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District Court 7 May 2020

R v Farah; R v Boustani

[2020] NSWDC 192

Drugs
SENTENCING UNDERTAKING MENIAL TASKS

Citation: R v Farah; R v Boustani [2020] NSWDC 192
Court: District Court of New South Wales
Date: 7 May 2020
Judge: Yehia SC DCJ

Background

Two co-offenders, Ray Farah and Elias Boustani, appeared for sentencing on a single count each of possessing a commercial quantity of a border controlled drug (cocaine) by way of joint commission, contrary to the Criminal Code 1995 (Cth). The cocaine seized had a combined pure weight of 98.07 kilograms, with a wholesale value estimated between approximately $19 million and $26 million. The maximum penalty for the offence is life imprisonment.

The drugs arrived in Brisbane concealed inside a diesel generator. Both offenders were associates of a third man, James Bahmad, whose trial remained listed separately. The agreed facts described a coordinated operation in October 2018 in which the offenders transported and assisted in moving the drug-laden generator to a property at Austral, New South Wales, where the cocaine was ultimately extracted.

Both offenders pleaded guilty. Mr Farah entered his plea in the District Court well in advance of his scheduled trial, and Mr Boustani pleaded guilty at the earliest opportunity in the Local Court.

  • What sentence is appropriate for each offender, having regard to their respective roles in the joint criminal enterprise?
  • Where does each offender's conduct sit on the range of objective seriousness for this category of offence?
  • What guilty plea discount applies to each offender, and what other subjective factors affect sentence?

Decision

Yehia SC DCJ assessed the objective seriousness of the offending as falling at the lower end of the range, given that both men performed menial tasks. Their roles involved driving, transporting vehicles and equipment, and assisting with the physical movement of the generator. Neither brought specialised knowledge or expertise to the enterprise, and neither was involved in the importation itself. The court noted that their immediate physical contact with the drugs exposed them to the greatest risk in the operation.

The court distinguished this from cases involving more sophisticated or organisational roles, such as an employee of a company who exploits their position to facilitate drug possession. The court was satisfied that general deterrence and denunciation nevertheless required full-time custodial sentences, and that the sentences must also reflect the limited nature of each offender's involvement.

Mr Farah received a 20 percent discount on his sentence for his guilty plea, which was entered well before trial. Mr Boustani received a 25 percent discount, having pleaded guilty at the earliest opportunity. The court was satisfied that both pleas reflected genuine remorse and a willingness to facilitate the course of justice, supported by documentary evidence.

Orders Made

  • Ray Farah: Convicted and sentenced to 8 years 6 months imprisonment, comprising a non-parole period of 4 years 9 months (commencing 11 October 2018, expiring 10 July 2023) and a balance of term of 3 years 9 months (expiring 10 April 2027). Starting point before plea discount was 10 years 8 months.
  • Elias Boustani: Convicted and sentenced to 9 years imprisonment, comprising a non-parole period of 5 years (commencing 11 October 2018, expiring 10 October 2023) and a balance of term of 4 years (expiring 10 October 2027). Starting point before plea discount was 12 years.
  • Both offenders eligible for parole at expiration of their respective non-parole periods, subject to Community Corrections supervision.

Key Takeaways

  • The District Court placed the offending at the lower end of the range of objective seriousness where both co-offenders performed menial, largely logistical tasks and brought no particular expertise to the enterprise, despite the very large quantity of cocaine involved.
  • Full-time custodial sentences remained warranted even for offenders at the lower end of the objective seriousness scale, given the weight given to general deterrence and denunciation for commercial drug offences under the Criminal Code 1995 (Cth).
  • A guilty plea entered at the earliest opportunity in the Local Court attracted a 25 percent utilitarian discount, while a plea entered well before a scheduled District Court trial attracted 20 percent.
  • Immediate physical contact with the border controlled drugs was identified as a feature that exposed the lower-level participants to the greatest personal risk, notwithstanding their subordinate roles in the broader enterprise.
  • Where a co-offender's role is limited to undertaking directed, menial tasks without organisational responsibility or specialised knowledge, that role can properly be reflected in a sentence below what would otherwise apply for the same drug quantity.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.2A(1) and 307.8(1)

Cases
- Brown v R [2020] VSC 60
- DPP (Cth) v Politopoulos [2020] VCC 338
- DPP v Morey (a pseudonym) [2020] VCC 320
- DPP v Tennison [2020] VCC 343
- Hili v R; Jones v R (2010) 242 CLR 520
- R v Kassir [2020] NSWCCA 88
- R v Michael Anderson (District Court (NSW), 27 November 2008, unreported)
- R v Miranda [2002] NSWCCA 89
- R v Zeng [2008] NSWCCA 183
- Rakielbakhour v DPP [2020] NSWSC 323
- Shakhanov v The Queen [2019] VSCA 38
- The Queen v Pham (2015) 256 CLR 550
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584