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District Court 18 December 2015

R v FAHMY

[2015] NSWDC 382

Drugs
CRIMINAL

Citation: R v Fahmy [2015] NSWDC 382
Court: District Court of New South Wales
Date: 18 December 2015
Judge: Judge S Norrish QC

Background

The offender was convicted by jury of ongoing supply of a prohibited drug, namely methylamphetamine, contrary to section 25A(1) of the Drug Misuse and Trafficking Act 1995. The offence involved three separate street-level sales to an undercover police officer at a shopping centre car park in Bankstown over an eight to nine day period in May 2013. The total quantities supplied were small: 0.16g, 0.14g, and 0.12g respectively, each with purity levels between 75% and 78.5%.

The offender was approximately 18 years and eight to nine months old at the time of the offences. The court found that he was acting as a runner for others, using a mobile phone service and motor vehicle that had been used in other drug supply operations in the broader area. His personal financial benefit was limited, with the undercover officer paying a total of $300 across the three transactions.

The offender defended the charge at trial, with the defence appearing to rest in part on an inability to recall one of the transactions. The court found the prosecution case overwhelming. There was no evidence of contrition that could safely be acted upon.

  • What was the appropriate sentence for ongoing supply of methylamphetamine under section 25A(1), given the very small quantities involved?
  • What weight should be given to the high purity of the drug supplied at this small quantity level?
  • How should the offender's youth, limited role as a runner, and lack of contrition affect the sentence?
  • Whether the combination of subjective factors amounted to "exceptional circumstances" capable of displacing a custodial sentence.

Decision

The court assessed the objective seriousness of the offence as very low by reference to quantity alone. The three supplies were among the smallest individual quantities the court had encountered, each barely above a single "point" (0.1g). At such small quantities, the high purity of the drug carried limited additional weight: there was no realistic scope for cutting and redistribution, and the supplies were plainly intended for personal use by the apparent purchaser.

On the role of purity more broadly, the court observed that courts are now consistently seeing significantly higher purity levels in methylamphetamine and MDMA compared to years past, a trend it described as distressing given associated health risks. The court noted, however, that the offender bore no responsibility for manufacture or importation of the drug.

The court accepted the offender was a runner of limited seniority, and that his personal profit was modest. It acknowledged his youth as a relevant mitigating factor. Against that, the court found he was not a person of good character, that his prospects of rehabilitation were not good, and that his criminal record was not insignificant. The absence of contrition, combined with the offence having been committed while on conditional liberty, weighed against a more lenient outcome.

The court concluded that the aggregate of subjective circumstances did not constitute "exceptional circumstances" capable of displacing imprisonment, applying the principle from R v Cacciola that strong individual subjective factors do not collectively amount to exceptional circumstances unless the case is genuinely different from the general run of offences. Imprisonment was the only appropriate penalty.

Orders Made

  • The offender was convicted of ongoing supply of a prohibited drug (methylamphetamine) contrary to section 25A(1) of the Drug Misuse and Trafficking Act 1995.
  • Sentenced to 18 months imprisonment, commencing 8 August 2015 and expiring 7 February 2017.
  • Non-parole period fixed at 6 months, commencing 8 August 2015 and expiring 7 February 2016.
  • The offender was directed to be released to parole on 7 February 2016, with conditions to be determined by the Parole Authority.

Key Takeaways

  • At very small individual supply quantities, high purity of methylamphetamine carries limited sentencing weight, because there is no realistic prospect of further cutting and redistribution at that level.
  • A conviction for ongoing supply under section 25A(1) can arise from as few as three transactions over approximately eight to nine days, even where each transaction involves quantities barely above a single "point."
  • Under the principle confirmed in R v Cacciola, a combination of individually strong subjective mitigating factors does not amount to "exceptional circumstances" unless, taken together, they make the case genuinely different from the general run of cases.
  • The District Court identified a consistent and marked increase in drug purity levels, particularly for methylamphetamine and MDMA, as a contemporary sentencing context, though it did not treat this trend as aggravating in a case where the offender played no role in manufacture or importation.
  • Committing an offence while on conditional liberty remained a significant aggravating factor, contributing to the court's conclusion that no penalty other than imprisonment was appropriate despite the offender's youth and limited role.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1995 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- R v Cacciola (1998) 104 A Crim R 178
- R v Bloomfield (1998) 44 NSWLR 734
- R v BP [2010] NSWCCA
- EF v R [2015] NSWCCA 36
- Fayd'herbe v R [2007] NSWCCA 20
- R v Hearne [2001] NSWCCA 37
- R v Kairouz [2005] NSWCCA 247
- RCW v R (No 2) [2014] NSWCCA 190
- Ragendra v R [2014] NSWCCA 113
- R v Smiroldo [2000] NSWCCA 120