R v El-Rifai

[2023] NSWDC 264

District Court

New South Wales

Medium Neutral Citation:

R v El-Rifai [2023] NSWDC 264

Hearing dates:

13 July 2023

Date of orders:

13 July 2023

Decision date:

13 July 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1    Hamza El-Rifai is convicted.

2    I impose an aggregate sentence of 4 years and 6 months with a non-parole period of 2 years and 9 months to date from 25 August 2022. The non-parole period will expire on 24 May 2025 and the head sentence will expire on 24 February 2027.

3    The offender will be eligible to be released on parole on 24 May 2025.

4    I take no further action on the breach of the CCO imposed on 26 May 2021 in the Bankstown Local Court.

5    I make orders sought in the Confiscation order signed by me and dated today.

Catchwords:

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

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

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drugs Misuse and Trafficking Act 1985

Cases Cited:

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Hamza El-Rifai (Offender)

Representation:

Counsel:
J Trevallion (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Abbas & Co Lawyers (Offender)

File Number(s):

2022/151486

Publication restriction:

None

JUDGMENT

1. Hamza El-Rifai (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H91036788	Offence	Maximum Penalty and SNPP
6	Supply prohibited drug not less than indictable quantity (151 grams methylamphetamine), contrary to s 25(1) Drugs Misuse and Trafficking Act 1985	15 years imprisonment
8	Supply prohibited drug not less than an indictable quantity (70 grams heroin), contrary to s 25(1) Drugs Misuse and Trafficking Act 1985	15 years imprisonment
10	Supply not less than a large commercial quantity of a prohibited drug (7903.3 grams 1,4-butanediol), contrary to s 25(2) Drugs Misuse and Trafficking Act 1985	Life imprisonment; 15 years SNPP
14	Dealing with property suspected of being proceeds of crime less than $100,000, contrary to s 193C(2) Crimes Act 1900	3 years imprisonment

2. The offender also asks the Court to take into account the following offences on a Form 1 schedule when passing sentence for sequence 10:

1. possess prohibited drug (2.15 grams buprenorphine) (sequence 3);

2. possess prohibited drug (56.3 grams 1,4-butanediol) (sequence 4);

3. goods in personal custody (HSBC credit card) (sequence 5);

4. goods in personal custody (credit card in the name of Andrew Kelly) (sequence 12);

5. possess prohibited drug (29.1grams testosterone) (sequence 13); and

6. possess prohibited drug (1.5 grams nandrolone), contrary to s (sequence 15).

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.

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 presented 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. At all material times, the offender resided in Bankstown with his family.

9. On 25 May 2022, police applied for and were granted a search warrant for the offender’s residence.

10. Prior to execution of the search warrant, police conducted surveillance around the vicinity of the offender’s premises and were tasked with the objective of attempting to stop the offender if he was seen leaving or returning to the premises.

11. At 5:15pm on 25 May 2022, the offender returned to his premises in the vehicle and stopped in the driveway of his premises. Police spoke to the offender and conducted a search of his person and a satchel bag that he was carrying. Police located the following items:

1. $12,600 in Australian currency (sequence 14);

2. a HSBC credit card which had the card holder’s name scratched off (Form 1 – sequence 5);

3. 2.15 grams of buprenorphine in a small brown package (Form 1 sequence 3). When police held up the package, the offender said it was “bupe strips”; and

4. a Samsung phone with a black case.

12. Police also conducted a search of the motor vehicle and located the following items:

1. a small bottle labelled “Hand Sanitiser”, which was in the centre console of the vehicle. The bottle contained 56.3 grams of 1,4-butanediol (Form 1 – sequence 4);

2. a black iPhone IMEI; and

3. another black iPhone.

13. Police arrested and cautioned the offender. Police asked the offender whether there were any drug supply items within the house and the offender told them that there were scales, which would most likely be in his bedroom. He pointed out his bedroom to police from the driveway. Police asked why the offender had scales and he told them that they were “just for my pot”.

14. The offender allowed police entry to his residence and police commenced executing the search warrant. The offender directed police to his bedroom.

15. In a video walkthrough of the premises which occurred after the offender was conveyed to Bankstown Police Station, the offender’s father identified the offender’s bedroom. Inside the offender’s bedroom, there were a number of personal items and documents that confirmed that the bedroom was occupied by him.

16. In the offender’s bedroom, police located a NAB Visa debit card in the name of Andrew Kelly (Form 1 – sequence 12), scales and two mobile phones.

17. Police seized a total of 151 grams of methylamphetamine in the offender’s bedroom (sequence 6) packaged in seven knotted plastic bags.

18. Police located and seized a total of 7903.3 grams of 1,4-butanediol contained in 500 ml water bottles in various locations in the offender’s bedroom.

19. Police also located and seized three knotted plastic packages containing a total of 70 grams of heroin.

20. The offender declined to participate in an electronically recorded interview with police. He agreed to police taking a buccal swab.

The Offender’s Case on Sentence

21. The offender tendered the following documents:

1. psychological report of Sam Albassit (psychologist) dated 25 June 2023;

2. the offender’s letter of apology;

3. reference letter of Khaled El-Rifai (father) dated 21 June 2023;

4. reference letter of Rayhana El-Rifai (sister) and Enas El-Rifai (sister) dated 21 June 2023;

5. reference letter of Hyba El-Rifai (sister) dated 15 June 2023;

6. Positive Lifestyle Program for Individuals certificate dated 12 July 2023; and

7. affidavit of the offender sworn 11 July 2023.

22. The following is a precis of the evidence relied on by the offender.

23. The offender is 29 years old.

24. The offender has three sisters and one brother. His parents are still alive and together. He told Mr Albassit that his parents were supportive and good caregivers.

25. The offender reported having difficulty at school. He attended the Australian International Academy from Kindergarten to Year 7, and then moved to Punchbowl Boys High School, where he completed Year 10. The offender reported being bullied and harassed in primary school, to the extent that he was physically assaulted by other students on multiple occasions. He struggled to make friends.

26. At age 16, the offender was sexually assaulted by a teacher on three occasions over a two or three month period. Each assault occurred whilst he was in detention. The offender reported that he never told anybody about the assaults for cultural reasons and because he felt shame and guilt. The offender still experiences intrusive thoughts, flashbacks and lucid dreams about these assaults. He told the psychologist that he frequently wakes up covered in sweat, remembering details of the assaults.

27. The offender became an increasingly angry teenager and was significantly affected by the bullying and sexual assault. He began to associate with an anti-social crowd and to get into trouble more often at school.

28. The offender began smoking cannabis at age 16, using it casually at first. By the time he left school, he used it twice weekly.

29. On leaving high school, he attended Chullora TAFE where he studied carpentry. Due to his substance use and poor mental health, he struggled with concentration and could not commit to his studies. He went on to complete a Certificate III in Carpentry at the Australian College.

30. He worked on and off with his father as a carpenter. Due to his substance use and anti-social associates, he struggled to work consistently.

31. The offender spent a year in custody when he was around 17. Upon being released, he started taking drugs again and being reckless and erratic. By age 21, the offender was using cocaine, methylamphetamine, MDMA, gamma-hydroxybutric acid (GHB), and Xanax. He reported that his drug use was significant. He was hardly at home during this period and would couch surf. He would commit crimes to pay for substances and stopped working with his father.

32. At the time of the offending, the offender was using cocaine and GHB on a daily basis and struggled to function without it. He reported that if he went for a few hours without either substance, he would start feeling intense physical anxiety, which would then develop into feelings of depression and suicidal ideation. The offender reported that he had accumulated debt with his supplier and friends and was reportedly under pressure to repay his debts. His supplier reportedly gave him an ultimatum to repay the debt or there would be trouble for him. The offender felt like he had no other choice but to participate in the supply of drugs.

33. The offender expressed remorse in his letter to the Court, Mr Albassit, his father and sisters. He recognised the potential impacts of his behaviour on the wider community in his letter to the Court. He reflected that his incarceration for the current offences has been a “wake-up call” and he has witnessed the impact of drugs on people’s lives.

34. Whilst in custody, the offender was abstinent from drugs for 12 months. However, on 1 September 2022, the offender was found in possession of Bupropion. In his affidavit, he reported that he was consuming this to control his stress and anxiety. On 9 June 2023, he was found in possession of drugs, which he reported were given to him by an inmate to pass on to another inmate.

35. The offender reported waking up every morning at 5:00am to pray and exercise. He expressed a desire to Mr Albassit to start intensive treatment for his psychiatric and psychological conditions.

36. The offender has completed the Positive Lifestyles Program in custody.

37. On his release from custody, he will have the support of his parents and siblings. The offender has expressed a desire to pursue education and employment opportunities.

38. The offender’s references from his family describe him as a compassionate and kind-hearted son and brother.

39. Mr Albassit opined that the offender meets criteria for Complex Posttraumatic Stress Disorder, Mixed Anxiety and Depressive Disorder and Substance Dependence Disorder (in partial remission). Mr Albassit opined that the offender was experiencing significant symptomatology pertaining to his mental health conditions, which markedly impaired his judgment. Specifically, the offender was consumed with the need to satisfy his addiction and lacked the ability to comprehend the seriousness of the offending behaviour.

40. Mr Albassit provided a comprehensive treatment plan, which includes psychiatric treatment on a monthly basis, ongoing psychological therapy, fortnightly consultation with a general practitioner, monthly substance screens, ongoing mental health treatment through Bankstown Hospital, drug rehabilitation and group therapy.

Consideration

Objective seriousness

41. There is limited information on which I can assess the offender’s role in the drug operation. The offender was operating a drug supply business, offering a variety of prohibited drugs. The drugs were packaged in a manner consistent with wholesale, rather than retail supply. The offender was in the possession of $12,600 in cash that was reasonably suspected of being illegally obtained, and kitchen scales. The offences were committed for financial gain. There was very limited degree of planning and organisation. He was dealing drugs from his parent’s home where he lived. The offender had a substantial drug habit and I accept that a significant amount of the drugs located were for his personal use.

42. In relation to sequence 6, the offender was in possession of 151g of methylamphetamine for the purposes of supply. The quantity was about 30 times the indictable quantity.

43. In relation to sequence 8, the offender was in possession of 70g of methylamphetamine for the purposes of supply. The quantity was about 14 times the indictable quantity.

44. In relation to sequence 10, the offender was in possession of 7.9033kg of 1,4-butanediol, an organic compound that is converted in the body to GHB. The possession of the drug was for the purpose of supply. The quantity was almost double the large commercial quantity. The substance had a high degree of purity of between 84-85.5%. The drug has a relatively low street value and the expected reward is comparatively low.

45. The offender had a difficult childhood. He was bullied and ostracised at school and then sexually assaulted. His use of drugs quickly escalated and became a significant problem. His PTSD is related to the development of a serious and longstanding substance use disorder. I am satisfied that there is a causal connection between his offending and his mental condition. In all the circumstances, the offender’s moral culpability for the offences is reduced.

46. I have taken into account the maximum penalty for the offences and the standard non-parole period for sequence 10.

Deterrence

47. 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.

48. There is a need for specific deterrence. The offender has a record of prior convictions for some serious offences dating back to 2012. It is clear that the offender has a serious drug problem. He has incurred two drug related misconduct charges whilst he has been in custody for these offences. I note that he says that on the last occasions the drugs were not for him. The penalty imposed must bring home to the offender that if he continues to reoffend that he will face significant punishment and that he must take steps to turn his life around.

Aggravating factors

49. The offender was on conditional liberty at the time of committing the offences: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The offender was on a 12 month Community Corrections Order imposed on 26 May 2021 for an offence of drive under the influence of drugs. The offender was also on 12 month parole order for a property related offence that was due to expire on 17 December 2022. His parole was revoked on 25 May 2022 as a result of the commission of the present offences and he served the balance of the parole order which expired on 17 December 2022.

Mitigating factors

50. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied that the offender has very recently gained insight that he needs to make changes in his life and that he has started on the path to rehabilitation by completing the Positive Lifestyles Program and engaging with a psychiatrist. He has good family support and positive plans for the future. The offender will have to satisfy the State Parole Authority at the end of his non-parole period that he is sufficiently rehabilitated to be released on parole. His destiny lies in his own hands and depends on his commitment to engaging with the programs that are offered to him in custody.

51. The offender has expressed remorse to the psychologist, to his family and to the Court: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I am satisfied that the offender has accepted responsibility for his actions and that his expressions of remorse are genuine.

52. The offender has been in custody since his arrest on 25 May 2022. I will backdate the sentence imposed to 25 August 2022 to take into account his pre-sentence custody and the revocation of parole.

53. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions have made and will make the offenders’ time in custody more onerous and that those restrictions may be imposed for some time into the future. I also accept that the offender’s mental condition has made and will continue to make his time in custody more difficult.

Penalty

54. Hamza El-Rifai is convicted.

55. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

56. I make a finding of special circumstances. The offender has a serious drug problem and a complex mental condition. He will benefit from a longer period of supervision on parole to assist him with drug rehabilitation, to undergo mental health treatment, to find work and to reintegrate into the community. I have also taken into account that he has only been out of gaol for about 16 months since about November 2019.

57. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. 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 6 – 2 years and 3 months;

• Sequence 8 – 16 months;

• Sequence 10 – taking into account the matters on the Form 1 – 3 years and 6 months with a non-parole period of 2 years;

• Sequence 14 – 6 months.

58. I impose an aggregate sentence of 4 years and 6 months with a non-parole period of 2 years and 9 months to date from 25 August 2022. The non-parole period will expire on 24 May 2025 and the head sentence will expire on 24 February 2027.

59. The offender will be eligible to be released on parole on 24 August 2025.

60. I take no further action on the breach of the CCO imposed on 26 May 2021 in the Bankstown Local Court.

61. I make orders sought in the Confiscation order signed by me and dated today.

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Decision last updated: 18 July 2023