Citation: R v AFSARI, Abbas AKA Shayan [2016] NSWDC 419
Court: District Court of New South Wales
Date: 25 November 2016
Judge(s): King SC DCJ
Background
The offender, a drug supplier operating in the Punchbowl area of Sydney, was the subject of a police strike force investigation commencing in February 2015. Police obtained a telecommunications intercept warrant and monitored over 200 phone calls and SMS messages in which the offender arranged the supply of methylamphetamine using coded language, taking orders by phone and delivering drugs by vehicle.
On 22 May 2015, police executed a search warrant at the offender's premises and located substantial quantities of methylamphetamine, amphetamine, MDMA, cannabis, cocaine, Stanzolol, Alprazolam, electronic scales, resealable bags, cash, multiple mobile phones, and a USB drive containing instructions for manufacturing prohibited drugs. The offender's DNA and fingerprints were identified on a number of the seized items.
The offender pleaded guilty to a principal offence of ongoing supply of a prohibited drug (methylamphetamine), with three further matters on a Form 1 (to be taken into account at sentencing) and five additional offences on a section 166 certificate, making a total of nine matters before the court.
Legal Issues
- What was the appropriate head sentence and non-parole period for the principal offence of ongoing supply of a prohibited drug under section 25(1A) of the Drug Misuse and Trafficking Act 1985?
- What weight should be given to the Form 1 offences (supply of MDMA, supply of amphetamine, and dealing with proceeds of crime) in setting the sentence for the principal offence?
- How should the objective seriousness of the ongoing supply offence be assessed, given that the initial agreed facts provided only a bare outline of the offending?
- What discount applied for the guilty plea and what subjective factors were relevant, including the offender's criminal history, prior Intensive Correction Orders, and prospects of rehabilitation?
- Whether a special circumstances finding (justifying a shorter non-parole period relative to the head sentence) was warranted.
Decision
King SC DCJ noted that the initial agreed facts were insufficient to assess the objective seriousness of the principal offence, and directed the parties to provide additional facts. The supplementary material clarified the coded language used, the method of delivery, and the number of transactions, enabling the court to properly evaluate the organised and systematic nature of the supply operation.
The court assessed the principal offence as involving a degree of repetition, organisation, and financial motivation that placed it at a meaningful level of objective seriousness. The offender had used coded language, employed a designated driver on occasions, and maintained stock at his premises for future supply. The quantity of methylamphetamine located, including material of high purity (81.5%), was a significant aggravating feature.
On subjective matters, the court acknowledged the guilty plea and afforded a discount, though the extent was tempered by the strength of the prosecution case. The offender's prior criminal history, including previous Intensive Correction Orders that had not produced behavioural change, weighed against him. The court found that the offender had not rehabilitated himself during the earlier orders, but considered there remained some prospect of rehabilitation with appropriate support in custody.
The court found special circumstances existed, given the offender's need for structured supervision on release, and departed from the standard statutory ratio between the non-parole period and the balance of term. The non-parole period was set at two years and six months, with a balance of term of eighteen months, producing a total sentence of four years.
Orders Made
- Head sentence of four years' imprisonment for the principal offence of ongoing drug supply.
- Non-parole period of two years and six months, commencing 23 May 2016; first eligible for parole on 22 November 2018.
- Balance of term of one year and six months; sentence to expire 22 May 2020.
- Cash of $4,390 forfeited to the State pursuant to section 18(1).
- Multiple mobile phones (Nokia, Apple iPhone, Blackberry, and a further Nokia) forfeited to the State.
- Forfeited property ordered to be disposed of forthwith.
- Drugs ordered to be destroyed; drug utensils and indicia of supply ordered disposed of.
Key Takeaways
- The District Court declined to sentence on the principal ongoing supply offence until the agreed facts were supplemented, emphasising that the objective seriousness of a section 25(1A) offence must be assessed by reference to the number of supply instances, the quantities involved, and the repetition, system, and organisation of the conduct.
- A bare outline of facts is insufficient for the court to discharge its sentencing function for this type of offence; prosecutors bear a practical responsibility to provide material that enables a proper assessment of criminality.
- Prior failure to comply with, or benefit from, Intensive Correction Orders is a relevant consideration weighing against an offender at sentence, even where some rehabilitation prospects remain.
- Special circumstances can justify a reduced non-parole period relative to the statutory ratio where the offender's need for structured supervision on release is demonstrated, but the court is not obliged to find special circumstances merely because several offences are sentenced together.
- Under section 32 of the Crimes (Sentencing Procedure) Act 1999, Form 1 matters are taken into account in setting the sentence for the principal offence rather than attracting separate penalties, but they still bear on the overall assessment of the offender's criminality.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 11C(1), 25(1), 25(1A)
- Crimes Act 1900 (NSW), s 193B(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 18(1), 19(3)(a), 32, 37, 166
Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Clark (unreported, 15 March 1990, NSWCCA)
- R v Blanco (unreported, 22 October 1987, NSWCCA)
- R v Thompson (unreported, 4 April 1994, NSWCCA)
- R v Gu [2006] NSWCCA 104
- R v Cacciola (1998) 104 A Crim R 178
- R v Richards (1981) 2 NSWLR 464
- R v McVeety [2002] NSWCCA 344
- R v Fernando [2002] NSWCCA 28
- R v Huynh [2003] NSWCCA 239
- R v Moffatt (1990) 20 NSWLR 114
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Qutami (2001) NSWCCA 353
- R v Smiroldo (2000) 112 A Crim R 47
- Callahan v R [2006] NSWCCA 58