Citation: R v Kamara; R v Kassem [2019] NSWDC 947
Court: District Court of New South Wales
Date: 19 July 2019
Judge: M L Williams SC DCJ
Background
A police strike force investigated street-level drug supply operating out of licensed premises in the Kings Cross area of Sydney. Using authorised purchases, covert surveillance, and lawful telephone intercepts, investigators established that two men, aged 30 and 31, ran a drug supply operation from various CBD hotels. They received orders by telephone from customers at clubs and supplied cocaine and MDMA across multiple transactions.
Both offenders pleaded guilty at an early opportunity and appeared for sentence on a range of charges under the Drug Misuse and Trafficking Act 1985. Each faced three principal charges, with a number of additional offences taken into account on a Form 1 (a procedural mechanism allowing a court to take additional offences into account when imposing sentence, without recording separate convictions for them).
The first offender had a limited prior criminal history, including minor driving and drug possession matters. The second offender's background also featured relevant subjective matters considered at sentence. Both had been assessed as relatively young first-time custodial offenders with histories of drug dependence.
Legal Issues
- Whether full-time imprisonment was the appropriate sentencing disposition, or whether an Intensive Corrections Order could be imposed for one of the offenders
- How to assess the objective seriousness of the offending across multiple charges involving different quantities and types of drugs
- How Form 1 matters should be dealt with at sentencing
- What weight to give mitigating factors, including early guilty pleas, remorse, drug addiction, youth, and prospects of rehabilitation
- Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence
Decision
The court found that the objective seriousness of the offending warranted full-time imprisonment in both cases. The operation was planned and organised, involving multiple transactions, telephone coordination, and supply from hotel premises over an extended period. The court rejected the submission that one offender could be sentenced by way of an Intensive Corrections Order, finding the level of criminality too serious for that disposition.
Both offenders received a 25% discount on their sentences, reflecting the utilitarian value of their early guilty pleas. The court accepted remorse as genuine, particularly noting written and oral expressions of regret, and acknowledged a psychological nexus between one offender's anxiety and depression and his offending following personal setbacks, including his removal from a nationally recognised dance group. The court treated these subjective matters as justifying some moderate reduction in moral culpability, though not as excusing the conduct.
Form 1 matters were dealt with in accordance with the guideline judgment in Attorney General's Application No 1 of 2002, by giving greater weight to personal deterrence and the community's entitlement to retribution for serious offending. The court emphasised that both specific and general deterrence required consistent messaging to those who might consider engaging in drug supply.
The court found special circumstances in both cases, warranting a longer-than-standard period on parole. The relevant factors were the offenders' relatively young ages, the fact that this would be their first experience of full-time custody, and their need for extended supervision and support upon release.
Orders Made
Omaru Kamara
- Convicted of all offences
- Aggregate sentence of 3 years, commencing 19 December 2017, expiring 18 December 2020
- Non-parole period of 1 year and 10 months, expiring 18 October 2019
- Indicative sentences: Count 024 (with Form 1 matter 001): 18 months; Count 026 (with Form 1 matters 011, 013, 015, 016, 017, 021): 20 months; Count 023: 10 months
- Confiscation orders made
- Drug destruction order made
Ahmed Kassem
- Convicted of all offences
- Aggregate sentence of 2 years and 10 months, commencing 22 June 2019
- Non-parole period of 1 year and 8 months, expiring 21 February 2021
- Indicative sentences: Count 012 (with Form 1 matters 005, 007, 008, 009): 16 months; Count 011 (with Form 1 matter 006): 12 months; Count 001 (with Form 1 matters 002, 004): 14 months
- Special circumstances found
- Confiscation orders made
- Drug destruction order made
- Charge H69625871/005 withdrawn
Key Takeaways
- Planned, multi-transaction drug supply operated from hotel premises, even at a street level, will ordinarily attract full-time imprisonment rather than an alternative sentencing disposition such as an Intensive Corrections Order.
- Under the guideline established in Attorney General's Application No 1 of 2002, Form 1 offences are to be reflected in sentence by giving greater weight to personal deterrence and community retribution, rather than by treating them as separate matters requiring independent punishment.
- A psychological nexus between an offender's mental health condition and the commission of drug supply offences may support a moderate reduction in moral culpability, even where the connection does not excuse the conduct.
- Special circumstances justifying a longer parole period can be established by a combination of factors: the offender's youth, the absence of prior custodial experience, and the need for extended post-release supervision and rehabilitation support.
- Early guilty pleas consistently attract a 25% sentencing discount in this jurisdiction, reflecting the recognised utilitarian value of avoiding a contested trial.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 matters)
- R v Qutami (2001) 127 A Crim R 369
- Imbornone v R [2017] NSWCCA 144
- Parente v R [2017] NSWCCA 284
- R v CBK [2002] NSWCCA 457
- R v Henry (1999) 46 NSWLR 346
- Robertson v R [2017] NSWCCA 205