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District Court 31 March 2017

R v Nassim Eid

[2017] NSWDC 69

Drugs
CRIMINAL LAW DRUG OFFENCES HIGH PURITY SENTENCE JUST BELOW MID RANGE OF OBJECTIVE SERIOUSNESS AGGRAVATING FACTORS

Citation: R v Nassim Eid [2017] NSWDC 69
Court: District Court of New South Wales
Date: 31 March 2017
Judge: Hatzistergos DCJ

Background

In the early hours of 31 May 2015, police conducting an unrelated operation at Ermington observed the offender concealed in the rear foot well of a parked vehicle. A search of the vehicle uncovered two plastic bags containing 54.7 grams of cocaine at 89% purity, along with $1,880 in cash in mixed denominations and a mobile phone containing what appeared to be coded messages. The offender denied knowledge of the drugs at the scene and provided largely "no comment" answers during his recorded police interview.

The offender was charged with supply of a prohibited drug (less than a commercial quantity) under the Drug Misuse and Trafficking Act 1985 (NSW). A second matter, dealing with property suspected of being proceeds of crime under the Crimes Act 1900 (NSW), was taken into account on a Form 1. The offender had originally been listed for trial in November 2016 but entered a guilty plea on the second day of the trial listing.

At the time of the offence, the offender was on bail for other matters, including a separate supply offence. He had a history of using illicit substances and described himself as the "black sheep" of his family. He was employed at the time of sentencing and had demonstrated some steps toward rehabilitation.

  • What was the appropriate level of objective seriousness for the supply offence, given the quantity, purity, and circumstances of the drugs?
  • Whether the offender's drug use operated as a mitigating factor, or merely explained the offending at a lower level of culpability than purely profit-motivated supply
  • What discount applied to reflect the late guilty plea
  • How the aggravating factors (financial gain and commission of the offence while on conditional liberty) affected the sentence
  • Whether remorse had been genuinely demonstrated within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What the appropriate non-parole period and head sentence were, including the correct commencement date

Decision

Objective seriousness: Hatzistergos DCJ placed the offence just below the mid-range of objective seriousness. While the 54.7 grams sat towards the lower end of the indictable weight range (5 to 250 grams), it was still more than ten times the threshold indictable quantity. The 89% purity and the two-bag presentation satisfied the court that the offender's role was somewhat above that of a street dealer, though not at the higher end of the distribution chain.

Aggravating factors: Two statutory aggravating factors applied. The offence was committed for financial gain, which the offender himself acknowledged. It was also committed while the offender was on bail, including bail for another supply offence. The court noted that planned or organised criminal activity was not pressed as a separate aggravating factor, as it is generally regarded as inherent in drug supply offending.

Drug use as a mitigating consideration: The court declined to treat the offender's drug addiction as a mitigating factor in the traditional sense. The offending was not impulsive, nor did it occur in circumstances where the offender's capacity to exercise judgment was acutely impaired at the time. Even accepting some influence of drug use, any impairment was self-induced and provided little weight in mitigation. The court distinguished this from cases where addiction might explain offending at a lower level of culpability, noting the offender's own account that drug use made him feel "superior."

Plea, remorse, and rehabilitation: A 10% discount was applied for the guilty plea, consistent with the late timing. The court accepted that genuine remorse had been demonstrated, despite a qualification in the offender's evidence that the offending was "half my fault." The offender's background, family circumstances, employment, and the psychiatric report of Dr Olav Nielssen were considered in assessing prospects of rehabilitation as moderate.

Orders Made

  • Head sentence of 3 years and 4 months, commencing 24 November 2015 and expiring 23 March 2019
  • Non-parole period set to expire 24 February 2018 (the date from which the offender would be eligible for release to parole)

Key Takeaways

  • The District Court confirmed that high purity, even within the lower weight range of the indictable quantity band, is a significant indicator of objective seriousness in supply offences and can place an offender's role above that of a mere street dealer.
  • A guilty plea entered on the second day of a trial listing attracted only a 10% discount, consistent with the principle in R v Thomson; R v Houlton that the discount diminishes significantly the later the plea is entered.
  • Where an offender's drug use did not impair their judgment at the time of the offence and the use was self-induced, the court held it carries little mitigating weight, even if it provides some contextual explanation for the offending.
  • Commission of an offence while on bail, particularly for a similar offence, remained a clearly established statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A qualified acceptance of responsibility ("half my fault") did not, on balance, undermine a finding of genuine remorse under s 21A(3)(i), provided the offender had otherwise demonstrated acceptance of responsibility for their conduct.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29(a), 32(1), 43
- Drug Misuse and Trafficking Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2), 21A(3), 32(1)
- Crimes Act 1900 (NSW), s 193C(1)

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Henry (1999) 46 NSWLR 346
- Vu v R [2006] NSWCCA 188
- R v Selim (Unreported, NSW Court of Criminal Appeal, 19 May 1998)
- R v Dang [2005] NSWCCA 430
- R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97
- Hutton v R [2008] NSWCCA 99
- Frigiani v R [2007] NSWCCA 81
- R v Clark (Unreported, NSW Court of Criminal Appeal, 15 March 1990)
- R v Shi [2004] NSWCCA 135
- Wat v R [2017] NSWCCA 62
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146