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District Court 30 September 2019

R v Naji

[2019] NSWDC 847

Drugs

Citation: R v Naji [2019] NSWDC 847
Court: District Court of New South Wales
Date: 30 September 2019
Judge(s): ML Williams SC DCJ

Background

The offender, a 35-year-old man, appeared for sentencing after a jury found him guilty of supplying 17.43 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence occurred on 23 February 2018, when police executing a search warrant at a Kogarah apartment observed the offender drop a package from a sixth-floor window. That package was later recovered and found to contain five bags of cocaine.

At trial, the offender denied knowledge of the cocaine, claiming he had found the package while cleaning the apartment and did not know what it was. The jury rejected this defence and found that the offender had possessed the drugs solely, not jointly with anyone else present at the apartment.

Sentencing was complicated by the State Parole Authority's revocation of an intensive corrections order on 27 June 2019, which meant the offender was already serving a full-time custodial sentence. After some procedural back-and-forth between the court and the Parole Authority, both parties agreed the matter should be resolved at the September hearing rather than await further Parole Authority review.

  • Whether full-time imprisonment was the appropriate sentencing disposition
  • What weight should be given to general deterrence where the offending fell below the mid-range of objective seriousness
  • Whether the offender's criminal record, including a prior firearms sentence and an existing bond at the time of the offence, constituted an aggravating factor
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • How the totality principle applied given the offender's existing custodial sentence

Decision

The court determined that full-time custody was appropriate. Defence counsel ultimately conceded this, and the court found it unnecessary to consider the faintly advanced alternative of an Intensive Corrections Order. The offending was agreed to fall below the mid-range of objective seriousness, but the court noted that general deterrence must nonetheless figure significantly in the sentence, consistent with the principles in R v Parente [2017] NSWCCA 284.

The offender's criminal record was identified as an aggravating factor. His history included a prior sentence of three years and nine months (with a two-year non-parole period) for firearms offences, as well as previous drug possession and domestic violence matters. Relevantly, the current offence was committed while he was on a s 9 bond for possessing a prohibited drug, constituting a breach of conditional liberty.

On the subjective side, the court accepted that the offender had reasonable prospects of rehabilitation, based on his expressed desire to change direction. However, the court noted there were no other mitigating factors apparent or suggested by counsel. The court found no indicia of supply such as cash, text messages, or records, which was noted in the offender's favour in assessing objective seriousness.

Special circumstances were found, based on the risk of institutionalisation and the need for an extended period of supervision upon release, consistent with the principle articulated in R v Osenkowski (1982) 5 A Crim R 394. In applying the totality principle, the court exercised its discretion to backdate the commencement of the sentence to 12 April 2019, a date accepted by both parties as appropriate given the time already spent in custody across related matters.

Orders Made

  • Offence 001 (Supply prohibited drug): Convicted. Sentenced to 2 years' imprisonment, commencing 12 April 2019, with a non-parole period of 14 months expiring 11 June 2020.
  • Special circumstances found.
  • Offence 002 (Possess prohibited drug): Back-up charge withdrawn (s 166 certificate issued).
  • Bond call-up (Possess prohibited drug, H64280288): No further action taken.

Key Takeaways

  • The District Court confirmed that even where a drug supply offence falls below the mid-range of objective seriousness, general deterrence remains a significant sentencing consideration.
  • Committing an offence while subject to a conditional liberty order (here, a s 9 bond) is an aggravating factor that weighs against the offender at sentencing.
  • A prior significant custodial sentence, combined with further offending, can found a finding that criminal record is an aggravating factor even where the current offence is not at the high end of the scale.
  • Special circumstances may be found where there is a genuine risk of institutionalisation and a demonstrated need for extended post-release supervision, drawing on the Osenkowski principle.
  • The totality principle permitted the court to backdate the commencement of the new sentence, avoiding a disproportionate cumulative effect from the interaction of multiple concurrent custodial matters.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 9, s 166

Cases
- R v Osenkowski (1982) 5 A Crim R 394
- R v Parente [2017] NSWCCA 284