R v Harmouche
[2020] ACTSC 194
•15 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Harmouche |
Citation: | [2020] ACTSC 194 |
Hearing Dates: | 25 May, 17 June, and 15 July 2020 |
DecisionDate: | 15 July 2020 |
Before: | Murrell CJ |
Decision: | Offender sentenced to 14 months’ imprisonment, suspended after five months on entering into a good behaviour order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in a controlled drug other than cannabis – Guilty plea – COVID-19 pandemic |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 12 Criminal Code 2002 (ACT) s 603(7) Criminal Code Regulation 2005 (ACT) sch 1 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 R v McCallum [2020] ACTCA 15 |
Texts Cited: | Australian Criminal Intelligence Commission, Illicit Drug Data Report 2017–2018 (July 2019) |
Parties: | The Queen (Crown) Saad Harmouche (Offender) |
Representation: | Counsel P Dixon (Crown) T Jackson (Offender) |
| Solicitors ACT Director of Public Prosecution (Crown) Aulich (Offender) | |
File Number: | SCC 67 of 2020 |
Murrell CJ
Introduction
The offender pleaded guilty to the offence that, on 9 December 2019, he trafficked in a controlled drug other than cannabis (cocaine), contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for the offence is 10 years’ imprisonment, a fine of $160,000, or both.
The trafficable quantity for cocaine is six grams: Criminal Code Regulation 2005 (ACT) sch 1. The commercial quantity is three kilograms and a maximum penalty of 25 years’ imprisonment applies for trafficking in the commercial quantity.
The plea was entered in the Magistrates Court following an initial plea of not guilty and the preparation of a brief of evidence by the prosecution. At the time that the plea was entered, the offender agreed with the prosecution as to the facts upon which the plea was entered and this matter did not require subsequent exploration.
On 25 May 2020, during the first hearing of this matter, I made an order revoking bail.
Facts
On 9 December 2019, police executed search warrants at the offender's Chisholm residence. They contacted the offender, who returned home. At the scene, the offender admitted that he was the sole occupant of the house, which was of obvious assistance to the prosecuting authorities.
During the search, police located two packages. The first was a plastic freezer bag that contained five snap-lock bags. The second was a fabric wrap. These packages were in a cavity in the wall behind the oven. Each of the two main packages contained a white powder; the combined weight of the contents was 389.23 grams.
The plastic freezer bag (with the five snap-lock bags) weighed 135.439 grams and contained cocaine of 35 per cent purity. The cocaine in that bag had been cut with two substances, benzocaine and levamisole, although the percentage of those substances within the total is unknown.
The fabric wrap contained 253.791 grams of cocaine with a purity of 42.4 per cent. That cocaine had been cut with levamisole and there was no benzocaine in that package.
Police also located an unused 250-gram plastic wrap of benzocaine above the refrigerator and a set of digital cash counting scales in a wardrobe in the offender's bedroom.
Objective seriousness
According to the Australian Criminal Intelligence Commission’s Illicit Drug Data Report 2017–2018 (July 2019), cocaine had a street value of $200 to $600 per gram. That is a street value of at least about $80,000: at 77. The Illicit Drug Data Report also stated that, between 2008 and 2019, the median purity of cocaine has ranged between 9.5 per cent and 64.5 per cent. The cocaine located at the offender's residence was in about the middle of the range of purity in very general terms.
In Bui v The Queen [2015] ACTCA 5 at [41], the Court set out the principles relevant to the assessment of objective seriousness when sentencing those charged with drug trafficking offences, including the following:
(a)“The role of the accused is an important consideration”; those who are at high level in the hierarchy of an operation are more culpable.
(b)“The weight of the amount of drug is not of chief importance” but remains a relevant factor in sentencing, “particularly in the context of the harm” from the effects of its distribution.
(c)“The motivation for the offence is highly relevant”. The purpose of profit makes the matter more serious.
(citations omitted)
In this case, the quantity of the drug was just under 390 grams, i.e. about 64 times the trafficable quantity and about 10 per cent of the commercial quantity. The purity was moderate, and the estimated street value was at least $78,000.
Cash counting scales were found, as was a packet of benzocaine. This was relevant in the context that the same cutting agent had been used in relation to some of the drugs that were found.
As to the offender's role in matters, he informed Dr Clout (a clinical psychologist who saw the offender in April 2020 and provided a report for the Court) that he had not received cash payments and held the cocaine at his house on behalf of others and in return for being able to use the cocaine when he needed it. He said that he was a heavy cocaine user who had become unable to afford to purchase cocaine and always needed to have it at hand.
I was asked to accept that the offender played no real role in the distribution of the substance, although he believed that he was holding it for the purpose of distribution by others.
I am satisfied beyond reasonable doubt that a substantial proportion of the drug that was being held by the offender was held for the purpose of sale to other persons. As to the offender's role in that sale, I am unable to say. I am unable, for example, to find beyond reasonable doubt that he was solely responsible for the on sale of the substance or anything of that nature.
However, it defies credibility to think that the offender would be holding almost $80,000 worth of drugs simply as a matter of convenience to other drug sellers who knew that he was heavily addicted and had invited him to use whatever he needed, whenever he needed. That simply defies credulity. But, on the other hand, I am unable to precisely say what role he did play in the sale of the drug, and I am satisfied that he proposed to use a significant part of the drug to satisfy his own dependency.
I consider that the offence was attended by moderate objective seriousness, having regard to the quantity of drug involved, its associated value, and the fact that I am satisfied beyond reasonable doubt that he had some role in the selling of the drugs, though I cannot say how much of the drug would have been sold on nor what the offender's role would have been.
Subjective circumstances
At the time of the offence, the offender was 27 years old. He is now 28 years old.
He has no prior criminal record. Otherwise, he does not advance any strong subjective circumstances. He did not, for example, experience a disadvantaged upbringing.
He is the second of six children. He had an unremarkable upbringing and enjoys good relationships with his parents and siblings.
He has a good employment history. After completing school, he undertook a four-year cabinetmaking apprenticeship and worked in that field briefly. He also obtained a Certificate IV in Building and Construction. From 2015, he worked in a long-established family produce business. During the 12-month period from late 2018 to late 2019, he was not working because of the level of his drug use. Around November 2019, he returned part-time to work in the family business, according to information provided to Dr Clout. Before his bail was revoked, he was working full-time in the family business.
In the long term, the offender hopes to return to the construction industry and go into business with his brothers. He has completed the coursework component for obtaining a builder's licence. Once he has completed the practical component, he hopes to develop a block of land held by his family as an entrée into the building business.
The offender first used alcohol at age 17 and did not start drinking heavily until his twenties. Both Dr Clout and the author of the pre-sentence report assessed the offender’s alcohol use at a risky or hazardous level over the past 12 months.
The offender said that he used cocaine, and more infrequently MDMA, from about 21 or 22 years of age. From about 25 years of age, his social consumption escalated to about once a week. By 2019, he was consuming cocaine two or three times a week. He told the author of the pre-sentence report that, prior to his arrest, he was using up to five grams of cocaine every three days, and he told Dr Clout that by July 2019, he was consuming approximately two grams of cocaine daily. The offender reported to Dr Clout that at the time, he had not thought that his cocaine use was problematic, and it had made him feel good.
He stated that, at the time of the offence, some of his associates were involved in criminal activity and that he no longer associates with them.
Since his arrest, the offender completed the Alcohol Drug Awareness Prevention Training Program (ADAPT) in March 2020. While on bail, there have been three clean urinalysis results. In April 2020, the offender reported to Dr Clout that he had not used cocaine since his arrest, except once on New Year's Eve.
Dr Clout opined that the offender was suffering from stimulant use disorder and that, at the time of the offence, his disorder had been in the severe range, but is currently in early remission. She said that he needed intensive intervention and would benefit from psychological treatment to address his disorder, especially as the risk of relapse is highest in the first 12 months. In the event of relapse, residential rehabilitation may be appropriate.
When speaking to Dr Clout, the offender expressed guilt and remorse for his behaviour and said that, at the time, he had not considered the wider impact of his behaviour. However, he is now remorseful for the impact on his family and the community.
Both Dr Clout and the author of the pre-sentence report assessed the offender as having a low risk of general reoffending, noting that he has stable accommodation, employment, and finances, and enjoys family support.
The offender's uncle provided a reference stating that the offender was ashamed for his actions. Since the offender's arrest, he had noticed a positive change in the offender's attitude. He said the offender was no longer associating with negative peers.
The offender's older brother said that the offender was a caring and outgoing person who was helpful and supportive towards others in difficulty. The offender was truly regretful for his actions and had benefited from the ADAPT course and regular counselling through the SMART Recovery program.
The offender's sports trainer said that the offender had learned his lesson and was trying to change his life.
On 14 May 2020, the offender commenced counselling with Dr Barry, a clinical psychologist, who recommended that he engage with Directions ACT and possibly Narcotics Anonymous.
Sentencing considerations
General deterrence and the associated sentencing purpose of community protection are always important sentencing purposes in the case of drug trafficking offences.
The offender submitted that he should be regarded as a youthful offender in relation to whom rehabilitation was a central sentencing purpose. I do not consider that a person of 27 years of age with a significant employment history can be characterised as a particularly youthful offender. In any case, considerations of impulsiveness and lack of judgment that may operate in the case of youthful offenders are less prominent in the case of an offence of this type. However, I do accept that the offender's lack of criminal history and strong community ties, as well as support from his family, suggest that his prospects of rehabilitation are good.
The Crown submitted that a sentence served entirely in the community would be inadequate and inappropriate, given that the offence is one of drug trafficking involving a substantial quantity of cocaine. I agree with that submission.
I was referred to a number of comparable cases where offenders ultimately received an intensive correction order. I accept the proposition that a number of the comparable cases to which I was referred involved aggravating features that are not present in this case. The comparable cases to which the offender's counsel referred me involve significant quantities of cocaine (between 154 and about 405 grams).
In R v McCallum [2020] ACTSC 15, while the ultimate sentence did not make it clear that the offender had served a period in custody, the offender had in fact served a period of five months in custody before he was ultimately sentenced to be referred for a drug and alcohol treatment order, which was granted.
Without wishing to place undue emphasis on sentencing statistics, the sentencing database does indicate that, while a majority of offenders were sentenced to imprisonment, a substantial minority received lesser penalties, and that where offenders were sentenced to full-time imprisonment, the term was often in the range of 12 months’ to two and a half years’ imprisonment.
In this case, given the objective seriousness of the offence and the prominent sentencing purpose of general deterrence, I am satisfied that the only appropriate penalty is a sentence of imprisonment. That appears to have been implicitly accepted by both parties.
It is necessary that at least a brief period be served by way of full-time imprisonment to indicate the seriousness with which the Court regards offences of this type.
However, I am also mindful that a long period of imprisonment will not serve the offender and, ultimately, will not serve the community. Consequently, I referred the offender to the Drug and Alcohol Sentencing List for a suitability assessment and requested an intensive correction order assessment.
Having considered the material in relation to the offender's suitability for a drug and alcohol treatment order, I have decided that, while he is technically suitable, the uncertainty about the level of his drug addiction means that it may be a waste of resources to place him on such an order, and he may gain little benefit from it.
In relation to the service of a sentence by an intensive correction order, having reflected on the offender's subjective circumstances, which are not particularly compelling (although moderately strong), it is my view that relevant sentencing purposes of general deterrence, personal deterrence and denunciation would not be adequately met if I made an intensive correction order.
However, I am prepared to partially suspend the sentence, having regard to the offender's lack of prior convictions, the good family support that he enjoys, and the difficult circumstances that apply to persons imprisoned during the COVID-19 pandemic, including their limited capacity to access family and community support by way of personal visits as would normally be the case.
Sentence
I impose a sentence of 14 months’ imprisonment (reduced from 18 months’ imprisonment) from 25 May 2020 to 24 July 2021.
Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), I make an order suspending the sentence from 24 October 2020 (i.e. after the offender has served five months in full-time custody) on the offender entering into a good behaviour order until 24 July 2021.
It is a condition of the good behaviour order that the offender submit to the supervision of Community Corrections for at least seven months from release (i.e. to at least 24 May 2021) and for such a further period as Community Corrections deems appropriate.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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