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District Court 9 November 2023

R v Korhani

[2023] NSWDC 610

Drugs
CRIME SENTENCE GBL

Citation: R v Korhani [2023] NSWDC 610
Court: District Court of New South Wales
Date: 9 November 2023
Judge: Bourke SC DCJ

Background

The offender, a man aged 25 at sentencing (23 at the time of the offence), was convicted by jury of supplying a large commercial quantity of gamma-butyrolactone (GBL), a prohibited drug. The conviction followed a trial in late August and early September 2023.

The offence occurred on 17 November 2021. Police were conducting an undercover investigation into a drug supply network operating in Sydney. The offender supplied approximately 4,918 grams of GBL to a co-offender, who then on-sold it to an undercover police officer in exchange for $17,500 cash. The offender travelled by taxi to the co-offender's Waterloo apartment, delivered the drugs, and returned to Bankstown shortly after.

At the time of the offence, the offender had only that morning been dealt with in the Local Court for separate drug possession matters, meaning he was on conditional liberty (bail) when he agreed to and arranged the supply.

  • What were the objective facts for sentencing purposes, consistent with the jury's verdict?
  • How serious was this particular instance of the offence relative to the statutory maximum and standard non-parole period?
  • What weight should be given to the offender's subjective circumstances, including age, mental health diagnoses, and background?
  • Whether special circumstances existed to justify a departure from the standard ratio between head sentence and non-parole period.
  • Whether the sentence was proportionate and consistent with sentences imposed on related offenders, having regard to parity principles.

Decision

Objective seriousness. The District Court assessed the objective seriousness of the offence as slightly below mid-range. The quantity of GBL supplied (4,918 grams) exceeded the large commercial threshold of 4,000 grams only marginally, though it was of high purity (82 to 88 percent). The offender acted as an intermediate supplier to the co-offender, a role more serious than a bare courier but below that of a principal. His ready ability to source the requested quantity on one day's notice indicated the conduct was not an isolated aberration, though his sentence was confined to the specific supply on 17 November 2021.

Aggravation. The offending was aggravated by the fact that the offender was on conditional liberty at the relevant time, having been on bail until that very morning.

Subjective circumstances. The offender's psychologist diagnosed ADHD, anxiety disorder, major depressive disorder, substance use disorder, and gambling disorder. The court noted the diagnoses were not based on psychometric testing. Evidence of the offender's difficult upbringing, including childhood exposure to domestic violence, refugee background, and lack of parental support, was accepted. The offender had no prior significant criminal history, and this was his first period of full-time custody.

Parity and special circumstances. The court had regard to sentences imposed on related offenders by another judge, applying parity principles from Green v The Queen, and aimed to avoid creating a justifiable sense of grievance. The court found special circumstances, justifying an adjustment to the standard ratio between the head sentence and non-parole period, based on the offender's youth, his first period of full-time custody, and the need for extended supervised reintegration given his drug use and personal history. The court also took into account the adverse impact of COVID-19 conditions during his remand period.

Orders Made

  • Head sentence of 5 years and 3 months imprisonment, commencing 10 September 2022, expiring 9 December 2027.
  • Non-parole period of 3 years and 4 months, expiring 9 January 2026.
  • Pre-sentence custody of 425 days taken into account in fixing the commencement date.

Key Takeaways

  • The District Court assessed an offender's role as an intermediate supplier of GBL as more serious than a mere courier but less serious than a principal, and this role assessment directly informed the objective seriousness finding.
  • Where a quantity only marginally exceeds the large commercial threshold, that proximity to the threshold is a relevant factor in calibrating objective seriousness, even when purity is high.
  • A finding of special circumstances was available based on the combination of the offender's youth, first period of full-time custody, and rehabilitative needs, permitting an extended parole period relative to the head sentence.
  • Parity principles require comparison of "like with like" by reference to substance rather than form, as confirmed in Green v The Queen (2011) 244 CLR 462, and a sentencing court may have regard to sentences imposed on related offenders even where those sentences are not strictly binding.
  • Custodial conditions during the COVID-19 pandemic, including restricted access to programs and frequent lockdowns, were a recognised mitigating factor going to the weight of the time already served on remand.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases:
- Green v The Queen (2011) 244 CLR 462