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District Court 19 January 2019

R v Ajaj

[2019] NSWDC 475

Drugs

Citation: R v Ajaj [2019] NSWDC 475
Court: District Court of New South Wales
Date: 19 January 2019
Judge: M L Williams SC DCJ

Background

The offender, a 26-year-old man, appeared for sentencing after pleading guilty to two principal charges: supplying 81.78 grams of methylamphetamine across 22 transactions between March and April 2015, and dealing with proceeds of crime totalling $690. A further charge of goods in custody (relating to a laptop computer) was also before the court.

The offending arose from a police strike force investigation into methylamphetamine supply in the Liverpool area. The offender operated as an upline supplier to a co-offender, Frances Loy, delivering quantities known as "8-balls" (approximately 3.54 grams) for $800 each. Loy, who was on home detention at the time, used runners and lookouts to distribute the drugs to end customers.

Several co-offenders had already been sentenced, including Loy, who received four years and one month with a non-parole period of two years and ten months. The offender's sentence required consideration of parity with those co-offender outcomes, as well as the offender's own subjective circumstances and criminal history.

  • What was the appropriate sentence for the supply and proceeds of crime offences, having regard to the offender's role in the drug trafficking operation?
  • How should the sentence be calibrated against those imposed on co-offenders, particularly Frances Loy, to achieve parity?
  • What weight should be given to aggravating factors, including offending while on conditional liberty and participation in planned criminal activity?
  • What mitigating weight should be afforded to the guilty plea, evidence of rehabilitation, demonstrated remorse, and other subjective factors?
  • How should earlier periods of pre-sentence custody (including time spent bail-refused on a separate matter that ultimately attracted only a fine) be credited against any term imposed?

Decision

The court identified two significant aggravating factors: the offending occurred while the offender was on conditional liberty (an 18-month section 9 bond and bail for a separate drug offence), and the supply was part of planned or organised criminal activity undertaken for financial gain. The court found no evidence of supply to feed a personal addiction.

The offender's criminal history, which included prior drug, assault, goods in custody, and weapon offences, did not attract any leniency. The court accepted, however, that his subjective circumstances carried some mitigating weight. These included evidence of rehabilitation, stable employment as a crane operator with a job remaining available upon release, successful completion of a more recent Intensive Correction Order, a diagnosis of depression, and family support. A 10% discount was applied for the utilitarian value of the guilty plea.

On parity, the court accepted several factors that differentiated the offender's position from that of Loy. Loy had dealt in a significantly greater quantity (187 grams over 72 transactions), carried a far more extensive criminal record spanning decades, had been on home detention during the offending, and played a significant role in the operation's structure. These factors justified a somewhat lesser sentence for the offender, though the court noted the offender himself had a significant role as an upline supplier.

The court declined to treat the proceeds of crime count as wholly concurrent with the drug supply count, departing from the approach taken for Loy. The court held that some separate recognition of the criminality involved in that offence was appropriate. Special circumstances were also found, justifying a non-parole period that represents a larger than usual proportion of the head sentence. The total pre-sentence custody across three periods (including time bail-refused for a separate matter that attracted only a fine) was credited, backdating the sentence by nine months.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of imprisonment of 4 years and 3 months was imposed, commencing 18 April 2018 and expiring 17 July 2022.
  • A non-parole period of 2 years and 9 months was set, expiring 17 January 2021, with the offender eligible for release to parole on that date.
  • Indicative sentences: Count 1 (proceeds of crime) -- 6 months; Count 2 (drug supply) -- 4 years.
  • Special circumstances were found.
  • A drug destruction order was made.
  • The goods in custody offence was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999: conviction recorded, no further penalty.
  • A drug proceeds order was made under the Confiscation of Proceeds of Crime Act 1989 for $17,600.
  • A forfeiture order was made for $690 and ten mobile phones.

Key Takeaways

  • The District Court confirmed that time spent bail-refused on a separate charge, even one that ultimately attracted only a fine, is properly taken into account when backdating a custodial sentence.
  • Parity with co-offenders does not produce identical sentences. Where co-offenders differ in the quantity of drug supplied, the length and seriousness of their criminal histories, and the conditions under which they offended, a sentencing court may lawfully impose a different sentence while remaining consistent with parity principles.
  • Offending while on conditional liberty and participation in organised drug supply are distinct aggravating factors under the Crimes (Sentencing Procedure) Act 1999, and the court treated each as such.
  • A proceeds of crime count need not be sentenced on a wholly concurrent basis merely because a co-offender's sentence was structured that way. The court held that separate criminality in such a charge can warrant some accumulation.
  • Evidence of rehabilitation, including successful completion of an ICO, stable employment, and reduced risk of reoffending, can carry mitigating weight even where a criminal record precludes any general claim to leniency.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193B (deal with proceeds of crime)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply prohibited drug)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 12
- Confiscation of Proceeds of Crime Act 1989 (NSW)

Cases
- Parente v R [2017] NSWCCA 284
- Veen v The Queen (No 2) (1988) 164 CLR 465