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District Court 24 March 2016

R v Khatib

[2016] NSWDC 299

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY

Citation: R v Khatib [2016] NSWDC 299
Court: District Court of New South Wales
Date: 24 March 2016
Judge(s): Berman SC DCJ

Background

The offender was detected by police in the act of supplying drugs to another person. Upon arrest, he was found in possession of 36 white tablets, believed to be MDMA, and a search of his mobile phone revealed text messages indicating he had been supplying drugs to multiple individuals.

The offender acknowledged his conduct, stating he had been subsidising his own drug use and meeting financial obligations including rent and debts. The sentencing judge described him as having been a willing supplier to anyone seeking to purchase drugs.

At the sentencing hearing, the offender's counsel sought a non-custodial sentence on the basis of exceptional circumstances, relying primarily on the offender's claimed rehabilitation since arrest.

  • Whether the offender had demonstrated "exceptional circumstances" sufficient to justify a sentence other than full-time custody, as required under the applicable sentencing framework
  • Whether the rehabilitation evidence presented by the defence was sufficient to support that submission

Decision

The sentencing judge found that the rehabilitation evidence put before the court was inadequate on two grounds. First, the offender's current employment at Sydney Airport carried an aviation security identification card (ASIC), which was likely to be revoked upon conviction for drug supply. The ongoing employment relied upon as a stabilising factor was therefore uncertain, and the judge could not be satisfied that rehabilitation would continue if that employment was lost.

Second, the offender's claim to have abstained from drug use since arrest was unsworn and unsupported by any urinalysis results or other objective evidence. While counsel had referred to workplace drug testing on three occasions, no records of those tests were tendered.

In light of these deficiencies, the judge proposed adjourning the matter under section 11 of the Crimes (Sentencing Procedure) Act. This provision permits a court to defer sentence to allow an offender to demonstrate rehabilitation or other matters relevant to the appropriate penalty. The Crown did not oppose the adjournment.

The judge recorded a conviction and imposed three conditions for the adjournment period: the offender was to immediately disclose his drug supply conviction to his employer and the relevant ASIC-issuing authority; he was to be supervised by the Probation and Parole Service; and he was to undergo regular urinalysis at his own expense or under the service's supervision to provide objective evidence of abstinence.

Orders Made

  • Offender convicted of drug supply
  • Matter adjourned under section 11 of the Crimes (Sentencing Procedure) Act to 25 November 2016
  • Conditions of adjournment: disclosure of conviction to employer and ASIC authority; supervision by Probation and Parole Service; regular urinalysis

Key Takeaways

  • A claim of rehabilitation, to carry weight at sentencing, requires objective evidentiary support. Unsworn assertions by an offender, without supporting documentation such as drug test results, may be insufficient to establish exceptional circumstances.
  • Under section 11 of the Crimes (Sentencing Procedure) Act, a sentencing court may adjourn proceedings to allow an offender the opportunity to demonstrate rehabilitation before a final sentencing determination is made.
  • The District Court treated the offender's precarious employment situation as a factor weighing against the rehabilitation submission, rather than in support of it. Employment that is likely to be lost upon conviction cannot reliably anchor a finding of exceptional circumstances.
  • Where rehabilitation is put forward as the basis for avoiding full-time custody in a drug supply matter, the court indicated it requires a comprehensive and verifiable picture of the offender's circumstances, including ongoing drug-free status supported by testing.
  • A conviction may be formally recorded at the time of an adjournment under section 11, with the sentencing determination reserved pending further evidence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 11 (adjournment for rehabilitation or other purpose)

Cases cited: None identified in the judgment.