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District Court 11 May 2018

R v Mezher

[2018] NSWDC 212

DrugsPublic order & justice offences
CRIME SENTENCE DRUG SUPPLY ATTEMPT TO PERVERT COURSE OF JUSTICE

Citation: R v Mezher [2018] NSWDC 212
Court: District Court of New South Wales
Date: 11 May 2018
Judge: Neilson DCJ

Background

The offender pleaded guilty to four charges arising from drug supply operations conducted in Sydney between 2012 and 2014, and from conduct at a bail hearing in January 2014. The offender had been involved in a sustained arrangement to supply prohibited drugs, principally to an associate referred to throughout the proceedings as "Alpha," with transactions occurring regularly over a period of years.

The drug supply counts covered three prohibited substances: MDA (supplied in a large commercial quantity), bromo or 4-bromo-2,5-dimethoxyphenethylamine (also a large commercial quantity), and cocaine (a commercial quantity). Both the offender and his associate believed the MDA and bromo to be MDMA (ecstasy). Two additional matters were placed before the court on a Form 1 to be taken into account on sentencing, comprising an earlier supply of a commercial quantity of ecstasy and participation in a criminal group.

The fourth charge arose from events on 9 January 2014, the day after the offender's initial arrest. At a bail hearing that day, the offender produced a fabricated document to the court in support of his bail application, an act constituting an attempt to pervert the course of justice.

  • What sentences were appropriate for three serious drug supply offences, taking into account the nature and quantities of the drugs, the offender's role, and relevant mitigating and aggravating factors?
  • What weight should be given to the offender's guilty pleas, cooperation, and subjective circumstances when determining the sentences?
  • What sentence was appropriate for the offence of attempting to pervert the course of justice by producing a fabricated document to a court at a bail hearing?
  • Whether special circumstances existed justifying a variation to the standard ratio between non-parole period and balance of sentence?

Decision

Neilson DCJ sentenced the offender on the three drug supply counts together, imposing a single aggregate sentence reflecting their connected nature and the overall criminality involved. The drug offences involved large quantities of prohibited substances, sustained commercial dealing over an extended period, and participation in an organised criminal network. The court took into account the Form 1 matters, which added further weight to the overall picture of serious drug criminality.

The court found that the offender's guilty pleas, entered after some plea negotiations, warranted a discount on sentence. His subjective circumstances, including the period already spent in custody and other personal factors, were also considered. The prior criminal history, which included offences of obtaining money by deception and a drug-related matter, was not treated as weighing heavily against him, given the comparatively minor nature of those earlier matters relative to the current offending.

On the perverting the course of justice charge, the court treated the fabrication of a document for use in a bail application as a discrete and serious matter warranting a separate fixed-term sentence. That sentence was structured to run before the principal sentence for the drug offences.

The court found special circumstances, justifying a departure from the standard ratio between the non-parole period and the balance of the sentence, resulting in a longer than usual balance of sentence to allow for a meaningful period of supervised parole.

Orders Made

  • Conviction entered on all four counts in the indictment.
  • For the perverting the course of justice offence: fixed term of imprisonment of one year, commencing 27 January 2016 and expiring 26 January 2017.
  • For the three drug supply offences: non-parole period of eight years commencing 26 January 2017 and expiring 26 January 2025, with a balance of sentence of four years expiring 26 January 2029 (total sentence of 12 years).
  • Special circumstances found.
  • Form 1 matters taken into account.
  • Forfeiture orders and drug destruction orders made by consent.

Key Takeaways

  • The District Court treated the three drug supply charges as a connected course of conduct and imposed a single aggregate sentence, reflecting the totality principle in sentencing for multiple related offences.
  • A fabricated document produced to a court in support of a bail application constituted a sufficiently serious instance of perverting the course of justice to warrant a separate custodial term, structured to precede the principal sentence.
  • Where a defendant's prior criminal history is comparatively minor relative to the current offending, a sentencing court may decline to treat that history as a significant aggravating factor.
  • Special circumstances were established on the facts, resulting in an extended balance of sentence beyond the standard ratio, to allow adequate supervision on parole following a lengthy period of incarceration.
  • Under the Drug Misuse and Trafficking Act 1985, supply of a large commercial quantity of a prohibited drug carries a maximum of life imprisonment and a standard non-parole period of 15 years, even where the offender mistakenly believed the drug to be a different prohibited substance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of large commercial and commercial quantities of prohibited drugs)

Cases:
- R v Romano [2004] NSWCCA 380