R v Faaoloii

[2022] NSWDC 637

District Court

New South Wales

Medium Neutral Citation:

R v Faaoloii [2022] NSWDC 637

Hearing dates:

Thursday 15 September 2022

Date of orders:

Friday 16 September 2022

Decision date:

16 September 2022

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. Convicted on each substantive sentence.

2. Sequence 1: No further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

3. Sequences 3 and 5: An aggregate sentence pursuant to s 53A comprising a non-parole period of 1 year and 10 with parole thereafter of 1 year and 2 months giving rise to an overall term of 3 years.

4. Form 1 offence taken into account.
 

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Indictable quantity — Ongoing Supply — Deal with proceeds of crime — Maximum penalty 20 years — Cocaine — Three substantive offences — Late plea of guilty — One co-offender — Offences discovered as a result of police strike force into supply of cocaine in Sydney metro area — Offender and co-offender ran a dial-a-dealer drug supply network by taking orders for drugs and giving out information to customers using a mobile phone — Offender has prior criminal record but with mostly driving offences — Offender was a drug user and had difficult childhood — Offender has demonstrated remorse at the impact of his offending.
 

Legislation Cited:

Crimes Act 1900 (NSW): s 193B(2).
Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 10A, 53A.
Drug Misuse and Trafficking Act1985 (NSW): s 25(1), 25A(1).
 

Category:

Sentence

Parties:

Regina (The Crown)
John Faaoloii (The Offender)

Representation:

Solicitors:
Mr. N. Borosh (The Crown)
Ms. H. Yousif & Mr. A. Dibb (The Offender)
Counsel:
Mr. R. Keller (The Offender)

File Number(s):

2020/00345160

Judgment

1. HER HONOUR: The offender is before the Court for sentence on three substantive offences as follows:
    

2. Sequences 3 and 5 are both charges of the ongoing supply of the drug cocaine, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and each carries a maximum penalty of 20 years imprisonment.
    

3. He also is for sentence on sequence 1, a charge of supplying an indictable quantity of the drug cocaine, an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment.
    

4. He asks that when sentencing him for sequence 5 I take into account one additional offence, to be found in a schedule to a Form 1 document signed by him and on behalf of the DPP, and exhibited in these proceedings. It is an offence, sequence 4, of dealing with the proceeds of crime in the sum of $950 in cash knowing that it was the proceeds of crime. That is an offence contrary to s 193B(2) of the Crimes Act 1900 (NSW).
    

5. The offender pleaded guilty to these offences late. He had been committed for trial on these matters from the Local Court. The matter was listed for trial to commence on 22 August 2022. Before the trial date, and in fact more than 14 days before the trial date, he indicated that he would plead guilty to the charges. This was in circumstances where a statement from his co-offender in this matter was served. He is not entitled to a full 25% discount for the utilitarian value of the plea, because of its timing, however I accept that the provisions of the Early Appropriate Guilty Plea scheme allows the Court to apply a 10% discount for the utilitarian value of these pleas.
    

6. There is in fact a utilitarian value for these pleas, albeit that they were entered late. There has been no need to conduct a trial in this matter. As will become clear from the facts, there were a number of drug supply transactions engaged in by the offender giving rise to the two ongoing supply charges, but there would have been need for evidence to be called from various witnesses in relation to telephone intercepts and the like and possibly surveillance, but certainly telephone intercepts. It would have been necessary for his co-offender, referred to as Witness A, to come to Court to give evidence in circumstances where there would necessarily have been an attempt to protect her identity. All of that would have been time consuming and costly to the State. That has been avoided and gives rise to a statutorily limited discount of 10%. In fact, the utilitarian value is probably worthy of a greater discount than that, but the Court is constrained to a discount of no more than 10%.
    

The Facts

7. The relevant facts are that the offender committed these offences together with the co-offender known as Witness A. I sentenced Witness A for her involvement in this drug supply operation on 28 July 2022. A copy of that sentence judgment is tendered in these proceedings. The offender and his co-offender were de facto partners at the time and had been together for about 14 years. Their relationship involved them having the care of nine children between them, aged between 13 and 23. None of these children was their own child. The co-offender, as I recall it, brought one child to the relationship and the other children were all those of the offender before me.
    

8. They came to notice as a result of the strike force which was established to investigate the supply of cocaine via what is called a ‘dial-a dealer’ type supply operation in the Sydney metropolitan area. They were identified as using a run phone via a mobile phone number to both advertise the availability of cocaine, take orders and supply cocaine to their customer base.
    

9. The offender, together with the co-offender, used covert language to arrange, facilitate and deliver bags of cocaine to customers. They referred to cocaine often in their intercepted telephone calls as coffee or beer. That was code, albeit not particularly sophisticated. Often, they would send group messages to their customers advising coffee was available. The usual price for the supply of one bag of cocaine was $300, but sometimes there were discounts when multiple bags were purchased. They normally used a vehicle registered to the co-offender to make drop-offs to customers.
    

10. Between 2 October and 4 December 2020, the offender’s mobile phone was lawfully intercepted and there was also basic surveillance, including CCTV and other covert methods used to monitor the offender and his co-offender. The relevant facts for the first offence span the period between 6 October 2020 and 4 November 2020. During that period the offender was involved in supplying cocaine on a minimum of 12 separate occasions. The details of those are set out in the agreed facts on pages 2 and 3.
     

11. I will not read those facts onto the record, but it involved his making phone calls to customers to arrange supplies, meeting customers for the purpose of supply and supplying, answering queries about the availability of cocaine, letting customers know that cocaine was available, taking and filling orders for cocaine and actually being present to physically supply the ordered cocaine to customers throughout the various parts of Sydney. Most of these occurred in company with the co-offender Witness A.
     

12. I accept, in summary, that between 6 October and 4 November 2020 he was involved in a minimum of 12 drug supply transactions in this way in a total amount of 14.4 grams. Most of them were relatively small individual quantities, such as .6 grams. The gravamen of ongoing drug supply offending, however, is not necessarily the overall quantity involved, but the fact that quantities were supplied frequently.
     

13. The second ongoing supply occurred between 5 November 2020 and 4 December 2020. It was conducted in a similar manner and there are, in fact, four separate dates during that period in which the offender supplied cocaine on 12 occasions in a total quantity of 18.6 grams. Again, the details of those individual supplies are set out in paragraphs 28 to 43 inclusive of the agreed facts and I do not propose to read them onto the record. The supplies were conducted in exactly the same way as occurred for the first of the offences before me for sentence, again using the offender’s phone, known as the “run phone”, being the subject of lawful interception and the actual supplies being monitored by way of surveillance and similar.
     

14. In total these two ongoing drug supply charges involved the offender’s supplying on 24 individual occasions in a total amount of 33 grams.
     

15. On 4 December 2020 police were monitoring the run phone and conducting surveillance in Shaw Street, Petersham. At about 10.20pm they saw the car registered to the co-offender driving along and then stopping at an intersection. They saw an unknown male walk away from the car. They approached and the car pulled over. The co-offender was driving and the offender before me was in the passenger seat holding a mobile phone which contained the sim card which had been monitored by police and was effectively the run phone for this dial a dealer operation. The offender was cautioned. The police asked who the person was who had just left. He said that he was a mate who had given him money that he was owed, which he said was $900. He opened the glove box and showed police cash, all $50 notes in a total of $950.
     

16. Police cautioned the co-offender and asked if there were any drugs in the vehicle. She told them to look under the front passenger seat which they did. There they located a black metal box stuck underneath the seat held in place by a magnet and inside that box were four small resealable bags containing a total of 1.35 grams of cocaine. This supply by way of possession is the subject matter of the third offence, sequence 1, and his possession of that money is the subject matter of the Form 1 offence. Clearly by asking it to be taken into account he no longer asserts that this was money given to him by someone who owed him a debt but rather admits that this money was the proceeds of crime and in the circumstances clearly nothing other than the proceeds of drug sales.
     

17. The co-offender, at the car, admitted to the police jointly supplying the male who had left the car with drugs. The offender and the co-offender were arrested and taken to the police station. Neither participated in a record of interview. Police then searched their home and there found a number of multiple small resealable plastic bags. The analysis of the run phone indicated drug transactions occurring from 10 September 2020 to various customers. Police also undertook an investigation of their bank accounts which revealed cash deposits, pay ID cash transfers and direct deposits from customers being made into those accounts.
     

18. Witness A later made a statement to police admitting her involvement in this ongoing dial a dealer drug supply and also the involvement of the offender before me.
     

19. As I have said, the offender initially pleaded not guilty and was committed for trial. The co-offender then went on to offer assistance to the authorities, including giving an undertaking to give evidence for the Crown in the trial proceedings of the co-offender. Her statement in relation to that was served in August 2022 just after she had been sentenced by me and, as I understand the submissions and there is no dispute about this, that would appear to have been the major motivating factor leading to the offender’s plea of guilty, ultimately entered on 22 August 2022.
     

20. The offender thus was involved in supplying drugs on an ongoing basis over a period of two months. The objective criminality for each of these offences is informed by a number of factors:
     

1. There were a not insignificant number of individual drug supplies relevant for each offence. The minimum for this offence is three and in each of these it was 12.
    

2. Despite that, nonetheless the quantity involved for each of these offences is relatively low, involving as it does the individual supply of relatively small quantities of cocaine.
    

3. It was committed in company.
    

4. There was clearly significant planning and organisation including the use of an order phone and payment through pay ID systems and otherwise. There were obviously a large number of customers, and it involved the offender together with the co-offender being able to advertise the product via the customer base. As I found in relation to the co-offender, this obviously amounts to some significant planning and organisation. However, it was not in my view particularly sophisticated. The codes used were not sophisticated. The vehicle that they used to conduct the supplies was registered to the co-offender herself. The bank accounts that were used to take the deposits of money were in fact either in the names of or easily able to be connected to the offender or the co-offender.
    

5. The offences I accept, for reasons that I will outline soon, were committed for financial gain at least in part.
    

21. The range of offences capable of being charged however as an ongoing drug supply is wide, ranging from a minimal supply of very small quantities during the space of 30 days up to what has often been seen by the courts namely a large number of individual supplies in much larger quantities over a period of 30 days. These offences it seems to me fall a little below the mid-range in terms of seriousness for offences capable of being charged as ongoing supply offences.
     

22. To the extent that this finding seems inconsistent with the finding in relation to the co-offender it must be noted that she was in fact being sentenced for the offence of supply simpliciter, which in her case involved 117 individual supplies in a quantity of approximately 68 grams but for an offence of course which is of less seriousness than the ongoing drug supply charges relevant here.
     

23. The objective seriousness of the third offence, the individual supply, is very much towards the bottom of the range. In the absence of anything to the contrary, I assume that it is brought before the Court by way of deemed supply and it is of a very small quantity, namely 1.35 grams. It may well be that the admissions included an admission of intending to supply. Either way it is a very small quantity and is objectively very much towards the bottom of the range of offences of drug supply.
     

24. A further factor is that the amount of money involved, at least on this occasion being $950, is not particularly large albeit connected as part of the proceeds of crime.
     

25. I accept from a statement made to the Court by the offender here, which I note is consistent with the evidence given by the co-offender before me and findings made. that the purpose for which the offender engaged in this drug supply was to obtain money to look after his day to day needs and those of his family. He and the co-offender were responsible for nine children between them, a number of grandchildren and a number of extended family members including his mother and others. Whether or not he was legally liable for them is not relevant. He had in fact assumed responsibility for these people over a considerable period of time.
     

26. He is originally a New Zealander, obviously Māori, and had a sense of obligation to his family members. Many of them, including his children and grandchildren, started to suffer financially in the period leading up to the commission of these offences and I accept that the money that he and the co-offender were able to earn from legitimate enterprise was not sufficient to care for them. Whilst it cannot be an excuse that anyone engages in drug supply for this purpose, nonetheless I accept that this is the reason that he did. As I found in relation to the co offender, there is no evidence that they were surrounded by riches or living a high life, quite the contrary.
     

27. I am not so naïve however as to ignore the fact that he was almost certainly engaged in these offences additionally so that he could access cocaine himself. I accept that by the time he committed these offences he had developed a significant cocaine habit, so bad that when he was arrested and went into custody he suffered withdrawal symptoms. No doubt it was a dual purpose to be involved in these offences so that he could get access to the drugs himself.
     

28. All drug supply offences are serious. As the offender has indicated in his letter to the Court, since being in custody, he has come face to face with those who have become addicted to drugs, have committed offences and who are in custody. Whilst he frankly has left it a bit late to understand the connection between drugs and offending and the serious nature of drug use, he has, I accept, come to understand that. Illegal drugs are a huge drain on the community generally, not only for those who become addicted to them and the impact that that has on their lives and the lives of their families, but also for the community generally in terms of costs of policing and the cost to the community when those who are addicted to drugs go on to commit other offences. It is for that reason that the penalties for the two major offences before me are significant and any sentence for ongoing drug supply should send a message of general deterrence to the community that those who would be involved in drug supply will face, almost certainly, face a term of imprisonment and most of the time that will be ordered to be served full time.
     

29. This offender was clearly significantly involved in trafficking illegal drugs at the time. There is no submission or argument on his behalf that anything other than a sentence of full-time custody is appropriate and I accept that to be the case.
     

30. He has remained in custody bail refused since his arrest on 4 December 2020 and the relevant sentences will be backdated to that date.
     

The Offenders Subjective Circumstances

31. Turning then to the subjective circumstances surrounding him I accept that he is now 44. He has written a very lengthy letter to the Court which paints a picture of a difficult childhood which included his being ill as a baby and suffering from asthma and lung conditions thereafter. As I have said he is a New Zealander. He migrated to Australia with his parents and his siblings, and they had a very difficult life initially. His father worked hard to enable the children to be educated but regrettably started to use and abuse alcohol. He was apparently a talented Rugby League player, but his lung condition prevented him from getting to the top. His father started to drink alcohol and physically beat the children. His mother used to try to protect the children, but she was also assaulted, and he witnessed domestic violence in which his mother suffered bruised lips, a chipped tooth and black eyes. He would try to protect her and then was further physically assaulted by his father.
     

32. After a car accident, his father decided to reform and gave up alcohol. He then started to involve himself in the church and his family thereafter became devoted to the church, establishing their own fellowship in 1993 within the Pentecostal church.
     

33. He met his first partner when he was very young. They had eight children together over a period of years. There was considerable dysfunctionality between the two of them, to an extent involving her mental illness of schizophrenia. The children became the pawns of their dysfunctionality, and they were removed from him from time to time. He started to drink excessively.
     

34. He then met the co-offender and they commenced their 14 year de facto relationship to which I have already referred. As I have said, he also started to use cocaine extensively and appears to have become addicted to it to the extent that after his arrest he went into withdrawal including cold sweats, loss of appetite, aches and pains, mood swings and nightmares.
     

35. He then, in the balance of his statement to the Court, sets out what he has done since going into custody. I accept that he has taken all steps that would be required of him to rehabilitate himself. He had been sentenced to a short term of imprisonment only once in the past. This is certainly the longest term of imprisonment that he has ever served. He has undertaken numerous relevant courses in custody and there are certificates before the Court to establish that.
     

31. He feels sad for having missed so many special occasions since coming into gaol including special family events. He is particularly remorseful at the impact his offending has had on his mother and I have not only read his letter in relation to that but also the letter written to the Court by his mother from which I accept that she was extremely disappointed at his being arrested for this offence but continues her support. She is available to provide accommodation to him when he is released from custody. I accept that he has taken the opportunity in custody to improve his fitness but has witnessed a number of unpleasant events in custody. There have also been lockdowns as a result of COVID for a period of about nine months and this has often included periods of time between 10 and 14 days where the prisoners were not able to have a shower or access clean clothing or have cells cleaned. To that extent, at least, his experience in custody, all of which has been on remand, has been relatively onerous.
     

32. Before he went into custody he was working, as well as making money from drug supplies. He had some other legitimate work including a small lawn mowing business and also he was managing the singing career of two of his nephews. There is evidence by way of references and letters to support that. He has, as I understand it, increased his involvement with the church in custody including running a bible study session He is an Islander delegate and has adopted a mentoring role with Islander inmates. He has also been a delegate in an Islander dispute committee to represent Islander inmates in relation to issues and he has done that by direct representation to the Governor of the prison. He is a wing head sweeper from which I infer that he is well regarded in the gaol system.
     

33. I accept that he has used the time in custody to take stock of his life and has gained considerable insight. He comes to court as a person with a criminal record but there are no relevant drug offences on his record. There is a possess prohibited drug offence committed in March 2020 dealt with by way of fine. It is not relevant to the matter before me except to the extent that it helps me to accept that he was a person using drugs himself at the time. His record otherwise, apart from the earlier entries in the Children’s Court and one assault occasioning actual bodily harm in 1999, is almost entirely for driving matters, albeit relatively serious driving matters of drive disqualified. Eventually the drive disqualified charges gave rise to a six-month term of imprisonment to which I have already referred. Otherwise, his criminal record is not extensive, certainly does not involve anything involving drug supply and for that matter does not involve offences of equal seriousness to the offences before me. Whilst it disentitles him to leniency it certainly does not operate as a circumstance of aggravation.
     

34. I accept from the letter that he wrote to court that he has a genuine desire to continue his rehabilitation. I accept that when he is released from custody he will have accommodation available to him. He continues to have family support and it is likely that he will be able to find employment. There is a letter from a potential employer tendered offering him full time employment with a distribution company which would involve his working in warehousing, stocktaking and product delivery. I accept that he will continue to provide carer support for his mother on his release. His prospects of rehabilitation in all of those circumstances it seems to me are good. They would be assisted by some ongoing supervision to ensure that he does not relapse into drug use and that he is referred for appropriate support in the event that he again has any form of financial distress.
     

35. The only issue then left for consideration is the issue of parity with the co-offender. She received a very lenient sentence being a Community Corrections Order for 2 years. As I have already said, that was for one offence only, contrary to s 25(1), of supplying 67.65 grams of cocaine as a rolled-up charge, between 5 September and 5 December 2020. The maximum penalty for that offence was 15 years. In the circumstances of her offending, a sentence of something less than imprisonment was a lenient sentence and unusual.
     

36. There was however a significant discount made available to her as set out in the sentence judgment and also took into account the fact that in the circumstances at least that were then before the Court, a term of imprisonment to be served by way of intensive corrections order was not likely to have been an appropriate outcome, albeit that the length of the term would have been available and otherwise it would have been an option to the Court.
     

37. The charge itself and in particular her subjective circumstances and the availability of a large discount are significantly different to those of the offender before me. To that extent that there is clearly no parity involved but there must of course be some relativity, paying some attention to the sentence imposed on the co-offender, but in the circumstances, parity is not an issue in this case.
     

38. For all of those reasons I have concluded, taking into account the overall purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the relevant starting point for each of the ongoing supply charges is 3 years, so 36 months. There is a discount of 10% applicable which I will round up to four months, so each of them would be 32 months.
     

39. There is the need for a very small degree of partial accumulation to take account of the fact that these are two separate offences involving the ongoing supply over two periods of 30 days in a total of 24 supplies and a total of 33 grams. It need only be a very small overlap however when taking into account total criminality.
     

40. So far as sequence 1 is concerned, the third count, it is of relatively low objective criminality. Had it been sentenced separately there is some real doubt as to whether or not the threshold would even be met for imprisonment. However, there is no other real practical solution. In those circumstances I intend to deal with that matter by way of 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty, in circumstances where he has been in custody for 1 year and 10 months and he is to be sentenced for much more serious offences. It is a matter where had he been sentenced separately for this offence almost certainly the threshold for imprisonment would not be met. It is no more met because it is the third in a group of offences and so the only appropriate outcome is 10A.
     

41. That then means that there are two indicative sentences of 32 months. I will be sentencing him to an aggregate sentence of 3 years pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. There will be a non-parole period of 1 year and 10 months which will have the effect that he is eligible for release to parole on 3 October in approximately just over two weeks’ time.
     

42. There are special circumstances here:
     

1. The need for a longer than normal period of supervision to enable ongoing rehabilitation; and
    

2. The need for release to the community as soon as possible to assist in the care of his elderly mother.
    

48. Just before I then formally announce the sentences, I am conscious that I changed a little from what I said I was going to do namely the indicative sentences are each one month less than I said I was going to indicate, having thought it through and also, I said I was going to impose a fixed term for sequence 3, but I have decided to deal with it by way of 10A instead.
     

49. Before making the formal orders I also indicate I have taken into account the Form 1 offence when sentencing for sequence 5. According to the authorities it is necessary for the Court to deal with the Form 1 offences or additional offences in a meaningful way. In this case whilst it is a serious offence to deal with the proceeds of crime it is in fact part of the overall factual matrix that he was found in possession of $950.00, the proceeds of drug supply and it is a matter that I took into account in determining the objective criminality, namely that he committed the offence for financial gain. In those circumstances it is not an offence that should elevate or increase the substantive sentence at all.
     

Formal Sentence Orders

50. For those reasons I make the following formal orders:
     

1. For each of the three substantive sentences, he is convicted.
    

2. Sequence 1: No further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. NB: In custody, bail refused, for more serious offences since 4 December 2020 taken into account.
    

3. Sequences 3 and 5: An aggregate sentence pursuant to s 53A comprising a non-parole period of 1 year and 10 months from 4 December 2020 and expiring on 3 October 2022, with parole thereafter of 1 year and 2 months from 4 October 2022 and expiring 3 December 2023, giving rise to an overall term of 3 years commencing 4 December 2020 and expiring 3 December 2023.
    

1. Indicative sentence for sequences 3 and 5: 32 months.
    

2. Form 1 offence sequence 4 taken into account when sentencing for sequence 5
    

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Decision last updated: 15 December 2022