AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 3 April 2020

R v Eldamouni

[2020] NSWDC 807

Drugs
CRIME SENTENCE SUPPLY PROHIBITED DRUG POSSESS PROHIBITED DRUG POLY DRUG USE SUBSTANCE DEPENDENCE

Citation: R v Eldamouni [2020] NSWDC 807
Court: District Court of New South Wales
Date: 3 April 2020
Judge(s): Norrish QC DCJ

Background

The offender appeared for sentence on charges arising from her arrest on 2 April 2018 at Zetland. Police found her alone in a stationary car, visibly intoxicated, testing positive for MDMA. A search uncovered 93.66 grams of gamma-butyrolactone (GBL) in two Dettol bottles, 3.15 grams of MDMA in resealable bags, and 5.79 grams of cocaine. A message on her phone was consistent with drug dealing negotiations.

The offender faced one charge on indictment for supplying GBL (an indictable quantity, short of a commercial quantity), with a supply of MDMA taken into account on a Form 1. A related charge of possessing cocaine was dealt with separately under a certificate procedure. Several other possession charges were ultimately dismissed.

The offender pleaded guilty shortly before trial. She had no prior convictions. She was a young mother of four children, separated from her husband, with a documented history of substance dependence that had progressed from prescribed opioids following weight loss surgery to prohibited drug use.

  • What discount, if any, applied to reflect the utilitarian value of a late guilty plea entered just before trial?
  • Whether the threshold under section 5 of the Crimes (Sentencing Procedure) Act 1999 for full-time imprisonment was crossed, and if so, whether a non-custodial or alternative order was nonetheless appropriate.
  • How to weigh the offender's objective criminality against subjective features including substance dependence, absence of prior convictions, good character, remorse, family responsibilities, and rehabilitation prospects.
  • Whether exceptional circumstances existed to justify not imposing additional conditions on the Community Correction Order.

Decision

His Honour applied the guideline judgment in Thomson and Houlton v R [2000] NSWCCA 309 to fix the guilty plea discount. Because the plea was entered only a couple of days before trial and was substantially the result of negotiations finalised the preceding Friday, the court allowed a 10% discount on the otherwise appropriate penalties.

The court found that the section 5 threshold for imposing imprisonment had been crossed, given the nature and circumstances of the supply offences. However, his Honour concluded that the term of imprisonment need not be served by way of full-time custody. The court drew on the analysis in Parente v R [2017] NSWCCA 204, particularly paragraphs dealing with the purposes of sentencing, community protection, and the place of rehabilitation, and determined that the combination of objective and subjective factors warranted a suspended custodial arrangement.

In assessing objective seriousness, his Honour noted that the quantities and packaging were not consistent with substantial involvement in drug trafficking. The court accepted that the offending took place in the context of the offender's own drug use rather than as a commercial enterprise, though it could not precisely quantify the extent of her dealing.

On subjective matters, the court gave weight to the offender's genuine remorse, her letter of apology, her absence of prior convictions, references from family members attesting to good character, her difficult personal history, and her four children's dependence on her. His Honour also noted further drug possession charges in May 2018 (dealt with by the Local Court with conviction and no further penalty under section 10A), acknowledging that while these showed ongoing struggles with addiction, the offender had demonstrated genuine steps toward rehabilitation since being charged. The lack of an additional condition on the Community Correction Order for cocaine possession was justified by exceptional circumstances, including the offender's family responsibilities and, his Honour noted orally, uncertainty at that time about the availability of community service work due to the COVID-19 pandemic.

Orders Made

  • Indictment (supply GBL, with MDMA supply on Form 1): 12 months' imprisonment, to be served by way of an Intensive Correction Order (subject to standard conditions including good behaviour for 12 months and compliance with Community Corrections Service requirements).
  • Related offence under section 166 certificate (possess cocaine): Convicted; Community Correction Order for 18 months, with standard conditions (no offending; appear before the court if called upon).
  • Exceptional circumstances found for not imposing an additional condition on the Community Correction Order.
  • Sequences 1, 6, and 7 (possess GBL, possess MDMA, possess alprazolam): withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that a late guilty plea entered as a result of pre-trial negotiations, finalised the Friday before the trial week, attracts a modest utilitarian discount of 10% under the Thomson and Houlton guideline, rather than the larger discounts available for earlier pleas.

  • A finding that the section 5 imprisonment threshold is crossed does not automatically lead to full-time custody. Where objective criminality falls well short of substantial drug trafficking and strong subjective factors exist, a sentence served in the community may remain open.

  • Poly-drug dependence, particularly a documented transition from prescribed opioids to prohibited drugs, was treated as part of the context of the offending rather than as an aggravating feature, and was weighed alongside rehabilitation prospects when assessing the appropriate sentence.

  • Subsequent drug offences dealt with by way of conviction and no further penalty under section 10A did not preclude a favourable sentencing outcome in the District Court, though the court acknowledged they demonstrated ongoing difficulties with addiction.

  • Under Parente v R [2017] NSWCCA 204, sentencing courts dealing with drug supply are required to engage carefully with the full range of sentencing purposes, including rehabilitation, rather than defaulting to full-time custody simply because the supply threshold has been crossed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5, 8(1), 10A
- Drug Misuse and Trafficking Act 1985 (NSW), section 25(1)
- Criminal Procedure Act 1986 (NSW), sections 166, 167

Cases
- Thomson and Houlton v R [2000] NSWCCA 309
- Parente v R [2017] NSWCCA 204
- Robertson v R [2017] NSWCCA 205
- Cicciarello v R [2009] NSWCCA 272
- R v McDonnell [2002] NSWCCA 34