Citation: R v Yousif (No 2) [2020] NSWDC 386
Court: District Court of New South Wales
Date: 25 June 2020
Judge: Grant DCJ
Background
The offender was a solicitor in a relationship with a member of the Bandidos motorcycle club who had a prior conviction for drug supply. After his release on parole in 2016, NSW Police commenced a targeted investigation into his activities in August 2017, including audio and visual surveillance of the home he shared with the offender.
The offender was charged with three offences arising from that investigation: participating in a criminal group, using a false document to influence the exercise of a public duty, and knowingly taking part in the supply of 55.5 grams of methylamphetamine. She pleaded not guilty, gave evidence at trial, and was convicted by a jury on all three counts.
The sentencing proceedings required the court to assess the objective seriousness of each offence, determine the appropriate sentencing regime, and consider whether a full-time custodial sentence or an Intensive Correction Order (ICO) was warranted.
Legal Issues
- What was the objective seriousness of the offender's role in each of the three offences?
- Whether the offender's post-offence conduct (counselling a co-offender after his arrest) could aggravate the drug supply charge.
- Whether financial gain was an aggravating factor under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 in the context of the drug supply offence.
- Whether extra-curial punishment (harm suffered outside the formal justice system) should reduce the sentence.
- Whether an ICO or full-time imprisonment was the appropriate sentencing disposition.
Decision
Drug supply: The court found the offender's role was confined to counting money at the direction of her partner during the drug transaction. She did not contribute financially, was not a financial beneficiary, and played no further role. The court accepted that her conduct sat at the lowest end of the scale of seriousness and did not cross the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 that requires a court to impose imprisonment. Her post-offence counselling of the co-offender was discounted as an aggravating factor because the offence had already been completed at that point. The Crown's submission that financial gain was an aggravating factor was rejected as contrary to established authority.
False document and criminal group offences: The offender participated in a scheme to procure a fraudulent Indian driver's licence for a third party, enabling him to obtain an unrestricted NSW motorcycle licence. Surveillance recordings captured her discussing with her partner how to avoid detection at the Roads and Maritime Services office. The court treated the false document offence as the principal offence for the purpose of the aggregate sentence, reflecting that this conduct involved deliberate fraud on a public authority and was more serious than her role in the drug supply.
Extra-curial punishment: The court accepted that the offender had suffered significant consequences beyond the formal sentence, including the loss of her legal career and the associated professional and personal consequences. These were taken into account as a mitigating consideration, consistent with sentencing principles recognising harm suffered outside the court process.
Sentencing regime: The court found that an ICO was more likely than full-time detention to address the offender's risk of reoffending. It noted she was a relatively young person who had demonstrated a lack of insight into her professional obligations, but who was undergoing a process of rehabilitation requiring structured supervision.
Orders Made
- An aggregate term of three years imprisonment, to be served by way of an Intensive Correction Order.
- Conditions of the ICO include:
- Not to commit any offence
- Supervision by Community Corrections
- Participation in programs and/or treatment
- Not to consume illicit drugs
- 400 hours of community service work
- Contact the Fairfield Community Corrections Office within seven days
Key Takeaways
- The District Court confirmed that a defendant's post-offence conduct cannot elevate the objective seriousness of an offence that was already completed before that conduct occurred.
- Under established Court of Criminal Appeal authority (including Prculovski, Wat, and Wuang), financial gain is not an aggravating factor under s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 where it is an inherent characteristic of the drug supply offence charged, unless the gain is significant and exceeds what would be expected at the lowest level of that offending.
- A minimal and peripheral role in a drug supply transaction, such as counting money at another's direction without financial benefit, can fall below the s 5 threshold for imprisonment.
- Extra-curial punishment, including the loss of a professional career, remains a recognised mitigating factor in sentencing, capable of influencing the overall disposition.
- Following R v Fangaloka [2019] NSWCCA 173, the paramount consideration when deciding between an ICO and full-time detention is which option is more likely to address the offender's risk of reoffending; an ICO should not be imposed unless the court reaches a favourable conclusion on that question.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 254(b)(iii)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)(o), 66
Cases:
- Einfeld v R [2010] NSWCCA 87
- Prculovski v R [2010] NSWCCA 274
- R v Fangaloka [2019] NSWCCA 173
- R v Tuki (No 4) [2013] NSWSC 1864
- Wat v R [2017] NSWCCA 62
- Wuang v R [2017] NSWCCA 312