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District Court 3 December 2021

R v Ismail (No 2)

[2021] NSWDC 797

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

Citation: R v Ismail (No 2) [2021] NSWDC 797
Court: District Court of New South Wales
Date: 3 December 2021
Judge: Sutherland SC DCJ

Background

The offender was one of two delivery drivers operating a large-scale cocaine distribution network out of residential premises in Merrylands, Western Sydney, in early 2019. The operation ran 24 hours a day on a shift basis, servicing approximately 250 customers by telephone order. Police infiltrated the network over roughly six months and participated in around 100 purchases from either the offender or his co-driver.

The offender personally conducted 68 separate cocaine supplies totalling 121.92 grams. He was also found in possession of a locked Lexus vehicle containing 548 Valium tablets, 125 alprazolam (Xanax) tablets, and a suitcase holding ten pistols, eight of which were prohibited, all with obliterated serial numbers and all in working order.

This was the second set of sentencing remarks for the offender. The first, delivered on 30 July 2021, covered the co-offender and the factual background in detail. Sentencing of the offender had been adjourned under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow him to complete a residential rehabilitation program, which he did over approximately ten months and thirteen days.

  • The appropriate sentences for ongoing supply of cocaine (s 25A(1), Drug Misuse and Trafficking Act 1985), rolled-up supply of cocaine (s 25(1)), and possession of ten prohibited firearms, including Form 1 matters
  • The weight to be given to the offender's completion of a lengthy residential rehabilitation program as a mitigating factor
  • Whether the period spent in residential rehabilitation should be treated as a form of quasi-custody, reducing the sentence to be served
  • The identification of special circumstances justifying a reduction in the proportion of the sentence to be served before parole eligibility

Decision

Sutherland SC DCJ noted the apparent paradox in the charging structure: the ongoing supply charge, which covered only three supplies totalling 3.04 grams of cocaine, carried a higher maximum penalty (20 years) than the rolled-up charge reflecting 68 supplies and 121.92 grams (15 years). The court addressed each offence in accordance with its own maximum, treating the firearms possession as the most serious matter for the purpose of structuring the aggregate sentence.

The ten pistols were treated as a significant aggravating feature. All were in working order, all had obliterated serial numbers, and the collection included prohibited weapons capable of holding up to thirteen rounds each. The court found this was serious possession, connected to the drug supply context, and warranted a substantial indicative term.

The offender received a 25% discount on each indicative sentence, reflecting his early guilty plea. The court found special circumstances justifying a longer-than-standard parole period, pointing to the offender's genuine rehabilitation efforts, his first-time custody status, the extended delay caused by the s 11 adjournment, and the conditions in correctional institutions during the COVID-19 pandemic.

On the question of pre-sentence restrictions, the court allowed a nine-month backdating of the sentence commencement date. This combined one month and twenty-six days of actual custody with approximately seven months' credit for the substantial restrictions on the offender's movement during his residential rehabilitation program, consistent with the approach in R v McHugh (1985) 1 NSWLR 588.

Orders Made

  • Indicative sentence for ongoing supply (s 25A(1)): 2 years imprisonment (after 25% discount)
  • Indicative sentence for rolled-up supply (s 25(1)), including Form 1 matters: 3 years imprisonment (after 25% discount)
  • Indicative sentence for possession of ten firearms, including Form 1 matter: 7 years 6 months imprisonment, with an indicative non-parole period of 4 years (after 25% discount)
  • Aggregate head sentence: 9 years imprisonment
  • Non-parole period: 5 years (special circumstances found)
  • Sentence backdated by 9 months; commencement date 3 March 2021
  • Non-parole period expiry: 2 March 2026; balance of term expiry: 2 March 2030
  • Sequence 1 withdrawn

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the offence of ongoing supply carries a higher maximum penalty than a rolled-up supply charge under s 25(1), even where the quantity involved in the ongoing supply is significantly smaller.
  • Time spent in residential rehabilitation under restrictive bail conditions can attract partial credit against sentence, though not on a day-for-day basis with actual custody; the District Court allowed approximately seven months' credit for over ten months of such restrictions.
  • Possession of multiple prohibited firearms with obliterated serial numbers, all in working order, was treated as a seriously aggravating feature warranting a substantial indicative sentence, particularly in the context of an organised drug supply operation.
  • Special circumstances justifying a departure from the standard non-parole period ratio were established by the combination of first-time custody, demonstrated rehabilitation, sentencing delay arising from a s 11 adjournment, and the COVID-19 prison environment.
  • Where a sentencing court backdates a sentence to account for pre-sentence custody and quasi-custody, the approach in R v McHugh (1985) 1 NSWLR 588 supports formal backdating rather than informal allowance in the overall assessment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1), 36X(1)(a)
- Firearms Act 1996 (NSW), s 39(1)(a)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases
- R v McHugh (1985) 1 NSWLR 588
- R v Cartwright (1989) 17 NSWLR 243
- R v Qutami [2001] NSWCCA 353
- Mirza v R [2007] NSWCCA 272
- R v Brown [2006] NSWCCA 249
- Mack and Mack v R [2009] NSWCCA 216
- R v Jihad Mahmud [2010] NSWCCA 219
- Dionys v R [2011] NSWCCA 272
- R v Lachlan [2015] NSWCCA 178
- R v Imbornone [2017] NSWCCA 144
- Goldberg v The Queen [2018] NSWCCA 99
- Kelly v The Queen [2018] NSWCCA 44
- Taylor v The Queen [2018] NSWCCA 50
- R v Smith; R v Campbell [2018] NSWDC 293; [2019] NSWCCA 1
- R v Aird [2019] NSWDC 512
- R v Shannon [2019] NSWDC 942
- Weaver v The Queen [2020] NSWDC 556
- Weaver v R [2021] NSWCCA 215