R v El Zayat

[2020] NSWDC 392

District Court

New South Wales

Medium Neutral Citation:

R v El Zayat [2020] NSWDC 392

Hearing dates:

20 May 2020, 25 May 2020

Date of orders:

25 May 2020

Decision date:

25 May 2020

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Aggregate sentence of eight years and six months imprisonment with a non-parole period of five years.

Catchwords:

Criminal law sentencing – drug offences- knowingly take part in the supply of a prohibited drug- large commercial quantity- supply prohibited drugs on an ongoing basis- duress- special circumstances – penalties- imprisonment

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

Law Enforcement (Controlled Operations) Act [1997]

Cases Cited:

DPP (Cth) v De La Rosa [2010] NSWCCA 94

R v DW [2012] NSWCCA 66

Tiknius v R (2011) 221 A Crim R 365

Category:

Sentence

Parties:

Regina (Crown)
Mahmoud El Zayat (Offender)

Representation:

Counsel:
D Carroll (Offender)

Solicitors:
A Hanshaw (Crown)
C Cole (Offender)

File Number(s):

2018/00236729

Judgment

1. HIS HONOUR: Mahmoud El Zayat appears for sentence. He pleaded guilty to;

2. Count 1; knowingly take part in the supply of a prohibited drug, namely 505 grams of methylamphetamine, being an amount which is not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is life imprisonment, with a standard non‑parole period of 15 years.    There is a form 1 referable to this count.

3. Count 2: supply a prohibited drug, namely 83.69 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty is 15 years' imprisonment. There is no standard non‑parole period.

4. Count 3: supply a prohibited drug, namely 111.6 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty is 15 years' imprisonment. There is no standard non‑parole period.

5. Count 4 - supply prohibited drugs on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act. The maximum penalty is 20 years. There is no standard non‑parole period.

6. The maximum penalties and the standard non‑parole periods are an important guide post in the assessment of sentence. A judge should steer by them, but not aim for them.

FORM 1

7. The offender asked that I take into account on sentence, pursuant to section 32 of the Crimes (Sentencing Procedure) Act (1999) five offences listed in a form 1. They were committed between 22 May 2018 and 1 August 2018. Knowingly take part in the supply of a prohibited drug, namely 28 grams of methylamphetamine. Maximum penalty - 15 years. Knowingly take part in the supply of a prohibited drug, namely 84 grams of methylamphetamine. Maximum penalty - 15 years. Agree to supply a prohibited drug, namely 168 grams of methylamphetamine. Maximum penalty: 15 years. Supply a prohibited drug, namely 23 grams of cocaine. Maximum penalty: 15 years. Participate in a criminal group, and contribute to criminal activity. Maximum penalty: five years' imprisonment.

8. I note that, having availed himself of this arrangement, the offender has the benefit of not facing separate punishment for the additional offences. I have reviewed the principles enunciated in the Attorney‑General's application under s 37 of the Crimes Act; Crimes (Sentencing Procedure) Act (1999)No. 1 of 2002 [2002] NSWCCA 518.

9. The Court is to impose a sentence for the totality of the criminality before it, reflected in both the offence for which the offender is to be sentenced, and the offences taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone.

10. The Crown submits that the form 1 matters are serious examples of the trafficking of drugs. The maximum penalties range from five years to 15 years. The Crown says that the number and nature of the offences on the form 1 are such that they must have a meaningful impact on the sentence to be imposed.

11. The fact that matters on a form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution, as part of the instinctive synthesis approach to sentencing. The Court takes the form 1 matters into account, as required by the statute, in determining the appropriate penalty for the offences for which the offender is convicted. The form 1 matters are referable to the sentence I impose on count 1, the commercial quantity charge.

PLEA DISCOUNT

12. The offender was committed for trial from the Albury Local Court on 23 July 2019. He was arraigned and entered a plea of guilty in the District Court on 14 February 2020. It is agreed between the parties that, pursuant to s 25D(2)(b)(i) the mandatory statutory discount for this offender is one of 10 per cent. The indicative sentences have been reduced by 10 per cent.

FACTS

13. There is an agreed facts document which is tab 2 of exhibit 1, and it reads as follows:

14. "New South Wales Police commenced Strike Force Palena in February 2018. The Strike Force was set up to investigate and target the activities of a number of people who were involved in what New South Wales Police believe to be the large scale supply of methylamphetamines and other prohibited drugs in the Albury and Wodonga area (the border region).

15. As a result of investigations by the New South Wales Police Albury Drug Unit, it became clear that the following people were involved in a criminal group which supplied prohibited drugs (form 1): Mahmoud Al Zayat (the offender), Claudette Tannous, who was the de‑facto partner of the offender at the time, Kylie Maree Pearce, Thomas Alfred Purtell, and Alfred Maxwell Clark.

16. As a result of the nature of the investigation, New South Wales Police applied for, and were granted, authorisation to conduct a cross‑border control operation under the Law Enforcement (Controlled Operations) Act [1997], thus enabling New South Wales Police to conduct controlled purchases of prohibited drugs from the offender and other persons. On 5 June 2018, a variation to conduct a cross‑border control operation was granted, extending the operation's authorisation until 5 August 2018.

17. During Strike Force Palena, telecommunication intercept warrants were granted to lawfully intercept mobile phone numbers used by the offender and the above‑named persons, who New South Wales Police believed were involved in the criminal group. While New South Wales Police were monitoring the above‑mentioned phone numbers, it became clear the offender was participating in the supply of methylamphetamines. This was done by communicating with his up line supplier in Melbourne, Victoria, and then arranging for Thomas Purtell to attend a location in Melbourne to obtain large quantities of methylamphetamines.

18. The offender, Thomas Purtell, kept the methylamphetamine at his residence at 50 Kurrajong Crescent, West Albury (the residence), where Purtell lived with Kylie Pearce. The offender would be contacted by mobile telephone by a purchaser, and he would arrange an amount, and confirm the amount of drug the purchaser wished to obtain. He would then either contact Purtell or Pearce, and advise them who was coming to the residence, and how much methylamphetamine they were to supply to that person, and also whether or not they were to obtain money from the purchaser, or if there was another arrangement in place.

19. Between 11 May and 1 August 2018, the offender was monitored using telecommunication service ending 893 and 397, where he knowingly took part in the supply of approximately 505 grams of methylamphetamines over a number of occasions by the abovementioned means. The amounts supplied would range from half a gram to 56 grams (count 1 on the indictment).

20. On a date between 11 May and 22 May 2018, the offender was approached by a New South Wales Police undercover operative, who asked whether the offender could supply methylamphetamine. On 22 May 2018, pursuant to cross‑border control operation, the UCO attended the residence where he had previously agreed to meet with the offender to purchase three ounces (84 grams) of methylamphetamine.

21. When he entered the residence, Claudette Tannous was also present. The interactions of the residents were recorded by the UCO. Whilst in the residence, the offender produced four separate plastic bags, each containing what the offender and Tannous indicated was an ounce (28 grams) of methylamphetamine. The offender was handed $12,900 for three bags of what was said to be methylamphetamine. The money was handed to Tannous, who counted it and handed it back to the offender.

22. The undercover operative asked the offender what the other ounce of methylamphetamine was there for. And the offender stated he bought an extra one just in case something was wrong with one of the others. Three bags provided to the UCO were later weighed by New South Wales Police, and found to have a net weight of 83.69 grams, with the contents being found to be methylamphetamine with a purity of 80 per cent.

23. The UCO remained in contact with the offender, and arranged to attend the residence to purchase a further four ounces (112 grams) of methylamphetamine. On 6 June 2018, the UCO attended the residence, and was once again led inside by the offender, with Tannous also present. The interactions in the residence were recorded by the UCO.

24. The UCO was provided with four separately wrapped plastic bags, which the offender indicated was the methylamphetamine they had agreed upon. The UCO handed the offender $17,200, being the amount which was agreed upon the purchase of the drugs (count 3). The four bags were later weighed by NSW Police, and were found to weigh a net weight of 111.6 grams, and the contents been found to be methylamphetamine with a purity of 79.9 per cent.

25. Between 21 June and 18 July 2018, the offender supplied methylamphetamine on three occasions during a period of 30 consecutive days to the UCO (count 4). On 21 June 2018, the undercover operative attended the residence, as previously agreed with the offender, to purchase four ounces (112 grams) of methylamphetamine. When he arrived at the residence, he was led in by the offender, and Tannous was also present. The interactions in the residence were recorded by the UCO.

26. The UCO was provided with four separately wrapped plastic bags, which the offender indicated was methylamphetamine they had agreed upon. The UCO handed the offender $17,200, being an amount which had been agreed upon for the purchase of the drug. Four bags were later weighed by New South Wales Police, and were found to have net weight of 111.33 grams, with the contents being found to be methylamphetamine, with a purity of 79 per cent.

27. As a result of further interaction via mobile telephones, the offender agreed to supply the UCO with a further four ounces of methylamphetamines. On 5 July 2018, the UCO attended the residence as previously agreed with the offender to purchase four ounces (112 grams) of methylamphetamine. When he arrived at the residence, he was led in by the offender, and Tannous was also present. The interactions in the residence were recorded by the UCO.

28. The UCO was provided with four separately wrapped plastic bags, which the offender indicated was methylamphetamine that they had agreed upon. The undercover operative handed the offender $17,200, being the amount which had been agreed upon for the purchase of the drug. The four bags were later weighed by New South Wales Police, and found to have a net weight of 110.9 grams, with the contents being found to be methylamphetamine, with a purity of 79 per cent.

29. As a result of further discussion between the UCO and the offender, the offender agreed to supply the UCO with a further four ounces of methylamphetamine. On 18 July 2018, the UCO attended the residence as previously agreed with the offender to purchase four ounces (112 grams) of methylamphetamine. When he arrived at the residence, he was led in by the offender, and Tannous was also present. The interactions in the residence were recorded by the UCO.

30. The UCO was provided with four separately wrapped plastic bags, which the offender indicated was the methylamphetamine they had agreed upon. The undercover operative handed the offender $17,200, being the amount which had been agreed upon for the purchase of the drug. The four bags were later weighed by NSW Police, and were found to have a net weight of 110 grams, with the contents being found to be methylamphetamine, with a purity of 79 percent

31. Each time the New South Wales Police undercover operative obtained the bags of methylamphetamine, the plastic resealable bags were wrapped in pink tissue paper. Between 18 July and 1 August 2018, the offender was in contact with the New South Wales undercover operative via mobile telephone. During these telephone conversations, it was agreed that the offender would supply six ounces (168 grams) of methylamphetamine, and one ounce (28 grams) of cocaine to the undercover operative.

32. This transaction was to occur on 1 August 2018 at the café called "Thick As Thieves" in Dean Street, Albury. On 1 August 2018, New South Wales Police executed a search warrant at the residence. And the same time, the offender and Tannous were arrested on Dean Street. During the arrest, the offender was found to have 23 grams of cocaine on his person (form 1).

33. During the search of the residence, behind a false wall, 10 bags, each containing one ounce of methylamphetamine, were found, together with other items. Six of the bags of methylamphetamine were those agreed to be supplied to the undercover operative, the balance of which was being held for the purpose of supply (form 1).

34. The offender was conveyed to Albury Police Station, and introduced to the custody manager. The offender was afforded his rights, and the offender spoke with a legal representative in person. The offender participated in an electronically recorded interview, during which he admitted to having possession of a resealable plastic bag secreted on his person, containing cocaine, at the time of his arrest, which he claimed was only for his personal use. He denied being involved in the supply of prohibited drugs."

OBJECTIVE SERIOUSNESS

COUNT 1

35. The most serious of the offences the offender stands to be sentenced for is supplying a large commercial quantity of methylamphetamine (count 1). The offender, over a period of approximately three and a half months, knowingly took part in the supply of 505 grams. The quantity is made up of a number of transactions in amounts ranging from half a gram to 56 grams. The drug was not intercepted. There is no evidence as to its purity. The quantity involved is five grams in excess of the threshold for the supply a large commercial quantity. By reference to the amount alone, the offence would fall at the bottom end of the scale of seriousness.

36. The offender directed Thomas Purtell. It was the offender who had an up line source in Melbourne. He would direct Purtell to travel to Melbourne for collection of the drugs. Purtell would keep the drugs at his house, and the offender would take calls and direct purchases to Purtell for collection of the drugs. The offender made arrangements with the UCO for the purchase to take place at Purtell's house. The offender was engaged in the business of selling drugs. He had access to the up line supplier, and Purtell provided a distribution centre. His role is objectively more serious than Mr Purtell's.

37. He was operating at an intermediate level. He on sold to people low in the criminal structure. The operation was not particularly sophisticated. The police had been readily able to investigate its parameters by electronic surveillance. He was not sophisticated enough to adopt successful counter‑surveillance measures with regard to his communications. He was a mid‑level supplier. It was a financially lucrative business, spreading misery throughout the Albury community. I assess count 1 as a somewhat less serious example of a very serious offence.

COUNTS 2-4

38. The supplies were to an undercover operative. In R v DW [2012] NSWCCA 66, it was held that it was not mitigating the objective criminality. The fact of supply to an undercover operative was relevant to an assessment of the results of the criminal activity, and therefore a matter to be taken into account in considering the assessment of the seriousness of the offence.

COUNT 2

39. The quantity of the drug (count 2) was 83.69 grams, 16 times greater than the indictable quantity. The purity was 80 per cent. The drug was sold for $12,900. The offence falls below the mid‑range of objective seriousness.

COUNT 3

40. The quantity of the drug (count 3) was 111.6 grams, 22 times greater than the indictable quantity. The purity was 79.9 per cent. The drug was sold for $17,200. The offence falls below the mid‑range of objective seriousness.

COUNT 4

41. The ongoing supply was three transactions between 21 June 2018 and 18 July 2018. 332.23 grams were sold to the undercover officer. Each transaction exceeded 100 grams. The purity was of or around 79 per cent. On each occasion, the undercover officer paid $17,200. It was a serious form of offending.

SUBJECTIVE CASE

42. A number of documents were tendered on behalf of the offender. They are;

Exhibit A - affidavit of the offender, 14 May 2020.

Exhibit B - Restwell Street Medical Clinic, 7 May 2020.

Exhibit C - 31 March 2020.

Exhibit D - 6 February 2020.

Exhibit E - report of Amina Ahmed, psychologist, dated 12 February 2020.

Exhibit F, affidavit of Yahea El Zayat, dated 18 May 2020, son of the offender.

Exhibit G, report of Dr Kumar, consultant psychiatrist, dated 5 June 2019.

Exhibit H patient history, 1 May 2019 to 5 August 2019.

Exhibit J letter from Aya El Zayat, 18 May 2020, daughter of the offender.

Exhibit K letter from Kadigeh El Zayat, 18 May 2020 - daughter of the offender. The offender gave evidence before me on Wednesday 20 May 2020.

43. The offender is 47. He was born in Tripoli in Lebanon. He moved with his family to Australia in 1976, during the Lebanese Civil War. He was three. He was schooled at the Brunswick North Primary School, and Brunswick Tech High. During his school years, he worked nights at a restaurant in West Brunswick washing dishes. This night job affected his ability to attend school the following day. He was forced by his parents to work that job. Throughout his school years, he was ridiculed for his illiteracy, lack of English, accent, and looks. He left school in year 9.

44. He witnessed domestic violence in the family home. His father was violent to his mother. He was also the recipient of violence from his father. From the age of 11, the offender engaged in self‑harm. He did so because of his home environment, and being the victim of a sexual assault over several years. From the age of 11 years, he was sexually abused by a neighbour, who he called Uncle Bob, for three years. Research clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural, as well as physical, health consequences.

45. He started smoking cannabis when he was 13. At 16, he had started using harder drugs, including cocaine, heroin, methylamphetamine and ecstasy. When he could not afford drugs, he sniffed glue. At 17, he commenced work at a pizza restaurant. He worked in that capacity for almost 20 years.

46. In 1998, he bought a pizza restaurant franchise. In 1999, the restaurant burnt down. One person died. He was charged with arson causing death. He was found not guilty. After the trial, he was heavily in debt to a finance company that provided finance for the purchase of the franchise. He owed about $200,000.

47. At 17, he married a woman five years his senior. The marriage did not work out. He has a son, who is 25 years, from that marriage. After the failure of the marriage, he went to Lebanon with his father. He married in 1996. He and his wife came to Australia that year. He has six children from that marriage. In 2015, his marriage broke down. He was depressed. His father died in April 2016. It had a dramatic impact upon him. His drug use worsened.

43. He met his co‑offender, Claudia Tannous, in December 2015. He was using methylamphetamine and cannabis, he was couch surfing. He met her through his drug dealer. She eventually became his drug dealer. She had a drug debt of $35,000. She was being used as a mule to sell drugs as a way of paying off her debt.

44. On 1 July 2016, he and Claudia were charged with possession of drugs and a homemade firearm. He served 50 days in custody. After his release, he was clean for around 18 months, this would change. Tannous drug dealer returned.

DURESS

50. In 2017, their front door was kicked in. Several males entered, he was bashed, a gun was discharged. Tannous was then pregnant.    He was told by the men, he was now responsible for the debt.

51. He and Tannous moved to Wodonga to evade the debt. A daughter was born on 24 October 2017 and taken into care. Family Court proceedings were unsuccessful. They both recommenced using drugs. Tannous had a drug relationship with Thomas Purtell (co-offender). On 1 January 2018, a petrol bomb exploded under his ex-wife’s car in Brunswick.

52. In late February, early March 2018, his son Yahea was threatened with a firearm. He was told:

“The first time was a warning, this time we want you to deliver a message, because the third time it will be you or your family’s life, because your dad has ignored us. We want $80,000. If you go to the police, we're coming back: exhibit F[18]”

53. Mr Yahea El Zayat was not required for cross-examination. The offender met with the people, he was told the debt had increased from $35,000 to $80,000. He was given two options, pay up within two weeks or sell drugs to pay the debt off. He and Miss Tannous decided to sell drugs. They did not have the ability to repay the debt.

54. They thought it was unwise to go to the police due to the previous death threat. The offender has provided evidence that his offending was motivated by duress and relies upon s 21A(3)(d) of the Crimes (Sentencing Procedure) Act.

55. Where an offender commits a crime while acting under duress which falls short of a complete defence to the charge, this non-exculpatory duress is capable of being a mitigating factor at sentence: Tiknius v R (2011) 221 A Crim R 365. Non-exculpatory duress may be taken into account as a mitigating factor for two reasons. It may affect the degree of the offender’s subjective or moral capability and prospects of rehabilitation: Tiknius v R at [41].

56. I accept on balance that the offender engaged in the trade of drugs as a result of threats made to him and members of his family. It reduces his moral culpability. I have a high degree of scepticism about his plan to give up his drug enterprise when the debt was extinguished. I have difficulty understanding as to why he brought cocaine to the meeting with the undercover officer when the debt had been paid off.

57. I note that the undercover officer asked for six bags of meth and one ounce of cocaine. There was no reason for the offender to take the cocaine to the undercover officer as the debt had been extinguished. It is indicative of him wanting the relationship to continue. He denied in evidence that he wanted the relationship to continue, I am satisfied on balance that he was acting under duress up to the time the debt was extinguished.

58. I am sceptical as to what his future intention was, but for the intervention of the police. In light of this evidence, I have given him the benefit of the doubt. In assessing the credibility of his account, which is in part corroborated by his son, it is significant that the offenders history of supplying drugs has commenced very late in life and only occurred when he was in a relationship with Miss Tannous.

59. His intention to cease his trade in drugs upon extinguishing the debt is consistent with his bail compliance and non-offending for over a year.

PROSPECTS OF REHABILITATION

60. The offender is 47. His criminal history commenced in 2016 when aged 43. He was granted bail on 7 March 2019. He has undergone weekly supervised urine drug screening since April 2019.

61. He has had extensive psychological therapy and has been compliant with medication directed towards treating his mental illness and has gained part time employment at LA Donuts in Beverly Hills as a cleaner. He understands that his actions have ruined his life. He does not have a relationship with his youngest daughter and he does not have a relationship with Miss Tannous.

62. He appreciates that his actions have affected his entire family. I am satisfied that his period of incarceration from 1 August 2018 to 7 March 2019 has specifically deterred the offender. I accept the submission made by Mr Carol who appears on behalf of the offender that his prospects of rehabilitation are excellent.

CONTRITION/REMORSE

63. The offender has insight into his offending. He now understands “the wider impact my actions have on the entire community, including perpetuating further crime, breaking up families and the deaths which come from drug use. Methylamphetamine is an evil drug and I am very proud to say that I have been clean since my arrest”; affidavit of the offender [64]. The offender has demonstrated genuine contrition and remorse.

MENTAL ILLNESS/MORAL CULPABILITY

64. The offender was referred to Amina Ahmed, a psychologist by his GP for assessment and treatment for anxiety, depression, post traumatic stress disorder and substance abuse history. The report is exhibit B. It informs me of the following, “Testing indicates that his symptoms are in the extremely severe range for clinical depression, anxiety and severe range four stress. Mr El Zayat has previously been diagnosed with panic disorder, a depressive episode and cannabis use along with access to cluster B personality disorder by Dr Neeraj Aggarwarl in 2017”.

65. Mr El Zayat’s father passed away from illness in 2016, he reports that this was a catalyst for his decline in mental health and a beginning of his offending behaviour. Mr El Zayat reported that he began to use illicit substances including cannabis and methylamphetamine’s and began to get tattoos on his body.

66. He reported an absence of criminal history prior to 2016. Mr El Zayat stated that he was “in a dark place” between 2016 and 2019 when he began to abuse drugs and became involved in criminal activity. Mr El Zayat currently experiences symptoms consistent with the diagnosis of depression, anxiety and post traumatic stress disorder. His current medications include quetiapine, mistozapine and escitalopran.

67. Mr El Zayat requires long term psychological intervention to manage his symptoms. He has a good prognosis if he continues regular therapy sessions and complies with his medication requirements. Being separated from his family will have a severe negative impact on any progress Mr El Zayat is likely to make through psychological and psychiatric intervention.

68. It was the opinion of Dr Kumar (consultant psychiatrist) that the offender has a major depressed disorder with psychosis in partial remission and the possibility that he has a borderline personality.

69. The offender has been assessed as unsuitable to undertake community service work due to these “serious mental health conditions that affect his daily functioning": SAR 6 April 2020. It is against this backdrop that Mr Carroll strongly contends that the offender is not a perfect vehicle for general deterrence.

70. The evidence raises three questions;

(1) Did the mental illness contribute to the commission of the offences, and if so his moral culpability will be reduced.

(2) Does his mental illness mean that he is an inappropriate vehicle for general deterrence and the necessary modification of that consideration?

(3) Would a custodial sentence weigh more heavily on the offender?

71. Although he had mental health issues at the time of offending, I am not satisfied on balance that his mental health contributed to him engaging in the supply of drugs: DPP (Cth) v De La Rosa [2010] NSWCCA 94 at [177]. He engaged in the supply of drugs to extinguish a drug debt, by his then de facto not as a result of his mental health. His mental health does not reduce his moral culpability.

72. There may be some slight modification for general deterrence due to his current mental health issues that are responding well to treatment, which includes medication and ongoing psychological counselling. I am satisfied that a custodial sentence will weigh more heavily upon him due to his mental health.

73. In coming to this conclusion, I have taken into account the opinion of Miss Ahmed that “being separated from his family will have a severe negative impact on any progress Mr El Zayat is likely to make through psychological and psychiatric intervention.”

74. I take into account due to the COVID-19 pandemic that there are no contact visits allowed in New South Wales prisons and that position is unlikely to change until a vaccine is produced, which may take up to two years. I accept the submissions that normal hardship levelled upon an offender with mental health issues in custody is amplified in the current environment.

ONEROUS BAIL CONDITIONS

75. I take into account the onerous bail conditions of the offender as part of the instinctive synthesis of sentencing.

BUGMY SUBMISSION

76. I accept the offender had a difficult childhood where violence was occasioned to him and his mother from the hands of his father and he was required to work from a young age which affected his schooling. The Crown cross-examined the offender about his failure to complain about the sexual abuse occasioned by “Uncle Bob.” I accept his explanation on balance that coming from a strict Muslim background, he found it difficult to speak about it and was concerned he would bring great shame to his family.

77. The offender’s affidavit is light on detail as to the nature of the sexual abuse, however it would appear that he was and continues to be affected by it. There is a clear link between sexual abuse and a pattern of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences. I give full weight to the offender’s childhood deprivation in the sentencing decision.

SPECIAL CIRCUMSTANCES

78. I find special circumstances due to the offenders past drug addiction, a recognition of his efforts to rehabilitate himself from drug addiction and a need for continued assistance to maintain those efforts. This is his first time he will serve a prison sentence.

PARITY

79. All offenders previously sentenced were sentenced upon a different combination of charges, discounts and criminal records. The offender stands alone to be sentenced for the offence of large commercial quantity. Miss Tannous was dealt with for eight offences. She was sentenced to three years with a non-parole period of 18 months. She received a combined discount of 50 percent.

80. Ms Pearce was dealt with for two offences, one of the offences was supply 149.6 grams of methylamphetamine to which to which she received a sentence of two years and three months with a non-parole period of 15 months. She received a discount of 25 percent.

81. Mr Purtell was dealt with for two offences of supply a commercial quantity involving 255 grams and 262.7 grams of methylamphetamine respectively. A 25 discount was applicable. He received a sentence of six years with a non parole period of three years and four months.

SENTENCE CONSIDERATION

82. I am mindful of the purposes of sentencing listed in s 3A of the Act which include:

(b) to prevent crime by deterring the offender and other persons from committing similar offences; and

(c) to protect the community from the offender.

83. One of the main purposes of punishment is to protect the public from the commission of crimes by making it clear to the offender and to other persons with similar impulses that if they yield to them they will be met with severe punishment. The need for general deterrence is high in cases involving dealing in and supply prohibited drugs. If you engage in the supply of drugs you will go to gaol for a long time.

84. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with a result that significant resources have had to be devoted by law enforcement authority to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.

85. Protection of the community is significant due to the social impact of drug use, particularly as an underlying cause of other criminal offending. It is necessary for there to be part accumulation of sentence to reflect the four separate offences. In assessing the degree of accumulation, I take into account the principles of totality and proportionality.

SENTENCE

86. The indicative sentences are as follows:

1. Count one, supply large commercial quantity, six years imprisonment with an indicative non parole period of four years.

2. Count two, supply 83.69 grams, 18 months.

3. Count three, supply 111.6 grams, 20 months.

4. Count four, supply ongoing basis, 30 months.

87. I impose an aggregate sentence of eight years and six months commencing from 19 October 2019. The sentence will expire on 18 April 2028. I impose a non parole period of five years whereby you will be eligible for parole on 18 October 2024.

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Decision last updated: 29 July 2020