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District Court 2 April 2015

R v Kassis

[2015] NSWDC 178

Drugs
CRIMINAL LAW SENTENCE CRIMINAL LAW SENTENCE FACT FINDING

Citation: R v Kassis [2015] NSWDC 178
Court: District Court of New South Wales
Date: 2 April 2015
Judge: Payne DCJ

Background

The offender pleaded guilty to two serious drug offences arising from a joint investigation by NSW Police and the NSW Crime Commission. The investigation, which began in November 2012, involved physical surveillance, telephone interception, and a covert search of a granny flat at a Putney property owned by the offender. Police arrested him on 19 April 2013 as he was leaving the property.

The first offence involved the manufacture of 7,008.63 grams of 4-Bromo-2,5-dimethoxyphenethylamine (commonly known as "Nexus") between March and April 2013. That quantity was approximately 70 times the large commercial quantity threshold for that drug. The second offence involved the supply of 426.5 grams of MDMA (Ecstasy) seized on the same date, exceeding the commercial quantity threshold by more than three times.

A third matter, involving a small quantity of amphetamine found at his Merrylands residence, was included on a Form 1 (meaning it was taken into account in sentencing without a separate conviction being recorded).

  • What discount, if any, applied to the sentence for the early guilty plea, notwithstanding that a disputed facts hearing was required?
  • Whether the offender was entitled to a mitigating factor for remorse and acceptance of responsibility under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What the appropriate head sentences and non-parole periods were for each count, including the application of standard non-parole periods and the totality principle?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio?

Decision

Guilty plea discount: The Court accepted that the guilty plea was entered at the earliest opportunity, entitling the offender to a 25 percent reduction for utilitarian considerations. The fact that a disputed facts hearing was held did not disqualify the offender from the full discount, consistent with R v AB [2011] NSWCCA 229.

Remorse: Payne DCJ rejected the offender's account of his involvement in all three offences, finding it untruthful on the balance of probabilities. The Court also found that the offender had not acknowledged the harm caused to the community by his offending. His letter to the Court and character testimonials focused on the impact on his family rather than on community harm. The Court was satisfied beyond reasonable doubt that the mitigating factor for remorse under s 21A(3)(i) was not made out.

Sentencing: For count two (MDMA supply), the pre-discount starting point was five years, reduced to three years and nine months, with a non-parole period of two years and three months. For count one (Nexus manufacture), taking into account the Form 1 offence, the pre-discount starting point was ten years and three months, reduced to seven years and eight months, with a non-parole period of four years and ten months. The two sentences were partially accumulated to reflect the principle of totality.

Special circumstances: The Court found special circumstances existed, based on the combination of the offender being a first-time custodial prisoner, his need for reintegration assistance after a lengthy term, his reasonable prospects of rehabilitation, and his background of depression and excessive gambling, which were better addressed in the community. The effective total sentence was seven years and ten months, with an effective non-parole period of five years.

Orders Made

  • Count two: total term of 3 years 9 months (commencing 19 April 2013, expiring 18 January 2017); non-parole period of 2 years 3 months (expiring 18 July 2015).
  • Count one (including Form 1 offence): total term of 7 years 8 months (commencing 19 June 2013, expiring 18 February 2021); non-parole period of 4 years 10 months (expiring 18 April 2018).
  • Effective total sentence: 7 years and 10 months; effective non-parole period: 5 years.
  • Eligible for parole consideration from 18 April 2018.
  • Order for destruction of drugs and forfeiture of equipment (including the pill press) to the State.

Key Takeaways

  • A 25 percent guilty plea discount remains available even where a disputed facts hearing is held, provided the plea itself was entered at the earliest opportunity, consistent with R v AB [2011] NSWCCA 229.
  • Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, a mitigating factor for remorse requires both acceptance of responsibility and acknowledgement of injury or loss caused to others. Expressions of regret focused only on the impact on the offender's family are insufficient.
  • Where a court rejects an offender's account of their involvement as untruthful, that finding directly undermines any claim to the remorse mitigating factor, and the court may be satisfied beyond reasonable doubt the factor is not established.
  • Special circumstances justifying a non-parole period below the standard ratio can arise from a combination of factors, including the fact of a first custodial sentence, rehabilitation prospects, reintegration needs, and mental health or other personal issues better managed in the community.
  • Quantities significantly exceeding the large commercial threshold (here, approximately 70 times for Nexus) are a central objective factor in calibrating the gravity of a drug manufacture offence and the appropriateness of the head sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 25, 29, 33, 33A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 61
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Cases:
- R v AB [2011] NSWCCA 229
- Aoun v R [2011] NSWCCA 284
- Ayshow v R [2011] NSWCCA 240
- Briouzguine v R [2014] NSWCCA 264
- Diesing v R [2007] NSWCCA 326
- Farkas v R [2014] NSWCCA 141
- Hill v R [2012] NSWCCA 265
- Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444
- Mokhaiber v R [2011] NSWCCA 10
- R v Achurch [2011] NSWCCA 186
- R v Campbell [2014] NSWCCA 102
- R v Chan [1999] NSWCCA 103
- R v DW [2012] NSWCCA 66; 221 A Crim R 63
- R v El-Azzi [2004] NSWCCA 455
- R v Gao; R v Lim [2007] NSWCCA 343
- R v Girard; R v Girard [2004] NSWCCA 170
- R v Li [2014] NSWCCA 327
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v X [2004] NSWCCA 93
- Simpson v R [2014] NSWCCA 23