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District Court 2 July 2020

R v Kaddour

[2020] NSWDC 607

Drugs

Citation: R v Kaddour [2020] NSWDC 607
Court: District Court of New South Wales
Date: 2 July 2020
Judge: Bright DCJ

Background

The offender, a man aged 57, was sentenced following guilty pleas to two serious drug manufacturing offences under the Drug Misuse and Trafficking Act 1985 (NSW). The offences related to the manufacture of large commercial quantities of 3,4-Methylenedioxyamphetamine (MDA), a prohibited drug chemically related to MDMA. The conduct occurred between May and August 2015 at properties in Bingara, a small rural town in north-western New South Wales.

The offender and a co-accused had an old schoolfriend relationship and had worked together periodically as adults. Over several years, the offender stored chemicals and equipment at properties associated with the co-accused, progressively escalating his involvement in manufacturing MDA. The operation involved converting precursor chemicals into MDA powder and then pressing it into tablet form inside a converted removalist truck trailer.

The co-accused was separately charged and proceeded to trial, where he was acquitted. The offender had been in custody since his arrest on 16 August 2015, meaning by the time of sentencing he had been on remand for nearly five years.

  • What sentence was appropriate for two counts of manufacturing a large commercial quantity of a prohibited drug, each carrying a maximum of life imprisonment and a standard non-parole period of 15 years?
  • What discount should apply to reflect the timing of the guilty pleas?
  • Whether mitigating factors, including good character and the absence of prior criminal history, warranted a reduction in sentence?
  • Whether special circumstances existed justifying a variation to the statutory ratio between the non-parole period and the balance of the term?

Decision

Bright DCJ convicted the offender on both counts and imposed an aggregate sentence of 12 years and six months imprisonment, backdated to the date of arrest on 16 August 2015. The non-parole period was set at seven years and six months, with the offender's first eligibility for parole falling on 15 February 2023.

The court applied a 25% discount on the starting terms for both offences to reflect the guilty pleas entered in February 2017. The indicative starting term for the principal offence (15.32 kilograms of MDA) was 13 years, reduced to nine years and nine months. The indicative starting term for the second offence (616 grams, with four Form 1 matters taken into account) was eight years, reduced to six years.

The court took into account the objective seriousness of the offending, including the scale of manufacture, the use of sophisticated equipment, and the deliberate evasion of police detection. Mitigating factors included the offender's good character, absence of prior criminal history, and the absence of adverse incidents during his extended period on remand. The court also noted that remand conditions can be more restrictive than those applying to sentenced prisoners.

Special circumstances were found, justifying a lesser non-parole period than the standard statutory ratio would otherwise produce. The aggregate sentencing regime under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was applied, with indicative sentences stated for each count.

Orders Made

  • The offender was convicted on all counts.
  • An aggregate term of imprisonment of 12 years and six months, commencing 16 August 2015 and expiring 15 February 2028.
  • A non-parole period of seven years and six months, commencing 16 August 2015 and expiring 15 February 2023.
  • Special circumstances found; statutory non-parole ratio varied downward.
  • Four Form 1 offences (possession of precursors with intent to manufacture) taken into account on sentence for the second count.

Key Takeaways

  • The District Court confirmed that a 25% guilty plea discount was appropriate where pleas were entered at a relatively early stage, even where the matter had proceeded through committal to the Local Court before being resolved.
  • Large-scale drug manufacturing offences involving commercial quantities, sophisticated equipment, and deliberate counter-surveillance conduct will be treated as highly serious, reflected in starting terms well above the 15-year standard non-parole period benchmark.
  • Good character and the absence of prior criminal history remained available as mitigating factors, even in the context of objectively grave offending, though their weight was limited given the seriousness of the conduct.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where an offender has spent an extended period on remand, given the additional restrictions that pre-sentence custody can involve compared to sentenced imprisonment.
  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999, the court imposed an aggregate sentence with indicative terms stated for each offence, a procedural approach relevant to multi-count sentencing in the District Court.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 53A, 54B(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- Imbornone v R [2017] NSWCCA 144