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District Court 24 January 2022

R v Osman

[2022] NSWDC 49

DrugsFirearms & weapons

Citation: R v Osman [2022] NSWDC 49
Court: District Court of New South Wales
Date: 24 January 2022
Judge(s): M L Williams SC DCJ

Background

The offender, a 31-year-old Australian resident of Lebanese background, pleaded guilty to three charges arising from his involvement in a cocaine supply syndicate operating across Sydney. The syndicate ran a call-centre-style drug delivery service, selling individual bags of cocaine for $300 each throughout the city. The principals of the syndicate had already been sentenced to lengthy terms of imprisonment, as had several "runners" lower in the hierarchy.

The offender occupied a middle position in the syndicate's structure. His registered vehicle was used by the syndicate for deliveries. He attended syndicate premises on multiple occasions, and surveillance footage captured him handling and bagging cocaine at a Bankstown property on 30 October 2019. When police executed a search warrant at his home on 4 November 2019, they located 32.5 grams of cocaine in his car and 13 rounds of shotgun ammunition in his bedroom.

The charges were: participating in a criminal group (Count 1, maximum five years imprisonment); knowingly taking part in the supply of a commercial quantity of cocaine, being more than 250 grams (Count 2, maximum 20 years with a standard non-parole period of 10 years); and supplying an indictable quantity of cocaine, being 32 grams (Count 3, maximum 15 years). A Form 1 matter for possessing ammunition without authority was attached to Count 2.

  • What was the offender's objective level of moral culpability within the syndicate, given his role between the principals and the runners?
  • What weight should be given to the mitigating factors, including good character, absence of prior convictions, guilty plea, remorse, and rehabilitation?
  • What aggregate sentence was appropriate across the three counts and the Form 1 matter?
  • Whether an Intensive Correction Order (ICO) served in the community was appropriate rather than full-time detention, having regard to community safety and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.

Decision

The court assessed the offender's role as sitting between the principals (who ran the syndicate) and the runners (who delivered drugs to customers). He was not a decision-maker and did not supply deal bags to runners. However, his registered vehicle was used in the operation, he attended syndicate premises on several occasions, and he was directly observed handling and bagging cocaine under direction from one of the principals. The court found his moral culpability to be meaningful, though not at the highest level.

On the agreed facts, the Crown could not establish that the offender knew the cocaine at the Bankstown premises exceeded the large commercial quantity threshold of 1,000 grams. The offender accepted, however, that he knew the quantity exceeded the commercial quantity threshold of 250 grams. The court proceeded on that basis for Count 2. The total cocaine found at the Bankstown address was 1,132 grams, but the plea was limited to the commercial quantity.

The subjective case was substantial and unchallenged. The offender had no prior convictions, held a university degree, was the first in his family to attend university, and had cared for an elderly ill father. He expressed genuine remorse in a detailed letter to the court. Since his arrest, he had tested negative for drugs, maintained pro-social associations, and returned to employment. A psychologist's report supported these findings. The court accepted a 5% discount for the utilitarian value of the guilty pleas.

The court indicated indicative sentences of 12 months for Count 1, 30 months for Count 2 (taking the Form 1 into account), and 3 months for Count 3, producing an aggregate of 34 months. The court expressed a preliminary inclination to impose an ICO rather than full-time detention, accepting the submission that community safety would not be endangered and that the risk of reoffending was better addressed by serving the sentence in the community. Because no sentence assessment report had been prepared, the matter was adjourned to allow Community Corrections Services to assess the offender's suitability for an ICO, including any community service condition.

Orders Made

  • Indicative aggregate sentence of 34 months imprisonment noted (not yet formally imposed pending ICO assessment).
  • Term of imprisonment stayed pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 pending completion of the sentence assessment.
  • Offender referred to Community Corrections Services (CCS) for a sentence assessment report, including suitability for a community service condition and an ICO generally, pursuant to s 17D(4) of the Crimes (Sentencing Procedure) Act 1999.
  • Offender directed to report to the Officer in Charge at Bankstown CCS by 5pm on Monday 31 January 2022.
  • Matter adjourned part-heard to Thursday 31 March 2022 at Newcastle District Court.
  • Bail continued.
  • Transcript of proceedings ordered.

Key Takeaways

  • A participant in a drug supply syndicate who is neither a principal nor a mere runner, but who attends premises, makes his vehicle available, and handles cocaine under direction, occupies an intermediate level of moral culpability that the sentencing court will assess carefully against co-offenders already sentenced.

  • Under s 17D(4) of the Crimes (Sentencing Procedure) Act 1999, a sentence assessment report from Community Corrections Services is a prerequisite before an ICO can be imposed, even where the court is otherwise inclined to make such an order.

  • The District Court confirmed, following Mandranis v R [2021] NSWCCA 97, that community safety requires consideration of both the likelihood of reoffending and which of an ICO or full-time detention would more effectively address that risk.

  • Agreed facts limiting what the Crown can prove beyond reasonable doubt directly constrain the charge on which sentence is imposed: here, the court could only sentence for a commercial quantity of cocaine (over 250 grams) rather than a large commercial quantity (over 1,000 grams), despite the total seizure exceeding that higher threshold.

  • A strong subjective case, including no prior convictions, genuine remorse, tertiary education, family responsibilities, post-arrest rehabilitation, and clean drug testing, remained relevant to sentence even for serious drug supply offences, and contributed to the court's provisional inclination toward an ICO.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93T (participate in criminal group)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2) (supply of prohibited drugs)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 17C, 17D, 66

Cases:
- 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)
- Mandranis v R [2021] NSWCCA 97 (ICO and community safety)
- R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519 (sentencing of syndicate principals)
- R v Hogan [2021] NSWDC 747 (runner co-offender)
- R v Naghdi [2021] NSWDC 635 (runner co-offender)
- R v Wu [2021] NSWDC 634 (runner co-offender)
- R v Edwards (1996) 90 A Crim R 510