Citation: [2022] NSWDC 548
Court: District Court of New South Wales
Date: 11 November 2022
Judge: Scotting DCJ
Background
The offender, a 47-year-old Australian citizen born in Iraq, was a courier and warehouse operative within a drug supply syndicate run by Abdul Ali-Ahmed. The syndicate's primary customer was Kyle Thompson, and the offender made eight deliveries of prohibited drugs to Thompson's residence between November 2019 and March 2020, driving his own vehicle or vehicles arranged by Ali-Ahmed.
The offender was arrested on 19 March 2020 during the eighth delivery, when police stopped him in Molong and found nearly one kilogram of methylamphetamine concealed in a door cavity of the vehicle he was driving. A subsequent search of his residence uncovered nearly 87 kilograms of GBL, a prohibited drug also known as gamma butyrolactone.
The offender pleaded guilty to supply of a large commercial quantity of methylamphetamine (together with cocaine and heroin taken into account on a Form 1) and supply of a large commercial quantity of GBL. He appeared before the District Court for sentencing.
Legal Issues
- What sentence was appropriate having regard to the objective seriousness of large commercial quantity drug supply offences and the offender's role in the syndicate?
- To what extent did the offender's personal circumstances, including complex PTSD, trauma history, financial hardship and limited culpability, reduce his moral blameworthiness?
- How should parity with co-offenders, particularly Mr Pratt and Mr Khan, inform the sentence?
- Whether special circumstances existed justifying a non-parole period shorter than the statutory proportion of the head sentence.
Decision
Objective seriousness and the offender's role
Scotting DCJ found the offences involved some objective gravity. The total methylamphetamine supplied across eight trips over four months amounted to 4.5 kilograms, representing nine times the large commercial quantity of 0.5 kilograms (at [50]). The GBL found at the offender's residence, at 86.993 kilograms with purity between 92.5% and 99%, was more than 21 times the large commercial quantity of 4 kilograms (at [51]). The offender's role was that of a driver and warehouser acting under Ali-Ahmed's direction, with limited organisational involvement, but he did liaise with Thompson and Ali-Ahmed, drove long distances, collected money and stored drugs at his home (at [46]-[49]).
Moral culpability and personal circumstances
The court accepted that the offending occurred against a backdrop of significant deprivation and trauma. The offender had been imprisoned and tortured in Iraq in his youth, had lost his entire immediate male family to war, experienced homelessness and poverty in Australia, and suffered from complex PTSD, moderate depression and likely self-medication with illicit drugs (at [44], [52]). Scotting DCJ found these circumstances reduced the offender's moral culpability to some extent and that specific deterrence was accordingly reduced, though general deterrence remained a fundamental consideration for serious drug offences (at [52]-[55]).
Parity
The court found the offender's role was most comparable to co-offenders Pratt and Khan. Mr Pratt received an indicative sentence of 3 years and 9 months for the supply offence, and Mr Khan received 3 years for a commercial quantity supply (at [61]-[63]). Because the offender undertook more trips and supplied a greater quantity than Pratt, the court found him more culpable than Pratt and imposed a higher indicative sentence accordingly (at [64]).
Pleas of guilty and special circumstances
The offender received a 10% discount for his District Court guilty plea on the methylamphetamine count and 25% for his Local Court plea on the GBL count (at [4]-[5]). The court found special circumstances because the offender's mental health and addiction issues required an extended period of parole supervision, and because his time in custody had been especially difficult given his earlier imprisonment and torture in Iraq and the impact of the COVID-19 pandemic (at [70]).
Orders Made
- The offender is convicted.
- An aggregate sentence is imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999.
- Indicative sentences: supply of a large commercial quantity of methylamphetamine (with Form 1 matters): 4 years and 6 months with a non-parole period of 2 years and 3 months; supply of a large commercial quantity of GBL: 3 years with a non-parole period of 18 months.
- Aggregate term of 5 years imprisonment with a non-parole period of 2 years and 9 months, backdated to 19 March 2020; non-parole period expiring 18 December 2022; head sentence expiring 18 March 2025.
- The offender was eligible for release on parole on 18 December 2022.
- Sequences 1 and 3 (back-up offences on the section 166 Certificate) are withdrawn.
Key Takeaways
- A courier and warehouser who makes no share of syndicate profits and acts under direction can nonetheless attract substantial sentences where the quantities involved are many multiples of the large commercial quantity threshold, and where the offending is sustained over several months (at [46]-[51]).
- Significant personal trauma, including torture, complex PTSD and self-medication with prohibited drugs, can reduce an offender's moral culpability to some extent but does not displace the primacy of general deterrence in serious commercial drug supply cases (at [52]-[55]).
- Under the parity principle, a sentencing court will impose a higher sentence on a co-offender who undertook more deliveries and supplied a greater quantity of drugs than a comparable co-offender who received a lower sentence for similar conduct (at [64]).
- Special circumstances justifying a longer parole period can be established where an offender has complex mental health and addiction needs requiring extended supervision, particularly where custody itself has been unusually difficult due to prior trauma (at [70]).
- Guilty pleas entered at different court levels attract different discount rates: 10% for a District Court plea and 25% for a plea entered in the Local Court, reflecting the stage at which the matter was resolved (at [4]-[5]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985 ( NSW)
Cases
- Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
- R v Olbrich (1999) 199 CLR 270