Citation: R v Chahoud [2013] NSWDC 228
Court: District Court of New South Wales
Date: 4 October 2013
Judge: Berman SC DCJ
Background
The offender, a 29-year-old man, was stopped by police for speeding on 30 December 2011. During the stop, police discovered he was on bail for a traffic offence and found a large sum of cash in the vehicle. A search uncovered 25 small resealable plastic bags containing a total of 15 grams of cocaine at 37% purity.
The offender had originally been charged with supplying a prohibited drug and pleaded not guilty at arraignment. On the morning his trial was due to commence, he entered a late guilty plea to the lesser charge of being knowingly concerned in the supply of cocaine. The Crown accepted that he had acted as a courier, rather than as the principal supplier.
The offender had a history of significant cocaine use, which had affected his personal relationships and led to a concurrent Xanax dependency. By the time of sentencing, he had apparently achieved a period of abstinence and was on a waiting list for an inpatient drug and alcohol program.
Legal Issues
- Whether the offender was trafficking to a substantial degree, which would ordinarily require a full-time custodial sentence absent exceptional circumstances
- Whether sentencing should be deferred under s 11 of the Crimes (Sentencing Procedure) Act to allow assessment of the offender's rehabilitation prospects
- What weight, if any, should be given to the psychological report tendered on the offender's behalf
Decision
His Honour found that the offender was not trafficking to a substantial degree. Two features supported that conclusion: he acted as a courier rather than as an organiser, and the involvement was a single occasion. The presence of 25 separate packages pointed the other way, but did not displace the overall finding.
On the question of custody, the court noted that even where trafficking is not substantial, a full-time custodial sentence remains a real possibility. The outcome here would depend heavily on whether the offender could demonstrate, rather than merely promise, genuine rehabilitation.
Because the offender's abstinence from cocaine was of recent origin only, His Honour adjourned sentencing under s 11 of the Crimes (Sentencing Procedure) Act. The adjournment was intended to allow a proper assessment of rehabilitation progress before a final sentence was imposed. His Honour was explicit: demonstrated rehabilitation would make a full-time custodial sentence less likely, while failure to rehabilitate would make it effectively inevitable.
The court gave the psychological report limited weight. His Honour was critical of the psychologist, Dr Jacmon, on two grounds: his reports were described as virtually identical across different matters, recycling boilerplate language about diminished judgment, and his conclusions lacked adequate reasoning. Specifically, the court noted that no explanation was given for how the psychologist had dated the onset of the offender's depressive disorder. His Honour was careful to distinguish these criticisms of the reports from any view about the psychologist's capacity to treat patients in a clinical setting.
Orders Made
- Matter adjourned to Friday 23 May 2014 at 2:00pm for sentencing
- Offender to be supervised by the Probation and Parole Service during remand
- Regular and random urinalysis required as part of supervision
- No illegal drugs to be consumed
- Xanax permitted only if prescribed
- Offender to pursue and enter the St John of God Drug and Alcohol Inpatient Program if offered a place
- If the program had not been completed by the next hearing, evidence of the reason to be provided
- Offender to reside at an address known to the court unless admitted as an inpatient
- Offender to report to the Probation and Parole Service within seven days
Key Takeaways
- Under established sentencing principles for drug traffickers in NSW, a full-time custodial sentence is generally required where trafficking is substantial, but the District Court confirmed this does not preclude a custodial sentence where trafficking is at a lower level.
- Acting as a courier on a single occasion, rather than as an organiser or repeat participant, was treated as a significant mitigating factor when assessing the degree of trafficking.
- A late guilty plea, entered on the morning of trial, still carries utilitarian value that must be reflected in the sentence, even where the timing reduces the discount available.
- Section 11 of the Crimes (Sentencing Procedure) Act permits a court to adjourn sentencing where an offender's rehabilitation prospects require further assessment before an appropriate sentence can be determined.
- Psychological reports that recycle near-identical language across different matters, and that draw conclusions without adequate reasoning, are liable to attract significant judicial criticism and reduced weight, even where the psychologist's clinical abilities are not in question.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 11
Cases:
- No specific cases were cited in the judgment text. His Honour referred generally to "well-known authorities regarding sentencing in the case of drug traffickers" without identifying them by name.