Citation: R v El Zayat [2020] NSWDC 392
Court: District Court of New South Wales
Date: 25 May 2020
Judge(s): Grant DCJ
Background
The offender was a central figure in a drug supply network operating in the Albury-Wodonga border region. NSW Police established Strike Force Palena in February 2018 to investigate large-scale methamphetamine trafficking in that area. Through telecommunications intercept warrants and a cross-border controlled operation, police monitored and recorded the offender's role in coordinating drug supply between a Melbourne-based upstream supplier and local distributors.
The offender communicated with his supplier in Melbourne and arranged for co-offenders to collect large quantities of methamphetamine, which were then stored at a residential address in West Albury. He directed who would attend to collect drugs, in what amounts, and on what payment terms. Between May and August 2018, he supplied approximately 505 grams of methamphetamine across multiple transactions, including two controlled purchases to an undercover police operative totalling nearly 200 grams.
The offender pleaded guilty in the District Court on 14 February 2020 to four counts: knowingly taking part in the supply of a large commercial quantity of methamphetamine (505 grams), two counts of supply (83.69 grams and 111.6 grams respectively), and supply of a prohibited drug on an ongoing basis. Five additional offences were taken into account on a Form 1, including further drug supply and participation in a criminal group.
Legal Issues
- What aggregate sentence was appropriate given the four counts of conviction and the five Form 1 offences?
- What plea discount applied, and at what rate?
- What weight should be given to the Form 1 offences in determining the overall sentence?
- How should the principles of totality and proportionality operate across the accumulation of sentences?
- Whether special circumstances existed to justify a variation in the ratio between the non-parole period and the total term.
Decision
The District Court applied a mandatory statutory plea discount of 10 per cent under section 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999, reflecting the stage at which the guilty plea was entered. The court noted the offender was committed for trial from the Local Court in July 2019 and did not enter his plea until February 2020 in the District Court.
On the Form 1 matters, the court confirmed that those offences must have a meaningful impact on the overall sentence. The court was required to sentence for the totality of the criminality before it, which could produce a sentence higher than what would have been appropriate for the principal count alone. Greater weight was therefore given to personal deterrence and retribution through the instinctive synthesis approach to sentencing.
The court emphasised the strong need for general deterrence in drug supply cases, observing that significant law enforcement resources are consumed in detecting and prosecuting covert drug trafficking. Protection of the community was identified as a significant sentencing purpose, given the social harms flowing from illicit drug use and its connection to other criminal offending.
Indicative sentences were set for each count, and partial accumulation was ordered to reflect the four separate offences while respecting the principles of totality and proportionality. The court found special circumstances existed, justifying a non-parole period that represented a somewhat higher proportion of the total term than the statutory default, to allow for an adequate period of supervised parole following a lengthy sentence.
Orders Made
- Count 1 (large commercial quantity supply): indicative sentence of 6 years imprisonment with an indicative non-parole period of 4 years
- Count 2 (supply 83.69 grams): indicative sentence of 18 months
- Count 3 (supply 111.6 grams): indicative sentence of 20 months
- Count 4 (ongoing supply): indicative sentence of 30 months
- Aggregate sentence of 8 years and 6 months, commencing 19 October 2019, expiring 18 April 2028
- Non-parole period of 5 years, with eligibility for parole on 18 October 2024
Key Takeaways
- The District Court confirmed that Form 1 offences must have a genuine and meaningful impact on the aggregate sentence, and can properly elevate the total penalty beyond what the principal offence alone would attract.
- Under section 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999, the mandatory plea discount is fixed by statute according to the timing of the plea, leaving limited discretion where the offender waited until the District Court arraignment to plead guilty.
- A conviction for supply of a large commercial quantity of methamphetamine, combined with ongoing supply and multiple additional transactions, attracts strong weight on general deterrence and community protection, particularly where the offender held a coordinating role in a structured trafficking network.
- Partial accumulation of sentences across multiple counts is required to reflect separate criminal acts, but must be calibrated against the principles of totality and proportionality to avoid a crushing overall term.
- Sentences for co-offenders performing less central roles, such as those who stored and physically distributed the drugs, were substantially lower, consistent with the offender's more significant organisational role attracting a heavier penalty.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D, 32
- Law Enforcement (Controlled Operations) Act 1997 (NSW)
Cases:
- DPP (Cth) v De La Rosa [2010] NSWCCA 94
- R v DW [2012] NSWCCA 66
- Tiknius v R (2011) 221 A Crim R 365
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518