R v Bassim Karim

[2016] NSWDC 261

District Court

New South Wales

Medium Neutral Citation:	R v Bassim Karim [2016] NSWDC 261
Date of orders:	07 July 2016
Decision date:	07 July 2016
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	See orders [46]-[49]
Catchwords:	CRIMINAL LAW – sentence – late plea of guilty after committal for trial – manufacture methylamphetamine s 24(1), deemed supply methylamphetamine s 25(1) – Drug Misuse and Trafficking Act 1985 – related offences per s 166 of the Criminal Procedure Act 1986 for possessing instructions to manufacture prohibited drug and organising or conducting drug premises – significant involvement in drug trafficking – only full-time custody appropriate – importance of general deterrence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 s 10A Criminal Procedure Act 1986 s 166 Drug Misuse and Trafficking Act 1985 ss 24(1) and 25(1)
Category:	Sentence
Parties:	Regina (Crown) Bassim Karim (Offender)
Representation:	Counsel: Mr Murray (Crown) Ms Hawkings (Defence)
File Number(s):	2014/00008410 and 2014/164254
Publication restriction:	Nil

Judgment

1. HER HONOUR: The offender is before the Court for sentence on two offences in an indictment dated 18 March 2016. He was originally committed for trial with the co-offender, Andrew Preston, in an indictment dated 15 July 2015 which contained a number of joint counts and a separate count in relation to Mr Preston. The matter was originally listed for trial for two to three weeks on 14 March 2016. It was listed for a six-week trial.

2. On 14 March, on the application of the co‑accused Mr Preston, the trial date was vacated. The estimate of 4 to 6 weeks remained, said to be on the basis of additional material served by the Crown between 22 May 2015 and 4 March 2016. It is not entirely clear what occurred, except that I infer there must have been negotiations between the legal representatives of the offender and the Crown. When the matter was mentioned on 18 March 2016 a new indictment, the one before me now dated 18 March 2016, was presented and the offender pleaded guilty to those two counts.

3. Two of the other offences on the original indictment are now offences to be taken into account as Form 1 offences. The pleas of guilty, with the Form 1 offences taken into account, were accepted by the Crown in full discharge of the matters for which the offender was committed for trial. As I understand it, the co-offender is listed for trial in the Downing Centre in November 2016.

4. The specific offences are: Count 1 that between 14 December 2013 and 18 December 2013 at Sylvania the offender manufactured a prohibited drug, namely methylamphetamine. That is an offence contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 and as such carries a maximum penalty of 15 years imprisonment.

5. The offender asks when sentencing him for this offence that I take into account two further offences to be found in a schedule to a Form 1 signed by him and exhibited in these proceedings. They are one charge of manufacturing a prohibited drug at Tempe between 15 and 17 December 2013 and one charge of assaulting a police officer in the execution of his duty on 7 April 2014.

6. Count 2 in the indictment is an offence of supplying 16.6 grams of methylamphetamine at Woolooware on 7 April 2014. This is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, brought as a deemed supply offence which carries a maximum penalty of 15 years imprisonment.

7. For reasons that are impossible to understand, I am also asked to deal with four apparently related offences that are sent up to the Court for sentence pursuant to s 166 of the Criminal Procedure Act 1986. They are two offences of possessing instructions for manufacturing a prohibited drug, one relating to the substantive offence, count 1, and the other relating to the Form 1 manufacture offence. There are two other offences of organising or conducting drug premises, again, one relating to the substantive offence, count 1, and the other to the Form 1 manufacturing offence at Tempe.

8. The relevant facts are that on 17 December 2013, police attended at Tyne Container Services at Tempe to execute a search warrant. There had been an investigation ongoing since November 2013 into the manufacture and supply of prohibited drugs in the Sutherland Shire area. The police had identified the offender as being involved in the manufacture of methylamphetamine. They undertook a number of covert investigative methods to pursue this investigation. They discovered that he attended the shipping container yard in Tempe, and monitored him from the period 13 November 2013 through to the end of November. They also had intercepted telephone communication warrants and listened to telephone calls between the offender and his co‑accused, Mr Preston, indicating involvement in the manufacture of drugs.

9. On 17 December 2013, police attended the container services premises to execute the warrant. They saw the offender near one of the containers. He looked at them, turned and ran in the opposite direction. They called on him to stop, but he continued running. The telephone intercept material indicated that he immediately contacted several associates, asking them to break into his premises in Sylvania to clear everything out. He also indicated that he was aware the police were looking for him and he asked for the premises to be cleaned up. All of this was indicative of his guilt in relation to the substantive offence of manufacturing methylamphetamine in the premises in Sylvania. He was also collected by an associate to avoid immediate apprehension by the police.

10. When police searched the shipping containers they identified chemicals and equipment used in the manufacture of prohibited drugs. They included a vacuum pump, caustic soda bottles, used disposable gloves, thinners and many other items used in the manufacture of methylamphetamine. There was a plastic bucket in the bushes behind the container which was found to contain methylamphetamine. When police searched the car driven by the offender after his arrest, they located a number of receipts for hydrochloric acid and methylated spirits which were for use in the manufacture of this drug.

11. The container premises were visited by an expert chemist. I accept that they had been used to manufacture a prohibited drug and the quantity to have been manufactured was 52 grams. They also found a computer printout which amounted to instructions on how to manufacture methylamphetamine. This would appear to be sequence 5, the third of the four related offences for which I must sentence him in due course.

12. On the same day in the evening, police went to the offender’s premises in Sylvania and searched. In that unit they found equipment and chemicals used to manufacture prohibited drugs, including a 10-litre, round-bottomed reaction flask, glass trays, funnels, woks, plate burners and chemicals. The same expert chemist also attended this site and I accept from her opinion, that these premises had recently been used to conduct the manufacture of a prohibited drug, and I accept her opinion that the quantity to have been manufactured was 131 grams. Those specific facts are the facts relevant for count 1 in the indictment. Also in those premises police found documents which were instructions on how to manufacture methylamphetamine. It would appear that they are the facts relevant for sequence 2, the first of four related offences for which I must sentence him.

13. On 7 April 2014, some four months later, police went to an address in Woolooware. When they entered the property they found the accused standing in the front bedroom. They announced that he was under arrest. He ran to the window towards a police officer and pushed this police officer in an attempt to keep running out of the room. I assume that these are the facts relevant for the second of the two Form 1 offences, assault police officer in the execution of his duty.

14. Two other officers assisted and restrained the offender. He continued to try to escape whilst he was being restrained. He was cautioned and searched. In the right pocket of his jumper police found one plastic bag which contained a brown powder substance and a small bag of white powder. These substances were later analysed and determined to be 16.6 grams of methylamphetamine. Those latter facts are the facts relevant for the second count in the indictment, namely the deemed supply of the prohibited drug methylamphetamine by him on that occasion.

15. I accept from the evidence the offender has given, that these drugs found in his possession at the time of his arrest were from a quantity he had bought for his own use. His plea of guilty to this offence indicates that he accepts not all of those drugs were for his own use and that he had some of them at least in his possession for the purpose of supply. I accept that that supply at best was likely to be by way of sharing with friends as he had done in the past. I also accept from other evidence given by the offender that his involvement in the manufacture of these drugs was for his own use. He has a long and relatively sad history which I will come to in due course, but which I accept ultimately led to his becoming significantly addicted to methylamphetamine.

16. As his life unravelled around him with the increasing addiction to this drug, it became difficult for him to buy it. I accept from his evidence that there was an occasion on which, in his own words, he was ripped off and a gun was placed at his head. He decided to manufacture this drug for his own use so that he did not have to buy it himself in those circumstances. Clearly enough, his judgment was adversely affected by his significant use of methylamphetamine at the time. He claims that he became aware of the fact that this could happen by television shows and similar and that he took possession of the instructions to produce it. He started to manufacture it first of all in his unit premises in Sylvania. He then also started to manufacture it in the container premises at Tempe, in part because the fumes produced were becoming difficult in Sylvania and also Tempe afforded him a greater opportunity to hide in a larger area.

17. There is no evidence that he was manufacturing these drugs for the purpose of supplying them to any person. I accept that his drug use at that stage had become so significant that the quantities he had manufactured in these two sites were consistent with the sorts of quantities he had been purchasing and that more probably than not he would have used for himself.

18. All drug manufacturing offences are serious. Methylamphetamine appears to be a serious drug to which people become addicted very quickly, which adversely affects their behaviour and which almost invariably leads to their downfall and most of the time they take a lot of people along with them. The manufacture of that drug is serious but the factual circumstances of his commission of this offence, particularly the fact that he engaged in it to use the drugs for himself, put it towards the bottom of the range for offences of manufacturing. The quantities are not small but the surrounding circumstances lower the objective seriousness of the offending.

19. The Form 1 offence, however, amounts to a second manufacturing offence, or at least the first of the Form 1 offences amounts to a second manufacturing offence. It means that he was at around the same period manufacturing this drug in two places and it is, therefore, a matter which needs to be taken into account in a meaningful way when addressing the sentence for the substantive offence.

20. The second Form 1 offence, the assault officer in execution of his duty, is not a matter which, in my view, would increase the criminality of the substantive offence. Clearly enough any offence of assaulting a police officer in the execution of his duty ought be taken seriously, but this assault does not appear to have been a significant one. It was committed by him in panic whilst trying to escape arrest. It would not, in the general scheme, have given rise to a term of full-time imprisonment if sentenced separately and in those circumstances, whilst being taken into account as a Form 1 offence, should not elevate the sentence for the substantive offence.

21. The Form 1 supply offence, in my view, is very much towards the bottom of the range for drug supply offences capable of being charged under this section. It is a deemed supply. The quantity is relatively small and it is clear that some of it at least was for his personal use. If this were the only offence being sentenced, it would be a matter dealt with in some other way than by a term of full‑time custody. That will not be available on this sentence because he will receive a full-time term of imprisonment for count 1. The only realistic outcome is a very short fixed term of imprisonment to be served concurrently with the substantive offence count 1.

22. Only full-time custody would suffice to deal with the objective criminality in relation to count 1. The sentence must also encompass a degree of general deterrence so that it is clear that manufacturing methylamphetamine is not just the stuff of television series, but is a serious criminal offence which gives rise to a lengthy term of imprisonment.

23. The offender has pleaded guilty. It was not at the earliest available opportunity. The matter, as I have said, was committed for trial. He appears to have pleaded guilty, however, after the first trial was adjourned, but that adjournment was not of his instigation. Even though late, at least so far as he is concerned, a trial was avoided. It was a four to six weeks trial. There is a significant utilitarian value in pleading guilty. He should not get a full discount at the top of the range, but in my view a discount of about 10% is appropriate in the circumstances.

24. I accept that the offender is genuinely remorseful and contrite for having committed this offence. He has given evidence under oath on sentence and has said so. I accept that he is genuine. I also accept the evidence of his father which I found very useful. The offender’s father would appear to understand his son well and I accept from his evidence too that his son has expressed his remorse and contrition.

25. He spent some five months and 19 days in custody. He was bail refused from his arrest on 7 April 2014 and would appear to have received bail on 11 September 2014. He then spent a few days bail refused in January 2015. Altogether, that amounts to five months and 19 days in custody. His present term should commence taking into account that pre-sentence custody.

26. The offender presents with a relatively strong subjective case. He is now 43 years of age. He does have some criminal record but he had never been to gaol before. His criminal record is for relatively minor offences, possessing prohibited drugs and driving offences. Some of the matters on his record in fact were without a conviction.

27. He is part of a strong family originally from Lebanon. His parents came to Australia in 1955 before he was born. Both his parents are hardworking and apparently educated members of the community in Lebanon. They returned to live in Lebanon in 1965 and stayed there until 1984. The civil war in Lebanon broke out in 1975. They were relatively safe for a period of time. The offender’s mother was a school principal in the village in which they lived. However, the war escalated in their area in 1982. I accept that at that stage he was a 9 or 10 year old boy and that he witnessed horrific events, including seeing cars blown up in front of him when he was in company with his mother. He also witnessed a friend being killed in a bomb shelter that he was present in and also witnessed other war tragedies. The family came back to Australia in 1984 for a holiday, but ended staying and have lived here ever since.

28. Until 2006 I accept that he lived a good life, doing ordinary things that people do in the community. He started some apprenticeships but did not finish. He always worked hard.

29. There is a psychological report before the Court and a number of references which I have read and taken into account.

30. He started to use cannabis in his early 20s but that did not present a particular problem to him. I accept, more probably than not, that that was in order to deal with nightmares he was suffering, which themselves would appear to be connected with his war experiences in Lebanon as a child. They amounted to some form of self-medication.

31. He married and he has three children, although he is now divorced. After the birth of his first child he stopped using drugs. But in 2006 his wife’s brother, his brother-in-law, died traumatically as a result of an epileptic fit. He attempted to resuscitate him and it appears that he thought that was successful but his brother-in-law suffered, it would appear, permanent brain damage as a result of the fit and eventually his life support system was turned off. He blames himself for not successfully resuscitating him. Whether or not that is valid is hard to know, but nonetheless he blames himself for that.

32. From that time it would appear his life started to unravel. He started to use drugs significantly, having been offered methamphetamine by a family friend. He then started to use larger and larger quantities and was using about 2 grams a day at the time of his arrest.

33. His criminal history would indicate that his drug use started at around 2006 at the time of his brother-in-law’s death, therefore supporting this history given.

34. I accept the psychologist’s opinion that he suffers from post-traumatic stress disorder, as well as moderate to severe amphetamine use disorder. The post-traumatic stress disorder I accept is partly related to his experiences in Lebanon but also that is overlaid by the experience of his brother-in-law’s death. To that extent, that particular mental illness reduces to some extent, although not significantly, the extent to which general deterrence plays a part in his sentence. It also affects an assessment of his prospects of rehabilitation.

35. I accept that when he was in custody he realised the seriousness of his behaviour and the extent to which his life had spiralled out of control. He has not used drugs since his arrest. Since being released on bail he has lived with his father. I accept from his father’s evidence that he has not used drugs and is attempting to lead a normal life, although it would appear that as yet he has not undertaken any treatment for his post-traumatic stress disorder or substance abuse.

36. There is a plan suggested by the psychologist involving cognitive behavioural therapy for his post‑traumatic stress disorder and drug counselling on his release from custody. I accept that he is prepared to undertake that and will undertake that. Hopefully, he will also be offered some drug counselling or rehabilitation programs whilst in custody.

37. I accept that his prospects of rehabilitation are reasonable. They are, of course, entirely connected with his ability to stay free of the use of illegal drugs and that will depend also on receiving treatment for his post-traumatic stress disorder, because the two are connected. He will need a longer than normal period of supervision in the community to deal with that when he is released to parole.

38. He has found it difficult to find work since being released on bail because of the notoriety of his arrest for these offences, but I accept he is a man who is prepared to work and will find work on his ultimate release to parole.

39. He continues to have the support his father and family members including his ex-wife who is present in court to support him. He has an ongoing relationship with his children. All of these factors increase his prospects of rehabilitation. Unfortunately, none of his family recognised the extent of his drug use at the time he committed these offences but they do now and I accept that their ongoing support will increase his chances of successful rehabilitation.

1. Further, he is not a young offender and having come to the Court effectively for the first time and being charged with any serious offence increases his chances that this will be a one off episode, as long as he takes advantage of counselling and treatment when he is released.

2. I then turn to the relevant sentence. I have come to the conclusion that, without the plea of guilty, the first offence of manufacturing methylamphetamine ought to have given rise to an overall term of imprisonment of 3 years. That takes into account the Form 1 offences as well.

3. I will be reducing that by three months to take effect of the relatively small discount for a late plea of guilty. That would be an overall term of two years and nine months. I will set a non-parole period of 18 months which will allow a parole period of 15 months with supervision for treatment and counselling. I will backdate that sentence to 19 January 2016 which I understand is five months and 19 days before today.

4. The second count as I have said, in my view would, if sentenced alone in these circumstances, not give rise to a full term of imprisonment at all but there is no alternative option in this case and so I am simply sentencing by way of a 6 month fixed term of imprisonment, which I will order to be served concurrently with the other offence.

5. Each of the s 166 offences I would deal with by way of conviction but 10A disposition. Those matters, in my view, ought not have been sent to this Court. They are summary matters which at best are backup offences or, alternatively, amount to offences which are evidence to prove his involvement in the manufacture, viz the instructions for manufacturing methylamphetamine or, the offences of organising or conducting drug premises are an integral part of the manufacturing offences before the Court. They ought not be taking up the time of this Court. They ought to have been withdrawn and dismissed in the Local Court but, nonetheless I am obliged to deal with them because they have been sent to this Court as part, apparently, of the negotiation process between the Crown and those appearing for the accused.

6. For those reasons I make the following formal orders:

7. COUNT 1 in the indictment, the manufacture prohibited drug charge, the offender is convicted. He is sentenced to a non-parole period of 18 months commencing 19 January 2016 and expiring 18 July 2017 with parole thereafter of 15 months commencing 19 July 2017 and expiring 18 October 20, giving rise to an overall term of imprisonment of two years and nine months commencing 19 January 2016, expiring 18 October 2018. I direct that he be released to parole at the expiration of the non-parole period on the following condition, supervision from Probation and Parole with drug counselling and psychological/psychiatric treatment for post-traumatic stress disorder.

8. I note I have taken into account the Form 1 offences when sentencing for this matter.

9. COUNT 2 Convicted of count 2, supply methylamphetamine. Sentenced to a fixed term of imprisonment of 6 months commencing 19 January 2016, expiring 18 July 2016.

10. RE 166 OFFENCES: Sequences 2, 3, 5 and 6. Convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. No further order.

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Decision last updated: 24 October 2016