R v Afrifa

[2018] NSWDC 507

District Court

New South Wales

Medium Neutral Citation:	R v Afrifa [2018] NSWDC 507
Hearing dates:	8 May 2018
Date of orders:	08 May 2018
Decision date:	08 May 2018
Jurisdiction:	Criminal
Before:	Syme DCJ
Decision:	Sentenced to imprisonment – see parra [32] [33]
Catchwords:	Ongoing supply; Drug addiction; Rehabilitation
Cases Cited:	Parente v R [2017] NSW CCA 284 R v Clark (unrep, 15/3/90, NSWCCA) R v Henry (1999) 46 NSWLR R v Shi [2004] NSWCCA 135 Robertson v R [2017] NSWCCA 2015
Category:	Sentence
Parties:	Director of Public Prosecutions Afrifa
Representation:	Solicitors: Bitcon (Crown); Davis (Offender)
File Number(s):	2017/00244958
Publication restriction:	Nil

sentence

1. Mr Afrifa has pleaded guilty in this Court to two charges. One of supply a prohibited drug on an ongoing basis for which the maximum period is 20 years imprisonment and one count of deal with property the proceeds of crime for which the maximum penalty is three years imprisonment. Mr Afrifa has also asked the Court to take into account related charges on a Form 1 which relate to supply of small quantities of heroin and cannabis and those matters will be taken into account on count 1 the ongoing supply matter. The most serious offence is, of course, the ongoing supply and the deal with property proceeds of crime, the facts in relation to that matter arise out of his involvement with the supply.

2. The facts in relation to the ongoing supply are uncomplicated. The facts disclose that prior to May 2017 it came to the attention (this is para 3 of the facts) that a telephone number referred to in the facts was being utilised to supply prohibited drugs and this phone number belonged to this offender. Thereafter this offender was contacted by an undercover police officer and on three occasions the undercover police office obtained very small quantities of heroin and cannabis from Mr Afrifa for small amounts of money, about $100. These small amounts of supply occurred between early May and the middle of July 2017.

3. I observe in passing that during this time, that is between May 2017 and July 2017 is well after the time that Mr Afrifa in his evidence in Court told the Court that he was attending the Methadone Clinic and obtaining quantities of methadone and that, according to his advice to the Methadone Clinic and his evidence in Court he was using at that stage approximately two caps or a $100 worth of heroin per day himself at that time.

4. After a conversation with the undercover police officer the undercover police officer asked Mr Afrifa if he could obtain larger quantities of the drug. The first time a large quantity of drug, that is 15.8 grams of heroin, was supplied was on 13 July 2017. That amount was supplied with very little notice. On 13 July the request was made and this offender asked the undercover police officer to wait in a car while he went and saw a friend and returned about 30 minutes later with an amount of the drugs. Ultimately, after a discussion, $3,600 was exchanged for the drugs. On the next occasion 27.3 grams of heroin was supplied on 16 July 2017. That was in exchange for $6,000 and again the drugs were supplied fairly quickly. The third occasion was on 3 August 2017 when 13.5 grams of heroin was supplied. There was some conversation concerning the supply of a full ounce or half an ounce and after some conversation 13.5 grams was supplied for the sum of $3,000 and on 8 August 25 grams was supplied for an amount $6,000. On each occasion the drugs that were sought by the undercover police officer were supplied fairly rapidly, within certainly less than half a day on each occasion. The next supply was later on, on 8 August 2017, when a further half an ounce, that is 13 odd grams was supplied for $3,000. Finally on 11 August, only three days later, a further 27 and a half grams was supplied for $6,000.

5. On the last occasion that is 11 August the police arrested Mr Afrifa when he finished talking to the undercover police officer. Found contained in bundles on his person a total of $18,755, $6,000 of which was the $6,000 that had just been exchanged with the undercover police officer a few minutes prior.

6. Therefore, in relation to the supply drugs on an ongoing basis the drugs were supplied over a period of slightly less than a month, between 13 July 2017 until 11 August 2017 on six separate occasions in amounts between 13 ½ grams and 27 ½ grams for amounts of money between about $3,000 and about $6,000. This is a significant supply of the drug heroin.

7. I will refer to Mr Afrifa’s evidence as to the method of supply when assessing the objective seriousness of it. Mr Afrifa told the Court that on each occasion he supplied the drugs he went to his own drug supplies, purchased half of the quantity that was to be supplied and then cut that with glucose or similar before supplying it to the undercover police officer. That evidence was not contradicted and to a small extent was supported by the forensic information provided by the Crown, and I thank them for that, indicating that for each of the occasions that the heroin was analysed it was weighed and the purity was found to be relatively low, between on various occasions about 17% and 40% pure. To some extent that supports what Mr Afrifa says, but of course, on the other hand it is clear that Mr Afrifa was making about 50% profit on the sale of these drugs on each occasion and he indicated to the Court that from his standpoint the 18 odd thousand dollars that was found on him was, in his mind, profit from the supply to the undercover police officer.

8. Again, in making an estimate as to the objective seriousness of the events apart from the purity of drug I take into account the quantity involved on each occasion, as I said, on six occasions between 13 and a half grams and 27 and a half grams. Counsel for the offender tells me his maths tells him that is about 122 grams supplied altogether, and I accept that, over a period of a month.

9. Relevant in assessing the objective seriousness of the offence are the various statutory amounts for the supply of heroin. The trafficable amount for heroin is 3 grams, the indictable quantity is 5 grams and the commercial quantity is 250 grams. Therefore, in total over this one month period Mr Afrifa supplied approximately one half of the commercial quantity and, of course, many times the indictable quantity, at least on each occasion, and in total, as I said, about half of the commercial quantity. This is a factor to take into account when assessing the objective seriousness, together with, of course, the evidence in relation to the purity of the drug.

10. When he was arrested there was no further evidence of his involvement at the organisation level of drug supply. There is no evidence of a lavish lifestyle, there is certainly no evidence of accumulation of assets. There is no evidence that he had access to ledgers or large amounts of money, but I observe that he did have access very readily to large amounts of heroin and was very happy to on-sell that the police officer.

11. It was submitted by the Crown that Mr Afrifa was a member of a well organised business organisation and that his role in that business organisation was in the distribution arm, and I accept that. By his own evidence he involved himself in this offence for financial gain, accepting that he was a relatively heavy user of cannabis at the time. I accept that the role of the offender and the level of his actual participation in the criminal enterprise is more important than the mere quantity of drugs. The mere quantity of drugs, as I have indicated, is significant, but this offender’s role, being out on the street and dealing in large quantities of heroin on each occasion is also significant. I am aware that the matters that go to aggravate the circumstances of the offence must be found to be proven to the criminal standard beyond reasonable doubt. Madam Crown has submitted that the involvement in this supply for financial gain is an aggravating circumstance and I consider that, but in the circumstances of this offence involvement in supply at this level, that is selling at half an ounce to an ounce, usually there is some financial gain involved, and while I note it I do not take it into account as an aggravating circumstance with respect to this level of supply. I also observe, of course, that the charge itself, that is supply on an ongoing basis, requires as an element of the offence to be proven that there is a requirement for financial or material reward. Therefore, it being an element of the offence I do not propose to take into account as an aggravating circumstance. The level of financial involvement and the level of supply is, of course, a matter that I take into account in general.

12. With respect to the charge of ongoing supply, the seriousness of the offence of supplying drugs on an ongoing basis has been confirmed in many decisions. R v Shi [2004] NSWCCA 135 emphasised the seriousness of supply on an ongoing basis and therefore the need for a Court to consider general deterrence as being a strong sentencing consideration.

13. I also acknowledge that an offender who is not a drug user, but supplies drugs out of greed, that is only for financial reward, is placed in a worse category of suppliers. However, addiction to drugs is generally not of itself a matter of mitigation and R v Henry (1999) 46 NSWLR 346 is authority for that proposition. However, I accept that in this offender’s position his addiction to heroin was such that to some extent his state of mind or capacity to exercise judgment was affected by his addiction to heroin. On the other hand I note that he had been addicted to heroin, on his own evidence, for some 20 years and well knew how to resolve those issues if he wished to do so. I find that his motivation to address his addiction to heroin, at least at that stage, was marginal at best.

14. It was submitted he attended the Methadone Clinic in March of 2017 and attempted to get himself on the methadone program. The evidence presented to the Court from that program is really completely contradictory. For example, Mr Afrifa told the Court that he was using about $500 to $1,000 worth of heroin a day when these offences were committed, but he told the doctor at the Methadone Clinic he was using about $100 worth of heroin a day. He said that he signed up for the Methadone Clinic, but on their account only attended on three or four occasions to collect his methadone. He certainly was not serious at that time to committing to resolving his drug addiction issue.

15. In relation to his drug addiction he tells the Court that previously, in perhaps 2011, he attended a drug rehabilitation centre in South Africa. Unfortunately it appears that Mr Afrifa is not a good historian and the evidence that he gave in the Court concerning that matter contradicted somewhat to the information that he gave the writer of the pre-sentence report both as to the time he attended, the amount of assistance he received, that is the length of time he remained drug-free after that. He told the Court that he remained drug‑free for about two years, but told the pre-sentence report writer that he relapsed fairly quickly.

16. His level of honestly in his evidence to the Court is in doubt in my mind, either because he was attempting to minimise his involvement in this offence and maximise his prospects of rehabilitation, or it may be the case that his use of heroin for such a long time has affected his memory, and that is all possible. I do not know which of those things is the case, but certainly he presents as a person who has been addicted to heroin for a very long time.

17. The type and value of the drugs on street or at wholesale level is not a matter that is particularly relevant to my assessment of objective seriousness. The expected reward is a matter that I would take into account when assessing the objective seriousness of this offence. This is not an offence of the lowest level of seriousness. Mr Afrifa was involved to a significant extent in supplying large quantities, that is three to five times the indictable quantity on each occasion over a period of a month and expecting a reward of something in the vicinity of $18,000 for his involvement over a month. This is much more than low level supply, it is much more than street level supply. As I said, I accept the classification of the Crown that he was a member of a well organised business on the distribution arm and that his involvement was for financial gain, this is a matter of below mid-range, but just below mid‑range objective seriousness.

18. It is the case that fulltime custody is a requirement of general deterrence in most cases of serious supply of prohibited drugs. The decision in Parente, to which Mr Davis has referred me, the reference for which is [2017] NSW CCA 284 and Robertson’s case [2017] NSWCCA 2015 confirmed that sentencing courts are not bound by the principle to impose fulltime custody in cases of substantial drug trafficking except in exceptional circumstances. I accept that the provision, as it was in R v Clark (unrep, 15/3/90, NSWCCA), has been re-evaluated by the CCA. The Court confirmed, however, that the appropriate approach is to proceed on general statutory and common law principles, being mindful of the importance of general deterrence and the protection of the community and using the maximum penalty, and if appropriate any standard non-parole periods, as legislative guideposts. The Court must also take into account the other requirements of s 3A including the serious social implications of drug supply and any possible alternatives to fulltime custody that may be available in any individual cases. In Robertson’s case Simpson J said:

“It may be accepted that examination and analysis of sentencing practices establishes that where the facts of an offence demonstrate drug dealing to a substantial degree a sentence of imprisonment will ordinarily be imposed. Recognition of the serious social implications of drug dealing reflected in, if nothing else, the maximum penalties prescribed suggest that in the ordinary case a sentence other than imprisonment will fail to meet the sentencing objectives. Trafficking to a substantial degree” she said “is still ..(not transcribable).. benchmark.”

19. As I have observed, taking into account the weight and purity of the drug, where the weight of the drug sits in the scheduled benchmarks for the various drug offences, the role of the offender and his participation in the drug supply hierarchy, the sophistication of the operation as a whole, are all matters that I would take into account.

20. The sentence that must be imposed must have a substantial element of general deterrence. General deterrence is still a significant sentencing consideration in matters of this nature.

21. A further sentencing consideration in matters of this nature is, of course, the need for rehabilitation. As I have observed, Mr Afrifa is not, on my observation, a very accurate historian. The evidence that he gave in Court today to some extent contradicted the information that he gave to the writer of the pre-sentence report, and I have given one example of how that is. However, it is clear that he has been addicted to heroin for a number of years, perhaps since his late twenties. He expressed in his evidence today some insight into the effect of this addiction on his life and he accepted that he had made a lot of bad decisions in his life, he said, as a result of his drug use. I am unable to make a finding given his level of inaccuracy, the level of his heroin involvement before the commission of these offences, but his evidence is that he was mostly smoking it, indicating that he was probably using more than he would be if he was injecting it.

22. I have observed the notes from the Methadone Clinic and his evidence that he attempted to obtain methadone from that clinic he says was a serious attempt at going on the methadone program. I find on the evidence before me that it was not. In his evidence in Court he said he stopped going to the Clinic because he was approached by the undercover police officer, and on his evidence, in effect, talked into supplying drugs. That is not supported by the independent evidence that I have before me. I find he stopped going to the Clinic at the end of March. He met the undercover police officer in May of 2017. To some extent I find that Mr Afrifa is minimising his involvement and his responsibility for his involvement in this offence. On my observation this is not an unusual position for an addict to present before the Court. Mr Afrifa also told the Court a story about a person called Mick and the disappearance of $750. I do not know where that goes into the evidence before the Court. No application was presented in relation to s 23 and on the evidence before me I would certainly not be making any special finding under s 23. Any assistance that may have been given in those circumstances has not been supported by the police and, therefore, is not capable of that kind of treatment.

23. The offender has been assessed by Probation and Parole as being suitable for a 12 month rehabilitation program at Odyssey House. That is, on my assessment of his position, his best chance of resolving his drug abuse issues, and taking into account the amount of time he has been to me that at the very least a 12 month rehabilitation course is going to be a small investment on the previous 20 years of addiction. On my understanding it will take Mr Afrifa at least that amount of time to come to terms with the previous 20 years of addiction. I accept that his addiction has to some extent driven his involvement in crime and apart from a relatively minor criminal record this is certainly his first very serious offence.

24. Taking all of those matters into account and his age, he is now 42, it does seem that he has an acute awareness of his own position and he has an awareness of the consequences of his heroin addiction on his mental health and on his physical health. All these matters go towards me being able to make a finding, which I do, that this offender has guarded prospects of rehabilitation. His prospects of rehabilitation will be substantially increased, I find, on his completing a fulltime residential course. The offender said that he is ready, willing and very keen to do such a rehabilitation course. What I propose to do is to make it a condition of a finding of special circumstances, and therefore an early release on parole, that if he still wishes to attend a residential rehabilitation centre then that should be a condition of his parole on his release. In those circumstances, while he maintains his position in a residential rehabilitation service he will be observing the conditions of parole and if he leaves the rehabilitation centre without the approval of Corrective Services then, of course, he will be breaching the terms of his parole and certain consequences will follow. That is not a matter that I will have any jurisdiction over.

25. I observe, however, in his favour that he has given up illicit drug use while in custody and there is no evidence otherwise. His need for rehabilitation at his age, if I say that respectfully, sir, is great. You are too old to be using heroin, it is not an old man’s drug and certainly I do not see many people of your age who are in this circumstances who were still using heroin.

26. I note that Mr Afrifa pleaded guilty at the first available opportunity in the Local Court and I will take into account that plea of guilty and it will entitle him to, and I will allow a 25% discount on the penalty that would have otherwise been appropriate had the matter proceeded to trial.

27. I have one matter of concern and that is my observation of a warrant issued in Queensland for a breach of a Community Service Order. That is a warrant that still may be in existence. I can only recommend to his advisers that they contact the Queensland Police Service and see what can be done about that warrant while Mr Afrifa is in custody. It is my understanding, and this is only my understanding rather than advice, that once he is released that warrant may be executed and he may be returned to Queensland, which might not be what he had in mind. That is a matter that should be solved sooner rather than later.

19. Mr Afrifa has reportedly a very supportive family, who are apparently available for him and have provided financial and emotional support in the past and are apparently available to provide that support in the future. He expressed some regret today as to the amount of concern that he has given his family over the years and I accept that at least today he is genuine.

20. There are competing requirements for a sentence when considering a sentence in this Court. Certainly it is important to ensure that Mr Afrifa is adequately punished and to send a message to him and to the wider community of the serious nature of an offence of this type. It is also important in doing so to protect the community from a person who supplies drugs within our community. On the other hand it is important to promote the rehabilitation of the offender.

21. Section 5 of the Crimes (Sentencing Procedure) Act requires sentences to use imprisonment as a last resort only on being satisfied that no other penalty is appropriate. I have considered any alternatives to a fulltime custodial sentence, and notwithstanding the fact that Mr Afrifa has already been in custody for nearly nine months, in my view, nothing other than a fulltime custodial sentence will reflect the need for general and specific deterrence and the protection of the community. On the other hand, taking into account his limited record for matters of this nature apparently, and taking into account his desire and apparent suitability to attend a long term residential rehabilitation, I will make a substantial finding of special circumstances in his favour and significantly reduce the 75% ratio that is the usual for a non‑parole period.

22. Finally, I note that there are two separate offences, deal with property the proceeds of crime and supply drugs on an ongoing basis. Taking into account, as I have said, the facts that I have assessed the objective seriousness of the supply prohibited drugs to some extent, based on the amount of money involved and the financial reward involved, I propose to set sentences which are entirely concurrent, that is to be served at the same time as each other.

23. First, I will deal with the property proceeds of crime, I will set a fixed term of 12 months to commence on 11 August 2017.

24. Secondly, for the supply prohibited drugs on an ongoing basis I propose to set a total term of four years imprisonment with a non-parole period of two years imprisonment. That non-parole period will commence on 11 August 2017 and will expire on 10 August 2019 and then be subject to a further term on parole of two years. As I indicated, along with that substantial finding of special circumstances, I will make a recommendation that before being released on parole Mr Afrifa be assessed for long term residential rehabilitation at a suitable centre such as Odyssey House, and he be released to residential rehabilitation as a condition of that parole.

**********

Decision last updated: 10 July 2019