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District Court 27 May 2021

R v Fallah

[2021] NSWDC 207

DrugsFraud & dishonesty
SENTENCE

Citation: R v Fallah [2021] NSWDC 207
Court: District Court of New South Wales
Date: 27 May 2021
Judge(s): Mahony SC DCJ

Background

Following a jury trial in October 2020, the offender was convicted of four counts on the indictment: one count of supplying a large commercial quantity of gamma-butyrolactone (GBL, a prohibited drug), and three counts of possessing proceeds of crime totalling $86,510. The offending occurred between December 2018 and May 2019.

The supply charge arose from evidence of 11 separate transactions between December 2018 and March 2019, totalling approximately 10.25 litres (11.57 kilograms) of GBL. The large commercial quantity threshold for GBL under the Drug Misuse and Trafficking Act 1985 is 4 kilograms, meaning the amount supplied was almost three times that threshold. The proceeds of crime counts related to cash found in the offender's car while he was found asleep at the wheel, in a hire car at a breath-testing stop, and following a street exchange observed by police.

Counts 2, 4 and 5 were committed while the offender was subject to a conditional release order imposed in December 2018 for two counts of common assault. The offender had been in custody since his arrest on 15 May 2019. The sentence hearing took place on 1 April 2021.

  • What aggregate sentence was appropriate for the principal supply offence (carrying a maximum of life imprisonment and a standard non-parole period of 15 years) combined with the proceeds of crime offences?
  • What weight should be given to the offender's drug addiction, limited criminal history, and expressed remorse in mitigation?
  • How should the fact that the offending occurred while the offender was subject to a conditional release order be treated as an aggravating factor?
  • What was the appropriate non-parole period relative to the balance of term, taking into account prospects of rehabilitation and the offender's personal circumstances?

Decision

The court found the principal offending (Count 2) to be serious, involving a large commercial quantity of GBL supplied across multiple transactions over several months. The jury rejected the offender's trial defence that the drug was purchased for personal use, and the Sentencing Assessment Report noted he had shown little insight and accepted no responsibility for his conduct.

Several factors weighed in the offender's favour to a degree. He had a limited prior criminal history, had expressed remorse, was assessed as a medium risk of re-offending, and had a history of significant drug dependence including 11 overdoses. A psychological report supported his account of addiction. However, the offending occurred while he was subject to a conditional release order, which the court treated as an aggravating circumstance under the Crimes (Sentencing Procedure) Act 1999.

The court also noted the offender's immigration status: the Australian Border Force had advised that he was an unlawful non-citizen and would be subject to immigration detention upon release. This circumstance was relevant to the conditions of his likely custody and the weight to be given to prospects of rehabilitation within the community.

Mahony SC DCJ imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, setting a non-parole period of 4 years (backdated to commence on the date of arrest) and a balance of term of 3 years and 6 months. A separate 18-month concurrent term was imposed for the offence of attempting to drive while under the influence of drugs. Three minor drug possession matters were resolved by conviction without further penalty under s 10A.

Orders Made

  • Count 1 (possess proceeds of crime, $78,300): convicted.
  • Count 2 (supply large commercial quantity of GBL, 11.57 kg): convicted.
  • Count 4 (possess proceeds of crime, $5,700): convicted.
  • Count 5 (possess proceeds of crime, $2,510): convicted.
  • Aggregate sentence (Counts 1, 2, 4 and 5): non-parole period of 4 years, commencing 15 May 2019 and expiring 14 May 2023; balance of term of 3 years and 6 months, commencing 15 May 2023 and expiring 14 November 2026.
  • Sequence 3 (attempt drive under influence of drugs, 2nd or subsequent offence): convicted; 18 months imprisonment, served concurrently, commencing 15 May 2019.
  • Sequences 4, 5 and 9 (possess prohibited drug; possess/attempt to obtain prescribed restricted substance): convicted without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.
  • Back-up offences in Sequences 2 and 4: withdrawn and dismissed.
  • Forfeiture order of $86,510 made under the Confiscation of Proceeds of Crimes Act 1989.

Key Takeaways

  • The District Court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, with a 4-year non-parole period and a 3-year-6-month balance of term, for an offender convicted of supplying a large commercial quantity of GBL and three proceeds of crime offences.
  • Offending committed while subject to a conditional release order was treated as a statutory aggravating factor, adding weight to the overall criminality assessed.
  • A jury's rejection of a personal use defence at trial is relevant at sentence: the court gave no credit for that claim and noted the offender's continued lack of insight when assessing his prospects of rehabilitation.
  • Where an offender faces immigration detention upon release, that circumstance may be relevant to the conditions of custody and the weight given to rehabilitation prospects in the community.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for minor offences without imposing any additional penalty, a course the District Court took here for three minor drug possession matters.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Confiscation of Proceeds of Crimes Act 1989 (NSW)

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Mill v R (1988) 166 CLR 59; [1988] HCA 70
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111