Citation: R v Rabieh [2023] NSWDC 436
Court: District Court of New South Wales
Date: 1 September 2023
Judge: Bourke SC DCJ
Background
Following a 14-day jury trial, the offender was convicted on two counts of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine, and one count of possessing proceeds of crime totalling $264,750. The offender and her then-husband had migrated from Iran and settled in Sydney, where they ostensibly lived on Centrelink benefits while importing charcoal from Thailand through a company of which the offender was sole director.
Police surveillance revealed that the charcoal importations were a cover for concealing methylamphetamine inside wooden pallets. In February 2018, police recorded conversations between the offender and her husband on his return from Thailand, in which they discussed the safety of the drugs stored at their Asquith premises, the sharing of profits, and preparations for further distribution.
When police searched the Asquith apartment shortly after, they found 2.668 kilograms of methamphetamine in a child's bedroom, over 30 kilograms in a caged garage area, and $264,750 in cash, much of it bundled in the main bedroom. DNA linking the offender to the inner shopping bag holding the drugs in the bedroom formed part of the physical evidence against her.
Legal Issues
- What facts could be established for sentencing purposes, consistently with the jury verdicts, and to the applicable standards of proof?
- Whether the Crown had proved beyond reasonable doubt that the full 30.6 kilograms of methylamphetamine seized from the garage was the quantity actually found there, given the absence of the first attending officer's evidence.
- What sentence was appropriate, having regard to the objective seriousness of the offending, the offender's role, and subjective factors including hardship to her family.
- Whether the offender should be granted bail pending any appeal against conviction or sentence.
Decision
On the factual findings, the court was satisfied that the offender was well aware of the methylamphetamine stored at the premises and was actively involved in the enterprise. The recorded conversations, considered alongside the physical evidence, demonstrated that she confirmed the drugs were safe, held the keys to the storage area, and discussed profit-sharing arrangements. The court rejected as speculation any suggestion that the drug quantities were inflated or that the evidence had been interfered with, notwithstanding that the first officer on the scene was not called to give evidence due to his prior discharge from police.
On the continuity issue concerning the 30.6 kilogram garage seizure, the court noted that defence counsel had conceded at trial that the evidence established a quantity exceeding 900 grams from that area, well above the large commercial threshold of 500 grams. The court found nothing beyond speculation to undermine the Crown's evidence that the full 30.6 kilograms came from that location, and proceeded on that basis.
In assessing the appropriate sentence, the court considered the maximum penalty of life imprisonment and the standard non-parole period of 15 years for the principal counts. The offender's role was not characterised as a peripheral or subordinate one. The court weighed her subjective circumstances, including the impact of imprisonment on her two daughters, against the objective gravity of large-scale commercial drug supply. Hardship to an offender's family is a recognised mitigating factor but carries limited weight given the serious nature of the offending.
The court refused the application for bail pending appeal. It found that the Crown case had been very strong, the prospects of success on appeal against conviction were slim, and the sentence imposed was, if anything, on the more lenient end of the range for comparable cases.
Orders Made
• The application for appeals bail pursuant to s 62 of the Bail Act is refused.
Key Takeaways
- Recorded conversations translated from Farsi formed a central part of the factual findings at sentence; where translation disputes arose, the court resolved them by reference to context rather than the precise word used.
- A concession made by defence counsel during trial that a quantity exceeding the relevant threshold had been proved carried forward into the sentencing proceedings and limited the scope of later argument on that issue.
- Family hardship, while a recognised mitigating factor under the sentencing principles affirmed in cases such as Bugmy v The Queen, carries reduced weight when weighed against offending of the scale involved in large commercial drug supply.
- Refusing bail pending appeal, the District Court emphasised that bail under s 62 of the Bail Act requires more than a notice of intention to appeal; arguable grounds of error must be identified, and an apparently strong Crown case significantly undermines the requisite threshold.
- DNA evidence linking an offender physically to drug packaging, combined with surveillance recordings showing knowledge of and participation in the drug operation, provided a substantial factual basis for findings of active involvement rather than mere presence.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Bail Act (NSW), s 62
Cases:
- Bugmy v The Queen (2013) 241 CLR 571
- Commonwealth Director of Public Prosecutions v De La Rosa (2010) 273 ALR 324
- Fato v R [2017] NSWCCA 190
- Le v R [2006] NSWCCA 136
- Melikian v R [2008] NSWCCA 156
- Nasrallah v R [2021] NSWCCA 207
- R v Edwards (1996) 90 A Crim R 510
- R v Nguyen [2006] NSWCCA 369
- R v Togias (2001) 127 A Crim R 23