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District Court 8 January 2019

R v Fadel

[2019] NSWDC 26

Drugs
SENTENCING MULTIPLE OFFENCES SUPPLY OF PROHIBITED DRUGS ONGOING SUPPLY FORM 1 OFFENCES GUILTY PLEA

Citation: R v Fadel [2019] NSWDC 26
Court: District Court of New South Wales
Date: 8 January 2019
Judge(s): M L Williams SC DCJ

Background

The offender, a young man born in 1995, appeared for sentencing on three principal counts of drug supply and two driving-while-disqualified offences, with additional matters dealt with on a Form 1 and a section 166 certificate. The offending arose from a Strike Force investigation into cocaine supply in the Surry Hills area, which identified the offender as operating a "run phone" used to distribute the drug.

The offender was described by his own counsel as a low-level street vendor. His principal offending involved supplying cocaine to undercover officers on multiple occasions between March and May 2017, possessing cocaine for supply, and a money laundering count involving $3,054 in cash. The supply quantities ranged from under one gram to around 22 grams per transaction, placing the offending towards the lower end of the relevant scale but still attracting serious maximum penalties.

At the time of sentencing, the offender was already serving a 12-month sentence with a nine-month non-parole period imposed by the Central Local Court, expiring in July 2019. His personal background included a difficult upbringing, early school leaving, significant drug and gambling dependencies, and a motor vehicle accident in 2015 that caused ongoing physical and psychological difficulties.

  • What aggregate sentence was appropriate across three principal drug supply counts, with Form 1 offences taken into account?
  • How should the principles of totality and accumulation apply given the offender was already serving a sentence?
  • Whether special circumstances existed to justify a departure from the standard two-thirds ratio of non-parole period to head sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What weight should be given to the offender's subjective circumstances, including addiction, mental health diagnosis, remorse, and guilty plea, where the background history had not been formally tested?
  • Whether the habitual offender declaration relating to the driving offences should be quashed?

Decision

The court accepted that a custodial sentence was unavoidable. Applying the totality principle, the judge set the aggregate sentence to commence on 24 November 2018, a date falling within the agreed discretionary range, so as to achieve an appropriate degree of accumulation with the sentence already being served without an unjust overall result.

On objective seriousness, the court accepted that the amounts involved were towards the lower end for offences of this type, but emphasised that the offending was still serious given the maximum penalties and the clear indicia of an organised drug distribution operation, in which the offender played a supply role. The Form 1 matters were taken into account in the indicative sentence for the principal ongoing supply count, consistent with the approach endorsed in the guideline judgment on that procedure.

Special circumstances were found to exist. The court identified two bases: the accumulation of sentences meant the overall non-parole period warranted adjustment, and the offender would require an extended period of supervised parole to address his drug and alcohol issues, gambling, and other rehabilitation needs on release. Diagnostic findings of substance use disorder and adjustment disorder were taken into account to a limited degree, though the court noted they did not causally explain the offending.

The court approached the psychological report and subjective history with caution, consistent with the principles in R v Qutami and Lam v R, because the history had not been formally tested. However, corroborating material from family members and medical records provided a sufficient basis to proceed. The court accepted the offender's expressions of remorse and his guilty plea as genuine mitigating factors. The habitual offender declaration in relation to the driving offences was quashed, given the offender's disqualification already extends to 2027.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of 4 years' imprisonment imposed, commencing 24 November 2018 and expiring 23 November 2022.
  • Non-parole period of 2 years and 3 months, expiring 23 February 2021; eligible for parole on that date.
  • Indicative sentences: sequence 4 (ongoing supply, including Form 1 matters) 3 years 6 months; sequence 5 (supply 13.8g cocaine) 2 years; sequence 19 (possess 20g cocaine for supply) 2 years.
  • Form 1 offences (sequences 9, 12, 13, 16 and 20) taken into account.
  • Sequences 1, 2, 3, 8, 10, 11, 15, 17 and 18 withdrawn and dismissed.
  • Two driving-while-disqualified offences: fixed terms of 3 months each, commencing 24 November 2018 and expiring 23 February 2019, served concurrently.
  • Habitual offender declaration in relation to the driving offences quashed.
  • Confiscation order for $3,054.50 made by consent.
  • Drug destruction order made.

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) was justified where accumulation of sentences and the offender's rehabilitation needs on release both pointed to a longer parole period being appropriate.

  • Where an offender is already serving a sentence imposed by another court, the sentencing court retains a discretion as to the commencement date of a new term, and the totality principle requires that the combined effect of all sentences not be disproportionate to the overall criminality.

  • Subjective background material in a psychological report that has not been formally tested is not automatically disregarded; corroboration from independent sources such as family affidavits and medical records can provide a sufficient basis for the court to act on that material, with appropriate caution.

  • Under the Form 1 procedure, additional offences are taken into account in fixing the indicative sentence for the principal count to which they are attached, rather than attracting separate sentences, consistent with the approach confirmed in the guideline judgment and cases including R v Chan and R v MMK.

  • JIRS sentencing statistics and similar comparative resources are a useful general guide but courts have consistently cautioned that they must be treated carefully and are not determinative, as confirmed in Hili v The Queen; Jones v The Queen [2010] HCA 45.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Lam v R [2015] NSWCCA 143
- Parente v R [2017] NSWCCA 284
- R v Chan [2000] NSWCCA 345
- R v Girard [2014] NSWCCA 170
- R v MMK (2006) 164 A Crim R 481
- R v Nguyen (2006) A Crim R 124
- R v Qutami (2001) 127 A Crim R 369
- Stratford v R [2007] NSWCCA 279