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District Court 3 November 2023

R v El Farra

[2023] NSWDC 470

DrugsTheft & propertyPublic order & justice offences
CRIME DEEMED SUPPLY OF HEROIN, BUTANEDIOL PROCEEDS OF CRIME ATTEMPT TO STEAL MOTOR VEHICLE MENTAL HEALTH ISSUES CHILDHOOD TRAUMA

Citation: R v El Farra [2023] NSWDC 470
Court: District Court of New South Wales
Date: 3 November 2023
Judge(s): Newlinds SC DCJ

Background

A 46-year-old offender with an extensive criminal record dating back to 1994 appeared for sentencing on five charges arising from events in mid-2022. The charges included deemed supply of heroin and butanediol, possession of proceeds of crime ($19,395 in cash), and two offences arising from an attempted theft of a motor vehicle. The offender also asked the court to take into account additional offences on a Form 1.

The offender had spent approximately nine years in custody over his lifetime of offending, and was on parole at the time of his arrest on 26 July 2022. His counsel accepted that full-time imprisonment crossed the statutory threshold under section 5(1) of the Crimes (Sentencing Procedure) Act 1900, but pressed for an aggregate sentence of under three years to be served via an Intensive Corrections Order (ICO).

A central feature of the sentencing proceedings was evidence, disclosed for the first time, that the offender had been sexually abused by a teacher in childhood. A forensic psychologist's report, which the court accepted in full, linked that trauma to the offender's ongoing mental health conditions and his heroin addiction, which in turn explained his persistent offending history.

Legal Issues

  • Whether the $19,395 in cash seized was proved to be entirely the proceeds of crime, or whether the offender could contest the quantum without departing from his guilty plea.
  • How to assess the objective seriousness of multiple related drug supply offences and the motor vehicle theft offences, including whether those groups of charges should be considered collectively or individually.
  • Whether the offender's moral culpability was reduced by his mental health conditions and addiction, and whether general deterrence carried reduced weight in the circumstances.
  • Whether community safety would be better served by an ICO with treatment conditions or by full-time imprisonment.
  • How to calculate the commencement date of the sentence, given that the offender had been on parole when arrested.

Decision

Objective seriousness: Drug and proceeds offences

The court assessed the various drug supply offences together as one piece of criminal conduct. The offender was found to have operated as either a seller or short-term warehouseman of a significant quantity of illicit drugs for profit. The court placed the objective seriousness of these offences at around, though slightly below, the mid-range (at [27]). The proceeds of crime charge was treated as entirely bound up with the drug supply conduct and assessed similarly (at [32]).

Proceeds of crime: Contested quantum

The court heard evidence from the offender that only $6,640 of the seized cash was proceeds of drug sales, with the remainder attributed to gambling winnings and a collection of rare banknotes. The court rejected those explanations as entirely implausible following cross-examination, and found beyond reasonable doubt that the full $19,395 constituted proceeds of crime (at [31]).

Objective seriousness: Vehicle theft offences

The court declined to treat the amateurish execution of the attempted theft as reducing its objective seriousness. The attempt involved premeditation, forged legal documents, inspection of the vehicle, and the arrangement of a tow truck. The court held that the hopeless manner of commission had little, if any, bearing on objective seriousness, and placed these offences around the mid-range (at [36]-[39]).

Subjective case, moral culpability and rehabilitation

The court found the offender's moral culpability significantly reduced by his mental health condition, rooted in childhood trauma that had never previously been disclosed to treating practitioners or the courts (at [57]). Because of those mental health issues and his addiction, the court found the offender was not an appropriate vehicle for general deterrence (at [57]). The court accepted as genuine the offender's remorse and his engagement with buprenorphine treatment since February 2023, together with completion of rehabilitation courses in custody, as objective indicators of good rehabilitation prospects (at [59]-[64]). The court acknowledged that similar expressions of remorse had likely been made to other judges previously, but concluded that the belated disclosure of the childhood abuse represented a meaningful change in circumstances (at [52]-[53]).

Sentence calculation and ICO

Starting from an aggregate of five years, the court applied a 25% discount for early guilty pleas, reducing the sentence to three years and nine months. A further deduction of 14 months for time already served brought the aggregate head sentence to two years and seven months (at [79]-[83]). The court found that community safety would be better served by an ICO than by full-time incarceration, accepting that the offender's risk of reoffending would be lower if he received treatment in the community (at [86]-[87]).

Orders Made

  • The offender convicted of all charges to which he pleaded guilty; Form 1 matters taken into account.
  • Aggregate term of imprisonment of 2 years and 7 months, commencing 3 November 2023.
  • The sentence to be served by way of an Intensive Corrections Order, with conditions including:
  • No commission of any offence.
  • Supervision by a Community Corrections officer.
  • Contact with Community Corrections within seven days.
  • No restricted or prohibited drugs other than those prescribed by a medical practitioner.
  • Weekly sessions with an approved psychologist (reducible only with written permission).
  • Attendance at Narcotics Anonymous and Gamblers Anonymous meetings at least six times per week in total.
  • Continuation of depot buprenorphine treatment.
  • Such further treatment as advised by the treating psychologist or Corrections officer.
  • Sequences 13 and 14 (backup charges) withdrawn by the Crown.
  • $19,395 forfeited to the Crown.
  • Immediate release from custody ordered.

Key Takeaways

  • Where a sentencing court is satisfied that an offender's addiction and mental health conditions stem from serious childhood trauma, those matters can significantly reduce moral culpability and diminish the weight given to general deterrence as a sentencing objective, even where the offender has a lengthy criminal record (at [57]).

  • The District Court confirmed that the hopeless or amateurish manner in which a criminal attempt is executed has little or no bearing on the objective seriousness of that attempt; it is the planning, premeditation and nature of the conduct that drives the assessment (at [36]-[39]).

  • A sentencing court may proceed to determine a contested factual question about the quantum of proceeds of crime without resolving the underlying legal question of whether contesting that quantum amounts to a departure from a guilty plea, where the factual finding does not affect the sentencing outcome (at [29]).

  • Under sections 73 and 73A of the Crimes (Sentencing Procedure) Act 1900 and consistent with Stanley v DPP [2023] HCA 3 and Zheng v R [2023] NSWCCA 64, the paramount consideration when imposing an ICO is community safety, assessed by comparing whether the ICO or full-time detention is more likely to reduce the risk of reoffending (at [84]-[86]).

  • Periods of effective solitary confinement experienced during the COVID-19 pandemic rendered custody more onerous than ordinarily expected, and the District Court treated that as a relevant factor in mitigation when assessing the weight to be given to time already served (at [66]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1900 , ss 5(1), 21A(2), 21A(2)(d), 21A(2)(j), 21A(3)(k), 73, 73A, 73B

Cases
- Barbieri v R [2016] NSWCCA 295
- Bugmy v The Queen [2012] NSWCCA 223
- Cahyadi v R (2007) 168 A Crim R 41
- DPP v De La Rosa [2010] NSWCCA 194
- Luque v R [2017] NSWCCA 226
- Mandranis v R [2021] NSWCCA 97
- Markarian v The Queen (2005) 228 CLR 357
- Martin [2015] NSWCCA 6
- Miller v R [2023] NSW CCA 267
- R v Engert NSWCCA (20 November 1995 unreported)
- R v Holder; R v Johnson (1983) 3 NSWLR 245
- R v Letteri NSWCCA (18 March 1992 unreported)
- R v Sharma [2002] NSWCCA 142
- R v Van Ryn [2016] NSWCCA 1
- R v Way (2004) 60 NSWLR 168
- Stanley v DPP [2023] HCA 3
- Veen v The Queen (No 2) 1998 HCA 14
- Wong v The Queen (2001) 76 ALJR 76
- Yun v R [2017] NSWCCA 317
- Zheng v R [2023] NSWCCA 64