R v Elali

[2006] NSWDC 42

CITATION:	R v ELALI [2006] NSWDC 42
HEARING DATE(S):	08/09/2006
JUDGMENT DATE:	8 September 2006
EX TEMPORE JUDGMENT DATE:	09/08/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [22] and [23]
CATCHWORDS:	Criminal Law - Sentence - Supply Prohibited Drug - Form 1
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
PARTIES:	Crown Yossef Elali (offender)
FILE NUMBER(S):	06/11/0172; 06/11/0173
COUNSEL:	K. Dailly (offender)
SOLICITORS:	NSW DPP (Crown) Teakle Ormsby Conn Lawyers

SENTENCE

1 HIS HONOUR: Youssef Elali appears for sentence today on three matters. In relation to one of those there is a Form 1. The three offences are supplying cocaine. The matter on the Form 1 is an offence of goods in custody. It relates to the substantive matters, as I will shortly outline.

2 The offender pleaded guilty in the Local Court to two offences of actually supplying cocaine. In this Court, shortly before his trial was about to commence, he pleaded guilty to another offence on an indictment. This was also an offence of supplying cocaine. It does not relate to an actual supply but it is a case of the offender being in possession of a substantial quantity of cocaine for the purpose of supplying it.

3 On 7 September 2005 the offender was contacted by an associate of his, by the name of Jeffrey Telavavai. Mr Telavavai offered the offender a job. He said that he could earn a thousand dollars for a day’s work. The offender knew full well that he was being offered work that was illegal. He was under financial pressures at the time and so he decided to accept Mr Telavavai’s offer. He did this despite the advice and request of the offender’s partner. At the time they had two children. Despite these entreaties the offender ignored his partner’s request and went off to perform the illegal work offered to him by Mr Telavavai.

4 The offender met Mr Telavavai in the Kings Cross area. He was taken to a hotel where he was shown a mobile phone and given some keys. His job was to deliver drugs to people who would order them over the phone. One of those calls was from an undercover police officer. He telephoned the mobile phone and spoke to the offender and arranged to meet him. They met up. The offender purchased fifty dollars worth of cocaine from the offender. The drug was secreted in a small red balloon in the offender’s mouth. The balloon proved to contain .9 of a gram of cocaine. The offender asked if he could meet up to get some more. The offender said “Yeah, but you know it won’t be me.” The offender was observed leaving that meeting and going back into the hotel where he was based.

5 Later, another police undercover officer also arranged to be supplied with cocaine. He also telephoned the offender on the mobile phone and made arrangements to meet up. Again the offender went to meet with the undercover officer and supplied him with cocaine in a balloon that he kept in his mouth. The officer handed over fifty dollars and left, and once again the offender was observed as he left the meeting. He was arrested a short distance away from the hotel where he was based. Police found the Nokia mobile phone which the undercover officers had rung to arrange the drug supplies. That phone rang constantly whilst the offender was in police custody.

6 Police took the offender back to the police station. There they found not only the money that had been supplied by the undercover officers but other money which was the proceeds of other sales of cocaine, selling at fifty dollars per capsule. It is the possession of that money which forms the basis of the goods in custody matter on the Form 1.

7 Police went to the room at the motel where the offender had previously been based. When they got there they found a number of items, the most relevant of which were other balloons, one of the fifty dollar notes handed over by one of the police officers during the undercover operation, more cash and, most importantly of all, other drugs. There were a large number of capsules, each containing cocaine. In fact there were one hundred and nineteen capsules containing 21.5 grams of that drug.

8 Clearly, the offender was performing the occupation of a drug supplier. His job was to receive orders for the drug and meet up with the purchasers, handing over small quantities of cocaine for money.

9 The two offences to which the offender pleaded guilty in the Local Court, they being offences of actual supply, are examples of the criminality encompassed by the matter on the indictment. For that reason the sentences for the actual supplies will be wholly concurrent with the sentence for the matter on the indictment.

10 It was put on behalf of the offender, and I accept, that the offender’s involvement was limited to this particular day. It seems to be accepted by the Crown that what was happening was that the offender was working “a shift”. There is material to support the offender’s assertion that his criminality was limited to working on that particular day. In particular the offender did not answer the relevant mobile telephone on 6 September, the day before he was arrested, and when the first undercover officer asks for further cocaine, later that night, the offender says that he will not be the one to supply it. I am therefore prepared to proceed on the basis that the offender’s involvement was limited to this single day. But that does not mean that the offender was not trafficking to a substantial degree. Indeed he was. He was prepared to supply cocaine to whoever wanted it. There were more than one hundred capsules of that drug present in the room.

11 The quantities supplies were comparatively small, but the offender was prepared to do that regularly and often.

12 The offender was certainly not a principal in this organisation. He was a street level dealer supplying drugs that were not his, on behalf of another person, but doing so for substantial profit.

13 The offender has a criminal history, although there is nothing approaching the seriousness of these matters. There is a matter of possession of a prohibited drug which is consistent with information contained in the presentence report, and it is important to note that at the time of these offences the offender was on a s 12 bond imposed by the Local Court for affray. I should say at this stage that although the offender consented to me dealing with the consequences of his breach of that bond I declined to do so. I have no information as to the nature of the offence, before me, and so I would be unable to apply the principle of totality in determining the appropriate overall sentence for these matters and the matter for which he must now serve a sentence of imprisonment following his breach of a s 12 bond.

14 The offender is now twenty-four years of age. He lives with his de facto partner and their two children in a granny flat at the rear of his partner’s parents’ home. The offender’s partner is pregnant with the third of their children. The offender’s childhood was described as dysfunctional and disrupted. His parents separated when he was sixteen years of age. The offender’s father was a violent and intolerant man. It is suggested that the offender reacted adversely to his parents splitting up. It was at that time that he began consuming alcohol, experimenting with drugs and mixing with an anti-social peer group. It seems that that attitude continued to the time that he committed this offence, associating with Mr Telavavai for the purpose of committing these offences.

15 The offender left school at sixteen and was regularly employed until he suffered an injury at work. Documents were tendered to me demonstrating the severity of that injury. For a considerable period of time the offender was unable to work, receiving Workers Compensation. However, towards the end of last year, or the beginning of this year, the offender commenced employment with his brother-in-law. These were light duties because of the injuries which he had suffered earlier at work. More recently, in fact only about a month ago, he has now started work with a demolition company. He strips and cleans buildings, earning about $600 a week. His partner is not presently employed but does receive government benefits.

16 This offence was a very serious one. It was aggravated by the circumstance that the offender was on the bond, that I have spoken of, at the time. The Crown says that it was committed in company. Although there were two offenders involved in the offence nothing in the statement of facts satisfies me that the offender was actually in company at the time that he committed these offences. It is true that he was to some extent jointly sharing the room with Mr Telavavai, but that is not enough, in my view, to amount to the aggravating circumstance of it being in company in s 21A. It is also suggested by the Crown that the matter was part of organised criminal activity. That is true, but it is difficult to imagine a drug supply matter such as this which is not organised. Although it is an aggravating feature in terms of s 21A of the Crimes (Sentencing Procedure) Act it is, as I have said, common to most other offences of drug supply.

17 The offender has expressed his remorse in evidence before me, describing his decision to involve himself in the drug supply activities of Mr Telavavai as a stupid decision. It is not only stupid, it is significantly criminal. Nevertheless, the offender has expressed his remorse and I accept that his remorse is genuine.

18 I am not able to find that offender’s prospects for rehabilitation are good. There are prospects, but in view of: the offender committing this offence whilst he was on a bond (the breach of which would have resulted in his imprisonment); the matters referred to in the presentence report; the offender’s previous unsatisfactory response to counselling; and suggestions in the references tendered on his behalf that he is easily led, I am unable to find that the offender’s prospects for rehabilitation are good.

19 The offender, as I am mentioned on a few occasions now, did plead guilty. The plea of guilty to the actual supply matters came at the earliest opportunity, but the plead of guilty to the matter on the indictment only came shortly before the trial was due to commence. I will not quantify the discount I have imposed for the actual supply matters because those sentences are ultimately irrelevant to the overall sentence. I will discount the sentence I would otherwise have imposed on the offender because of his plea of guilty to the matter on the indictment by approximately ten per cent to reflect the utilitarian value of his plea.

20 The offender has spent one day in custody on this matter so it is appropriate that the sentence commence on 7 September 2006, that is yesterday.

21 Mr Dailly did tell me that he was instructed to suggest that the offender serve his sentence by way of periodic detention. I have given consideration to that matter in light of the fact that the period of custody I have decided to impose makes him eligible for such a sentence, however in my view and consistent with the authorities nothing less than full time custody is appropriate in this case. The offender deliberately set out to break the law. He deliberately set out to profit from drug supply activities. Those drug supply activities can make people a lot of money, as is evident from the fact that he was offered one thousand dollars for a day’s work. In those circumstances, the criminal law has to act as a substantial deterrent to others who may be attempted to make easy money through drug trafficking. The cases to which the Crown referred in her written submissions make it clear also that a sentence of full time custody is required for those who traffic to a significant degree in the absence of exceptional circumstances, which I am satisfied do not exist here.

22 The offender is therefore sentenced to imprisonment for the actual supply matters. They are the ones to which the offender pleaded guilty in the Local Court. The offender is sentenced to imprisonment for fixed terms of ten months. They are to date from 7 September 2006. They are fixed terms because of the sentence I will now announce on the matter on the indictment.

23 For the offence of supplying cocaine appearing on the indictment, taking into account the matter on the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of eleven months, which will commence on 7 September 2006 and expire on 6 August 2007. I set a head sentence for that matter of twenty-two months.

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