Taybah v R

JUDGMENT

1. BELL CJ: I agree with Davies J.
2. DAVIES J: The applicant pleaded guilty in the Local Court to the following offences:

H77725828 Sequence 7: supply a large commercial quantity of a prohibited drug (10.3472 kilograms of cocaine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of 15 years. Sequence 8: knowingly deal with the proceeds of crime ($1,339,220.00) contrary to s 193B(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 15 years' imprisonment and there is no standard non-parole period. Sequence 9: supply a commercial quantity of a prohibited drug (460.4 grams of cocaine). The maximum penalty for this offence is 20 years' imprisonment and there is a standard non-parole period of 10 years.

H71101740 Sequence 8: supply a commercial quantity of a prohibited drug (384.9 grams of cocaine). Sequence 9: knowingly deal with the proceeds of crime ($422,600.00). Sequence 12: supply a commercial quantity of a prohibited drug (560 grams of cocaine).

1. There were two Form 1 offences attached to H71101740 as follows: Sequence 8: supply a prohibited drug (9.51 grams of cocaine). Sequence 6: possess a prescribed, restricted substance (testosterone) contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW).
2. On 25 August 2022 the applicant was sentenced by Judge Huggett (as her Honour then was) in the District Court to an aggregate sentence of imprisonment for 11 years commencing 15 December 2020 and expiring 14 December 2031 with a non-parole period of imprisonment for 7 years expiring 14 December 2027. It is convenient to identify the indicative sentences when the facts are summarised.
3. The applicant seeks leave against his sentence on one ground as follows: The sentencing judge failed to have regard to critical matters urged on the applicant's behalf in the evaluation of the objective seriousness of the offence generally and particularly those committed in the Orchard Road premises.

The offending

1. Strike Force Pail was established in April 2020 to investigate the supply of prohibited drugs by Mohamad Mahfouz, Hai Dang Bui, Ali Noufl and Omar Atteya. Mahfouz was conducting a drug supply business from a unit on Shore Line Drive in Rhodes. The unit block had CCTV which captured persons coming and going, and listening devices were installed inside the unit which captured transactions as they took place.
2. The applicant communicated with various people include Mahfouz, using devices that had the encrypted program Cyphr.
3. On 9 July 2020 the applicant entered the unit, had a conversation with Mahfouz which suggested that he was on-supplying drugs provided to him by the applicant. The applicant supplied Mahfouz with 280 grams of cocaine before leaving the unit.
4. On 24 July 2020 the applicant again arrived at the unit where Mahfouz was with Bui and another person. A discussion ensued about the look of some drugs, and the applicant then supplied 140 grams of cocaine to Mahfouz before leaving the unit.
5. On 24 August 2020 the applicant again went to the unit and had a conversation with Mahfouz which again concerned the on-supply of drugs by Mahfouz. The applicant supplied him with 140 grams of cocaine before leaving the unit.
6. These three supplies were rolled into one charge that became sequence 12 of H740.
7. A separate operation, Operation Veerle, was established in September 2019 to investigate the supply of cocaine and firearms in South-West Sydney by Nabih Mouslmani. Between May and December 2020, Mouslmani was involved in the supply of a large commercial quantity of cocaine and prohibited firearms to a known witness. The applicant did not come to the attention of police until 23 November 2020, but there is no suggestion that he was involved at any time in the supply of firearms.
8. On 18 November 2020 the witness asked Mouslmani if he could "sort 3 rack of oz for me for Monday", but Mouslmani said a "5 pack" would be cheaper. Mouslmani provided the prices. The witness said he wanted three ounces on Monday afternoon (23 November 2020). Subsequently, Mouslmani sent the witness a message indicating an address and a time.
9. At 2 pm on 23 November 2020 the witness drove to the address and met Mouslmani. A short time later the applicant drove up and stopped his vehicle. Mouslmani approached the applicant's vehicle and the applicant handed him a brown bag containing 95.8 grams of cocaine.
10. On 29 November 2020 the witness asked Mouslmani for another three ounces of "rack". A similar arrangement was made for the parties to meet in Strickland Street, Bass Hill on 1 December 2020. The applicant arrived subsequently. Mouslmani walked over to the applicant's car and the applicant handed him a freezer bag containing 84.2 grams of cocaine. That was then provided to the witness who paid Mouslmani. The applicant then drove to an address in Farrell Road, Bass Hill and subsequently returned to his residence in Orchard Road, Bass Hill.
11. On 15 December 2020 a similar transaction occurred in Strickland Street. On that occasion the applicant provided to Mouslmani a plastic bag containing 280.4 grams of cocaine which was then provided to the witness who paid Mouslmani.
12. Those three supplies were rolled into one count and constituted sequence 9 of H828.
13. The applicant then left the scene but was stopped shortly after by the police who arrested him. They searched the car he was driving and in the glovebox found a McDonalds paper bag containing $88,200 in cash, being the money handed over by the witness for the 280.4 grams of cocaine, less $1,000 that Mouslmani had negotiated for himself. In the centre console a sum of cash totalling $24,050 was located.
14. Also in the centre console of the car was 336.1 grams of cocaine distributed across four plastic bags. That constituted part of the total amount of cocaine, the subject of sequence 7 of H828. Two Samsung smart phones in a black backpack containing correspondence in the applicant's name were also located in the car.
15. A search warrant was executed at the Orchard Road address. The premises had been leased jointly by the applicant and his wife, and they and their children had resided at those premises until shortly before 15 December 2020 when they moved to a property in Farrell Road, Bass Hill. On 15 December 2020 the Orchard Road premises were unfurnished and appeared unoccupied. A concealed area within a sloped roof cavity was located upstairs. This area was behind a wardrobe and non-load bearing partition wall.
16. In the concealed area a sum of cash totalling $1,315,170.00 was located inside a large cardboard box which the applicant knew was the proceeds of crime. Subsequent analysis of the banknotes revealed that notes to the value of $17,550 matched the purchase money for the transaction on 1 December 2020 (at [15] above). The $1,315,170, together with the amount of $24,050.00 located in the car, constituted sequence 8 of H828.
17. A black Nike sports bag was also located within the concealed space. It contained ten packaged "bricks" of cocaine, each weighing approximately one kilogram. Subsequent analysis confirmed the bricks contained a total of 10.0111 kilograms of cocaine with a purity of each brick ranging from 70% to 83%. Those bricks formed the other constituent part of sequence 7 of H828.
18. A search warrant was also executed at the Farrell Road premises where the applicant and his family were residing from 15 December 2020. In the garage, police located a money counting machine, resealable plastic bags, a heat-sealing machine and two sets of electronic scales, one with white residue on the top.
19. Police also located the following items:

• A plastic bag containing 384.9 grams of cocaine with a purity of 79.5% (Sequence 8 of H740);
• packaging consistent with that used to house the "bricks" of cocaine located in the Orchard Street premises;
• a small bag containing 9.51 grams of cocaine (Sequence 5 of H740); and
• five separate amounts of cash totalling $422,600.00. The applicant knew that money was the proceeds of crime. It constituted sequence 9 of H740.

Submissions

1. The applicant's written submissions identified what were said to be critical matters urged at the hearing that were not the subject of any findings by the sentencing judge: a. It was submitted at the sentence hearing that various matters were established on the balance of probabilities as to the nature of the applicant's involvement, including the applicant answering to other "more powerful and still feared others". b. A global submission was directed towards "the overall assessment" falling at the lower end of the putative mid-range with particular focus directed towards the applicant's "considerable discomfiture" in his coming to possess the large amounts of drugs and money at the Orchard Road premises. c. the applicant's evidence was that before his arrest he withdrew from the arrangement to keep the drugs and monies, and left them in an empty house without revealing to the syndicate that he had essentially abandoned them. d. In respect of the Orchard Road offences, there was no true meeting of the minds on the part of the applicant to maintain possession of large amounts of drugs for any period of time. That was said to be a feature that had been described to the sentencing judge as a "striking element". e. It was further submitted that while the applicant was involved in the offences for personal gain, that is, drugs and money, his reward was not commensurate with the risks he assumed, which demonstrated thereby no agency in the operation.
2. In oral submissions the focus was on what had been identified by Senior Counsel at the sentence hearing as the "striking element", which was that the applicant's possession, particularly of the 10kg amount the subject of sequence 7 of H828 and the $1.3m in cash the subject of sequence 8 of H828, was said to be highly reluctant possession merely as a minder. It was said that that submission was not dealt with by the sentencing judge in terms of objective seriousness. It was submitted that possession was the gravamen of the thing in possession, but that was not dealt with by the sentencing judge.
3. The applicant submitted that that the Crown did not contend that the factual findings urged on behalf of the applicant were not open. He submitted that his motivation, being an insignificant reward for labour and not profiteering from the significant fruits of the enterprise, was capable of, and relevant to, a downward impact in the assessment of objective seriousness.
4. The applicant submitted that, ultimately the Crown concurred with the defence submission that the applicant's criminality was objectively to be assessed at a lower level than that identified in R v Ferguson [2022] NSWCCA 147.

Consideration

1. In his oral evidence the applicant spoke of becoming involved to pay off debts and to maintain a supply of drugs for himself. His oral evidence was relevantly this: Q. Okay. But you're saying it was about two to two and a half weeks before you were arrested you were given this 10 kilos and I presume the large amount of money, is that right? A. No. First of all the drugs came first, then the money got dropped off to me second. Q. Did you start taking drugs out of the box with the 10 kilos to divide up? A. Yes, I did, I took one. Q. Were you told to do that, or it was something you did off your own bat? A. I got told to do that, but what they didn't know is that I took out for myself,so at the end like I was robbing them but I shouldn't have being doing that because I would have got hurt even more. Q. Bearing in mind what you told the Probation Officer, or the Corrections Officer, about your employment, and what you've told the Court, I take it you've got money, profit, cash, from the drug supplying that you did throughout 2020, correct? A. Yes. Q. That was the money that you used to help support yourself and your family? A. Half of it was and half of it wasn't. Q. How much profit did you get for yourself, leaving aside any debts that you might have paid off? A. So every drop was, what, I told you from 2,000 to about two and a half. So half of it would go on about all my like paying rent and whatnot, and then the rest of it would go on my habit. Q. You were taking cocaine from what you'd been given to use yourself, is that right? A. Yes.
2. His evidence concerning the drugs and money left at the Orchard Road property was this: Q. When is the first time that you were given a large amount to take home to your Orchard Road, property so that you could do the dividing up for supply? A. Probably the second - the second last transaction. … Q. What were you given to take home to your house? A. There was half a kilo. Q. Where did the 10 kilos in the attic come from? A. Those 10 kilos I got told to leave them with me and I said "No problem", but I didn't want them there, I didn't want them there, I just told them - they told me "That's not going to be there for long", it was only there for, like, what two and a half weeks. … Q. Just something that your barrister asked you before I started questioning you, Mr Taybah, you moved house from Orchard Road because the landlord wanted it back, not because of any other reason, is that right? A. That's correct, but I was happy to move because I wanted to move anyway, we were talking about moving beforehand. Q. But you left the money there - when you actually immediately moved, you left the money there in the attic, and the drugs in the attic, correct? A. Yes. HER HONOUR Q. Intentionally? You didn't accidentally leave them behind, you intentionally left them there? A. Yeah, I got told to leave them there. I wanted them picked up. I didn't want them - I didn't want it there, to be honest, I didn't want nothing there. I wanted to return the keys. I got told "Leave it there till I could organise somebody to come pick it up and it's out of your premises". GILSON Q. Mr Taybah, let me ask you this? How long after you moved physically from Orchard Road did these people tell you just to leave the drugs and money there? A. It was only meant to be there for one day. I got told for two - for ongoing two weeks, telling me, "I will get somebody to pick it up", or "Get somebody to pick it up, just leave - you need to leave it with you". I said, "No problem, I'll leave it here but please get somebody to pick it up". Q. These people knew the drugs and money were in a house where there was nobody present, is that right? A. No, they didn't know.
3. Dr Chew recorded this in his report: He told me that he was extremely sorry for his offending behaviour "I have hurt myself, my family, the general community, I wish I never got into this." He said that he was holding the drugs and money for drug dealers because he had a big habit. He felt trapped into the situation because of his drug habit and the fact that they knew where he and his family lived. He would often get paid in drugs or use the money to buy drugs back off the dealer.
4. Senior Counsel for the applicant submitted to the sentencing judge: [B]y the affidavit and calling our client to prove, we submit, your Honour would be satisfied on the balance of probabilities, those matters deposed to in the affidavit and affirmed in the evidence yesterday concerning the nature of his involvement and in particular his answering to other more powerful and still feared others. To such an extent we would submit that your Honour would find that the striking element of the large amount of cocaine and the large amount of bank notes money in the form of currency, was plainly we would submit stored by our client to his considerable discomfiture then and the continued discomfiture now. … However in terms of objective seriousness upon a plea of guilty that is full acceptance of criminal liability for the conduct in question and with no suggestion of that phantom possibility of duress. All of that put firmly to one side, you nevertheless have as a matter of objective seriousness a narrative concerning the drops, working to direction, the exposure in his current residence as garage, the use for others to store the drugs and money of others obviously to his risk, all adding up in our submission to an overall assessment of, as we put it, towards the lower end of mid-range seriousness. (emphasis added)
5. That submission differed from the somewhat confusing submissions made in writing on behalf of the applicant to the sentencing judge that, The objective gravity of the offending conduct would be deemed to be just below the mid-range of offending for such offences, but then went on to say, It is for that reason that the Court would see the objective serious (sic) to be reaching the mid-range of seriousness.
6. To a large extent, that submission about the "striking element" of the cocaine and money being stored to his considerable discomfiture was a flourish on evidence from the applicant which did not really provide a basis for it. When pressed at the appeal about what the "striking element" was, Mr Game SC described it as "highly reluctant possession", but neither was there evidence to justify that description. Mr Game said also that the applicant was just a minder of the large amount of cocaine and cash, but said that that submission had not been dealt with by the sentencing judge. The applicant made no submission to the sentencing judge that he was just a minder of the large amount of cocaine and cash, but her Honour's findings as to the applicant's role encompassed that aspect of his role (see at [40]-[41] below).
7. The applicant's affidavit did not address the offending itself but set out matters relevant to his subjective features. Nothing in his oral evidence provides support for the submission made at [32] above, that the large amount of cocaine and money was stored to the applicant's "considerable discomfiture".
8. The only evidence that might be relevant to the applicant's relationship with those for whom he was working in the drug supply business was the following: Q. You weren't remorseful about your behaviour until you got arrested, were you? A. Well, no, I wasn't remorseful, I was just acting as what I was getting told what to do I'll do. I wasn't thinking about anything else. I just wanted to just please these guys, and not upset these guys.
9. He said that he had fallen into debt with "those guys". When asked if he was prepared to name the people he said: A. No, I'm in fear, of course I'm in fear, like there's people getting killed out there, why would I - you know, I'm not going to put my family at risk. … Q. And you had in the garage of the Farrell Road property the set-up to divide up drugs for supply? A. That's correct. Q. So you're telling the Court that at some stage your method of supply escalated from you going to pick up the drugs to you having larger quantities at home that you could divide up yourself, is that correct? A. So whatever they told me to do, I'd do. So if they told me to divide this, and do this, I'd do that, no problem, that's without me taking anything from them, if I took --
10. It can be accepted that the applicant had placed himself in the position that he was required to do what those above him in the drug supply network demanded of him. That was no different from any other person working for others in a drug supply network. Nevertheless, as the applicant made clear in his evidence, it provided him with an income as well as the drugs he needed to feed his habit. The applicant accepted in submissions made to the sentencing judge, and the sentencing judge found, that the applicant was not operating under duress.
11. Her Honour's treatment of objective seriousness did not involve placing each of the offences at some point in a range, and this Court has made clear that there is no obligation to do so. What is required is for the sentencing judge to set out the facts from which the seriousness of the offending can be seen.
12. The sentencing judge first discussed the applicant's role, saying that it was difficult to determine reliably what his role was. Rather, her Honour made findings about what the applicant actually did. She said: By at least 1 December 2020, the offender had transitioned from receiving amounts of cocaine which he dropped to Mahfouz to cutting, weighing and packaging quantities of cocaine taken from larger amounts stored in his garage and/or in the concealed area in the roof of his former premises for wholesale supply to the witness via Mouslmani. Consistent with his more trusted role, items were located in his garage for the preparation and packaging of cocaine, including scales with white residue and resealable bags. The offender was aware, at least in approximate terms, of the quantities of cocaine he was supplying. He engaged in discussion regarding pricing and towards the end of the offending assumed responsibility for cutting, weighing and bagging the cocaine he was supplying. … His unchallenged evidence was that he received directions from others regarding each delivery and used an encrypted device he had been given to receive such directions (and of course to avoid potential detection by the authorities). While it is accepted that important aspects of the offender's role changed during his dealings with Mouslmani including the tasks he assumed in relation to bagging the cocaine, the Crown accepts that the offender was acting on the direction of another or others and did not have ownership of the cocaine (or indeed the cash) with which he dealt.
13. Her Honour considered a number of aspects that informed objective seriousness including the quantity and purity of the drugs, whether the drugs were ultimately disseminated into the community, and the amounts of money. Her Honour then said: The Crown accepts that the offender was neither the financier nor owner of the cocaine or cash and was not supplying cocaine on his own account. It is accepted that the offender was acting on behalf of another (or others) and according to their directions. This does not however equate with a finding that the offender was at the lowest level of participation. He played a significant and integral role in the offending and intended and knew that he was involving himself in a commercial drug supply business. To that end, he delivered significant quantities of cocaine and at least on some occasions, took receipt of payment on behalf of those for whom he worked. In due course, he was entrusted to store a significant quantity of cocaine and cash and to cut, weigh, bag and deliver cocaine. The offender was not a supplier of small quantities of cocaine to end users, but a form of intermediate supplier of wholesale quantities of cocaine to two unrelated persons who were themselves drug suppliers and when that cocaine was seized and examined, its purity was high. It is not contended that the offender was acting under duress during the period of the offending and whilst he was abusing prohibited drugs, that cannot operate as a mitigating factor. That said, the circumstances in which he came to be involved in the offences and the fact he was not motivated purely by greed and/or the prospect of significant personal financial profit reduces his moral culpability but not to any significant extent. The fact is the offender knowingly chose to assist in the business of drug supply to support his substance abuse issues and reduce his debt. He did not reveal the extent of his drug addiction to his family or to health providers when he had contact with them nor did he seek to engage in any form of treatment. He is not a person whose moral culpability is mitigated by an addiction to drugs arising out of childhood adversity or dysfunction.
14. Her Honour's ultimate conclusion was this:

• Sequence 7 of H828 [involving the 10.3472 kg of cocaine] and sequence 9 of H828 are serious offences with sequence 8 of H740 and sequence 12 of H740 being slightly less serious offences. This is primarily because of the time the offender committed the two later offences (they being the first committed in time), his role and involvement was not as serious.
• Sequence 12 of H740 is slightly more serious than sequence 8 of H740, primarily because I consider an offence of deemed supply to be slightly less serious than an offence of actual supply.
• Sequence 8 of H828 [involving the amount of $1,339,220] and sequence 9 of H740 are serious offences, with sequence 8 of H828 being a more serious offence, as it involved a more substantial sum of money.

1. Contrary to the applicant's written submissions in this Court, there was no evidence that he withdrew from the arrangement to keep the drugs and money. His evidence was that he was told to leave them at the Orchard Rd property till the person who directed him organised someone to pick it up. Although he told the psychologist, Ms Cullen, that he "tried to get out of the situation by moving house", what was found at the new house in Farrell Road, on the execution of the search warrant (set out at [23] and [24] above) indicated his continued involvement at the new premises. That included a money counting machine, a heat-sealing machine, packaging consistent with what the bricks of cocaine were wrapped in, electronic scales, and significant amounts of drugs and money. Further, although "happy to move", the applicant had no choice because the landlord wanted the Orchard Road property back.
2. Although the applicant's evidence was not entirely clear, his evidence was that he was told to leave the drugs and money in the attic till someone would be organised to pick them up. The evidence does not support the submission that he withdrew from the arrangement. Further, what was found at the Farrell Road property in the garage shows clearly that he was not abandoning his involvement in the drug supply but continued to be actively involved. No submission was made to the sentencing judge that the applicant had withdrawn from the arrangement or abandoned the drugs. Nor was any submission put that there was "no true meeting of the minds" regarding the drugs and cash at the Orchard Road property.
3. The submissions made on the applicant's behalf at the sentence hearing, including the "striking element" submission, were all directed to the assessment of objective seriousness that the sentencing judge should make. As can be seen from [40]-[41] above, the sentencing judge took into account the matters relevant to that consideration, including his role in the network and that he was acting at the direction of others, but also that he was entrusted with more serious tasks than had been the situation earlier in his involvement. The finding that he was acting at the direction of others but that he was not acting under duress is a sufficient response to what was said to be the "striking element" submission.
4. It was no error on the part of the sentencing judge to relate the applicant's motivation to his moral culpability, and the finding resulted in a small reduction in his moral culpability in any event.
5. It was not submitted to the sentencing judge that the applicant had withdrawn from the arrangement nor that his reward was incommensurate with the risks he assumed nor that there was no "true meeting of the minds" regarding the drugs and case at the Orchard Rd property.
6. There was no evidence that he had withdrawn from the arrangement. He moved from the Orchard Road premises because the landlord wanted those premises back, and it is clear from what was found in the garage of the Farrell Road premises, that the applicant moved his involvement in the drug network to those new premises.

Conclusion

1. The applicant requires an extension of time to make the application for leave to appeal. The Crown did not oppose the extension, and an order extending time should be made.
2. I propose the following orders: 1. Extend time for filing the present application to 1 July 2024. 2. Grant leave to appeal. 3. Dismiss the appeal.
3. WRIGHT J: I agree with the orders proposed by Davies J for the reasons that his Honour has given.

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