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District Court 18 June 2020

R v Odisho

[2020] NSWDC 922

DrugsFirearms & weapons
CRIME SENTENCE 4 PRINCIPAL OFFENCES (4) POSSESS 12 GAUGE, DOUBLE BARRELLED SHOTGUN PLUS 3 MATTERS ON FORMS 1

Citation: R v Odisho [2020] NSWDC 922
Court: District Court of New South Wales
Date: 18 June 2020
Judge: Neilson DCJ

Background

The offender pleaded guilty to four principal offences arising from events on the night of 1–2 April 2019 at a unit in Five Dock, Sydney. He had agreed to "warehouse" large quantities of drugs and firearms at the apartment he shared with a close friend, motivated by a need to discharge a substantial drug debt and to fund his own drug addiction.

In the early hours of 2 April 2019, two armed men forced their way into the apartment. During the invasion, the offender was shot in the arm and his flatmate was shot in the head and killed. Two persons were later charged with that murder. Before emergency services arrived, the wounded offender carried a bag containing most of the drugs and both pistols to the communal rooftop area and attempted to conceal it beneath a BBQ hood, leaving blood at the scene. Police subsequently found drugs, cash, firearms, and drug paraphernalia both in that bag and in the offender's bedroom.

The offender was not arrested until 6 June 2019, some two months after the incident, as police had initially been focused on investigating the murder. He was 24 years old at the time of the offences. He had come to Australia as a refugee from Iraq after spending ten years in Jordan, where he experienced discrimination and bullying due to his religion and a speech impediment.

  • What was the appropriate aggregate sentence for four substantive offences (supply of large commercial quantity of cocaine, supply of commercial quantity of MDMA, and two counts of possessing unauthorised firearms), taking into account three further offences on Forms 1?
  • What weight should be given to the offender's subjective circumstances, including his refugee background, the traumatic circumstances of the home invasion, the death of his close friend, his addiction, and his prospects of rehabilitation?
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory ratio.

Decision

Neilson DCJ sentenced the offender on all four principal charges by way of an aggregate sentence. The indicative sentences were: three years nine months (supply of large commercial quantity of cocaine), three years (supply of commercial quantity of MDMA), one year nine months (possessing the revolver), and one year six months (possessing the shotgun). Had all sentences been made consecutive, the total head sentence would have been ten years with a non-parole period of six years and six months.

Applying the totality principle, the District Court determined that an aggregate head sentence of seven years was appropriate, with a non-parole period of four years. The sentence commenced on 6 June 2019, the date of arrest. The three Forms 1 matters were taken into account in fixing the overall sentence.

The court found special circumstances, which allowed for a non-parole period shorter than the standard one-third balance. The offender's significant subjective matters included his background as a refugee, the profound trauma of witnessing his friend's murder, his addiction (which had driven his involvement in the scheme), and his assessed good prospects of rehabilitation. His guilty plea was also a relevant mitigating factor.

The court noted that the offender's engagement in self-directed rehabilitation appeared to have begun immediately after the murder of his friend, rather than upon his arrest, which was viewed as a genuine indicator of remorse and changed outlook.

Orders Made

  • The offender was convicted on each of the four substantive offences.
  • An aggregate sentence of seven years' imprisonment was imposed, comprising:
  • A non-parole period of four years, commencing 6 June 2019 and expiring 5 June 2023.
  • A balance of term of three years, expiring 5 June 2026.
  • Special circumstances were found.
  • The three Forms 1 matters were taken into account in passing the aggregate sentence.
  • Indicative sentences were recorded for each sequence as noted above.
  • Consent orders were made in accordance with short minutes of order.

Key Takeaways

  • The District Court applied the totality principle to reduce what would otherwise have been a ten-year cumulative head sentence to an aggregate of seven years, reflecting the need to avoid a crushing sentence disproportionate to the offender's overall criminality and circumstances.
  • A significant background of refugee trauma, including years of discrimination and bullying in a third country, can carry meaningful weight in mitigation at sentencing, particularly where it informs an offender's vulnerability to drug addiction and exploitation.
  • Where an offender's genuine rehabilitation commenced before arrest rather than as a response to legal proceedings, a sentencing court may treat that as a stronger indicator of authentic remorse and reduced risk of reoffending.
  • Warehousing large commercial quantities of drugs and multiple firearms in a residential setting remains a serious category of offending, attracting substantial sentences even where the offender's role is not that of a principal organiser and powerful mitigating factors are present.
  • Under the Firearms Act 1996 (NSW), possession of an unauthorised pistol carries a maximum of 14 years and a standard non-parole period of four years, reflecting the legislature's serious treatment of unauthorised firearm possession.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4(1), 7(1)
- Drug Misuse and Trafficking Act 1985 (NSW) (implied by the drug charges and standard non-parole period references)

Cases:
- R v Finigan [2019] NSWDC 590