R v Fajajo

[2024] NSWDC 88

District Court

New South Wales

Medium Neutral Citation:

R v FAJAJO [2024] NSWDC 88

Hearing dates:

12 February 2024

Decision date:

14 February 2024

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence. Indicative sentences: Supply prohibited drug, taking into account further offences on Form 1 – 2 years and 2 months; Sequence 1 drive while disqualified, taking into account further offence on Form 1: 9 months with automatic disqualification period; Sequence 3 drive while disqualified: 8 months with automatic disqualification period. Sentence is 2 years and 4 months with a non-parole period of 1 year and 5 months to date from 20 November 2022; with automatic disqualification period to apply. Release to parole arises on 19 April 2024

Catchwords:

SENTENCING – Drugs – supply indictable quantity of prohibited drugs – drive whilst disqualified – plea of guilty – offender on conditional liberty

Legislation Cited:

s.25(1) Drug Misuse and Trafficking Act 1985 (NSW)

s.54(1)(a) Road Transport Act 2013 (NSW)

Category:

Sentence

Parties:

Rex;
Abdul Fajajo

Representation:

Counsel:
Defence: Mr Roff
Solicitor:
Crown: Ms Palenzuela

File Number(s):

2022/28153

JUDGMENT

1. Abdul Fajajo appears for sentence on three separate offences; one after a plea in this court of supplying an indictable quantity of a prohibited drug contrary to s.25(1) Drug Misuse and Trafficking Act 1985 (NSW) and two on a s.166 certificate of Drive Whilst Disqualified contrary to s.54(1)(a) Road Transport Act 2013 (NSW).

2. The penalties are 15 years imprisonment and 1 year imprisonment respectively. There is an automatic disqualification period of 12 months and a minimum disqualification period that applies to the driving offences. The maximum penalty operates as a legislative guidepost and represents the legislature’s assessment of the seriousness of the offence.

3. I have taken into account the timing of the pleas. The plea for the indictable offence was entered in this court on a date after the listed trial date. The offence was committed for trial on 24 May 2023 and the trial was listed for 15 January 2024. There was additional evidence disclosed in the interim. The plea was entered on 17 January 2024, being a negotiated plea with a plea to the supply accepted in full satisfaction of the indictment with the proceeds of crime offence not requiring a plea and being placed on a form 1. A plea in these circumstances is governed by legislation and warrants a reduction of 5% based solely on the timing. Counsel for the offender invited a reduction of 25% including by reliance on the facts differing by the time of the plea. The charge did not change. I do not accede to this submission. I consider the legislation to be mandatory. I will reduce the sentence by 5%.

4. The pleas to the two summary offences warrant a reduction of 20%. They were listed for a hearing in the Local Court in May 2024. The change of plea arose as part of the plea negotiations in this Court.

5. By these pleas the offender has, to differing extents, facilitated the course of justice.

6. The offender has signed two Form 1 documents. When sentencing for the drug offence the offender asks that the further offences of dealing with proceeds of crime and four offences of possess a prohibited drug be taken into account. If separately prosecuted the maximum penalty would be 3 years and 2 years imprisonment respectively. When sentencing for one of the Drive Whilst Disqualified offences, being sequence 1, the offender asks that a further offence under the same provision be taken into account. I consider it appropriate that I take these further matters into account and I do so in accordance with the principles set out in the guideline judgment. There will be a modest adjustment to each sentence to reflect the additional criminality.

7. There are facts contained in the Crown tender bundle. The offender was a disqualified driver. His disqualification period extended until 2045. He drove on three occasions, being 2, 14 and 20 September 2022. Each of these occasions involved an attendance at a house connected with the location of drugs. The offender’s phone was intercepted from 19 July 2022. On four separate occasions in July and August 2022 the offender was captured discussing different drugs including receiving requests from others for drugs. It is not suggested he actually supplied the drugs discussed. The accepted use is to indicate the drug offence for sentence did not occur in a vacuum. Police commenced physical surveillance. He was observed to attend an address in Padstow. On 20 September 2022 the offender was stopped and found in possession of 5 resealable bags containing 0.48g of methamphetamine [seq 5] and 0.07g of heroin [part of seq 6]. He also was in possession of two mobile phones and $2240. He was arrested. Keys to premises and a car were located in his possession. As a drug supply prohibition order was in place police searched the premises he had an association with. Within a backpack, secured by a padlock, police located 1.04 g of heroin [part of seq 6], 37.02 g of methylamphetamine [offence for sentence], 1.9g of cannabis [seq 13] and 0.44g of buprenorphine [seq 14]. The total heroin located from the two seizures was 1.11g. $16, 695 was located. Within the car accessed by the offender’s key police located $2470. The money located added up to $21, 405 [the offence on the form 1]. The offender was linked to some of the drugs through DNA. S.29 DMT is an evidentiary provision facilitating proof; otherwise I am informed by the extended definition of ‘supply’.

8. When police searched the address, Youssef Adra, was present. Within the backpack police located medication in his name. He was charged although it is not suggested he has any charged shared offending with this offender. Counsel for the offender invited a finding that the offender was in joint possession of the items in the backpack with Mr Adra and/or others. The offender has not advanced this version in any tendered material. There is no evidence that the backpack was in his joint possession, and he was not in fact charged. The only connection is his medication being within the bag. I do not consider there to be an evidentiary basis to accede to the suggested finding that the drugs or money were jointly possessed. This would be speculation. I accept there is unknown DNA located. That does not denote joint possession only the involvement of others. I readily accept that this offender provided a role of supplier, consistent with an acceptance that he was in possession for the purpose of supply. If there was to be a finding of joint possession then that would reflect a more sophisticated drug operation involving others in the enterprise, with there being some cooperation or organisation to control the possession and the intended supply. This finding would not ameliorate sentence or be considered a favourable finding.

9. The only criminal conduct that the offender is suggested to be involved in was drug supply. The offender was evidently a supplier of drugs to be in possession of the quantum of money located. The money is therefore from supplies of unknown drugs on unknown occasions. It is not an insignificant amount. I am cognisant that the offence on the form 1 is the less serious of these provisions and only asserts the ‘reasonable grounds to suspect’ element.

10. The drugs supporting the offence for sentence were in the offender’s possession for the purpose of supply. The amount is higher than an ounce and not insignificant although I accept the offence provision allows for considerably higher weight. Weight is only one factor. I have considered the type of drug. There is nothing known of the purity or value. The evidence for sentence advances the offender’s own drug use. He may well have been involved to support his own drug use and the money located may not have been his profit but he was undoubtedly engaged for some profit. All that is known of his role is that he was in possession of the drugs for supply and that he had two mobile phones. There is nothing known about whether the drugs would be supplied in any particular weight or to any particular number of persons.

11. There was limited evidence of sophistication or planning. The charge relies only on the drugs possessed and no actual supplies. Therefore, none of the drug was disseminated. Although serious, the offence is a relatively lower-level example within the offence category.

12. The driving offences involve recidivist examples of persistent driving, related to attending the drug premises, whilst disqualified. I accept that it was only the fact of driving that attracted attention. It is nonetheless serious.

13. There are also factors that apply and inform moral culpability such as disadvantage and mental health. This disadvantage includes his exposure to witnessing violence and being the victim of personal and sexual violence. The tendered material details these incidents and I choose not to recite them in these reasons. There was exposure as a younger teenager to grief from the death of his mother and being deserted by his father. Although I note the difficulty raised by the gaol psychiatrist in accepting the offender’s complaints, other than those impacted factors I am assisted by a summary of the cogent factors in the defence submissions at 4[b]. It is well established that the disadvantaged background of an offender may mitigate the sentence that would otherwise be appropriate. He commenced drug use and addiction soon after these childhood events and his criminal activity also commenced. I accept that there has been relevant disadvantage and I accept his disadvantage informs his drug use and his drug use in turn informs much of his offending. His continued drug use informs the index offending. This acceptance serves to moderately lessen moral culpability.

14. Dr Furst, forensic psychiatrist, provided a report in 2020 and this report was before the court when the offender was sentenced for other drug and drug related offending. That offending was far more serious in charge category and role. Some of the material tendered on behalf of the offender was the material before Judge Whitford SC who sentenced for the more serious conduct.

15. The offender is now aged 38.

16. The offender has not expressed remorse. Although I acknowledge the pleas of guilty, this alone does not reflect remorse. I do not accept there to be genuine remorse for his offending.

17. The offender has a number of entries on his criminal history. His offending commenced in 2004 when he was 18. His offending includes offences of the same category as those before the court. He has received various sentencing outcomes including community monitored orders and full-time imprisonment. There are numerous periods of disqualification from driving with the offender declared a habitual offender. He is currently disqualified until 2045. The offender’s antecedents operate to disentitle him to leniency. As calculated by counsel for the offender, the offender has spent over 7 years of his adult life incarcerated. There is a real risk of institutionalisation.

18. The offences were all committed whilst the offender was on bail for drug offending and on parole for drug and other offending. This entails a breach of trust and breach of forms of conditional liberty and serves as a circumstance of aggravation. I observe there are other earlier examples of the offender breaching conditional liberty.

19. Previous sentences have noted the need for drug rehabilitation or counselling. The offender was receiving psychological treatment as part of parole granted in 2022. According to Dr Furst, who diagnosed a substance use disorder, the offender had never received counselling or treatment for drugs prior to sentence. Dr Furst also opined diagnoses for anxiety and stress disorders. To the extent of any difference of opinion I defer to Dr Furst over the psychologist’s report.

20. The offender relied upon material contained in the psychiatric report and psychological reports. Given the link between drugs and his offending it is unlikely he will make truly positive steps towards rehabilitation and lower his risk of reoffending until such time as he is drug abstinent. There is limited evidence to inform his drug status in custody. Even if he were abstinent, of which I am uncertain, that status would need to be tested upon release to the general community. It is accepted there is a risk of re-establishing his connection to his peers in the drug milieu.

21. His character references from 2020 must be assessed against the subsequent events.

22. It was submitted on his behalf in 2020 that he was at the cross-roads. Given his continued use of drugs upon release to parole as noted in the two reports this submission was optimistic. Not only did he relapse to drug use, he committed other offences additional to the index offending.

23. A submission was advanced on the offender’s behalf that his increasing age would reduce his risk of reoffending and improve his prospects of rehabilitation. This submission falls to be evaluated against his lengthy record and focussing on the more recent history. The offender was released to parole for the commercial drug supply offence on 7 August 2021. He re-entered custody upon his arrest for the index offending on 20 September 2022. In the interim he breached his parole although no action was taken on the first two breach reports. The offender was charged with possessing a prohibited drug and admitted that he was using illicit drugs in November 2021. He committed further offences including drug offences in January 2022. He was in possession of over $33,000. In both breach reports his response to supervision received a favourable comment. It was only when the index offending was reported that parole was revoked. In this report, his disengagement from psychological intervention was noted. His continued offending resulted in an observation he was a risk to the community.

24. Judge Whitford SC found on the evidence before him that the offender was at the cross-roads. Subsequent reoffending reflected this to have been an optimistic finding. I do accept after more than two decades of drug use and drug and gang affiliations removing himself from that environment would be extremely challenging. The offender was not able to achieve it upon his last release. I consider he requires far more intense and lengthier counselling and drug focussed programs if he is to succeed.

25. I consider his prospects of not reoffending and of rehabilitation to be poor. I am assisted by Dr Furst’s assessment in 2020, although the more recent offending would likely more adversely impact that opinion to some extent. It is hoped this longer period in custody has served as a salutary lessen and that abstinence, given its role as a criminogenic factor, may be achieved or maintained on this occasion upon his release. Personal deterrence continues to serve an important role.

26. General deterrence and retribution are still important factors despite the factors lessening moral culpability.

27. I also take into account the onerous conditions in custody. The offender has been exposed to acts of violence whilst in custody which are likely reprisals or responsive to action he took in 2010 to 2012. I am assisted by Ex B. The more difficult conditions warrant amelioration to sentence. I do not accept that other medical issues documented, particularly in Ex 2, warrant amelioration. I note the psychiatric opinion querying the offender’s reliability and the opinion that in some respects he is malleable with the truth to secure a benefit- such as a one out cell or rehousing in the mental health unit. I also am mindful that Judge Whitford SC similarly determined the offender to be unreliable in advancing he acted under duress.

28. I do not overlook the principal offence for sentence is inherently serious. It is not victimless. Drugs cause direct and indirect harm to the community. The offender, through his prolonged misuse of drugs, must be aware of the misery occasioned to drug users and their family and friends.

29. Given the three offences for sentence, covering two different offence provisions, I am required to consider totality. Two offences occurred on the one day. They do however address separate offending, albeit all somewhat related to involvement in drugs. Modest accumulation is required.

30. I am also required to take into account that the offender has been serving the balance of parole, backdated to his arrest. This offending was the basis of the revocation and I need to be mindful to not doubly punish. The fact of the breach is separate although also understood as a circumstance of aggravation. I consider sentence should commence 2 months after parole was revoked. Sentence will commence on 20 November 2022.

31. Having considered all the possible alternatives, I am satisfied no penalty other than imprisonment is appropriate.

32. I make a finding of special circumstances relying on the conditions in custody including conduct directed at the offender, the restrictions from his non-association classification, his mental health and the COVID restrictions, and the need for an extended period of supervision.

33. The offender is convicted of all three offences.

34. I intend to impose an aggregate sentence. Each indicative sentence is reduced as stated to reflect the pleas of guilty; 5% and 20% respectively. I nominate the following indicative sentences:

1. Supply a prohibited drug, taking into account the further offences on a form 1: 2 years and 2 months imprisonment;

2. Sequence 1, Drive Whilst Disqualified, taking into account the further offence on a form 1: 9 months imprisonment with the automatic disqualification period to apply;

3. Sequence 3, Drive Whilst Disqualified: 8 months imprisonment with the automatic disqualification period to apply.

35. The sentence imposed is one of 2 years and 4 months with a non-parole period of 1 year and 5 months to date from 20 November 2022; with the automatic disqualification period to apply. Release to parole arises on 19 April 2024.

36. This variation to the statutory ratio to 60% gives effect to my finding of special circumstances. No lesser sentence would address the offending.

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Decision last updated: 25 March 2024