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District Court 4 February 2022

R v Ismael

[2022] NSWDC 560

DrugsFraud & dishonestyFirearms & weapons
CRIME SENTENCE SUPPLY COMMERCIAL QUANTITY OF MDMA POSSESS UNAUTHORISED PISTOL DEALING WITH PROCEEDS OF CRIME

Citation: R v Ismael [2022] NSWDC 560
Court: District Court of New South Wales
Date: 4 February 2022
Judge: Bourke SC DCJ

Background

The offender pleaded guilty to three principal offences arising from a police search of a residential unit at Breakfast Point, Sydney, on 27 October 2020. Police attended the premises to execute a Firearms Prohibition Order search and, upon entry, observed the offender attempting to flush items down a toilet. A safe in the bathroom was open and contained a large quantity of cash and drugs.

The search uncovered 262.95 grams of MDMA in various forms scattered across the bathroom and an office area, a dismantled .45 calibre pistol (with a defaced serial number, found submerged in liquid in a Tupperware container), seven pistol rounds, and $102,850 in cash bundled with rubber bands. Additional drugs, including cocaine, diazepam, and gamma-Butyrolactone (GBL), were also seized and taken into account as further offences on Form 1 documents (that is, matters formally acknowledged by the offender and taken into account in the sentence without separate conviction).

The offender's DNA was found on a number of the seized items, including the firearm grip, the IKEA bag containing MDMA, the cocaine bag, and a GBL bottle.

  • What was the appropriate sentence for each of the three principal offences, having regard to objective seriousness, the standard non-parole periods, and the Form 1 matters?
  • What discount applied for the early guilty pleas?
  • Whether special circumstances existed to justify varying the standard ratio between the head sentence and non-parole period.
  • How the principles of totality and accumulation should be applied across the three discrete offences.

Decision

His Honour assessed the objective seriousness of the supply offence in light of the quantity of MDMA (262.95 grams, a commercial quantity) and the surrounding circumstances, including the packaging materials, the presence of multiple drug types, and the cash, which together suggested an organised commercial operation. General deterrence was identified as an important consideration in drug supply cases, consistent with the Court of Criminal Appeal's guidance in Parente v R.

The firearm offence attracted significant weight given that the pistol was in working order, its serial number had been defaced, and it was accompanied by matching ammunition. The proceeds of crime offence, involving over $102,000 in cash, was treated as a discrete example of criminal conduct that could not be directly linked to the other offences.

A 25 per cent discount was applied across all offences, reflecting the utilitarian value of the early guilty pleas. His Honour found special circumstances warranting a departure from the standard non-parole period ratio, citing the hardship and uncertainty of custody during the COVID-19 pandemic and the risk of institutionalisation given the offender's continuous period of remand.

On totality, His Honour applied limited accumulation between the three offences on the basis that each involved discrete criminality, while ensuring the overall sentence was not disproportionate.

Orders Made

  • Aggregate head sentence of 4 years and 10 months, commencing 27 October 2020 and expiring 26 August 2025.
  • Non-parole period of 3 years, commencing 27 October 2020 and expiring 26 October 2023.
  • Individual sentences making up the aggregate:
  • Supply commercial quantity of MDMA (with Form 1 matters): head sentence of 4 years 3 months, non-parole period of 2 years 7 months.
  • Possessing an unauthorised pistol (with Form 1 matter): head sentence of 2 years 9 months, non-parole period of 1 year 8 months.
  • Dealing with proceeds of crime: sentence of 18 months.
  • Forfeiture of the $102,850 in cash by consent order.

Key Takeaways

  • General deterrence remains a primary consideration in commercial drug supply sentencing, as the District Court confirmed by reference to established Court of Criminal Appeal authority in Parente v R.
  • A 25 per cent discount for a guilty plea at the earliest opportunity reflects the utilitarian value of that plea under the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances justifying a departure from the standard head-sentence-to-non-parole ratio can be established where an offender has served the entirety of their remand period under the conditions and uncertainty of the COVID-19 pandemic, and where there is a risk of institutionalisation.
  • Where multiple offences in a single sentencing exercise involve discrete and separate criminality, some degree of accumulation is appropriate, though totality principles operate to ensure the overall sentence remains proportionate.
  • The presence of aggravating features on a firearm charge, including a defaced serial number, a weapon in working order, and matching live ammunition, bears directly on the objective seriousness of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing)

Cases:
- Commonwealth DPP v De La Rosa [2010] NSWCCA 194
- Doudar v R [2021] NSWCCA 37
- Mbele v R [2021] NSWCCA 182
- Moodie v R [2020] NSWCCA 16
- Muldrock v R (2011) 244 CLR 120
- Parente v R [2017] NSWCCA 284
- Veen v R (No 2) (1988) 164 CLR 465