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District Court 17 December 2020

R v Care; R v Al-Khateib

[2020] NSWDC 856

DrugsFraud & dishonesty

Citation: R v Care; R v Al-Khateib [2020] NSWDC 856
Court: District Court of New South Wales
Date: 17 December 2020
Judge: Bennett SC DCJ

Background

Two offenders, Adrian Cosmo Care and Nour Al-Khateib, were sentenced for their roles in a sophisticated and organised drug supply and money laundering enterprise operating out of residential units in Sydney. Although their conduct arose within the same criminal enterprise, the charges against each differed in nature and scope, and the court treated their sentencing as two distinct exercises rather than a single joint sentencing.

Police from a NSW strike force had installed lawful surveillance devices in a unit at Lewisham and later at a second unit at Belmore. Observations, recordings, and covert search warrants revealed the handling of white powder, cash, and drug-related paraphernalia at both locations. DNA evidence linked both offenders to gloves that tested positive for cocaine.

The sentencing proceeded on agreed statements of facts for each offender, though the court noted that those documents were limited in detail about each person's precise role. Bennett SC DCJ was constrained by the principle in The Queen v Olbrich to make factual findings only to the criminal standard, and so sentenced on the bare descriptions in the agreed facts.

  • What sentences were appropriate for Care's offences of knowingly taking part in the supply of a large commercial quantity of methylamphetamine and dealing with property suspected to be proceeds of crime?
  • What discount for a plea of guilty applied, and how should it be calculated?
  • How should pre-sentence custody be calculated, given that part of Care's time in custody was referable to a separate matter?
  • Whether special circumstances existed justifying a longer-than-standard ratio of parole to non-parole period.
  • What weight should be given to subjective factors, including age, rehabilitation prospects, and COVID-19 custodial conditions?
  • How should the court deal with additional offences on a Form 1 (offences taken into account but not separately punished)?

Decision

Bennett SC DCJ sentenced each offender separately, emphasising that the limited agreed facts did not allow for precise findings about individual roles within the enterprise. For Care, the principal charge was knowingly taking part in the supply of 1,012.85 grams of methylamphetamine, a large commercial quantity, carrying a maximum of life imprisonment and a standard non-parole period of 15 years. The court also sentenced him for dealing with $179,400 suspected to be proceeds of crime, and took into account on a Form 1 his participation in a criminal group and two cocaine supply offences.

Care pleaded guilty at the earliest opportunity in the Local Court, attracting a 25% discount on the sentence starting point, consistent with R v Borkowski. The court calculated the sentence commencement date as 22 June 2019, rather than the date of arrest (22 March 2019), to reflect that part of his time in custody was attributable to an earlier, unrelated drug supply matter for which he had received an intensive corrections order.

The court found special circumstances justifying a departure from the standard non-parole period ratio. Care was relatively young, this was in effect his first custodial sentence of this kind, and the court accepted he would need an extended period of supervised release to consolidate rehabilitation progress. Custodial conditions during the COVID-19 pandemic were also taken into account as a relevant hardship factor, consistent with established sentencing principles.

For Al-Khateib, the court sentenced separately on charges that included supply of a commercial quantity of cocaine (just under twice the commercial threshold of 250 grams and just under half the large commercial quantity of 1 kilogram). The court acknowledged some mitigating personal circumstances, including immaturity and relationship breakdown as contributing factors to offending, but found these carried limited weight in mitigation. Good rehabilitation prospects were accepted, supported by family backing.

Orders Made

Adrian Cosmo Care:
- Convicted of knowingly taking part in the supply of a large commercial quantity of methylamphetamine (s 25(2) Drug Misuse and Trafficking Act 1985) and dealing with property suspected to be proceeds of crime (s 193C(1) Crimes Act 1900).
- Form 1 offences (criminal group participation and two cocaine supply offences) taken into account.
- Aggregate sentence imposed, commencing 22 June 2019.
- Non-parole period of 3 years and 6 months, expiring 21 September 2022.
- Head sentence of 5 years and 6 months, expiring 21 September 2024.
- Release to parole recommended at expiration of non-parole period.

Nour Al-Khateib:
- Convicted of supply of a commercial quantity of cocaine.
- Non-parole period of 3 years, with a head sentence of 5 years and 3 months indicated (after 25% discount).
- Sentence for dealing with proceeds of crime: 2 years and 6 months.
- Aggregate sentence commencing 23 March 2019, with non-parole period of 3 years and 6 months expiring 21 September 2022, and head sentence of 5 years and 6 months expiring 21 September 2024.

Key Takeaways

  • The District Court confirmed that where co-offenders are part of the same enterprise but face different charges and factual circumstances, each must be sentenced on their own individual facts rather than as strictly comparable cases.
  • Under The Queen v Olbrich, factual findings adverse to a defendant at sentencing must be established beyond reasonable doubt. Where agreed facts are sparse, the sentencing court is confined to those bare descriptions and cannot draw inferences to fill the gaps.
  • A 25% guilty plea discount applied where the offender entered a plea at the earliest opportunity in the Local Court, consistent with R v Borkowski and related authorities.
  • Pre-sentence custody must be carefully apportioned where the offender's time in custody spans more than one unrelated matter. The court declined to backdate the sentence to the arrest date because part of that custodial period was attributable to a separate prior offence.
  • Custodial conditions arising from COVID-19 restrictions are a recognised hardship factor to be taken into account as part of the punishment, and special circumstances justifying a longer parole period can be established by reference to youth, a first custodial sentence, and the need for extended community supervision to support rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 193C(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- The Queen v Olbrich (1999) 199 CLR 270
- R v Borkowski [2009] NSWCCA 102
- Muldrock v R [2011] HCA 39
- Markarian v R [2005] HCA 25
- Bugmy v The Queen [2013] HCA 37
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 518
- R v Qutami [2001] NSWCCA 353
- Imbornone v R [2017] NSWCCA 144
- Ramos v R [2018] NSWCCA 206
- Tepania v R [2018] NSWCCA 247