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District Court 13 July 2023

R v El-Rifai

[2023] NSWDC 264

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG

Citation: R v El-Rifai [2023] NSWDC 264
Court: District Court of New South Wales
Date: 13 July 2023
Judge: Scotting DCJ

Background

The offender, a 29-year-old man residing in Bankstown, appeared for sentencing after pleading guilty in the Local Court to several drug supply offences. Police executed a search warrant at his residence on 25 May 2022, locating significant quantities of methylamphetamine, heroin, and 1,4-butanediol (a compound metabolised in the body to GHB), along with cash and drug paraphernalia.

The offender had a difficult personal history marked by bullying, a sexual assault by a teacher at age 16, and a long-standing and escalating pattern of substance abuse. At the time of the offending, he was using cocaine and GHB daily and reported being under pressure from a supplier to repay accumulated drug debts.

The sentencing proceedings addressed the appropriate penalty across multiple drug supply charges, with additional offences taken into account on a Form 1 schedule.

Legal Issues

  • What aggregate sentence was appropriate for multiple drug supply offences, including possession of amounts well above commercial quantities?
  • To what extent did the offender's mental health conditions and personal history reduce his moral culpability?
  • Whether special circumstances existed to justify a longer parole period relative to the non-parole period
  • What weight should be given to the offender's guilty plea, remorse, rehabilitation prospects, and the need for general and specific deterrence?

Decision

Objective Seriousness of the Offences

The court assessed the offending as involving a drug supply operation offering a variety of prohibited drugs from the offender's family home. The 151 grams of methylamphetamine seized was approximately 30 times the indictable quantity (at [42]), and the 7.9033 kilograms of 1,4-butanediol was almost double the large commercial quantity, with a purity of 84 to 85.5% (at [44]). The drugs were packaged consistently with wholesale rather than retail supply, and the offender held $12,600 in cash reasonably suspected of being illegally obtained (at [41]). The court noted a relatively low degree of planning and organisation (at [41]).

Moral Culpability and Mental Health

The court found a causal connection between the offender's mental health conditions and his offending, reducing his moral culpability (at [45]). The psychologist's report diagnosed the offender with Complex PTSD, Mixed Anxiety and Depressive Disorder, and Substance Dependence Disorder, and concluded that his judgment was markedly impaired by these conditions (at [39]). His difficult childhood, including bullying and sexual assault at age 16, directly contributed to the development of serious and longstanding substance use (at [25]-[26], [45]).

Deterrence and Aggravating Factors

The court emphasised that general deterrence is a fundamental consideration in serious drug offences (at [47]). Specific deterrence was also necessary given the offender's prior criminal history and two drug-related misconduct charges incurred while in custody (at [48]). The court treated the offender's conditional liberty at the time of the offending as an aggravating factor, noting he was subject to both a Community Corrections Order and a parole order (at [49]).

Plea, Remorse, and Rehabilitation

The offender received a 25% discount on sentence for his guilty plea entered in the Local Court (at [5]). The court accepted his expressions of remorse as genuine and found he had accepted responsibility for his actions (at [51]). A finding of special circumstances was made, with the court satisfied that the offender's serious drug problem and complex mental health needs warranted a longer period of post-release supervision (at [56]).

Orders Made

  • The offender is convicted.
  • An aggregate sentence of 4 years and 6 months imprisonment is imposed, with a non-parole period of 2 years and 9 months, backdated to 25 August 2022.
  • The non-parole period expires on 24 May 2025; the head sentence expires on 24 February 2027.
  • The offender is eligible for release on parole on 24 May 2025.
  • No further action is taken on the breach of the Community Corrections Order imposed on 26 May 2021.
  • Confiscation orders made as signed by the court.

Key Takeaways

  • A causal connection between an offender's diagnosed mental health conditions (including Complex PTSD and Substance Dependence Disorder arising from childhood trauma and sexual assault) and their offending can reduce moral culpability in serious drug supply matters, even where the objective seriousness of the offending remains significant (at [45]).

  • Under the Crimes (Sentencing Procedure) Act 1999, a guilty plea entered in the Local Court attracts a 25% discount on sentence (at [5]).

  • Where an offender has a serious drug problem and complex mental health needs, the District Court may make a finding of special circumstances to extend the ratio of the parole period to the non-parole period, facilitating longer post-release supervision and structured rehabilitation (at [56]).

  • Offending committed while subject to both a Community Corrections Order and a parole order constitutes an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (at [49]).

  • In fixing facts for sentencing, findings adverse to an offender must be established beyond reasonable doubt, while findings favourable to the offender need only be established on the balance of probabilities, consistent with R v Olbrich (1999) 199 CLR 270 (at [3]).

Legislation and Cases Referenced

Legislation
- Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Drugs Misuse and Trafficking Act 1985

Cases
- R v Olbrich (1999) 199 CLR 270