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District Court 3 May 2019

R v Zreika

[2019] NSWDC 347

DrugsFraud & dishonestyTraffic & driving
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG NOT LESS THAT INDICTABLE QUANTITY FORM 1 S166 CERTIFICATE

Citation: R v Zreika [2019] NSWDC 347
Court: District Court of New South Wales
Date: 3 May 2019
Judge: Hunt DCJ

Background

The offender appeared for sentence on two principal charges of supplying a prohibited drug (cocaine) in a quantity not less than the indictable quantity, contrary to the Drug Misuse and Trafficking Act. The first charge arose from an incident on 6 September 2017, when police discovered 87.18 grams of cocaine on the offender after he veered across the centre lines, struck a parked vehicle, and required paramedic and police assistance. The second charge arose from a search of his residence on 21 September 2017, where a further 17.23 grams of cocaine was found in a blue biscuit tin.

Additional matters included a Form 1 offence of knowingly dealing with the proceeds of crime (relating to $3,895.25 found in the vehicle), driving while disqualified, and possession of 2.8 grams of cannabis. The offender pleaded guilty on the first day of a listed trial.

A forensic psychologist provided evidence about the offender's background. That background included exposure as a child to significant domestic violence perpetrated by his father. The offender's mother and younger siblings attended court in support.

  • What was the objective seriousness of each supply offence, having regard to weight, role, and circumstances?
  • How should the Form 1 offence (dealing with proceeds of crime) affect the sentence for count 1?
  • What weight should be given to the offender's guilty plea, entered on the first day of trial?
  • How should the offender's personal circumstances, including addiction, dysfunctional upbringing, and morbid obesity, affect the sentence?
  • Whether special circumstances existed justifying a variation from the standard ratio of non-parole period to head sentence?
  • What sentences were appropriate for the subsidiary matters (driving while disqualified and cannabis possession)?

Decision

Objective seriousness: Hunt DCJ assessed count 1 (87.18 grams) as below mid-range but not approaching the low range, noting that the weight represented roughly one-third of the distance between the indictable and commercial quantities. Count 2 (17.23 grams) was placed in the low range, just below the boundary of mid-range. His Honour accepted that some portion of the drugs on each occasion may have been for personal use, consistent with the offender's significant cocaine addiction, and that the offender was a street-level dealer supplying to fund that addiction.

Aggravating and mitigating factors: Both principal offences were committed while the offender was on a suspended sentence, a powerful form of conditional liberty, which his Honour treated as an aggravating circumstance. The offender's prior record, including multiple prior drug and driving offences, denied him leniency. On the other side, his Honour accepted the forensic psychologist's findings about a genuinely difficult upbringing, the offender's addiction, and his morbid obesity, which would make imprisonment harder for him than for a person in ordinary health.

Plea discount: The guilty plea was entered on the first day of a listed trial. His Honour applied a utilitarian discount of 15 per cent to count 1 and 10 per cent to count 2, reflecting the late stage at which the pleas were entered. His Honour also noted the offender's consent to a forfeiture order covering the cash and other items as a further indicator of remorse.

Subsidiary matters: The two possession of cocaine charges under the section 166 certificate were withdrawn and dismissed as backup charges. The drive while disqualified matter attracted a fixed term of nine months, declared wholly concurrent. The cannabis possession matter, involving only 2.8 grams, resulted in a conviction under section 10A with no further punishment.

Orders Made

  • Count 1 (supply cocaine, not less than indictable quantity, 87.18 grams): convicted; indicative sentence of 30 months and two weeks after a 15 per cent discount.
  • Count 2 (supply cocaine, not less than indictable quantity, 17.23 grams): convicted; indicative sentence of 21 months and two weeks after a 10 per cent discount.
  • Aggregate sentence imposed under section 53A of the Crimes (Sentencing Procedure) Act: head sentence of 36 months (three years) commencing 1 December 2017, expiring 30 November 2020; non-parole period of 18 months, with earliest release date of 31 May 2019. Special circumstances found.
  • Form 1 offence (dealing with proceeds of crime): taken into account in calculating the indicative sentence for count 1.
  • Consent confiscation forfeiture order made in respect of $3,895.25 and other items.
  • Two possession of cocaine charges (section 166 certificate): withdrawn and dismissed.
  • Drive while disqualified: fixed term of nine months from 1 December 2017, wholly concurrent; automatic disqualification of 12 months imposed (no reduction).
  • Possession of cannabis (2.8 grams): conviction recorded under section 10A, no further punishment.

Key Takeaways

  • A guilty plea entered on the first day of a listed trial attracted only modest utilitarian discounts of 15 per cent and 10 per cent respectively, reflecting the lateness of the pleas relative to available opportunities.
  • Where an offender is on a suspended sentence at the time of offending, the District Court treated that conditional liberty as a significant aggravating circumstance affecting both principal charges.
  • The court accepted that an offender engaged in street-level supply may nonetheless have a genuine personal use component within a deemed supply quantity, particularly where addiction is supported by medical and forensic psychological evidence.
  • Morbid obesity was recognised as a factor that makes imprisonment more onerous than it would be for a person in ordinary health, forming part of the subjective case in mitigation.
  • Consent to a forfeiture order covering proceeds and drug-supply indicia was treated as a tangible expression of remorse, capable of carrying some mitigating weight alongside other subjective factors.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 10(1), 25(1), 29
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases:
- R v Callaghan [2006] NSWCCA 58
- R v Pham [2001] NSWCCA 307