Citation: R v Malas; R v Chaouk [2020] NSWDC 893
Court: District Court of New South Wales
Date: 17 December 2020
Judge: M L Williams SC DCJ
Background
Two co-offenders were sentenced for their roles in a small on-demand drug supply operation in the Sydney metropolitan area, running from October 2018 to January 2019. The operation involved methylamphetamine being ordered by customers via phone and delivered by the younger offender at the direction of the older.
The organiser of the operation (aged 29 at the time of sentence) coordinated orders through a dedicated phone and directed drivers to complete deliveries. Over at least 80 transactions, 772 grams of methylamphetamine were supplied, with a minimum of $64,000 in cash exchanged. The delivery driver (aged 21) was arrested in November 2018, was granted conditional bail, and continued offending after changing phones.
The operation was placed under police surveillance and telephone interception for a substantial period before arrests were made. The organiser was found with GBL, GHB, Valium and Xanax at the time of his arrest, and spat on a police officer during apprehension. Both offenders pleaded guilty.
Legal Issues
- What sentences were appropriate for each offender, given their distinct roles in the supply enterprise?
- What weight should be given to mitigating factors including guilty pleas, youth, remorse, health, and rehabilitation prospects?
- What aggravating factors applied, including breach of conditional liberty and prior criminal history?
- Whether special circumstances existed in each case to justify a non-parole period that departs from the standard ratio (that is, a longer tail of the sentence spent on parole than is typical)
- How Form 1 matters (offences taken into account on sentencing without separate conviction) should be reflected in the overall sentence
Decision
His Honour characterised the operation as organised but not especially sophisticated, noting the absence of any evidence about the drug source or the net profit made. The purity of the methylamphetamine was not established but was assessed as likely consistent with typical street supply. While the total quantity supplied exceeded the "large commercial quantity" threshold under the Drug Misuse and Trafficking Act 1985, the court noted that prosecutions under the same provision commonly involve far larger quantities.
The organiser entered a guilty plea attracting a 25% utilitarian discount. His Honour identified breach of conditional liberty and a prior supply conviction as aggravating factors. Mitigating factors included remorse, letters of support, and psychiatric evidence of substance use disorder in remission. A drug proceeds order was made by consent over the $64,000 in cash. The related common assault (spitting on a police officer) was disposed of under section 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was recorded but no additional penalty imposed.
The delivery driver, significantly younger and occupying a lesser role, also received a 25% discount for his plea. His Honour acknowledged that specific deterrence carried somewhat reduced weight given his youth and subjective circumstances. Special circumstances were found in both cases, justifying a non-parole period proportionally shorter than the standard, to allow for a longer supervised period on parole.
Both sentences took into account comparable decisions drawn from the Public Defender's database, which covered some 550 cases under the relevant provisions over twelve years. Counsel had identified several recent District Court and Court of Criminal Appeal decisions as useful comparators, though the court did not undertake detailed analysis of any individual case.
Orders Made
Tamir Chaouk (organiser):
- Convicted of supplying a large commercial quantity of methylamphetamine (s 25(2), Drug Misuse and Trafficking Act 1985)
- Six years imprisonment commencing 1 February 2019
- Non-parole period of four years, expiring 31 January 2023
- Special circumstances found
- Common assault (spitting on officer) dealt with under s 10A, Crimes (Sentencing Procedure) Act 1999 (conviction recorded, no additional penalty)
- Drug proceeds order made by consent (short minutes dated 17 December 2020)
Mustapha Malas (delivery driver):
- Convicted of two counts of supplying a prohibited drug (s 25(1), Drug Misuse and Trafficking Act 1985)
- Indicative sentences: 6 months (Count 1); 4 years (ex officio Count 2, incorporating Form 1 matters)
- Aggregate sentence of four years imprisonment commencing 17 January 2019
- Non-parole period of two years and three months, expiring 16 April 2021
- Special circumstances found
- Related matter dealt with under s 10A, Crimes (Sentencing Procedure) Act 1999
Key Takeaways
- The District Court treated the two offenders as occupying materially different roles, with the organiser receiving a longer sentence reflecting his direction of the enterprise and his prior supply conviction.
- A 25% discount for guilty pleas was applied to both offenders, consistent with the utilitarian value of timely pleas in drug supply matters.
- Special circumstances were found in each case, producing non-parole periods proportionally shorter than the standard, to allow adequate supervision during a longer parole period.
- Breach of conditional liberty at the time of offending operated as a statutory aggravating factor for the organiser, a consideration that courts are required to take into account under the Crimes (Sentencing Procedure) Act 1999.
- Comparative sentencing data from the Public Defender's database, covering hundreds of analogous cases, was treated as providing meaningful guidance even where no single comparator case was determinative.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61 (common assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Assam v R [2019] NSWCCA 12
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 matters)
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Ebrahami v R [2019] NSWCCA 27
- Matthews v R; New v R [2018] NSWCCA 186
- Matu v R [2019] NSWCCA 23
- R v Achmar [2018] NSWDC 461
- R v Khalil; R v Bilson [2019] NSWDC 271
- R v Rustom; R v Vernon [2017] NSWDC 245