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District Court 30 November 2018

R v Achmar

[2018] NSWDC 461

DrugsFirearms & weaponsPublic order & justice offences
SENTENCING MULTIPLE OFFENCES POSSESS UNREGISTERED FIREARM FORM 1 MATTER PARTICIPATE IN CRIMINAL GROUP GUILTY PLEA

Citation: R v Achmar [2018] NSWDC 461
Court: District Court of New South Wales
Date: 30 November 2018
Judge: M L Williams SC DCJ

Background

A strike force established in 2017 investigated cocaine supply across south-west Sydney. Police identified an organised drug syndicate led by two brothers, with the offender operating as a runner who physically delivered cocaine to an undercover police officer on five occasions between November 2017 and January 2018. The total quantity supplied was 355 grams of cocaine, with a combined value of approximately $91,000. The offender's personal reward was minimal: he retained approximately one gram of cocaine per supply transaction, with a total value of around $1,319.

When police executed a search warrant at the offender's home following his arrest in March 2018, they located an unregistered air pistol stored in a garage office drawer. The offender stated the pistol had been given to him approximately three years earlier, that he had never purchased the propellant required to fire it, and that he had never used it.

The offender pleaded guilty to supply a commercial quantity of cocaine under the Drug Misuse and Trafficking Act 1985 (NSW), and to possessing an unregistered firearm under the Firearms Act 1996 (NSW). He also asked the court to take into account, on a Form 1, a charge of participating in a criminal group under the Crimes Act 1900 (NSW).

  • What was the appropriate aggregate sentence for multiple serious offences, including commercial drug supply, possession of an unregistered firearm, and a Form 1 participation in a criminal group charge?
  • What weight should be given to the offender's guilty plea, expressions of remorse, minimal personal gain, and positive subjective circumstances, against the objective seriousness of the offending?
  • Was the offending properly characterised as falling at the lower end of the objective seriousness scale?
  • Did special circumstances exist warranting a departure from the standard ratio between head sentence and non-parole period?

Decision

Williams SC DCJ identified the maximum penalties as important yardsticks: 20 years imprisonment and a standard non-parole period of 10 years for commercial cocaine supply, and 14 years for possession of an unregistered firearm. The court reviewed a range of comparable sentencing decisions involving similar quantities and roles and declined to accept the submission that the offending sat at the very bottom of the objective seriousness scale, describing that characterisation as "over-optimistic."

The court accepted significant mitigating factors. The offender's participation was characterised as out of character, motivated by misplaced loyalty to a long-time friend rather than financial gain, and the recorded conversations during the offending period were consistent with reluctance and fear. The offender had strong employment history, genuine community support, and credible prospects of rehabilitation. The court accepted that his expressions of remorse were genuine.

Applying the relevant sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court noted that general deterrence carried particular weight for offences of this kind. However, the early guilty plea, the offender's limited role in the hierarchy, his minimal financial benefit, and his low likelihood of reoffending all reduced the sentence below what a more culpable participant would have received. The court found special circumstances, warranting a reduction in the non-parole period relative to the head sentence, on the basis that a longer period of supervised parole was appropriate given the offender's rehabilitation prospects.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of imprisonment of 3 years and 8 months was imposed, commencing 7 March 2018 and expiring 6 November 2021.
  • A non-parole period of 2 years was set, expiring 6 March 2020, with the offender eligible for release to parole on that date.
  • Indicative sentences: Sequence 001 (drug supply, taking into account the Form 1 offence) — 3 years 6 months, with a non-parole period of 1 year and 11 months; Sequence 005 (firearm possession) — 6 months.
  • Special circumstances were found.

Key Takeaways

  • The District Court confirmed that the maximum penalty and standard non-parole period for commercial drug supply under the Drug Misuse and Trafficking Act 1985 (NSW) serve as important guideposts in the sentencing process, even where significant mitigating factors are present.
  • Where an offender's participation in a drug supply operation was motivated by misplaced loyalty rather than financial gain, and the personal reward was negligible, those circumstances can reduce moral culpability without displacing the primacy of general deterrence.
  • A guilty plea, genuine remorse, a minor role within a supply hierarchy, and strong prospects of rehabilitation each operated to reduce the sentence, but the court rejected the proposition that they collectively placed the offending at the lowest end of the objective seriousness scale.
  • Special circumstances were established where a longer period of parole supervision was considered necessary to support the offender's rehabilitation, permitting a non-parole period that was proportionally lower than the standard ratio.
  • Form 1 matters were addressed by the court consistently with the guideline approach, with the participate-in-criminal-group charge taken into account as an aggravating feature of the principal offence rather than attracting a separate cumulative sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 36
- Crimes Act 1900 (NSW), s 93T
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- AB v R [2013] NSWCCA 273
- B v R [2015] NSWCCA 314
- Blair v R [2005] NSWCCA 78
- Do v R [2008] NSWCCA 34
- Elhassan v R [2018] NSWCCA 118
- Giang v R [2017] NSWCCA 25
- Greentree v R [2018] NSWCCA 277
- Mulato v R [2006] NSWCCA 282
- Parente v R [2017] NSWCCA 284
- Parris v The Queen [2013] NSWCCA 5
- R v Chan [1999] NSWCCA 103
- R v Dang [2005] NSWCCA 430
- R v DW (2012) 221 A Crim R 63
- R v Krstic [2005] NSWCCA 391
- R v Mendez [2005] NSWCCA 246
- R v Petrovski; R v Abdallah; R v Atanovski [2012] NSWDC 168
- R v Pucariello [2012] NSWDC 70
- R v Rustom; R v Vernon [2017] NSWDC 245
- R v Shi [2004] NSWCCA 135
- R v Taouk (1992) 65 A Crim R 387