R v Fallah

[2021] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:

R v Fallah [2021] NSWDC 207

Hearing dates:

1 April 2021

Decision date:

27 May 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [54].

Catchwords:

Sentence – One count of supply not less than large commercial quantity of prohibited drug; multiple counts of possess proceeds of crime

Legislation Cited:

Confiscation of Proceeds of Crimes Act 1989

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Mill v R (1988) 166 CLR 59; [1988] HCA 70

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Mohammad Fallah Mehmandoust Sofla (Offender)

Representation:

Counsel:
C Dobraszczyk (Crown)
D Petrushnko (Offender)

Solicitors:

File Number(s):

18/373538
19/153010

REMARKS ON SENTENCE

1. Following a trial which commenced in the District Court at Sydney on 19 October 2020, on 30 October 2020 the offender was found guilty of the following counts on the Indictment:

Count 1 – On the 4th day of December 2018, in Kensington in the State of New South Wales, did possess the proceeds of crime, namely, $78,300.00, in circumstances where he knew that $78,300.00 was the proceeds of crime.

This was an offence pursuant to s 193B(2) of the Crimes Act 1900. The maximum penalty proscribed is imprisonment for 15 years.

Count 2 – Between 17 December 2018 and 23 April 2019, in Sydney in the State of New South Wales, did supply a prohibited drug, namely 11.57 kilograms of gamma-butyrolactone, an amount which is not less than the large commercial quantity applicable to that prohibited drug.

This is an offence pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”). The maximum penalty proscribed is life imprisonment or 5,000 penalty units, or both. There is a Standard Non-Parole Period proscribed of 15 years imprisonment.

Count 4 – On 18 April 2019, at Parramatta in the State of New South Wales, did possess proceeds of crime, namely, $5,700.00, in circumstances where he knew that $5,700.00 was the proceeds of crime.

This is an offence pursuant to s 193B(2) of the Crimes Act 1900. The maximum penalty proscribed is imprisonment for 15 years.

Count 5 – On 15 May 2029, at Homebush in the State of New South Wales, did possess proceeds of crime, namely, $2,510.00, in circumstances where he knew that $2,510.00 was the proceeds of crime.

This is an offence pursuant to s 193B(2) of the Crimes Act 1900. The maximum penalty proscribed is imprisonment for 15 years.

The sentence hearing

2. The sentence hearing took place on 1 April 2021. The Crown Sentence Summary was tendered as Ex A. A fair summary of the facts relied on by the jury to come to their verdicts of guilty in respect of each count is as follows.

Count 1

3. At about 8.35am on 4 December 2018, the police found the accused in the driver’s seat of his Toyota Rav4, slumped over the steering wheel, asleep, at the intersection of Todman Avenue and Lenthall Street Kensington, and the car engine was on. There was no one else in the car. Police managed to wake the accused and took him to the footpath. He was slurring his words and slow to respond to their questions. He was taken to the Prince of Wales Hospital. During the search of the accused’s car, police located a total of $78,300.00 in $50 notes. The cash was found in various locations, namely, $4,900.00 found in the driver’s side door, $14,900.00 found in a brown paper bag under the carpet of the passenger side foot well, and $58,500.00 found in a small khaki bag near the brown paper bag.

4. The total sum of $78,300.00 was therefore found to be proceeds of crime, that was substantially derived or realised, either directly or indirectly, from the commission of a serious offence.

Count 2

5. Between 17 December 2018 and 15 May 2019, the accused was found guilty of supplying a prohibited drug, namely 11.57 kilograms of gamma‑butyrolactone (“GBL”). The evidence contained in SMS messages and transcripts of telephone calls made to and from phones owned by the accused, established that in that period, the accused supplied an amount of GBL which was not less than the large commercial quantity applicable to that prohibited drug of 4 kilograms. The relevant supplies were listed in Ex C as follows:

1. 18 December 2018 – 2 litres;

2. 23 December 2018 – 2 litres;

3. 27 December 2018 – 1 litre

4. 2 January 2019 – 250 mls

5. 13 January 2019 – 1 litre

6. 17 January 2019 – 1 litre

7. 22 January 2019 – 500 mls

8. 23 January 2019 – 500 mls

9. 26 January 2019 – 500 mls

10. 30 January 2019 – 500 mls

11. 9 March 2019 – 1 litre

12. Total 10.25 litres

13. Pursuant to Ex A.33, 10.25 litres of GBL is calculated to weigh as follows:

14. 1.1286 x 10.25 = 11.56815 kilograms

15. The large commercial quantity proscribed for GBL is 4 kilograms.

Count 4

6. On 18 April 2019, police were conducting random breath tests at Pennant Hills Road Parramatta. A “No birds” hire car, being driven by Joumana Ali, and in which the offender was seated in the front passenger seat, was directed to pull over. The offender appeared nervous and was visibly sweating and shaking, and the police asked him for identification. He showed a licence in the name of Siavash Amani Shourbariki. Whilst being interviewed by police, the accused grabbed a small glass bottle and swallowed its contents. He then grabbed a Sunkist bottle from the front of the vehicle and drank it. The accused then collapsed and an ambulance was called, following which, he was taken to Westmead Hospital. When police searched the vehicle they found the sum of $5,700.00. By the jury verdict, that sum was found to be the proceeds of crime.

Count 5

7. At approximately 5pm on 15 May 2019, police observed an exchange take place between the offender, who had been travelling as a passenger in a black BMW, and another man in a white van which was parked on Uhrig Street Homebush. Following that exchange police arrested the two men and the offender’s car was searched, and a total of $2,510.00 was found. By the jury verdict, that sum was also found to be the proceeds of crime.

8. The offender was arrested on 15 May 2019 and has been in custody since that date. Further, Counts 2, 4 and 5 were committed whilst the offender was subject to a conditional release order made on 20 December 2018 in respect of two offences of common assault. The conditional release order was for a period of 18 months to commence on 20 December 2018. The facts upon which he was sentenced were included in Ex A at Tab 8.

9. Also included as Ex A.9 was a Sentencing Assessment Report under the hand of Ms S Carr dated 22 February 2021. The report noted that the offender had incurred an institutional misconduct charge on 3 February 2021. Under the heading “Family and social circumstances”, the author noted the offender had separated from his partner during the offending period, however, they were now rekindling their relationship and she would support him provided he remains abstinent from illicit drug use. He intended to reside with her in the ACT, however, the Australia Border Force had advised that he is currently an unlawful non-citizen and will be subject to immigration detention when released from custody.

10. The author noted that the offender was self-employed as a painter before entering custody. She described him as having a limited offence history and under the heading “Attitudes”, noted that the offender denied his offending was linked to financial gain. He maintained his behaviour related to a high tolerance for illicit substances and that his purchases for drugs were for personal use. This was his defence at trial and was clearly rejected by the jury in respect of the offence in Count 2. The author opined:

“He had little insight into his offending and accepts no responsibility.”

11. The author recorded a history of the offender commencing the use of ice in February 2018. He admitted to the daily use of ice and GBL prior to his arrest and added that he was under the influence of illicit drugs during most of his offending. He had no prior mental health condition, however, reported a mental health decline after the cessation of his relationship with his partner and that he used drugs to cope during that period.

12. The author noted that the offender expressed regret for his offending, however, he showed minimal understanding of the impact of his offending. The offender had stated that he was willing to participate in counselling or programs related to illicit substances and mental health to address his offending. He was assessed as a medium risk of re-offending and as suitable to undertake community service work.

13. A forfeiture order was sought pursuant to the Confiscation of Proceeds of Crimes Act 1989 for the sum of $86,510.00, the subject of Sequences 1, 4 and 5, to be forfeited and disposed of. There was no opposition to that order.

The offender’s evidence

14. Exhibit 1 was a psychological report under the hand of Mr C R Camacho, consultant psychologist dated 30 March 2021. The offender was interviewed on 18 March 2021 as a telephone assessment. When asked about his attitude towards the interview, the offender responded:

“I want to tell the judge that I’m sorry every day for what I did and help other young people some day.”

15. Mr Camacho noted the offender was currently 31 years of age. He had been in a long-term relationship of five years with his partner and had worked as a painter, however, he did not work for six months prior to being arrested. He had split with his partner and became addicted to drugs, specifically GBL, which he was consuming in large amounts. He had overdosed 11 times and ended up in emergency departments on various occasions.

16. Mr Camacho took a history that the offender started using recreational drugs “in his thirties”. Given that he was now aged 31, this seems improbable however, the author described a “complex history of drug use”. He had started using GBL nine months before his arrest and became addicted to it.

17. The offender was born in Iran and arrived as a refugee in Australia on 28 August 2012. He had a temporary protection visa which has now been cancelled.

18. The author noted that the offender had been treated for depression whilst in custody and had been prescribed Sertraline. He also attends the drugs program in custody NA course. He had finalised a number of other programs. He also reported being abstinent from drugs whilst incarcerated.

19. The offender reported that he was out of control from drug use at the time of the offending. He stated that he bought drugs for his personal use and that his history of overdoses proved that he was using a large quantity of GBL on a daily basis.

20. Mr Camacho opined that the offender had a significant addiction to illegal drugs, using up to 50ml of GBL per day. His drug addiction condition was treatable through a combination of psychological treatment and psychopharmacological therapy.

21. The offender was assessed within the normal range for anxiety and depression. Mr Camacho recommended treatment by way of regular cognitive behavioural treatment, focussed on drug and alcohol rehabilitation. His opinion was that the offender had a guarded prognosis and would need to adhere closely to the treatment plan for a length of time. He set out a treatment plan for the offender which he opined would be required as long‑term treatment. Mr Camacho opined that the offender has reasonable prospects of rehabilitation if that treatment plan is adhered to. The treatment should comprise 24 months of cognitive behavioural intervention.

The Crown submissions

22. The Crown relied on a detailed written outline of submissions which set out a summary of the facts related to the jury verdicts on each count, as reflected in my summary above. It also set out general principles of sentencing which are not controversial.

23. The Crown submitted that the evidence in the trial established that the offender was a significant drug supplier in the Sydney area. The total amount the subject of Count 2 was just over twice the large commercial quantity proscribed for GBL. The jury verdict also rejected the offender’s defence that he either wrote or talked about litres of GBL, that was not what he really meant, and he only said this to get dealers to come to him, and he only actually acquired smaller amounts for personal use. The jury must have found this proved beyond reasonable doubt and in accordance with authority, there is no reason in principle why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply.

24. The Crown submitted that the objective seriousness of the drug supply offence in Count 2 was high, and further that the money found in relation to each of the s 193B offences, namely Counts 1, 4 and 5, was clearly related to the offender’s drug supply business and thus the objective seriousness of the offending in each case was at least mid-range.

25. The Crown submitted that the offender was involved in buying and selling a very large amount of GBL to customers. It submitted that the existence of a causal relationship between addiction and the commission of drug supply offending will not automatically lead to a more lenient sentence, relying on R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [259]. The Crown submitted that here, there was only a limited causal link between the offending and the offender’s drug addiction, as the main purpose of his offending was to make money, not just to obtain drugs for his personal use.

26. The Crown referred to the principle of totality in sentencing by reference to the High Court’s decision in Mill v R (1988) 166 CLR 59; [1988] HCA 70. The Crown also submitted that as a general principle, the fact that the offender may possibly be subject to deportation is not relevant to the sentencing discretion.

27. The Crown submitted that it was an aggravating factor that the offences in Counts 2, 4 and 5 were committed whilst the offender was subject to a conditional release order pursuant to s 21A(2)(j) and (s) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). Further, pursuant to s 21A(5AA), self-induced intoxication, which included drugs, of the offender at the time of the offence was committed was not to be taken into account as a mitigating factor.

28. The Crown submitted that the offender’s criminal history, including common assault and various driving offences, deprived him of any leniency in sentencing.

29. The Crown informed the court that there were two back-up offences to be withdrawn and dismissed (deal with property being proceeds of crime less than $100,000 – Sequence 2; and goods suspected of being stolen in/on premises – Sequence 4).

30. The Crown submitted the following related offences were proven beyond reasonable doubt:

1. Sequence 3 – attempt to drive vehicle under influence of drugs.

2. Sequence 4 – possess prohibited drug – 19.1 grams of GBL found in the car when the offender was arrested on 18 April 2019.

3. Sequence 5 – possess prohibited drug – 0.70 grams of methylamphetamine found on 18 April 2019.

4. Sequence 9 – possess restricted substance copying the drug Diazepam found in the accused’s car on 18 April 2019. Whilst this evidence was not part of the trial, the Crown Case Statement and FASS certificate dated 28 May 2019 provided the relevant facts in Ex A.5 and A.6.

31. In her oral submissions, the Crown submitted that Count 2 was the most significant offending. The Crown rehearsed her submissions in respect of it being an aggravating feature in respect of Counts 2, 4 and 5, that the offences were committed whilst the offender was subject to a conditional release order made on 20 December 2018.

32. The Crown rehearsed her submissions in respect of the offender’s addiction not being a mitigating factor. The offender had been involved in a significant drug supply business and the purpose of the business was financial gain, and was not caused by his addiction.

33. Further, the content of Ex 1, where he stated that he bought drugs for his personal use, had been rejected by the jury. The offender had shown very little insight into his offending and there were very few mitigating factors to be taken into account.

34. The Crown rehearsed her submissions in respect of the related offences. Further, the offender agreed with the Crown that each of the offences had been proved beyond reasonable doubt.

Submissions on behalf of the offender

35. Counsel for the offender submitted that the content of the Sentence Assessment Report referring to limited insight into his offending conduct, was the result of a misunderstanding between the offender and the author of the report. It was submitted that the offender had told the psychologist, Mr Camacho the truth and accepted that it was extremely serious offending. Further, the offender agreed in principle with the Crown submissions as to the sentencing principles to be applied.

36. It was submitted that this was the offender’s first time in custody and that he was still a relatively young man at 31 years of age. It was further submitted there are prospects of rehabilitation for the offender provided he undertakes the education and programs recommended for him.

37. It was acknowledged that the offender was facing a significant sentence, following which he would be passed into immigration custody. The court would have regard to the fact that he had a small support network and that the jury brought back two verdicts of not guilty in respect of drug supply counts, consistent with a finding that those drugs were for his personal use.

Determination

38. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

39. I accept the Crown’s submission that the most serious offending was that in Count 2, namely, supply of 11.57 kilograms of GBL, an amount which was not less than the large commercial quantity applicable to that prohibited drug, namely, 4 kilograms. Whilst it is abundantly clear that the offender was, at the time of the offending, addicted to that prohibited drug, the objective seriousness of the offending must be assessed by reference to his role in the supply of the drug, the purpose of the supply and the amount of drug supplied. I find, given the amount of drugs involved, being more than twice the large commercial quantity applicable to GBL, and the sums of cash found at various times in the possession of the offender, that the purpose of the supply was financial gain, and incidental to the supply was feeding his own habit. The objective seriousness of the offending was clearly high and within the mid-range for an offence pursuant to s 25(2) of the DMTA.

40. The objective seriousness of the offences pursuant to s 193B(2), namely, possess proceeds of crime, must be assessed by reference to the amount of money involved. The amount in Count 1 was the sum of $78,300.00, and the objective seriousness of the offending fell below the mid-range but towards the top of the low-range for an offence pursuant to s 193B(2) of the Crimes Act. The offending in Counts 4 and 5, where the proceeds of crime were $5,700.00 and $2,510.00 respectively, both fell towards the bottom of the range of objective seriousness for offences pursuant to s 193B(2) of the Crimes Act.

41. General deterrence is clearly important in sentencing for drug supply offences, and especially in relation to supplies of prohibited drugs of not less than the large commercial quantity proscribed for that drug. A clear message must be sent to like-minded members of the community that Parliament has proscribed very lengthy terms of imprisonment as maximum penalties, in this case for Count 2, life imprisonment, and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important in the sentencing process in that the offender must understand that if he was to re‑offend, then increasingly long terms of imprisonment would be imposed upon him.

39. It was an aggravating factor that in respect of Counts 2, 4 and 5, the offender was subject to a conditional release order for two offences of common assault imposed on 20 December 2018.

40. I find pursuant to s 21A(5AA) that the self-induced intoxication of the offender at the time of the offence is not to be taken into account as a mitigating factor. Nor is the offender entitled to leniency, given his criminal history.

41. I have had regard to the maximum penalty of life imprisonment or 5,000 penalty units, or both, in respect of the offence in Count 2 pursuant to s 25(2) of the DMTA, together with the Standard Non-Parole Period of 15 years imprisonment. I have also had regard to the maximum penalty proscribed in respect of Counts 1, 4 and 5, offences pursuant to s 193B(2) of the Crimes Act 1900 of imprisonment for 15 years. The maximum penalties imposed by Parliament, and the Standard Non-Parole Period of 15 years imprisonment for Count 2, not only reflect the seriousness of the offences, but are guideposts in the sentencing process which I take into account.

42. The offender did not give evidence, and self-serving statements made to psychologists for the purpose of reporting on sentence must be approached with a great deal of circumspection. I am satisfied however, that the offender has expressed some remorse for his offending conduct.

43. I am also satisfied that the offender has made some progress with his rehabilitation to date, being abstinent from illicit drugs so far whilst in custody and having attended some programs whilst in custody for his drug and alcohol issues. However, his prospects of rehabilitation must be treated as guarded and his risk of recidivism is entirely related to his successful completion of relapse prevention programs.

44. I am satisfied that the threshold in s 5 of the CSPA has been crossed, and that having considered all possible alternatives, no penalty other than imprisonment is appropriate. I propose to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. So as to provide transparency in the sentencing process, the indicative sentences to be imposed are as follows:

Count 1 – offence pursuant to s 193B(2) of the Crimes Act 1900 – 2 years imprisonment

Count 2 – offence pursuant to s 25(2) of the DMTA – 6 years imprisonment

Count 4 – offence pursuant to s 193B(2) of the Crimes Act 1900 – 18 months imprisonment

Count 5 – offence pursuant to s 193B(2) of the Crimes Act 1900 – 9 months imprisonment

48. The indicative sentences take into account the objective seriousness of the offending, the aggravating features outlined above, together with his remorse. In arriving at an aggregate sentence, the principle of totality must be taken into account.

49. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] Howie J said:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

50. Here, there must have been a great deal of interrelationship between the proceeds of crime offences in Counts 1, 4 and 5, and the drug supply offence in Count 2, warranting a deal of concurrency in sentence. However, given the number of offences, there must be some accumulation on sentence. I therefore intend to sentence the offender to a term of imprisonment of 7 years and 6 months.

51. I make a finding of special circumstances pursuant to s 44(2) of the CSPA on the basis that this is the offender’s first time in custody and he will require treatment for his drug addiction issues. I therefore intend to impose a non‑parole period of 4 years to commence on 15 May 2019.

52. In relation to the back-up offences, I note that the following offences are to be withdrawn and dismissed:

H70072242/2 – deal with proceeds of crime less than $100,000

H70072242/4 – goods suspected stolen in/on premises

53. I intend to impose the following sentences on the offender for the following related offences, each of which I am satisfied have been proved beyond reasonable doubt:

H70072242/3 – attempt drive whilst under influence of drugs – 2nd+ offence

This offence occurred on 4 December 2018 when the accused was asleep and slumped over the steering wheel of a Toyota Rav 4 vehicle at the intersection of Todman Avenue and Lenthal Street. The engine of the car was on and the accused was the sole occupant of the vehicle. A blood sample was analysed to contain 0.01 mg/L of amphetamine, 0.19 mg/L methamphetamine and < 0.01 mg/L Nordiazepam. For this offence I intend to sentence the offender to a term of imprisonment of 18 months to be served concurrently with the aggregate sentence referred to above.

H138959702/4 – possess prohibited drug

This relates to 19.1 grams of GBL found in the car in which the offender was travelling on 18 April 2019. I intend to sentence the offender pursuant to s 10A of the CSPA by convicting him without imposing any other penalty.

H138959702/5 – possess prohibited drug

This relates to the possession of methylamphetamine at Westmead Hospital on 18 April 2019, when 0.70 grams was found on the offender and fell out of his jacket. I find the offence proved and proceed to sentence him pursuant to s 10A of the CSPA by way of conviction without imposing any further penalty.

H138959702/9 – possess/attempt to prescribed restricted substance

This offence related to the possession of one tablet of Diazepam, namely, 0.15 grams. On the basis of the Certificate of Analysis (Ex A.6), I find the offence proved and proceed to sentence the offender pursuant to s 10A of the CSPA by way of conviction without imposing any further penalty.

Orders

54. I make the following orders:

1. You are convicted of the following offences:

Count 1 – On the 4th day of December 2018, in Kensington in the State of New South Wales, did possess the proceeds of crime, namely, $78,300.00, in circumstances where he knew that $78,300.00 was the proceeds of crime.

Count 2 – Between 17 December 2018 and 23 April 2019, in Sydney in the State of New South Wales, did supply a prohibited drug, namely 11.57 kilograms of gamma-butyrolactone, an amount which is not less than the large commercial quantity applicable to that prohibited drug.

Count 4 – On 18 April 2019, at Parramatta in the State of New South Wales, did possess proceeds of crime, namely, $5,700.00, in circumstances where he knew that $5,700.00 was the proceeds of crime.

Count 5 – On 15 May 2019, at Homebush in the State of New South Wales, did possess proceeds of crime, namely, $2,510.00, in circumstances where he knew that $2,510.00 was the proceeds of crime.

2. I sentence you by way of an aggregate sentence pursuant to s 53A of the CSPA to a non-parole period of 4 years to commence on 15 May 2019 and to terminate on 14 May 2023.

3. The balance of term will be for a period of 3 years and 6 months commencing on 15 May 2023 and expiring on 14 November 2026.

4. I note the back-up offences in Sequences 2 and 4 are withdrawn and dismissed.

5. In respect of the offence in Sequence 3 – attempt drive whilst under the influence of drugs – 2nd+ offence, you are convicted and I sentence you to a term of imprisonment of 18 months to be served concurrently with the above aggregate sentence, commencing on 15 May 2019.

6. Sequence 4 – possess prohibited drug, I convict you of this offence without imposing further penalty pursuant to s 10A of the CSPA.

7. Sequence 5 - possess prohibited drug, I convict you of this offence without imposing further penalty pursuant to s 10A of the CSPA.

8. Sequence 9 – possess/attempt to prescribed restricted substance, I convict you without imposing further penalty pursuant to s 10A of the CSPA.

9. I make a forfeiture order in the sum of $86,510.00 pursuant to the Confiscation of Proceeds of Crimes Act 1989.

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Decision last updated: 01 June 2021