R v Hindi

[2023] NSWDC 359

District Court

New South Wales

Medium Neutral Citation:

R v Hindi [2023] NSWDC 359

Hearing dates:

1 September 2023

Decision date:

07 September 2023

Jurisdiction:

Criminal

Before:

Colefax SC DCJ

Decision:

For: (a) offence of take part in manufacture of prohibited drug, imprisonment for 3 years with a non-parole period of 2 years 3 months;

(b) offence of possess unauthorised pistol, imprisonment for 3 years 4 months with a non-parole period of 2 years 6 months; and

(c) offence of possess prohibited drug, fixed term of imprisonment of 1 month.

(d) - (a) to (c) to be served totally concurrent.

Catchwords:

CRIME - SENTENCE - knowingly take part in the manufacture of prohibited drug - possess unauthorised pistol - possess prohibited drug.

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), ss24(1) and 10(1); Firearms Act 1996 (NSW), s7(1).

Cases Cited:

Bugmy v The Queen [2013] 249 CLR 571.

Category:

Sentence

Parties:

Rex (Crown)

Mahmoud Hindi (Offender)

Representation:

Mr Paish (Crown Prosecutor)

Mr G. James KC (for the offender)

File Number(s):

2022/00116120

Publication restriction:

Nil

Judgment

1. Mahmoud Hindi, you appear for sentence today in relation to three offences.

2. First, knowingly take part in the manufacture of a prohibited drug (in your case, methylamphetamine) (sequence 12). This offence involves a contravention of s24(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is imprisonment for 15 years. There is no standard non-parole period.

3. Secondly, possessing an unauthorised pistol (sequence 11). This offence involves a contravention of s7(1) of the Firearms Act 1996 (NSW). The maximum penalty for that offence is imprisonment for 14 years. There is standard non-parole period of imprisonment for 3 years.

4. Thirdly, possessing a prohibited drug (in your case, heroin) (sequence 9). This offence involves a contravention of s10(1) of the Drug Misuse and Trafficking Act. The maximum penalty for this offence is imprisonment for 2 years or a 20 penalty unit fine.

5. The facts surrounding your offending are contained in an agreed statement of facts which, recast by me as to style, but not substance, can be summarised as follows.

6. As at April 2022, you and your siblings were the owners of a detached residential dwelling in the Sydney suburb of Casula. You normally lived in those premises with your wife and three young children; however, and in circumstances to which I shall return, for an approximately one month period commencing late March 2022, your wife and children were overseas.

7. On 22 April 2022, police obtained a search warrant in connection with those premises.

8. At about 5:00pm on 22 April 2022, the police executed that search warrant. No one was in the premises at the time the warrant was executed. The police, however, found a lot of equipment throughout the house consistent with those premises being used for the manufacture of methylamphetamine; and, in the living room, a clear freezer bag was found containing 76.4 grams of methylamphetamine (which, upon later analysis, was determined to have a purity of 78 per cent).

9. Whilst the police were conducting this search in those premises, you arrived, and the police then arrested you and subsequently charged you with the offences for which you are to be sentenced today.

10. Later on 22 April 2022, an out-of-hours crime scene warrant was granted and executed.

11. As a result of the execution of both of those warrants, the police found a very considerable quantity of equipment consistent with the manufacture of methylamphetamine effectively in every room of the house, including the loungeroom; the kitchen; three bedrooms; the main bathroom; the laundry; the toilet; a covered balcony; and the back shed.

12. The Crown case against you concerning your knowingly take part in the manufacture of that prohibited drug was not that you personally had used the various pieces of equipment in those rooms in that house to manufacture the drug – but, rather, that you had made the premises available to others knowing that they would use the premises for that purpose.

13. I cannot make any finding of fact adverse to your interests unless I am satisfied of that fact beyond reasonable doubt. Similarly, I cannot make a finding of fact in favour of your interest unless I am satisfied of that fact on the balance of probabilities.

14. Insofar as the clear freezer bag containing 76.4 grams of methylamphetamine (which was found in the living room) is concerned, the only rational inference in the circumstances is that that quantity of that drug was manufactured in the premises. I am unable to make any finding, beyond reasonable doubt, that any more of that drug was manufactured in those premises. The parties have chosen not to inform the Court of the value of that quantity of drug.

15. It is these facts which constitute sequence 12.

16. In the room described in the agreed statement of facts as “Bedroom 1”, the police found a 9mm Parabellum calibre Bul Limited (Israel) Model Baby Desert Eagle self-loading pistol, together with a quantity of ammunition for that pistol (including a detachable magazine containing cartridges), under a blanket on the bed in that room. As at the date of the search warrant, you were not and had not been the holder of a licence or permit in New South Wales authorising you to be in possession of, or to use, firearms, ammunition, prohibited firearms or prohibited weapons.

17. The agreed statement of facts does not expressly state whether that pistol was in working condition. Given the presence of the ammunition, however, the only rational inference in the circumstances is that it was in working condition.

18. The Crown case against you is not that you were the actual owner of the pistol or the ammunition – but, rather, that you had allowed those involved in the manufacture of methylamphetamine to store those items in your premises.

19. It is these facts which constitute sequence 11.

20. During their search of the room described as “Bedroom 3”, the police found a small resealable bag of heroin in the top drawer of the bedside table. The quantity of that drug was 3.38 grams; however, the purity is not disclosed. As I have understood the agreed facts, this drug was not directly connected with those that were manufacturing the methylamphetamine, but rather was your personal property.

21. It is these facts which constitute sequence 9.

22. For offences of their kind, sequence 12 is slightly below the mid-range; sequence 11 is at the mid-range; and sequence 9 is somewhere equidistant between the middle and the bottom of the range.

23. Each of the three offences is additionally aggravated because, at the time of those offences, you were subject to an intensive correction order which had been imposed on 10 March 2022 for two offences of driving whilst disqualified or while licence suspended.

24. You did not give sworn oral evidence in the sentence proceedings which were conducted on 1 September 2023. Rather, your additional subjective circumstances were advanced through a sentencing assessment report; a psychologist’s report; various medical records; a letter of apology from you; a letter from a firm of solicitors (not acting for you in these proceedings, but rather acting for you in other civil proceedings to which I shall make reference); and a character reference from one of your siblings.

25. You are now 36 years of age.

26. Your parents are both alive and living together, and you have four sisters and one brother.

27. According to the history you gave to the psychologist, your father was a chronic gambler and of violent disposition, at whose hands as a child you received regular beatings with belts, sticks “… and whatever he could get his hands on”. Notwithstanding that your sister (who is “a rehabilitation counsellor by occupation”) in her reference says nothing about the “difficult, troubled and traumatic upbringing” which you reported to the psychologist, nevertheless, by having regard to the manner in which the sentence hearing was conducted, I am satisfied, on the balance of probabilities, that your upbringing was dysfunctional within the meaning of Bugmy v The Queen [2013] 249 CLR 571.

28. In addition to the violence apparently inflicted on you in your home throughout your early years by your father, you were sexually assaulted at school when you were 14 years of age by another (older) student. The civil proceedings I earlier referred to arise out of that assault.

29. You began using illicit substances when you were 15 years old. You started with cannabis and ecstasy, and you quickly progressed to cocaine and heroin. You have abused illicit drugs ever since.

30. Not only had you been abusing illicit drugs, you have also a very serious problem with gabling.

31. Although you completed the School Certificate, you were expelled from high school after Year 11.

32. Because of your prolonged illicit substance use, you have effectively had limited employment since you left school.

33. With this background, your long criminal history, which commenced in 2007, is unsurprising. That history disentitles you to the leniency which, in appropriate circumstances, can be extended to a first offender. However, I do not regard that extensive history as being an additional aggravating factor in connection with the offences for which you are to be sentenced today.

34. With this background, it is also unsurprising that, as at March 2022, you were in serious financial difficulties and debt to those who supplied you with illegal drugs. You have chosen not to inform the Court of the amount of that debt but, according to the history you gave to both the author of the sentencing assessment report and the psychologist, those apparently unsavoury characters not only threatened your physical safety, but also that of your wife, children and parents. It was because of those threats that your wife and children were overseas as and from late March 2022, during which time you allowed your home to be used as a drug laboratory.

35. In this context, and contrary to what the psychologist in his report describes as your “substantial impairment of judgment”, I am satisfied, beyond reasonable doubt, that you made a conscious and considered decision to allow your home to be used as a drug laboratory for the purpose of eliminating the debt you owed to your suppliers.

36. I accept, however, that you suffer from post-traumatic stress disorder as a result of the traumas of your childhood.

37. In addition to your long-term issues with illicit drugs, you also have a number of serious medical issues which are set out in the hospital records which have included numerous overdoses, losses of consciousness and complications with heart disease. There is, however, no evidence that those conditions cannot be adequately treated whilst in custody.

38. Because of your mental health issues, general deterrence is of reduced significance, but it is still of some significance. Specific deterrence, however, is fully engaged – as is the need to encourage your rehabilitation.

39. In relation to that latter consideration, I note that you have been, in one way or another, supervised on very many occasions over an extended period of time, but you are yet to meaningfully address your illicit drug use problems. In this context, there is no evidence that you attended upon the psychologist named in the additional condition in the ICO made 10 March 2022 (the same psychologist who provided the “Expert’s” report for you in these sentence proceedings). And, in this context, I have noted the five “punishment details” in the Department of Corrective Services document at Tab 6 of Exhibit A. One of those “details” is particularly concerning. On 7 August 2022, you were visited in gaol by a group of people, which included your mother, the sister who provided the reference for you in these proceedings, and two other people – one of whom was your wife. During this visit, your wife covertly provided you with a number of balloons which you then secreted in your pants. This was detected by the Correctional Officers. On later examination, the balloons contained “49 orange-coloured red strips that appeared to [be] buprenorphine” (see Tab 7 of Exhibit A). This conduct by you and the otherwise unexplained action by your wife are hardly positive factors in your rehabilitation prospects.

40. As I have already noted, you did not give sworn evidence in the sentence hearing. By having regard to that fact and your extensive criminal history, I have approached with scepticism and caution your second hand expressions of remorse to the psychologist and the author of the Sentencing Assessment Report. I have similarly approached the unsworn expression of remorse in your letter to the Court in Exhibit 1 in which, amongst other things, you wrote “I know that abiding by the law is very important and I would never intentionally engage in harmful activities” - statements which are inconsistent with your extensive criminal history. In the result, I am not satisfied on the balance of probabilities that you are genuinely remorseful – as opposed to being sorry for the position you find yourself in.

41. In all these circumstances, I regard your prospects of rehabilitation as being, at best, guarded.

42. No sentence other than a sentence of full-time imprisonment for sequences 12 or 11 is appropriate. If I were sentencing you only for sequence 9, the section 5 threshold may not have been crossed, but, by having regard to all of the surrounding circumstances, that threshold is crossed.

43. You entered a plea of guilty at the earliest opportunity and are, therefore, entitled to a discount of 25 per cent in respect of each offence.

44. Following your arrest for these offences, you served the balance of the intensive correction order in custody and that sentence expired on 9 December 2022 (see Tab 10 of Exhibit A). Since 10 December 2022, you have been in custody solely referrable to these three offences and that will be the start date of the relevant sentence. In coming to that conclusion, I have taken totality into account.

45. As a deliberate act of leniency, the three sentences will be served totally concurrent. In this regard, sequences 12 and 11 were, in effect, one course of conduct.

46. However, I decline to make a finding of special circumstances in relation to those sequences. You are not a young offender. This is not your first time in prison. Your prospects of rehabilitation would not be enhanced by a longer period on parole.

47. For sequence 12, except for the discount of 25 per cent, I would have sentenced you to a term of imprisonment of 4 years. After the discount, the term of imprisonment is 3 years.

48. I fix a non-parole period of 2 years 3 months to date from 10 December 2022 and which will expire on 9 March 2025.

49. I fix a balance of 9 months to date from 10 March 2025 and which will expire on 9 December 2025.

50. In relation to sequence 11, except for the discount of 25 per cent, I would have sentenced you to a term of imprisonment of 4 years 6 months. After the discount, the term of imprisonment is 3 years 4 months.

51. I fix a non-parole period of 2 years 6 months to date from 10 December 2022 and which will expire on 9 June 2025.

52. I fix a balance of 10 months to date from 10 June 2025 and which will expire on 9 April 2026.

53. In relation to sequence 9, except for the discount of 25 per cent, I would have sentenced you to a term of imprisonment of 2 months. After the discount, the term of imprisonment is a fixed term of imprisonment of 1 month to date from 10 December 2022 and which expired on 9 January 2023.

Decision last updated: 07 September 2023