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District Court 28 April 2023

R v Karanouh

[2023] NSWDC 142

Drugs
CRIME SENTENCING PARITY PRINCIPLES BACKDATING SENTENCE

Citation: R v Karanouh [2023] NSWDC 142
Court: District Court of New South Wales
Date: 28 April 2023
Judge: Fitzsimmons SC DCJ

Background

The offender pleaded guilty to one charge of supplying a prohibited drug (Gamma-Butyrolactone, commonly known as GBL) in a quantity not less than the large commercial quantity, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is life imprisonment, with a standard non-parole period of 15 years.

The charges arose from a police strike force operation targeting drug supply activity in Sydney's inner south in late 2021. Over a period of approximately seven weeks, the offender supplied GBL on multiple occasions to an authorised police witness, with the total quantity across the principal offence and related matters running to several kilograms. Two co-offenders, referred to as George and Sowaid, were also charged in connection with the same operation.

The offender was arrested on 14 December 2021 and remained in custody from that date. At sentencing, the court also considered five additional offences, including further supply charges and dealing with proceeds of crime, which the offender asked to be taken into account on a Form 1 (a procedural mechanism allowing related offences to be acknowledged at sentencing without separate conviction).

  • What sentence was appropriate having regard to the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should the parity principle apply when sentencing the offender relative to his co-offenders, George and Sowaid?
  • Did special circumstances exist justifying a departure from the standard ratio between the non-parole period and the total sentence?
  • Should the sentence be backdated to the date of arrest to account for time already spent in custody?
  • What weight should be given to the Form 1 offences when determining the overall penalty?

Decision

The District Court assessed the principal offence as serious, noting the quantity supplied exceeded the large commercial threshold and that the offending occurred across multiple transactions over several weeks. The offender's criminal history was more significant than that of his co-offenders, and the court found that the more favourable subjective features present for George and Sowaid (including a conditional release order in their cases) were absent here. The court treated remorse as genuine and assessed prospects of rehabilitation as good.

Applying parity principles, the court arrived at a pre-discount sentence of 9 years. After applying the full 25% utilitarian discount for the early guilty plea, the sentence became 6 years and 9 months. The five Form 1 offences, including further supply charges and proceeds of crime dealings, warranted a slight upward adjustment to what would otherwise have been the appropriate sentence for the principal offence alone.

Special circumstances were found to exist, justifying a reduction in the standard non-parole period. The court identified three contributing factors: the offender's need for rehabilitation better supported through programs outside custody, significant hardship caused by the COVID-19 pandemic during incarceration, and the personal distress of being imprisoned while his father was unwell. Because this was not the offender's first time in custody and his subjective circumstances were less compelling than those of the co-offenders, the reduction in the non-parole period was more modest by comparison.

The sentence was backdated to 14 December 2021, the date of the offender's arrest, to account for all time spent in custody referable to the offence.

Orders Made

  • The offender is convicted of the charge to which he pleaded guilty.
  • A sentence of imprisonment of 6 years and 9 months is imposed, commencing 14 December 2021 and expiring 13 September 2028.
  • A non-parole period of 4 years and 7 months is imposed, expiring 13 July 2026.
  • The earliest date the offender is eligible to apply for release on parole is 13 July 2026.

Key Takeaways

  • The District Court applied the parity principle by comparing the offender's moral culpability, criminal history, and subjective circumstances directly against those of his co-offenders, producing a higher overall sentence where the offender's circumstances were less favourable.
  • A 25% utilitarian discount for an early guilty plea was applied to a charge carrying a maximum of life imprisonment, reducing the sentence from 9 years to 6 years and 9 months.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can arise from a combination of rehabilitation needs, pandemic-related hardship, and personal distress experienced during custody, even where those circumstances are less significant than those of co-offenders.
  • Form 1 offences (including additional drug supply and proceeds of crime charges) resulted in only a slight increase to the principal sentence, consistent with the requirement to avoid double punishment while still acknowledging the additional criminality.
  • Backdating a sentence to the date of arrest is the appropriate mechanism for ensuring that pre-sentence custody referable to the relevant offence is credited against the term imposed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, ss 3A, 21A(2)
- Crimes Act 1900 (NSW), s 193C

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Filippou v R [2015] HCA 29; 256 CLR 47
- Green v R; Quinn v R (2011) 244 CLR 462
- KR v R [2012] NSWCCA 32
- Petkos v R [2020] NSWCCA 55
- Pham v R [2013] NSWCCA 217
- Rakielbakhour v DPP [2020] NSWSC 323
- Roberts (pseudonym) v R [2019] NSWCCA 102
- R v DW [2012] NSWCCA 66
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Shankley [2003] NSWCCA 253
- Tepania v R [2018] NSWCCA 247
- Wat v R [2017] NSWCCA 62