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District Court 30 September 2011

R v AHMED

[2011] NSWDC 210

Drugs
CRIMINAL LAW SENTENCE ONGOING SUPPLY OF METHYLAMPHETAMINE SUPPLY CANNABIS SUPPLY METHYLAMPHETAMINE FORM 1

Citation: R v Ahmed [2011] NSWDC 210
Court: District Court of New South Wales
Date: 30 September 2011
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty at an early stage to three drug supply offences arising from a police telephone intercept operation that commenced in April 2010. Police recorded approximately 49 transactions over roughly two months, during which the offender supplied methylamphetamine to a large number of customers, often delivering drugs directly to buyers. The total methylamphetamine involved across the recorded transactions was approximately 21 grams, with a further 30.7 grams of cannabis leaf supplied in a separate transaction.

The offender operated from her home, where her 15-year-old daughter also resided. Drug paraphernalia was found throughout the premises. The offender's stated motivation was to obtain drugs for her own use without cost, funded in part by money sent from her father overseas.

Two additional matters were brought before the court on a Form 1 (that is, matters taken into account at sentencing without a separate conviction being recorded): possession of drug-related items found at the premises on arrest, and conducting drug premises while exposing a child to prohibited drugs.

  • Whether the objective seriousness of the offending required full-time imprisonment, or whether alternatives such as an Intensive Correction Order were available
  • Whether the offender's personal circumstances amounted to "exceptional circumstances" sufficient to justify a non-custodial sentence
  • How the overall sentence should be structured, including the non-parole period, having regard to special circumstances arising from the offender's rehabilitation prospects and the fact this was her first period of imprisonment
  • The appropriate discount to apply for an early guilty plea

Decision

His Honour found that the offending was seriously criminal despite the relatively small quantities involved in individual transactions. Street-level drug dealing of this kind, conducted repeatedly over an extended period with a large number of customers, carried significant objective gravity. The court noted that the operation would have continued indefinitely had police not intervened.

The offender's personal history included domestic violence, the unsolved murder of her former husband, and a subsequent abusive relationship involving firearms. These circumstances explained the genesis of her drug use. However, His Honour found that while these were genuine mitigating factors, they did not collectively amount to "exceptional circumstances" that would justify any sentence other than full-time imprisonment.

Positive subjective factors weighed in the offender's favour: an early guilty plea (attracting a 25 per cent reduction), demonstrated rehabilitation since arrest, good prospects of not re-offending, remorse, and favourable references. The court also recognised that imprisonment would be experienced more harshly given the offender's ongoing physical injuries from a motor vehicle accident and the knowledge that her daughter would be without her care. These factors informed the sentence structure but did not displace custody.

Special circumstances were found, principally because this was the offender's first period of imprisonment and her rehabilitation prospects were strong. This justified a longer ratio of parole to non-parole time than would ordinarily apply. An Intensive Correction Order was not considered further because the length of the sentences imposed made it unavailable.

Orders Made

  • Count 1 (ongoing supply of methylamphetamine, with Form 1 matters taken into account): non-parole period of 18 months from 5 August 2011; head sentence of 3 years
  • Count 2 (supply of cannabis): fixed term of 1 year from 5 August 2011
  • Count 3 (supply of methylamphetamine): non-parole period of 18 months from 5 August 2012; head sentence of 3 years
  • Overall effective sentence: non-parole period of 2 years and 6 months; head sentence of 4 years; eligible for release to parole on 4 February 2014
  • Any drugs not yet destroyed are to be destroyed

Key Takeaways

  • Street-level drug supply involving numerous transactions and multiple customers carries serious objective gravity, even where individual quantities are small, and will ordinarily attract full-time imprisonment.
  • The District Court confirmed that personal hardship and a difficult personal history, while genuine mitigating factors, do not automatically constitute "exceptional circumstances" displacing a custodial sentence where the offending is sufficiently serious.
  • A 25 per cent reduction in sentence was applied to reflect the utilitarian value of an early guilty plea.
  • Special circumstances justifying a modified parole ratio can be established where an offender faces their first period of imprisonment and demonstrates strong rehabilitation prospects.
  • Form 1 matters, including exposing a child to prohibited drugs at a drug premises, were taken into account in sentencing for the principal offence, even though no separate conviction was recorded for those matters.

Legislation and Cases Referenced

Legislation:
- Section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (ongoing supply of a prohibited drug)
- Provisions relating to conducting drug premises while exposing a child to prohibited drugs (Drug Misuse and Trafficking Act 1985 (NSW))

Cases cited: No cases were cited in the judgment as provided.