R v Anugerah

[2019] NSWDC 748

District Court

New South Wales

Medium Neutral Citation:

R v Anugerah [2019] NSWDC 748

Hearing dates:

18 October 2019

Date of orders:

18 October 2019

Decision date:

18 October 2019

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Sentence: 1yr 8 months imprisonment, 11 months NPP.

Catchwords:

CRIME. SENTENCE.

 

Drug Misuse and Trafficking ACT 1985, s 25A(1). Supply prohibited drug on 3 or more occasions during a period of 30 days. Five supplies (one deemed supply) of small quantities of 3, 4 MDMA (ecstasy). Supply to police street level operatives.

 

PARITY.

 

Co-offender involved in each of the supplies not charged with this offence, but lesser offences. Co-offender received non-custodial sentence, but had spent 3 months in custody.

 

At the time of sentence offender had spent 11 months and 2 days in custody. Given offender’s circumstances incarceration was onerous.

  No prior offending. Good prospects of rehabilitation.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, Drug Misuse and Trafficking Act 1985

Category:

Sentence

Parties:

Regina (Crown)
Rorie Anugerah (Offender)

Representation:

Crown:
N. Faraj (Solicitor)

    Offender:
N. Angelov (Counsel)
D. Guede (Solicitor)

File Number(s):

2018/00353990

Publication restriction:

Nil.

Sentence

1. HIS HONOUR: Rorie Anugerah stands for sentence as a consequence of pleading guilty to a charge that between 11 November 2018 and 17 November 2018 at Darlinghurst in this State that he did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, namely 3,4-methylenedioxymethylamphetamine for financial or material reward. That is an offence contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years and/or a fine of $385,000. There is no standard non parole period.

2. At the time that the offender committed that offence he was aged 21. He is currently aged 22 years. The offender has a co-offender known as Asdi Amir. Both the offender and the co-offender are from Makassar in Indonesia. However, they met in Sydney, as I understand it, in 2018.

Facts

3. The first supply was in fact a supply made by the offender to his co offender Amir. The supply was of 16 capsules of 3,4 methylenedioxymethylamphetamine, the drug commonly known as ecstasy. Those capsules contained 1.29 grams of ecstasy. The small quantity of ecstasy is .25 grams, the trafficable quantity is .75 grams, the indictable quantity is 1.25 grams and the commercial quantity is 125 grams. It can be seen, therefore, that the amount of this supply was just over the trafficable quantity. Amir went on to supply the drugs to undercover police operatives on 11 November 2018. Money was collected by Amir and Amir gave to the current offender $400. The transaction in question resulted from police investigation into the supply of prohibited drugs at the Arq Nightclub in Darlinghurst. The police used street level operatives known by the aliases of Diego, Daniel and Bilal. Amir identified himself to the street level operatives as “Tom”. According to the agreed facts Amir received from the street level operatives $400 for this supply.

4. The second supply occurred on 16 November 2018. On this occasion the offender supplied to Amir 15 capsules of ecstasy, with a total weight of 0.95 grams, which Amir supplied again to undercover police operatives on 16 November 2018. The offender expected to receive $300 for that supply from his co-offender Amir. However, there is no evidence that the offender actually received the $300 that was supposed to have been given to him by Amir.

5. The third and fourth supplies were pursuant to an arrangement made by Amir with the street level operatives engaged by the police. On this occasion both the offender and Amir were involved in the supply. The capsules were handed to the street level operatives by the current offender, and the cash payment was given to Amir. There were in fact two supplies, one of six capsules weighing 0.48 grams of MDMA and four capsules with a total weight of .30 grams of MDMA. Each of those capsules were sold for $20 making the total amount of the transaction $200.

6. In each of those supplies, that is what I have referred to as the first, second and third and fourth supplies, the offending of Amir and the current offender were almost identical.

7. The fifth supply was in fact a deemed supply. About 10.20pm on 17 November 2018 the police were notified that a drug deal had occurred in Little Oxford Street between street level operatives and Amir and the current offender. Police spoke to Amir and a search of his person found a clear resealable bag containing two clear capsules with a beige crystalline substance in each located in his right hand hip pocket. Testing confirmed that the capsules contained 0.15 grams of MDMA. He was also found in possession of four $50 notes which had the same serial numbers as the notes provided by the police to the street level operatives.

8. Police also spoke to the current offender who told them that he had on his person ecstasy. A lawful search of the offender’s person discovered three clear resealable bags containing capsules located in the front right pocket of the offender’s trousers and one clear resealable bag containing capsules located in the left rear trouser pocket. There were 28 capsules in total in the four bags. Forensic analysis confirmed that the 28 capsules contained 2.27 grams of the drug commonly known as ecstasy. That quantity of drugs is of course substantially greater than the indictable quantity. However, it is a fraction of the commercial quantity.

Parity

9. One matter which arises very much at this sentencing hearing is a question of parity. Before discussing that, however, I should point this out. According to the offender’s evidence given from the witness box today he started using drugs in 2018 which were supplied to him by the co offender Asdi Amir. He had not used drugs prior to that time. It was his association with Asdi Amir that led to his and Amir’s participation in drug trafficking. Although the offender initially told police that he was selling drugs to make money because he needed it to buy things such as groceries and in order to enable him to party on weekends, the offender frankly told me today that he initially became involved in selling drugs to support his own drug habit as well as to give him money so that he could party on weekends. The offender told me and I am prepared to accept that probably very shortly prior to his being arrested on 17 November 2018 he had decided to give up drugs because he noted the ill effects that they were having on those who used them.

10. Asdi Amir was not charged with the offence for which the offender stands for sentence. He was charged with supplying on four occasions MDMA, one supply being greater than the indictable quantity and three supplies being less than the small quantity of that prohibited drug. The facts however would indicate that the same offence pursuant to s 25A(1) could have been charged against Amir, but for some reason that is unexplained he was not so charged. He was also charged with possessing a prohibited drug, the prohibited drug found on his person at the time of his arrest and dealing with a proceeds of crime, namely the $200 found on his person at the time of his arrest.

11. For those offences Amir was sentenced in the Local Court. For the supply offences he was given an 18 months Community Corrections Order with certain conditions. He was also required to perform 150 hours of community service. For the possession of prohibited drug a conviction only was recorded pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. For the offence of dealing with property being the proceeds of crime Asdi Amir received a monetary fine and was ordered to forfeit the $200. There was an appeal from that sentence to this Court, and I am told that one of my colleagues sentenced the offender to a conditional release order for a period of 18 months commencing on 8 August this year. In other words, for significantly similar offending Asdi Amir avoided any gaol sentence at all, yet the current offender has been in custody for 11 months and two days. If anyone has a right to feel upset by a disparity in sentencing it is the current offender. However, he finds himself in this position not because of anything the courts have done, but because of the exercise of prosecutorial discretion by the ODPP or by the police.

Personal Circumstances

12. The offender comes before this court as a young man of prior good character. He is from Indonesia. His primary and high school education was in Indonesia. He reached the equivalent of our year 12. Between the ages of 11 and 14 he attended a religious school at which he was severely bullied. At the age of 12 he attempted suicide by riding a motorcycle into a tree. The bullying appears to have been significant. It has been so significant, according to Mr Raymond Hudd, a consultant psychologist, that it has caused a chronic post-traumatic stress disorder. A chronic post-traumatic stress disorder is not recognised by DSM-5 or by the World Health Organisation. However, there is no suggestion that this condition has ever caused the need for treatment.

13. At the age of 15 the offender began a relationship with a young lady who became his fiancée. They planned to marry in 2018, but in 2017 the offender discovered that his girlfriend was “cheating on him”. That led to their break up. The evidence suggests, although does not prove, that the offender took up drug use, inter alia, because of the psyche effect of having discovered that his proposed bride was “cheating on him”.

14. I have difficulty with the opinion of Mr Hudd. Besides diagnosing chronic post-traumatic stress disorder, he also diagnoses a “borderline personality disorder”, but there is nothing in the history that he obtained and there is nothing in the evidence of the offender which suggests he does fall into such category. It appears that Mr Hudd’s methodology is to look at how forms have been completed to reach his diagnosis without adequate explanation of the history, or using the history to explain the findings.

15. The offender told me, and I accept, that he realises that what he did was wrong and that what he did, that is supply drugs, had the potential to cause major problems to those to whom the drugs were supplied. He, having spent 11 months in gaol, knows that gaols are full of people whose lives have been ruined, if not destroyed, by addiction to illicit substances which leads to criminality and spending time in gaol for crimes such as breaking, entering and stealing, armed robbery, drug dealing and the like. Illicit drugs destroy people’s lives, they destroy families, break down relationships, destroy careers and are a blight on our society. He knows that now, and I accept that he has true victim empathy. Having said that, it is clear that the drugs never actually reached anybody in the community, they were all intercepted by the police. But had they not been intercepted by the police they may well have found their way into the community.

16. The offender made many admissions when interviewed by the police. In fact, the Crown sought to explain the fact that the offender was charged with an offence under s 25A rather than mere supply because he admitted the money was going to him, whereas Asdi Amir did not. The fact that the offender was frank and honest appears to have led to his being charged with a more serious offence than his co-offender and led to his spending 11 months in prison thus far, whereas his co-offender spent no or very little time in custody.

17. I accept that the offender is contrite, I accept that he is remorseful. I accept that he knows that he has done wrong and knows that he should not have done what he did do, and that he has resolved not to offend again and that he wishes to re-enter the community to re-establish his life in Sydney and to complete his studies. He came here on a student visa which have been extended. He has successfully completed a diploma in hospitality and was studying a diploma in marketing when he was taken into custody. He had been working in the hospitality industry at various hotels prior to the time of his arrest.

Consideration

18. Despite the fact the offender spent over 11 months in custody, learned counsel for the offender urged upon me that I impose a non-full time custodial sentence.

FARAJ: Your Honour, I just wanted to address the Court in relation to an issue which I failed to bring to your Honour’s attention--

HIS HONOUR: I beg your pardon?

FARAJ: I wanted to address your Honour in relation to an issue which is important and I wanted to bring to your Honour’s attention, it was my failure to not notify the Court that even though Amir was sentenced to a non-custodial sentence, he did serve three months in custody. I apologise your Honour for not bringing it to the Court’s attention.

HIS HONOUR: Well, three months is a lot less than 11 months.

FARAJ: I acknowledge that your Honour.

19. HIS HONOUR: Had the offender not spent time in custody I would certainly consider a non-full time custodial sentence. However, I approach the matter pragmatically, seeking to do what I believe to be just in the circumstances which confront me and the circumstances which confront the offender.

20. The offender was clearly making money not only to support his own drug habit initially, but also initially to fund his lifestyle. He continued to sell drugs to fund his lifestyle after resolving not to take drugs himself. I must bear in mind that the offence for which the offender stands for sentence carries a maximum penalty of 20 years imprisonment and/or a fine of $385,000 which indicates to the Court the seriousness with which Parliament regards this type of offending, that is supplying drugs on an ongoing basis.

21. I have come to the view that a custodial sentence of two years is called for. The Crown concedes that the offender pleaded guilty at the earliest available opportunity. The offender is therefore entitled to a discount of 25% of the sentence properly to be passed upon him. That reduces the head sentence to 18 months’ imprisonment.

22. In this case there are certainly aspects to warrant a finding of special circumstances. Firstly, this has been the offender’s first time in custody. I trust, as does he, that it will be his last. The offender has been locked up in a gaol in what to him is a foreign country, where things would have been doubly strange to him. Firstly, there is the strangeness that anybody who has never been in custody experiences when taken into custody, and here there is the extra strangeness of being locked up with a lot of people who cannot speak the offender’s language, Indonesian. The offender has colloquial English, but he needed the use of an interpreter in the witness box because I, for one, found it difficult to understand much of what he had to say. Furthermore, to express any difficult concept he needed to use the interpreter. I accept that his incarceration to date would have been an onerous one. The offender has no family in Australia and no close friends or a girlfriend. He has had some visit from friends, but as I understand it he has no particularly regular visitors.

23. The offender has been working in gaol for which is to be commended. His current occupation is as a sweeper in the AVL suite at the MRRC, and being a sweeper in any part of a prison complex is a trusted position, a position which is given to inmates who are trusted by the correctional officers who run the institution. The offender has incurred no departmental infringement. I accept that his time in custody to date has been more onerous than it would be for most other prisoners, but the offender has behaved very well.

24. As I pointed out, he is a young man and young men need to be encouraged to rehabilitate themselves and removing them from custody does facilitate that. The offender needs assistance, when he returns to the community, to re-establish himself in life and to be reinforced in his determination to stay away from illicit substances. Therefore a longer time than usual on parole is necessary.

25. I have formed the view that in the circumstances of this case that the non-parole period should be 11 months. The sentence will commence on 17 November 2018.

26. Any further reasons required as distinct from orders?

FARAJ: No your Honour.

ANGELOV: Could I just have a moment your Honour. Nothing further your Honour.

27. HIS HONOUR: Rorie Anugerah, you are convicted. I sentence you to imprisonment. I set a non-parole period of 11 months commencing on 17 November 2018 and expiring on 16 October 2019. I impose a further period of imprisonment of seven months to commence upon the expiration of the non-parole period and expiring on 16 May 2020. The total sentence is therefore 18 months comprising the non-parole period of the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole now.

28. Now, up until a recent change in the law, Mr Anugerah, you would have walked free from this courthouse today, do you understand? But you have to go back because the Parole Board has to make the decision, not me, all right? But hopefully you will be out of gaol by the end of the weekend. All right? Or it might take Monday.

29. Now you want the backup offences dismissed?

FARAJ: Sequence 7 your Honour.

HIS HONOUR: Thank you.

FARAJ: And if your Honour can make a drug destruction order.

HIS HONOUR: One thing at a time please. It is only the sequence 7 that you want dismissed is it?

FARAJ: Yes, your Honour.

HIS HONOUR: A backup charge sequence 7 is dismissed. Any other orders sought?

FARAJ: A drug destruction order your Honour.

HIS HONOUR: I order the drugs be destroyed. Any other orders sought?

FARAJ: Not from me your Honour.

ANGELOV: No your Honour.

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Decision last updated: 12 December 2019