R v Ajaj

[2019] NSWDC 475

District Court

New South Wales

Medium Neutral Citation:	R v Ajaj [2019] NSWDC 475
Hearing dates:	18 January 2019
Date of orders:	19 January 2019
Decision date:	19 January 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 4 years, 3 months with a non-parole period of 2 years, 9 months: at [20].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Planned or organised criminal activity SENTENCING — Mitigating factors — Rehabilitation — Remorse — Plea of guilty SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Multiple offences — Accumulation, concurrency and totality
Legislation Cited:	Confiscation of Proceeds Of Crime Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Parente v R [2017] NSWCCA 284 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Ali Ajaj (Offender)
Representation:	Mr Raymundo (Crown)   Mr Lange (Counsel for the Offender)
File Number(s):	2015/127673

Judgment

1. Ali Ajaj, aged 26, appears for sentence, having pleaded guilty to two counts; one of deal with the proceeds of crime, being $690 under s 193B of the Crimes Act 1900 which carries a maximum penalty of 15 years with no standard non-parole period, and another count of supplying 81 grams of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum of 15 years imprisonment with no standard non-parole period. There is a further offence of goods in custody in relation to an Acer laptop computer, which I will ultimately deal with under s 10A of the Crimes (Sentencing Procedure) Act 1999.

2. The matter was committed for trial, and after negotiations he pleaded guilty to the charges on the indictment. It is common ground that a 10% discount should be allowed on any term of imprisonment for the utilitarian value of the plea.

3. He was in custody for five months between the date of his arrest on 29 April 2015 and 28 September 2015. He served another period of almost four weeks since being bail refused on this matter, as a result of being charged with another matter on 24 December. The Crown quite helpfully and properly pointed out that in February 2017 he had also served three months while bail refused for a possess prohibited drug count, for which he was ultimately given only a fine. As the Crown conceded, that three months should also be taken into account, so that ultimately any term of imprisonment should be backdated, in my view, by a total of nine months from today.

4. The offences were committed while he was on conditional liberty, namely for an offence committed on 24 January 2014 where he was charged with possessing a restricted substance and was given an 18 months section 9 bond. He was under that that bond at the time of these offences between 12 March and 29 April 2015. He was also charged with possess prohibited drug on 9 October 2014 and was on bail for that offence during the offending period.

5. A number of co-offenders have been sentenced, and I will refer to their sentences imposed in those cases before going to the agreed facts. Gail Lutton() was sentenced by Garling DCJ to 18 months imprisonment for knowingly take part in supply of a prohibited drug, suspended under s 12. The closest comparator is Frances Loy, and I will come back to her in detail, but after a 25% discount she was sentenced to four years and one month, with a two years and ten months non-parole period. The other offenders, Kumar, Calogero(, Cowgill, Moussa and Alkailani have also been dealt with. I take account of these sentences.

6. The agreed facts demonstrate that Police formed a strike force to investigate the supply of methylamphetamine in the Liverpool area in January 2015. The targets being Ali Ajaj, and Frances Loy, as well as their associates who I have named. They discovered that the offender was one of the upline suppliers to Frances Loy. Francis Loy also had various customers. She was subject to a home detention order at the time, and that, as Mr Lange of counsel for the offender puts, is one of the differentiating factors when looking at questions of parity. Her home detention is the reason they employed runners to deliver methylamphetamine to residents in Nagle Street in exchange for cash, and she also had people acting as lookouts to ensure there were no Police when the runner made a delivery.

7. The modus operandi was that this offender would supply an 8-ball, or 3.54 grams of methylamphetamine to Loy for $800. Sometimes he would supply half an 8-ball for $450. When she sold the supplied methylamphetamine she would ask for another delivery to be made in exchange for cash. On 31 March 2015 Ajaj was first arrested after police searched his car and found mobile phones and cash on him. The cash being $690 which was the subject of the proceeds of crime offence he is to be sentenced for today. They also found a bag of 7.9 grams of methylamphetamine with an 80% purity, which forms part of the major supply charge.

8. He was placed under arrest and taken to Liverpool police station. He participated in an interview. He said that he had started work as a crane operator. He said the cash was to pay for a lawyer. He gave an excuse about the laptop, and he said he did not know anything about the drugs found in his car. He was released pending further investigations. Despite that, there was some further activity under the modus operandi, to which I have referred, which led to the police arresting him again on 29 April. When questioned in a recorded interview he offered no comment. He said that he did not know Frances Loy or the other co-accused. He made no comment about whether he used drugs. He was then charged.

9. The Crown case was that Ajaj supplied a total of at least 81.78 grams of methylamphetamine over 22 transactions between 13 March and 28 April. The other offenders supplied smaller amounts: 25 grams for Alk ailani, 7 grams for Moussa and 10 grams for Calogero. Cowgill participated as a lookout and Lutton delivered cash to Loy and Ajaj on a number of occasions.

10. Ajaj has a record which, as Mr Lange concedes, does not entitle him to any leniency. There was an assault occasioning in 2010 leading to section 12 bond, resisting an officer in the course of his duty in 2011resulting in another bond. Goods in custody and possess drug offences lead to a bond and a community service order. A matter in February 2017, to which I have referred, of possess prohibited drug. Another possess prohibited drugs in December 2016 leading to an ICO, which was ultimately varied to nine months, which he successfully served between November 2017 and August 2018. In 2013, there was a possess prohibited weapon dealt with by nine months suspended sentence and anothersix months for goods in custody in 2014.

11. I have taken account of the sentencing remarks of Hunt DCJ in the matter of Kumar, of Grogin ADCJ in the matter of Loy and Calogero. Loy was charged with a more than double the amount involving this offender, being 187 grams of methylamphetamine over more than 72 transactions. She had a very significant criminal record dating back to 1975 involving administration of a prohibited drug, offences of dishonesty, break and enter, stealing, receiving goods in custody, illegal use of a car, possession and supply prohibited drugs, traffic matters, supplying prohibited drugs on an ongoing basis and possessing a weapon. She served head sentences of three months in 1995, 12 months in 2002, two months in 2007, 20 months in 2008 and 16 months in 2008 for supply. I take account of her subjective circumstances as set out in the remarks of Grogan ADCJ. She had pleaded guilty at an early stage and a discount of 25% was applied to her sentence. I also have the remarks of Grogan ADCJ in the matter of Moussa.

12. A sentence assessment report and evidence from the offender's sister was relied upon by Mr Lange. The offender normally resides with his immediate family in Liverpool. He has been employed as a crane driver for some years, and his job is still available to him on his ultimate release. He has demonstrated stability during the lengthy adjournment period and complied with his supervision obligations up until the expiry of his recent ICO. He accepted responsibility for his offending and displayed a degree of insight into his offending behaviour. He was diagnosed with depression in February 2018 and has been encouraged to re-establish contact with his community psychologist. He has been assessed as having a medium to low risk of reoffending and suitable to undertake community service work.

13. His sister said in evidence that she was aware of the other drug offences, but she noticed that there had been a dramatic change in his presentation since this period of offending. Surprisingly, she had not spoken to the offender about these offences, but she spoke in favourable terms of his relationship with Rochelle and their hopes of marriage, and she noted that members of the family are here to support the offender today.

14. The Crown has provided very helpful and comprehensive written submissions covering all the principles to be taken into account. Foremost is the affirmation in Parente v R [2017] NSWCCA 284 of the way in which sentencing in these matters should be undertaken, freed of the previous constraint that a term of imprisonment is mandated in all but exceptional circumstances. They point quite properly to the need to assess the offender's role in the drug trafficking operation. The facts here demonstrate clearly that Loy and Ajaj had a significant role, as agreed. There is no evidence of supply to feed an addiction, and the only common sense inference, according to the authorities, is that the supply was being undertaken for financial gain.

15. The fact that the offender was on conditional liberty is an aggravating factor to be considered and that the drug supply was part of planned or organised criminal activity. No other aggravating factors have been pointed to by the Crown.

16. In terms of mitigating factors, I take account of his reasonably good prospects of rehabilitation, his expression of remorse and his plea of guilty.

17. I take account of the purposes of sentencing, as the Crown reminds me, and the s 5 Crimes (Sentencing Procedure) Act 1999threshold to be considered, so that a term of imprisonment is not imposed unless there is no alternative punishment. Although, as Mr Lange acknowledges, it is not necessary to place the offending in some notional scale, particularly given there is no standard non-parole period for the offences. It is clear that this was a serious example of sustained supply offending. I take account of the findings of objective seriousness in relation to the co-offenders, namely mid-range for Loy as found by Grogin ADCJ, below mid-range for Calogero and Kumar and Al Kailani, and at the lower end of the scale for Moussa.

18. Mr Lange submitted that particularly given the paramount consideration of community safety, the circumstances of this case made the imposition of an ICO appropriate. Having conceded that his record does not entitle him to leniency, he addressed the elephant in the room, namely the sentence imposed on Loy, and pointed to a number of factors which, in his submission, differentiated this case from Loy and therefore justified a lesser sentence, namely the significantly greater amount involved, the very lengthy record, which he said approached Veen v The Queen (No 2) (1988) 164 CLR 465 ( proportions, the fact that she was on a home detention order, and she had a significant role in the operation.

19. He reminded me of the evidence as to the offender being drug free and having satisfactorily completed an ICO in recent times. The sentence imposed on Loy involved a wholly concurrent sentence of seven months for the money laundering count and while that was of course open to his Honour, with great respect, in my view, there is a need for recognition of some separate criminality in that offence.

20. The orders that I will make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 4 years, 3 months, to commence on 18 April 2018 and expiring on 17 July 2022.

3. I impose a non-parole period of 2 years, 9 months, expiring on 17 January 2021. The offender is eligible for release to parole on that date.

4. The indicative sentences are:

1. Count 1 – 6 months.

2. Count 2 – 4 years;

5. I find special circumstances.

6. I make drug destruction order.

Section 166 certificate related offences – Good in custody offence

(7) Pursuant to s 10A the offender is convicted of the offence, and I impose no further penalty

Confiscation and Forfeiture orders

(8)       Pursuant to the Confiscation of Proceeds Of Crime Act 1989, I make a drug proceeds order pursuant to the Short Minute of Order dated 3  

          August 2018 namely, a sum of $17,600.

(9)       Pursuant to the Confiscation of Proceeds Of Crime Act 1989, I make forfeiture order pursuant to the Short Minute of Order dated 3 August

         2018 namely, $690 and ten mobile phones.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 09 September 2019