R v Ghahremani

[2019] NSWDC 582

District Court

New South Wales

Medium Neutral Citation:	R v Ghahremani [2019] NSWDC 582
Hearing dates:	09 August 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is placed on a conditional release order for a period of two years with conviction. He is to be good behaviour and he is to appear before the Court if called upon and he is to abstain from the use of illicit drugs
Catchwords:	SENTENCING — Penalties — Conditional release order
Legislation Cited:	Drug Misuse and Trafficking Act
Cases Cited:	Dang [2013] NSWCCA 246 Pham [2001] NSWCCA 307
Category:	Sentence
Parties:	Regina (Crown) Farhad Ghahremani (Offender)
Representation:	Counsel: P Lowe (Crown) D Pace (Solicitor Advocate, Offender)   Solicitors: Solicitor for Public Prosecutions Legal Aid Commission NSW/ACT
File Number(s):	2917/00175839

Judgment

INTRODUCTION

1. Farhad Ghahremani appears before me for sentence having pleaded guilty to one count of supply a prohibited drug, namely, 7.26 grams of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty is 15 years. The maximum penalty is an important guidepost in the assessment of sentence, a judge should steer by the maximum penalty but not aim for it.

2. The Crown case against the offender is on two bases; one of deemed supply by reason of the quantity and the limited supply to friends. He was an ice user and told the police he had purchased the ice the previous day to the search of his bedroom.

THE FACTS

3. The offender in this matter is 33 years of age.

4. On 22 April 2018 police applied for and were granted a crime scene warrant for 26 Salisbury Road, Guildford. At about 6.00pm the same date police attended the address where the offender was located before being arrested and cautioned. The offender advised police that there was a red beer cooler next to his bed which contained an amount of ice. The offender was conveyed back to Granville police station while police remained at the address to seize a number of exhibits including the offender’s phone and external closed-circuit television footage from the premises.

5. Next to the offender’s bed police located a crystalline substance wrapped in aluminium foil. A further amount of this substance was contained within two small resealable bags in a red beer cooler next to the offender’s bed. The substance in the aluminium foil and resealable plastic bags was later analysed and found to be methylamphetamine, in total 7.26 grams of methylamphetamine.

6. On 30 March 2018 the offender received a text message from Paul asking, “Hey can you get me half a gram?”. The offender responded, “I’m not home”. Paul then said, “Not now, later okay?” and the offender replied, “Okay”, and asked “When you coming?”. Paul responded, “Sorry, I decided I don’t want any more”. The offender then said, “Okay, if you want let me know”.

7. On 22 April 2018, the day of the offender’s arrest, Paul again asked the offender via text message, “Hello, can I get half a gram?”, the offender responded, “Okay”, followed by “Are you coming now?”. Paul asked, “When and how much?” and said, “I can come whenever”. The offender responded, “200” and told Paul he could come now. Shortly afterwards Paul sent the offender a text message which read, “I’m here”.

8. At the Granville police station the offender was introduced to a Farsi Persian interpreter and then undertook a record of interview. During the course of the interview he said he lived at 26 Salisbury Street, Guildford. He told the police his mobile telephone number. He resided in the bedroom at the front of the house. He agreed that there was ice in his bedroom. He thought there was about 10 grams, but did not know how much was left. He had purchased the ice the previous day. He buys ice for himself, but sometimes people he knows ask him for ice and he gives it to them, but he does not make money. He has a scale. The Crown is not able to prove that the offender supplied prohibited drugs to anyone else except to people he knew. The offender had at least 3 grams of methylamphetamine in his possession for the purpose of supplying to others.

BACKGROUND TO THE OFFENCE

9. As a result of allegations made by Mr Tang, who met the accused via a gay dating application called “Grindr”, the offender was charged with serious sexual offences including attempted sexual penetration of the penis in the anus. It was as a result of those allegations the offender’s premises were searched and the drug was found.

10. The offender came before the Court for trial on the sex matters on Tuesday, 30 July. A jury was empanelled and the trial proceeded to verdict on Tuesday, 6 August. The offender undertook a record of interview and gave sworn evidence on the trial. He maintained that the alleged acts were consensual. Mr Tang, when first making SMS contact with the offender said that “he wanted a man to fuck him.” The jury found the offender not guilty. Although he has been a recipient of bail by the Courts of New South Wales the Commonwealth Government became involved and the offender has been held in Immigration Detention for a total of 11 months. I have taken this form of custody into account when considering what the appropriate sentence should be. He has pleaded guilty and the Crown assesses his plea as somewhere between 10% and 15%. I accept that submission.

OBJECTIVE SERIOUSNESS

11. The deemed supply of 7.26 grams is at the lower end of objective seriousness.

MORAL CULPABILITY

12. In the case of a street level user/dealer there is room for a measure of clemency; Pham [2001] NSWCCA 307 at [46]. A person in the grip of an addiction has less freedom of choice than would otherwise be the case. Moral culpability is a function of the perceived freedom of choice; Dang [2013] NSWCCA 246 at [30].

13. On 2 November 2017 he was placed on a s 10 bond for prohibited drug. This is consistent with his addiction to methylamphetamine.

SUBJECTIVE CIRCUMSTANCES

14. The offender is now 34 years of age. He was born in Tehran. He is a homosexual and this form of sexual practise is illegal in his country of birth and is punishable by death. His family assisted him in making arrangements to escape from Iran by boat. He travelled to Dubai and then to Indonesia and then from Indonesia to Australia. In November 2012, when the boat he was on was approaching Australia, it began to take in water and the boat was rescued by the Australian Army and Navy and he was taken to Christmas Island.

15. He spent a large amount of time on Christmas Island before he was eventually granted a temporary protection visa, also known as a bridging visa.

16. In his affidavit that was tendered today, he has expressed his remorse and his use of drugs and apologises to the Court and promises that he will never commit another offence. He has seen the damage drugs has done on individuals and their families firsthand and it has been an eye-opening experience. He has now gone through the criminal justice system and experienced a jury trial as an accused person. He says that he has truly learnt his lesson and promises to comply with any conditions that are set by the Court.

17. I assess that he has good prospects of rehabilitation because of his cessation of the use of ice.

SENTENCING

18. The need for denunciation and general deterrence are important considerations, but they can be adequately contemplated by both the terms and duration of a conditional release order.

19. The offender will be the subject of a judicially sanctioned requirement to be of good behaviour for two years. There are consequences that apply if he fails to observe that requirement.

20. There is no strong need in this case for specific deterrence due to the time spent in custody by the offender.

21. The offender is placed on a conditional release order for a period of two years with conviction. He is to be good behaviour and he is to appear before the Court if called upon and he is to abstain from the use of illicit drugs.

22. In relation to the called up bonds on 2 November 2017 the breach is admitted and I take no further action in relation to those bonds.

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Decision last updated: 21 October 2019