AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 March 2016

R v Akkouche

[2016] NSWDC 434

Drugs
CRIMINAL LAW SENTENCE S 166 CERTIFICATE SENTENCE AFTER TRIAL DRUG POSSESSION

Citation: R v Akkouche [2016] NSWDC 434
Court: District Court of New South Wales
Date: 11 March 2016
Judge: Berman SC DCJ

Background

The accused stood trial on a charge of supplying MDMA (ecstasy), based on his possession of 31 capsules found at a Sydney bar on New Year's Day 2015. From the moment of his arrest, he cooperated with police and maintained that the drugs were for his personal use. The supply charge had been upgraded from a possession charge after his initial arrest.

At trial, the accused gave evidence consistent with his original statement to police, explaining that he regularly consumed ecstasy over entire weekends and that the 31 capsules had been given to him as a birthday gift. The jury acquitted him of supply, accepting on the balance of probabilities that he intended personal use.

Following the acquittal, the Crown sought to have the backup possession charge dealt with under a section 166 certificate, a procedure that allows a judge who has presided over a trial to sentence an accused on a related charge without a separate proceeding. The accused pleaded guilty to possession, consistent with an offer he had made at the Local Court stage.

  • What sentence was appropriate for the possession charge, given the circumstances of the acquittal and the accused's personal history?
  • Whether a section 10 order (dismissal without conviction) under the Crimes (Sentencing Procedure) Act was appropriate, or whether a conviction was required.
  • What weight should be given to general deterrence, rehabilitation, and the utilitarian value of the guilty plea?

Decision

Berman SC DCJ allowed the accused the maximum 25% discount for his guilty plea, noting it was consistent with his conduct from the outset and with an earlier offer to plead guilty to possession in the Local Court. The judge also acknowledged that facing a serious supply trial, with the attendant risk of imprisonment, constituted a form of punishment in itself.

The accused presented strong mitigating circumstances. Since his arrest, he had ceased all drug use, severed his prior associations, continued work as a carpenter form worker, and became involved in a charity assisting homeless people. The judge noted these changes with approval, describing them as reflecting genuine strength of character.

Defence counsel submitted that a section 10 order (no conviction recorded) was appropriate, relying on a single comparable case. The judge rejected this approach, noting that reliance on a single case to establish sentencing range had been criticised as deeply flawed by the Court of Criminal Appeal, and pointedly observed that he had personal experience of that criticism.

On the question of whether to record a conviction, the judge found that general deterrence required it. Although the accused had rehabilitated himself and personal deterrence was no longer a significant factor, the court held that possession of a substantial quantity of ecstasy called for a response that would deter others. A section 10 bond was therefore insufficient, and a section 9 good behaviour bond with a conviction recorded was imposed.

Orders Made

  • The accused was convicted of possession of a prohibited drug.
  • He was ordered to enter into a good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act for a period of 18 months.
  • Conditions of the bond: no criminal offences to be committed; the Registrar of the Court to be notified of any change of residential address; and the accused to appear before the Court if called upon to do so.

Key Takeaways

  • A guilty plea made consistently from the point of arrest, including an early offer to plead at the Local Court stage, can attract the maximum utilitarian discount of 25% even where the plea is formally entered after an acquittal on a related charge.
  • General deterrence retained significant weight even where rehabilitation was well established and personal deterrence had little remaining role, particularly for possession of a substantial quantity of MDMA.
  • The District Court declined to make a section 10 order (no conviction) in circumstances where the quantity of drugs and the public interest in deterring ecstasy possession outweighed the personal hardship a conviction might cause.
  • Reliance on a single comparable case to establish an appropriate sentencing range has been criticised by the Court of Criminal Appeal as a "deeply flawed" submission.
  • Under section 166 of the Crimes (Sentencing Procedure) Act, a judge presiding over a trial may sentence an accused on a backup charge following acquittal on the primary charge, but remains bound by the jurisdictional limits that would apply in the originating court.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), sections 9, 10, and 166

Cases:
- No specific cases were cited by name in the judgment text. The judge referred generally to an unnamed Court of Criminal Appeal decision concerning the inadequacy of relying on a single case to establish sentencing range.