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District Court 9 May 2022

R v NABIZADEH

[2022] NSWDC 150

Drugs
CRIME DRUGS MDMA METHYLAMPHETAMINE COCAINE SENTENCE PLEA OF GUILTY

Citation: R v Nabizadeh [2022] NSWDC 150
Court: District Court of New South Wales
Date: 9 May 2022
Judge: Lerve DCJ

Background

The offender, a 22-year-old man, was intercepted by Highway Patrol officers on the Sturt Highway near Wagga Wagga in March 2021 while driving a white Audi sedan. When police searched the vehicle, they discovered drugs concealed inside a spare tyre in the boot, packaged inside jeans and a tablecloth hidden within the tyre cavity. The offender produced a driver's licence in another person's name and declined to answer police questions throughout.

Analysis of the seized drugs revealed approximately 3 kilograms of MDMA, just over 2 kilograms of methylamphetamine, and 997 grams of cocaine. The accepted facts placed the offender's role as that of a courier, with no established involvement in packing the drugs or organising the transport beyond that role.

The offender pleaded guilty to two charges of supply prohibited drug in not less than the large commercial quantity (one for the MDMA, one for the methylamphetamine), with the cocaine matter dealt with on a Form 1 document (a procedure allowing related charges to be taken into account when passing sentence on the main charges, without a separate conviction). A further charge of driving whilst giving a false name was dealt with by way of conviction without additional penalty.

  • What was the appropriate objective seriousness of the offending, given the very large quantities of three different drugs and the offender's role as a courier?
  • Whether the planning involved reached the threshold of "substantial planning" under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 to constitute a statutory aggravating factor.
  • Whether the offending, committed while the offender was subject to a Community Corrections Order, enlivened the statutory aggravating factor under s 21A(2)(j) of the same Act.
  • What weight to give to the guilty plea, the offender's youth, personal circumstances, drug dependency, and prospects of rehabilitation.
  • Whether an aggregate sentence was appropriate, and if so, what non-parole period reflected any finding of special circumstances.

Decision

Lerve DCJ assessed the objective seriousness of both substantive matters as below the mid-range, though not significantly so. The MDMA charge was treated as slightly more serious given it involved six times the large commercial quantity, compared with four times for the methylamphetamine. Although the concealment method demonstrated some sophistication, the court was not satisfied beyond reasonable doubt that the planning rose to the level of "substantial planning" required to enliven the relevant statutory aggravating factor.

The court was satisfied that the offending was committed while the offender remained subject to conditional liberty in the form of a Community Corrections Order, enlivening the s 21A(2)(j) aggravating factor. The prior record, though limited, included prior drug supply offences, and the most recent Community Corrections Order expired only weeks before the present offending.

The offender's youth (22 at the time of offending), drug dependency, difficult personal history, and early guilty pleas were accepted as mitigating factors. A 25% discount was applied for the utilitarian value of the pleas, entered at the Local Court. The court found special circumstances justifying a non-parole period of approximately 54% of the total sentence, primarily due to the offender's age and the need for rehabilitation and supervision on release.

The cocaine matter on the Form 1, at 997 grams (only 3 grams short of the large commercial quantity), was treated as a serious matter in its own right and was required to have meaningful impact on the sentence for the charge to which it attached. Some minor partial accumulation of the two individual sentences was applied to reflect that three distinct and significant quantities of three different drugs were involved.

Orders Made

  • Aggregate sentence of 7 years and 6 months imprisonment, with a non-parole period of 4 years.
  • Non-parole period to commence 18 March 2021 and expire 17 March 2025; balance of term to expire 17 September 2028.
  • The court recommended release at the expiration of the non-parole period, subject to supervised parole with conditions requiring compliance with substance abuse treatment and counselling.
  • The driving with false name charge dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999: conviction recorded, no further penalty imposed.
  • Possess prohibited drug charges marked withdrawn/dismissed.
  • Drugs ordered to be destroyed.

Key Takeaways

  • A courier role does not, of itself, place drug supply offending at the low end of seriousness where the quantities are very large and the offender must have been trusted with near-six kilograms of three different illicit substances.
  • Where planning is evident from the method of concealment, a sentencing court must still be satisfied beyond reasonable doubt that the planning was "substantial" before the statutory aggravating factor under s 21A(2)(n) is enlivened. Sophisticated packaging alone did not meet that threshold here.
  • Offending committed while subject to a Community Corrections Order enlivens the s 21A(2)(j) aggravating factor, even where that order was only days away from expiry at the relevant time.
  • Under the Form 1 procedure, a matter that is itself a serious example of drug supply (here, 997 grams of cocaine) must have a meaningful, not merely nominal, impact on the sentence for the charge to which it is attached.
  • A finding of special circumstances permitting a reduced non-parole period relative to the total sentence was supported by the offender's youth, drug dependency, and the significant period of supervision and rehabilitation required upon release.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)(j), 21A(2)(n)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- The 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)
- Hili & Jones v The Queen [2010] HCA 45
- Brown v R [2014] NSWCCA 215
- Hung v R [2019] NSWCCA 303
- Mbele v R [2021] NSWCCA 182
- Parente v R [2017] NSWCCA 284
- R v Palu (2002) 134 A Crim R 174
- Toller v R [2021] NSWCCA 204
- Valentine v R [2020] NSWCCA 116