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District Court 25 March 2010

R v SHEIKHLARY

[2010] NSWDC 117

Drugs
CRIMINAL LAW SENTENCE SUPPLY A PROHIBITED DRUG METHYLAMPHETAMINE BENZYLPIPERAZINE (BZP)

Citation: R v Sheikhlary [2010] NSWDC 117
Court: District Court of New South Wales
Date: 25 March 2010
Judge(s): Berman SC DCJ

Background

Police executed a search warrant at the offender's premises on 25 August 2009. The offender volunteered to officers that a safe in his bathroom contained cannabis and what he called "speed pills." Police found 24 methylamphetamine tablets in two forms and 10 tablets of benzylpiperazine (BZP, a synthetic stimulant sometimes sold as a party drug), along with digital scales, significant cash deposit receipts, and handwritten notes consistent with drug supply activity.

The offender pleaded guilty at an early stage to one count of supplying a prohibited drug (methylamphetamine). He asked the court to take into account, on a Form 1 (a mechanism under NSW law allowing related offences to be considered at sentencing without separate conviction), possession of 108.2 grams of cannabis and supply of BZP.

A significant aggravating factor was that the offending occurred while the offender was on a section 11 remand. That is, a judge of the District Court had adjourned an appeal against an earlier imprisonment sentence under section 11 of the relevant legislation to assess an appropriate penalty. The offender committed these drug supply offences during that adjournment period, yet the sentencing judge on that appeal still placed him on a section 9 bond rather than dismissing the appeal.

  • What sentence was appropriate for supply of methylamphetamine, having regard to the objective seriousness of the offending?
  • What weight should be given to the offender's early guilty plea, personal circumstances, and remorse?
  • What weight should be given to the fact that the offender committed these offences while on a section 11 remand, having already been extended leniency?
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and head sentence (ordinarily, the non-parole period is at least three-quarters of the head sentence).

Decision

Berman SC DCJ rejected the submission from the offender's solicitor and his partner that the seven months already served in custody was sufficient. The court characterised the offending as objectively serious: the offender possessed multiple tablets of two different drugs with clear indicia of supply, and the court found this was not supply at the bottom of the range.

The court applied a 25 percent discount to the sentence it would otherwise have imposed, reflecting the utilitarian value of the early guilty plea. The court also took into account the offender's difficult upbringing, his mother's support, his remorse, his participation in drug rehabilitation programs in custody, his health condition (Sherman's Disease, causing back pain), and the fact that he was serving his sentence in segregation due to threats from other prisoners, making his custodial conditions harsher than usual.

The offending while on section 11 remand weighed significantly against the offender. The court emphasised that personal deterrence was a primary consideration in selecting the sentence, given that the offender had failed to take advantage of leniency already extended to him.

The court found special circumstances existed, namely the offender's need for supervised drug rehabilitation upon release. This justified enlarging the parole period relative to the non-parole period, departing from the standard ratio. Parole conditions were structured to require close supervision, drug abstinence, and participation in rehabilitation programs.

Orders Made

  • Non-parole period of 14 months, commencing 25 August 2009, with release to parole on 24 October 2010.
  • Head sentence of 28 months imprisonment.
  • Parole conditions including: good behaviour; complete abstinence from illegal drugs including cannabis; close supervision by the Probation and Parole Service; assessment for outpatient community drug rehabilitation programs; satisfactory participation in courses, counselling, and programs as directed.

Key Takeaways

  • Committing a drug supply offence while on a section 11 remand (an adjournment granted to assess an appropriate appeal sentence) was treated as a significant aggravating factor going to personal deterrence, not merely to objective seriousness.
  • An early guilty plea attracted a 25 percent discount to reflect its utilitarian value to the criminal justice system.
  • Harsher custodial conditions, including segregation and a diagnosed medical condition, were recognised as factors making imprisonment more burdensome, and were taken into account in the sentencing exercise.
  • Special circumstances justifying a lower non-parole period relative to the head sentence can be established where rehabilitation needs require an extended parole period under supervision, even where the offender has a prior criminal history.
  • The District Court declined to treat the offending as falling at the lowest end of objective seriousness simply because more serious drug supply cases exist; the presence of multiple drugs, supply indicia, and a prior record placed this case above the minimum range.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bond), s 11 (adjournment for rehabilitation assessment), and Form 1 procedure for taking related offences into account

Cases cited: None cited in the judgment text.