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District Court 28 April 2023

R v Sowaid

[2023] NSWDC 143

Drugs
CRIME SENTENCING BUGMY PRINCIPLES DE LA ROSA CONSIDERATIONS PARITY PRINCIPLES BACKDATING SENTENCE

Citation: R v Sowaid [2023] NSWDC 143
Court: District Court of New South Wales
Date: 28 April 2023
Judge: Fitzsimmons SC DCJ

Background

The offender was arrested in January 2022 following a police controlled operation targeting drug supply activity in the Waterloo area. On 7 November 2021, the offender participated in a transaction in which he carried a backpack containing five bottles of Gamma-Butyrolactone (GBL) to a meeting arranged by a co-offender. He handed over the backpack and received $17,500 as payment. The total weight of GBL across the five bottles was 4,943.4 grams, at purities ranging between 88.5% and 89.89%.

The quantity supplied was just above the large commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The offender was one of several co-accused, with co-offenders Karanouh and George also sentenced.

The offender pleaded guilty in the Local Court in December 2022 and maintained that plea at the sentence hearing in April 2023. He was entitled to the full 25% utilitarian discount for his plea. Subjective material before the court included a psychological report, letters from his parents, and Justice Health medical documents, all of which addressed his personal history and mental health.

  • What was the appropriate sentence for supply of a large commercial quantity of a prohibited drug, having regard to the offender's subjective circumstances?
  • How should the court apply the Bugmy principles (which direct that disadvantaged background and its continuing effects on moral culpability remain relevant throughout an offender's life) given the offender's traumatic upbringing and mental health issues?
  • How should the De La Rosa considerations (which address the structure of sentences for serious drug supply offences) inform the sentencing exercise?
  • What sentence was required to achieve parity with co-offenders, particularly Karanouh who was sentenced for the same offence but at a significantly higher quantity?
  • Were special circumstances established, justifying a reduction in the standard non-parole period?
  • Should the sentence be backdated to the date of arrest in January 2022?

Decision

The court found the offence to be serious, noting the large commercial quantity threshold and the $17,500 cash payment received by the offender. However, the court accepted strong subjective features in the offender's favour: a difficult and traumatic upbringing involving an abusive father, a history of significant polysubstance abuse, mental health issues, and involvement in the offending partly to fund his own drug use and repay drug and gambling debts. Applying the Bugmy principles, the court reduced the offender's moral culpability and the weight given to general deterrence on account of those mental health and background matters.

In conducting the parity analysis, the court compared the offender's position to co-offenders Karanouh and George. Karanouh was sentenced for supplying five times the threshold quantity and had a more significant criminal history. George was sentenced for the lesser supply offence at twice the threshold quantity. The court observed that, given the offender was being sentenced for the same offence as Karanouh but at a much lower quantity, a significant difference in sentence severity was warranted. The offender had no Form 1 matters, a limited prior record, and strong subjective features not shared by Karanouh.

The court found special circumstances existed, justifying a departure from the standard non-parole period ratio. The reasons included that this was the offender's first time in custody, his mental health needs, the value of rehabilitation being more accessible upon release, and the hardship of custody during the COVID-19 pandemic. Accordingly, the non-parole period was set at approximately 53% of the total sentence, rather than the standard two-thirds.

The court assessed the appropriate starting sentence at 5 years and 6 months. After applying the 25% guilty plea discount, this produced a final sentence of 4 years and 1 month. The sentence was backdated to 8 January 2022, the date of arrest, to account for time already spent in custody referable to the offence.

Orders Made

  • The offender was convicted of supply of a large commercial quantity of a prohibited drug.
  • A sentence of imprisonment of 4 years and 1 month was imposed, commencing 8 January 2022 and expiring 7 February 2026.
  • A non-parole period of 2 years and 2 months was imposed, expiring 7 March 2024.
  • The earliest date of eligibility for release to parole is 7 March 2024.

Key Takeaways

  • The Bugmy principles confirmed that the effects of a deprived or traumatic background on moral culpability do not diminish over time and remain a relevant mitigating factor throughout an offender's life, including in serious drug supply matters.
  • A guilty plea entered at the earliest available opportunity, and maintained through to the sentence hearing, attracted the full 25% utilitarian discount.
  • Parity analysis required the court to account not only for differences in the nature of the offence charged but also for differences in the quantity involved, criminal history, Form 1 matters, and subjective circumstances when comparing co-offenders.
  • Special circumstances sufficient to reduce the standard non-parole period were established where an offender was serving their first custodial sentence, had significant mental health needs, faced rehabilitation requirements better addressed post-release, and experienced the additional hardships of custody during the COVID-19 pandemic.
  • Under the sentencing framework, the standard non-parole period of 15 years for large commercial drug supply operates as a guidepost or reference point rather than a fixed floor, and the court may depart from it when the circumstances warrant.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A; s 3A

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Green v R; Quinn v R (2011) 244 CLR 462
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Hoskins v R [2021] NSWCCA 169
- Nasrallah v R [2021] NSWCCA 207
- Lloyd v R [2022] NSWCCA 18
- Rakielbakhour v DPP [2020] NSWSC 323
- Giang v R [2017] NSWCCA 25
- Huang v R [2017] NSWCCA 312
- Imbornone v R [2017] NSWCCA 144
- Parenta v R [2017] NSWCCA 284
- Taysavang v R; Lee v R [2017] NSWCCA 146
- NGO v R [2017] WASCA 3
- Koh v R [2013] NSWCCA 287
- R v Cheung; R v Choi (2010) 203 A Crim R 398
- R v Qutami [2001] NSWCCA 353
- Standford v R (2007) NSWCCA 73
- Paxton v R [2011] NSWCCA 242