R v Ekabie

[2022] NSWDC 548

District Court

New South Wales

Medium Neutral Citation:

R v Ekabie [2022] NSWDC 548

Hearing dates:

03 November 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1    The offender is convicted.

2 This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999.

3   The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

Sequence	Offence	Indicative sentence
1	Supply a large commercial quantity of methylamphetamine, taking into account the matters on the Form 1	4 years and 6 months with a non-parole period of 2 years and 3 months
5	Supply a large commercial quantity of gamma butyrolactone	3 years with a non-parole period of 18 months

4     I impose an aggregate term of imprisonment of 5 years with a non-parole period of 2 years and 9 months to date from 19 March 2020. The non-parole period will expire on 18 December 2022 and the head sentence will expire on 18 March 2025. The offender will be eligible to be released on parole on 18 December 2022.

5      Sequences 1 and 3 (back up offences on the s 166 Certificate are withdrawn.

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Regina (Crown)
Steven Ekabie (Offender)

Representation:

Counsel:
D Carroll (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
T & S Law Firm (Offender)

File Number(s):

2020/194241
2020/87942

Publication restriction:

None

JUDGMENT

Introduction

1. Steven Ekabie (the offender) appears for sentence after pleading guilty to the following offences:

Sequence	Offence	Maximum Penalty and SNPP
1	Between 13 November 2019 and 19 March 2020, he did supply a large commercial quantity of methylamphetamine, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW).	Life imprisonment SNPP – 15 years
5	On 19 March 2020, he did supply a large commercial quantity of gamma butyrolactone, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW).	Life imprisonment SNPP – 15 years

2. The offender also asks the Court to take into account the following offences on a Form 1 when dealing with Sequence 1:

1. supply a commercial quantity of a prohibited drug, cocaine, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW)

2. supply a commercial quantity of a prohibited drug, heroin, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW)

3. supply a prohibited drug, cannabis leaf, contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW).

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act. For sequence 1, the offender entered a plea of guilty in the District Court and is entitled to a 10% discount on sentence.

5. For sequence 5, the offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

7. The parties tendered an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. The offender was born in 1972. He was 47 years old at the time of the offences.

9. Abdul Ali-Ahmed operated a drug supply syndicate during the offending period. His primary customer was Kyle Thompson. The offender delivered prohibited drugs to Mr Thompson on Mr Ali-Ahmed’s behalf on eight occasions from 13 November 2019 to 19 March 2020. The amount and type of drug supplied by the offender varied, depending on what Mr Thompson would request from Mr Ali-Ahmed.

10. For each delivery, the offender used his own vehicle, a Mazda 3, except on 13 February 2020 where he used a rented Toyota Hilux and on 19 March 2020 when he used a Toyota Corolla.

11. The offender was arrested on 19 March 2020 whilst undertaking the eighth delivery.

Count 1 – Supply a large commercial quantity of methylamphetamine

12. The offender delivered prohibited drugs to Mr Thompson on eight occasions between 13 November 2019 and 19 March 2020, summarised below. Over this period, the offender supplied a total of 4.5 kilograms of methylamphetamine to Mr Thompson (Count 1). He also supplied 420 grams of cocaine and 364 grams of heroin during this period which are the Form 1 offences.

Supply on 13 November 2019

13. On 12 November 2019, Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson requested “salt and vinegar”, a reference to a particular batch of methylamphetamine. He also requested “nose” (cocaine) and “hammer” (heroin). On 13 November 2019, the offender delivered 500 grams of methylamphetamine, 85 grams of cocaine and 364 grams of heroin to Mr Thompson’s residence.

Supply on 9 December 2019

14. On 8 December 2019, Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson requested “the nose one”. On 9 December 2019, the offender delivered 28 grams of cocaine to Mr Thompson’s residence.

Supply on 14 December 2019

15. On 13 November 2019, Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson said, “I’ll probably need two”, meaning two lots of 500 grams of methylamphetamine. On 14 November 2019, the offender delivered 1 kilogram of methylamphetamine to Mr Thompson’s residence.

Supply on 23 December 2019

16. On 22 December 2019 Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson requested “a couple of noses” and “the other one”. On 23 December 2019, the offender delivered 500 grams of methylamphetamine and 56 grams of cocaine to Mr Thompson’s residence.

Supply on 29 December 2019

17. On 28 December 2019, Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson said, “I only want the nose…I think I want five”. This was a reference to five ounces of cocaine. On 29 December 2019 the offender delivered 140 grams of cocaine to Mr Thompson’s residence.

Supply on 26 January 2020

18. On 25 January 2020, Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson requested three “noses”. Mr Ali-Ahmed said, “I’ll send my mate. Old mate.” On 26 January 2020, the offender delivered 84 grams of cocaine to Mr Thompson’s residence.

Supply on 2 February 2020

19. On 1 February 2020, Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson requested “two of them”. On 2 February 2020, the offender delivered 1 kilogram of methylamphetamine to Mr Thompson’s residence.

Supply on 13 February 2020

20. It is not known how the drug supply on this occasion was arranged. On 13 February 2020, the offender drove to Mr Thompson’s residence with 500 grams of methylamphetamine and 28 grams of cocaine. On this occasion, Mr Ekabie drove a rented Toyota Hilux, and he towed a jet ski from Mr Ali-Ahmed’s residence to Mr Thompson’s residence. The telephone conversation between Mr Ali-Ahmed and Mr Thompson on 15 February 2020 indicated that methylamphetamine and cocaine had been supplied.

Events on 14 March 2020

21. On 14 March 2020 at about 4.05am, the offender and Mr Ali-Ahmed spoke by phone and the offender asked about the location of a key for a small white car. Mr Ali-Ahmed said he didn’t know. Shortly after this, the offender began driving to Mr Thompson’s residence in a white Toyota Corolla. The offender arrived at Mr Thompson’s residence at 9.21am. At about 10.34am, the offender and Mr Ali-Ahmed had an exchange about money owed to Mr Ali-Ahmed by Mr Thompson from previous deliveries.

Supply on 19 March 2020

22. On 17 March 2020, Mr Ali-Ahmed and Mr Thompson spoke by phone. Mr Thompson requested “the usual”. Mr Ali-Ahmed agreed to supply Mr Thompson 1 kilogram of methylamphetamine.

23. On 19 March 2020, the offender met with Mr Ali-Ahmed in Yagoona, before driving towards Wellington in the same white Toyota Corolla that he had used on 14 March 2020. The offender was stopped by police in Molong at about 6.00pm on his way towards Wellington. The police officers who stopped the offender were not aware of the investigation into the drug supply operations being conducted by other officers. The offender told police who stopped him that he was travelling to Dubbo to visit a friend. The offender appeared nervous. Police conducted a random breath test and searched the vehicle.

24. Police located 991 grams of methylamphetamine in the door cavity of the rear driver-side door. The charge particularised 1 kilogram of methylamphetamine because that was the amount that had been agreed to supply to Mr Thompson.

25. While searching the vehicle, police also located 451 grams of cannabis leaf in the door cavity. The offender’s fingerprints were located on the inside and outside of the door where the drugs were located.

26. The offender was arrested and conveyed to Orange Police Station. At this time, he was only charged in relation to the prohibited drugs located during the vehicle stop.

Count 5 – Supply a large commercial quantity of gamma butyrolactone

27. The offender’s residence was searched shortly after his arrest. Police located 86.993 kilograms of GBL. This was contained in three large plastic barrels, the contents of which had a purity of 92.5%, and thirteen 1.5 litre water bottles, the contents of which had a purity of 96–99%. Three fingerprints matching the offender’s were located on some of the bottles. DNA that was not inconsistent with the offender’s was found on a container lid.

28. Two empty plastic containers labelled “Mex” were seized and later found to have traces of methylamphetamine in them.

29. A review of intercepted phone conversations prior to the offender’s arrest revealed the following:

1. on 16 March 2020, Mr Ali-Ahmed negotiated the supply of 1kg of GBL for $800 to Ms Mavros in Yagoona. The offender delivered the GBL to Ms Mavros’ residence at about 2.23pm;

2. on 17 March 2020, Mr Ali-Ahmed had a phone call with an associate about having just picked up “drums”;

3. phone calls between the offender and Mr Ali-Ahmed from 17–18 March 2020 discussed the GBL at the offender’s residence. Mr Ali-Ahmed asked the offender to count the bottles of “juice” at his home and the offender told him that he had 15. Mr Ali-Ahmed then told the offender that a person named “Jimmy” wanted “juice”;

4. on 19 March 2020, the offender had a phone conversation with an associate about the price of a litre and a half-litre of the GBL. The conversation ended with the offender saying, “I’ve spoken to him regarding giving you a better price, he said 800 is the limit.”

Offender’s Case on Sentence

30. The offender relied upon the report of psychologist Helen Baker dated 27 October 2022, which can be summarised as follows.

31. The offender was born in Iraq in 1972. His parents had four sons and one daughter. The family practised the Islamic faith.

32. The offender completed high school when he was 17.

33. At 18, the offender began compulsory military service. The offender rose to a position of some rank in the military, before running away because he could not follow an order to kill civilians including, women and children. Within a month of absconding, he was found and imprisoned for two years. During this period of imprisonment, the offender was tortured. He described the torture to Ms Baker as severe for the first six months, before easing in its frequency and severity.

34. After being released from prison, the offender was required to complete his compulsory military service. He was discharged from the military in 1996.

35. The offender reported to Ms Baker that he has had nightmares and hallucinations about his experiences in Iraq, particularly his incarceration and torture. Ms Baker commented that these are symptoms of complex post traumatic stress disorder (PTSD).

36. In 1997 the offender crossed into Jordan. He worked there for three years, saving enough money to fly to Indonesia. From Indonesia, he took a boat with other refugees to Australia. Part of the way across the Arafura Sea, the boat’s engine broke down and had to be turned back to Indonesia.

37. In due course, the offender was granted refugee status by the Australian Government. He later became an Australian citizen. The offender’s family remained in Iraq. The offender has not been able to go back to visit them. While he has been in Australia, his mother died in 2008 and his father died in 2016. His three brothers were killed in the war. One of his brothers was killed after a bomb exploded in the street. His sister still lives in Iraq.

38. The offender reported that during his first three years living in Sydney, he could not find a job as he did not speak English. From time to time, he experienced homelessness.

39. After three years in Sydney, the offender moved to Darwin and later Katherine, working collecting shopping trolleys. He had to cease work after suffering a back injury.

40. At around this time, the offender was given medication to address his nightmares. The offender reported that this medication did not work, so he ceased taking it.

41. He then returned to Sydney to work as a labourer and handyman. In this job, he began to make friends. One of these friends was Mr Ali-Ahmed.

42. Soon after their friendship began, the offender was invited to Mr Ali-Ahmed’s home to see his new cars and house. Mr Ali-Ahmed also showed the offender a large amount of money, which he claimed to have earnt “working”. Shortly after this, the offender began working for Mr Ali-Ahmed, making deliveries and returning to him with their payment. From this payment, the offender would take a sum that he and Mr Ali-Ahmed had agreed to.

43. The offender’s hospital records from 2020 suggested possible use of recreational drugs, particularly crystal methylamphetamine.

44. Ms Baker opined that the offender has complex PTSD, moderate depression and grief, long standing pain and injury issues from his incarceration in Iraq, longstanding poverty with instances of homelessness, and likely self-medication using prohibited drugs. She also suggested that he may have Attention Deficit Hyperactivity Disorder (ADHD).

Consideration

Objective seriousness

45. The offences involve some objective gravity.

46. It was common ground that the offender’s role in the operation was that of a driver and warehouser of the GBL, acting at the direction of Mr Ali-Ahmed. The offender otherwise had limited involvement in the organisation of the activities of the operation.

47. The offender drove long distances and was entrusted with collecting money on behalf of Mr Ali-Ahmed. He used a mobile telephone to act as an intermediary between Mr Thompson and Mr Ali-Ahmed.

48. The offender was paid for his involvement on a transaction basis and was not entitled to a share of the profit of the operation.

49. The offending conduct was not isolated. There was evidence to suggest that the offender also stored methylamphetamine at his residence.

50. The large commercial quantity for methylamphetamine is 0.5kg. The total quantity supplied was 3.5kg with an agreement for a further 1kg to be supplied. This is 9 times the large commercial quantity. The supply of methylamphetamine involved six trips over four months.

51. The large commercial quantity for GBL is 4kg. The offender was in possession of 86.993 kg for the purpose of supply. This is more than 21 times the large commercial quantity. The purity was high at 92.5%-99%.

52. The offences occurred in the context of deprivation, experiences of trauma resulting in complex PTSD, financial strain and a lack of family support leading to self-medication with illicit substances. I am satisfied that the offender’s moral culpability for the offences is reduced to some extent.

53. I have taken into account the maximum penalty for the offences and the standard non-parole periods which are set very high.

Deterrence

54. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of severe punishment.

55. There is a need for specific deterrence but it is reduced to some extent. The offender’s time in custody has been difficult for him as a result of the COVID-19 pandemic and by reference to his experience of imprisonment in Iraq.

Aggravating factors

56. There are no relevant aggravating factors.

Mitigating factors

57. The offender did not have any significant record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

58. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has led a relatively crime free life until these offences, notwithstanding his difficult life circumstances. He has only incurred one misconduct charge in custody. He has accepted responsibility for his actions and entered an early plea of guilty. I am satisfied that with supervision on parole that he will have good prospects of rehabilitation.

Parity

59. I must have regard to parity. There were eight co-offenders who have been sentenced for conduct that overlaps with the offender’s. It was common ground that the offender’s role is most comparable to the co-offenders, Simon Pratt and Riaz Khan.

60. Mr Pratt was sentenced to an aggregate sentence of 4 years and 9 months, with a non-parole period of 2 years and 8 months by her Honour Judge Woodburne SC for the following offences and other offences on a Form 1:

1. supply of a large commercial quantity of a prohibited drug, methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW);

2. accessory before the fact to robbery in company, contrary to ss 97(1) and 346 of the Crimes Act 1900 (NSW).

61. The robbery offence was related to the drug supply business. The relevant indicative sentence for the supply offence was 3 years and 9 months with a non-parole period of 2 years and 3 months.

62. Mr Khan was sentenced to an aggregate sentence of imprisonment of 3 years and 6 months with a non-parole period of 1 year and 11 months, for the following offences:

1. supply prohibited drug, methylamphetamine, contrary to s 25(1) Drug Misuse and Trafficking Act 1985;

2. supply prohibited drug, methylamphetamine, in not less than the commercial quantity contrary to s 25(2) Drug Misuse and Trafficking Act 1985;

3. participate in a criminal group contrary to s 93T Crimes Act 1900.

63. The relevant indicative sentence for the commercial quantity supply offence was 3 years with a non-parole period of 1 year and 8 months.

64. Mr Pratt and the offender both liaised directly with Mr Thompson and Mr Al-Ahmed in making some arrangements and entering into some negotiations on behalf of the drug operation. The offender undertook more trips and supplied a higher quantity. Taking into account all the circumstances, the offender is more culpable than Mr Pratt.

Other matters

65. I will backdate the sentence imposed to the date of his arrest to take into account the offender’s pre-sentence custody.

Penalty

66. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

67. The offender is convicted.

68. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999.

69. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the relevant discount for the plea of guilty are:

Sequence	Offence	Indicative sentence
1	Supply a large commercial quantity of methylamphetamine, taking into account the matters on the Form 1	4 years and 6 months with a non-parole period of 2 years and 3 months
5	Supply a large commercial quantity of gamma butyrolactone	3 years with a non-parole period of 18 months

70. I make a finding of special circumstances. The offender has mental health and addiction issues that require a longer period of supervision on parole to assist him to reintegrate into the community. His time in custody has also been difficult because of his previous incarceration and torture in Iraq and the impact of the COVID-19 pandemic.

71. I impose an aggregate term of imprisonment of 5 years with a non-parole period of 2 years and 9 months to date from 19 March 2020. The non-parole period will expire on 18 December 2022 and the head sentence will expire on 18 March 2025. The offender will be eligible to be released on parole on 18 December 2022.

72. Sequences 1 and 3 (back up offences on the s166 Certificate) are withdrawn.

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Decision last updated: 11 November 2022