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3
District Court 2 August 2017

R v Rustom; R v Vernon

[2017] NSWDC 245

Drugs
CRIME SENTENCE OFFENDERS COMMERCIAL QUANTITY

Citation: R v Rustom; R v Vernon [2017] NSWDC 245
Court: District Court of New South Wales
Date: 2 August 2017
Judge(s): Neilson DCJ

Background

Two co-offenders, the organiser of a drug supply syndicate and one of his street-level distributors, appeared before the District Court for sentencing after each pleaded guilty to supplying a commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge related to 355 grams of cocaine supplied across a period between June and September 2015 in the Sydney metropolitan area. Four other members of the same syndicate had appeared before the court earlier in the week, with their sentencing adjourned to September.

The organiser directed the syndicate's operations: he supplied cocaine to the distributor, provided him with vehicles and a dedicated mobile phone, set pricing and customer approval, and received all proceeds and unsold stock. The distributor worked defined hours, typically from 3pm to midnight, and needed the organiser's approval before supplying cocaine to any particular customer. The syndicate sold cocaine in bags at $300 each or in "balls" of approximately 3.6 grams for $1,000, operating across the Sydney metropolitan area with the occasional assistance of four other participants who acted as drivers and couriers.

Police uncovered the syndicate through telephone intercepts, surveillance devices, controlled drug purchases, and physical surveillance, conducted jointly by the Middle Eastern Organised Crime Squad and the NSW Crime Commission from March 2015. Undercover officers participated in purchases, and recorded conversations established the hierarchical structure of the operation and the extent of each offender's involvement.

  • What sentences were appropriate for each offender for supply of a commercial quantity of cocaine, given their differing roles within the syndicate?
  • How should the court treat the Form 1 matters (additional offences asked to be taken into account at sentencing), including cannabis supply, dealing with suspected proceeds of crime, and possession of heroin?
  • Whether special circumstances existed justifying a variation from the standard ratio of non-parole period to total sentence.

Decision

Neilson DCJ identified the organiser as the more culpable of the two, describing him as the directing mind of the syndicate who controlled supply, set prices, managed proceeds, and made decisions about which customers would be served. The distributor, while playing a significant operational role, acted under the organiser's direction and needed approval before each supply. The court treated the 355 grams of cocaine as the subject of a joint criminal enterprise to which both offenders were party, but weighted the organiser's role more heavily in fixing the appropriate sentence.

The court took into account the Form 1 matters for each offender. For the organiser, these included arranging cannabis supply for a companion, dealing with $10,205 in cash as suspected drug proceeds, and involvement with 54.4 grams of heroin found at his premises. For the distributor, the Form 1 matters included supplying approximately seven grams of cannabis, dealing with $400 in cash as suspected drug proceeds, and the same 54.4 grams of heroin, with DNA from both offenders detected on the packaging.

The court found special circumstances in each case, justifying a longer than standard balance of sentence (the period after the non-parole period) relative to the total term. For the distributor, the court noted factors including his prospects of rehabilitation and personal circumstances. The organiser received a heavier sentence, reflecting his directing role and greater culpability within the syndicate.

Regarding the distributor's sentence, the court imposed a total term of three years and nine months, with a non-parole period of two years commencing from the date of his arrest on 18 September 2015. The organiser's sentence details appear in full in the judgment, with a non-parole period of two years also imposed. The court also dismissed a back-up charge of possessing a prohibited drug against the distributor.

Orders Made

  • The distributor convicted of supplying 355 grams of cocaine (a commercial quantity) between 16 June 2015 and 18 September 2015, sentenced to a total term of three years and nine months imprisonment, comprising a non-parole period of two years (18 September 2015 to 17 September 2017) and a balance of one year and nine months (expiring 17 June 2019); special circumstances found.
  • A back-up charge of possessing a prohibited drug (5.4 grams of heroin, 18 December 2015) against the distributor withdrawn and dismissed.
  • The following items forfeited to the Crown pursuant to s 35 of the Drug Misuse and Trafficking Act 1985, with the consent of all six offenders' solicitors:
  • One white/silver iPhone seized at 69 Maiden Street, Greenacre on 18 September 2015 (exhibit X0002142713)
  • One Samsung mobile phone seized at 69 Maiden Street, Greenacre on 18 September 2015 (exhibit X0002142714)
  • One Medion E4002 mobile phone seized from a syndicate member on 15 October 2015 (exhibit X000890999)

Key Takeaways

  • The District Court treated the hierarchical structure of the drug syndicate as a significant sentencing factor, imposing a heavier sentence on the organiser who directed operations, controlled proceeds, and made supply decisions, compared to the distributor who operated under instruction.
  • A total of 355 grams of cocaine, supplied over approximately three months across the Sydney metropolitan area through a coordinated syndicate, was treated as a commercial quantity for the purposes of s 25(2) of the Drug Misuse and Trafficking Act 1985, carrying a maximum of 20 years imprisonment and a standard non-parole period of 10 years.
  • Special circumstances were found for each offender, permitting the balance of sentence (the supervised period after parole eligibility) to exceed the standard proportion relative to the total term.
  • Form 1 matters, including cannabis supply, dealings with suspected drug proceeds, and involvement with heroin, were taken into account in setting the overall sentence for each offender without resulting in separate convictions for those additional offences.
  • Under s 35 of the Drug Misuse and Trafficking Act 1985, mobile phones used in connection with the syndicate's operations were forfeited to the Crown, a step taken with the consent of all six offenders' legal representatives.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 35
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited: None stated in the decision metadata or judgment text.