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District Court 25 November 2016

R v Khatib (No 2)

[2016] NSWDC 396

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY

Citation: R v Khatib (No 2) [2016] NSWDC 396
Court: District Court of New South Wales
Date: 25 November 2016
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to drug supply offences. He was arrested in October 2014 after police observed him supply drugs to another person, found him in possession of 36 tablets, and examined his mobile phone, which revealed a pattern of supplying drugs to multiple people. The court characterised his conduct as enthusiastic and financially motivated, noting he had debts and needed to pay rent.

At his first appearance in March 2016, the offender claimed to have turned his life around since arrest. The sentencing judge was not then satisfied there was sufficient evidence of genuine rehabilitation, and two specific concerns remained unresolved: there was no verified evidence he had stopped using drugs, and his employment at the time was at risk if a drug supply conviction came to light.

The matter was adjourned under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender an opportunity to demonstrate rehabilitation before sentence was finalised. This second decision records the outcome of that remand period and the court's consequential sentencing approach.

  • Whether the offender's rehabilitation during the section 11 remand period was sufficient to justify a departure from the general principle that drug trafficking at a substantial level ordinarily attracts full-time custody.
  • Whether a suspended sentence, an Intensive Corrections Order (ICO), or full-time imprisonment was the appropriate sentencing disposition.
  • Whether the offender was suitable for assessment for an ICO, given the Court of Criminal Appeal's guidance on custodial sentences for substantial drug supply.

Decision

The court found that the offender had made genuine and measurable progress during the remand period. He had disclosed his conviction to his then employer, lost that job, obtained new employment with a positive reference, completed regular urine analysis confirming he had ceased drug use, and remained under Probation and Parole supervision while living at home and studying. The court accepted that he was a markedly different person from the one who had committed the offence.

Despite that progress, the court rejected a suspended sentence. The judge found that a suspended sentence would not adequately reflect the objective seriousness of the offending. Some element of punishment was required given the extent and enthusiasm of the supply conduct.

The court noted that the Court of Criminal Appeal's guidance, that substantial drug trafficking ordinarily requires full-time custody, was established before ICOs became available as a sentencing option. Berman SC DCJ held that the availability of an ICO, which combines punishment through curfews and community service with ongoing supervision and rehabilitation, represented a meaningful alternative capable of satisfying the sentencing objectives in this case.

The court determined that a sentence of two years imprisonment or less was appropriate and adjourned the matter for an ICO suitability assessment, to be reviewed at a further hearing listed for 3 March 2017.

Orders Made

• Matter adjourned for assessment of suitability to serve sentence by means of an Intensive Corrections Order
• Matter listed on 3 March for consideration of ICO assessment report
• Sentence of two years imprisonment or less to be imposed (to be served by ICO if assessed as suitable)

Key Takeaways

  • A section 11 remand under the Crimes (Sentencing Procedure) Act can serve as a meaningful mechanism for courts to assess genuine rehabilitation before fixing a final sentence, with outcomes that may influence the form of sentence ultimately imposed.
  • The Court of Criminal Appeal's principle that substantial drug trafficking ordinarily requires full-time custody was acknowledged by Berman SC DCJ as predating the introduction of Intensive Corrections Orders, leaving open the possibility that an ICO may satisfy sentencing requirements in appropriate cases.
  • A suspended sentence was found insufficient to reflect the objective gravity of enthusiastic, financially motivated drug supply, even where significant rehabilitation had been demonstrated.
  • Rehabilitation during a remand period, when verified by objective evidence such as supervised urine analysis, employment references, and Probation and Parole oversight, can weigh meaningfully in favour of a non-custodial or community-based sentencing form.
  • This was the offender's first criminal conviction, and his early guilty plea reduced the sentence by approximately 25 per cent, both factors contributing to the court's decision to pursue an ICO assessment rather than immediate full-time custody.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), section 11 (remand for rehabilitation assessment)

Cases:
- No specific cases were cited by name in the text of the judgment, though the court referred generally to Court of Criminal Appeal authority on sentencing for substantial drug supply.