R v Elchami

[2019] NSWDC 571

District Court

New South Wales

Medium Neutral Citation:	R v Elchami [2019] NSWDC 571
Hearing dates:	18 March 2019
Date of orders:	18 March 2019
Decision date:	18 March 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate intensive corrections order 2 years 8 months
Catchwords:	SENTENCING — Non-parole period — Principles to be applied SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Weapons Prohibition Act 1998
Cases Cited:	Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39
Category:	Sentence
Parties:	Regina (Crown) Ahmad Elchami (Offender)
Representation:	Kate Austen (Crown) Elie Rahme (Offender)   Director of Public Prosecutions (NSW) (Crown) Elie Rahme and Associates (Offender)
File Number(s):	2018/00068299

EX TEMPORE REVISED JUDGEMENT

1. Ahmad Elchami is 31 years of age; he pleaded guilty in the Local Court to offences that are now before me for sentence.

2. The offence of possessing the baton is contrary to s 7(1) Weapons Prohibition Act 1998 which carries a maximum penalty of imprisonment for 14 years, and a standard non-parole period of five years.

3. Standard non-parole periods are a concept that was introduced into the Crimes (Sentencing Procedure) Act 1999 in Pt 4 Div 1A. Those provisions were amended after the High Court decision in Muldrock v The Queen [2011] HCA 39, and thus the Act provides that the standard non-parole period for an offence is that which is included in the table to the provisions. I have already indicated the standard non-parole period for this offence is five years' imprisonment. The Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period represents the non‑parole period for an offence that falls within the middle of the range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of the offence; the standard non-parole period is a matter to be taken into account when determining the appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account, and a Court must record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.

4. The objective gravity of that offence will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending, and bringing to account relevant factors provided in s 21A Crimes (Sentencing Procedure) Act 1999, except for those that are essential elements or characteristics of the offence. When fixing a non‑parole period, that is but part of the task whereby the Court determines what is the appropriate sentence, regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences.

5. The Court must not embark upon an arithmetical or staged process of reasoning when assessing an appropriate sentence, but must identify all relevant matters bearing upon the question of the appropriate sentence by the process of intuitive sentences discussed, for example, by McHugh J in Markarian v R [2005] HCA 25. In the determination of sentence for an offence for which there is a standard non-parole period specified, it and the maximum penalty are legislative guideposts for the sentencing Court along with other established sentencing practices and by reference to matters identified where relevant in ss 3A, 21A, and 22 Crimes (Sentencing Procedure) Act 1999.

6. Applying these principles against the facts that are before me, I find that the objective gravity of the offence of possessing the baton falls below the mid‑range of objective seriousness. I do not have any particulars or details of the weapon, other than to say that it was found in furniture where the offender lived in a holster. There is no further description given of the item. There is nothing before me as to the reason he might have had it, and one might infer that it was all part and parcel of this criminal enterprise upon which he was engaged, but I could not conclude that beyond reasonable doubt upon the material that I have.

7. All of that said, having such a weapon is a matter of concern to the Courts and to the community, and I am satisfied that there should be a term of imprisonment specified for that offence, assessed at 1 year, with a non‑parole period of 8 months, to be imposed were this matter being the subject of a sentence standing alone. That is an indicative sentence which I have adopted for the purposes of the aggregate sentence which I shall identify at the conclusion of this judgement.

8. I should say that the aggregate sentence I have settled upon is one that would exceed two years, with an aggregation of the indicative sentences identified for each of the individual offences I am about to discuss, but it will fall to a level below three years, bringing into account all of the matters before me, including the fact that the offender has spent some time in custody already, and has been subject to stringent bail conditions, to which I shall refer.

9. I intend to order him to serve the sentence by way of an intensive corrections order in the community.

10. He was in custody for these offences from 1 March 2018 until 27 September 2018 when he was released to bail for a period of six months and 27 days, and that must be brought to account. Were he to be serving the sentence in custody I would be backdating the sentence, bringing that period into account, to commence on a day six months and 27 days before today. But as I am intending to impose an intensive corrections order, the sentence I impose will commence today.

11. The bail conditions to which he was subject after he was released to bail were stringent. I have extracted those from JusticeLink. They are that he report each day to the police at Blacktown between the hours of 8am and 8pm. He was to surrender his passport to the Court. He was not to approach any point of overseas departure or apply for overseas travel documents. He was to reside at an address in Blacktown, and he was proscribed from going into the suburbs of Fairfield, Fairfield East, Villawood or Chester Hill. He was not to approach or contact by any means, except through his legal representatives, any witness in the Crown case. He was to not be absent from the address specified at Blacktown between the hours of 11pm and 6am unless in the company of his wife, from whom I heard today. He was to present himself at the front door at the direction of any police officer, confirming compliance with the curfew conditions, and such direction could only be given by a police officer who believed on reasonable grounds that it was necessary to do so, having regard to the rights of other occupants of the premises to their peace and privacy. He was not to associate by any means except by way of his lawyer with any of the co-offenders nominated in the bail conditions.

12. There was a requirement that an acceptable person deposit and agree to forfeit the sum of $50,000, and a second acceptable person to deposit and agree to forfeit the sum of $30,000, and a third to deposit and agree to forfeit the sum of $10,000. I shall include that document on the Court file for future reference where it might be required.

13. There were two co-offenders, against whom proceedings have been brought. One is listed for sentence in the Local Court at Burwood on 20 March 2019. The Court there is limited to a jurisdictional limit for the offences upon which that person is to be presented. These are two counts of supplying a prohibited drug, one count of possessing ammunition, and one count of dealing with the suspected proceeds of crime, with two counts of possess prohibited drug and one count of participating in a criminal group included on a Form 1. That was a person named Adam Tufic.

14. The other offender, Hassan Shahrouk, was sentenced in the Local Court at Fairfield on 13 August 2018 for one count of supply prohibited drug, and one count of participating in a criminal group, with one count of possessing a prohibited drug on a Form 1. He suffered an aggregate intensive corrections order of 12 months.

15. The Crown correctly submits that this offender before me is at a higher level than either of those two, that parity considerations do not require a sentence comparable to what was imposed on Mr Shahrouk, and that his case and the circumstances leading to his sentence are distinguishable from the present matter.

16. The facts extend over some pages. At the time of the offending the offender lived at an address in Chester Hill, and the man Tufic resided in other premises in Chester Hill. In November 2017 police commenced an investigation into the large scale supply of cannabis throughout Yennora, Villawood, Fairfield East and Chester Hill.

17. In February 2018 Elchami hired three hire cars that were used by runners to deliver cannabis throughout those areas. Mr Rahme on behalf of the offender confines the period of misconduct for consideration by this Court to the period commencing in February 2018 notwithstanding the breadth of activity that was involved, otherwise leading to the police commencing their investigation in the preceding November. The mobile telephone number used as the main phone and point of contact for a large customer base of about 300 individual customers ended in the number 610. This had been listed with Telstra from 1 August 2016 under a falsely subscribed name.

18. The call charge records for that phone show there were 194 days from 1 July 2017 to 1 March 2018 when it was used to receive calls from customers. These calls were diverted to two different mobile phones. One of these was found in the possession of Michael Faalua on 12 December 2017, a runner, and the other was located upon execution of the search warrant in the premises occupied by Tufic on 1 March 2018. The hours of operation in which the telephone service 610 was used were from 10am to 10pm, a period of 12 hours per day.

19. Throughout February 2018 this phone was in the possession of Elchami and was being diverted to another mobile handset that was in the possession of Tufic, or the aforementioned drug runner. On 7 February 2018 to 1 March 2018 Elchami and Tufic stored cannabis at Tufic's house to facilitate the supply of the cannabis to the aforementioned drug runner. This offender attended Tufic's residence to ensure that the drug delivery syndicate was operating as intended, and that the cannabis was ready for delivery.

20. On 16 February 2018 authority was granted for police to conduct a controlled operation. In the morning of 23 February 2018 Elchami and Shahrouk attended Tufic's residence. Shahrouk was provided with the cannabis for on-supply and Shahrouk left in the hire car.

21. On the same day at 12.55pm a street level operative, given the name Caitlyn, telephoned the service ending 610 and spoke to a male. Arrangements were made to meet at the Bing Lee car park, Woodville Road, Old Guildford. About ten minutes later Caitlyn saw a Renault van drive into the car park. Shahrouk was seated in the driver's seat. Caitlyn approached and a conversation occurred in relation to the purchase of $30 worth of cannabis. Shahrouk had a clear resealable plastic bag containing numerous smaller clear bags containing green vegetable matter. Caitlyn gave Shahrouk $30 in pre‑recorded drug money and Shahrouk handed Caitlyn two bags of the green vegetable matter. This was later analysed and found to be 1.8 grams of cannabis leaf.

22. On the same day at 2.45pm and 3.15pm a street level operative given the name Justin telephoned the service 610 and spoke with a male. Arrangements were made to meet and at 3.16pm Shahrouk was seated in the driver's seat of the white Renault van in Railway Street, Yagoona, when Justin approached, and had a conversation regarding the purchase of 2 grams of cannabis. Shahrouk had a clear resealable bag on his lap containing numerous smaller clear resealable bags containing green vegetable matter. Justin handed $30 to Shahrouk in pre-recorded buy money. Shahrouk handed Justin two bags of a green vegetable matter, found upon analysis to be 1.7 grams of cannabis leaf. The total supplied on 23 February 2018 was 3.5 grams of cannabis. That is one offence upon which sentence is to be determined.

23. On the morning of 28 February 2018 Elchami and Shahrouk attended Tufic's residence. Shahrouk was provided with cannabis for an on-supply and Shahrouk left in a hire car. At 1.58pm that day until 2pm that day Caitlyn telephoned the service ending 610 and spoke with a male. Arrangements were made to meet at Bing Lee car park, Woodville Road, Old Guildford, and shortly after a silver Toyota Camry entered the car park and parked near her. The driver of the vehicle was Shahrouk. Caitlyn approached and asked for $50 worth of cannabis. She handed him $50 in pre-recorded drug buy money and Shahrouk handed her three bags of the green vegetable matter, subsequently analysed and found to be 2.2 grams of cannabis leaf.

24. Later that day a street level operative, Sam, telephone the service ending 610 and spoke to a male. Arrangements were made to meet and shortly after that occurred at the Fairfield Railway Station commuter car park where Shahrouk arrived in a silver Toyota Camry. He had a clear resealable plastic bag with numerous smaller bags. Sam asked, "Is it still two for 30" to which Shahrouk replied, "Yep, yeah." Sam handed Shahrouk $30 of pre-recorded drug buy money and Shahrouk handed over two bags of the green vegetable matter. The name Justin is used at this point; I am not sure whether that is a typographical error or he was present at the same transaction.

25. RAHME: Yes, there was a third.

26. AUSTEN: Paragraph 16 your Honour?

27. HIS HONOUR: Yes, 15.

28. AUSTEN: The name Justin appearing at the third last line, that is a separate transaction.

29. HIS HONOUR: Sorry, he was present at the transaction?

30. RAHME: Yes, there were three transactions on the 28th.

31. AUSTEN: So it is a third separate transaction. So on that date there is Caitlyn in para 14.

32. HIS HONOUR: We have Sam and then we jump to Justin. Was Sam accompanied by Justin?

33. RAHME: Yes, no your Honour is right. It should be Sam two bags.

34. HIS HONOUR: It should be Sam?

35. RAHME: Yes, your Honour is correct.

36. AUSTEN: Yes, sorry about that. I am with your Honour now. Yes, that should be Sam.

37. HIS HONOUR: I will just put a line through the word "Justin" and replace that with "Sam".

38. AUSTEN: Justin does not reappear until para 16.

39. HIS HONOUR: That is in the third last line in para 15 of the facts.

40. Shahrouk handed Sam two bags of green vegetable matter, later analysed and found to be 1.5 grams of cannabis leaf. About 4pm the same day Justin telephoned the service ending 610 and spoke with a male. He recognised the male to be the same as the person to whom he spoke on 23 February 2018. Arrangements were made to meet and shortly after a silver Toyota Camry driven by Shahrouk stopped at Yennora Railway Station. Justina and Shahrouk negotiated the transaction. Shahrouk took from the console a large clear resealable plastic bag which had numerous smaller bags. Justin handed Shahrouk $30 and Shahrouk handed Justin two small resealable bags with green vegetable matter, analysed and found to be 1.5 grams of cannabis leaf. The total supply on this day was 5.2 grams of cannabis.

41. In these two episodes the offender was at a level above the street runners or suppliers, facilitating the provision of the cannabis to the runners for on-sale to those nominated in these facts.

42. A search warrant was executed at Tufic's address on 1 March 2018, and also at the offender's address. In the address occupied by Tufic the police located four mobile phones, $1,850, $710, which included money that had been pre-recorded, 20 resealable bags of green vegetable matter, 30 x 10 mil vials containing steroids, and a magazine with 13 bullets, that is a firearm magazine containing 13 bullets. There was a driver's licence found in the name Kumar, some bags of cocaine and some scales, two cut and folded playing cards and a small bag containing cocaine, three empty clear resealable bags, and $6,500 in cash.

43. The offender was arrested and cautioned outside of the premises occupied by Tufic, and taken to Fairfield Police Station where he was entered into custody. He declined the opportunity to be interviewed.

44. In his premises the police found 15 mobile phones, including the phone for the service with the number ending 610. There was $3,700 on top of the safe in the bedroom, $1,125, $200 and $2,000 in different drawers in the bedroom, $1,575 in a money tin in the bedroom, $2,440 in a plastic bag inside the safe, $15,280 inside the safe, the baton and holster in a chest of drawers in the bedroom, a vial and syringe containing testosterone enanthate, and green vegetable matter in a resealable bag in the kitchen, analysed and found to be 0.3 grams of cannabis. The total amount of the money found was $26,320.

45. Tufic also upon his arrest declined the opportunity to be interviewed.

46. Shahrouk was also arrested. He participated in an interview. He admitted that he was selling cannabis, and that he had a phone upon which people would contact him and he would agree to meet them. He supplied a small bag for $20, two bags for $30 and three bags for $50. He supplied to eight or nine people in an hour, making a maximum of $1,100 per day but sometimes he only made a few hundred dollars. He worked from 10am to 10pm a couple of days a week and received a couple of hundred dollars a day. He had been doing this for about a month and a half.

47. He used hire cars and would have the cannabis on him. A friend hired the car for him but the friend did not know what it was for. He kept the van at his home and gave the money to the "guy I get it off". He would visit Tufic, and he would go to the offender's address to deliver to a customer, but denied taking any money to Tufic's address. He acknowledged that he knew the offender.

48. The offender has a record of antecedents but not for conduct such as this. He has been before Children's Courts beginning in June 2005 for common assault and damaging property, for which he received conditional liberty. In November 2004 he was fined for traffic offences; so too in May 2005, predominantly in not complying with his licence obligations. He was fined for resisting an officer in February 2010 and for further traffic offences in August 2011. He has one prior drug offence of possess a prohibited drug in December 2012. That was dismissed pursuant to s 10 Crimes (Sentencing Procedure) Act 1999. He was also before the Court in February 2013 for driving dangerously, exceeding the speed limit by more than 45 kilometres per hour, and for those offences he was fined, put on a s 9 bond, and disqualified for a total of three years for the dangerous driving offence and six months for exceeding the speed limit. On an appeal to the District Court, the disqualification was reduced to 12 months for the driving dangerous offence.

49. I have the facts before me in relation to Shahrouk which reveal the discrete facts and circumstances upon which he was sentenced, and I have his antecedent record which shows he had no prior record.

50. The sentence assessment report provided in respect of the offender indicates his circumstances as reflected in the evidence given by his wife, by way of her affidavit and in response to cross-examination. He is resident with his wife expecting their first child, according to this report. He has been continuing to use cannabis on a regular basis, and that has stopped only as recently as 6 March 2019. That is a matter that prompted the Crown's submission that I would be circumspect about his prospects for rehabilitation.

1. He said that he started supplying illicit substances to fund his own drug use but got carried away and did not realise how far things had gone. This was clearly a relatively sophisticated enterprise with the two runners being appropriately supplied with product, and motor vehicles that were hired for the activity, with the contact by way of one mobile phone being then redirected through that phone to the phones used by the runners who would agree to meet and complete the transaction. He reported that the offending had cost him everything, but did not further specify the impact of his misconduct. These impacts, however, were said to extend to his marriage and his finances. He has not expressed any insight into the impact of his offending on his victims.

2. It is sometimes suggested that cannabis is a drug that does not cause great harm in the community, and indeed there are those in the community who would like to see it decriminalised, at least for therapeutic purposes, and there is a strong debate at a policy level regarding that. All I would say about cannabis is that as a crown prosecutor before I was appointed to the bench, part of my duties included management of the murder list in the Supreme Court, and it was my anecdotal experience that at least half the matters that came before the Supreme Court wherein schizophrenia was said to be the catalyst for the particular crime, cannabis played a role in the mental health of the accused person, who relied upon the diagnosis of schizophrenia in mitigation of their criminality.

3. It is not a drug of little impact. It does cause harm in the community. I would have to be blind not to note that in case after case after case that has come before me in the last 12 or 13 years I have been doing this work, cannabis is the gateway into more extensive drug use, leading to other substances, which ultimately take the offender down a path of more serious criminality at the expense of the community.

4. He is willing to undertake community service. He is willing to undertake invention in the community. His previous response to supervision in 2013 was satisfactory. He has engaged well with Community Corrections throughout the preparation of this report. He is assessed as a medium risk of reoffending and if he is to be supervised, Community Corrections will supervise him at the T1/medium supervision level of the service delivery standards. No conditions other than supervision are required to implement the supervision plan proposed.

5. I intend to specify a sentence of imprisonment which is to be served by way of an intensive corrections order in the community, which will have with it the standard conditions for supervision, that he not commit any offences, that he provide community service, and that he continue to undertake the rehabilitation that is provided by way of intervention to assist him to take another path in life.

6. I was impressed by the evidence given by his wife. She was clearly pregnant and expecting their child in the near future. Uncontested evidence is the extent to which he contributes to his family, providing assistance to his younger brother who suffers with Down syndrome. I perhaps should qualify that remark. The fact that his brother has Down syndrome clearly imposes limitations I would expect, requiring the help that is articulated in the affidavit filed by his wife. It is my experience of those who have Down syndrome that they are generally loving and affectionate people who provide a great deal in that context for their family.

7. His parents were divorced when he was five years of age. He was raised by his father. His mother suffers from dementia and lives with her brother who provides her with care. He is close with his brothers-in-law. He did not have a stable home environment in his formative years, in contrast to the benefit derived by his wife in her large family. Their baby is due on 4 July 2019. He has attended all scans and appointments with her and it is said that he is proud of becoming a father and is excited to see the progress their child is making through this pregnancy. They have not been able to live together while he is on bail, because her home is in Guildford and he has been required to live at Blacktown. She has wanted to spend as much time as possible in the Guildford address where she has been living because of her parents being located across the road.

8. He has been attending counselling with Giving Back Australia, a drug and alcohol counselling service. I have a document from them confirming that he is participating in that program. He is employed with his wife's cousin, and there is a document from him confirming that arrangement. There is confirmation of the pregnancy, which did not need a medical report I must say to tell me that his wife was pregnant. There is also a drug screening report revealing there was no illicit substance, for which a test was made, detected in his system. There is a letter of attendance from Remand Addictions written on 10 September 2018, but candidly he acknowledged continued cannabis use up until very recently.

9. Having brought all those matters to account, and bringing to bear the submissions made on his behalf, and those on behalf of the Crown, including the fact that he has an antecedent record for other types of offences essentially, and which impacts upon the extent to which he might otherwise have leniency, the fact that this must have been for financial gain, and that he was engaged in a sophisticated activity which produced more income than might have been required for his own drug habit, and the circumspection with which I must approach the assessment of his prospects for rehabilitation, I accept the submission that the line in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed. I propose to announce indicative sentences for each of these offences.

10. The cannabis supply charges, the subject of specific prosecution were but part of the overall enterprise within the period identified by Mr Rahme in which he was a participant in a criminal group. The proceeds of crime I am asked to deal with on the basis that it cannot be said whether the proceeds of crime was for these crimes or for some other crimes. It would seem to me that if I was to take the view that it is possible that this money came from another criminal source that would expand the criminality upon which the offender had engaged. I come to the view on the material before me that there is no other inference available but that this money was the proceeds of the ongoing supply of cannabis through this arrangement that had been so carefully put in place.

11. I have already announced the indicative sentence for the offence of possession of the baton. For knowingly deal with the proceeds of crime against a maximum penalty of imprisonment for 15 years, I specify an indicative sentence of 1 year and 3 months. For the supply of 3.5 grams of cannabis against a maximum penalty of imprisonment for ten years, and a fine represented by 2,000 penalty units, I specify a sentence of 12 months. For the supply of 5.2 grams of cannabis, I specify an indicative sentence of 1 year 3 months.

12. I should note that the knowingly deal with the proceeds of crime was contrary to s 193B(2) Crimes Act 1900, and the supply cannabis is contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence of participating in a criminal group is contrary to s 93T(1) of the Crimes Act 1900 specifying a maximum penalty of imprisonment for five years. For that offence I specify an indicative sentence of imprisonment for 12 months.

13. Bringing to account the past custody and the stringent bail conditions to which I have referred, and upon the subjective material that has been presented, synthesised with the objective facts and circumstances, I am satisfied that it is appropriate that the offender serve the sentence that I am about to announce by way of an intensive corrections order in the community. I do not need another report. I am satisfied in accordance with s 17B Crimes (Sentencing Procedure) Act 1999 that I have adequate material before me upon which to reach the decision that I have come to. I have had regard to community safety in accordance with s 66 Crimes (Sentencing Procedure) Act 1999.

14. I specify an aggregate sentence of imprisonment of 2 years and 8 months. I should say that the sentences I have identified as appropriate for the individual offences have had applied to them a discount of 25% for utility. The sentences were rounded down to years and months for ease of expression without including the odd day where a strict application of 25% resulted in a slightly longer period. This favours the offender slightly. The sentence is to be served by way of an intensive corrections order in the community, and it will be subject to the standard conditions of the offender being supervised by a Community Corrections officer, and he is not to commit any offence.

15. I shall require him to perform 200 hours of community service, and it will be for the Community Corrections officers to identify the rate at which that is to be performed. I require that he continue with his rehabilitation program, which he commenced with Giving Back Australia. It will be a matter for Community Corrections to supervise with that condition, for which there is provision in s 73A(2) (e) Crimes (Sentencing Procedure) Act 1999. He is to report to Community Corrections at Blacktown no later than - I will give him till Wednesday, which will be 20 March 2019. The sentence will commence today.

16. Pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989 the cash in the sum of $26,320 found at Chester Hill on 1 March 2018 is forfeited to the State. Pursuant to s 19(3) para (a) the property forfeited thus may be disposed of forthwith.

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Decision last updated: 16 October 2019