Citation: Regina v Omar Kaddour [2007] NSWDC 335
Court: District Court of New South Wales
Date: 31 May 2007
Judge(s): Cogswell SC DCJ
Background
The offender, a 21-year-old plumbing apprentice, was stopped by police while driving along the Hume Highway at Yagoona in August 2006. A passenger was found concealing 56 tablets (MDMA and methylamphetamine) after police stopped the vehicle. The offender approached police and claimed ownership of the tablets, stating he had asked his passenger to hide them.
The offender was tried before a jury at Campbelltown. He maintained throughout that he had purchased the tablets in bulk for personal use and intended to dispose of them after a bad experience. The jury convicted him of two counts of supplying a prohibited drug under the deemed supply provisions of the Drug Misuse and Trafficking Act 1985, meaning the prosecution did not need to prove actual supply, only that the offender possessed a trafficable quantity and failed to satisfy the jury that possession was for a purpose other than supply.
Each count carried a maximum penalty of 15 years imprisonment. The sentencing hearing took place in April and May 2007.
Legal Issues
- What was the appropriate level of objective seriousness for two counts of deemed supply of a prohibited drug, where there was no direct evidence of actual sales?
- What weight should be given to the offender's youth (21 at the time of the offence), prior good character, remorse, and prospects of rehabilitation?
- Whether hardship to third parties (particularly the offender's family) warranted consideration in sentencing.
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence.
- Whether periodic detention was an appropriate means of serving the sentence.
Decision
Cogswell SC DCJ accepted that the offender's possession of 56 tablets, with a combined street value of approximately $1,920, packaged in resealable bags of consistent quantity, was consistent with possession for supply at a commercial level. However, the court was not satisfied beyond reasonable doubt that the offender had actually sold any drugs, and found no evidence of scales, drug sale records, or large amounts of cash beyond what the offender had explained by reference to his pay.
The court placed the offending in the mid-range of objective seriousness for commercial supply, acknowledging that while the quantities were not large, the packaging and circumstances were strongly indicative of intended sale. The offender's account of bulk personal purchase was treated with scepticism, but the benefit of reasonable doubt remained.
Substantial weight was given to several subjective factors. The offender was 21 at the time of the offence, had no prior criminal history, demonstrated genuine remorse, and had strong family support. Evidence from a psychologist and a probation officer supported the view that his prospects of rehabilitation were good. The court also accepted that a custodial sentence would impose hardship on the offender's parents, who relied on him financially to help service their mortgage.
The court found special circumstances justifying an extended non-parole period relative to the overall sentence, citing the offender's youth, his first time in custody, and the importance of ongoing supervision to support his rehabilitation. Taking all factors into account, the court sentenced the offender to periodic detention rather than full-time custody.
Orders Made
- Three years imprisonment with a non-parole period of 18 months, to be served by way of periodic detention.
- Order for the destruction of the prohibited drugs under s 39P of the Drug Misuse and Trafficking Act 1985.
Key Takeaways
- The District Court confirmed that deemed supply convictions can be treated as commercial in nature even without direct evidence of actual sales, where the quantity, packaging, and circumstances of possession support that inference.
- Where a defendant successfully raises reasonable doubt about actual supply, this bears on the assessment of objective seriousness but does not preclude a finding that possession was for commercial supply purposes.
- Youth, absence of prior criminal history, genuine remorse, and strong family ties each operated as mitigating factors capable of significantly reducing an otherwise substantial sentence.
- Special circumstances sufficient to vary the standard non-parole period ratio were established on the basis of the offender's age, his first experience of custody, and the importance of structured post-release supervision for rehabilitation.
- Periodic detention was available as an alternative to full-time imprisonment where the sentencing court was satisfied that the offender's rehabilitation prospects and personal circumstances warranted it, though the court made clear the offender had come close to receiving a full-time custodial term.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29, 31, 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 66, 71
Cases:
- Regina v Gu [2006] NSWCCA 104
- Regina v Nguyen (2006) 166 ACrimR 124
- Regina v Pilley (1991) 56 ACrimR 202
- Regina v Ramos (2000) ACrimR 339
- Regina v Simpson [2006] NSWCCA 117