R v Abdul-Hamid

[2023] NSWDC 641

District Court

New South Wales

Medium Neutral Citation:

R v Abdul-Hamid [2023] NSWDC 641

Hearing dates:

3 October 2023

Date of orders:

3 October 2023

Decision date:

03 October 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 7 years 3 months with a non-parole period of 5 years

Catchwords:

CRIME — Drug offences — Possess prohibited drug for the purpose of supply — Greater than the commercial quantity — Direct criminal group — Proceeds of crime

CRIME — Violent offences — Assault police officer in the execution of duty

TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Failure to stop, police pursuit — Speed limits

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity — Deterrence — Form 1 offences — Objective seriousness — Purposes of sentencing — Multiple offences — Aggregate sentences

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Long term drug addiction — Mental health disorders — Harsh discipline during childhood — Childhood sexual abuse not proven

Legislation Cited:

Crimes Act1900 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Road Rules 2014 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Abbdul-Hamid v R [2016] NSWCCA 118

Attorney General's Application No 2 of 2002 [2002] NSWCCA 515

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

R v Abbas [2023] NSWDC 281

R v Ristevska [2022] NSWDC 577

R v Tuki (No 4) [2013] NSWSC 1864

Trevana v R (District Court (NSW), 16 November 2022, unrep)

Texts Cited:

W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1

Category:

Sentence

Parties:

Feras Abdul-Hamid (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
F Awada at Awada Legal (for the offender)
A Hughes solicitor advocate for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/391482; 2021/204833; 2021/246414

JUDGMENT – ex tempore revised

1. Feras Abdul-Hamid is for sentence today for multiple criminal offences. They relate to three separate police interventions.

The first police intervention

2. The first group of offences relate to a police strike force looking into the supply of illicit drugs in the Illawarra. Pleas of guilty were entered after the offender, having been committed to this Court, was rearraigned. He is for sentence for three matters in relation to this group:

1. Knowingly direct the activities of a criminal group involved in drug supply between May and July 2021: Crimes Act1900 (NSW), s 93T(4A);

2. On 17 July 2021 he was caught by police in possession of 496.44 grams of methylamphetamine. That possession was for the purpose of supply and the amount was greater than the commercial quantity: Drug Misuse and Trafficking Act 1985 (NSW), s 25(2).

3. At the same time and place, he was also in possession of 41.76 grams of heroin. He possessed that drug for the purpose of supply: Drug Misuse and Trafficking Act, s 25(1).

4. Police also found over $28,000 in cash, the proceeds of the criminal group offence: Crimes Act, s 193B(2). He admits his guilt in relation to that offence and asks that I take that into account when I sentence him for the criminal group offence.

The second police intervention

3. On 12 April 2021, he failed to stop when police saw him in Newtown driving a motor vehicle and activated sirens and other devices. There was a police pursuit: Crimes Act, s 51B. He was convicted of that matter after a jury verdict of guilty on 26 September 2023.

4. A small quantity of the illicit drug methylamphetamine was thrown from the vehicle. He was charged with possession of those drugs: Drug Misuse and Trafficking Act, s 10(1). I found him guilty of this related matter after the jury verdict: Criminal Procedure Act 1986 (NSW), s166.

5. The vehicle was ‘clocked’ by police travelling in excess of 45 kilometres per hour above the designated speed limit: Road Rules 2014 (NSW), s 20. I found him guilty of this related matter after the jury verdict: Criminal Procedure Act, s166.

The third police intervention

6. The third group relates to his arrest on 28 December 2022. He had been granted bail after his earlier arrest to attend a rehabilitation facility. Police saw him driving in southern Wollongong. He was pulled over, but he sought to evade police. During the course of his arrest, he bit a police officer on the arm, an assault police charge: Crimes Act, s 61. He was found to be in possession of 142.29 grams of heroin for the purpose of supply: Drug Misuse and Trafficking Act, s 25(1). He admitted his guilt in relation to those matters when he was before the Local Court.

Guilty pleas

First group of offences

7. Abdul-Hamid’s late guilty plea to the first group of offences requires each indicated sentence be reduced by 5% to reflect the utilitarian value of the pleas.

Second group of offences

8. As there was a jury trial for the police pursuit matter, there is obviously no utilitarian benefit in the plea, but he is not to be penalised for exercising his right to a trial.

Third group of offences

9. As the pleas of guilty were entered in the Local Court for the third group of offences, each indicated sentence will be reduced by 25% to reflect the utilitarian value of those early pleas.

10. Where there are reductions because of guilty pleas, I will take care not to erode those benefits in the process of accumulation.

Maximum penalties

1. A s 93T(4A) criminal group offence carries a maximum penalty of 15 years;

2. Section 25(2) Drug Misuse and Trafficking Act supplying illicit drugs in greater than the commercial quantity has a maximum penalty of 20 years and a standard non-parole period of 10 years;

3. Supplying illicit drugs pursuant to s 25(1) Drug Misuse and Trafficking Act has a maximum penalty of 15 years;

4. Failing to stop, police pursuit pursuant to s 51B(1) Crimes Act has a maximum penalty of 5 years. There is an automatic driving licence disqualification of 5 years with a minimum disqualification of 2 years;

5. Section 20 Road Rules, exceed speed, has a maximum penalty of 30 penalty units, and a minimum licence disqualification period of 6 months;

6. Possess prohibited drug, s 10(1) Drug Misuse and Trafficking Act has a maximum penalty of 2 years imprisonment; and

7. Assault police, s 61 Crimes Act, has a maximum penalty of 5 years.

11. Careful attention must always be paid to maximum penalties and where applicable standard non-parole periods. Content should be given to the standard non-parole period. Both provide guidance to the exercising of my sentencing discretion.

12. In relation to the first, second and third groups, there are Agreed Facts before the Court. The facts of the police pursuit were not put in dispute at trial; the only issue was – who was the driver. By limiting the issues in dispute, Abdul-Hamid facilitated the course of justice. The trial was carried out expeditiously as possible and was over within days. He should have some benefit for that cooperation: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A.

Facts for sentence

13. It is important to note that the facts before the Court give an indication of the seriousness of what occurred. It is also important to note that the Court only acts on what is known or admitted. Not every aspect of the offender's activities was known to the police or the Court or were revealed by him during the proceedings.

First group of offences

14. There are comprehensive Agreed Facts before the Court in relation to the first group of offences. What follows is a short summary.

15. In May 2020, police established the strike force to investigate criminal activity in the supply of drugs in the Illawarra region. Police used a number of physical and covert surveillance techniques, including telephone intercepts. The offender was under surveillance between 20 May 2021 and 17 July 2021. He was monitored obtaining prohibited drugs from two upline suppliers, Abass and Tlais.

16. Investigations revealed that the offender and three others, Brisbane, Trevana, and his wife, Ristevska, were working together to supply of prohibited drugs in the local area. The offender participated in this group by sourcing the drugs from his upline suppliers and directing the activities of others in their supply of the drugs. He would also supply drugs himself.

17. The Agreed Facts set out summaries of the conversations and the surveillance. They go for some 13 pages. It is not necessary I read them all onto the record. The intercepts reveal he was guarded when conversing with others. Some steps were taken to limit detection, including warnings not to speak about drugs over the phone. But if warnings are given not to speak about drugs over the phone, that somewhat reduces the efficacy of any of the guarded words used because it is fairly obvious the conversation is about is drugs.

18. Some of the communications however, particularly with upline suppliers, were encrypted and unable to be intercepted or deciphered.

19. The offender's primary upline supplier was Abass. During the relevant period, he met with him on 13 occasions. He also met with Tlais on three separate occasions.

20. The purpose of each of the meetings was to facilitate the offender supplying drugs in the local area. Details of each of the meetings are set out in the Agreed Facts. The surveillance was extensive.

21. It should have been obvious to the offender that, during at least part of the period, police were aware of his activity. For example, on 8 June 2021, he was stopped by police travelling on the Princes Highway at over 140 kilometres per hour. Although no suspicious or unlawful items were detected inside the vehicle, aerial police surveillance captured the offender stopping suddenly shortly before he was pulled over. There is no evidence anything was found in the area he stopped.

22. The Agreed Facts indicate that the criminal group were using the home that he shared with Ristevska, to store, process, and supply the drugs, which included methylamphetamine and heroin. He would do so himself, or direct others to do so on at least nine occasions. Those occasions were established through a combination of phone intercepts, surveillance, and police stops and people leaving the premises.

23. The fact that his customers were stopped leaving the premises did not alert him to the fact that he was under surveillance. He continued to commit his crimes. He continued with his coded or brief conversations about prohibited drugs.

24. Nine supplies are detailed in the facts. It is impossible, on material before me, to know how exactly much was supplied but most appear to involve relatively small quantities. It would appear that most of his dealings were from his own premises.

25. Two specific counts of supply arose during the period of the criminal group offence. They relate to what occurred on 17 July 2021.

26. The Agreed Facts set out in summary the fairly extensive police surveillance and the calls between himself and his upline suppliers, and what was done by them that day. He travelled to Sydney. Trevana was in the driver's seat. He was in the front passenger's seat. After the deal had occurred, police stopped and seized the car. That car was transferred to a police holding yard, and the offender placed in custody.

27. Three days later, during a thorough investigative search of the vehicle. Two battery-operated remote controls were found. Those controls operated a mechanical device under the dash of the vehicle. There police found a hidden compartment. Inside were bags containing the 496 grams of methylamphetamine with a purity level of between 47% and 73%, and other bags containing the 41.76 grams of heroin.

28. It is accepted that the methylamphetamine was valued at approximately $100,000 (as a conservative estimate) and that if sold individually as points or street deals it could have returned much more; in excess of $200,000. Police are of the opinion that the heroin was worth about $15,000.

29. Abass was sentenced by Judge Williams SC. I have dealt with others involved in the criminal group.

30. The offender and Ristevska's house was searched on 17 July 2021 and $28,245 in cash was found. A police opinion expressed in the Agreed Facts is that the amounts found on 17 July, show they are at the upper high level of supply of prohibited drugs. It was noted, there were crude reference detailing money owed, methods and conversations consistent with the supply of prohibited drugs. The conclusions expressed are relative to the experience of the officer, they do not necessarily reflect the experience of the Court. Here we often deal with much higher quantities of drugs and sometimes less.

31. It is also noted in the facts that items found during the search of the premises were consistent with the personal use of prohibited drugs, as well as supply.

Facts – police pursuit

32. There is no contest to the summary of facts provided for the police pursuit, although the offender did not accept that he was the driver of the vehicle, and that matter went to trial. On 12 April 2021 in the early hours of the morning, police saw a Mercedes motor vehicle belonging to the offender's wife travelling northbound along the Princes Highway towards Newtown. A decision was made to pull the vehicle over, and warning devices and lights were activated.

33. The car did not stop; it proceeded up King Street, taking a hard left into Alice Street, and then travelling through Newtown, Marrickville, and Stanmore. At a number of stages, packets were seen to be thrown from the window. One of those packets was recovered and found to contain methylamphetamine.

34. At times, the vehicle reached speeds of over 170 kilometres in a 50 kilometre zone. At times, it could have reached over 200 kilometres per hour. It narrowly avoided collisions with other vehicles. The police pursuit was terminated after about four minutes as the vehicle proceeded south down Unwins Bridge Road, overtaking in the face of oncoming traffic.

35. The offender was arrested for this group of offences on 18 July 2021. On 28 June 2022, he was granted Supreme Court bail so that he could attend a drug rehabilitation facility. He appeared to, superficially at least, have benefited from attendance at that facility, but his criminal activity did not stop.

Third group of offences

36. On the afternoon of 28 December 2022, police were conducting patrols in southern Wollongong, not far from where the offender lived. They saw a vehicle which attracted their suspicion. As they approached, it made a U-turn across oncoming traffic, and then returned to the driveway adjacent to that from where it emerged.

37. Police saw Abdul-Hamid exit the driver's seat holding a large plastic bag and run. They chased him. They saw him throw the bag over a fence. He was grabbed by police and escorted back to the front of the property.

38. Body-worn video was activated. Whilst being escorted, he pulled a glass pipe from his pants and threw it on the ground, causing it to smash. He was told to sit on the ground. He made several attempts to stand. He was acting aggressively and violently. He yelled and screamed. He was placed in handcuffs. He was told he would be searched.

39. Physical restraint was applied. At that point, he bit Constable Rein on his right forearm. The bite caused the Constable immediate pain, swelling, and redness. The injury is depicted in the photographs before me.

40. A quantity of cash, $3,200, was located in the vehicle and seized. Police also found the bag that was thrown away by him; in it was 142.29 grams of heroin.

Objective seriousness

41. An assessment of objective seriousness is a critical component of any sentencing process. I act on what is known to the Court but some of the material, particularly the offender’s motivation and background, is obscure.

42. Criminal groups and drug supply operations, rarely come with operational charts. Some of the facts point in different ways.

43. It is not in serious dispute that the offender has been, for some significant time, a user and abuser of methylamphetamine. But it is also not in dispute that for a not insignificant time he has been involved in criminal activity, predominantly the supply of illicit drugs to the community. It is in that context that the facts have to be evaluated.

First group of offences – criminal group

44. Abdul-Hamid directed the group, making him liable to heavier penalties than the others. The offence of directing a criminal group recognises the risk to community safety posed by criminals acting together, but that said, any drug supply operation requires some cooperation between individuals. The actions captured in the material before the Court went well beyond the supplies, the subject of individual counts. But those supplies are examples of what the criminal group was involved in.

45. Abdul-Hamid was running the business. He did so for a period of months. He was in regular contact with his upline suppliers. He was directing the others. The activities involved planning. There was some caution, and clandestine activities were taken. But at other levels, it was amateurish and relatively easily detected. The purpose of the group was to obtain and distribute drugs to the local community and profit from such sales.

46. There was no concern for community safety. It was a significant crime, an example of a mid-range operation, and thus so serious a custodial sentence of some length is required: R v Tuki (No 4) [2013] NSWSC 1864.

47. Any drug supply offence is serious. Here, the quantity of methylamphetamine supplied is not just an indicator of the penalty range available to the Court, but a significant factor on sentencing. Just under half a kilo of drugs, the large commercial quantity, was possessed. When broken down into saleable units, the drugs would have had an impact on many, many users' families and the community.

48. While the heroin supplied is of a significantly lower quantity, it too was destined for users in our community. The consequent harm to individuals, and not just to the users, but to their families and the community must be recognised. It is commonly the case, that crimes are committed by users to obtain funds, and the funds available to those who sell drugs in our community generate further crimes.

49. Care has to be taken not to double count because these two offences are examples of the criminal group's activities. But again, the seriousness of the activity is indicated by them being clandestine, and some sophistication is shown by the hiding places in the car. Those hiding places required some investment for protection of a valuable asset.

50. Care has to be taken because the only distinguishing feature between the two supply offences is the weight of the different drugs. That weight is recognised in the graded penalty scale available. The drugs were destined for supply from the offender's home. The criminal group material indicates those supplies were small.

51. But as the Crown point out here, the quantity of methylamphetamine involved indicates that there was a capacity, or intention, to supply in greater than small dose supplies. That is an inference that I am validly able to draw in this matter. Again, these were serious examples of offences of their type.

Form 1

52. I just add at this stage so far as the criminal group, I have taken into account the matter on the Form 1. Offences on the Form 1 often increase the penalty to be imposed for the matter for sentence in accordance with the principles enunciated in the guideline judgment: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42], but here, it does not; as the matter on the Form 1 is the example of the supply operation itself.

52. If one is conducting a business, one needs cash in order to procure further supplies. And it would appear that this money was not profit set aside, but rather, the product of the criminal group operation used either to purchase further drugs or to contribute to the offender's apparently modest living expenses, as he had no other visible means of support.

Police pursuit

54. To ignore the directions of police puts them and other road users at risk. This offence shows a high level of moral culpability, particularly given where the vehicle was driven, such as crossing over to the wrong side of the road, and the speeds obtained. It is a serious example of its type. I note that it is a matter that is commonly dealt with in the Local Court but could not be remitted to that Court following its committal for trial.

55. The motivation was clearly his possession of methylamphetamine. But I have to be careful. There are separate matters on the s 166 Criminal Procedure Act certificate for the possession of the drug and the speeding in excess of 45 kilometres per hour. But they were inextricably linked to the principal count. As I have already taken both those matters into account, in assessing the seriousness of the police pursuit, I propose to deal with those two s 166 matters by way of s 10A Crimes (Sentencing Procedure) Act convictions so as to avoid double counting.

Third group of offences – assault police

56. A bite can be a nasty thing; there is always a risk of infection. The offence illustrates the risk run by police in the normal exercise of their duties. The authority of police must be properly recognised by deterrent penalties, as the guideline judgment from 2002 notes: Attorney General's Application No 2 of 2002 [2002] NSWCCA 515. The actual injury was relatively minor in context, but given it was caused by a bite, it is a serious offence requiring a custodial penalty.

Drug supply

57. The offender was in possession of a relatively large amount of the drugs methylamphetamine and heroin which were destined for users in our community so the offender could profit both in funds, and one presumes, to meet the needs of his own addiction. It is another serious example of its type; a commercial operation destined ultimately for street users.

Other matters

58. The offender was on bail prior to the first group of offences. He was on bail and supposedly in rehabilitation when the third group of offences were committed. To commit offences while subject to conditional liberty in the community is an aggravating factor that requires that the penalty be increased.

59. The sentence for the offences in December 2022 is more significantly aggravated by the fact that he was on bail for similar offences; in blatant disregard of the leniency offered to him by the Court. The bail conditions were imposed to ensure that he participated and benefited from the rehabilitation program and not return to the commission of crimes of a similar nature.

Parity

60. The upline supplier Abass was dealt with by Judge Williams SC: R v Abbas [2023] NSWDC 281. He was dealt with for a number of other offences, including firearms. I have had regard to the indicated sentence for the methylamphetamine of 3 years with 2-year non-parole period, and 9 months for the heroin. That was after a 25% discount. But Abass and the offender have different criminal histories and backgrounds.

61. I sentenced Ristevska for her role in the 17 June 2021 offence. She was involved in a criminal group, but to a lesser extent. She was not aware of the amounts being transacted: R v Ristevska [2022] NSWDC 577.

62. Brisbane and Trevana were dealt with in the Local Court. Trevana was resentenced by me on appeal, as I noted in Ristevska's judgment at [31]-[33]: Trevana v R (District Court (NSW), 16 November 2022, unreported). Because they were drug users, relative leniency was extended to them.

63. Equal justice requires like offenders get equal results. But different histories, different facts, different roles, can justify quite different penalties. That said, offenders should not be left with a justifiable sense of grievance that they have been treated unfairly; that is, differently than others with whom they were involved with in criminal activity. Sentencing judges strive for balance and fairness no matter how little offenders seem to care for the justice system or the community.

Criminal record

64. Born in 1981, Abdul Hamid first came before the Local Court as a young adult. Since 2006, drug offences, and since 2007, supply offences, have dominated his life. I have the facts of three other matters, and a decision of the Court of Criminal Appeal from 2016 is before me: Abdul-Hamid v R [2016] NSWCCA 118.

65. He was arrested on 18 July 2021. He was held on remand until 28 June 2022 – 346 days. He was rearrested on 28 December 2022 and has been in custody ever since. If my suggestion is accepted, these dates mean that the aggregate sentence should date from 17 January 2022. Although he spent time in a rehabilitation facility and benefited from it, there is no evidence before me, nor is any submission made, that it equated to quasi custody. But his time there was used partly to his benefit and will be taken into account generally.

66. He has spent his time in custody subject to COVID-19 restrictions. There is no evidence before me that he suffered particular hardship, but there is evidence before me that at various times he just did not care about himself, the community, or others. I am aware that he would have been subject to regular lockdowns. There would have been more trouble with personal visits. But other than that, I can only take into account generally that there would have been an impact COVID-19 had on him, as there would have been on every other prisoner.

67. His persistent reoffending, persistent supply of drugs, show that the supply matters for sentence are not uncharacteristic aberrations. Rather, they are part of a pattern of criminal behaviour that has dominated his life since his mid-20s. They require greater weight be given in this sentence to the important sentencing considerations of personal deterrence and community protection.

Structure of sentence

68. I have to take care when I sentence for the first group of offences because the criminal group offence accompanies the sort of behaviour that is exampled by the other two matters. They involve the same activity, just in different ways. That first group of offences, therefore, requires consideration concurrence. As I have already noted, the only difference between the supply offences was the nature of the drug and the drug’s quantity, both drugs being supplied at the same time and found in the same location.

69. The other offences, the police pursuit and the further supply requires separate punishment. The supply and the assault also require separate punishment.

70. I am required to indicate an appropriate sentence for each offence, and to structure the sentence as such that the aggregate sentence is just and appropriate to all of the offender's crimes. Public confidence in the administration of justice requires courts avoiding the suggestion of discount for multiple offending. But there is a principle known as totality which recognises that sometimes simply adding up all of the sentences can result in a sentence that is unduly harsh or crushing. Although, what is crushing often depends on the observer, the community, the offender, or the Appellant Courts: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

71. The severity of a sentence is not simply linear. Severity increases at a greater rate than the length of the sentence. For example, a sentence of 2 years has a greater impact than a sentence of 1 year, so far as the punitive aspects are concerned. Abdul-Hamid will get the benefit of that principle.

72. There must be some concurrence between the groups of offences and the offences within each group. So far as the third group is concerned there must be some independent punishment for the assault on police, which was unconnected to the supply, in a direct sense.

73. I will soon refer to the offender’s subjective case. The length of sentence I must impose means he will need to earn his release to parole because release will be subject to a decision of the State Parole Authority. And that release will only be allowed if community safety concerns are met: Crimes (Administration of Sentences) Act 1999 (NSW), s 136.

74. He will, after the lengthy period in custody, require assistance in adjusting to normal community life. He has benefited during his most recent period on bail from the rehabilitation program he engaged in. He is presently on a buprenorphine program; which he says is a benefit to him. He will need to engage in relapse prevention and drug programs. But I note that he still has drug offences on his internal Corrective’s record.

75. But the Court has to be guarded in formulating the structure of a sentence. The history before me indicates that apart from his age and the matters I have just referred to, he has not been deterred by prior gaol sentences. And his prospects for reoffending will remain high until, or unless, he deals with his drug problem. And given the history before me, I can have no confidence that he will embrace rehabilitative options. Although, as he ages, it may finally dawn on him that the life he is leading is not one for any human being to lead. There will be a modest finding of special circumstances, but a modest one only.

Subjective case

76. I have the benefit of a report from Mr Awit, a psychologist, a letter from a pastor from the rehabilitation service, Pastor Weir, and an unsworn statement from the offender. His father provided a background statement. He was not required for cross-examination.

77. There is nothing particularly controversial in the offender's statement, but it was not sworn; it was not tested on oath. And, as I will soon get to, he is not an accurate or reliable historian.

78. There are some matters in his background that are not in serious dispute. He grew up locally. His family did their best to support him. He was subject to harsh discipline in the home. It would appear that while closer to his father, his mother had other concerns. He was disruptive at school, and left school early, obtaining work. By the time he was in his mid-20s, he was clearly using illicit drugs, and he has been a drug addict ever since. It is clear that his drug use has been a primary factor in his life, dominating all other concerns.

79. He married, but was unable to have children, creating further stresses which both he and his wife dealt with by increased drug use. He appears to have supported himself by buying and selling goods at markets and buying and selling drugs. He has been to gaol on many occasions, and gaol has not deterred him from future offending. He reports a heavy gambling problem, but that is not a matter I can take into account in mitigation.

80. He spent some time at the Restoration Centre and appears to have benefited from it. Pastor Weir, who clearly sees the goodness in us all, gives him a glowing reference. That reference was not tempered by the fact that he concluded his involvement in the Restoration Centre when he was arrested for possession of a large quantity of heroin – the last offence.

81. It is clear from the material before me that he is benefiting from the buprenorphine program. He told Mr Awit, at par [16], that while on that program, he is clear headed and thinking clearly, and he is able to see the futility of his past life and able to make plans for the future.

82. The Crown tendered a report of Dr Furst, which was tendered on sentence in 2015, when he was sentenced by Judge Arnott SC; the matter subject of the Court of Criminal Appeal determination. There are some similarities in the history given, but there were different diagnoses given. The similarities relate to long-term drug use and aspects of his family background. Dr Furst diagnosed him as having a Substance Use Disorder, methylamphetamine dependence, an Adjustment Disorder with Depressed and Anxious Mood.

83. Dr Furst is a psychiatrist and did not conduct psychological testing. Mr Awit, who is not a psychiatrist, conducted psychological testing. He found evidence that supported a diagnosis of Attention Hyperactivity Disorder, Generalised Anxiety Disorder, Major Depressive Disorder, and Substance Use Disorder. It is not for me to prefer or conclude which of those two diagnosis I accept but they both appear to be based on similar material.

84. Two reasons for the Crown tendering the earlier report are that in the most recent report, mention is made of traumatic sexual assaults while a child and a history of drug use which is significantly longer than that revealed to Dr Furst. In the absence of sworn evidence from the offender, I could not accept, even on balance, the history of childhood trauma he revealed to Mr Awit. But it is important to note that, so far as Mr Awit is concerned, while he noted that history, his conclusions were based primarily on his testing, not the history.

85. There is some evidence in Mr Awit's report at par [29] of remorse, in the sense that Abdul-Hamid now accepts what he had done “was wrong” and he has “no excuse for his behaviour”. I am prepared to accept that statement because it fits all the material before me and it fits what is recorded by Mr Awit.

86. Abdul-Hamid at par [29] “readily admits that he did not care at the time of his offending. He was indifferent to it all.” He goes on to say “that it is only now being on buprenorphine injections he believes he has a clearer state of mind and understands what [advice] his father” had given, and what he was taught in rehab. Time will tell. That time will be spent in custody.

87. His background helped form the man that is before the Court today. He has a history of decades of drug and methylamphetamine abuse, supporting himself by drug supply, in terms of income to live on. His long-term drug addiction not surprisingly results in symptoms of anxiety and depression. While courts cannot mitigate an offence because it was committed while under the influence of drugs or drug addiction, drug abuse and substance abuse disorders are psychological conditions, and are relevant to an understanding of how these offences came about and the offender's future prospects.

Synthesis

88. Synthesising all of those matters. These offences occurred because the offender did not care about himself and did not care about the community in which he lives. He cared only about his drug use, obtaining and selling drugs to use, and obtain the funds to exist on. Age can change a person. At some stage, sobriety, even if supported by buprenorphine, can change a person and they can pick up and hopefully learn from the advice constantly given by family, members. Offenders can learn if given rehabilitation opportunities.

89. Mr Awit outlines a plan on p 13 of his report, that involves inpatient drug rehabilitation for a period of 12 months, and individual psychological sessions. Given the length of his period of drug use, Abdul-Hamid will need to attend programs like Narcotics Anonymous. He will need to receive cognitive behaviour therapy. A copy of Mr Awit's report will go with the warrant.

90. Each crime calls for appropriate punishment to recognise the harm done and the seriousness of the offence. Courts are meant by the severity of the penalties imposed to attempt to deter this offender and others. If ever there was a proof that you cannot gaol your way to the solution of the drug supply problem, it is presented by Abdul-Hamid: W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1. Despite a lengthy sentence of imprisonment, despite comments by any number of sentencing judges, despite being granted bail, he reoffended in a similar manner time and time again.

91. His crimes mean that he must be removed from the community. But that removal can only be temporary; one cannot hold a person in gaol longer than the objective seriousness of the various crimes committed. Prisoners have to be returned to the community. It is hoped that as he gets older, and if the plan put forward by Mr Awit can be put in place, with a graduated release to the community, he will be returned to the community a better person then when he went into custody.

92. As he ages, and as he comes to realise that he has; lost most of his life, lost the capacity to interact with his father and family, and I note his father is ill and would need him around, it might finally sink it that he has to change his ways. But as the Crown say, I must be guarded.

Orders

93. I have to indicate each individual sentence. They will take into account the reductions to which I have already referred. I have to formulate an appropriate aggregate sentence. As I said, there is a very modest finding of special circumstances.

• In relation to the s 93T matter, I indicate a sentence of 2 years and 10 months.

• In relation to the commercial supply, I indicate a sentence of 4 years and 3 months, and a non-parole period of 2 years and 11 months.

• In relation to the supply of heroin, I indicate a sentence of 1 year 10 months.

• In relation to the police pursuit, I indicate a sentence of 12 months' imprisonment.

• In relation to the s 60 assault police, I indicate the sentence of 9 months' imprisonment.

• In relation to the supply prohibited drug in December, I indicate a sentence of 3 years imprisonment.

94. There will be an aggregate sentence in this matter of 7 years and 3 months. There will be a non-parole period of 5 years. The sentence will date from 17 January 2022, making Abdul-Hamid eligible for consideration for release parole on 16 January 2027. The balance of the term, 2 years and 3 months will commence on 17 January 2027, expiring on 16 April 2029, reflecting a modest finding of special circumstances.

95. For the police pursuit matter, I indicate a driving disqualification period of 4 years. Section 206B Road Transport Act 2013 (NSW) applies, but that disqualification will be suspended for the period he is in custody.

96. The following is not part of the aggregate sentence:

• The speeding matter, s 20 Road Rules, s 10A Crimes (Sentencing Procedure) Act.

• The small quantity of prohibited drug, s 10A Crimes (Sentencing Procedure) Act.

97. I make the consent orders in the terms sought, and they will be endorsed and filed.

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Decision last updated: 11 July 2024