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District Court 26 April 2019

R v Safi; R v Aswad

[2019] NSWDC 231

Drugs
DRUG SUPPLY OFFENCES SIGNIFICANT REHABILITATION PLEAS OF GUILTY DELAY

Citation: R v Safi; R v Aswad [2019] NSWDC 231
Court: District Court of New South Wales
Date: 26 April 2019
Judge(s): Sweeney DCJ

Background

Two co-offenders pleaded guilty to supplying 15.82 grams of MDMA and a commercial quantity of cocaine (258.57 grams) on 23 December 2013 at Leichhardt. Police found the drugs concealed in safes and a humidifier inside a studio unit, together with extensive drug packaging equipment and a drug ledger. A third man, Adrian Lyneham, had previously been sentenced for his role as a driver and deliverer for the enterprise.

The offenders occupied different positions in the operation's hierarchy. The first offender, described here as the principal, sat at the top, with $52,230 in cash found at his home. The second offender, described as the subordinate, had leased the storage unit and his fingerprints were found on the humidifier. Both men had attended the unit on at least 32 occasions in the six weeks before police conducted the search.

Sentencing was significantly delayed from the December 2013 offences and February 2014 arrests, with the matter not reaching the District Court until April 2019. Both offenders had also sought, and then abandoned, applications to withdraw their guilty pleas, contributing to part of that delay.

Legal Issues

  • What was the appropriate objective seriousness of drug supply offences involving quantities just over the commercial threshold and of low purity?
  • To what extent did each offender's mental health conditions and traumatic background mitigate sentence?
  • What discount applied to late guilty pleas entered on the day of trial?
  • Whether special circumstances existed to reduce the non-parole period below the statutory ratio for either offender?
  • How should the sentences reflect the hierarchy between co-offenders, and what regard should be given to the sentences imposed on the third participant?
  • How should unexplained delay between the offences and sentencing be reflected in the sentences?

Decision

Objective seriousness: The court assessed both principal offences as below the mid-range of seriousness. The cocaine quantity of 258 grams was only marginally above the commercial quantity threshold of 250 grams, and the tested purity of 21 percent was low for that drug (at [10]). The MDMA quantity of 15.82 grams was moderate, also of low purity at approximately 10 percent (at [10]). While the organised nature of the operation and the existence of a hierarchy elevated seriousness, those factors did not push the offences into the mid-range (at [13]). The subordinate offender's role was treated as objectively less serious than the principal's (at [13]).

Mental health and rehabilitation: The court accepted expert evidence from psychologist Patrick McGee that the principal offender suffered from post-traumatic stress disorder and cocaine dependence, both of which significantly contributed to his offending (at [16]). His attendance at 81 psychological sessions since 2015 and demonstrated strategies for coping without drugs reflected marked commitment to rehabilitation (at [17]). For the subordinate offender, the court accepted that traumatic childhood experiences, including exposure to wartime conditions and undisclosed childhood sexual abuse, together with addiction to prescription painkillers and cocaine, compromised his mental health and contributed to his offending (at [23]-[24]). His 75 psychological sessions and attendance at a pain clinic demonstrated comparable commitment to rehabilitation (at [25]). In each case, the court treated the mental health background as distinguishing the offender from someone who commits similar offences without such a history (at [16], [24]).

Plea discount and delay: Both offenders entered their guilty pleas on the day of trial, having given the Crown a few days' notice. The parties agreed, and the court accepted, that a discount of 12.5 percent was appropriate in those circumstances (at [35]). The Crown conceded that approximately one-third of the total delay between arrest and sentence was not attributable to the offenders, and the court took that into account in fixing the sentences (at [34]).

Special circumstances and non-parole periods: The court found special circumstances justifying a reduction in both non-parole periods below the statutory ratio. For the principal offender, the special circumstances were the need for continued psychological treatment to maintain rehabilitation and a serious heart condition (constrictive pericarditis) that would make custody more onerous (at [19]). For the subordinate offender, special circumstances included this being his first custodial sentence, the need for ongoing therapy, his role as primary carer for two young daughters, and a spinal condition requiring treatment (at [33]).

Orders Made

  • The principal offender was sentenced to an aggregate term of 5 years 6 months imprisonment with a non-parole period of 3 years, commencing 20 April 2019, with the non-parole period expiring 19 April 2022.
  • $52,230 in cash was forfeited to the State with the principal offender's consent.
  • The subordinate offender was sentenced to an aggregate term of 4 years 6 months imprisonment with a non-parole period of 2 years 6 months, commencing 18 April 2019, with the non-parole period expiring 17 October 2021.
  • Convictions were recorded for the principal offender's 12 offences of possessing a prescribed restricted substance, with no further penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act.

Key Takeaways

  • Drug supply offences involving quantities only marginally above a commercial quantity threshold, combined with low drug purity, can properly be assessed as below the mid-range of objective seriousness, even where the operation is well organised and hierarchical (at [10], [13]).

  • Accepted psychiatric evidence of longstanding mental illness and addiction directly causally connected to offending distinguishes an offender from others who commit similar offences without that background, and can properly reduce the weight given to personal deterrence and increase the weight given to rehabilitation (at [16], [24]).

  • A guilty plea entered on the day of trial, with a few days' advance notice to the Crown, attracted a 12.5 percent sentencing discount in this case, reflecting the limited utilitarian value of a late plea (at [35]).

  • The District Court held that an ongoing therapeutic relationship needed to maintain recovery from addiction can constitute a special circumstance warranting a reduction in the non-parole period below the statutory ratio, particularly where expert opinion supports the necessity of that treatment continuing post-release (at [19], [33]).

  • Where unexplained delay between arrest and sentencing is partly attributable to factors outside the offenders' control, a sentencing court may take that into account in the offenders' favour, even where some delay is attributable to the offenders themselves seeking, then abandoning, plea withdrawal applications (at [34]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated