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District Court 30 July 2021

R v Ismail; R v Bakri (No 1)

[2021] NSWDC 796

DrugsFirearms & weapons
CRIME SENTENCE S 25(1) DRUG MISUSE AND TRAFFICKING ACT “DIAL DEALER” ONGOING SUPPLY OF COCAINE

Citation: R v Ismail; R v Bakri (No 1) [2021] NSWDC 796
Court: District Court of New South Wales
Date: 30 July 2021
Judge: Sutherland SC DCJ

Background

In early 2019, police in south-western Sydney uncovered a sophisticated 24-hour cocaine distribution operation run out of residential premises in Merrylands. The operation functioned like a delivery business: customers telephoned a designated "run phone" to place orders, and drivers then delivered cocaine by car to agreed meeting points. The customer base numbered around 250 people, and drivers worked in rotating shifts, handing over cash, ledgers, and stock at changeovers.

Two delivery drivers, the offenders in this matter, operated the same run phone and vehicle over several months. Each made numerous cocaine supplies in the Merrylands, Guildford, and Granville areas, with individual sales typically involving a half-gram for $200. Police intercepted phone communications from March 2019 and later deployed an undercover operative who made controlled purchases from each offender.

Both offenders ultimately pleaded guilty to a rolled-up single supply charge (covering the bulk of their deliveries) and a separate ongoing supply charge (covering three supplies each to the undercover operative within a 30-day period). Additional matters, including possession of cocaine, proceeds of crime, being found on drug premises, and, in one offender's case, possession of ten firearms, were placed on a Form 1 or otherwise dealt with ancillary to the principal charges.

  • What aggregate sentences were appropriate for each offender's supply and ongoing supply offences, given their roles as couriers rather than operators?
  • Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (requiring that no other penalty be appropriate before imprisonment is imposed) was crossed.
  • Whether, in the particular circumstances of each offender, the term of imprisonment should be served by way of an Intensive Correction Order (ICO) rather than full-time custody.
  • What weight should be given to rehabilitation undertaken during a Griffiths remand period, guilty pleas, and time spent on bail or in pre-sentence custody?

Decision

Both offenders were below-mid-range in objective seriousness, given their roles as delivery drivers rather than organisers or operators of the network. The court drew on recent Court of Criminal Appeal authority, including R v Mandramas [2021] NSWCCA 97, which addressed the rarity of non-custodial outcomes for significant drug supply involvement and the proper application of s 7(1) of the Crimes (Sentencing Procedure) Act 1999 to ICO eligibility.

The court was satisfied in both cases that the s 5 threshold was crossed and that full-time custody would ordinarily follow. However, both offenders had undertaken meaningful rehabilitation during an extended period on bail following a Griffiths remand, and both received strong support from family members and treating professionals. The court indicated it was "extremely impressed" by the steps each had taken.

Each offender received a 25 per cent reduction in sentence for their guilty pleas. The court took into account pre-sentence custody, the extended bail period, and the Form 1 matters in arriving at aggregate terms. Indicative sentences were identified for each principal offence before arriving at the aggregate figures.

For Mr Bakri, the court directed that a 30-month term be served by way of an ICO, citing his rehabilitation trajectory, suitability for community service work, and the support of his prospective employer and treating psychologist. The court considered community safety as the paramount consideration before making that direction. The sentencing of Mr Ismail appears to have been resolved in the same proceeding but the detail of his final orders is not fully reproduced in the available text.

Orders Made

Mr Bakri:
- Convicted on all charges.
- Sentenced to an aggregate term of 30 months imprisonment (reflecting a 25 per cent discount for guilty pleas), with indicative sentences of 15 months for ongoing supply and 20 months for the cumulative supply count.
- Term directed to be served by way of an Intensive Correction Order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing on the date of sentence.
- Required to report to the Community Corrections Office at Fairfield (initially by telephone) within seven days.
- Standard ICO conditions imposed, including no further offending and submission to supervision by a Community Corrections Officer.
- Community service work condition imposed (assessed as suitable).
- Confiscation order made pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW): $725 cash forfeited to the State, with leave granted under s 19(3)(a) for immediate disposal.

Mr Ismail:
- Bail continued on previous terms following sentence.

[Full orders for Mr Ismail are not completely reproduced in the provided text.]

Key Takeaways

  • The District Court confirmed that couriers operating within a structured drug distribution network, while lower in the hierarchy than organisers, still attract custodial sentences as a matter of course, with non-custodial outcomes remaining rare.
  • Under R v Mandramas [2021] NSWCCA 97, community safety is the paramount consideration when a court evaluates whether imprisonment should be served by way of an ICO, but substantial rehabilitation is a relevant and potentially determinative factor in that assessment.
  • The "ongoing supply" offence under s 25A of the Drug Misuse and Trafficking Act 1985 is constituted by three or more supplies within 30 consecutive days. Here, even small-quantity controlled purchases by an undercover operative were sufficient to ground the charge, which carries a maximum of 20 years imprisonment, higher than the 15-year maximum for a single supply offence under s 25(1).
  • A rolled-up single charge covering many discrete supplies can result in a lower maximum penalty than the ongoing supply charge, even where the aggregate quantity involved is far greater, reflecting the specific statutory structure rather than proportionality to overall criminality.
  • Genuine rehabilitation undertaken during a Griffiths remand, evidenced by professional assessments and family support, can influence the mode of serving a custodial sentence, even in cases involving serious drug supply offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1), 36X(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1)
- Crimes Act 1900 (NSW), s 193C(2)
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19(3)(a)
- Poisons and Therapeutic Goods Act 1966 (NSW)

Cases:
- R v Mandramas [2021] NSWCCA 97
- R v Pullen [2018] NSWCCA 264
- Parente v R [2017] NSWCCA 284
- Robertson v R [2017] NSWCCA 205
- R v Rayment [2010] NSWCCA 85; 200 A Crim R 48
- R v Brown [2009] NSWCCA 6; 193 A Crim R 574
- R v Kairouz [2005] NSWCCA 247
- R v Trindall [2002] NSWCCA 364; 133 A Crim R 119