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District Court 1 June 2018

R v Jomaa

[2018] NSWDC 511

Drugs

Citation: R v Jomaa [2018] NSWDC 511
Court: District Court of New South Wales
Date: 1 June 2018
Judge: Buscombe DCJ

Background

The offender pleaded guilty to one count of supplying a prohibited drug (cocaine) under s 25(1) of the Drug Misuse and Trafficking Act, arising from events on 3 October 2014. A second supply offence was taken into account on a Form 1 (a procedural mechanism by which related offences are noted and taken into account at sentencing without forming part of the formal conviction).

The facts were agreed. Police had established a controlled operation targeting the offender and his associate, Hussein Kadouh. On two occasions, the offender supplied Kadouh with an ounce of cocaine, which Kadouh then onsold to an undercover police operative. For the principal count, the cocaine weighed 27.4 grams at a purity of 49.5%, and Kadouh received $8,500 in pre-recorded currency from the operative in exchange.

The sentencing was complicated by two additional circumstances: the offender had committed the drug offence while subject to a suspended sentence for a driving offence, and he had a documented intellectual impairment that bore on several aspects of the sentencing exercise.

  • How objectively serious was the supply offending, having regard to the quantity, purity, and the offender's role in the supply chain?
  • What weight should the offender's intellectual impairment carry in mitigation, and how did it affect the purposes of sentencing, particularly general and specific deterrence?
  • Did the commission of the offence while on a suspended sentence warrant revocation of that sentence?
  • What was the appropriate head sentence and structure, including the question of accumulation?

Decision

Objective seriousness: Buscombe DCJ assessed the offending as toward the lower end of the range, though not at the very bottom. The 27.4 grams represented slightly over five times the indictable quantity of 5 grams but only one-tenth of the commercial quantity of 250 grams. The supply was ultimately made to an undercover officer, meaning the drug did not reach the user market, though the offender could not have known that at the time.

Role in the supply chain: The judge found the offender's role was above that of a street dealer, as he could access and deliver ounce quantities of cocaine. However, on balance, the court considered it more probable that Kadouh organised the transactions and used the offender as a delivery person, rather than the offender being higher in the hierarchy. The offender's intellectual impairment informed this assessment: the court accepted that impairment affected his judgment in a way that a person without it would not have experienced.

Intellectual impairment and purposes of sentencing: The offender's intellectual impairment was a significant mitigating factor. The court found it reduced his moral culpability and rendered him a less appropriate vehicle for general deterrence. There remained, however, some need for specific deterrence given the offending occurred while he was on a suspended sentence. The court noted the principles in Parente v R [2017] NSWCCA 284 regarding sentencing for this type of offence.

Suspended sentence and final orders: Because the offending occurred while the offender was subject to a suspended sentence for driving whilst disqualified, revocation of that suspended sentence was required. The court imposed a 12-month sentence for the driving offence and an 18-month sentence for the drug supply offence, with limited accumulation of three months, producing a total sentence of 21 months. Given the sentence fell below two years and the offender had an intellectual impairment, the court directed that he be assessed for an Intensive Correction Order (a form of sentence served in the community under strict supervision).

Orders Made

  • Suspended sentence revoked.
  • Offender sentenced to 21 months imprisonment.
  • Offender to be assessed for suitability of an Intensive Correction Order.
  • Drugs to be destroyed.

Key Takeaways

  • The District Court confirmed that quantity and purity of a prohibited drug are relevant but not determinative factors when assessing objective seriousness in supply offences.
  • A finding of intellectual impairment can reduce both the offender's moral culpability and the weight given to general deterrence, though specific deterrence may still be a relevant consideration where the offending occurred during an existing bond or suspended sentence.
  • Where an offence is committed while a suspended sentence is on foot, revocation of that sentence is required, and the court must structure any accumulation of the resulting sentences carefully.
  • Limited accumulation was applied here to reflect the distinct nature of the driving offence and the drug supply offence, while the overall sentence remained proportionate to the offender's circumstances.
  • Under s 5 of the relevant sentencing legislation, imprisonment must be considered the only appropriate sentence before it is imposed; the court satisfied itself of this before proceeding, and then directed an Intensive Correction Order assessment given the sentence length and the offender's impairment.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25(1)
- Confiscation of Proceeds of Crime Act (NSW)
- Mental Health (Forensic Provisions) Act (NSW)

Cases:
- Hampton v R [2014] NSWCCA 131
- Muldrock v The Queen (2011) 244 CLR 120
- Parente v R [2017] NSWCCA 284
- Stanley v R [2018] NSWCCA 93
- Yun v R [2017] NSWCCA 317