J Smith v Mushael Al-Semary
[2019] ACTMC 27
•20 August 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | J Smith v Mushael Al-Semary |
Citation: | [2019] ACTMC 27 |
Hearing Date(s): | 24 July 2019 |
DecisionDate: | 20 August 2019 |
Before: | Magistrate Stewart |
Decision: | See paragraphs [32] – [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment - sentencing – trafficking in a controlled drug other than cannabis – role of courier – parity – desirability of summary disposal – early plea of guilty – sentencing of co-offenders by different judicial officers |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 10 Criminal Code 2002 (ACT) s 603(7) |
Cases Cited: Cases Considered: | Green v The Queen [2011] HCA 49; 244 CLR 462 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Postiglione v The Queen (1997) CLR 295 Wong v The Queen [2001] HCA 64; 207 CLR 584 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 R v Brown [2019] ACTSC 59 R v Major [2016] ACTSC 161 Rubino v R [2015] ACTCA 22 Nchouki v The Queen [2018] ACTSC 28 R v BG [2017] ACTSC 382 R v Davidson [2018] ACTSC 227 R v Hyde [2017] ACTSC 337 R v Le Pavoux [2017] ACTSC 330 R v Lou (No 2) [2017] ACTSC 266 Zhao v The Queen [2018] ACTCA 38 |
Parties: | Jeffrey John Smith (Informant) Mushael Al-Semary (Defendant) |
Representation: | Counsel Ms E West (Crown) Mr B Barrack (Defendant) Solicitors ACT Director of Public Prosecutions (Crown) Criminal Law Group (Defendant) |
File Number(s): | CC 14704 of 2018 |
MAGISTRATE STEWART:
INTRODUCTION
Mushael Al-Semary is charged pursuant to s 603(7) of the Criminal Code 2002 (ACT):
“That he in the Australian Capital Territory on 11 January, 2019 trafficked in a controlled drug other than cannabis, namely methylamphetamine.”
FACTS
Mr Al-Semary usually resides in Sydney. In December 2018 he came to police attention after he was detected making several short trips to Canberra via car. It was noticed that Mr Al-Semary would travel from Sydney to this jurisdiction, stay in the Australian Capital Territory (ACT) for two or so hours and that he would then travel back into New South Wales (NSW).
On January 3 2019 Police paid close attention to another visit from Mr Al-Semary. On this occasion he travelled to the ACT, visited three different houses and a gymnasium and then departed back to NSW. All of this occurred in less than six hours.
A search warrant was issued by the Supreme Court on 09 January 2019. Mr Al-Semary was detected on 11 January 2019 in a car on the Federal Highway at Sutton travelling south into the Canberra region.
Mr Al-Semary was in the passenger seat of a car being driven by the co-offender Florian Lorzano. A search was conducted and what turned out to be 278.988 grams of 58.2% pure methylamphetamine was found in a plastic bag, which had been then wrapped in blue tissue paper and concealed in a black gift bag under the driver’s seat.
A further .434 grams of methylamphetamine was found in clip seal bags in a case in the driver’s door. This smaller amount of the drug might well have been quite wet at the time of the search as the original weight was noted as being two grams.
OBJECTIVE SERIOUSNESS
His Honour Justice Mossop recently considered the issue of objective seriousness in relation to trafficking methylamphetamine in R v Brown [2019] ACTSC 59 (31 January 2019). In that case the offender was sentenced on the basis of trafficking 43.52 grams of the drug. At paragraph 12 His Honour said:
The quantity of methylamphetamine was significant both in terms of the potential harm to the community, but also as one of the indicators of his level in the hierarchy of traffickers...The quantity of methylamphetamines is enough to be significant in terms of the harmful effects caused by its distribution.
The factual basis of Brown is dissimilar to this matter in that that offender was sentenced as a user-dealer. The factual basis offered here is that Mr Al-Semary became involved as a courier as a ‘one-off’ to satisfy a drug debt he had accrued due to cocaine use. Despite common sense suspicions that arise from Mr Al-Semary’s alleged earlier visits to this jurisdiction, there is no proper basis to sentence the offender on the basis of this being more than a ‘one-off’ offence. In the absence of any further evidence about them that would satisfy a finding beyond reasonable doubt, the earlier visits are just as consistent with innocent or unrelated behaviour. I find so and sentence on that basis.
More than 278 grams of methylamphetamine is not a small amount – it is roughly forty-six times the amount deemed to be a trafficable amount, but well short of the upper limit of 3.0 kg for this charge. The maximum penalty is 10 years imprisonment.
The weight involved in this matter informs the Court that the drug has significant illicit value and that it was trafficking involving someone who was not at the bottom of the illicit drug sale hierarchy – even though he was a courier. I accept the submission of Mr Barrack that the drug had been adulterated to the point where it could no longer be cut down or diluted and still be marketed as the drug referred to as ‘ice’. It remains that 278.988 grams of 58.2% pure methylamphetamine has the capacity to cause considerable harm and misery to the community.
The illicit drug trade cannot exist without couriers – they are crucial to drugs finding their way to illicit markets. Couriers protect others in the hierarchy by shielding those higher up from the risk of detection and harm during personal delivery and sales. General deterrence is a factor so that those who might be interested in the short term gains offered to illicit drug couriers are reminded that detection will involve the imposition of harsh penalties by the Courts.
I find that this offending is in a range that lies below the mid-range of objective seriousness for this charge on the factual basis of a courier trafficking methylamphetamine.
SUBJECTIVE CIRCUMSTANCES
A pre-sentence report dated 17 July 2019 was tendered. Mr Al-Semary emigrated to Australia aged 4 and enjoyed a family life with four younger siblings. He reported domestic violence between his parents prior to their separation in 2010. He is 28 years old and is single with no children. His goal is to return to live with his family in Sydney.
Mr Al-Semary did not report difficulty with alcohol. He was a regular user of cannabis between the ages of 18 and 21 years. He commenced cocaine use at the age of 24 and used that drug heavily in the 12 months prior to this offence, reporting use of up to a gram of cocaine per day.
Mr Al-Semary has a significant NSW criminal history including custodial sentences in relation to five separate occasions of driving whilst disqualified in 2014. He has been convicted for simple possession of anabolic steroids in 2012 and 2016, being dealt with on both occasions by way of fine. He has been assessed as a medium risk of re-offending.
I cannot and do not treat Mr Al-Semary as a first offender in these circumstances – but this is his first foray into offending by way of trafficking controlled drugs.
Mr Barrack tendered a very helpful bundle of documents including a psychological report under the hand of Susan Hawil dated 19 July 2019, a letter of remorse from Mr Al-Semary and three character references.
Ms Hawil’s report sets out a somewhat sad family history. The upside of that history is that Mr Al-Semary now enjoys the support of his mother and four siblings. He has a treatment plan in place for when he is released and the offer of further employment with his brother.
Mr Al-Semary’s affection for illicit drugs must be dealt with, or his future prospects are grim. In his letter to the Court he declares abstinence from illicit drug use. There is no independent evidence of any drug use since January 2019 and this gives rise to a guarded prospect for rehabilitation.
PLEA OF GUILTY
Mr Al-Semary entered a plea of guilty on 20 May 2019 – the fourth time that the matter was before this Court. In those circumstances I intend to allow full credit for the utilitarian value of the plea.
TIME IN CUSTODY
Mr Al-Semary has been in custody since 11 January 2019 and I will backdate his sentence to reflect that time in custody.
CONSIDERATION
S 603(7) of the Criminal Code 2002 carries a maximum penalty of 10 years imprisonment or fine of 1,000 penalty units. Ordinarily such a matter would be dealt with by the Supreme Court, however, Mr Al-Semary elected to have it disposed of summarily on 20 May 2019. In those circumstances, pursuant to s 375 of the Crimes Act 1900, this Court has power to sentence if a sentence no greater than 5 years or a fine $15,000 can be imposed. As I indicated on 24 July 2019, I find that this matter can be dealt with within that extended sentencing jurisdiction of the Court.
Methylamphetamine is a controlled drug because it is both addictive and harmful. The harm that methylamphetamine causes in the community is common knowledge.
The motive for trafficking the drug was driven by Mr Al-Semary’s desire to reduce his own illicit drug debt and therefore reduce or eliminate the obvious associated problems of being indebted to a criminal. Those facts do not excuse the criminality of the offending. There is a need for both specific and general deterrence – the trafficking of amphetamines is a matter of substantial community concern.
Offending of this type calls for a sentence of imprisonment. I find that pursuant to s 10 (2) of the Crimes (Sentencing) Act 2005, having considered every other alternative, no penalty other than imprisonment is appropriate.
PARITY
Parity is a live issue in this sentence. The co-offender who was the driver of the car that was searched, was sentenced to 8 months imprisonment by this Court.[1] The sentence commenced at a start point of 16 months and was reduced by 50% for the value of the plea and assistance to authorities. The sentence was wholly suspended and I am not aware of the Crown appealing that sentence. It would have been preferable for both offenders to have been dealt with by the same judicial officer,[2] but that has not happened and with the permission of the parties I have had the ability to review the transcript of the co-offender’s sentencing process.
[1] Police v Lorzana CC856 of 2019 22 May 2019.
[2] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 and Postiglione v The Queen (1997) CLR 295.
As the plurality of the Court of Appeal pointed out in Rubino v R [2015] ACTCA 22 at [26]:
Parity in sentencing is an incident of the principle of equal justice. It requires that offenders be treated in a like manner but allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. As Gibbs J observed in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.
In Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 the Court held that:
Parity in sentencing is an aspect of equal justice: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [65] per Gaudron, Gummow and Hayne JJ, approved in Green v The Queen [2011] HCA 49; 244 CLR 462 at [28] by French CJ, Crennan and Kiefel JJ (Green). It requires similar outcomes in similar cases, i.e. similar outcomes in cases that are similar both in relation to the objective features of the offending and in relation to the subjective circumstances of the offender.
There are significant points of difference between Mr Al-Semary and the co-offender. The co-offender had no criminal record and had greater prospects of rehabilitation. He co-operated with police to the point where it was submitted by the prosecution that “the defendant’s information was quite instrumental in securing the co-defendant’s plea”.[3] The co-offender was sentenced on the basis of being a driver who was to be paid $150 for the journey and who “was aware of what was going on”.[4] In that sense he was at least a step below Mr Al-Semary who had greater knowledge of the offending and stood to benefit from the endeavour in a greater way – he was reducing his drug debt and doing so avoiding the wrath of those he owed the debt to. Mr Al-Semary did not co-operate with police and therefore, cannot be treated with the same leniency as a co-offender who did so.
[3] Police v Lorzana ibid, TX P4 L17-18.
[4] Police v Lorzana ibid, TX P5 L1.
At the time of the offending, Mr Al-Semary was nearing the end of an intensive corrections order imposed in New South Wales, meaning that he was on conditional liberty when he committed this offence. This fact aggravates his offending and continues the pattern of disregard for court orders and sentences evident in Mr Al-Semary’s criminal history. There is a requirement for an aspect of specific deterrence in his sentence.
Using instinctive synthesis I commence a starting point of 24 months as the appropriate term for the head sentence. I will reduce that by 25% on account of the timing of the plea and to encourage other offenders to finalise matters in this Court.
SENTENCE
Mr Al-Semary, I find the offence proved and you are convicted. The sentence of the Court is 18 months imprisonment to commence from the day you were taken into custody 11 January 2019 and ending on 10 July 2020.
You are still quite young, you have family support, you have full-time employment to go to and you have some prospects of rehabilitation. I fix a lower than usual non-parole period of 9 months, dating from 11 January 2019 to 10 October 2019.
Sir, your earliest release date on parole is October 10 of this year and your head sentence will expire next year on 10 July 2020.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Stewart. Associate: Elinor Knaggs Date: 20 August 2019 |
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