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District Court 25 May 2020

R v Bilir

[2020] NSWDC 491

DrugsFraud & dishonesty
OFFEND — UNLIKELY TO RE

Citation: R v Bilir [2020] NSWDC 491
Court: District Court of NSW
Date: 25 May 2020
Judge: M L Williams SC DCJ

Background

A 27-year-old man appeared for sentencing after pleading guilty to one count of supplying 2,001 grams of cocaine, an amount exceeding the large commercial quantity threshold under s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. A Form 1 offence of dealing with approximately $378,535 in cash reasonably suspected of being proceeds of crime was also before the court.

Police executed a search warrant at the offender's family home in Hillsdale on 15 February 2019, two days after he returned from a trip to Thailand. Officers found two high-purity bricks of cocaine (approximately 85% and 84.5% pure) and the cash stored in his bedroom. The offender fled when he saw police and was later arrested on 11 March 2019, remaining in custody from that date.

The offender's account, supported by a psychologist's report and character evidence, was that he agreed to store the drugs and cash in exchange for money and drugs, at a time when his family business had failed and his mother was unwell. He had a history of substance use and one prior offence from 2011 for which he received a bond.

  • What was the appropriate objective seriousness of the offence, and what role did the offender play in the drug supply chain?
  • What discount applied to the sentence for the early guilty plea, and whether a further discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 was warranted?
  • How should the Form 1 proceeds-of-crime offence affect the head sentence, and how was the De Simoni principle relevant?
  • What weight should be given to subjective factors including remorse, rehabilitation prospects, drug addiction, good character, and hardship from COVID-19 custody conditions?
  • Whether special circumstances existed justifying a non-parole period shorter than the standard proportion?

Decision

The court assessed the offending as falling below the mid-range of objective seriousness. The quantity, while at the lower end of the large commercial range (which spans from one kilogram to hundreds of kilograms), was of high purity. The offender was trusted with both the drugs and a significant sum of cash, placing him above the level of a street supplier and within the higher echelons of a drug syndicate, though the evidence did not establish a role more serious than that of a storeman or courier. Items found in the home, including multiple mobile phones, a drug testing kit, and balaclavas, indicated broader involvement with a criminal syndicate.

The court applied a 25% discount for the utilitarian value of the early guilty plea, and a further 5% discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 based on a confidential affidavit from a senior police officer. The Form 1 money-laundering offence was taken into account in the manner prescribed by the Chief Justice's guidance in the Attorney General's Application (2002) case. The court also noted that the Form 1 charge did not require proof of knowledge or recklessness as to the illegal origin of the funds, and so those mental elements were not imported into the sentencing calculus under the De Simoni principle.

The court accepted substantial mitigating factors: relatively good character, genuine remorse (evidenced by a frank letter to the court), low risk of reoffending, good rehabilitation prospects, a history of drug use, and strong personal support. The court also treated the significantly more onerous custodial conditions arising from the COVID-19 pandemic as a relevant factor, consistent with the approach taken in Rakielbakhour v DPP [2020] NSWSC 323, noting restricted family contact, limited phone access, and heightened anxiety in custody.

Special circumstances were found, given this was the offender's first period of full-time imprisonment and he required ongoing treatment and supervision to support long-term rehabilitation. The court determined that general and specific deterrence remained important sentencing considerations for serious drug offences, but balanced those objectives against the offender's demonstrated rehabilitation prospects.

Orders Made

  • The offender was convicted of the offence of supplying a large commercial quantity of cocaine.
  • A sentence of imprisonment of 4 years and 8 months was imposed, commencing 11 March 2019, with the Form 1 offence taken into account.
  • A non-parole period of 2 years and 8 months was imposed, expiring 10 November 2021.
  • Special circumstances were found.

Key Takeaways

  • The District Court confirmed that the large commercial quantity range for cocaine spans from one kilogram to hundreds of kilograms, and that a quantity at the lower end of that range is a relevant factor in assessing objective seriousness below the mid-range.
  • A storeman or courier role within a drug syndicate, even where the offender is trusted with high-purity drugs and large sums of cash, does not necessarily place the offending above the mid-range where evidence of active distribution is absent.
  • Under the De Simoni principle, a Form 1 proceeds-of-crime charge that does not require proof of knowledge or recklessness as to the illegal origin of funds cannot have those mental elements imported into the sentencing exercise for the primary offence.
  • Custodial conditions materially worsened by the COVID-19 pandemic, including suspended family visits and limited telephone access, were treated as a relevant mitigating factor to be weighed alongside other sentencing considerations.
  • Genuine, detailed expressions of remorse, corroborated by psychological evidence and character witnesses, can carry significant weight as a subjective mitigating factor, particularly where the offender also demonstrates insight into community harm caused by drug trafficking.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23
- Crimes Act 1900 (NSW), s 193C(1)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v De Simoni (1981) 147 CLR 383
- Rakielbakhour v DPP [2020] NSWSC 323
- R v Qi [2019] NSWCCA 73
- R v Garland [2018] NSWDC 437
- R v Strickland [2020] NSWDC 164