R v Gerges

[2018] NSWDC 483

District Court

New South Wales

Medium Neutral Citation:	R v Gerges [2018] NSWDC 483
Hearing dates:	22 June 2018
Decision date:	22 June 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Sentenced to a term of imprisonment of 18 months to commence today The sentence imposed above is to be served by way of an Intensive Corrections Order subject to the provisions of s.175 of the Crimes (Administration of Sentencing) Regulations 2008, to commence today. The conditions of the Intensive Corrections Order are: 1.to be of good behaviour and to commit no offences 2.to reside at an approved address and not leave the State or Australia without permission 3.to comply with the directions of a supervisor 4.submit to alcohol and drug testing, surveillance & monitoring 5.receive home visits from the supervisor 6.participate in any activities to address the defendant’s offending behaviour, 7.to undertake 32 hours of community service per month
Catchwords:	CRIMINAL – sentence - supply prohibited drug, being more than indictable quantity, that is, gamma-butyrolactone – dance party – drug detection dog - subjective matters
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985
Cases Cited:	Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Jason Gerges
Representation:	Counsel: Dr P Dwyer   Solicitors: Mr R Labrum Ms F Bitcoin
File Number(s):	2017/00000051

Judgment

1. HIS HONOUR: Jason Gerges appears for sentence in relation to an offence of supply prohibited drugs, being more than an indictable quantity, that is, 115.39 grams of gamma-butyrolactone, contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985. The maximum penalty provided is 15 years' imprisonment and/or a fine of $220,000 maximum. There is no relevant standard non‑parole period.

2. The facts are agreed and they are as follows. At the date of the offence, the offender was 24 years of age. On Saturday 31 December 2016, he was attending a dance party at the Hordern Pavilion. Police were monitoring patrons as they entered the pavilion, using a drug detection dog for that purpose. At approximately 9pm, two police officers observed the offender to enter the front entrance in the courtyard area. They approached the offender.

3. The drug detection dog moved her head around the offender's crotch area. He continued walking while the dog followed and continued to move her head from side to side. The officers observed the offender to have dilated pupils, a sweaty red face and that he was fidgeting, speaking quickly and using expressive hand movements. The following conversation occurred:

"OFFICER: Hey, mate, just hold up a second.

OFFENDER: Mate, what's the problem? The dog didn't indicate around me.

OFFICER: Yeah, but are you really afraid of that dog? It's not vicious.

OFFENDER: Mate, I'm afraid of all dogs."

4. The officers took the offender to a searching area nearby, as he appeared to them to be under the influence of a prohibited drug, and because of the drug detection dog's earlier indication. The offender admitted to police that he had drugs on him and removed a syringe from the front of his shorts. A further conversation was conducted with him:

"OFFICER: What's that?

OFFENDER: It's a syringe.

OFFICER: What's that for?

OFFENDER: It's for G. I use them to take G.

OFFICER: All right, grab them out of there for me, mate."

5. The offender removed one white syringe in a packet and placed it on the wall nearby. He was then escorted to a private area designed for strip searches:

"OFFICER: Because we have found that syringe down your pants we're going to have to strip search you, okay? Are we going to find anything else?

OFFENDER: Yeah."

6. The officers observed the offender to remove a further syringe in a white packet and a third syringe not in a packet, as well as three 50 ml Dettol bottles from the front of his shorts. The offender identified the liquid in the bottles as GHB. He was arrested and cautioned. There was further conversation:

"OFFICER: Why do you have so much?

OFFENDER: It's not all for me. I brought it for - I brought in for the boys.

OFFICER: The boys?

OFFENDER: So can I get a warning for this?

OFFICER: I don't think so, mate. There's easily over an indictable amount here. Each bottle is 50 mls and anything more than 50 mls is an indictable amount.

OFFENDER: Fuck, man, it wasn't all for me. I was told to bring it in for the boys and we were going to share it."

7. The offender was taken to the Surry Hills Police Station where the formalities were complied with and he was provided with the opportunity to speak with a solicitor, and after that conversation, declined to take part in an interview as was his right. The seized liquid from the three Dettol bottles was sent for analysis and weighed as being 115.39 grams of gamma-butyrolactone.

8. The offender was committed for sentence on 11 May 2017 from the Downing Centre Local Court, and it is accepted that doing so was entering a plea at the earliest opportunity and he is therefore entitled to 25% discount for the utility of the plea alone, as referred to in Thomson and Houlton (2000) 49 NSWLR 383. Such a discount will be provided.

9. The offender was in the process of endeavouring to enter a party event, such events being notorious in relation to attendees consuming prohibited drugs that they have either taken in themselves, or purchased from others attending the venues who have taken the drugs in.

10. A trafficable quantity of gamma-butyrolactone is 30 grams; the indictable quantity is 50 grams. The offender, accordingly, had more than twice the indictable quantity and almost four times the trafficable quantity. The range for an indictable quantity before the next level of seriousness is from 50 grams to 1 kilogram. Accordingly, he had approximately one-tenth of the quantity which would qualify for the next highest level of seriousness.

11. He had the 115 grams contained in liquid form in three separate bottles and he had three separate syringes. It is well known that liquid gamma-butyrolactone can be taken by those who wish to use it, consuming it together with some other liquid such as a drink. The presence of three separate syringes indicates that the offender was equipped with the means for discrete doses to be provided to others by use of each of the syringes. He claimed to the detaining police officers that he brought it in for “the boys” and that it was not all for him: he having been told to bring it in for “the boys” with whom he intended to share it. No persons were identified to the police officers as being "the boys".

12. The offender gave evidence on sentence and adhered to that explanation for his having endeavoured to enter the venue with a substantial quantity of gamma-butyrolactone. In his evidence he did not nominate any of “the boys” but claimed that he was to be attending with some 15 friends. Assuming his own consumption together with 15 persons, there was sufficient for that number of persons to consume just over 7 grams per person if equally divided amongst them.

13. In my view, if the offender was to have shared the 115.39 grams with a number of friends, he would have needed to take a busload with him, not simply 15. He was not convincing in his evidence, and, of course, had avoided providing any information to the police as to identifying the number and names of the friends. It, however, cannot be said in the circumstances that he was intending to sell or supply for reward any of the gamma-butyrolactone, although, in my view, his explanation is implausible.

14. Endeavouring to enter a venue with 115.39 grams of gamma-butyrolactone, whether it be to share with friends or to supply to friends and others, whether for reward or not, is a serious offence. It is frequently reported in the newspapers and other media as to the adverse effects that prohibited drugs have on individuals when they have been supplied with those drugs at party venues.

15. There is a strong need in relation to matters such as this for any sentence provided to act as a general as well as a specific deterrent. In my view, this offence is objectively in the midrange of seriousness for such offences. The quantity alone is not the only relevant matter, but it remains a significant factor to take into account.

16. I note in this matter that it first came before me on 15 November 2017, at which time Ms Dwyer, on behalf of the offender, immediately sought an adjournment so that the offender could see a psychologist, Charmian Lee, on 9 December 2017 with the purpose of a regime of counselling being put in place so that evidence of that counselling could be put before the Court. The defence already had a psychologist's report available which had recommended as follows:

"In my view, Mr Gerges does not require formal offender rehabilitation but would benefit from some psychotherapeutic support or mood stabilising medications. He could initiate this by visiting his general practitioner for a mental health plan or opinion."

17. As I indicated at the time, it did not appear to be relevant to the offender's sentencing in respect of this matter for an adjournment to be occasioned on the basis that he might need some therapeutic support not in relation to the consumption of prohibited drugs or in any way, in my view, related to his commission of the offence. It was not suggested by the report that he required treatment for a drug addiction or anything else of that nature. It appeared that the application was no more than a ruse for an adjournment, although the offender provided a letter to the Court which indicated that he had an appointment to see a psychologist, Charmian Lee, on 9 December 2017.

18. The matter was adjourned pursuant to s 11 so that he could engage in a course of counselling but, in reality, because the Court did not have time to deal with the matter that day or in the near future. When the matter returned to court on 4 May 2018, a letter was provided from Charmian Lee, dated 3 May 2018. I note that the offender states that he did attend in December on Charmian Lee; however, her letter makes no reference to any consultation with her in December of 2017. Her letter was written at the request of the offender's lawyers for comment on his mental status and progress and, clearly, it was written the day before he appeared on 4 May 2018.

19. Notice of a requirement for some report or letter had only been received by the psychologist on 2 May 2018. She said that a full psychological assessment was unavailable. She was provided with a psychological report of Patrick Sheehan which had been provided to her under correspondence dated 1 May 2018, together with the indictment and the facts sheet. She states,

"I saw Mr Gerges on 2 May 2018 for initial consultation. I am unable to ascertain his continued attendance, though Mr Gerges indicated his intent and motivation to attend regular psychological treatment with me."

20. In the offender's evidence on sentence he said that he had attended once in December 2017 and once in May of 2018, on 2 May for a one hour consultation. Whatever counsel may have thought as to the necessity for the offender engaging in a course of psychological treatment, it is clear that the offender made no effort or effective effort to engage in such a course of treatment. It is now 22 June and there is no further evidence that has been provided as to any later consultation.

DWYER: Your Honour, I didn't have the opportunity to do that. I have an affidavit which indicates a further consultation has taken place.

HIS HONOUR: Yes, I will have that, thank you.

MCLOUGHLIN: I've seen that. There's no objection, your Honour.

HIS HONOUR: Thank you.

DWYER: A further consultation on 10 June and an--

HIS HONOUR: Yes, I can read it myself, Ms Dwyer, thank you.

EXHIBIT #G5 Affidavit of Jessica Meech, solicitor, dated 22/06/18 tendered, admitted without objection on sentence.

21. HIS HONOUR: It indicates, by way of the content of the affidavit, as to what Ms Meech was informed and the attached patient history statement that the offender attended on Charmian Lee for a consultation on 2 May 2018, as I have already referred to, and a further consultation on 10 June 2018. That is hardly a course of consultations.

DWYER: Might I assist with that to avoid your Honour falling into any error?

HIS HONOUR: Is it from something that's contained in the affidavit?

DWYER: Your Honour, I'm sitting next to the solicitor who prepared the affidavit.

HIS HONOUR: Yes, I can read the affidavit.

DWYER: I'm instructed--

HIS HONOUR: The affidavit only confirms the appointment of 2 May and, as far as I can see from the consultation record, 10 June. Is there something in there that indicates more?

DWYER: Yes, your Honour. Paragraph 8, the person that my instructing solicitor spoke to by the name of Helen, the receptionist, because Ms Lee was sick, said that Mr Gerges has an appointment on 30 June.

HIS HONOUR: Yes, I can see that but that's in the future. It hasn't yet happened.

DWYER: No, your Honour, it's consistent with a monthly appointment.

HIS HONOUR: Yes, well considering the lack of appointments in the past, or a course of consultations, Ms Dwyer, the prospect that he might attend again at the end of June hardly advances the situation, in my view, and that is the opinion that I have.

22. He did, however, utilise during the adjourned period the opportunity to obtain a number of urine drug tests, those tests occurring and having negative results on 18 December 2017, 3, 15 and 29 January 2018 and 22 February as well as 12 March and 11 April 2018. As indicated, each of the test results, which are part of Exhibit G3, indicates that no drugs were detected. Of course, the first four tests were roughly two weeks apart and thereafter there is one per month, which is hardly a course of tests to indicate on a regular basis that he could not have consumed drugs because of the period between tests. However, his evidence on sentence was that he had ceased all use of prohibited drugs, and, despite the unhelpful nature of the urinalysis tests, I will accept that he has ceased use of prohibited drugs.

SUBJECTIVE MATTERS

23. Available to the Court is the offender's criminal history which indicates that he has never been convicted of a criminal offence, A Pre‑Sentence Report under the hand of Kurt Isseman, and a psychological report dated 5 September 2017 of Patrick Sheehan, together with a number of references, a medical report from Dr Yu Sun Cheung dated 13 November 2017, a letter from Rizik Khouri of C'darz Entertainment, being a music group of which the offender is a member, that being a group of drummers, a letter from Christian Fercher, being a transport manager testifying to the offender's employment as a permanent driver with Australian National Couriers, and expressing his opinion of the offender, although it makes no reference to his knowledge of the offender having been charged with this offence, and a letter from the offender to the Court which, amongst other matters, indicates:

"I recognise I have made a huge mistake and I am truly sorry and I truly regret my actions…I have come to understand the impact of my decision not only on myself but how I was participating in such an activity which affects so many people in so many bad ways - something I do not under any circumstance want to be a part of."

24. In addition to a bail acknowledgement setting out the conditions of his bail between arrest and when the matter was heard as sentencing proceedings on 4 May 2018, which, other than standard conditions, indicated that he was required to stay out of the Surry Hills Local Area Command while on bail. Subjective matters are drawn from that material including a company extract, which is Exhibit G4, and the letter of Charmian Lee that I have previously referred to, which is Exhibit G2.

25. The offender was raised in southwest Sydney to Lebanese parents. He has three brothers. His father was a house painter and is described as a strict disciplinarian who was always angry, that being ascribed by the offender to his father's background as a soldier in Lebanon. His father is said to have been domestically violent towards the children and his wife. When the offender was 13 years of age he was attacked by a male stranger in an attempted sexual assault, the assailant being apprehended, charged and convicted.

26. An older brother is said to have had behavioural problems, as a result of which his father decided to take the family to Lebanon to straighten him out. The family moved to Lebanon when the offender was 15 years of age. While in Lebanon he served three and a half years in a combat capacity with the Lebanese Navy. He describes the conditions as being harsh and involving lengthy separation from his family as well as exposure to traumatic combat situations. He ultimately absconded from the military while on temporary leave and fled to Australia in December 2012. He returned to Lebanon in 2015 and was apprehended at the airport as he re‑entered, charged with desertion and, as a result, spent a month in gaol. He later returned to Australia.

27. He attended primary school in Belmore, at which time he was not subjected to any suspensions for misbehaviour nor did he repeat any year. However, when he later attended Belmore Boys High he is said to have become attached to the wrong crowd and his adjustment at school was poor, frequently truanting and being suspended as a result. He ceased attending school in the first term of Year 8 when he then undertook a pre‑apprenticeship bridging program at TAFE involving spray painting and small motors. He worked with his father in house painting until the age of 15 before they moved to Lebanon.

28. After returning to Australia, he worked in construction to support himself, transitioning to carpentry and working for an employer for a further two years before then studying a Diploma of Business Management for one year. In November 2016 he purchased a courier business and took on a debt of approximately some $30,000 to provide his own truck or vehicle for the purposes of that business. He was still engaged in the courier business at the time that the matter first came before me.

29. In the intervening period, however, together with one of his brothers, he had registered a company called Levels Concreting Services Pty Ltd, that being registered on 4 May 2018. In his evidence he said that that company had been successful and he was working long hours providing concrete to various construction sites. Although no documentation was provided in that respect, his evidence was confirmed by Mr Charles Garcia who was called to give evidence on sentence.

30. Mr Garcia also indicated that the offender had assisted him, from time to time, in relation to charities run by Mr Garcia, being the "Wishing Hearts Foundation" and also "Adopt a Bear". His evidence was that the offender had consistently assisted him in relation to the conduct of those charities when required for functions. Mr Garcia indicated that he held the offender in high regard. His evidence was that the offender had disassociated himself from his criminally-orientated peer group, that he expected he would not relapse, was extremely remorseful and had matured substantially since committing the offence.

31. The Pre‑Sentence Report under the hand of Kurt Isseman contains the following as to substance use: "Mr Gerges reported commencing the use of illicit drugs, namely, cannabis, at the age of 15. He reported that his use of that substance was never an issue for him and he reported that he has since ceased all use of that drug." As to ”Attitude to Offending”, he stated, "Mr Gerges agreed with the police facts and appeared to offer genuine contrition for his involvement in these offences." He was assessed as having a low risk of reoffending. I accept that assessment.

32. I accept that, although when giving evidence the offender's evidence of remorse and contrition was not overwhelming, indeed, he appeared to be more affected by regret as a result of the effects that a conviction might have on him, as well as his embarrassment to the family, however, there is sufficient contained in the other material before the Court to accept that he is genuinely remorseful and contrite. I accept that he is currently involved in a more significant business with current debts of approximately $90,000 and that he is now working hard in order to make himself a success in life together with the assistance and guidance from Mr Garcia.

24. I accept as a general proposition that those who have either provided evidence on sentence by way of oral evidence or alternatively by correspondence hold the offender in high regard. I accept in the circumstances that he has good prospects of rehabilitation, particularly if he can continue to abstain from the use of prohibited drugs. I also accept that he was at least intending to use some of the gamma-butyrolactone that night himself, as he was, it appears, affected by it at the time that he attended. He does not have any history of major mental illness or of any psychiatric issues.

25. Mr Sheehan, psychologist, expressed the opinion as follows, "Mr Gerges may have a persistent depressive disorder as a long term condition and an adjustment disorder as a reaction to recent difficult events in his life." I note in that quote the use of the term "may have". Although he may be, as opined by the psychologist, continuing to struggle with traumatic events from his exposure to trauma through domestic violence in childhood and through exposure to combat in adolescence, they do not have any causal relationship in relation to his offending.

26. In sentencing the offender the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act and the purposes of sentencing. In my view, although the possession of 115.39 grams of gamma-butyrolactone in the circumstances in this matter does not amount to evidence of substantial trafficking, I am of the view that the quantity is of such a significant nature, including the evidence of the offender that he was at least intending to supply it to 15 of his friends, it indicates that a sentence of imprisonment must be imposed. As indicated on 4 May 2018, I am of the view that a sentence of two years or less is appropriate and, for that purpose, the matter was adjourned to obtain an intensive correction order assessment. That assessment has now been provided under the hand of Arlene Tracey dated 20 June 2018. It indicates that the offender has been assessed as suitable for an intensive correction order. Mr Gerges, would you please stand?

27. You are convicted and sentenced to a term of imprisonment of 18 months to commence today. The sentence imposed is to be served by way of an Intensive Correction Order subject to the provisions of s 175 of the Crimes (Administration of Sentences) Regulation 2008 to commence today. The conditions of the intensive Correction Order are:

1. 1. To be of good behaviour and to commit no offences;

2. 2. To reside at an approved address and not leave the State or Australia without permission;

3. 3. To comply with the directions of a supervisor;

4. 4. To submit to alcohol and drug testing, surveillance and monitoring;

5. 5. Receive home visits from a supervisor;

6. 6. Participate in any activities to address your offending behaviour, and

7. 7. To undertake 32 hours of community service per month.

37. A full list of the mandatory conditions will be provided to you at the registry. I note that you have already signed an offender undertaking and a document containing all of the ordinary conditions. You will, however, need to attend at the registry and sign some documentation.

Is there anything I omitted?

DWYER: No, your Honour.

O'LOUGHLIN: No, your Honour.

HIS HONOUR: All right, thank you.

O'LOUGHLIN: Your Honour, did the Crown withdraw the backup possess on the last occasion?

HIS HONOUR: No, it's supposed to be withdrawn today, I think.

O'LOUGHLIN: I'll ask your Honour to dismiss that.

HIS HONOUR: Yes, what was the sequence number? Yes, all right.

38. H65081587, Sequence 2, possess prohibited drug, being the 115.39 grams of gamma-butyrolactone, is withdrawn.

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Decision last updated: 05 March 2019