R v Chalak

[2016] NSWDC 215

District Court

New South Wales

Medium Neutral Citation:	R v Chalak [2016] NSWDC 215
Hearing dates:	30 June 2016; 9 September 2016.
Date of orders:	09 September 2016
Decision date:	09 September 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment. Taking into account the matter of a Form 1, impose a non-parole period of 3 years with a head sentence of 5 years. The offender is ordered to pay the State of New South Wales the sum of $65,650 representing the benefits he obtained from drug trafficking
Catchwords:	CRIMINAL LAW – Sentence – Commercial drug supply – Methylamphetamine – Offender on the MERIT program at time of the offence
Legislation Cited:	Compensation of Proceeds of Crime Act 1989
Category:	Sentence
Parties:	The Crown Hady Chalak
Representation:	Counsel: Mr P Naughtin - Offender   Solicitors: The Director of Public Prosecutions Aston Legal - Offender
File Number(s):	2015/132203

Judgment

1. HIS HONOUR: For a period of about three months in early 2015 the offender was the subject of an investigation into what were revealed to have been his drug dealing activities. He was an enthusiastic drug supplier, having more than 60 customers and over a period of 26 February 2015 to 4 May 2015 supplying methylamphetamine on about 100 separate occasions. In total he supplied somewhere between 250 and 260 grams of methylamphetamine which means that I have to sentence him for an offence of supplying a commercial quantity of that drug.

2. He has pleaded guilty to that offence and so the sentence I will impose upon him will be about 25% less than it would otherwise have been. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years. My reasons for not imposing the standard non-parole period appear in these remarks on sentence.

3. There is also a Form 1, an offence of allowing premises to be used as drug premises. Somewhat surprisingly, given the way the offence is described, the offence relates not to premises but to a rental car which the offender used to deliver drugs. The offender has asked that I take that into account when I sentence him for the substantive matter but I do have to say that the offence on the Form 1 adds very little to the offender’s overall criminality. The fact that he was using rental cars to deliver the drugs he supplied is something that I have already taken into account in assessing the objective gravity of the offender’s drug supply activities.

4. Police surveillance of the offender was both physical and by means of intercepting his telephone calls. The first specific supply identified by the police was a supply of 3.47 grams of methylamphetamine for $900 to an undercover police officer. This occurred on 24 February 2015. On 2 March 2015 he supplied 3.5 grams of methylamphetamine to a female person for $900. Two days later he supplied 6.9 grams of methylamphetamine to an undercover police officer for $1,800. On 16 March 2015 he supplied 0.17 of a gram of methylamphetamine to a male person for $100 and then on 19 April the offender was arrested by police who searched the car he was in. Secreted within it police discovered a number of bags containing what was later found to be methylamphetamine. There were 135 knotted plastic bags, 134 of which appeared to be ready for individual deals while the remainder contained a large quantity.

5. It is important to emphasise what I have just said. The Crown submission is that the offender was effectively running a business of drug supply. The evidence clearly establishes that that was the case. When arrested by police he was ready and able to supply 134 separate deals and had a bulk of the drug from which other supplies could have been made. Of those 134 knotted bags 60 contained a point of methylamphetamine which police surveillance revealed the offender sold for $50, 62 of the bags had 2 points of methylamphetamine which the offender sold for $100 and 12 of the bags had a half ball in them which the offender sold for $450. The remaining bag had 10.16 grams of methylamphetamine in it. These drugs were to be supplied to customers as part of the offender’s ongoing drug dealing business.

6. After the police stopped him the offender was charged with possession of a prescribed restricted substance and allowed to leave. Seized from him were a number of mobile phones, one of which was shown to have been used for the supply of prohibited drugs by the offender. Analysis has revealed about 100 individual drugs supply transactions between 26 February and 30 April 2015 with multiple customers. It is not a case either of the offender only supplying to end users, he also supplied to those who on-supplied to drug users. On a number of occasions the offender sold to a woman by the name of Jessica Grundy 14 grams of methylamphetamine and on other occasions there were supplies to a woman by the name of Chale Hunt as part of which Ms Hunt arranged for the offender to supply to others. Eventually the offender was arrested again on 4 May 2015 and charged with supplying a commercial quantity of methylamphetamine.

7. It is important in assessing his criminality of course to undertake an assessment as to the level of his drug dealing. The facts relied on by the Crown refer to 11 actual supplies of drugs, the quantity involved in those supplies being 89.4 grams. There were two supplies to an undercover officer, three to Ms Grundy, four to Ms Hunt and two to an unknown person. The remaining supplies appear to have involved a total of something in the order of 114 grams. Very rough estimates as to the amount of money involved suggest that the 11 actual supplies were for a total of $20,050, that he could have sold the drugs found in the car for about $17,300 and that the remaining 90 odd supplies would have involved a sum of about $45,600. Of course these estimates are far from precise but they are useful in providing some indication as to the extent of the offender’s criminality.

8. Other indications of the criminality involved concern the number of customers the offender had, in excess of 60, and things said in some of the telephone calls which indicate how busy his drug dealing activities kept him. At one stage he was revealed to being reluctant to go to an area where mobile phone reception was poor. I am satisfied this was because he depended on his mobile phone so as to be contactable by drug users so that he could supply to them.

9. It almost goes beyond saying that this was not a case where the offender was selling drugs to a limited number of his friends. Instead he was, as I have already said, an enthusiastic drug supplier. He was one who was willing to accept new customers and even on occasion to assist in the obtaining of drug administration paraphernalia for a person who needed that equipment to use the drug he supplied her.

10. The offender is now a very different person to the person he was when he was supplying drugs to that significant extent. The evidence has demonstrated that as he was growing up the offender was a kind, compassionate and happy person. When he was supplying drugs he was far from that. He was selfish, depressed and a seriously criminal offender.

11. The offender has two siblings, older than him, both of whom gave evidence in these proceedings. As he was growing up tension developed between his mother and father. I accept that the offender took this to heart much more than his older siblings. Eventually his parents separated and his father went to live in Lebanon. The offender took this badly. His behaviour changed, it changed dramatically. He became a poor student, was suspended, found himself socially isolated and so he started to use drugs at about the age of 12 or 13. He told me that drugs helped him to escape reality. He soon, as is quite commonly the case, moved from marijuana to more serious drugs such as MDMA. His behaviour at school was so poor that at one stage a restraining order was put on him. Not surprisingly given his behaviour at school he left and had a number of jobs before his arrest but,. as he told me, lost those because of his drug use. He was not a good employee. At one stage he went to Lebanon to see his father. Before going he was using a mixture of heroin and ice and after coming back from Lebanon he tried to get a job but never was successful.

12. He got into the drug supply business he says because of a number of factors. He said he owed money to the State Recovery Office because of parking fines and similar. He says he owed money to his mother. There was no corroboration as to the extent of the debts and indeed his siblings knew nothing of this, but in one sense it would even be worse if the offender did get into drug dealing to pay off his debts because that involves much more of a financial reward than would be the case if he was simply supplying drugs so that he could support his own habit.

13. As I have heard repeatedly when drug users give evidence, when they are using drugs they are oblivious to anything else. The offender told me that that was the case with him. He said he could not see anything past drugs and so using drugs and then supplying them overcame him until really that was the sole focus of his life. Since going into custody he has become, as I said earlier, a very different person. He is not using drugs. Every witness called by Mr Naughtin who appears for the offender spoke of the significant physical change in the offender, to say nothing of the change in his outlook.

14. He has the support of his family, many of them are in court today, although I do have to say that he had the support of his family at the time he was committing these offences and so it is not simply enough to say that the substantial support that he has available to him means that he has good prospects of rehabilitation. I accept that what has changed is that the offender is now more willing to accept his family support than he was when he was supplying drugs but in terms of assessing his prospects for rehabilitation it has to be remembered that he is in custody and when he is released from custody he will face challenges. How he responds to those challenges is somewhat uncertain. There is substantial hope that he will accept the support of his family and be able to stay off drugs and not relapse but I cannot say that there are good prospects that that will occur, much remains to be seen.

15. It is notable that the offender was involved in his drug supply activities at a time that he was actually attending court for another drug matter and at a time he was required to visit his parole officer. Indeed, he was on a MERIT program at the time of his arrest. It is also significant that having been arrested by police on one occasion and had his mobile phone seized he immediately went out the following day and recommenced drug supplies after obtaining a new telephone and registering it with the same telephone number so that he would not miss out on any customers.

16. The Crown does not accept that the offender was using drugs to the extent that he says he was. The Crown relies on the evidence of the officer in charge who has listened to many telephone calls and seen the offender during the period of his drug supplies, but not too much can be made of this. Certainly the offender had a drug habit. Certainly he was not thinking about much other than drugs and how to get them and how to supply them and there is no suggestion that the offender was living what I will call a champagne lifestyle. To the contrary, like most drug suppliers, he was depressed, miserable, isolated with not a great deal of purpose in life at all.

17. The offender is now only 22. He was of course younger when he committed these offences and I have taken that circumstance very much into account in his favour. He has at one stage been diagnosed as suffering from bipolar disorder but the psychiatrist who saw him for the purpose of these proceedings had some doubts as to whether that was a correct diagnosis. Whatever the precise diagnosis there is no doubt that he has for some time suffered from significant depression and experienced mood swings and abused substances.

18. I mentioned that he was using significant quantities of drugs when he was supplying them. It is of course commonplace for drug suppliers to be drug users. Almost all of them have the same focus in life at the time they are supplying drugs, that is, to do whatever they can to get drugs to use them and so it is not a mitigating factor when the offender’s position is compared to most other drug suppliers that his use of drugs diminished his ability to think logically about what he was doing.

19. I have no doubt that the offender now is a very different person to the one he was when he supplied drugs, but the principles of general deterrence and to some extent personal deterrence still remain. There was reference in today’s proceedings to the prevalence of drug supplies and drug users. This case is yet another example of the awful things that drugs do to otherwise decent human beings. They turn them from, as the offender was, a fine, compassionate, happy person into miserable people who are prepared to commit serious criminal offences to fund and satisfy their own addictions. That is precisely why the principles of general deterrence have such a significant part to play in the present case. As I said, personal deterrence remains important too. The offender needs to know when he faces challenges upon his release from custody, when he is tempted to use drugs, when he finds himself at a low point, that if he does decide to use drugs and certainly if he then decides to supply drugs to fund his drug addiction he will go to gaol for a significant period of time.

20. There are special circumstances in this case. The Crown accepted that but made the point, and a point which I accept, that he did not take advantage of opportunities that were made available to him before, the Crown of course referring at that stage to the fact that the offender was actually on the MERIT program at the time he was committing these offences.

21. Taking into account the matter on the Form 1 the offender is sentenced to imprisonment. I set a non-parole period of three years to date from 4 June 2015. I set a head sentence of five years. The non-parole period will expire on 3 June 2018 on which date the offender is eligible to be released to parole.

22. The Crown moves on a notice of motion in which it seeks an order that pursuant to s 29 (1) of the Compensation of Proceeds of Crime Act 1989 I assess the value of the benefits from the drug trafficking derived by the offender, Hady Chalak, and order that Hady Chalak pay to the State a Drug Proceeds Order equal to the value so assessed.

23. The Crown has calculated, doing her best from the information available to her, that the benefits derived by Mr Chalak amount to $65,650. The Crown relies on evidence adduced in the sentence proceedings in making that calculation. Mr Naughtin on behalf of the offender having been given time to consider the Crown’s application and discuss the matter with his client does not oppose the making of an order in those terms.

24. So I order that Hady Chalak pay to the State of New South Wales the sum of $65,650 representing the benefits he obtained from drug trafficking.

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Decision last updated: 22 March 2018