R v Evrim

[2021] NSWDC 363

District Court

New South Wales

Medium Neutral Citation:

R v Evrim [2021] NSWDC 363

Hearing dates:

8 July 2021

Date of orders:

8 July 2021

Decision date:

08 July 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

An aggregate sentence of imprisonment of 15 months. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order.

Catchwords:

SENTENCING — Mitigating factors — No record of previous conviction — Plea of guilty — Rehabilitation — Remorse

SENTENCING — Penalties — Intensive correction orders

SENTENCING — Relevant factors on sentence — Co-offenders

SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Maximum penalty — Multiple offences

SENTENCING — Subjective considerations on sentence — Drug addiction

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

R v Pullen [2018] NSWCCA 264

Category:

Sentence

Parties:

Regina (Crown)

Khan Evrim (Offender)

Representation:

Ms I Kimber (Solicitor for the Office of the Director of Public Prosecutions)

Ms C Soto (Counsel for the Offender)

File Number(s):

2020/153712

Judgment

1. Khan Evrim, aged 33, appears for sentence for two offences in circumstances that justify a 25% discount on a term of imprisonment:

1. Sequence 1 of supply a commercial quantity of a prohibited drug, namely 1529 mls of GBL, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years.

2. Sequence 6 of supply indictable quantity of a prohibited drug, namely 37 grams of methamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment, with no standard non-parole period.

2. There are six charges to be dealt with on a Form 1 which are attached to the sequence 1, namely

1. Sequence 3, supply indictable quantity of a prohibited drug namely 22g of cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 15 years imprisonment.

2. Sequence 4, supply indictable quantity of a prohibited drug namely, 34g of ketamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 15 years imprisonment.

3. Sequence 5, supply indictable quantity of a prohibited drug namely 3g of MDMA contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 15 years imprisonment.

4. Sequence 7, supply small quantity of a prohibited drug, namely 54g of cannabis leaf contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 10 years imprisonment.

5. Sequence 17, supply a small quantity of a prohibited drug, namely 13.15g of Alprazolam contrary to 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 15 years imprisonment.

6. Sequence 21, supply a small quantity of a prohibited drug, namely 1.47g of amphetamine contrary to 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 15 years imprisonment.

3. These matters on the Form 1 will be dealt with in the way suggested by the Chief Justice in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

4. After his arrest he was in custody for 78 days before being granted bail.

5. The agreed facts show that police were conducting surveillance of a unit at Croydon. On 22 May, a male entered the address and left a few minutes later where he was stopped and searched and found to have cannabis secreted in his underwear. He said that he had purchased it from someone at the unit for $110.

6. Police then executed a search warrant and found the offender and Jack Dowling, a co-offender who is to be sentenced on 30 July 2021, present in that apartment. They were both living there. Evrim’s parents, the owners of the property, were staying in the bedroom usually occupied by Evrim while Evrim slept in the living room.

7. Police seized various drugs found throughout the unit, scales and packaging ledgers. Pleas were entered on the basis that both Dowling and Evrim were in joint possession of a number of items found in the living room and the kitchen. That is all the quantity of the drugs the subject of the charges to which I have referred and $7000 in cash.

8. Dowling was taken to the Police Station and declined to participate in an interview. Evrim made a number of admissions during his interview with Police. He said that he had lived at the place for six years and that he and Dowling had been there for the last two months. He said the drugs in the premises were primarily for personal use, although he would occasionally sell some, specifically the cannabis and some MDMA. He said Dowling was responsible for the other supplies and he said that some of the drugs seized by police were to be shared among the people in the house.

9. In relation to the MDMA, he said that he had been “downing stuff for long enough I guess resources tend to just get bigger amounts for myself because I can”. In reference to the cannabis he told Police there was a couple of ounces and he smoked weed all the time. In reference to the Methamphetamine found in the house, he told the police that they would smoke it on a daily basis and that it was agreed that the money found in the premises was withdrawn from his superannuation accounts and also from Centrelink payments, which although an unlikely version, seems to be accepted by the Crown.

10. With the exclusion of the cannabis and the MDMA, the pleas to the offences of supply prohibited drug are on the basis that Dowling arranged for the purchase of the GBL for the purpose of supplying it and was responsible for selling it to customers and Evrim was aware of its existence and was facilitating that supply by allowing the drugs to be kept on the premises.

11. Evrim has no criminal record. His subjective case is set out in a lengthy bundle of documents as well as a Sentence Assessment Report in which he is assessed as being a low risk of reoffending. He justified his offending behaviour noting that he was using illicit substances because he had broken up with his partner and was unable to deal with his emotions. He demonstrated insight into his offence according to the author of the Sentence Assessment Report.

12. His story since his arrest appears, in short as Ms Soto puts in a very helpful summary as well as in her written submissions, as one of remarkable dedication to rehabilitation. He is supported in court today by his parents and by an officer of the Salvation Army. The offender has been living away from his parents due to the fact that they were charged with some offences as a result of them allegedly allowing their premises to be used as drug premises, but he has been in good care of the Salvation Army and intends to resume living with his parents once matters are finalised in court.

13. Firstly Captain Craig Harlem from the Salvation Army notes that he successfully met all appointment times in the Positive Lifestyle Program, took the program seriously and worked diligently through the material. He says it was an honour working with him and seeing him make significant progress. His parents have been aided by the Family Recovery Program at Holyoake.

14. The Psychologist, Mr Richard McBride has seen him on a number of occasions having been referred for treatment by his GP, Dr Phu. He says he is an intelligent man, he has been very motivated to demonstrate his capacity to maintain a healthy lifestyle and he has undergone numerous programs to show his commitment.

15. Daniel Salsbury from the Salvation Army also points out that he has been volunteering and providing extensive assistance to the Salvation Army. He has also been a valued employee of Flower Power Garden Care since December 2020. His employer describes him as a reliable and a dedicated employee. A very lengthy reference from Patish Kabaz, his Case Manager from the Salvation Army who also speaks highly of his dedicated attempts at rehabilitation.

16. Phillip Hilder, Psychologist, has also been seeing him on referral from the GP and has been consistent in his attendance at sessions. As of last month they have had 15 counselling sessions. He diagnosed his substance abuse condition, that he points out that he has adhered to his bail conditions without the slightest deviation, and they have involved daily reporting, residing at the bail address under a curfew, not contacting his co-accused, successfully completing pathways, alcohol and other drug rehabilitation programs, not consuming drugs or alcohol and only possessing one mobile phone. In short, he says that since his arrest he has been active in turning his life around and he expresses deep regret for his actions.

17. There are other character references and there is a letter from the offender expressing his sincere regret for his thoughtless actions and his gratitude for the considerable support that he has received from multiple agencies and not surprisingly the few months that he spent in prison has shown him the deleterious impact that substances have on the community and he is ashamed to have been involved in something so detrimental to society. He says he accepts full responsibility for his actions and that is why he is resolved to rebuilding his life.

18. The numerous pathology reports confirm his abstinence since his arrest.

19. As the Crown points out, in helpful written submissions, the sentencing process must take account of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, the importance of general deterrence and community protection and the legislative guideposts indicated by the maximum penalties and where applicable the standard non-parole period.

20. The role of the offender must be considered when looking at objective seriousness The commercial quantity threshold for GBL was 1000mls, in this cases that quantity threshold was exceeded by 529mls, and this offender arranged to purchase it and had knowledge of it and permitted Dowling to keep that drug in his premises for the purpose of supplying it.

21. The methylamphetamine which relating to sequence 2 was found in common areas of the residence. I accept the Crown submission that the role of the offender in this criminal enterprise places his offending as being well below mid-range but not at the lowest end of the range.

22. The Form 1 offences which are taken into account, demonstrate an extensive and diverse drug supply operation. The Crown does not rely on any of the statutory aggravating factors and accepts that his offending is mitigated by the plea of guilty, his absence of a criminal record, his prior good character, his expressions of remorse and his good prospects of rehabilitation.

23. It is accepted by Ms Soto that a term of imprisonment is appropriate but in her submission, which is accepted by the Crown, is that the term of imprisonment should be served by way of an Intensive Corrections Order. To come to that conclusion one must firstly, having determined a term of imprisonment is appropriate, indicate the length of the terms of imprisonment. Here, in my view, having regard to the purposes of sentencing, the objective seriousness of the matters, taking into account the subjective case and after applying a discount of 25% for his plea of guilty I would impose the following indicative sentences:

1. Sequence 1, taking into account the Form 1 matters (Sequences 3, 4, 5, 7, 17, 21): 13 months imprisonment, with a non-parole period of eight months.

2. Sequence 6: Six months imprisonment.

24. I would impose an aggregate sentence of 15 months. In view of considerations of community safety and the considerations such as those set out by Harrison J in R v Pullen [2018] NSWCCA 264, it is appropriate to adopt the common position of ordering that the term be served by way of an Intensive Corrections Order.

25. The orders that I will make are:

1. The offender is convicted of each offence.

2. Taking into account a discount of 25% for the plea(s) of guilty, the indicative sentences are:

1. Sequence 1 taking into account the Form 1 matters (Sequences 3, 4, 5, 7, 17, 21): 13 months, with an indicative non-parole period of 8 months

2. Sequence 6: 6 months

3. I impose an aggregate sentence of imprisonment of 15 months.

4. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.

5. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

1. You must not commit any offence.

2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.

ADDITIONAL CONDITIONS

3. Undertake 200 hours of community service work.

4. Continue mental health treatment and drug rehabilitation as directed by Community Corrections.

5. Abstain from the consumption of illicit drugs.

6. The offender is to report, via telephone, to the OIC at the Burwood office of CCS by 5pm Thursday 15 July 2021.

Sequences 22 – 32: Possess prohibited drug

6. Sequences 22 to 32 are withdrawn and dismissed.

Note – These extempore remarks were revised without access to the court file

**********

Decision last updated: 29 July 2021