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District Court 6 October 2022

R v Nehme; R v Suleski

[2022] NSWDC 693

Drugs
CRIME ROLLED UP DRUG QUANTITIES FORFEITURE ORDERS SENTENCING RELEVANT FACTORS ON SENTENCE ROLLED UP DRUG QUANTITIES FORMS 1

Citation: R v Nehme; R v Suleski [2022] NSWDC 693
Court: District Court of New South Wales
Date: 6 October 2022
Judge: Haesler SC DCJ

Background

Two young men, referred to here by their roles as the first offender (Nehme) and the second offender (Suleski), each pleaded guilty to three counts of supplying a large commercial quantity of prohibited drugs under s 25(2) of the Drug Misuse and Trafficking Act 1985. The drugs involved were cocaine, methylamphetamine, and MDMA. Each offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

Between October and November 2020, the two offenders participated in a series of five completed drug supply transactions with an undercover police witness, arranged through an encrypted messaging application by an unidentified organiser known as "the Godfather." The offenders appear to have operated at the bottom of the supply hierarchy. Suleski transported the drugs and received payment, while Nehme acted as the intermediary in the physical handovers. A sixth transaction was arranged but the offenders were arrested before it was completed.

The quantities charged against each offender were "rolled up," meaning the total amounts from multiple transactions were aggregated into single counts by drug type. The combined transactions involved over $500,000 in agreed payments, though the final and largest transaction, worth approximately $266,800, was never finalised. Additional drugs and cash were found at each offender's premises and vehicle on arrest, and cannabis supply and proceeds of crime matters were placed on Forms 1 (that is, matters taken into account at sentencing without separate conviction).

  • How the rolled-up drug quantities should be approached when fixing an aggregate sentence for three offences charged simultaneously
  • What weight to give the standard non-parole period of 15 years for each count, given the quantities were at or near the statutory minimum for the large commercial category
  • Whether and to what extent non-exculpatory duress (raised by Nehme) mitigated his sentence
  • Whether Suleski's deprived background constituted a mitigating factor
  • How parity between the two co-offenders should be maintained while still reflecting individual differences in their circumstances
  • Whether special circumstances existed to justify adjusting the ratio of non-parole period to total sentence
  • The making of forfeiture orders over cash found in each offender's possession

Decision

Haesler SC DCJ approached the three charges as involving a single course of criminal conduct, differentiated only by drug type. Because all three supplies occurred simultaneously on each occasion, no single charge could capture the full criminality of what occurred. The court imposed an aggregate sentence for each offender, with the individual indicative sentences for each count set at 3 years and 9 months with a non-parole period of 2 years and 5 months, before rounding in each offender's favour.

Each offender received a 25% discount on sentence for early guilty pleas entered in the Local Court. The court found that the drug quantities, while at the lower end of the large commercial category, still represented serious offending involving organised criminal activity, encrypted communications, and repeated transactions. The fact that the operation was a police sting rather than a genuine commercial transaction provided no mitigation.

Nehme raised non-exculpatory duress, meaning he claimed he was under pressure to participate but the duress did not rise to the level of a complete legal defence. The court accepted this as a mitigating factor, though one of limited weight. Suleski's deprived background was similarly accepted as relevant to his moral culpability. The court found special circumstances in relation to both offenders, justifying a non-parole period that represents a lesser proportion of the total term than the statutory default, given the need for extended supervision on release.

The court observed the principle of parity between co-offenders but allowed a modest difference in outcome to reflect their differing subjective circumstances and criminal antecedents. Both ultimately received the same aggregate sentence of 5 years and 6 months, though with slightly different non-parole periods reflecting their different dates of entry into custody.

Orders Made

  • Nehme: aggregate sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 3 months commencing 16 May 2021; eligible for parole consideration from 15 August 2024; balance of term expiring 15 November 2026.
  • Suleski: aggregate sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years commencing 14 May 2021; eligible for parole consideration from 13 May 2024; balance of term expiring 13 November 2026.
  • Drug proceeds order against Nehme in favour of the State of New South Wales in the sum of $5,775.
  • Drug proceeds order against Suleski in favour of the State of New South Wales in the sum of $4,875.

Key Takeaways

  • Rolled-up drug quantities aggregated across multiple transactions will expose offenders to the maximum penalty applicable to the total combined amount, even if individual transactions would have attracted lower penalties when considered separately.
  • Where offences are charged by drug type but arose from the same conduct, no single charge captures the full criminality; an aggregate sentence must reflect the totality of the offending rather than simply the most serious individual count.
  • Non-exculpatory duress, which falls short of a complete defence, can still be accepted as a mitigating factor going to moral culpability, though the court confirmed its weight is limited.
  • The District Court treated the standard non-parole period of 15 years as a significant benchmark requiring engagement, while recognising that individual subjective circumstances, including background, plea, and role in the hierarchy, may justify meaningful departures from it.
  • Parity between co-offenders does not require identical outcomes where their personal histories and circumstances differ; the court may allow modest variation while maintaining broadly comparable sentences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Forms 1 provisions
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases:
- Giang v R [2017] NSWCCA 25
- Lindsay v R [2012] NSWCCA 124
- R v Ceissman [2004] NSWCCA 466
- R v Z [2005] 2 AC 167
- Tiknius v R [2011] NSWCCA 215