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District Court 20 September 2019

R v El Sage; R v Khoury

[2019] NSWDC 826

DrugsPublic order & justice offences
CRIME SENTENCE SUPPLY PROHIBITED DRUG COCAINE BREACHES OF CONDITIONAL LIBERTY UNDERCOVER POLICE OPERATION

Citation: R v El Sage; R v Khoury [2019] NSWDC 826
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): Norrish QC DCJ

Background

Two offenders appeared for sentencing arising from an undercover police operation conducted in July 2018. An undercover operative ("Tom") made contact with the first offender and, over several days, arranged two meetings at a car park near Leichhardt Oval in Lilyfield. At the first meeting on 9 July 2018, the first offender supplied Tom with 27.9 grams of cocaine at 79.5% purity in exchange for $6,500.

At the second meeting on 11 July 2018, both offenders delivered what was presented as 2 kilograms of cocaine, agreed at a price of $200,000 per kilogram. Police arrested all parties immediately after delivery. Analysis of the delivered substance later revealed it weighed 2.376 kilograms but contained no prohibited drugs whatsoever.

Both offenders had extensive criminal histories and were in breach of conditional liberty at the time of the offending. The first offender was subject to section 9 bonds from Parramatta Local Court; the second offender was on parole, which was subsequently revoked.

  • What sentences were appropriate for the completed supply of 27.9 grams of cocaine on 9 July 2018?
  • What sentences were appropriate for the agreement to supply a large commercial quantity of cocaine, notwithstanding that the substance ultimately delivered contained no prohibited drugs?
  • How should breaches of conditional liberty (bonds and parole) be reflected in the sentencing exercise without double-counting?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio for the principal offences.
  • What ancillary orders (drug proceeds, licence disqualification) were required?

Decision

His Honour sentenced both offenders on two principal charges: supply of a prohibited drug (cocaine, 27.9 grams) under section 25(1) of the Drug Misuse and Trafficking Act 1985, and agreeing to supply not less than a large commercial quantity of a prohibited drug under section 25(2) of the same Act. The section 25(2) offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The fact that the substance ultimately delivered turned out not to contain any prohibited drug did not prevent conviction or sentencing on the agreement charge.

Both offenders were found to have offended for financial gain as part of a joint criminal enterprise, though the court did not characterise them as part of an organised network. Their extensive criminal histories and the breach of conditional liberty were treated as aggravating factors. The court applied the totality principle to ensure the overall sentence reflected the full criminality of both offenders without being disproportionate.

Special circumstances were found to exist for both offenders, given their need for professional rehabilitation assistance. This justified a departure from the standard non-parole period ratio, resulting in extended parole periods relative to the non-parole periods imposed. The court declined to take further action on the conditional liberty breaches as separate penalties, having already factored the breach into the head sentences.

For the second offender, the commencement date of the effective sentence was set after the expiry of the balance of parole he was required to serve following revocation, consistent with the principle against double-counting that period. A minor driving whilst suspended offence was dealt with by a short concurrent term and a six-month licence disqualification.

Orders Made

El Sage:
- Count 1 (supply prohibited drug, 27.9g cocaine): convicted and sentenced to 1 year 6 months imprisonment, commencing 11 July 2018, expiring 10 January 2020
- Count 2 (agree to supply large commercial quantity): convicted and sentenced to a non-parole period of 2 years commencing 11 April 2019 and expiring 10 April 2021, with a balance of sentence of 2 years expiring 10 April 2023
- Drug proceeds order: $3,250 under section 29(1) of the Confiscation of Proceeds of Crime Act 1989
- Section 9 bond breaches established; no further action directed

Khoury:
- Count 1 (supply prohibited drug, 27.9g cocaine): convicted and sentenced to 1 year 6 months imprisonment, commencing 8 August 2018, expiring 7 February 2020
- Count 2 (agree to supply large commercial quantity): convicted and sentenced to a non-parole period of 2 years commencing 8 May 2019 and expiring 7 May 2021, with a balance of sentence of 1 year 6 months expiring 7 November 2022
- Drive whilst licence suspended: convicted and sentenced to 3 months imprisonment commencing 13 September 2019, expiring 12 December 2019; 6-month licence disqualification
- Drug proceeds order: $3,250 under section 29(1) of the Confiscation of Proceeds of Crime Act 1989

Key Takeaways

  • An agreement to supply a large commercial quantity of cocaine under section 25(2) of the Drug Misuse and Trafficking Act 1985 can be established and sentenced even where subsequent analysis reveals the delivered substance contained no prohibited drugs.
  • Breaches of conditional liberty, including parole and section 9 bonds, are properly treated as aggravating factors in fixing the head sentence rather than as the subject of separate additional penalties, thereby avoiding double-counting.
  • Where parole has been revoked and a balance of parole served following arrest, the District Court applied the established principle that the effective sentence should not simply be dated from the end of that balance of parole period, to avoid penalising the offender twice for the same breach.
  • Special circumstances, grounded in a demonstrated need for rehabilitation, can justify extending the parole period beyond the standard ratio even in serious drug supply matters.
  • Financial gain from drug supply of this scale supports a drug proceeds order under the Confiscation of Proceeds of Crime Act 1989, here set at $3,250 per offender, reflecting proceeds from the 9 July supply transaction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases:
- Casella v R [2019] NSWCCA 201
- De La Rosa v R [2010] NSWCCA 194
- Inbornone v R [2017] NSWCCA 114
- Kearsley v R [2017] NSWCCA 28
- Kijurina v R [2017] NSWCCA 117
- Markarian v R [2005] HCA 25; 228 CLR 357
- Mill v R (1988) 166 CLR 59
- Muldrock v R [2011] 244 CLR 120
- Parente v R [2017] NSWCCA 284
- Postiglione v R (1997) 189 CLR 295
- Qutami v R [2001] NSWCCA 353
- R v Bugmy [2013] HCA 37
- R v Engert (1995) 84 ACrimR 67
- R v Israil [2002] NSWCCA 255
- R v Jimmy (2010) 77 NSWLR 540
- R v Kalpaxis [2001] 122 ACrimR 320
- Vu v R [2006] NSWCCA 188