R v Akkouche

[2016] NSWDC 434

District Court

New South Wales

Medium Neutral Citation:	R v Akkouche [2016] NSWDC 434
Hearing dates:	11 March 2016
Date of orders:	11 March 2016
Decision date:	11 March 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is place on a bond to be of good behaviour under s9 of the Crimes (Sentencing Procedure) Act for a period of 18 months.
Catchwords:	CRIMINAL LAW – Sentence – s 166 certificate sentence after trial – Drug possession
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Bilal Akkouche
Representation:	Counsel: Mr R Thomas – The offender     Solicitors: Director of Public Prosecutions – The Crown Havas Legal - The offender
File Number(s):	2015/21041

Judgment

1. HIS HONOUR: On Monday this week I commenced a trial involving allegations that the accused, Bilal Akkouche, supplied a prohibited drug, namely, 3-4 methylenedioxymethamphetamine also known as MDMA and also known as ecstasy. That charge was based on Mr Akkouche being found to be in possession of 31 capsules containing ecstasy. He was seen by a police officer at the Ivy Bar on New Year’s Day 2015 to react when a police dog entered the pool bar area by standing up from where he was, leaving behind a tin of mints. The police officer picked up the tin, approached Mr Akkouche and questioned him. From that moment on Mr Akkouche was cooperative with police. He immediately admitted possession. He told police the drugs were for his own use. He was charged with possession and issued a court attendance notice. Sometime later that charge was upgraded to supply and it was on that charge that he faced trial this week.

2. During the course of the trial Mr Akkouche gave evidence. He confirmed what he had told police, confirmed that he was in possession of drugs, but said that he intended to use them all himself. He denied that he was going to supply any or all of those capsules.

3. The jury, after perhaps lengthier deliberations than I would have expected, acquitted Mr Akkouche, being satisfied on the balance of probabilities that he was going to use the drugs himself.

4. In the course of his evidence Mr Akkouche explained the nature of his drug habit. In the months leading up to his arrest he said that he would, effectively, party every weekend, starting on a Friday evening and ending in the early hours of a Monday morning. Over the course of that weekend he would consume ecstasy tablets regularly, so much so that he could, if his evidence was believed, have easily consumed those 31 tablets that he was found in possession of in a single weekend.

5. Mr Akkouche gave evidence also that he did not actually buy those 31 tablets, they were given to him as a belated birthday present by a man he met up with at the Ivy Bar.

6. Consistent with what he said to police and the evidence that he gave during his trial, when the Crown asked me to deal with the backup possession charge on a s 166 certificate Mr Akkouche pleaded guilty to that charge. In exercising the powers that are thus given to me I am bound by the jurisdictional limit which applies in the Local Court.

7. Although Mr Akkouche’s plea of guilty came after his acquittal on the supply charge it is consistent with what he told police from the very beginning and consistent with an offer he made to the prosecution at the Local Court stage that he would, in fact, plead guilty to possession. Accordingly, I will allow the maximum 25% discount to which Mr Akkouche is entitled, because of the utilitarian value of his plea offer.

8. I take into account that facing trial for supply, a charge which the jury has found him not guilty of, is itself punishment to some extent. No doubt the clear possibility that he would be convicted of supply and then perhaps even go to gaol would have had a profound effect upon him.

9. Mr Akkouche gave evidence, both in the trial and in sentencing proceedings today, as to the change that has come about since he was arrested. Although, as I have explained, in the months leading up to his arrest he was a regular and enthusiastic consumer of MDMA, he says that since his arrest he has not used any form of illegal drug whatsoever. He said that his arrest was a wakeup call, that he no longer associates with the people he used to associate with and now recognises the harm that using and supplying drugs can cause.

10. He continues to work as a carpenter form worker and has to a very large extent turned his life around from the way it was headed at the time he was arrested. He is now associated with a charity called Homeless Run the White Coats. An email from one of the organisers of that charity was tendered today which says that he is an exceptional member of the team. Mr Akkouche has plans for the future and wishes to start his own business and plans this very day to get engaged. It is pleasing to see that Mr Akkouche has the strength of character that he was able to make such a fundamental change in his life. He is now entitled to be proud as to the position he is in, especially when he compares himself with the position he was in at the time of his arrest.

11. The question ultimately becomes as to what sentence to impose upon Mr Akkouche. Mr Thomas made a submission that the matter could be dealt with by way of an order s 10 of the Crimes (Sentencing) Procedure Act. Mr Thomas relied on a single case in support of that submission in an effort to demonstrate that such an outcome was within the range of sentences to be imposed for sentences of this kind. Reliance on a single case in that manner has been described by the Court of Criminal Appeal, or at least one member of it, as a submission which is deeply flawed. I am familiar with that decision, because it was me who tried to impress upon the Court of Criminal Appeal that argument and it was my argument which was described in that manner. As a fall-back position Mr Thomas submitted that an order under s 9 of the Crimes (Sentencing Procedure) Act would be appropriate. The difference is, of course, the conviction. I have little doubt that Mr Akkouche will be able to comply with any bond imposed upon him, whether under s 10 or s 9. So the difference in the two outcomes is, as I have said, one involves Mr Akkouche having a criminal conviction and one does not.

12. There will be consequences for Mr Akkouche of a conviction. He occasionally works as a security guard and there will probably be difficulties with him in that career in the event that a conviction is imposed. Mr Akkouche, like many people, especially young people, wishes to travel overseas and a submission was made by Mr Thomas that his conviction might cause him difficulties in travelling overseas. In the absence of evidence that a conviction will preclude him travelling to any specific country that is not a finding I am prepared to make. I am prepared to accept that there is a risk that a conviction will make it harder for him to travel overseas, but the extent of that risk is not something I can really assess.

13. It remains important to consider the purposes of sentencing. In this case rehabilitation and personal deterrence have little part to play, but general deterrence remains of importance. As Mr Akkouche belatedly realises, drugs are terrible things. People who use drugs have their lives affected adversely in very many ways and the effects extend beyond the individual users of those drugs. It may be, as evidence in the trial suggests, that ecstasy use amongst young people is relatively common, but the criminal justice system cannot simply throw up its hands and say “well we give up”. It is important when ecstasy use remains illegal, because of the harm that it causes to drug users, that those who are arrested in possession of substantial quantities of ecstasy are punished so that others who may be tempted to what Mr Akkouche did might reflect on their behaviour and hopefully will be less likely to possess and use drugs, as Mr Akkouche did. For that reason I am satisfied that a s 10 bond does not act as an appropriate general deterrent.

14. The order I therefore make is that Mr Akkouche is convicted. I order that he enter into a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for 18 months from today. The conditions of that bond are that he is to commit no criminal offences. He is to advise the Registrar of this Court of any changes in his residential address and he is to appear before this Court if called upon to do so at any time.

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Decision last updated: 02 August 2017