R v Elali

[2019] NSWDC 187

District Court

New South Wales

Medium Neutral Citation:	R v Elali [2019] NSWDC 187
Hearing dates:	02 May 2019; 17 May 2019
Date of orders:	17 May 2019
Decision date:	17 May 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	1 You are convicted of the following offences: (1) Supply prohibited drug contrary to s25(1) DMTA (sequence 3); 2 Taking into account all the matters on the Form 1, you are sentenced to a term of imprisonment of 18 months. 3 Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order. 4 The sentence will commence today, 17 May 2019 and will expire on 16 November 2020. 5 You must report to the Leichhardt Community Corrections Office as soon as practicable, but no later than 7 days from 17 May 2019. This means that you must report to the Leichhardt Community Corrections Office by 24 May 2019. 6 The standard conditions of the order apply, namely: (1) You must not commit any offence; and (2) You must submit to supervision by a Community Corrections Officer. 7 The following additional conditions apply: (1) A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Mr Elali is currently receiving with Ms Lisa Schouw at Marrickville complies with this condition. (2) An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner. 8 I order you to undertake community service work of 75 hours. 9 I dismiss the charges contained in the s166 Certificate. 10 I make a forfeiture order with respect to the $1100 that was seized on your arrest on 25 May 2018. 11 All drugs that were taken by police from the accused on 25 May 2018 are to be destroyed. 12 If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order. 13 If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody. 14 You are now directed to attend the court registry where a copy of this order will be explained and given to you.
Catchwords:	CRIME – Sentence – Supply prohibited drug
Legislation Cited:	Crimes (Administration of Sentences) Regulation 2014, clause 189I Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 33, 66 Criminal Procedure Act 1986 (NSW), s167 Drug Misuse and Trafficking Act 1985 (DMTA), s25
Cases Cited:	Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 Parente v R [2017] NSWCCA 284 R v Huynh [2005] NSWCCA 220 R v Peter Michael Clark (Court of Criminal Appeal (NSW), 7 July 1983, unreported) Veen v The Queen (No 2)
Category:	Sentence
Parties:	The Queen Ali Elali
Representation:	Counsel: Ms Black (Crown) Mr Alexander (Defendant)
File Number(s):	2018/164835

Judgment

1. Ali Elali, born in 1995, is before the court for sentence of supply a prohibited drug greater than an indictable quantity, being 9.22 grams (g) of cocaine pursuant to section 25(1) of the Drug Misuse and Trafficking Act 1985 (DMTA). The maximum penalty for that offence is 15 years, or a fine of 2000 penalty units, or both. The offender was committed for sentence on 20 November 2018 in the Downing Centre Local Court. This offence is sequence 3.

2. There are also a range of other matters which I am required to take into account, some of them being Form 1 offences and others being related offenses that are specified on a s166 certificate. In relation to the Form 1 matters, the offender has requested that I take the following offences into account when sentencing him for the sequence 3 offence:

1. supply prohibited drug greater than small quantity (cocaine) sequence 1;

2. supply prohibited drug less than indictable quantity (cocaine .88 g) sequence 2;

3. process prohibited drug (cannabis leaf) sequence 4; and

4. deal with property proceeds of crime ($1100) sequence 8.

3. In relation to the s166 matters, the defendant has pleaded guilty to the following related offences which I have taken into account in accordance with s167(1)(b) of the Criminal Procedure Act 1986 (NSW):

1. possess prohibited drug (cannabis leaf) sequence 4;

2. deal with property proceeds of crime ($1100) sequence 5;

3. possess a prohibited drug (9.22 g of cocaine) sequence 9; and

4. supply prohibited drug greater than or equal to a small quantity (cannabis) sequence 7.

Evidence

4. Before me are three exhibits. Exhibit 1 is a bundle tendered by the Crown containing the following material: a charge certificate, a court attendance notice for sequence 3, a Form 1, court attendance notices for sequences 1, 4 and 8, a s166 certificate, a court attendance notice for sequences 4, 5 and 9, a Statement of Agreed Facts signed by both the solicitor for the Director of Public Prosecutions and the offender, and the offender’s criminal history.

5. Exhibit 2 is a sentencing assessment report dated 1 May 2019 under the hand of Kim Anderson, Community Corrections Officer at the Leichhardt Corrections Office.

6. Exhibit 3 is a defence sentence bundle consisting of six documents: a letter from Mr Elali to the court dated 29 April 2019, a letter from Ms Lisa Schouw, clinical psychotherapist, dated 18 February 2019, a character reference from Ms Yasmine Ali dated 9 April 2019, an employment/character reference from Mr Firat Duzenli dated to April 2019, drug analysis reports from 4 June 2018 to 9 April 2019 and a report of Dr David Jankelson, respiratory and sleep physician, dated 27 March 2019.

Agreed Facts

7. The statement of agreed facts discloses the following. The offender was 23 years of age when the offence was committed. At about 9:05 pm on Friday, 25 May 2018, the offender was driving east along Guilfoyle Street, Double Bay, when police conducting surveillance observed the offender met with a male who got into the passenger seat of the offender’s car. The offender turned left onto Bay Street and right onto Cross Street, before the male got out of the offender’s car.

8. Police then stopped the male on the corner of Cross Street and Bay Street and searched him, at which time they located one small clear resealable plastic bag containing cocaine. This single resealable bag was seized, photographed and weighed returning a reading of .88 g (sequence 2). Other police then followed the offender’s car east along Cross Street and stopped the vehicle just past the intersection of Transvaal Avenue. Police approached the offender and placed him under arrest for supplying a prohibited drug and cautioned him.

9. The offender was then removed from the vehicle and asked whether there were any prohibited drugs located within the vehicle, in response to which the offender stated, “there is a yellow envelope with some bags under the seat”.

10. Police then searched the vehicle and located a yellow envelope between the driver’s seat and the driver’s side door. Located inside the yellow envelope were 14 small clear resealable bags containing white powder. Subsequent analysis found that the 14 resealable bags contained a total of 9.22 g of cocaine. The offender was in possession of these prohibited drugs for the purpose of supplying them (sequence 3). Police continued to search the vehicle and located two mobile phones inside the vehicle, and a clear vacuum sealed bag containing cannabis leaf. The clear vacuum sealed bag containing cannabis leaf was also seized, photographed and weighed returning a reading of a total of 44.50 g.

11. Police then searched the offender and located two separate bundles of Australian currency in his pockets. The first bundle amounted to $800. The second bundle amounted to $300. A total of $1100 was seized.

12. The offender was conveyed to King’s Cross police station where he participated in an electronically recorded interview, during which he told police that earlier that night he had sold three bags of cocaine to someone in Balmain in exchange for $800 (sequence 1). The accused also told police that immediately prior to being arrested he had sold one bag of cocaine to a male in exchange for $300 (sequence 2). The accused agreed that the $1100 found in his possession was the proceeds of these two supplies (sequence 8). During the interview at King’s Cross police station, the offender also admitted possession of cannabis leaf that was found in his car and made admissions to having the cannabis leaf in his possession (sequence 4).

13. I observe that the offender has no prior criminal record.

Further Evidence

14. As I have said, the Crown tendered a bundle of documents marked Exhibit 1 comprising the following: the statement of agreed facts signed and tendered on 20 November 2018, a Court Attendance Notice for the present offence, Court attendance Notices for sequences 1, 2, 4 and 8, Court Attendance Notices for sequences 4, 5 and 9, the Form 1 document with respect to sequences 1, 2, 4 and 8, the s166 Certificate with respect to sequences 5, 9 and 4, the Charge Certificate and the offender’s criminal and custodial history, which as I have observed records no criminal record.

15. Also tendered on behalf of the Crown was a Sentencing Assessment Report under the hand of Kim Anderson and dated 1 May 2019, which was marked Exhibit 2. Helpful written submissions were made by Ms Black on behalf of the Crown.

16. The Sentencing Assessment Report notes that its sources of information consisted of interviews with Mr Elali, a field visit to his residence, contact with his fiancée, his parents, his employer, his general practitioner and contact with his counsellor. The report notes that Mr Elali is engaged and plans to be married in December 2019. He currently resides with his parents and younger siblings in Newtown. He has four older half-sisters. one of whom passed away from an illness 2015. He was her carer prior to her death. Mr Elali’s family are extremely supportive and have expressed how pleased they are with the positive changes he has made since being charged.

17. Mr Elali previously commenced a Bachelor of Criminology. However he ceased his studies in 2015 when his eldest sister passed away. He has since been employed in the building industry from June/July 2018 and commenced TAFE studies in building construction in July 2018 and is looking forward to obtaining a builder’s license. Mr Elali’s employer advised Ms Anderson that Mr Elali is a good worker and valued employee who is studying hard to further himself in the industry.

18. At the time of the offence Mr Elali was working in the telecommunications industry, and he stated that there was a permissive culture of drug taking amongst his co-workers. He said he began using cocaine with them on a casual basis to gain their respect and to be one of them. He advised that it quickly became a habit, and increased to daily use. Due to the increasing cost of his own habit, Mr Elali reported that his supplier suggested he became a dealer in order to get his own drugs for free. Mr Elali stated that when he was sober, he felt uncomfortable with what he was doing. However, he did not know how to say no. He is no longer working in the telecommunications industry and no longer has contact with his co-workers.

19. Prior to commencing employment in the telecommunications industry, Mr Elali had never used illicit substances, and he has ceased use using cocaine following his arrest. Mr Elali advised that he was shocked and scared when he was arrested but it saved him from continuing on the wrong path. He said he should have left the workplace once he knew drugs were involved. He described his father as a “very holy guy” and that he regrets the impact his behaviour has had on his family and fiancée as well as the community.

20. Mr Elali has been engaged in counselling since 16 June 2018. His counsellor reports that he is been consistent with his attendance, that he has demonstrated unwavering commitment to his recovery, and that he has demonstrated full responsibility for his actions as well in his recovery process. Mr Elali has been attending his general practitioner on a weekly basis for drug screening of his own volition, and all results since June 2018 have been drug-free. Mr Elali has demonstrated his willingness to undertake interventions over the past nine months by engaging in counselling and drug screening and advised that he is willing to comply with all court directions. He is currently working full time, and advised he will organise his work around community service work if such an order were to be made. He has attended assessment interviews as directed, and indicated that he is willing to undertake supervision.

21. Ms Anderson assesses Mr Elali at a low risk of reoffending according to the level of Service Inventory – Revised. Due to his low risk of reoffending. if the court makes a supervised order, Community Corrections will suspend Mr Elali’s supervision in accordance with clause 189I of the Crimes (Administration of Sentences) Regulation 2014. If the court directs that Mr Elali serves a period of imprisonment by way of Intensive Correction Order, Community Corrections will not suspend supervision while the order has an electronic monitoring or home detention condition. Mr Elali should report to the Leichhardt Community Corrections Office within seven days to receive instructions about their obligations while supervision is suspended. Community Corrections may activate supervision if Mr Elali is rearrested, information is received that his risk of reoffending has increased, or he breaches the suspension obligation. If the court made a supervised order, Community Corrections considers that he should continue to engage in counselling with Lisa Schouw for a further twelve months to manage identified risk factors. He has been assessed as suitable to undertake community service work and Community Corrections can provide the equivalent of up to 24 hours of work per month if such a condition is made.

22. The offender tendered a bundle of documents marked Exhibit 3 comprising the following:

1. A letter from Mr Elali to the court dated 29 April 2019;

2. A report from Ms Lisa Schouw, psychotherapist and counsellor, dated 18 February 2019;

3. A character reference from Ms Yasmine Ali;

4. A character reference from Mr Elali’s employer Firat Duzenli;

5. Drug analysis reports from 4 June 2018 to 9 April 2019; and

6. A report from Dr David Jankelson.

23. The letter from Mr Elali contains an apology to his family, friends and to the wider community for his actions and their ramifications. He notes that once arrested for supplying drugs, he immediately admitted guilt, because in that moment he realised the impact his choices had made and he wanted to be honest with himself and get sober. He voluntarily admitted to police that he had supplied drugs earlier in the night. He was not supplying drugs for financial gain but to fuel his own drug addiction.

24. Mr Elali says that he is currently working as a foreman for ZEN Group Constructions under the guidance of his mentor Firat Duzenli, who is the owner of ZEN Group Constructions. His work consists of various building trades as well as supervision of the job site.

25. Amongst other matters, Mr Elali says that he takes some significant responsibility for the health of one of his older sisters. She has significant respiratory failure, as a result lives on an oxygen machine and has to ingest over a dozen different medications every day. He notes that he is soon to be married and has been greatly assisted by his fiancée Yasmine. He notes too that he has had the support of his psychotherapist and counsellor, who he has been seeing regularly over the last year. He says that she has truly helped him to become a new and better person, and also in order to prove his rehabilitation and keep himself accountable he has taken the initiative to take a urine test every 3 to 4 weeks.

26. The report of Ms Lisa Schouw notes that Mr Elali commenced counselling with her on 16 June 2018. He began with fortnightly sessions and progressed to his current schedule of every three weeks. The purpose of these sessions has been Mr Elali’s recovery with a focus on cognitive and behavioural changes. Sessions covered past behaviours and triggers for alcohol and drug use, as well as the ongoing development of self-monitoring and self-management of his stress and anxiety levels.

27. Throughout his treatment, Mr Elali has demonstrated unwavering commitment to his recovery. His attended all his appointments on time and has accepted full responsibility for his actions as well as his recovery process. He also attended regular urine testing over the last eight months as part of his commitment to his recovery. He reports consistent improvement in both his physical and mental health.

28. Mr Elali presented to Ms Schouw as an articulate and self-reflective man. He demonstrated contrition at the first session, and this been consistent throughout his treatment. He was able to identify the initial triggers for his drug use, and has consistently demonstrated that he is now able to implement new cognitive responses and behaviours that support his ongoing abstinence. Over the last eight months, he has demonstrated consistent and positive systemic changes. He has commenced an apprenticeship and study to ensure a steady income for himself, his family and his fiancée. He has actively sought and received the emotional and financial support of his family, which he believes has contributed to his recovery. Ms Schouw recommends that Mr Elali remains in the community with some mandatory reporting to assist him staying on track with his recovery and recommends that he continues to attend regular counselling sessions for a further 12 months.

29. The character reference from Ms Ali acknowledges the matters that are before the court. She has known Mr Elali for approximately two years and has been engaged to him for just over a year.

30. After his arrest, the couple discussed the charges and Mr Elali first opened up to her about his drug addiction and his choice to supply in order to feed his addiction. He was very ashamed and embarrassed. He appeared to be determined to make a positive change, and never to return to taking drugs again. Since his arrest Mr Elali has taken the initiative to make a change from “the inside out”. He has been eating better, exercising regularly and found a work/life balance focusing on a career and building a future together. She notes that he has an amazing support system consisting of herself, his family, his friends and his boss who do not judge him for his past actions, but rather do everything they can to help them stay on the right track. She is very proud of how far he has come in the last year to overcome his addiction. She gives him daily advice, checks in with him to see how he is feeling and to ask if he has gone to the police station to check-in. Mr Elali constantly reminds her how grateful he is to have been arrested, as it was a big turning point in his life which allowed him to wake up and get sober.

31. The reference from Mr Elali’s employer Mr Duzenli also acknowledges the matters before the court. He employed Mr Elali on 16 July 2018 and Mr Elali has been working at the ZEN Group on a full-time basis since. He has known Mr Elali for approximately two years, when he met him when Mr Elali was working as a security guard at Darlo Country Club. He believes Mr Elali to be a hard-working and trustworthy person. In Mr Duzenli’s opinion Mr Elali is also reliable, a team player, driven to learn and build a long successful career in the building industry. He notes that Mr Elali has been continually remorseful, and regrets putting himself in such a situation, but more importantly is eager to continue making positive changes in his life.

23. Mr Duzenli observes that Mr Elali has been a very positive support to his family, his fiancée, his friends and his employer. As his mentor, Mr Duzenli believes that Mr Elali has a bright future and he is willing to do his part to ensure that he stays on the right track by regularly checking up on him, giving him his continuous support and providing him with advice whenever he can. He believes that Mr Elali is on the path to a successful rehabilitation.

24. Drug analysis reports demonstrate that Mr Elali has been clear of all drugs and in particular cocaine metabolites from 4 June 2018 to 9 April 2019.

25. A report of Dr David Jankelson dated 27 March 2019 says that Mr Elali’s sister Oola has been a patient of his for many years. She has bronchiectasis and respiratory failure, and has recurrent chest infections and frequent admissions Canterbury Hospital. She is on multiple medications and requires supplemental oxygen at home. Ms Elali requires full-time care which is provided by her family including her sister during the day, and her brother Mr Elali at night. Tragically she is under the palliative care service of the Sydney Local Area Health District. This document confirms Mr Elali’s care for his sister.

Subjective case

35. Mr Elali is currently 24 years of age. At the time of the offending, he was 23 years of age. He is still a very young man. He is one of five children and he maintains a close relationship with his immediate family, to whom he provides significant support, and in particular his sister Oola. He is soon to be married to Ms Ali. He has secured gainful employment in which he has achieved success and responsibility. After he was charged, he engaged in counselling, which he continues. He has undergone voluntary drug urinalysis which has reported him free from drugs for almost a year. He has no prior criminal convictions. He has shown appropriate and continued remorse.

Crown Submissions on Sentence

36. In relation to the sequence 3 offence, namely the supply of 9.22 g of cocaine contrary to s25(1) of the DMTA, the Crown submitted that the offending falls at the lower end of the range of objective seriousness, but nevertheless the threshold of s5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has been crossed, ie that no penalty other than imprisonment is appropriate, because:

1. First, the offender was in the business of supplying drugs for financial gain;

2. Second, police observed him supplying a customer with a bag of cocaine;

3. Third, when the police searched his vehicle he was found to be in possession of two mobile phones and $1100, which he subsequently admitted to being the profits from sales earlier that night; and

4. Additionally, 14 bags of cocaine – ie double the indictable quantity and three times the trafficable quantity of cocaine – were found in his car along with 44.50 g of cannabis leaf. The inference is that these additional substances were in his possession to supply to customers later that evening, and that that it was a deliberate act with a small degree of planning.

37. Thus, the Crown submitted that no penalty other than a full time custodial sentence is appropriate given the seriousness of drug possession and supply and its impact on the community in general.

Defence Submissions on Sentence

38. Mr Alexander, who also made helpful submissions, said the following on behalf of the offender:

1. He conceded that the s5 threshold had been crossed, and agreed no penalty other than a full time custodial sentence is appropriate given the seriousness of drug possession and supply and its impact on the community in general;

2. The offending demonstrates a street level operation only;

3. The offender’s moral culpability is limited and falls toward the lower end. He is a young man who led an exemplary life until his arrest. He had strong family connections. He was soon to be married to a supportive fiancée;

4. He has had psychotherapy and counselling to very good effect since his arrest;

5. He has been gainfully employed with a supportive employer since his arrest;

6. He had very good prospects of rehabilitation. The Crown agreed with this submission, and in particular because this is the offender’s first time before the court and he has had negative urinalysis arrests virtually from the time of his arrest to date;

7. The offender is genuinely remorseful, and his conduct since the offence demonstrates the remorse;

8. This offending is his first experience with the criminal justice system and is otherwise a person of good character (relying on the references tendered);

9. The offender is entitled to a 25% discount for his plea of guilty at the Local Court;

10. The offender is entitled to a further discount for his admission that he had previously sold cocaine that night, a fact that would not have been established but for this admission;

11. His supply of drugs was motivated by his perceived need to fund his own drug addiction and was for a relatively short time;

12. He has a low likelihood of reoffending, with strong community support; and

13. He has taken positive steps in turning his life around.

39. Both counsel did not suggest that in all of these circumstances I would fall into error if I imposed an Intensive Correction Order under s7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness

40. I have considered the authorities and the relevant principles guiding the assessment of the objective seriousness of offences of this kind. I am mindful that the assessment of objective gravity must be made by reference to all of the facts and circumstances of the case. [1]

    1. R v Huynh [2005] NSWCCA 220 at [26]-[29].

41. While drug supply of any kind is undoubtedly serious, I am satisfied that the quantity supplied for sequence 3 is at the lower end on the range of objective seriousness. As I have just said, this is a very serious offence. However, given the role of the offender, the street level nature of his dealing, the relatively unsophisticated manner in which he was selling the drugs, together with the fact that his motive to supply was to fund his own drug addiction and the other matters mentioned above, including the Crown concession about the offender’s lack of a prior criminal record and that he has good prospects of rehabilitation, lead me to a finding that the offending was in the low range for offences of this nature.

Form 1 and s166 Matters

42. As I indicated earlier, I have been asked to take a series of further offences into account on a Form 1 basis when sentencing for sequence 3. I do so and I have carefully considered s33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the judgment of Spigelman CJ in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

43. In addition, I have been asked to deal with four related offences which are listed on the s166 certificate, namely those described as s166 related, s166 back-up charges and an additional charge. I have taken these offences into account upon considering the total sentence to be imposed in accordance with s167(1)(b) of the Criminal Procedure Act 1986 (NSW).

Sentencing Approach

44. The purposes of sentencing are expressed in s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As often occurs, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions.

45. As the High Court said of s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

46. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty, the standard non parole period (if any) and the factors referred to in s21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

47. Matters adverse to an offender must be proved beyond reasonable doubt, whilst those favourable to an offender need only be proved on the balance of probabilities. There are no applicable aggravating factors within the meaning of s21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that must be taken into account in these circumstances, and none have been suggested by the Crown. I note that financial gain might be perceived to be a relevant factor in this case. However given that such is an inherent characteristic of the offence in question, and taking into account that it has not been suggested otherwise than the offending was done to support the offender’s drug habit, it cannot operate to aggravate the sentence. To do so would be double counting. There are, however, a number of mitigating matters that come into play as referred to in s21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). I mention the most important.

Plea of Guilty – s21A(3)(k)

48. The offender pleaded guilty in the Local Court and accordingly I have discounted the sentence I would otherwise have imposed by 25% to reflect the utilitarian value of the plea of guilty. I will indicate the quantitative effect of that discount on the sentence later in this judgment.

Assistance to Law Enforcement Authorities – s21A(3)(m)

49. During his interview with police, the offender freely admitted to having sold cocaine in Balmain earlier in the evening, a fact that would not otherwise been known to police, and has been included on the Form 1. For this, the offender is entitled to a further discount in his sentence, which I assess as 25%. I will indicate the quantitative effect of that discount on the sentence later in this judgment.

Rehabilitation – s21A(3)(h)

50. 50    There is a strong case in favour of the offender’s prospects of rehabilitation. As I have stated, the offender voluntarily began drug urinalysis in April 2018. He has regularly attended psychotherapy. The Sentencing Assessment Report supports his good prospects of rehabilitation.   

Remorse – s21A(3)(i)

51. Mr Elali has demonstrated a good deal of insight into his offending behaviour, and particularly the impact that the supply of drugs has on the community.

52. I am satisfied that the offender appreciates the seriousness of his offending and that he is genuinely remorseful for his offending behaviour.

sentence

53. I have taken into account the various purposes of sentencing under s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that I referred to earlier in this judgment.

54. Having had regard to s5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and having considered all possible alternatives, I am of the view that no penalty other than imprisonment is appropriate.

55. In determining an appropriate sentence I have kept in mind the legislative guidepost, ie the maximum penalty, which is imprisonment for 15 years for the sequence 3 offence. I have also taken into account the matters on the Form 1, being sequences 1, 2, 4 and 8.

56. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the sentence. Having considered all of the matters I have referred to in this sentence judgment, I impose a sentence of imprisonment for 18 months years. This is the effective sentence after applying a 25% discount for the offender’s early guilty plea, and his assistance to authorities by reason of the disclosure of his otherwise unknown guilt, which I also assess at a 25% discount. Had this discount not been applicable, the sentence would have been imprisonment for 3 years.

57. The final matter I must consider is whether it is appropriate to impose an alternative to full-time imprisonment – namely, in these circumstances, an Intensive Corrections Order. On this question, I have considered the recent authority of Parente v R [2017] NSWCCA 284, which held that the “principle” established in R v Peter Michael Clark (Court of Criminal Appeal (NSW), 7 July 1983, unreported) – that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate – should no longer be applied in sentencing for drug supply cases [at 106]. I also note that the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated:

“We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.”

58. Community safety is the paramount consideration when determining whether to impose an Intensive Correction Order (s66 (1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). Having regard to the subjective case of the offender, I am satisfied that the offender’s risk of reoffending, and therefore the safety of the community generally, is more likely to be addressed within the community rather than in gaol (s66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). In arriving at these conclusions, I have also considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

orders

59. You are convicted of the following offences:

1. Supply prohibited drug contrary to s25(1) DMTA (sequence 3);

60. Taking into account all the matters on the Form 1, you are sentenced to a term of imprisonment of 18 months.

61. Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order.

62. The sentence will commence today, 17 May 2019 and will expire on 16 November 2020.

63. You must report to the Leichhardt Community Corrections Office as soon as practicable, but no later than 7 days from 17 May 2019. This means that you must report to the Leichhardt Community Corrections Office by 24 May 2019.

64. The standard conditions of the order apply, namely:

1. You must not commit any offence; and

2. You must submit to supervision by a Community Corrections Officer.

65. The following additional conditions apply:

1. A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Mr Elali is currently receiving with Ms Lisa Schouw at Marrickville complies with this condition.

2. An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.

66. I order you to undertake community service work of 75 hours.

67. I dismiss the charges contained in the s166 Certificate.

68. I make a forfeiture order with respect to the $1100 that was seized on your arrest on 25 May 2018.

69. All drugs that were taken by police from the accused on 25 May 2018 are to be destroyed.

70. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

71. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

72. You are now directed to attend the court registry where a copy of this order will be explained and given to you.

**********

Endnote

Decision last updated: 17 May 2019