R v Fadel

[2019] NSWDC 26

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Fadel [2019] NSWDC 26
Hearing dates:	08 January 2019
Date of orders:	08 January 2019
Decision date:	08 January 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months: at [27].
Catchwords:	SENTENCING – multiple offences – supply of prohibited drugs – ongoing supply – Form 1 offences – guilty plea – section 166 certificate offences – drive whilst disqualified – principles of totality – special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Hili v The Queen; Jones v The Queen [2010] HCA 45 Lam v R [2015] NSWCCA 143 Parente v R [2017] NSWCCA 284 R v Chan [2000] NSWCCA 345 R v Girard [2014] NSWCCA 170 R v MMK (2006) 164 A Crim R 481 R v Nguyen (2006) A Crim R 124 R v Qutami (2001) 127 A Crim R 369 Stratford v R [2007] NSWCCA 279
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown)   Maher Fadel (Offender)
Representation:	Mr Rafeeq (Crown)   Mr Coroneos (Counsel for the offender)
File Number(s):	2017/194671

Judgment

1. Maher Fadel was born in 1995 and appears for sentence on three counts, with a number of matters to be dealt with on a Form 1 and some matters on a s 166 certificate. First, a count of supply prohibited drugs on an ongoing basis, being 4.93 grams on three occasions between 31 March and 27 April 2017 under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of 20 years imprisonment, with no standard non-parole period. Secondly, an offence of supply a prohibited drug, being 13.8 grams of cocaine under s 25 Drug Misuse and Trafficking Act 1985 which carries a maximum of 15 years imprisonment, with no standard non-parole period. Thirdly, another supply count involving 20 grams of cocaine under s 25 Drug Misuse and Trafficking Act 1985. The matters to be dealt on the Form 1 attached to the first matter are:

1. sequence 9, supplying five bags of cocaine;

2. sequence 12, supplying eight bags of cocaine;

3. sequence 13, supplying an "8-ball" ofr 3.5 gramsof cocaine; all being s 25 matters

4. sequence 16, possess Boldenone, a prescribed substance which carries a maximum penalty of six months imprisonment; and

5. sequence 20, a money laundering count involving $3,054 which has a maximum penalty of three years imprisonment.

2. His custodial history is a little convoluted. Within the last few months he has been sentenced to a term of imprisonment which he is currently serving as a result of orders made at the Central Local Court on 21 November. There is effectively a 12 month sentence with a nine month non-parole period expiring on 21 July 2019. It is common ground that in exercising a discretion the range available for the commencement of the term of imprisonment is between 24 August 2018 and 24 May 2019. It being conceded a term of imprisonment is required, there is no need for me to consider any alternative under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In exercising my discretion, bearing in mind questions of totality and accumulation, the sentence should commence on 24 November 2018.

3. The sentencing must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

4. The facts demonstrate that he came under notice because of a Strike Force investigation into the supply of cocaine in the Surry Hills region. His phone number was revealed to be that of a run phone used to distribute cocaine. He was ultimately accurately described by his counsel, Mr Coroneos, as a low level street vendor. He had incidentally been disqualified from driving for four years until 12 July 2020, on 12 July 2016. I am told that his current period of disqualification following conviction on other matters expires in 2027. In those circumstances it is appropriate for me to quash an habitual offender’s declaration in relation to these matters.

5. The ongoing supply count is based on three incidents. On Friday 31 March 2017 he supplied 1.33 grams of 57% pure cocaine to an undercover officer (UCO); on 6 April 2017 he supplied of 0.8 grams to a UCO, for $600 with a purity of 66%; and on 27 April 2017 he supplied of 22.7 grams of cocaine to the UCO for $1,250 with a lower purity of 45%.

6. The second principal count of supply involving the sale of 13.8 grams of cocaine for $3,800 occurred on 2 May 2017.

7. The two driving while disqualified offences on the s 166 certificate occurred on 19 April 2017 and 27 April 2017.

8. The first Form 1 offence is sequence 9 involving the supply of five bags of cocaine between 6 and 28 May 2017 for a total of $1,100 to an unknown male.

9. The next Form 1 offence is sequence 12 and involves supply of eight bags of cocaine between 9 and 28 June 2017 to an unknown male for an unspecified amount, although there were suggestions that there were instalments of $150 being paid.

10. The next Form 1 offence is sequence 13 involving supply of an "8-ball" or 3.5 grams of cocaine on 20 June 2017 supplied to an unknown male for $1,200.

11. The third principal count is sequence 19 of possessing 20 grams of cocaine for the purposes of supply. The bag of cocaine was located in a white bag at his residence at Bexley.

12. The next Form 1 offence is sequence 16 of possessing Boldenone which is a liquid testosterone, also found in his residence.

13. He was arrested on 29 June 2017. He then identified a bag containing $3,054 and is the basis of the final Form 1 offence, sequence 20. The cash was seized and will be the subject of consent orders of forfeiture. In his interview he said that he had been addicted to cocaine a long time ago, and that he used it recreationally. He is also addicted to Boldenone. He was not working. He engaged in the dealing because he needed the money. He used the testosterone twice a week. Most of the time the cocaine that he supplied would be Panadol mixed with cocaine.

14. When he went into custody on 29 June 2017, it was his first time in custody. He spent two months there before being released on bail. He was then taken back into custody for a breach of a curfew, apparently going to the casino on 21 October 2018. His record before 2017 contains a number of less serious offences which have not resulted in custodial penalties, but some have involved orders in the Children’s Court as a juvenile. His driving record is one that does not assist him for such a young man, and that has been recognised by the gaol sentences that have been imposed already by other courts.

15. The subjective material for the offender is based on medical reports, references and a psychological report. It is treated with the caution recommended by cases just as R v Qutami (2001) 127 A Crim R 369 given that the history is not adopted nor subject to testing. I bear in mind what Hoeben CJ at CL said in Lam v R [2015] NSWCCA 143, as referred to by the Crown in that regard. However the history is not based purely on the self-reporting from the offender. There is affidavit and other material from family members and there are medical reports which are consistent with the history summarised in the psychologist’s report, so it appears to me to be a reasonable basis to proceed to sentence even though not tested and bearing in mind the cautions to which I have referred.

16. He is the eleventh of 14 children. His family came to Australia from Lebanon to escape the impact of the war in that country. His parents would work long hours and finances were a struggle. His parents are both in poor health. He has an elder brother who has been in prison and another brother is currently in custody. He was not a good student and he left school halfway through year 10. Much of the time he was unemployed. He worked for a few months in various labouring jobs and his longest occupation being as a carer for his mother. He had short a Islamic marriage lasting about two months. He has a new relationship which he is hoping will prosper on his ultimate release. He had a motor accident in 2015 leaving him with a head injury and orthopaedic sequelae. He reported alcohol and drug use in his teens, using Endone as a result of his motorcycle injuries, and then cocaine and steroids as a result of his body building activities. People do not usually become involved in drug dealing without the influence of some associates and that is what he says happened here. He was engaging in supply to fund his personal drug use and his gambling habit.

17. I accept his expressions of remorse demonstrated to the psychologist and in his recognition by his pleas of guilty. I take account of the confirmation provided by his sister through the psychologist. He was diagnosed with a substance abuse disorder and adjustment disorder. Although there is no suggestion that they can have any causative effect on the offending, they are taken into account to a limited extent.

18. The psychologist recognises that he faces a number of challenges on his return to community, but there are a number of therapeutic and vocational training options which should be considered. He clearly needs some supervision and assistance on his ultimate release, including medication review and drug and alcohol counselling.

19. I take account of the affidavit of his mother who describes the family situation and her chronic health difficulties and that is supported by a number of medical records in relation to both parents, as well as medical records in relation to the injuries and health difficulties of the offender himself.

20. I have been greatly assisted by comprehensive written submissions prepared by the Crown Prosecutor and by Mr Coroneos. There is little in contest, it being recognised that although, as Mr Coroneos puts, these are towards the lower end of the amounts involved for these types of offences, they are still very serious as reflected by the maximum penalties for each offence. I must consider, when looking at objective seriousness, the offender’s role and the indicia of supply which clearly indicated that there was an organised drug distribution operation in place. There is no contest from Mr Coroneos that the objective seriousness is towards the middle of the range for each of the counts, if I may put it in that global way.

21. I bear in mind the affirmation of the sentencing process for drug supply offences in Parente v R [2017] NSWCCA 284. As to aggravating features, he was on conditional liberty, which was conceded by Mr Coroneos. In mitigation, I take account of his pleas of guilty. I find that he has reasonably good prospects of rehabilitation if he has the willingness to undertake the type of programs suggested by the psychologist Mr Machlin. He has demonstrated a degree of remorse.

22. He is entitled to a 25% discount for the utilitarian value of the pleas of guilty. I take account of the numerous and helpful citations from authorities by Mr Coroneos in relation to the principles applied in sentencing for drug supply cases and accept his submission that there was no aspect of his client’s specific conduct that would permit a finding of any other aggravating factors beyond what would ordinarily be expected in this type of offence.

23. Mr Coroneos does not put that there is exceptional hardship to any family member as a result of a sentence of imprisonment, but it is a factor that should be taken into account in the general mix of subjective factors: R v Girard [2014] NSWCCA 170; R v Nguyen (2006) A Crim R 124. I must take account of the principles of totality as summarised in cases such as R vMMK (2006) 164 A Crim R 481, Stratford v R [2007] NSWCCA 279 and R v Chan [2000] NSWCCA 345.

24. The Form 1 matters will be dealt with in the way suggested by the Chief Justice in the guideline judgment on these matters bearing in mind the rationale and purpose of proceeding that way.

25. Mr Coroneos has helpfully analysed the JIRS statistics and provided the statistics as well as extracts from the Public Defender’s website which are a further helpful general resource, although ther are to be treated with caution noted by courts in cases such as Hili v The Queen; Jones v The Queen [2010] HCA 45. I have been assisted by Mr Coroneos’ helpful analysis of those statistics.

26. There is no contest that a finding of special circumstances should be made given the fact that there will be some accumulation involved in aggregate sentence and there is a need for an extended period of supervision.

27. In those circumstances the orders I make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 4 years, to commence on 24 November 2018 and expiring on 23 November 2022.

3. I impose a non-parole period of 2 years, 3 months, expiring on 23 February 2021. The offender is eligible for release to parole on that date.

4. Indicative sentences:

1. Sequence 4, taking into account the Form 1 offences – 3 years, 6 months;

2. Sequence 5 – 2 years;

3. Sequence 19 – 2 years.

5. Sequences 9, 12, 13, 16 & 20 are taken into account on a Form 1.

Related and back-up offences

6. Sequences 1, 2, 3, 8, 10, 11, 15, 17, 18 are withdrawn and dismissed.

H64541422/6 Drive motor vehicle during disqualification period

7. I impose a fixed term of 3 months imprisonment to commence on 24 November 2018 and expiring 23 February 2019.

H64541422/7 Drive motor vehicle during disqualification period

8. I impose a fixed term of 3 months imprisonment to commence on 24 November 2018 and expiring 23 February 2019.

9. I quash the habitual offenders declaration in relation to the drive whilst disqualified offences.

Confiscation and destruction orders

10. I make a confiscation order pursuant to the Short Minutes of Consent Orders dated 8 January 2019, in relation to a sum of $3054.50

11. I make a drug destruction order.

Note – These ex-tempore remarks were revised without access to the court file

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Amendments

13 March 2019 - Anonymised unique personal identifier at [1], [17].

Decision last updated: 13 March 2019