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District Court 5 September 2019

R v Khaddam

[2019] NSWDC 732

Drugs

Citation: R v Khaddam [2019] NSWDC 732
Court: District Court of New South Wales
Date: 5 September 2019
Judge: M L Williams SC DCJ

Background

The offender was a 24-year-old man with no prior criminal history who appeared for sentence having pleaded guilty to supplying a large commercial quantity of cocaine under s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The charge arose from a controlled police operation in June and July 2018. Undercover operatives coordinated a transaction in which the offender attended an Ikea store at Tempe carrying approximately $195,000 in cash and exchanged it for a suitcase containing ten kilogram-sized blocks of an inert substance that resembled cocaine. No real drugs entered the community. The offender was directed and monitored throughout by others who remained at a distance, and he stated on multiple recorded occasions that he did not know what he was collecting.

The offender was arrested on 3 July 2018 and had remained in custody since that date. It was common ground that a term of imprisonment was mandatory and that the sentence should backdate to the date of arrest.

  • What was the appropriate total sentence and non-parole period for the offence, given the mandatory minimum framework and the standard non-parole period?
  • What weight should be given to the offender's role as a directed, lower-level participant compared to the organisers of the transaction?
  • What mitigating factors applied, including the early guilty plea, good character, remorse, and prospects of rehabilitation?
  • Did the fact that the drugs were inert reduce the objective seriousness of the offence?
  • Were special circumstances established, justifying a departure from the statutory ratio between the non-parole period and the total sentence?

Decision

The court accepted that a 25% discount applied to the sentence in recognition of the utilitarian value of the early guilty plea. The offender's role was characterised as that of a directed courier who attended the transaction under close supervision by others, but the court rejected any simplistic minimisation of his involvement. Carrying $195,000 in cash to exchange for what he understood to be a large quantity of cocaine represented serious criminality regardless of his position in the hierarchy.

On the question of the inert substance, the court applied the authority in R v Achurch (2011) 216 A Crim R 152, finding that the absence of real drugs entering the community was not a matter to be given significant weight. The offender's culpability rested on his intention and attempt to supply cocaine, as captured by the extended definition of supply under the legislation.

The court acknowledged several mitigating factors: no prior convictions, demonstrated remorse, an early guilty plea, good prospects of rehabilitation, and a low likelihood of reoffending. However, it noted that good character does not displace the need for a significant element of general deterrence in sentencing for offences of this kind.

Special circumstances were found to exist, based on the offender's young age, his first time in custody, his need for long-term supervision, counselling, and treatment for drug addiction. This finding justified a non-parole period that represented a greater proportion of parole supervision than the statutory default.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of imprisonment of 4 years and 2 months was imposed, commencing 3 July 2018.
  • A non-parole period of 2 years and 1 month was imposed, expiring 2 August 2020, with the offender eligible for release to parole on that date.
  • Special circumstances were found.

Key Takeaways

  • A conviction for supplying a large commercial quantity of cocaine can be sustained even where the substance exchanged was inert, because the offence is founded on the offender's intention and attempt to supply a prohibited drug.
  • Under the authority of R v Achurch, the absence of real drugs reaching the community carries little mitigating weight when assessing the objective seriousness of a supply offence.
  • Good character and strong prospects of rehabilitation are recognised mitigating factors in sentencing, but the District Court confirmed they do not override the requirement for substantial general deterrence in serious drug supply cases.
  • Special circumstances justifying an extended parole period can be established by a combination of youth, first-time custody, drug addiction, and the need for long-term supervised treatment and support.
  • A 25% sentence discount for an early guilty plea to a charge carrying a standard non-parole period of 15 years resulted in a total sentence of 4 years and 2 months, reflecting both the offender's subordinate role and his significant mitigating circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- R v Achurch (2011) 216 A Crim R 152
- Lopatinsky v The Queen [2017] NSWCCA 227
- Imbornone v R [2017] NSWCCA 144
- Refaieh v R [2018] NSWCCA 27
- R v Qi [2019] NSWCCA 73
- R v Qutami (2001) 127 A Crim R 369
- R v Taouk (1992) 65 A Crim R 387
- R v Thompson [2000] NSWCCA 294