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District Court 21 April 2011

R v John YOUKHANA

[2011] NSWDC 62

DrugsFirearms & weapons
CRIMINAL SUPPLY PROHIBITED DRUG SUPPLY PROHIBITED DRUG ON ONGOING BASIS POSSESS PROHIBITED DRUG PROCEEDS OF CRIME FIREARMS OFFENCES

Citation: R v John Youkhana [2011] NSWDC 62
Court: District Court of New South Wales
Date: 21 April 2011
Judge: Haesler SC DCJ

Background

Operation Schoale was a joint investigation by NSW Police and the NSW Crime Commission into the importation and distribution of cocaine. The offender was a cocaine seller connected to this network, though he played no role in importing the drug. Investigators used telephone intercepts, listening devices, a controlled purchase, a covert search, and a search warrant to build the case against him.

When police searched the offender's Newington premises in February 2007, they found approximately 658 grams of cocaine packaged for distribution, over $38,000 in cash, multiple mobile phones and SIM cards, scales, bags, and three unsecured firearms: a loaded Glock 19 pistol, a semi-automatic rifle, and a pump-action shotgun. The telephone intercept evidence ran to more than 700 call transcripts.

The offender pleaded to charges including supply of a prohibited drug, supply on an ongoing basis, possession, proceeds of crime offences, firearms offences, and common assault.

  • Whether the Crown had established, beyond reasonable doubt, that the telephone intercepts showed supply on at least 200 occasions to 40 different recipients
  • Whether the offender had prepared cocaine by adding a cutting agent (Diltiazem) to increase its weight
  • Whether the offender was suffering acute mental illness during the offending period, and if so, whether that had been established on the balance of probabilities so as to mitigate sentence
  • Whether the offender was addicted to cocaine, and whether addiction mitigated the offending
  • The appropriate total sentence and structure, including whether special circumstances existed to vary the statutory ratio between non-parole period and balance of term

Decision

The court resolved the two factual disputes against the defence on the mental illness and addiction questions. A forensic psychiatrist, Dr Nielssen, had concluded that the offender was likely acutely mentally ill in the lead-up to his arrest, based on the offender's own account of heavy cocaine and cannabis use. The court, applying Qutami, noted that substantial caution is required when a psychiatric opinion rests solely on the offender's self-report. The Justice Health records showed the offender had reported no mental health or drug issues when first received into custody in 2007, and did not raise those matters until some 18 months later. The court found the offender had not discharged the onus, on the balance of probabilities, of establishing mental illness as a mitigating factor.

On the addiction question, the court accepted that the offender used cocaine and cannabis and consumed some of his own product, but found the evidence fell short of establishing an addiction. Similarly, the court declined to accept the offender's account that the offences arose from his drug dependency rather than from deliberate commercial activity. The telephone intercepts painted a picture of an organised, capable dealer who spoke disparagingly of drug addicts and managed a substantial customer network.

On the supply counts, the court was satisfied beyond reasonable doubt that the intercept evidence demonstrated repeated commercial supply across the relevant period. The court also found that the offender had added Diltiazem to cocaine to increase its bulk, consistent with commercial supply rather than personal use.

Finding special circumstances, the court structured the sentences with a longer balance of term to allow for a supervised transition back into the community, particularly given the offender's eventual development of psychosis while in custody and the length of the overall sentence.

Orders Made

  • Count 1 (supply on an ongoing basis): Total effective sentence of 7 years 6 months; non-parole period of 5 years 7 months and 15 days, commencing 13 February 2008, expiring 27 September 2013; balance of term of 1 year 10 months and 16 days
  • Count 2 (supply prohibited drug): Total effective sentence of 7 years 6 months; non-parole period of 5 years 3 months, commencing 13 August 2008, expiring 12 November 2013; balance of term of 2 years 3 months
  • Count 3: Fixed term of 1 month, commencing 13 February 2007, expiring 12 March 2007
  • Count 4 (taking into account Form 1B matters): Total effective sentence of 3 years; non-parole period of 2 years 3 months, commencing 13 February 2007, expiring 12 May 2009; balance of term of 9 months
  • Count 5 (taking into account Form 1C matters): Total effective sentence of 2 years 9 months; non-parole period of 2 years, commencing 13 August 2007, expiring 12 August 2009; balance of term of 9 months
  • Total effective sentence: 9 years, commencing 13 February 2007, expiring 12 February 2016
  • Total non-parole period: 6 years 9 months, commencing 13 February 2007, eligible for parole consideration from 12 November 2013
  • Several related sequences were withdrawn and dismissed

Key Takeaways

  • Where a defendant relies on mental illness to mitigate sentence, the onus rests on the defendant to establish that condition on the balance of probabilities. Reliance on a psychiatric opinion based solely on the offender's own self-report, without corroborating evidence, is unlikely to discharge that onus, particularly where contemporaneous records are inconsistent with the account.

  • The District Court applied Qutami to treat the psychiatric evidence with "very considerable caution," illustrating that expert reports in sentencing proceedings are only as reliable as the factual foundation on which they rest.

  • Drug use by an offender does not automatically constitute addiction for sentencing purposes. A finding of addiction requires evidence beyond mere use of, or even dependence on, a substance.

  • Possession of loaded, unsecured firearms in a commercial drug-supply context is treated as a serious aggravating feature, independent of any claimed subjective fear motivating that possession.

  • A finding of special circumstances permits the court to depart from the standard statutory ratio of non-parole period to balance of term, particularly where the total sentence is lengthy and supervised reintegration is warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Qutami (2001) 127 A Crim R 369
- Way (2004) 60 NSWLR 168
- Hemsley [2004] NSWCCA 228
- Cahyadi [2007] 168 A Crim R 41
- XX (2009) 195 A Crim R 38
- Smiraldo (2000) 112 A Crim R 47
- Giang [2005] NSWCCA 387
- Engert (1995) 84 A Crim R 67
- Clinch (1994) 72 A Crim R 301
- MAK (2006) 167 A Crim R 159
- Thomson and Houlton (2000) 49 NSWLR 383
- Wong (2001) 207 CLR 584
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146