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District Court 16 November 2018

R v Hijazi

[2018] NSWDC 418

DrugsTraffic & driving
SENTENCING MULTIPLE OFFENCES SUPPLY DRUGS ON AN ONGOING BASIS S 166 OFFENCE DRIVING WHILST DISQUALIFIED

Citation: R v Hijazi [2018] NSWDC 418
Court: District Court of New South Wales
Date: 16 November 2018
Judge: M L Williams SC DCJ

Background

The offender, a man born in 1991, had previously been sentenced by the same judge in January 2018 to three years and nine months imprisonment (with a two-year non-parole period) for importing a marketable quantity of cocaine, a Commonwealth offence committed in 2011. He had returned to Australia in February 2016 and was granted bail on the importation charge. While on bail, he committed a further series of State drug and driving offences in early 2017.

The State drug offending involved the supply of methylamphetamine, GHB, and MDMA to a large customer base in south-west Sydney over approximately 20 days in March 2017. The offender directed his wife and a female associate to assist in making supplies. He received a total of around $22,650 across the three supply counts.

By the time of this sentencing, the offender had also already been dealt with by a magistrate for three driving-while-disqualified charges and one drug-driving charge, receiving a fixed 21-month aggregate sentence running wholly concurrently with the January 2018 sentence. One further driving-while-disqualified charge (arising at the time of his arrest for the drug offences) was before the District Court on this occasion.

  • What aggregate sentence was appropriate for three counts of drug supply, bearing in mind the principles of totality and accumulation, given the Commonwealth sentence already imposed?
  • How should the court approach the fact that the State offences were not sentenced at the same time as the Commonwealth offences?
  • What weight should be given to the aggravating factor of offending while on bail?
  • Whether special circumstances existed to justify a variation to the standard non-parole period ratio.
  • How to sentence the additional driving-while-disqualified offence.

Decision

The central sentencing task, as the court characterised it, was to determine what the effective aggregate sentence would have been had the Commonwealth and State offences been dealt with together in January 2018. Both the Crown and the defence accepted that this was the correct approach, applying the principles of totality and accumulation. The court could identify no reason why the matters had not been consolidated earlier, but proceeded on that basis regardless.

The court treated the fact that all State offending occurred while the offender was on bail for a Commonwealth offence as a significant aggravating factor, consistent with the relevant sentencing legislation. The court also noted the offender's prior criminal history, which included a juvenile term for a firearms offence and earlier drug supply control orders, and held that this record did not entitle him to leniency.

The offender's early guilty pleas attracted a 25% discount for their utilitarian value. The court accepted his expressions of remorse as genuine and noted reasonable prospects of rehabilitation, supported by positive custodial reports and the pre-sentence report's assessment that a supervised period on parole would be beneficial. The court rejected a submission that time already served would be a sufficient sentence, finding that the combined sentence across all matters necessarily had to exceed the Commonwealth head sentence alone.

A finding of special circumstances was made, given the offender's relative youth and the pre-sentence report's recommendation for a meaningful supervised parole period. For the driving-while-disqualified charge, the court convicted the offender but imposed no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999, given the sentence already being served.

Orders Made

  • Convicted of each offence.
  • Aggregate sentence of 3 years and 10 months imprisonment, commencing 9 April 2019 and expiring 8 February 2023.
  • Non-parole period of 1 year and 10 months, expiring 8 February 2021; eligible for parole from that date.
  • Indicative sentences: Count 1 (methamphetamine supply on an ongoing basis): 2 years 6 months; Count 2 (GHB supply on an ongoing basis): 2 years; Count 3 (MDMA supply, greater than commercial quantity): 2 years with a 1-year non-parole period.
  • Driving-while-disqualified offence: convicted; no further penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999.
  • Licence disqualified for 12 months, to be determined under s 206A of the Road Transport Act 2013.
  • Special circumstances found.
  • Drug destruction order made.
  • Transcript of sentencing remarks ordered.

Key Takeaways

  • Where Commonwealth and State offences are sentenced separately due to an unexplained procedural gap, the sentencing court will attempt to impose what would have been the appropriate aggregate sentence had all matters been dealt with together, applying the principles of totality and accumulation.
  • Committing offences while on bail is a statutory aggravating factor that courts will treat as a weighty consideration, reinforcing a strong denunciatory message to the community.
  • A 25% utilitarian discount applied to early guilty pleas across multiple counts, consistent with established New South Wales sentencing practice.
  • Special circumstances can be found where an offender's youth, drug dependency history, and the recommendations of a pre-sentence report indicate that a longer-than-standard parole period would serve rehabilitative objectives.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a driving offence without imposing any further penalty where a substantial custodial sentence is already being served and the additional charge warrants no separate punishment beyond the conviction itself.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A(1)
- Criminal Code (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 10A
- Road Transport Act 2013 (NSW), ss 166, 206A

Cases:
- R v Qutami (2001) 127 A Crim R 369 (on the limited weight to be given to untested letters from offenders and their families in sentencing proceedings)