R v Care; R v Al-Khateib - [2020] NSWDC 856

District Court

New South Wales

Medium Neutral Citation: R v Care; R v Al-Khateib [2020] NSWDC 856
Hearing dates: 20 November 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Care – aggregate sentence of imprisonment of 6 years 9 months with a non-parole period of 4 years 9 months
Al-Khateib – aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years 6 months

Catchwords:
CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply
CRIME — Drug offences — Supply prohibited drug — Large commercial quantity
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Form 1 offences

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Attorney‑General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 518
Bugmy v The Queen [2013] HCA 37
Imbornone v R [2017] NSWCCA 144
Markarian v R [2005] HCA 25
Muldrock v R [2011] HCA 39
R v Borkowski [2009] NSWCCA 102
R v Qutami [2001] NSWCCA 353
Ramos v R [2018] NSWCCA 206
Tepania v R [2018] NSWCCA 247
The Queen v Olbrich (1999) 199 CLR 270

Category: Sentence
Parties: Regina (Crown)
Adrian Cosmo Care (Offender)
Nour Al-Khateib (Offender)
Representation:
Alex Poulos (Crown)
Greg James QC (Offender – Care)
Philip Strickland SC (Offender – Al-Khateib)
Director of Public Prosecutions (NSW) (Crown)
Hanna Legal (Offender – Care)
City Group Legal (Offender – Al-Khateib)

File Number(s): 2019/00091716 (Care)
2019/00091547 (Al-Khateib)

REVISED JudgEment

Introduction

For sentence today are Adrian Cosmo Care and Nour Al-Khateib. Although the offenders engaged upon conduct within the same enterprise as broadly described in the agreed statements of fact tendered in each case, their prosecution has not been identical either with regard to the charges upon which they are presented or the precise conduct upon which they engaged. Thus this is not a sentence to be determined upon strictly comparable circumstances and facts as might be the case were it before the Court as a joint criminal enterprise. It is a case where sentence must be determined upon the unique facts and circumstances presented against each of them and this requires the Court to deliver judgement and to impose the sentences in two sequences. I shall first of all deal with Mr Care and then proceed to deal with Mr Al-Khateib.

The Offences

The matter commenced before me on November 20, 2020 in the District Court at Sydney. Separate bundles of material were tendered for each of the offenders.
In the case of Adrian Cosmo Care he was presented upon two charges. The first dealing with property suspected to be the proceeds of crime, namely $179,400 contrary to s 193C(1) Crimes Act 1900. The maximum penalty for that offence is imprisonment for five years. The second offence is knowingly take part in the supply of a large commercial quantity of prohibited drug, namely 1,012.85 grams of methylamphetamine contrary to s 25(2) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for life with a standard non-parole period of 15 years.
The offender confirmed that he pleaded guilty in the Local Court to each of these charges. He asks that when I sentence him for the offence of knowingly take part in the supply of a large commercial quantity of a prohibited drug that I take into account additional offences. First, is an offence of his participation in a criminal group contrary to s 93T(1) Crimes Act 1900 for which the maximum penalty is imprisonment for five years. There are two other offences that he asks me to take into account. These are of supply prohibited drug, the first in respect of 10.8 grams of cocaine, the second in respect of 56.5 grams of cocaine. These offences are contrary to s 25(1) Drug Misuse and Trafficking Act 1985 and in each case the maximum penalty is imprisonment for 15 years. The offender confirmed that he wished these offences to be taken into account and he admitted that he is guilty of them.

Utility of the Pleas of Guilty

His pleas of guilty to the offences upon which sentence is to be imposed will attract a discount of 25% for utility in accordance with decisions such as R v Borkowski [2009] NSWCCA 102. The discount will be applied to the starting point reached upon the synthesis of objective and subjective material that has been presented to me. He was committed for sentence on 22 July 2020 from the Local Court at Burwood, thus he entered his plea of guilty at the earliest opportunity.

Pre-sentence Custody

He has been in custody since the date of arrest on 22 March 2019, but not all of the period he has been in gaol is referable to his offences that are presently before me. He was subject to bail at the time of this offending, granted to him for an offence of supplying a prohibited drug other than cannabis. Those proceedings were determined on 27 September 2019 whilst he was in custody and awaiting the passage of the current prosecution through the Courts. The offending on that occasion was on 25 October 2017. In the District Court of New South Wales here in the Downing Centre he was sentenced to an intensive corrections order of nine months commencing on 27 September 2019 concluding on 26 June 2020 with conditions specified and as set out in the antecedent report that is tendered to me. He did not have the opportunity to serve that term of imprisonment by way of an intensive corrections order in the community and thus he was in custody during that time.
It follows that he has been in custody for conduct other than that which I am to deal with today. I do not propose to order the commencement of his sentence on the date upon which he came into custody, but to reflect the totality of the misconduct upon which he has engaged, which is at this stage of his life confined to that earlier matter and what is now before me, I propose that the sentence shall commence on 22 June 2019.

The Facts

It is to be observed that the facts presented in each of these cases are limited in the particularity when describing the involvement of the offenders. The facts in each case provide a description of circumstances and activities which indicate a sophisticated and organised enterprise for the storage and supply of the prohibited drugs the subject of the charges, but there is a paucity of information with regard to precise activities and involvement which has not been supplemented by evidence led from the offenders other than in the case of Care who provided an affidavit which was predominantly concerned with his subjective circumstances and not the role that he played in this enterprise.
I have in the assessment of this matter turned my mind to the extent to which I might draw inferences to determine with some precision or particularity the extent of the misconduct upon which the offender in each case engaged. The task is difficult and in light of the application of principle to be found in The Queen v Olbrich (1999) 199 CLR 270 requiring that findings of fact in this regard be made upon the standard of beyond reasonable doubt, I am left to determine sentence upon the bare description given in each of these documents.
Dealing first of all with the statement of agreed facts and the case presented against Adrian Care, there is also reference to his co-offender here and another man, Malik Husseini.
All three were the target of a New South Wales Police strike force investigating the supply of cocaine in the Sydney area. Prior to 10 December 2018 the police had lawfully installed surveillance devices within a unit at McGill Street at Lewisham. There was also a camera outside the front door of the unit. The unit was leased by a third party and on 23 November 2018 the brother of Al-Khateib contacted the agency through which it was leased asking for a receipt to be sent to his email address, the particulars of which are included in the facts.
Observations were made and all co-offenders were seen at various times to meet at this unit. On several occasions Al-Khateib and this offender were observed to handle what appeared on the video to be a white substance placing it in freezer plastic bags. They would often wear white latex gloves when so engaged. Al-Khateib and the offender were also observed to handle what appeared to be bundles of cash on several occasions. Surveillance footage captured occasions when unknown persons would attend the unit where they would be seen handling white powder or cash.
The use of the phrase, “What appeared to be”, in the description given in the facts at this point carries the implication that there is some question over the extent to which these representations are complete and accurate.
After an incident such as that, on 19 September 2018 the offender was seen to take a garbage bag to the disposal chute immediately outside of the unit. The police recovered this from the garbage room shortly after and inside found white latex gloves bearing DNA profiles matched to Al-Khateib and the offender. A swab of the gloves returned a positive result for cocaine. On 19 January 2019 Al-Khateib was recorded telling the offender to wear work clothes every day and to have a pair of boots and a tool bag in the back of the car so that, “He has a reason if he gets pulled over”. Al-Khateib mentioned that the offender is on bail. There was no further explanation as to what the reason might be used for in representations to a police officer should he have been intercepted.
On 11 February 2019 the police conducted a covert search warrant at the premises where they found freezer bags, rubber gloves, rubber bands, scissors and plastic bag fragments consistent with the items observed in the course of surveillance on the recordings. There was also an empty safe and a money counter.
The criminal group had also obtained control over a second property at Canterbury Road, Belmore. This was leased by the girlfriend of Al-Khateib on or about 29 December 2018.
On 27 February 2019 the police conducted a covert search warrant at this unit after observing Al-Khateib leaving it. They located freezer bags, boxes of white gloves, electronic scales, cash and furniture similar to that which had been previously located in the McGill Street address. The police again installed surveillance devices at this location.
Other than on 22 March 2019, the police did not seize or analyse any substance or cash seen in the possession of the offender during the course of the surveillance.
On that day, 22 March 2019, the police executed a series of search warrants at the McGill Street address and the Canterbury Road, Belmore address. Al-Khateib was arrested leaving the Canterbury Road unit. The facts then deal with the arrest of this offender and the search warrant executed at a unit at Pearce Avenue, Peakhurst. At 3.30pm, detectives in company with the police public order and riot squad attended this address to execute the search warrant.
This property was leased to SL who denied when interviewed having leased the premises or ever having been to that address. He recognised the photocopy of his licence, Medicare and bankcard used in the lease as similar to those he had provided to a real estate agent in support of an unrelated lease application. There is no further information provided with regard to the steps taken to acquire the occupancy of these premises through those fraudulent means.
During the execution of the entry to the premises the police observed Malik Husseini and the offender jumping from a balcony to the ground. The offender was injured in the fall and was arrested where he lay. Husseini was arrested after a short chase and taken to Kogarah Police Station where he participated in an interviewed but declined to answer questions.
The offender was treated by ambulance for lower leg injury. He later declined to participate in an interview.
Prohibited drugs were located in various parts of the garage at the Pearce Street property. There was a total of 806.9 grams of methylamphetamine in three clear resealable bags. There was 10.08 grams of cocaine in another clear plastic bag. They form one offence. $179,400 in cash in various locations was found at the Pearce Avenue address including 16 large bundles of cash contained in a safe. That is the subject of the dealing with property suspected to be the proceeds of crime. There was prescription medication in the name of this offender, several money counters, multiple mobile phones, photocopies of a Medicare card, a driver’s licence in the name of SL on which were found the fingerprints of both the offender and Al-Khateib and there were rental documents for the Pearce Avenue address in the name of SL.
A search warrant was executed at a unit at Lawrence Street, Peakhurst. At 5.25pm on 22 March 2019 the police searched those premises. This consisted of a furnished kitchen and living area with one unfurnished bedroom and a bathroom. There were no persons present at the time. The lessee of the property was EA. Copies of the lease documents were obtained from LJ Hooker at Peakhurst which included a photocopy of a driver’s licence. EA denied leasing the property. He believed that the photocopied licence and his picture on it were his, but it was a document that he had lost over ten years before.
Located in these premises were 201.2 grams of methylamphetamine in a clear plastic resealable bag in a bedroom wardrobe. A DNA profile was located matching the offender. That was on the bag. 4.79 grams of methylamphetamine were located in a knotted freezer bag in the same wardrobe and 56.5 grams of cocaine in two knotted freezer bags were located in a cupboard beneath the bathroom sink. That is another Form 1 offence. It is the aggregation of those quantities of methylamphetamine with the earlier quantity of 806.9 grams found upon which the charge of being knowingly concerned in the supply of a large commercial quantity of the drug was presented. Also located at the address was a quantity of MSN powder, two sets of electronic scales, one of which were contaminated with methylamphetamine and cocaine. A DNA profile matching the offender was located on the contaminated scales and there were unused freezer bags.

The Significance of the Standard Non Parole Period

The standard non-parole period offence requires consideration of the provisions introducing the standard non-parole periods which are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 in their present form following the decision of the High Court of Australia in Muldrock v R [2011] HCA 39. These provisions require that the standard non‑parole period for an offence is that which is included in the table to the provisions; the standard non-parole period represents a non-parole period for an offence in the table, taking into account only the objective factors affecting the relative seriousness of the offence, that falls within the middle of the range of objective seriousness. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The Court is to record its reasons for setting a non-parole period that is longer or shorter identifying each factor taken into account. Objective gravity will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A of the Act except for those that are essential elements or integral characteristics.
Fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical, staged or tiered process of reasoning when assessing appropriate sentence but must identify all relevant matters bearing upon the question of the appropriate sentence in the process of intuitive synthesis discussed, for example, by McHugh J in Markarian v R [2005] HCA 25.
In determining sentence for an offence for which there is a standard non-parole period, it and the maximum penalty are legislative guide posts for the sentencing Court along with other established sentencing practices by reference to matters identified in ss 3A, 21A and 22 of the Act. The objective gravity of the offences upon which this offender engaged falls below mid-range of objective seriousness, in my assessment. It is always a matter of judgement to determine where they fall upon the scale and it is a challenge when the Court is left with the paucity of information provided in the facts in these cases. It has been said by Beech‑Jones J at para [37] in his Honour’s judgement in the decision of Ramos v R [2018] NSWCCA 206 that there are, as was in the case before his Honour, instances where it is not possible to determine precisely where on the scale of seriousness an offence might fall.
The alternative submission put in respect of that in the case presented by Al-Khateib, to which I shall come, is that the objective gravity should be assessed below mid-range in such circumstances.
However, I am satisfied that before me there is sufficient material upon which to assess the conduct of the offender Care, in the context in which it was committed, such as to enable me to place in respect of each of these offences the objective gravity point below mid-range, perhaps proximate to a point between halfway from low range to the mid‑range. I have brought to account the circumstances as I have described them, the quantity of drug that was the subject of the charge. I note that methylamphetamine large commercial quantity begins at 0.5 kilograms and there is no upper limit, and it is unfortunately the case that one hears regularly and perhaps if not frequently of larger quantities of this drug being found in the course of investigation.
I also brought to account the amount of the money that is the subject of the charge of dealing with the property suspected to be the proceeds of crime. It is a substantial amount of money but within the context of the circumstances described it is what one might expect in the experience of the Court in such an enterprise where the subject of the drug supply in which the offender was knowingly taking part is but a little more than twice the large commercial quantity.

The Offender

The offender is a young man. He was born in 1996 and thus is now 24 years of age. He has past offending in respect of which he was subject to bail at the time of the commission of the present offences.
The past offence was one of supply prohibited drug. Thus he does not come before the Court as a person of good character and his antecedent record and conditional liberty which he breached are matters that aggravate in this case, but not so as to increase the objective gravity of his offending or the sentence to which he is otherwise exposed, but to inform the Court with regard to prospects of rehabilitation and the need for specific deterrence to be weighed in the sentencing exercise.
He has one traffic offence, driving whilst his licence was suspended, for which he was given the benefit of s 10 Crimes (Sentencing Procedure) Act 1999 and an offence of possessing a prohibited drug of which he was convicted without penalty. He had one custodial offence incurred on 25 February 2020 for disobeying a direction leaving him with seven days off buy‑ups.

A sentence assessment report describes his life with his abusive father who ultimately separated from his mother when the offender was four years of age. Thereafter there were frequent moves to new addresses including refuges. His mother struggled to bring up her young family consisting of the offender and his younger brother. He left school in year 11. He worked in various labouring positions and has had Commonwealth benefits to support him. His history of antisocial behaviour is discussed with reference to his antecedent record. Under the heading, “Attitudes”, the following appears:

“Mr Care commented his drug use was escalating and in retrospect his choice of friends and lifestyle decisions was poor.

He added he stayed at the property at least twice a week [but] was not involved in any dealing/supply and that any money was not his.”

This bare description does little to assist in the analysis of the facts that before me.
His mother was interviewed and is also attributed with a comment that the offender’s friends and acquaintances were poor influences. They were also drug using in the relevant periods. The offender has been using illicit substances since his late teenage years to cope with depressive moods and to make him feel better. His choices have been marijuana, MDMA and ultimately cocaine. He has had no community-based intervention but asserts his determination not to use illicit drugs again. Gaol has been a benefit to him, enabling him to clear his mind and focus upon the need for support in the future. Gambling was a problem for him, but not currently.
A psychological report, which I take to be one prepared by Mr Borenstein, to which I shall come, indicates that he suffered a substance use disorder with depressive disorder. There is no history of prior mental health support or medication. He is attributed with insight, in that gaol has woken him to the problems the drugs have been causing him and others. He is willing to undertake supervision and abide by whatever Court order might be made for community service. The conduct does not allow such a lenient approach in this case. His risk assessment is put at medium upon the level of service inventory - revised. A supervision plan is discussed.
There are two reports from a psychologist. There is an affidavit from the offender and from his mother and there is a reference from his brother.
I accept what is said on his behalf that he had an abusive childhood and it is apparent, as I shall make clear, that he focuses upon his father as the predominant reason for his embarkation upon the criminal misconduct which now has him before the Court. The representations attributed to him and which he has made in his affidavit, however, fail in my view to adequately address the efforts made by his mother to assist him and to be there for him through those difficult years, and it is also to be noted that his younger brother has progressed notwithstanding the difficulties that this family suffered and upon the material I have before me is a worthwhile and contributing member of society.
Thus, though I attribute to the offender the benefit of the principles enunciated in decisions such as Bugmy v The Queen [2013] HCA 37, it must be the case that he has not taken sufficient responsibility for his own decision to misconduct himself at the times when he has.
His affidavit, accurately in my view, in para 4 identifies the challenge he provided for his mother because he was a rebellious son. His younger brother, now 19, has always been quiet. He said growing up was not easy for him and his family. His father abandoned them when the offender was aged four, leaving his mother to support herself and her children without resources, and according to this at no time has his father made any monetary contribution at all to his sons. It is said that he provided work for the offender as an apprentice bricklayer for some three years but even in that arrangement purported to put some of his wages aside to save them for him but has not ever given them to the offender.
He saw his mother struggle through her efforts to provide care for the children including movement from address to address and occupying refuges with random people at least in those initial stages of the separation. He refers to his father cheating on his mother and treating her like, “Crap”, but that must have been in the period of time up until he was four years of age because he had no contact with his father thereafter until some 12 years had passed when he was given the opportunity to work as an apprentice bricklayer during which time his mother had re-partnered. There was an occasion in 2005 when his mother took the boys to see his father but that led to violence by the father upon the mother leaving her bleeding. There is no further description of the extent of any injury she might have suffered in that confrontation.
He describes in his affidavit the move from address to address, his hate for his father. He speaks of it being normal to be in a home where screaming and physical abuse was part of everyday life, but once again that must be up until the age of four and then the subsequent one occasion when he was aged twelve. He writes of the area in which he and his brother and mother lived being less desirable and replete with homeless people and drug users. He had limited opportunities because his mother did not have the money to provide for opportunities such as they might have been for weekend sport. He did poorly at school. When he started high school, he had not achieved his pen licence from his primary school years and he was left to wear torn shoes that he’d had in the years before because his mother could not afford to provide otherwise. He had a bag that his mother acquired from the Smith Family.
All of these circumstances prompted him to turn from the world. His perception was that no‑one seemed to care for him and therefore he wondered why he should care for anyone else. He writes of having not had lunch at school on days when there was no money to provide it. His rebellion increased toward teachers and other students. He avoided class, began fights and stole lunch money from other students. In due course he was expelled in year 10. He then describes his apprenticeship in the course of which his father was abusive. Again, he writes of the father providing no stable home, no money, and hardly any food and screaming abuse every day. Again, that must be in the period up to the age of four years if within his family environment.
He is attributed with a representation that his father at work was so abusive that he would throw tools at him. He writes of having gone home from work each day crying on the train. He attributes to his father actually having ruined his life. He began hanging about with his peers. He perceived them to be the kings of Riverwood. All of them came from similar backgrounds. He was stealing from his mother. He began using cannabis and alcohol, began clubbing where he was introduced to cocaine. He went on two to three day benders. He was consuming two to three grams of cocaine a day increasing to between seven to ten grams per day.
At 21 he was introduced to methylamphetamine and was smoking it every second day. He began acquiring drugs on credit, was using more than he could afford and was gambling anywhere up to $2,000 a day on poker machines.
He acknowledges that he was an overall selfish person. He had no girlfriend, no proper job, no strong family, no father, and no money and was simply a drug addict living day to day. When he was arrested by the police on the first occasion he was high on methylamphetamine and he has no memory of the event. He was released and then continued on the same lifestyle. On the second occasion he was under the influence of cocaine and thus his decision to flee, jump from the balcony and suffer the fractures for which he was treated. These were to both legs, it appears, one requiring a cast and the other a moon boot. He moved about in a wheelchair for some three months.
He has been clean of drugs in custody. He appears to have not had any assistance with regard to his decision not to use drugs. He describes what must have been withdrawal symptoms that he experienced successfully not to return to the poison. He refers to the difficulties his mother has had visiting him in gaol. She does not have a licence. She had to use public transport and travel extensive hours to be able to see him in custody. Of course, there is the added burden of the COVID-19 pandemic which has prevented face to face visits in gaol and contact during this more recent period is limited to iPads, which are not always available to the offender, to keep contact with his mother.
It is apparent that he has strong affection for his mother and that they have a strong relationship. He has undertaken a drug and alcohol addiction course called Remand Addiction through Narcotics Anonymous, which he has successfully completed, and there is a letter of attendance before me. He has become physically fit, training every day, gained weight and has thereby demonstrated at least the capacity for rehabilitation. He has expressed sorrow for having everyone involved in his predicament. He has expressed sorrow for wasting the time and resources of the police and the courts and for the contribution he has made to the downfall of the community. He is hoping to maintain his mother’s forgiveness and he has learned a valuable lesson, he said.
I note that he was not required for cross-examination upon any of the matters that he asserts in this affidavit and though it is for me to determine whether to accept his representations and to attribute weight to them, it is not to be overlooked that the Crown has not sought to challenge his expressions. It is also to be noted, though, that both in that document and in the attributions given him by the psychologist and others who have written on his behalf, there is nothing before me that defines in any particularity the extent of his conduct and his role in this organisation.
I have commented in the course of the presentation of argument regarding the approach to be taken to this misconduct, whether he and his co-offenders are part of a hierarchical structure, at some point below those who are the ultimate beneficiaries of the crimes in which these offenders participated, or whether they were engaged upon their own enterprise in the circumstances described with access to a product which they would have to market. It is not possible to say one way or another. It is sufficient to note, though, that upon the material that I have and the facts provided this was a sophisticated, well-organised enterprise which was fruitful reflected in the amount of money that was seized and the quantity of drugs seized.
I am not satisfied that the offender has put before the Court sufficient material to address the requirement of s 21A(3)(i) which requires the Court to bring to account remorse shown by the offender, but only if:

the offender has provided evidence that he or she has accepted responsibility for his or her actions; and

the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage or both. The second limb of this provision is satisfied, but in the absence of evidence on which it can be shown that the offender has accepted responsibility for the precise and complete role that he had in this endeavour he has not satisfied the first limb of that provision.

The psychologist, Sam Borenstein, provided two reports, the first on 19 September 2019 and the second on 3 November 2020. It is apparent that the first was written in preparation of the first proceedings in which the offender was prosecuted. There is reference in this first report to the second arrest and what befell him when he sought to flee the police, but the report, although used in these proceedings, was primarily at the time of its creation for the earlier proceedings as I understand it. The history given is largely consistent with what is contained in the affidavit to which I have already referred.
The progress made in gaol is described and the wake-up call provided by his arrest and incarceration is noted. His problematic childhood history is discussed. His drug use is discussed. His hate for his father is discussed. His circumstances, born to his mother with a younger brother thereafter, are set out and the abandonment by his father when he was aged four is noted leaving his mother and these boys to find accommodation in refuges where they could. There is reference to his mother’s re-partnering. Overall, she has been married four times. Each one has been, one might say, less than satisfactory. She has upon these facts contained in this report and set forth in her document been the victim of poor decisions made with regard to the partners she has selected.
Mr Borenstein writes of the obvious theme of abandonment in Mr Care’s life. That is not further described other than with regard to his father. It could not be said that his mother has abandoned him at any point. If it is implied in this report that there is a sense of abandonment available from the fact that his mother re-partnered with three other men in marriages that in due course failed and thereupon left him with a sense of abandonment, that is not made sufficiently clear in the report. All of that said though, I am satisfied that the misconduct attributed to his father would be sufficient to found a sense of abandonment with regard to his father’s disregard of obligations.
I would accept the proposition that it is unsurprising that the offender demonstrated oppositional behaviours as described, including in his schooling and in the course of the apprenticeship when his father appears to have persisted in his unfortunate attitude. It is also unsurprising, as noted by the psychologist, that the offender gravitated towards peers which led him into his criminal lifestyle. It is said that he had formed a brotherhood with them, engaging upon misconduct without thinking of consequences. He is said to have had for the first time a sense of belonging in this phase of life. I find that difficult to accept, though, when I note the contribution that his mother and his brother have endeavoured to make to his circumstances.
Upon the material before me I could not find his mother at fault in any regard with the effort she has made for her son; consistent with that is his persistent expression of affection for her and recognition of the significant efforts she has made to provide for him and his brother. This is expressed and implied in his affidavit and in the attributions given him by the psychologist.
He has found faith. Although his father was notionally a Christian, his mother is Muslim. He has elected to follow his mother’s faith and he prays five times a day.
There is a section in the report dealing with his representation that he had perceptual disturbance, hallucinations and a degree of paranoia when under the influence of cocaine, but free of symptoms since he was brought into prison and has been abstaining. This included propositions that he thought the police were following him and had him under surveillance, but that proposition does not sit comfortably with the agreed statement of facts and the conduct upon which he was engaged if he was aware or thought that the police were following him for persisted in the behaviour which has brought him before the Court.
He is said to have started using drugs as a form of self-medication and as a means of maintaining some stability leading to offending behaviour which enabled him to maintain his dependency and his gambling disorder.
The psychologist identifies a pattern of compulsive addictive behaviours and such conduct as a means of dealing with his unrelated recurrent depression and attachment disorder arising from his financial and emotional deprivation evident in his past life. He is diagnosed with a substance use disorder currently in remission, a depressive disorder which is based in his emotional deprivation at the hands of his father, compounded by the experience he had working with his father over the time he was an apprentice bricklayer.
I note that these assessments were made by the psychologist by way of audio-visual link. The limitations are often noted when that course is followed, but little could be achieved otherwise in the present difficulties created by the coronavirus.
The second report largely deals with the same facts that the psychologist had before him, including his problematic childhood, his introduction to drugs through peers and his sense of belonging that he achieved after the feeling of abandonment by his father after the occasion he was given the opportunity to work as an apprentice bricklayer. The report notes in addition, in this instance, his concession that he has never had a healthy male model in his life notwithstanding what clearly were significant efforts by his mother, that have not been sufficient to fill that void, it would appear. He underwent some psychometric testing. He has mild to moderate potential for emotional and/or behavioural problems of clinical significance. He has symptoms of impulsivity, over reliance on compulsive and predictive defences when subject to stress. His results for depression, anxiety and stress were within a normal range and his intelligence assessment is discussed which puts him toward the low range.
His mother’s affidavit generates significant sympathy, I must say. She has had her challenges in life and the last thing that she would need at this point is to see her son in custody looking down from a screen in a courtroom where a Judge is about to deliver sentence. She affirms the difficulties with the offender’s father. She had children from an earlier marriage. That husband abandoned her taking their children with him to New Zealand and she has lost contact with them. The third marriage is described. That involved what she described as a twisted way of disciplining her boys with physical assaults. The offender did not include any information regarding that in his affidavit, but if one accepts it to be the fact that must have contributed to the challenges through his formative years which I must bring to account.
The fourth marriage was to an Egyptian man who, upon this evidence, was using her simply to obtain a permanent residence visa in this country which, when achieved, prompted him to abandon her. She has had difficulties providing homes. At one point she forced the offender out of her home because she had reached the point of being fed up with his conduct and his misuse of drugs and his associates. His arrest in due course helped restore their relationship and now I am satisfied she is going to be there for him and will provide a home for him once he is released. She speaks of the difficulties in visiting him because of not having a licence and because of the virus.
His brother provides a document speaking of his hardships that he can remember in this family, again providing a measure of support for the representations made by and attributed to the offender. He describes his brother as a good person with a good heart. He is open. He is always affectionate with his mother when he sees her and speaks of his intended progress once he is released into the community. He attributes to the offender the description of being drug free and again is clearly someone who holds his brother in great affection.

Consideration

The submissions made on behalf of the offender I have had, both in writing and when Mr James QC appeared before me when he addressed them in some greater detail. I am reminded of the nature of the offending and the maximum penalties which apply to each of these offences including the Form 1 offences. The submissions note that this was a drug operation over some months at two Sydney locations. He suggested that both premises appear to have been used as store houses, and that is probably an accurate description bearing in mind the steps taken to lease the properties by fraudulent means to avoid the disclosure of the identities of those involved.

He correctly points out that there is no evidence of the source of destination of the drugs and limited evidence of the role of the offender, but it is said that it does not seem that he was the principal in the operation. I confess that I am not in a position to make a finding one way or another in that regard. I am left to assess the sentence in this case upon what is known of the activities as described in the agreed statement. That is a matter that I have noted previously.
The injury which he suffered was significant but one must note that this was the product of his decision to flee and jump off a balcony, though it is a matter that must be brought to account because it has impacted upon the nature of the punishment he has been required to suffer.
His history of addiction, both gambling and with substances is summarised. The first offence upon which he was sentenced before this was when he was acting as a drug delivery driver and hence what on first blush seems to have been a lenient outcome. Childhood abuse was discussed.
The facts are noted to be limited in scope and detail. I could not conclude that the offender is a director or the principal manager or organiser in the enterprise, though it is apparent that he was deriving financial benefit. To what extent is not entirely clear. I must proceed, I believe, upon the basis that he was in a subordinate role. To what extent, though, is not possible to determine.
I am reminded of what is said in Olbrich [1999] 199 CLR 270 to which I referred, and other authority, and also a decision of Tepania v R [2018] NSWCCA 247; I would refer particularly to the judgement given by Johnson J dealing with standard non‑parole period offences.
This offence is of being knowingly concerned in the supply of the drug rather than as a principal actually supplying, and in such cases it is usual to see the misconduct to be below the objective gravity of those who are more directly involved in the supply of the drug. It is said that this misconduct is well below mid-range. I have already indicated my view of that.
I am asked to find that he has demonstrated remorse. He has the benefit of his plea of guilty which also indicates a measure of remorse and I find that he has shown some remorse but the extent of it is difficult to determine even on the balance of probabilities and I am not satisfied that he has met his obligation provided in the first limb in para (i) of s 21(3).
I accept that there are special circumstances. He is young. This is his first time in custody and he will need a significant period of time in the community under supervision. Counsel made submissions in the final paragraph as to the appropriate sentence. I debated him upon that on the last occasion. I am of the view that what he suggested is below what is appropriate in this case.

Sentence

In my view, the offence of knowingly take part in the supply of a large commercial quantity of the drug, upon the application of discount of 25% for the utility of the plea of guilty, requires an indicative sentence of imprisonment for 6 years with a non-parole period of 4 years and 6 months. For the offence of dealing with property suspected to be the proceeds of crime, I specify as indicative a sentence of imprisonment for 1 year and 6 months.
The aggregate sentence I propose is one of 4 years and 9 months’ on-parole with a head sentence of 6 years and 9 months commencing on 22 June 2019.
Thus I specify an aggregate sentence comprising a non‑parole period of 4 years and 9 months commencing on 22 June 2019 expiring on 21 March 2024. I impose a further period of imprisonment at the expiration of which the offender will be eligible for parole that shall expire on 21 March 2026. The overall head sentence being one of 6 years and 9 months. I recommend his release to parole at the expiration of the non-parole period.

Related Proceedings

I note that I have been provided with the statement of facts that was before the Court in the prosecution of the man, Malak Hasseini, to whom I referred in the preceding portion of the judgement dealing with Adrian Cosmo Care. These describe a significantly lesser role in the assessment of his sentence compared or contrasted to that which is described in the other documents relating to the other two offenders, Care and Al-Khateib. His result was a Community Corrections Order for a period of 18 months from 24 August 2020 with conditions. That matter was determined in the Local Court at Burwood before Magistrate Horan. I have no other information as to what the magistrate had for the determination of that outcome.

Form 1 Offences

The principal offences upon which I am to specify the indicative sentences required consideration of the facts before me and the Form 1 offences that were to be brought to account. The principles relevant to that consideration are found in the guideline judgement Attorney‑General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 518. The additional offences impacted upon the assessment of the sentence for the principal offence increasing it beyond that which would have been imposed were it standing alone reflecting the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the misconduct upon which the offender engaged and the community entitlement for the retribution as a consequence of the offending.

Sentence Options

I should also note that there is no other option but sentences of imprisonment for these offenders upon the application of s 5 Crimes (Sentencing Procedure) Act 1999. Moreover, all of the purposes for sentencing articulated in s 3A of the same Act are engaged here with particular focus upon general deterrence, and adequate punishment, by a sentence of length and structure to facilitate the rehabilitation that the offender, I accept, has endeavoured to pursue.

Plea of Guilty - Nour Al-Khateib

Nour Al-Khateib pleaded guilty in the Local Court and he is entitled to a discount of 25% to the sentence that would otherwise be imposed for the principal offences before me.