Citation: R v Elchami [2019] NSWDC 571
Court: District Court of New South Wales
Date: 18 March 2019
Judge(s): Bennett SC DCJ
Background
The offender, a 31-year-old man, pleaded guilty in the Local Court to a series of offences arising from a large-scale cannabis supply operation across several south-western Sydney suburbs. Police commenced their investigation in November 2017, with the relevant period of offending accepted by the court running from February 2018. The operation involved approximately 300 individual customers, hire cars used by runners to deliver cannabis, and a falsely registered mobile phone used as the primary contact number.
The offences included supplying a prohibited drug, participating in a criminal group, possessing prohibited drugs, possessing a prohibited weapon (a baton), possessing ammunition, and dealing with the suspected proceeds of crime. Two co-offenders were also before the courts, though at lower levels of involvement. The offender was identified as the most culpable of the three.
The offender had spent approximately six months and 27 days in custody before being released on stringent bail conditions, including daily reporting to police, a nightly curfew, geographic restrictions, and substantial monetary sureties totalling $90,000.
Legal Issues
- What aggregate sentence was appropriate across multiple offences of varying objective seriousness?
- Where did each individual offence sit within the range of objective seriousness, including by reference to applicable standard non-parole periods?
- Whether an intensive corrections order (ICO) was appropriate in lieu of full-time custody.
- How to account for the offender's pre-sentence custody and stringent bail conditions in fixing the sentence.
- Whether parity considerations required a sentence comparable to that imposed on a co-offender who received a 12-month ICO.
Decision
Bennett SC DCJ applied the sentencing principles from Markarian v R and Muldrock v The Queen, emphasising that sentencing is not a staged arithmetical process but one of instinctive synthesis, taking into account all relevant matters together. The standard non-parole period for the weapons offence (five years) was treated as a legislative guidepost applicable to a mid-range offence, with the court finding the baton possession fell below mid-range given the absence of detail about the weapon or its intended use.
For each individual offence, the court assigned indicative sentences before applying a 25 per cent discount for the utilitarian value of the guilty pleas. Sentences were rounded down to whole years and months, which the court noted operated slightly in the offender's favour. The most significant individual indicative sentences included 18 months for supply of a prohibited drug (not less than a commercial quantity) and 12 months each for participation in a criminal group and a further supply offence.
The court accepted the Crown's submission that parity with the co-offender who received a 12-month ICO did not apply, given that offender's lesser culpability and distinguishable circumstances. The court also gave meaningful weight to the offender's pre-sentence custody and the unusually onerous bail conditions, including the requirement for three sureties and geographic and curfew restrictions, in arriving at the final sentence.
Satisfied that an ICO was appropriate under section 17B of the Crimes (Sentencing Procedure) Act 1999, and having regard to community safety under section 66, the court imposed an aggregate sentence of 2 years and 8 months to be served in the community.
Orders Made
- Aggregate sentence of imprisonment of 2 years and 8 months, to be served by way of an intensive corrections order, commencing 18 March 2019.
- Standard ICO conditions imposed, including supervision by a Community Corrections officer and no further offending.
- 200 hours of community service to be performed.
- Continuation of the offender's rehabilitation program with Giving Back Australia, supervised by Community Corrections.
- The offender required to report to Community Corrections at Blacktown by 20 March 2019.
- Cash of $26,320 found at Chester Hill on 1 March 2018 forfeited to the State under section 18(1) of the Confiscation of Proceeds of Crime Act 1989, with immediate disposal authorised under section 19(3)(a).
Key Takeaways
- The District Court confirmed that standard non-parole periods function as legislative guideposts rather than fixed benchmarks, and courts must record reasons when departing from them, assessed by reference to objective seriousness only.
- Instinctive synthesis, not staged arithmetic, governs the sentencing process: courts are required to weigh all relevant factors together and arrive at an overall sentence that reflects the totality of the offending.
- Stringent bail conditions, including daily reporting, curfews, geographic restrictions, and substantial monetary sureties, are capable of being treated as a mitigating factor in the final sentence alongside time already spent in pre-sentence custody.
- Parity with a co-offender's sentence does not arise automatically; the District Court here found the difference in culpability and circumstances between the offender and a co-offender who received a 12-month ICO was sufficient to justify a markedly different outcome.
- Under section 17B of the Crimes (Sentencing Procedure) Act 1999, a court may impose an ICO without a further pre-sentence report where it is satisfied adequate material is already before it, provided community safety considerations under section 66 have been addressed.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 17B, 21A, 22, 66, 73A(2)(e) and Pt 4 Div 1A (standard non-parole periods)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 93T(1)
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19(3)(a)
Cases
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39