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District Court 8 November 2013

R v Tommous Elchiekh

[2013] NSWDC 238

Drugs
SENTENCING FOUR COUNTS OF DEEMED SUPPLY AGGREGATION OF TERMS

Citation: R v Tommous Elchiekh [2013] NSWDC 238
Court: District Court of New South Wales
Date: 8 November 2013
Judge: Mahony SC DCJ

Background

Following a jury trial, the offender was convicted on four counts of deemed supply of prohibited drugs. All four counts arose from a single police search of his leased premises at Meadowbank on 30 May 2005. Police located methylamphetamine (294.28 grams), MDMA (11.05 grams), ketamine (409.7 grams), and cannabis leaf (1,689.1 grams) across various locations throughout the unit.

Each quantity found significantly exceeded the applicable traffickable threshold under the Drug Misuse and Trafficking Act 1985, triggering the deemed supply provisions in section 29 of that Act. Under section 29, possession of a drug in at least the traffickable quantity is deemed to constitute supply, without the Crown needing to prove actual supply to another person.

The offender had not been located after the search and was only arrested pursuant to a police warrant some seven years later, in June 2012. He had no prior drug-related criminal history. At the time of sentencing he was 38 years old and had been in custody for 304 days.

  • What was the appropriate sentence for each individual count, having regard to the maximum penalties, the standard non-parole period (applicable to Count 1), and the relevant subjective and objective factors?
  • How should the totality principle be applied when aggregating sentences across four concurrent drug supply offences arising from a single occasion?
  • Whether the imposition of an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate, and what indicative sentences should accompany it.

Decision

His Honour found that the offending was serious, with each drug quantity greatly exceeding the traffickable minimum. Count 1, concerning 294.28 grams of methylamphetamine, was the most serious as it exceeded the commercial quantity threshold of 250 grams and attracted a standard non-parole period of 10 years. The court found the offender's role to be consistent with that of a drug supplier, noting the presence of significant cash, multiple SIM cards, a notebook with names and amounts, and fingerprints on packaging.

In mitigation, the court accepted the offender's lack of relevant prior criminal history, his substantial work history operating a panel beating business, and the time already spent in custody. His Honour was unable to give credit for remorse or rehabilitation given the offender did not give evidence and maintained his position throughout. The delay between offending in 2005 and sentencing in 2013 was also a relevant consideration, though the offender had absconded for much of that period.

His Honour imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999, with indicative sentences recorded for each individual count. The totality principle, drawn from R v Todd and Pearce v The Queen, required that the aggregate reflect the overall criminality without being crushing, while remaining proportionate to the combined seriousness of the four offences.

Orders Made

  • Aggregate non-parole period of 7 years and 6 months, commencing 8 January 2013 and expiring 7 July 2020.
  • Aggregate total term of 10 years imprisonment, commencing 8 January 2013 and expiring 7 January 2023.
  • Parole eligibility date fixed at 7 July 2020.
  • Indicative sentences under section 53A(2)(b):
  • Count 1: indicative non-parole period of 6 years, total sentence of 8 years.
  • Count 2: indicative non-parole period of 2 years and 6 months, balance of 1 year (total 3 years and 6 months).
  • Count 3: indicative non-parole period of 3 years, balance of 1 year (total 4 years).
  • Count 4: indicative non-parole period of 2 years, balance of 1 year (total 3 years).
  • Forfeiture of $13,590.00 in cash pursuant to section 13(2) of the Confiscation of Proceeds of Crimes Act 1989 (order not contested).

Key Takeaways

  • Where multiple drug supply counts arise from a single occasion, the totality principle requires that the aggregate sentence reflect the overall criminality without becoming disproportionately harsh, drawing on authority including R v Todd, Pearce v The Queen, and Mill v The Queen.
  • Under section 29 of the Drug Misuse and Trafficking Act 1985, possession of a drug in at least the traffickable quantity is deemed supply, regardless of whether actual distribution to another person is proven.
  • A standard non-parole period of 10 years applies to supply of methylamphetamine in a commercial quantity or above, and the sentencing court must treat this as a meaningful reference point in calibrating the sentence for the principal count.
  • Section 53A of the Crimes (Sentencing Procedure) Act 1999 permits the imposition of an aggregate custodial term across multiple counts, accompanied by indicative sentences for each individual offence to preserve transparency about how the aggregate was reached.
  • The District Court treated the seven-year period between offending and sentencing as a relevant sentencing consideration, though the weight given to it was affected by the offender having absconded for much of that interval.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 (NSW)
- Confiscation of Proceeds of Crimes Act 1989 (NSW), s 13(2)

Cases
- R v Todd [1982] 2 NSWLR 517
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59
- R v Wong [1999] NSWCCA 420
- Luu v R [2008] NSWCCA 285
- R v Rae [2013] NSWCCA 9
- Maree Collier v R [2012] NSWCCA 213
- R v Clark [2009] NSWCCA 49
- R v Kama [2000] NSWCCA 23
- R v Fidow [2004] NSWCCA 172