R v Hijazi

[2018] NSWDC 418

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hijazi [2018] NSWDC 418
Hearing dates:	16 November 2018
Date of orders:	16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	At [21].
Catchwords:	SENTENCING – Multiple offences – supply drugs on an ongoing basis – offences committed on bail for Commonwealth offences – s 166 offence – driving whilst disqualified
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Criminal Code (Cth) Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013
Cases Cited:	R v Qutami (2001)127 A Crim R 369
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown)   Alack Hijazi (Offender)
Representation:	Mr Kiru (Crown)   Mr Linegar (Counsel for the Offender)
File Number(s):	2017/108853

Judgment

1. Alack Hijazi is a young man born in 1991 and is married with a young child. In 2011, he was involved in the importation of a marketable quantity of cocaine which led to him being sentenced by me in January this year to a term of imprisonment of three years and nine months with a non-parole period of two years.

2. He had returned to Australia having spent a number of years in Lebanon on 23 February 2016, on his return he was charged but apparently given bail for the importation offence under the Criminal Code (Cth). While he was on bail, he committed a number of offences which led to him being before the Court again for sentence today. Some of the offences that he is not here to be sentenced for today, are a number of charges of driving while disqualified which occurred in March and April 2017. There were three driving while disqualified and one driving under the influence of drugs which were dealt with by an aggregate sentence of imprisonment of a fixed term of 21 months imposed by a magistrate on 20 March this year, running wholly concurrently with the sentence that I imposed in January this year. Mr Hijazi candidly admitted from the dock today that he had actually had two driving while disqualified charges on 10 April 2017, the second arising out of the time at which he was arrested for these drug offences.

3. He has pleaded guilty at an early opportunity, which the Crown concedes attracts a 25% discount for the utilitarian value of the pleas to three counts. First, supply drugs on an ongoing basis under s 25A(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum of 20 years, with no standard non-parole period. Secondly, another count of supply prohibited drugs on an ongoing basis under the same section and a third count of supply prohibited drug greater than commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985 which carries a maximum of 20 years, with a standard non-parole period of ten years.

4. The short agreed facts demonstrate that a strike force had been investigating supply of prohibited drugs in south-west Sydney in early 2017 and they identified that he was involved in the supply of GHB, MDMA and methylamphetamine or ice to a large customer base. Between 6 and 27 March he received $22,650 from a supply of these prohibited drugs. In relation to some of them, he instructed his wife Sara Hijazi and another female associate Erin Kontakos to supply or assist in the supply of drugs on his behalf. His wife who is a referee for him today, and is present in court, has pleaded not guilty to those counts of being knowingly taking part in the supply of prohibited drug and her matter is listed for trial in January 2019. Erin Kontakos was dealt with and given a s 9 bond but it is common ground that there is no question of parity arising out of that matter.

5. The facts show that in relation to count 1, he supplied a total of 90.46 grams of methamphetamine on twenty eight separate occasions and received $15,550. As to count 2, he supplied 96 millilitres of GHB on seven separate occasions, receiving $1,700 and as to count 3, he supplied 64 grams of MDMA, receiving $5,400 for three separate supplies. As I have indicated, the drive while disqualified charge can be dealt with under s 166, arising out of the fact that he was arrested while driving his car in Bankstown at about 8pm on 10 April.

6. His subjective circumstances are largely dealt with in the evidence that was before me on the last occasion, and is summarised in my remarks on sentence on 31 January 2018 and I need not repeat those for the purposes of these remarks. I take account of some further material before me being a letter from the offender himself and also a letter from his wife, Sara Hijazi, as well as a character reference and an offer of employment from Mr Ali Hussain. The report of Dr Chew of 27 September 2017 was prepared in relation to the drive while disqualified charges and was before me on the last occasion and I take it into account again.

7. As the Crown correctly points out, the letter from the offender and his wife are to be taken into account with caution as they are not subject to testing in cross-examination, and as authorities such as R v Qutami (2001)127 A Crim R 369 indicate, their value is accordingly limited. However they appear to be a reasonable basis for assessing the subjective case and I acknowledge here, as I did on the last occasion, the difficult family circumstances which have been asserted in those documents.

8. Mr Hijazi candidly acknowledges that he makes no attempt at all to provide excuses for his actions as there were none that could justify them, but he expresses his remorse and regret to the Court, the police and the community for his behaviour and he and his wife assert that he had been led into a significant period of drug use which motivated his drug dealing in 2017 as a result of those difficult circumstances which I take into account.

9. It is common ground that what the Court is involved in today is, in effect, attempting to impose in practical terms, what should have been an aggregate sentence on the last occasion, had these matters been dealt with. The Crown frankly acknowledges that he cannot discern any reason as to why the State charges were not dealt with at the same time as the Commonwealth charges in January but I have to do the best I can to take into account the principles of totality and accumulation and answer the question which has been posed, namely: what would be the effective aggregate sentence for the Commonwealth and the State offences had I imposed them at that stage?

10. As the Crown points out, a very significant matter to take into account in aggravation of the circumstances, is the fact that the series of State offending was committed while he was on bail for the Commonwealth offences and there should be a strong message to the community that such behaviour is unacceptable, and as the legislation demonstrates, it is an aggravating factor to be taken into account.

11. His previous record is one which does not entitle him to leniency. He had a term of imprisonment of 21 months, with a non-parole period of nine months served in juvenile detention in 2008 for selling a pistol without a dealer’s licence. There were control orders imposed for drug supply offences in the juvenile court and there are the terms of imprisonment, to which I have already referred for the Commonwealth matter and the various driving offences.

12. A pre-sentence report was prepared on 17 May 2018, that is since I last sentenced Mr Hijazi. It notes that he is housed as a maximum security inmate at the South Coast Correctional Centre and there have been a number of charges relating to institutional misconduct for drug activity, theft, vandalism and violence and they are set out in his custodial record. He is employed in the packing workshop and he has received positive reports from his supervisors. He had previously been gainfully employed while on parole in 2009 and he completed his parole in 2010 without adverse notice.

13. He has retained the support of his mother and sisters and he has regular phone contact and visits from them. He is hoping on his release to return to a waterproofing role and he is currently being medicated for symptoms associated with depression and anxiety and he says that he remains profoundly affected by his father’s violent and controlling behaviour.

14. He told the author, as seems to be consistent with the other material that his actions were solely to fuel his own drug habit and it was not a profitable venture. He expresses his shame and remorse for his behaviour. He is assessed as being at a medium risk of re-offending but he has encouragingly used his time in gaol as an opportunity for reflection and reducing his drug use and he is focussed on the future and eager to return to the community, to settle down and focus on his family and address the issues underlying his criminality and a period of supervision and monitoring of associates would be prudent according to the author.

15. The helpful written submissions prepared by Mr Linegar of counsel outline the issues as I have previously indicated. He concedes that the objective seriousness of these offences is such that the s 5 threshold has been crossed and no sentence other than full-time imprisonment is appropriate. Notwithstanding that he had a drug habit and needed funds to support that habit, he concedes that the offending was carried out with the intention of financial gain. It is also conceded that his was a hands on role in the supply of drugs which involved profit from his involvement in the offences, whether it was spent on his own drug use or not, is irrelevant.

16. I take account of the fact that the period involved was relatively short being some 20 days and it is a matter that should be taken into account. As I have indicated, questions of totality, accumulation and concurrency loom large in the sentencing process here.

17. I accept that it is appropriate to make a finding of special circumstances as I did for all practical purposes on the last occasion. I do so given his relative youth and the fact that the author of the pre-sentence report has suggested benefit from a significant period of supervision. I also take into account, as Mr Linegar submits, the matters set out in Dr Chew’s report.

18. No other aggravating factors were pointed to by the Crown or are apparent beyond that to which I have referred.

19. In terms of mitigating factors, I take account of his expression of remorse and his pleas of guilty and I think with his maturity and the time for reflection in custody, his prospects of rehabilitation are reasonable.

20. I cannot accept Mr Linegar’s submission that, in effect, time served would be a sufficient sentence. The inescapable conclusion is, that if I had sentenced Mr Hijazi for all of the matters in January this year, the head sentence and the non-parole period would have been greater than that imposed simply for the Commonwealth offence for which he had a very limited role, as was correctly put by Mr Stanton of counsel on his behalf on the last occasion.

21. The orders that I make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 3 years 10 months, to commence on 9 April 2019 and expiring on 8 February 2023.

3. I impose a non-parole period of 1 year, 10 months, expiring on 8 February 2021. The offender is eligible for release to parole on that date.

4. The indicative sentences are:

1. Count 1: 2 years, 6 months;

2. Count 2: 2 years;

3. Count 3: 2 years; NPP 1 year.

Section 166 – Drive motor vehicle during disqualification period

5. The offender is convicted of the offence; pursuant to s 10A of the Crimes (Sentencing Procedure) Act no further penalty is imposed.

6. The offender’s licence is disqualified for 12 months to be determined pursuant to s 206A of the Road Transport Act.

7. I find special circumstances.

8. I make a drug destruction order.

9. I order a transcript of the sentencing remarks.

Note – These ex-tempore remarks were revised without access to the court file

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Amendments

15 March 2019 - Anonymised unique personal identifier at [1]; re-number orders at [21].

Decision last updated: 15 March 2019