Citation: R v Elali [2019] NSWDC 187
Court: District Court of New South Wales
Date: 17 May 2019
Judge: Weinstein SC DCJ
Background
The offender, a 23-year-old man with no prior criminal record, appeared before the District Court for sentencing on a charge of supplying a prohibited drug (cocaine) in a quantity greater than an indictable quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The principal offence related to 14 resealable bags of cocaine weighing 9.22 grams, found in a yellow envelope in his vehicle following police surveillance in Double Bay in May 2018. The maximum penalty for the offence was 15 years imprisonment.
Police observed the offender conduct what appeared to be a street deal, arrested him, and located the cocaine after he voluntarily disclosed its location. During a recorded interview, he admitted to two earlier cocaine sales that evening totalling $1,100, which was also seized. Additional charges arose from possession of cannabis and dealing with the proceeds of crime.
The court sentenced the offender on the principal supply charge, with a range of related offences taken into account either as Form 1 matters or under a s 166 certificate. Evidence before the court included a Sentencing Assessment Report, a clinical psychotherapist's letter, character references, drug analysis reports, and a medical report.
Legal Issues
- What was the appropriate sentence for a first-time offender convicted of supplying cocaine in a quantity greater than an indictable amount?
- Whether a sentence of full-time custody was required, or whether an Intensive Correction Order (ICO) was available and appropriate under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- How to weigh the objective seriousness of the offending against significant subjective mitigating factors, including youth, rehabilitation, remorse, and the absence of prior convictions?
Decision
Weinstein SC DCJ characterised the offending as falling in the low to mid range of objective seriousness. The cocaine quantity of 9.22 grams exceeded the indictable threshold but was well below the commercial quantity. The offender's role appeared to be street-level dealing, motivated by the need to fund his own cocaine habit rather than by commercial profit.
The court placed considerable weight on the offender's subjective circumstances. He had no prior criminal record, entered a guilty plea, demonstrated genuine remorse, and had taken meaningful rehabilitative steps since his arrest, including counselling, ceasing drug use, and changing employment. Medical evidence showed he had also been managing a diagnosed sleep disorder. His arrest appeared to have been a significant turning point, and family and employer support were strong.
The court found that full-time custody was not warranted given the combination of the offender's youth, first-offender status, demonstrated rehabilitation, and strong prospects for reintegration. An Intensive Correction Order was imposed as the appropriate sentence, carrying conditions designed to address both punishment and rehabilitation. The court referred to relevant sentencing principles from Muldrock v The Queen, Markarian v The Queen, and Veen v The Queen (No 2) in calibrating the sentence against the statutory purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- The offender was convicted of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (Form 1 matters taken into account).
- Sentenced to 18 months imprisonment, to be served by way of an Intensive Correction Order commencing 17 May 2019 and expiring 16 November 2020.
- Standard ICO conditions applied: no further offences; supervision by a Community Corrections Officer.
- Additional conditions included: participation in a rehabilitation or treatment program for 12 months; abstention from drugs (other than prescribed medications).
- 75 hours of community service work ordered.
- Charges on the s 166 certificate dismissed.
- Forfeiture order made in respect of the $1,100 seized on arrest.
- All drugs seized on 25 May 2018 ordered to be destroyed.
Key Takeaways
- The District Court confirmed that a first-time offender convicted of supplying cocaine above the indictable quantity is not automatically required to serve full-time custody, where significant mitigating factors support an Intensive Correction Order under s 7 of the Crimes (Sentencing Procedure) Act 1999.
- Genuine and evidenced rehabilitation, including counselling, cessation of drug use, and stable employment, carried substantial mitigating weight in the court's assessment of both the appropriate head sentence and the mode of serving it.
- Where supply arises from a personal drug habit rather than a commercial enterprise, this can bear on the objective seriousness of the offending, though the court did not treat addiction as a complete excuse.
- A guilty plea, combined with co-operation with police at the time of arrest (including voluntarily disclosing where the drugs were located), formed part of the favourable subjective case.
- Under s 167 of the Criminal Procedure Act 1986, related offences dealt with by way of a s 166 certificate were dismissed following sentencing on the principal charge, illustrating the procedural interaction between Form 1 matters and certificate offences in multi-charge proceedings.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 33, 66
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Crimes (Administration of Sentences) Regulation 2014, cl 189I
Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25
- Veen v The Queen (No 2)
- Parente v R [2017] NSWCCA 284
- R v Huynh [2005] NSWCCA 220
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002
- R v Peter Michael Clark (Court of Criminal Appeal (NSW), 7 July 1983, unreported)