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District Court 24 June 2022

R v Kochai

[2022] NSWDC 230

DrugsFraud & dishonesty
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG LARGE COMMERCIAL QUANTITY POSSESS PROHIBITED DRUG

Citation: R v Kochai [2022] NSWDC 230
Court: District Court of New South Wales
Date: 24 June 2022
Judge: Scotting DCJ

Background

The offender, a naturalised Australian citizen of Afghan origin, pleaded guilty to two charges: supplying a large commercial quantity of a prohibited drug (cocaine) and dealing with proceeds of crime (illegal tobacco). Both offences arose from a cross-border controlled operation in which an undercover operative conducted 25 meetings with the offender between September 2018 and July 2019.

Over that period, the offender supplied more than three kilograms of cocaine across six or seven transactions in exchange for cash and illegal cigarettes worth $587,500. He also purchased large quantities of illegal tobacco from the operative, knowing it was unlawful, in deals totalling approximately $860,000. The two streams of criminality were intertwined, with cocaine regularly exchanged as part payment for the tobacco.

The offender was arrested on 31 July 2019 in possession of 367.1 grams of cocaine at 70.5% purity, which he had intended to supply that day. He had been in custody continuously from the date of arrest.

Legal Issues

  • What was the appropriate head sentence and non-parole period for the supply offence and the instrument of crime offence, taking into account the plea discount, objective seriousness, and subjective circumstances?
  • Whether the offender's mental health history, including expert evidence from a psychiatrist and a psychologist, reduced his moral culpability at the time of the offences.
  • Whether the court should prefer the psychiatric evidence of Dr Nielssen or the psychological evidence of Mr Awit, given material inconsistencies in the histories the offender provided to each practitioner.
  • Whether special circumstances existed justifying a longer than usual ratio between the non-parole period and the head sentence.

Decision

Issue 1: Objective seriousness of the offences

The supply offence was serious. It involved cocaine supplied on seven separate occasions, amounting to approximately three times the large commercial quantity threshold, over roughly ten months (at [99]). The offending was planned and coordinated: the offender and the operative used coded language, multiple phones, and changed vehicles to evade detection (at [12], [99]). The total value of cocaine supplied was $587,500, with a further half-kilogram supply agreed at the time of arrest (at [99]). The court found that the offender had access to an upline supplier and was an active participant in a criminal organisation (at [99]).

The instrument of crime offence involved illegal tobacco valued at $860,000 and was intended to facilitate the serious drug supply (at [100]). Both offences extended over approximately ten months and the court emphasised that general deterrence carries significant weight for offences of this type (at [102]).

Issue 2: Mental health evidence and moral culpability

The court received competing expert reports. Dr Nielssen, a forensic psychiatrist, assessed the offender on three occasions starting two weeks after arrest and found no mental condition at the time of the offending. Mr Awit, a psychologist, assessed the offender approximately three years later and diagnosed several conditions, concluding that the offender's decision-making was impaired during the offending period (at [78]-[86]).

The court preferred Dr Nielssen's evidence (at [96]). The court found that the offender had tailored his account to Dr Nielssen when seeking bail, and then tailored a different account to Mr Awit to obtain a favourable report for sentencing (at [95]). The court was critical of Mr Awit's use of a self-reporting instrument over an extended historical period, noting it was designed for the week preceding administration and was likely to produce exaggerated results (at [87], [96]). The court accepted that the offender developed a mental condition in custody related to his heart attack and the conditions of incarceration during the pandemic, but did not accept that any mental condition impaired his decision-making at the time of the offences (at [97]-[98]).

Issue 3: Subjective circumstances and plea discount

The offender's guilty plea, entered in the District Court, attracted a 10% discount (at [4]). The court found no significant prior criminal history (at [105]) and assessed his prospects of rehabilitation as good, given strong family support and his apparent appreciation of the consequences of his conduct (at [106]). The court accepted that the offender expressed some remorse to his children and to Mr Awit, though it was not satisfied this met the formal statutory mitigating factor under the Crimes (Sentencing Procedure) Act 1999; the remorse was nonetheless treated as a mitigating consideration (at [107]).

Issue 4: Special circumstances and aggregate sentence

The court found special circumstances existed because this was the offender's first period of custody and his physical health conditions, including a heart attack and bladder complications, would be better managed in the community (at [116]). An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999. The indicative separate sentences were 9 years (supply, including the Form 1 matter) and 5 years (instrument of crime) (at [113]-[115]).

Orders Made

  • The offender was convicted.
  • An aggregate term of imprisonment of 10 years was imposed, with a non-parole period of 6 years.
  • Both the aggregate sentence and the non-parole period commenced on 31 July 2019.
  • The non-parole period expires on 30 July 2025; the head sentence expires on 30 July 2029.
  • The offender is eligible for release on parole on 31 July 2025.

Key Takeaways

  • The District Court declined to find that the offender's moral culpability was reduced by mental health conditions where the court was satisfied he had tailored different accounts to each expert practitioner to serve his own interests, first in bail proceedings and then in sentencing proceedings (at [95]-[96]).

  • Where an offender does not give evidence at a sentencing hearing and relies solely on histories provided to expert witnesses, a court should exercise very considerable caution in accepting those accounts, particularly where the accounts contain material inconsistencies (at [94]-[95]).

  • A psychologist's use of a validated self-reporting instrument (here, the DASS-21) to retrospectively assess a period approximately three years prior to administration may reduce the weight a sentencing court is prepared to give to the resulting opinion (at [87], [96]).

  • Special circumstances can be established where an offender is serving a first term of custody and has significant physical health conditions that would be better managed upon release into the community (at [116]).

  • Cocaine supply at three times the large commercial quantity threshold, conducted through an organised network using coded communications and counter-surveillance measures over ten months, will attract an emphasis on general and specific deterrence at sentencing (at [99], [102]-[103]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- R v Olbrich (1999) 199 CLR 270
- R v Qutami [2001] NSWCCA 353