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District Court 1 May 2008

R v Masoud ZIYA

[2008] NSWDC 99

Drugs
CRIMINAL LAW SENTENCE

Citation: R v Masoud ZIYA [2008] NSWDC 99
Court: District Court of New South Wales
Date: 1 May 2008
Judge(s): Berman SC DCJ

Background

The offender appeared for sentence after pleading guilty to two separate drug supply offences. The first involved him acting as an intermediary in the supply of 141 grams of cocaine between November 2006, connecting a high-level supplier with a buyer who was expected to on-supply the drug. The second offence, committed in March 2007, involved the supply of 658 MDMA (ecstasy) tablets to another individual, following a series of telephone calls arranging the transaction.

When arrested in April 2007, police seized multiple mobile phones and two sets of scales from the offender's residence. The Crown case was strong, relying on intercepted telephone calls and surveillance that documented the offender's involvement in considerable detail.

The offender had a prior drug supply conviction from 2000, for which he received a bond that he subsequently breached. Born in Iraq and arriving in Australia in 1991, the offender had experienced significant hardship, including military conscription, religious discrimination, and possible post-traumatic stress disorder. He had developed a serious drug habit, which his counsel submitted was the motivation behind his involvement in the offences.

  • What sentence was appropriate for two serious, separate drug supply offences committed by a middle-man with a prior drug supply conviction?
  • Whether the offender's guilty pleas attracted a utilitarian discount, and what weight to give to contrition in light of the strength of the Crown case.
  • Whether the sentences should be accumulated or concurrent, and how the totality principle applied.
  • What weight, if any, to give to the offender's personal circumstances, including background, drug dependency, and prospects of rehabilitation.
  • How to assess a conflict between the Probation and Parole officer's report and the offender's evidence.

Decision

The court accepted the Probation and Parole officer's report over the offender's evidence without hesitation. The court found that the officer had conducted a formal interview knowing her conclusions would be placed before the court, and her notes corroborated her written report. The cross-examination of the officer served only to place the offender in a worse light, as she expanded on her notes in response to challenges.

The court was not satisfied the offender was genuinely remorseful. It found he had made statements to the probation officer suggesting that if he had not supplied drugs, someone else would have, and that Australia was somehow at fault for allowing the supply to occur. These attitudes pointed to a significant need for personal deterrence and, combined with the offender's failure to acknowledge the harm caused by drug supply, the court could not identify any meaningful prospect of rehabilitation.

The offender received a 25 percent discount for his early guilty pleas on utilitarian grounds. However, the court gave little weight to contrition as an indicator of rehabilitation, noting the plea was entered against a very strong evidentiary case. The court also found the offending was sufficiently distinct in time, drug type, and parties involved to warrant accumulated rather than concurrent sentences, with partial accumulation applied to give effect to the totality principle.

No finding of special circumstances was made. The court acknowledged some matters capable of constituting special circumstances existed, but concluded the resulting non-parole period was already the shortest that properly reflected the circumstances.

Orders Made

  • Count 1 (cocaine supply): non-parole period of 1 year and 6 months from 21 April 2007, head sentence of 2 years and 6 months.
  • Count 2 (MDMA supply): non-parole period of 2 years from 21 April 2008, head sentence of 3 years.
  • Total effective sentence: 4 years imprisonment with a non-parole period of 3 years, commencing 21 April 2007.

Key Takeaways

  • A middle-man role in drug supply at a commercial scale, involving separate transactions across different drug types and parties, warranted full accumulation of sentences, moderated by the totality principle to avoid a crushing overall sentence.
  • Where an offender's evidence directly contradicts a Probation and Parole officer's formal interview notes, the court may unhesitatingly prefer the officer's account, particularly where the officer kept contemporaneous records and was conducting a structured professional interview.
  • Utilitarian value from an early guilty plea attracts a discount even against a very strong Crown case, but the same strong case significantly limits the weight given to the plea as evidence of genuine remorse or contrition.
  • Statements made to a probation officer indicating a dismissive attitude toward the harm caused by drug supply can elevate the need for personal deterrence as a sentencing consideration and undermine findings of rehabilitation prospects.
  • An absence of remorse, combined with an inability to find that reoffending is unlikely, can displace findings of special circumstances even where some relevant factors are present, resulting in a non-parole period representing a higher proportion of the head sentence than the statutory default.

Legislation and Cases Referenced

Legislation:
No specific legislation was cited in the judgment text. The offences relate to the supply and knowing participation in supply of prohibited drugs (cocaine and MDMA/ecstasy), the relevant offences under New South Wales drug supply law.

Cases:
No cases were cited in the judgment text or metadata.