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District Court 8 March 2018

R v Khazma

[2018] NSWDC 58

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUGS METHYLAMPHETMINE NOT A USER DEALER BAIL CONDITIONS

Citation: R v Khazma [2018] NSWDC 58
Court: District Court of New South Wales
Date: 8 March 2018
Judge: Berman SC DCJ

Background

The offender, a young man aged approximately 18 and a half at the time of the offending, was before the District Court for sentence on two drug supply charges and a related proceeds of crime matter. Unlike the majority of drug supply offenders, he was not a user dealer. His motivation was purely financial, having fallen in with antisocial peers involved in drug distribution after losing his job and experiencing depression.

On 9 March 2016, police stopped a vehicle driven by an associate of the offender. The offender was the passenger and registered owner of the car. A search revealed a secret compartment in the centre console containing 23 bags of methylamphetamine, a further quantity of the drug, and $1,850 in cash. The offender admitted knowing the bags contained methylamphetamine and that he intended to supply them. Further evidence from mobile phones showed he had facilitated drug supply on four separate occasions in January 2016.

The offender pleaded guilty at the earliest opportunity and had spent only one day in custody before being granted bail. Over the following two years on bail, he complied with strict reporting and curfew conditions (subject to one initial breach), maintained employment, and engaged beneficially with psychological treatment.

  • What sentence was appropriate for a non-user drug dealer who offended for financial gain, given the maximum penalty of 15 years imprisonment for each supply offence?
  • What weight should be given to the offender's youth (aged 18 and a half at the time of offending) in the sentencing exercise?
  • To what extent did the offender's diagnosed adjustment disorder reduce his moral culpability?
  • Were the bail conditions and restrictions on liberty over approximately two years a factor in the sentence to be imposed?
  • Was the offender a suitable candidate to serve any term of imprisonment by way of an Intensive Corrections Order (ICO)?

Decision

His Honour identified the offending as serious. The offender was not addicted to drugs, his motivation was financial gain, and the conduct extended over approximately two months. The installation of a secret compartment in his car demonstrated a deliberate and organised approach to drug dealing, not an isolated or impulsive act.

Nonetheless, the court accepted several mitigating factors. The offender's youth carried significant weight: His Honour noted that the law requires great weight to be given to relative youth at sentence, and that full maturity is not reached on the day a person turns 18. A 25 per cent discount applied for the early guilty plea. The adjustment disorder diagnosis, while not substantially reducing moral culpability, was accepted as having some relevance to the circumstances in which the offender first associated with criminal peers.

His Honour also took the bail conditions into account as a restriction on liberty. The combination of a strict curfew and twice-weekly police reporting over two years left the offender with very limited personal time. That burden, together with the distress caused by the court proceeding being stood over from a prior listing date through no fault of the offender, was acknowledged as a genuine imposition.

The court concluded that a term of imprisonment of two years or less was likely, and that an Intensive Corrections Order was at least a possibility. Rather than proceed to final sentence, His Honour adjourned the matter for an ICO suitability assessment. His Honour explicitly made no promises about the ultimate outcome and continued the offender's bail unconditionally pending that report, noting it was important to assess the offender free from the constraints of curfew and police reporting.

Orders Made

  • Matter adjourned to 27 April 2018 for ICO suitability assessment
  • Bail continued unconditionally pending assessment
  • Drugs ordered to be destroyed
  • Mobile phones and cash ($1,850) ordered to be forfeited

Key Takeaways

  • The District Court affirmed that supplying drugs for financial gain, without any personal drug use, is treated as a more serious category of offending than supply motivated by addiction, because the usual rehabilitative pathway of addressing drug use is unavailable.
  • A sentencing court must give great weight to an offender's relative youth even where the offender has turned 18, recognising that legal adulthood does not equate to full maturity.
  • Psychological evidence of a diagnosed adjustment disorder at the time an offender first engaged with criminal peers can reduce moral culpability, though the court here found the reduction was not substantial given the deliberate choice to become a drug dealer.
  • Strict and prolonged bail conditions, including curfews and regular police reporting, may be taken into account as restrictions on liberty when determining the appropriate sentence.
  • Where an offender is young, has no prior convictions, has demonstrated genuine rehabilitation, and maintains lawful employment, the court may consider an Intensive Corrections Order rather than full-time custody, subject to a formal suitability assessment.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text. The offences referred to are drug supply offences carrying a maximum penalty of 15 years imprisonment under New South Wales prohibited drug legislation, and an offence of dealing with property suspected to be proceeds of crime.