R v Daniali

[2018] NSWDC 440

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Daniali [2018] NSWDC 440
Hearing dates:	28 November 2018
Date of orders:	28 November 2018
Decision date:	28 November 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 7 years, 2 months with a 4 year non parole period: at [21].
Catchwords:	SENTENCING – multiple offences – supply prohibited drug – methylamphetamine – Form 1 offences – knowingly participate in a criminal group – reasonable prospects of rehabilitation – discount for assistance - mid-range of objective seriousness – special circumstances – term of imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act 1985
Cases Cited:	Pearce v The Queen (1998) 194 CLR 610
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown)   Esmail Daniali (Offender)
Representation:	Mr Clayton (Crown)   Mr Afshar (Offender)
File Number(s):	2017/178055

JUDGMENT

1. Esmail Daniali was born in Iran on May 1994 and appears in court today looking much older than his 24 years. He has had a difficult time before he went into custody and an even more difficult time since he was arrested on very serious drug charges on 14 June 2017. He appears for sentence having pleaded guilty to three principal counts with two matters to be dealt with on a Form 1. The first three principal counts all attract maximum penalties of life imprisonment and standard non‑parole periods of 15 years.

2. Sequence 014 was a supply of a large commercial quantity of prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 being 524 grams of methylamphetamine. Sequence 013 is a similar charge involving 1,992 grams of methylamphetamine and sequence 003, a charge under the same section involving 1,695 grams of methylamphetamine. Under sequence 013 there will be two charges dealt with on Form 1 in the way suggested by the Chief Justice in the guideline judgment on these matters, of knowingly direct the activities of a criminal group under s 93T of the Crimes Act 1900 which carries a maximum penalty of 15 years with no standard non‑parole period and a money laundering charge under s 193C Crimes Act 1900, carrying a maximum penalty of three years.

3. He has pleaded guilty at the earliest reasonable opportunity, and the Crown concedes that a 25% discount for the utilitarian value of the plea should be allowed. There is a further issue as to whether any discount should be applied for past and future assistance. In my view, a total additional discount of 10%, with 5% for past assistance and 5% for future assistance should be applied, thus making a total discount of 35% on the term of imprisonment which Mr Afshar of counsel concedes is required by the circumstances of this case so it is unnecessary for me to consider any alternatives.

4. The assistance that he has provided has taken the form of providing evidence in a Basha inquiry, in anticipation of him giving evidence in a trial involving his cousin on charges involving cocaine supply to be heard in February 2019. He has also offered to give assistance by way of answering a subpoena to give evidence next week in a trial commencing in this Court involving an alleged co‑offender Mr Farmani. I am satisfied that his evidence today will be of some assistance to the Crown in that case assuming he comes up to proof on his evidence today.

5. The agreed facts demonstrate that he was married to Georgia Markee, who I have already sentenced today for her involvement in this offending, but there is no real question of parity with her given her vastly different subjective circumstances and her objective engagement in the enterprise.

6. In short, in March 2017 an undercover operator (UCO) contacted Daniali to purchase 14 grams of methylamphetamine or ice. He told the UCO to meet his wife Markee and he would be supplied with 14 grams for $2,000. The next day, 15 March, Daniali met another UCO and provided him with 14 grams approximately for $2,000. The purity level of these was high, in the order of 77% for all of the amounts mentioned. There were further supplies by Daniali to a UCO:

• 23 March: 27 grams for $4000;

• 3 April:112 grams for $14,800,

• 5 April: 51 grams for $7,800 and

• 15 April: 300 grams for $38,000,

In in total between 14 March and 15 April he supplied 524 grams for a total of $68,600 which is the substance of sequence 014.

7. Under a controlled operation, Daniali met the UCO at Rose Hill on 17 May and they discussed the supply of a kilogram of ice for $130,000. This led to the next series of offences referred to as the Rydges Hotel offences, namely sequence 013 involving the large commercial supply and sequence 005, direct the activities of a criminal group.

8. On 14 June he arranged to supply 2 kilos of ice to the UCO for $250,000. This was going to take place at Rydges at Rose Hill. Daniali, Farmani and Markee went to the hotel and checked into a room pre‑booked under the name of Markee. A UCO had a backpack with $250,000 cash in it. Daniali tore up a brown teddy bear and there was a kilo of ice inside it. He then opened up a pink teddy bear and there was another kilogram of ice inside that. Farmani was standing there next to the green backpack containing the $250,000 cash when tactical police officers stormed into the room and arrested Daniali and Farmani. There was 1,992 grams of ice in the packages.

9. A Meriton swipe card was found on searching Daniali and that led police to go to room 517 at the Meriton, where Markee was found and arrested in circumstances set out in my remarks about her earlier today. There was 439 grams of methylamphetamine located in a baking dish and $10,850 cash which is the subject of the money laundering count. Daniali had directed both Farmani and Markee to assist in the deal on 14 June and each of them willingly assisted. All contact with the UCO was conducted by Daniali. There was no evidence of Farmani having contact with the UCO and Markee’s only contact with the UCO was during the initial supply on 14 March.

10. Daniali has no criminal record in Australia.

11. A quantity of material was provided by Mr Afshar  which commences with a report of Dr Ahmed, consultant psychiatrist. It sets out a history of a 24 year old Iranian man with a several year the story of methamphetamine abuse, using ice regularly due to his difficulties with a tick which is quite obvious in court today and is obviously a matter of some distress and inconvenience to him.

12. His drug use came to a head when his supplier demanded $50,000 for the long‑term supply of methamphetamine and he thereafter threatened him and his family including his family in Iran. The offender gave evidence and was open to cross‑examination on the accuracy of this history which was not challenged.

13. He was born in Tehran. His father was a heavy drug user and owed lots of money to other people. He said there was a lot of domestic violence in the household. His father left when the offender was 11. There was a lot of pressure on the offender to try to fund the household. He said he was sexually abused in Iran by a religious teacher which made it difficult to respect the Islamic religion.

14. He had been working for a few years after school before travelling to Australia with the help of family and friends by boat. He flew to Indonesia and then got on a boat to Christmas Island. He had some work in Woolworths and as a removalist and then he met his partner Georgia Markee who was a hairdresser who helped him learn English. A very serious assault occurred which led to him having major cranial surgery in August 2018 while in custody.

15. The psychiatrist accurately describes him as an intriguing case showing a degree of naivety and it was possible that his judgment was impaired while he was a heavy user of ice. The consensus from the brain injury team was that there was significant cognitive deficit but it should resolve over time. He was diagnosed as having methylamphetamine dependence, now under remission, and an acquired brain injury by the fall and associated subdural haemorrhage. A combination of his tick and his brain injury made him more vulnerable in a custodial setting and he reported to the psychiatrist and gave evidence today of mistreatment and many threats while in custody.

16. I note a reference from Irene Markee who has known the offender for some five years and speaks favourably of him being a compassionate person who has changed his attitude since being in custody. I take account of a handwritten reflection by the offender which is consistent with what I have referred to by way of history. He amplifies the very difficult time that he is having while in custody. He asserts that he has lost 40% of his memory and he has reflected upon what he has done and he hopes to be a good role model in the future. I accept his expressions of remorse and although it is irrelevant to the sentencing exercise he recognises the likelihood that he will be deported to Iran on his ultimate release.

17. The role of the offender, of course, must be assessed in determining the objective seriousness of the matter. The Crown submits that his involvement is towards the mid‑range of objective seriousness. That is a characterisation that is not challenged by Mr Afshar and is probably appropriate given the facts to which I have referred. The Crown does not rely upon planning as an aggravating factor, conceding that there is no evidence of planning beyond what is implicit in a large commercial supply of this nature. The Crown concedes that a finding of special circumstances should be made. Reference has been provided by the parties of a schedule of sentences produced by the Public Defender’s website in relation by these charges and I have had limited regard to that material.

18. I have been assisted by comprehensive written submissions by Mr Afshar. He correctly points me to the need to consider the terms of s 3A of the Crimes (Sentencing Procedure) Act and the purposes of sentencing set out therein. He notes the relatively confined period of the offending conduct between March and June 2017. He acknowledges the role of the offender as a leading participant in the operation, but he asks me, correctly in my view, to consider his involvement in the context of the broader forces of the threats made to him and Ms Markee and his family and in terms of the subjective features Mr Afshar highlights in the evidence as to his background, his character, the references from Irene Markee and his expressions of contrition.

19. In terms of mitigating factors he has pleaded guilty and I accept his expressions of remorse. I think his prospects of rehabilitation are reasonable if he is to continue the type of treatment that is outlined in the material in particular in the report of Dr Ahmed. I take account of the vulnerabilities of the offender without relevant support networks at the time of the offending but not by way of diminishing the objective seriousness of the case. I take account of the fact that his time in custody will, by reason of his lack of support, but more importantly his medical condition, is a matter which will cause his incarceration to entail greater hardship than someone without those difficulties. I note the submission that all of the offences were committed in respect of contact with undercover operatives but the authorities are clear that the fact that the drugs were not disseminated into the community is not a matter of any great significance.

20. I have dealt with the assistance that has been provided and has been promised and will quantify that as I have said. Questions of accumulation and totality must be considered in the light of authorities such as Pearce v The Queen (1998) 194 CLR 610 and it is appropriate in my view to impose an aggregate sentence with, as the Crown correctly submits, a degree of accumulation given the separate episodes of criminality.

21. The orders that I make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 7 years 2 months, to commence on 14 June 2017 and expiring on 13 August 2024.

3. I impose a non-parole period of 4 years, expiring on 13 June 2021. The offender is eligible for release to parole on that date.

4. The indicative sentences are:

1. Seq 013, taking into account the Form 1 offences: 5 years, 10 months; non-parole period 3 years, 6 months;

2. Seq 014: 4 years; non-parole period2 years, 9 months;

3. Seq 015: 5 years, 3 months; non-parole period 3 years, 5 months

5. I find special circumstances.

Note – This extempore judgment was revised without access to the court file.

Amendments

27 February 2019 - Minor changes at [4], [8], [11], [13]; correction of a date at [18].

13 March 2019 - Updated decision details on cover sheet; Anonymised unique personal identifiers on coversheet and at [1].

Decision last updated: 13 March 2019