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District Court 30 October 2020

R v El-Achi

[2020] NSWDC 654

DrugsFraud & dishonesty
ONGOING SUPPLY OF PROHIBITED DRUGS DEAL WITH PROCEEDS OF CRIME

Citation: R v El-Achi [2020] NSWDC 654
Court: District Court of New South Wales
Date: 30 October 2020
Judge(s): Mahony SC DCJ

Background

The offender, a 63-year-old man who had worked as a bus driver in Sydney for 37 years before medical retirement, pleaded guilty to two offences: ongoing supply of a prohibited drug (cocaine) under s 25A(1) of the Drug Misuse and Trafficking Act 1985, and dealing with property suspected of being proceeds of crime under s 193C(2) of the Crimes Act 1900.

Between 19 November and 12 December 2019, the offender supplied cocaine on six separate occasions to a police registered source operating in a controlled operation. The total amount supplied was 4.67 grams for a financial reward of $1,850. When police arrested him at his home in January 2020, he was found in possession of further cocaine and a small amount of cash.

The offender's use of cocaine had begun after an unsuccessful back surgery in 2015, with friends suggesting it as a remedy for pain and other physical difficulties. He eventually moved from personal use to supply in order to fund his own cocaine consumption.

Legal Issues

  • Whether the objective seriousness of the ongoing supply offence under s 25A(1) of the DMTA placed the offending at, above, or below the mid-range for such offences
  • Whether planning or organisation inherent in a s 25A charge could separately aggravate the offence under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (that no penalty other than imprisonment is appropriate) was crossed
  • What weight general and specific deterrence should carry given the offender's subjective circumstances

Decision

Issue 1: Objective seriousness of the ongoing supply offence

The court found that the offender was a street-level supplier whose conduct fell below mid-range and towards the lower end of objective seriousness for a s 25A(1) offence (at [52]). Although the offender had regular customers, had been selling for some period, used coded communications, and could arrange cocaine at short notice, the court was not satisfied beyond reasonable doubt that he was operating daily at a fixed location (at [51]). The court was also not satisfied that he was "substantially involved" in the supply of prohibited drugs in the sense that phrase implies a more senior role (at [51]).

Issue 2: Aggravating factors

The court accepted that planning or organisation inherent in a s 25A charge cannot operate as a separate aggravating factor, because such features are already built into the offence itself (at [53]). Similarly, financial gain, as an element of the offence, could not be counted as an additional aggravating circumstance (at [53]).

Issue 3: The section 5 threshold

The court gave careful consideration to whether imprisonment was the only appropriate penalty (at [59]). Taking into account the low level of objective seriousness, the offender's age of 63, multiple serious medical conditions, strong subjective case, genuine remorse, humiliation caused by arrest, and very low risk of reoffending, the court was not satisfied that no penalty other than imprisonment was appropriate (at [59]). This finding distinguished the case from the usual position in ongoing supply matters, where the s 5 threshold is ordinarily crossed (at [59]).

Issue 4: Deterrence

The court acknowledged the general importance of deterrence in drug supply sentencing (at [56]). However, it accepted that both general and specific deterrence were of diminished importance on these facts, given the impact the arrest had already had on the offender and his family, his remorse, and his low likelihood of reoffending (at [56]). The offender received a 25% utilitarian discount for his early guilty plea (at [54], [56]).

Orders Made

  • Convicted of the offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (Sequence 7) and sentenced to a Community Correction Order of 18 months with standard conditions (must not commit any offence; must appear before the court if called to do so)
  • Convicted of the offence under s 193C(2) of the Crimes Act 1900 (Sequence 9) pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed
  • Convicted of possession of a prohibited drug (Sequence 8) pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed
  • Consent order made under the Confiscation of Proceeds of Crime Act 1989

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, planning or organisation that is inherent in the offence itself cannot be separately counted as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, nor can financial gain where it forms an element of the charge (at [53]).

  • The District Court confirmed that s 25A(1) covers a broad spectrum of conduct, and that a street-level supplier operating at the lower end of objective seriousness may, in appropriate circumstances, fall below the s 5 imprisonment threshold where significant subjective factors are present (at [52], [59]).

  • General and specific deterrence, though ordinarily important in drug supply sentencing, may be accorded diminished weight where the offender's arrest has already produced a significant personal and family impact, the offender is genuinely remorseful, and the risk of reoffending is assessed as very low (at [56]).

  • A community correction order can satisfy the sentencing purposes of denunciation and adequate punishment in an ongoing drug supply case where the offending is at the lower end of seriousness and the offender presents a compelling subjective case, including advanced age and serious health conditions (at [60]).

  • The decision in Kennedy v R [2020] NSWCCA 49, where a conviction with no further penalty was recorded for a s 25A offence, was noted as illustrating the wide sentencing range available for such offences, but was distinguished on its facts because that offender was unlikely to have supplied at all without police involvement (at [58]-[59]).

Legislation and Cases Referenced

Legislation
- Confiscation of Proceeds of Crime Act 1989
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985

Cases
- Cullen v R [2014] NSWCCA 162
- Hanna v R [2015] NSWCCA 326
- Kennedy v R [2020] NSWCCA 49
- Parente v R [2017] NSWCCA 284
- R v CBK (2002) 135 ACrimR 260
- R v Fangaloka [2019] NSWCCA 173