed to the high percentage of offenders involved in supplying amphetamines and Ecstasy who did not receive full time custody. He commented that suspended sentences were common.

Mr Williams for the Crown submitted that these offences do require a sentence of full time custody. Although conceding that there was no evidence of actual supply he submitted that it was not consistent with the jury verdict for me to find that there was no intention or capacity to supply. The verdict reflected the statutory purpose of possession "for the purpose of supply". He said that there was no evidence of any supply to friends or relatives, so, he submitted, the only inference left was an intention to supply for remuneration. He was not himself an addict so he said there was simply no other alternatives.

Mr Williams said it was clear the jury did not accept the offender's evidence on the balance of probabilities. That, he said, should affect the rest of his evidence which I should regard with great scepticism.

Mr Williams said the offences involved trafficking to a substantial degree. The trafficable amount for one of the drugs was .7 grams so that there was involved trafficking an amount of eight times the trafficable amount. For the other drug, the multiple was two and a half times the trafficable amount.

Mr Williams submitted that it was not a bottom of the range offence. The offender had been convicted of two offences involving two separate drugs. The financial value of the drugs could vary. For one of the drugs it could be $1300, for the other it could be $2500. He said the packaging of the drugs assisted the finding of trafficking and the absence of drug paraphernalia was not relevant because they were sold as pills and the paraphernalia was not needed. It beggared belief that he was arrested by coincidence on the same day that he was conveying them for disposal.

On the question of remorse Mr Williams pointed out that there had been no plea of guilty. The offender had never conceded that the drugs were "for supply", which is the essence of the crime. Hence there is no real remorse in respect of the offences of which he was convicted. So far as hardship to third parties was concerned, he said that this was not established to any significant degree and did not meet the requirement of the authorities that it should be exceptional. In any event the evidence did not take the question of hardship very far. The offender's sister's evidence was limited and there was no evidence that the parents would lose their home. Mr Williams frankly acknowledged that the subjective case was strong to some extent but not so much as to ameliorate the principle in the authorities about a drug trafficker to a substantial degree needing to go to prison. He also acknowledged that there were special circumstances, it would be the offender's first time in custody, warranting a longer than usual period for parole. Mr Williams pointed out that the offender had already spent ten full days in custody from the date of his arrest on 10 August 2006 until 20 August 2006.

In reply Mr Howen said that it was not relevant for a Crown Prosecutor to base a submission on the trafficable amount because it was the indictable amount which was relevant to a District Court sentence. In addition, whilst acknowledging that the drug was sold in the form of pills, the law quantified them by weight. Addressing the question of whether his client had possession of the drugs for sale he said the extended definition of supply does not have at its core commerciality. It was the process of supply rather than whether or not it was for remuneration that was proscribed. He said there was no evidence of any commercial aspect in this case. Mr Howen emphasised that his client's remorse was reflected in his change of lifestyle and habits, and was in respect of the consequences of his crimes. He acknowledged his ownership of the drugs from the first moment and was entitled to have the jury test his case, but that did not mean that he had lost the opportunity to plead remorse in the way that he had. As to hardship it was obvious that the parents could not get the house loan without their son's help.

As to special circumstances he adopted the Crown's point about the first time in custody and also pointed to his client's youth. If I was compelled to impose a full time custodial sentence Mr Howen submitted that the statutory ratio between the non parole period and the parole period could be dramatically changed in this case, it could even be in the region of one third to two thirds. The non parole period itself could be quite short because the overall sentence should not, he submitted, be very high. Another factor affecting the ratio was his financial role in his family so that a short non parole period would reduce significantly the financial impact on the family.

I turn now to consider the sentence which I should impose. I begin by making some findings, or expressing some opinions about the submissions that were made. It was common ground that there was no evidence of actual or commercial supply. In respect of the submission that I could make a positive finding that no drug activity was intended by the offender, I do not accept that submission. It runs contrary to the authorities. One of those authorities is Regina v Simpson [2006] NSWCCA 117. At [15] of his judgment Hislop J, with whom the Chief Judge at Common Law and Sully J agreed, said as follows:

" As the applicant had pleaded guilty to a deemed supply of prohibited drugs it was not open to his Honour to deal with the matter on any basis other than that the applicant had the drugs in his possession for the purpose of supply. In this context it was observed by his Honour that the offences to which the applicant had pleaded guilty impact upon the very people in the community that the applicant had done so much to help in the past ." Also in Regina v Pilley (1991) 56 ACrimR 202 , Finlay J, with whom Handley JA and Allen J agreed, made similar remarks about a case of deemed supply. 32. So far as accepting the offender's account is concerned, I do regard his account and his evidence with some degree of scepticism. I accept his account of the circumstances of the purchase but I do not accept it so far as he claims that it was for his own use, that is inconsistent with the verdict of the jury. I too regard as beyond acceptable belief the claim that by coincidence he was about to dispose of the drugs when he was arrested by the police. Another basis for some degree of scepticism is the fact that the jury rejected his evidence and his claim that the drugs were for his own use.

I do find, however, evidence of actual remorse. I accept Mr Williams' submission that the remorse is limited by the fact that he claimed that the drugs were in his possession for his own use. However I accept that he owned up to possession of the drugs at the earliest opportunity and I accept the evidence of his sister in particular, who gave evidence before me, and the account of his mother regarding his changed behaviour. And I accept Mr Howen's submission that his remorse is consistent with a change of attitude and behaviour so far as the consequences of his offending behaviour are concerned.

I do not accept the submission made by Mr Howen concerning the hardship that would be occasioned to the offender's family if he were to be incarcerated full time. The level of hardship brought about to third parties by an offender's behaviour has to be truly exceptional. The authorities are reviewed in Regina v Nguyen (2006) 166 ACrimR 124. Despite what would appear to be some qualification to the general principle about exceptional circumstances contained in that case I am not satisfied that the degree of hardship which would be brought about by depriving the family of Mr Kaddour's income is so exceptional that it should impact on any decision which I should make. That is because, as the authorities say, sadly such impacts normally accompany such offending behaviour.

I do accept that he has good prospects of rehabilitation. Once again his sister's evidence was convincing. It appears that he has changed his habits of behaviour and the circle in which he mixes. He has, and has kept, a good job. He is near to attaining a final qualification for which he has been studying for some years. He clearly comes from a solid, loving and supportive family, and he is still living with that family. It seems to me, and I have formed the view, that his prospects of rehabilitation given those circumstances are very good.

As to evidence of the deemed and intended supply being for commercial purposes, that question is finely balanced. On the one hand I can see the force of the Crown's submission that there was no evidence of any supply to friends or relatives, so that the only inference left was an intention to supply for remuneration. On the other hand Mr Howen has pointed out that there was no evidence of any commercial aspect in this case. I think in those circumstances, luckily for Mr Kaddour, I conclude that I am not satisfied beyond reasonable doubt that the intended supply was for commercial purposes. I would be satisfied on the balance of probabilities and I see great strength in the Crown's submission but this is a significant finding to make and I am reluctant to make it as a finding beyond reasonable doubt when essentially the Crown's argument, as good as it is, is based upon an inference as being the only inference which I can draw. Clearly another but unlikely inference is that he had the drugs for the purpose of giving them away to his friends, or sharing them at social events. Nevertheless there was a significant number of pills, being fifty-six in all, and I regard the number of pills in the offender's possession as significant.

I do accept the submission of Mr Howen, not opposed by the Crown, to the effect that there are special circumstances which would warrant the adjustment of the normal ratio between the non parole period and the parole period. Those special circumstances are that this would be the first time which Mr Kaddour has served in custody and he is a very young man. Another reason for adjusting that ratio is that an extended period of parole, supervised to some limited extent, whereby the offender would have an opportunity to, ideally, remain at home and continue with his rehabilitation would be in my opinion, desirable in this case.

I now turn to the authorities on the question of imprisonment. The main sentencing principle which is relevant to this sentencing exercise is that the penalty should be full time custody unless there are exceptional circumstances: the authorities are very clear about that. One of them is Regina v Gu [2006] NSWCCA 104. In that case Howie J said at [27]:

" There has been a consistent line of authority in this Court that has made it quite clear that, unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs " That principle has been emphasised time and again in the Court of Criminal Appeal. 39. This is a case which forms an exception to the principle which has been enunciated. The reasons that I reach that conclusion are that it is not a case which involves supply for commercial purposes. I appreciate that the authorities do not provide that that must be present in every case and that to anyone substantially involved in the supply of prohibited drugs the principle applies. I think in this case Mr Kaddour has been on the border of substantial involvement in the supply of prohibited drugs. He is close to that border but I do not regard him as being over it. Another reason for this case being an exception to the principle is authority to the effect that where there is evidence that full time custody will nullify the rehabilitation previously achieved, there is a public interest in not interfering in a process of demonstrated rehabilitation. I refer to Regina v Ramos (2000) 112 ACrimR 339. Those remarks were made by the Chief Judge at Common Law at 342 ([14]).

One of the main reasons for me concluding that this case should not be dealt with by a period of full time custody is that it seems clear to me from the evidence of the family that Mr Kaddour has embarked upon a road towards his rehabilitation. His sister has noticed a change in his behaviour. He is still at home. He is still employed, and he is at a home which provides a strong and supportive but strict environment. Were I to sentence Mr Kaddour to a period of full time custody it would, in my opinion, deprive him of his employment and put him into an environment where it is likely that his rehabilitation would be derailed.

However on the other hand I regard this as sufficiently serious a case, and close enough to cases which fall in the general principle, as to warrant a custodial sentence in the form of a periodic detention order and I have decided that I am going to sentence Mr Kaddour to a period of periodic detention. I have reached that conclusion because it means that his rehabilitation can progress at home and by virtue of his employment, but he will be punished by being deprived of his liberty at the weekend.

I have determined that an appropriate sentence for Mr Kaddour is three years. I find on the basis of the submissions which I have accepted that there are special circumstances in this case warranting an alteration of the ratio between the non parole period and the parole period and I propose to alter that ratio to one of 50/50 instead of the standard ratio of 75/25.

In determining that periodic detention order is appropriate I have received a report which I have already referred to from the Probation and Parole Service, a pre-sentence report, and that contains an assertion that Mr Kaddour is eligible and has been assessed as suitable for a periodic detention order and that he has signed an appropriate undertaking to that effect. I have taken into account the contents of that report. It is my understanding that accommodation is available at a periodic detention centre and I am satisfied of that. Mr Howen one of the things I have to be satisfied of is that there are transport arrangements available, can I assume that Mr Kaddour will be able to get himself there and back or that somebody will be able to give him a lift?

HOWEN: Does your Honour know which periodic detention centre is likely to be used?

HOWEN: I'll just get some instructions. I'm instructed your Honour Mr Kaddour still has a car. I can't think of any legal reason why he can't drive to the periodic detention centre.

HIS HONOUR: No, it's in his interests that he has transport there and back.

HOWEN: Absolutely, I'm instructed he still has his vehicle. I've never checked but there must be parking within and around the prison. But he has personal transport independent of public transport and instructs me that also there's family, but it doesn't look like he'll need to rely upon that.

HIS HONOUR: Good, that's all I need to hear Mr Howen, that's fine.

I am satisfied of the following matters in accordance with s 66 of the Crimes (Sentencing Procedure) Act. The offender is above the age of eighteen and is a suitable person to serve his sentence by way of periodic detention. I am satisfied that it is appropriate in all of the circumstances that the sentence be served by way of periodic detention for the reasons which I have given earlier. I am satisfied that there is accommodation available at the periodic detention centre at Parramatta for him to serve his sentence by way of periodic detention and I am satisfied that transport arrangements are available for travel by Mr Kaddour to and from the periodic detention centre for the purpose of serving his sentence being arrangements that will not impose undue inconvenience strain or hardship on him. I am satisfied that Mr Kaddour has signed an undertaking to comply with the offender's obligation under the periodic detention order. I have had regard to the contents of the assessment report as well, being the Probation and Parole Service report.

Mr Kaddour I am going to sentence you to imprisonment for three years. I set a non parole period of eighteen months and I set a balance of the term of your sentence of eighteen months as well. The three year sentence is to commence Saturday of next week, 9 June 2007, and expire on 8 June 2010. The non parole period is to commence on 9 June 2007 and expire on 8 December 2008. I make a periodic detention order directing that the sentence which I have imposed upon you be served by way of periodic detention. The date of commencement of that sentence being 9 June 2007.

Mr Kaddour the periodic detention centre in which you will serve your sentence is at Parramatta at 1 O'Connell Street Parramatta. The first occasion on which you must attend is Saturday 9 June 2007 and you are to report at the periodic detention centre at Parramatta on that Saturday at 8.30am. On each occasion after that you are to report at the same place at 7pm on each Friday evening and you will be released at 4pm each Sunday evening.

Might I ask for your help Mr Howen. One of the things I have to explain to Mr Kaddour, and this is what I'm trying to find, is the consequences that may follow if he fails to comply. That's s 71 of the Crimes (Sentencing Procedure) Act and Ms Fleming if you can help as well. I'm just trying to find the statutory provision which sets out those consequences so that I can explain them to Mr Kaddour.

HOWEN: There's nothing in the commentary of the loose leaf Practice either, unless it's in the regulations. Your Honour the regulations are silent. In the section that deals with periodic detention sentencing, the closest reference is periodic detention orders under s 72 and warrants at 73. I think I've failed this quiz. I can't remember where it is. Your Honour having regard to the section, may I submit that a plain English explanation under s 71 would not be an appealable error.

HOWEN: A court must ensure that all reasonable steps are taken to explain to the offender in language he can readily understand obligations, well that's basically, turn up when I told you to and if you don't turn up you'll be back before me. The other aspect is your Honour, there is a procedure, an administration procedure the Corrective Services operate in the case of genuine illness. If they accept the medical certificate it's considered as a proper excuse and a warrant doesn't issue. And it's not a proper excuse - a warrant doesn't necessarily issue, they tack on the extra time at the end so you don't get off the weekend you don't go. But after a certain number of failures to attend they can invoke a breach provision. That's my understanding of the administration of it. Mr Kaddour instructs me that the Probation and Parole Officer has spoken to him of the consequences of non-compliance but I do not know what the officer said to him. So I submit that your Honour could safely, in plain English, follow s 71.

HIS HONOUR: I've found it, my associate's pointed it out. It is in the Crimes Administration Sentences Act 1999 and what you say is also right. One thing I need to do is give a direction about the non parole period.

I make an order directing the release of Mr Kaddour on parole at the end of the non parole period.

Mr Kaddour you have heard what Mr Howen said, which is right. You have to comply with any requirements, any directions given to you by the officers at the corrective service place where you are going. Any change in your residential address, you have to inform the management at the periodic detention centre. You have to allow a correctional centre officer to visit you at your home if they want to, and you have to comply with the regulations and the Act so far as they tell you that you have to comply. The periodic detention order will expire when you are released to parole, which is at the end of the eighteen months. You have to report to the periodic detention centre at the beginning of each period. You have to participate in any activity or work which you are directed to do. You can apply to have the times of your detention varied. You can be granted leave of absence for health, compassionate grounds. This is important. The sentence which you are serving if you fail to report for one or more of your detention periods, whether or not leave of absence is granted, the sentence is extended by one week for each detention period for which you fail to report. So every time you do not turn up, either with or without leave of absence by the looks of it, it is extended. So it is in your interests to go to as many as you can, in fact all of them if possible, and if you turn up late it can be extended for one week as well. You can make applications for leave of absence and things like that.

Is it the case Mr Howen that if there's any significant or serious breach that he can be re-sentenced? I doubt it.

HOWEN: I think it converts to full time is my recollection - if he's breached and a warrant is issued. My recollection is your Honour converts to full time and I also recall the Parole Board have a role in that system as well because they can - if you are put in full time the Parol Board can review that and you can actually have the periodic detention reinstated. I've had a matter like that, I've had a client who actually had his periodic detention reinstated after significant breaches.

Mr Kaddour, if you misbehave, fail to attend, these details can be explained to you. If it suspects you have failed to comply with your obligations, the parole authority may conduct an inquiry and it may revoke the periodic detention order and you may be taken into full time custody. I am sorry to be so laborious there but it is important that I explain these things to you.

If the drugs have not been destroyed I make an order for the destruction of the prohibited drugs, I make that order under s 39P of the Drug Misuse and Trafficking Act.

Mr Kaddour you have heard what I said, I just want to say this to you. You are a young man, you have done a very very silly thing. You have been very lucky in the findings that I made. As I said I think you probably had them to sell but I was not satisfied beyond reasonable doubt that you had them to sell and I have decided that the best way of dealing with your case is by sending you to weekend gaol. I am doing that because you obviously come from a good strong family and the evidence suggests that you are getting back on to the right track. My advice to you as a judge and as a father is to stay in your family for the time being and to stay on the path of rehabilitation which you have started, and do not think of doing anything similar to what you have done before. Because you came very very close to going to gaol full time and that would be very hazardous for you and would really set you, I think, on the wrong path, which is why I have decided to make an exception in your case. Do you understand what I have said?

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Judgment (71 paragraphs)

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Cases Cited (2)