R v Esho

[2023] NSWDC 195

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Esho [2023] NSWDC 195

Hearing dates:

2 June 2023

Date of orders:

9 June 2023

Decision date:

09 June 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

Sentence of imprisonment to be served by way of Intensive Correction Order. Orders at [51]

Catchwords:

CRIME – Sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

R v Anscombe [2021] NSWDC 540

R v Mandranis (2021) NSWCCA 97

R v Mason [2022] NSWDC 351

Stanley v DPP [2023] HCA 3

Zheng v R [2023] NSWCCA 64

Texts Cited:

Sentence (Sixth Edition) by Stephen Odgers

Category:

Sentence

Parties:

Rex (Crown)
Simon Esho (Offender)

Representation:

Counsel:
Ms Sawagid (Crown)
Mr P Strickland SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Karnib Saddik Law Firm (Offender)

File Number(s):

2022/00137604

Publication restriction:

No.

Judgment

INTRODUCTION

1. The offender, aged 27, has pleaded guilty to one offence of supplying a commercial quantity of cocaine (828 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

2. The matter was heard on 2 June 2023 at which hearing I received into evidence a body of material together with written and oral submissions which, where relevant, I will refer to in these reasons.

The Facts

3. The agreed facts are in short compass and may be summarised as follows:

1. In May 2022 an investigation was commenced into the activities of the offender. These investigations identified the offender as the only resident of Unit 315 of 659-669 Gardeners Road, Mascot.

2. On 12 May 2022 Police attended 315/659-669 Gardeners Road, Mascot to execute a search warrant.

3. At approximately 5.13 pm the Police officers saw the offender exit the residence. He was approached by Police and searched. Police located four mobile phones, a case of air pods, a set of keys to the offender’s unit and a car key and an Apple watch.

4. The offender was told the Police had a warrant to search his unit and was asked if Police would find any drugs or money in the unit. The offender replied “nope”. The offender told Police that he lived at the unit alone and that nobody else was inside.

5. During the search of the offender’s bedroom, Police located two clear freezer bags containing a white powdery substance inside a pair of white Lacoste shoes. The substance inside those bags was subsequently analysed and found to be a total of 55.6 grams of cocaine.

6. In the spare bedroom Police located a yellow plastic bag containing a block of compressed white powder in a vacuum sealed bag. The powder was subsequently analysed and found to be 772.6 grams of cocaine.

7. The Police cautioned the offender before asking him some further questions in relation to the block of white powder. The offender (by way of shaking his head) implied that he had not seen the yellow bag before and did not know what was in it. The offender said the bag was not his and that he did not go into that room.

8. The offender was arrested and interviewed but offered no comment on the allegations.

Time in custody

4. The offender was in custody referable to the present matter for 78 days from the date of his arrest on 12 May 2022, before being released on conditional bail on 28 July 2022.

Time spent in a full-time rehabilitation program

5. On 8 August 2022, the offender voluntarily entered a full-time live in rehabilitation program conducted by Connect Global Limited at Swan Bay. He participated on a full-time basis for a period of seven months to seek to deal with his drug addiction. There is in evidence a comprehensive report dated 22 May 2023 of his time there. He participated in the program enthusiastically and constructively. He appears to have benefited greatly from this time there. He is presently drug free.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

6. It is common ground between the Crown and Mr Strickland SC for the offender that the seriousness of the offender’s conduct can be ascertained by an examination of the following relevant factors:

1. The role of the offender and the level of his participation in the offence;

2. The quantity and purity of the prohibited drugs;

3. The extent of planning and number of occasions upon which the drugs were supplied; and

4. The degree of financial reward received by the offender.

7. As to his role, I was warned by both Mr Strickland and the Crown to not seek to characterise the offender’s role by the use of “tags” such as “courier” or “warehouser”.

8. I find that the offender’s role in the offence was to store the illicit material for the purpose of supply by others. There is no evidence that this was more than a one off occasion. There is no evidence of extensive planning. It therefore seems to me that his role in the overall criminality, being the supply of these drugs, was low.

9. The quantity of the drugs (828 grams) was conceded by Mr Strickland to be high, however he points to the fact that the purity of the drugs was 26.5% which he submitted, and the Crown conceded was towards the lower end of what might be ordinarily expected.

10. In any event, it seems to me tolerably obvious, and this is supported by the authorities including in particular the decision of Mandranis v R [2021] NSWCCA 97, that whilst quantity and purity are relevant factors it is important not to place too much emphasis on quantity or purity of drugs because many other factors can impact, perhaps to a greater extent, the objective seriousness including the ultimate consequences of the distribution of the particular drugs. In this case I have no evidence one way or the other what those consequences might have been, but I do take into account the large quantity of the drugs which is somewhat mitigated by the low level of purity. I also take into account that the ultimate supply of these types of drugs into society is itself a very serious matter, not just because of the social impact of drug use, but also as a cause of other criminal conduct.

11. Another relevant factor as to objective seriousness is the amount of financial reward received or contemplated by the offender. In this case I have no evidence one way or the other. However, it is common ground and supported by the evidence that the offender was participating in the supply of drugs so as to obtain money to feed his own drug habit. That being the case it seems to me that the level of financial reward is not a particularly helpful guidepost to the overall seriousness. Whatever he received I infer he spent on buying drugs for himself, not for the purpose of growing his wealth.

12. Accordingly, as far as the objective seriousness of the offence is concerned, I conclude that the offender:

1. Had a very limited role in the supply of drugs. There is no suggestion that he was actually supplying drugs and on the evidence, I can conclude no more than this was a one off occasion (which is consistent with the charges);

2. The quantity of the drugs is high;

3. The purity of the drugs is low; and

4. There is no evidence of significant financial reward to the offender, but if there was, I would be satisfied in any event that he was doing it to feed his own drug habit, whilst this is not an excuse for the offending I do think in those circumstances that to dwell on the financial reward is of no great assistance.

13. For those reasons, in my judgment, the objective seriousness of the offence is very much in the low range or at the very least towards the low range.

SUBJECTIVE MATTERS

14. The offender is 27 years old and presents with a very strong subjective case notwithstanding that he has a not insignificant criminal history spanning over multiple Australian states. He is currently subject to two separate community corrections orders (H86551428 for drug supply and H84535960 for common assault). In 2018 the offender was sentenced to imprisonment in Queensland for a period of three years for possession and supply of dangerous drugs. He was released on parole on 6 December 2018.

15. The offender has been on conditional bail since 28 July 2022 (which has since been varied on multiple occasions) and has not breached any of the conditions to that bail.

16. At the time the offender was arrested he was on conditional release, which is an aggravating factor pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

17. On the other hand, the offender does present with a number of mitigating factors in his favour which I will refer to. Specifically the offender has good prospects of rehabilitation, he has shown remorse and accepted responsibility for his actions which is demonstrated not just by his plea of guilty, but by his action in seeking help. These matters are each mitigating factors pursuant to s 21A(2) of the Act.

18. Notwithstanding his criminal history I have concluded that the offender has a very strong subjective case. In reaching that conclusion I take into account:

1. His young age;

2. the plea of guilty at the earliest possible opportunity for which he is entitled to a 25% discount;

3. his expressions of contrition and remorse which I accept as genuine;

4. his participation in the 7 month rehabilitation program. The report from the rehabilitation centre paints a reasonably glowing picture of the offender’s level of participation. His progress is described as ‘significant’. All of his urine samples, taken randomly, have been negative to drugs;

5. the fact that there is evidence by a qualified psychologist Billel Rababi that the offender was at the time of offending suffering from trauma, substance abuse, anxiety and depression at the time of the offence and that in Mr Rababi’s opinion, there is a link between those matters and his criminal conduct. Mr Rababi has developed a treatment plan for the offender’s ongoing treatment and regards his prospects of being successfully treated as good.

6. the fact that the offender is presently free of drugs and alcohol and intends to remain so, combined with the evidence of Billel Rabibi that his drug habit is in some way causative of the criminal conduct;

7. the fact that the offender has obtained full-time employment as an electrician and his employer is very supportive of his efforts to rehabilitate and has made it clear that he will be prepared to continue the employment if the offender is available;

8. The fact that the offender is committed to move into the “Extension Program” run by Global Connect so as to continue his efforts to rehabilitate;

9. the significant hardship to third parties, in particular the offender’s parents of any lengthy custodial sentence;

10. The fact that the offender states that he is committed to ongoing treatment, ongoing rehabilitation, ongoing employment and to use the “cliché” to “turn his life around”; and

11. There is a favourable Sentence Assessment Report which has assessed the offender’s risk of re-offending as “low to medium”.

19. The offender was born in Iraq and experienced significant trauma when he was nine years old after the fall of the Saddam Hussein regime. The evidence of his mother was that sometime in 2004, the family home was attacked by terrorists, the family was chased onto the roof, there was gunfire and somehow the family escaped. The offender’s mother gave plausible evidence, which I accept, that after those events he became withdrawn and his personality changed.

20. In 2006 the family came to Australia. The offender had a brother, Martin, who he was close to and they slept in the same room. Exactly one year prior to the sentencing hearing in this matter, the offender’s brother died. The evidence was not entirely clear, but it seems following bouts of Influenza A and COVID-19, Martin spent 17 days in hospital before he died.

21. At the time of his brother’s death, the offender was in custody. The offender was himself suffering from COVID-19 and was unable to attend his brother’s funeral as a result.

22. According to the psychological evidence and the evidence of the offender’s mother, this tragic event had a profound (and it would seem in some ways positive) impact on the offender. Prior to that time, he had a serious drug problem which his family was aware of and had tried to counsel him towards cure but to which he was entirely resistant. After that event and upon release, he voluntarily took up the 7 month rehabilitation program to which I have referred. His efforts to date seem to have been successful and as of the present time I am satisfied that the offender is drug free. As I have also said, he has obtained full-time employment. His employer speaks highly of him and regards him as valuable. His employer has stated that the offender will keep the job if he is able to do so. He is currently living with his mother and father. The offender’s mother’s evidence is that his personality has changed since the death of his brother and his time in rehabilitation. He is much more positive, is helping around the house, he has an orderly routine of life which involves waking up, going to work, and then coming home and he does not see his friends (the impression which I get is that his friends were and are a bad influence on him). Of course, that last point cannot be given much weight at all because consistent with his bail conditions at the moment he is not allowed to go out at night. The offender has received treatment for his underlying mental health issues and has a treatment plan in place to continue that treatment.

23. Without using clichés like “turn the corner”, it does seem to me that the offender has made significant efforts which are objectively demonstrable of and are consistent with his expressions of contrition and remorse and has committed to ongoing treatment, including the treatment plan recommended by the psychologist, and participation in an extension program provided by the rehabilitation clinic which would include participation in regular narcotics anonymous meetings.

DISPOSITION ON SENTENCE

Purposes of sentencing

24. Section 3A sets out seven purposes “for which a Court may impose a sentence on an offender”.

25. I have had regard to those matters in considering the appropriate sentence in this matter.

26. The purposes of sentencing include specific and general deterrence, retribution and protection of the community. Each of those is relevant in this matter. I am satisfied that the offender has been, by his experiences relating to this case, the death of his brother and his voluntary time in full-time rehabilitation, deterred from future offending. That being said, ultimately whether he offends again or not will, it seems to me, be entirely dependent on whether he is able to maintain his current drug free status. There is also a need for general deterrence, that is for the community at large, and importantly any member of the community who may be considering committing a crime such as this to understand that significant punishment awaits them in the event that they are arrested and charged. Ultimately, the community needs to understand that crimes of this nature will attract significant terms of imprisonment.

27. To my mind it is very significant that I am required under s 3A to take into account the protection of the community from the offender and to promote the rehabilitation of the offender.

28. The two concepts are obviously linked. If the offender can be appropriately rehabilitated then the community will almost certainly be safe from further conduct of this nature by the offender. On the other hand, if he cannot be successfully rehabilitated, then the community remains at risk. I am satisfied that his prospects of rehabilitation are reasonably good.

29. I also take into account that it is clear to me that the impact of a full-time gaol sentence will have a serious impact on the offender’s mother who has already experienced severe grief after the recent death of her other son, Martin. Whilst ordinarily that is no more than a consequence of the offending, in this case I regard the mother’s suffering as exceptional.

Disposition

30. There is no issue between the Crown and the offender that the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed and no sentence other than a full-time imprisonment is warranted.

31. The offence is a serious one. Parliament has made it clear by the penalties imposed (maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment) that the community considers offences of this nature to be very serious indeed. Nonetheless, in the context of offences of this kind, I am satisfied that the objective seriousness is towards the low end of the spectrum and that the offender has an extremely strong subjective case.

32. Mr Strickland submitted that a sentence of about two and a half years (after discount of 25% but before allowing for time in custody and quasi custody) would be appropriate.

33. Mr Strickland referred me to a number of authorities, particularly R v Anscombe [2021] NSWDC 540, a decision of Weinstein DCJ (as his Honour then was) and R v Mason [2022] NSWDC 351, a decision of Mahony SC DCJ. Whilst reminding me that no individual case can or should be treated as a precedent governing the result of any other case, he submitted that in each of these cases the objective seriousness of the offences appeared to be higher than in this case and the subjective cases of the offenders at best were as strong but perhaps more realistically weaker than the offender’s case. Yet, the sentences imposed were of the order being discussed in submissions. I have reviewed those cases and accept Mr Strickland’s analysis.

34. Whilst neither of the parties took me to them nor made any submissions to this effect, I have also reviewed the statistics maintained by the Judicial Commission of New South Wales in relation to sentences for this offence, and some of the cases behind them, and am satisfied that the term of imprisonment which I propose to impose is not outside what might be described as the ‘range’. In saying that I remind myself that no case is a precedent for any other and that statistical analysis of sentences for similar crimes can be apt to mislead. Nonetheless, the statistics are consistent with Mr Strickland’s submission.

35. Reminding myself to not lose sight of the fundamental objective seriousness of the offence as identified by the maximum penalty and endeavouring not to lose sight of the seriousness of the offence because of the strong subjective nature of the offender’s case, I am persuaded to adopt the course proposed by Mr Strickland. I do so having taking into account my view of the objective seriousness of the offence together with the matters listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 and giving particular weight to those I have expressly referred to, being not just the offender’s statements of genuine remorse and contrition, but his objective acts in seeking to rehabilitate himself including attending the residential drug and alcohol rehabilitation program conducted by Connect Global together with the matters adverted to by Mr Rababi’s report. In this regard, I agree with Mr Strickland that in these sorts of matters “actions speak louder than words”. To my mind, the offender has by his actions demonstrated that his stated contrition and remorse is genuine and that there is a real prospect of him being rehabilitated to the extent that he does not offend again and goes on to live a good and productive life as a member of the community.

36. In all the circumstances I have concluded that it is appropriate to impose a term of imprisonment with a starting point of 3 years and 2 months. The offender is entitled to a 25% reduction from that sentence to take into account the benefit to the community of his early guilty plea. Once that discount is applied the term of imprisonment to be imposed will be 2 years and 5 months (after rounding).

IS IT APPROPRIATE FOR THE OFFENDER TO SERVE HIS TERM IN THE COMMUNITY PURSUANT TO AN INTENSIVE CORRECTIONS ORDER?

Is an ICO available?

37. Section 68 of the Act provides that an Intensive Correction Order (“ICO”) is only available if the head sentence for a single offence is less than 2 years.

38. Mr Strickland has submitted that when considering whether it is open to me (as a matter of power) to consider an ICO I should take into account that the offender has already spent 78 days in full-time custody for the offence (two and a half months) and that he has spent seven months in full-time rehabilitation.

39. I have been taken to authorities (in particular, the authorities gathered in Sentence (Sixth Edition) by Stephen Odgers at [210]) in relation to the relevance of full-time rehabilitation. It is clear that such period of “quasi custody” should be taken into account when assessing whether the term imposed is less than the two year threshold prescribed by s 68. No doubt because live-in rehabilitation clinics are much more comfortable than prisons, there is a discount involved. Mr Strickland has submitted and referred to authorities which support the submission that a discount of 50% would be appropriate and that seems to me to be reasonable. In my judgment I should therefore approach the matter upon the basis that the rehabilitation period should be treated as 3.5 months full time custody.

40. Accordingly, I should approach the matter of whether an ICO is available by deducting six months (being 2.5 months plus 3.5 months) from the term. Thus, engaging the two year threshold in the way described in cases like Mandranis v R [2021] NSWCCA 97 at [69]. This means that the discretion to order that the offender’s period of custody be served in the community is open to considered.

Should I exercise my discretion in favour of an ICO?

41. Most of the discussion in submissions was as to the question of whether an ICO was appropriate or not.

42. The Crown conceded that it would not be an error for me to make such an order and that such an order would be open to me. That of course is not a concession that such an order should be made, but I think is of some significance.

43. I bear in mind that the paramount matter for me to consider under s 66 is community safety.

44. In the context of this case, it is clear to me that the prospects of the offender successfully rehabilitating are entirely connected to whether he can stay off illicit drugs.

45. It is impossible and inherently unreliable to predict what will happen in the future, especially when one is trying to predict the future conduct of an addict. However, in my judgment the question boils down to whether there are better prospects of the offender staying drug free if he is subject to a strict regime under an ICO on the one hand, or if he is subject to full-time imprisonment on the other. In other words, is an ICO or full-time detention more likely to address the chances of the offender reoffending (see s 66, Zheng v R [2023] NSWCCA 64 and Stanley v DPP [2023] HCA 3.

46. To my mind the answer to that is obvious. There is a significantly greater prospect of the offender remaining drug free if, in accordance with what he has promised to do, he:

1. Undertakes the extension program offered by the rehabilitation centre;

2. Complies with the treatment plan put forward by the psychologist;

3. Continues to stay drug and alcohol free; and

4. Unless there are good reasons not to, continues to live with his parents at their home.

47. Obviously, it would also be extremely desirable if he continues his current employment, but I will not make that a condition.

48. The offender needs to clearly understand that he is being given a chance in circumstances where it can reasonably be said that he has already had plenty of chances. I have extended leniency to the offender because, and only because of, the objective steps he has taken towards his rehabilitation. He needs to continue on the path he is presently on and understand that any deviation from that path will almost certainly bring him back into the criminal justice system in circumstances where there is little prospect of him being extended any further leniency or “chances”.

49. The same can be said about my decision to allow him to serve his gaol sentence in the community under an ICO. Again, I am doing this only because I am satisfied that in doing so the prospects of the offender reoffending and therefore posing an ongoing danger to the community will be reduced.

50. Whilst I have considered imposing a community service obligation on the offender in addition to the conditions of his ICO (and he has been assessed as suitable) I have refrained from doing so only because if things go to plan the offender will be fully occupied with his full-time job together with his ongoing psychological treatment and attending the extension program of the rehabilitation clinic together with ongoing narcotics anonymous meetings which are a condition of that extension program.

CONCLUSION

51. For those reasons, I would be minded to impose a custodial sentence of 2 years and 5 months. However, after taking into account the fact the offender has already served the equivalent of six months of such a term by the period he has spent in full-time custody and his time in the rehabilitation centre, I think that the appropriate sentence to impose is 1 year and 11 months, to be served by way of an ICO to commence on 29 June 2023 on conditions which I will now announce.

Sentence

1. Simon Esho, for the offence for which you have pleaded guilty you are convicted.

2. I sentence you to a term of imprisonment for a period of 1 year and 11 months.

3. I find that you have already served a total of six (6) months of that sentence in custody and quasi custody.

4. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 I direct that the balance of the sentence be served by way of intensive correction in the community for a period of 23 months commencing today.

5. I impose the following conditions on the intensive correction order:

1. That the offender must not commit any offence and must submit to supervision by a community corrections officer.

2. That the offender comply strictly with the treatment plan recommended by Billel Rababi in his report of 16 May 2023 (Document 2, Exhibit 1).

3. That the offender enrol in and strictly comply with the “extension program” recommended by Connect Global in the undated report which is Document 7 in Exhibit 1.

4. For the avoidance of doubt, during the period of that extension program the offender is to regularly attend a local Narcotics Anonymous (NA) program in the community and submit himself to random urine tests as required by Connect Global staff.

5. After completion of Global Connect’s extension program the offender is to continue to regularly attend meetings of Narcotics Anonymous and to provide evidence of such attendance to his community corrections officer.

6. For the period of his sentence the offender is to continue to reside with his parents unless he receives written permission to reside elsewhere from his community corrections officer.

7. For the period of his sentence the offender is to abstain from taking any illicit drugs and to submit to urine tests as and when required by any of Billel Rababi, staff at Connect Global or the offender’s Community Corrections Officer.

52. Finally, I note that the Schedule 2 “back up charge” (s 10(1)) of Possession of a Prohibited Drug (s 166) is withdrawn by the Crown.

**********

I certify that this and the previous 16 pages are the reasons for judgment of his Honour Judge Newlinds SC

………………………………………………

Michelle Brown

Associate

Dated: 9/6/23

Amendments

13 June 2023 - Amended case name.

04 July 2023 - Sentence amended

Decision last updated: 04 July 2023