R v Hussanein

[2020] NSWDC 468

District Court

New South Wales

Medium Neutral Citation:

R v Hussanein [2020] NSWDC 468

Hearing dates:

20 July 2020
12 August 2020
20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Criminal

Before:

Adams QC ADCJ

Decision:

Sentenced to a term of imprisonment of 4 years 3 months; non-parole period 2 years 3 months imprisonment.

Catchwords:

CRIME – sentence – supply prohibited drug on ongoing basis – methylamphetamine – cocaine – deal with property proceeds of crime – lengthy criminal record – onerous incarceration – traumatic events in early life – deportation not relevant – concurrency of sentence – totality of criminality.

Legislation Cited:

Crimes Act 1900, s 193C

Crimes (Sentencing Procedure) Act 1999, s 32

Drug Misuse and Trafficking Act 1985, s 25A(1)

Cases Cited:

Daher v R [2018] NSWCCA 287

Category:

Sentence

Parties:

Regina (Crown)
Mohammed Hussanein (offender)

Representation:

Solicitors:
Ms Soo Choi
Ms Jeannette Fahd

File Number(s):

2016/00242229
2016/00083301

Publication restriction:

Nil

Judgment

Introduction

1. Mohammad Hussanein is before the Court for sentence on a charge that, between 28 February 2016 and 16 March 2016, at Greenfield Park in the State of New South Wales, he did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug, namely methylamphetamine, for financial or material reward. This is an offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum term of imprisonment of 20 years and/or 3500 penalty units. There is no standard non-parole period.

2. The offender asks the court to take into account, under s 32 of the Crimes (Sentencing Procedure) Act 1999, an offence of dealing with property suspected of being the proceeds of crime ($13,700) under s 193C of the Crimes Act 1900. The maximum penalty for this offence is two years and/or 50 penalty points. It is a summary offence.

Facts

3. In January 2016 police initiated a Strike Force to investigate the supply of methylamphetamine by the offender using a mobile telephone service registered to a fictitious identity. On 29 February 2016 intercepts of this service disclosed that the offender was using it to coordinate a drug supply network, which included meeting customers at his home or an arranged location and, on occasion, employing “runners” to meet customers on his behalf to deliver the methylamphetamine and collect the price. He also used the service to arrange the collection of debts owed to him by customers. Between 29 February 2016 and 15 March 2016 the offender supplied approximately 112.25g of methylamphetamine over some 36 separate transactions. A co-offender, Daniel Gaibisso, was one of the offender’s runners.

4. The particular supplies of methylamphetamine (plus one supply of cocaine) comprising the substantive offence were as follows –

• 29 February 2016: 0.5g for $150, 2g, 0.5g for $200

• 1-2 March 2016: 1g for $250, 7g for $1300, 1.75g for $400, 0.5g for $200, 0.5g for $200, 1g

• 3 March 2016: 1.75g

• 4 March 2016: 12g for $2950, 3.5g of cocaine for $1000, 0.5g, 21g, 0.2g for $100, 1.75g (using a runner), 1.75g for $450 (using Gaibisso), 2g, 0.1g for $40

• 5 March 2016: 3.5g

• 6 March 2016: 28.3g and 3.5g for $4500, 0.1g for $40

• 7 March 2016: 1.7g

• 8 March 2016: 1g, 1.75g

• 9 March 2016: 0.5g for $200, 0.2g for $100

• 11 March 2016: 1g, 0.3g for $150 (using Gaibisso), 1g for $300

• 12 March 2016: 1g, 1.75g (using a runner), 0.05g for $20, 1g

• 14 March 2016: 1.75g

• 15 March 2016: 1.75g for $250 (using Gaibisso).

5. In all, the quantity of methylamphetamine supplied was 112.25g for a total sum of $13,000. For methylamphetamine, the traffickable quantity is 3g, the indictable quantity is 5g and the commercial quantity is 250g.

The Form 1 Offence

6. In the afternoon of 16 March 2016, police executed a search warrant at the premises occupied by the offender and his family. During a search they located $7100 in notes in a ceramic teapot on top of a tall display cabinet in the lounge room. The offender told police that the money belonged to his mother, who confirmed this was the case. In the accused’s bedroom, between the bed and the wall, police found a white envelope containing $6500 in notes, which the accused said was part of a withdrawal of $12,000 from his Westpac bank account to pay for legal fees. The bank was contacted over the telephone and confirmed the withdrawal. The offender told police that, if they checked his account, they would see the money had been there for about 5 or 6 years as it was his savings which was “building up”. He was going to pay his solicitor that day.

7. It is obvious that, even though property might be reasonably suspected of having been unlawfully obtained, proof that it was in fact lawfully obtained must be a good defence. However, it seems to follow, from the admissions of the offender in the Form 1, that the assertions about its ownership and derivation should be disregarded and I intend to do so. The prosecution conceded that it was probable that the cash resulted from the transactions constituting the offence.

Time in custody

8. The offender was arrested and refused bail for this offence on 16 March 2016, then granted bail on 27 July 2016 with conditions that were subsequently varied. Released on 15 August 2016, he had been in custody for 5 months (153 days). The Crown accepts that this period of custody is solely referable to the current matter. As will be seen from the criminal record of the offender set out below, he had committed a number of other offences for which he was refused bail on 11 May 2018. He was sentenced for those matters on 1 June 2018 to a term of imprisonment that was backdated to commence on 28 January 2018. Thus, the period of custody from 11 May 2018 to 14 May 2019 (one year and 4 days or 349 days) was entirely referable to the offender’s other offences. The period of custody from 14 May 2019 was referable both to the sentence for those offences and the current matter. The offender’s bail conditions were, not surprisingly, strict and he was subject to a curfew. It is submitted that, because of the condition requiring him to be accompanied by his mother or wife when he left the house, he was in effect under house arrest. Given his mother’s health issues and his wife’s work, there is something in this argument but, considered with the other relevant material, I do not think this justifies more than a slight allowance, which I have taken into account.

9. The offender entered his plea of guilty to the present charge on 15 May 2019, which was the third day of trial but it had merely been in the list with no judge allocated and no witnesses having been called. Some allowance, though slight, for the utilitarian value of this plea must be made. I deal with this matter at the end of these reasons.

Criminal record

10. The offender, aged just over 31 years, has a number of criminal convictions, starting in April 2010 when he was convicted in the Children’s Court of one offence of robbery in company (with another being taken into account on a Form 1) for which a Community Service Order of 250 hours was imposed. On 12 February 2010 he was convicted in the District Court of destruction of property and reckless wounding and sentenced to an effective term of periodic detention of one year and 6 months with a six-month non-parole period. On 1 June 2018 he was convicted in the District Court of supplying a prohibited drug greater than an indictable quantity (not cannabis), the offence having occurred on 23 December 2011, together with offences of aggravated assault, discharge a firearm intending to cause grievous bodily harm, and taking or detaining in company to obtain an advantage, occasioning actual bodily harm, all of which occurred, as it appears, on the same occasion on 18 January 2012. An aggregate sentence of 7 years and 9 months commencing on 28 January 2018, with a non-parole period of 5 years and 3 months, expiring on 27 April 2023, was imposed. A number of Form 1 matters were taken into account. (The offender’s record also contains several inconsequential traffic convictions).

Subjective features

11. The offender’s affidavit was read, in which he gives an account of his personal history, which contains tragic elements. He was born in Jordan in July 1990. When he was about 6 years old his father and older brother died in a house fire caused by an electrical fault. The offender had returned from school to find his home burned to the ground. When he was taken to the hospital by his grandmother, his father and brother had already been pronounced dead and his mother was in a critical condition with very severe burns and spent a couple of months in hospital to recover but this was never complete. Shortly after this, his father’s family, based in Palestine, kidnapped him. He said, and I accept, that this was a terrifying experience. His uncle beat him daily, made him work at the fruit market and clean the house. His mother managed to get him back and they fled Jordan soon afterwards in September 1999 with his baby brother who had been born in June. His mother paid a people smuggler all her savings and jewellery to get passage to Australia on a small wooden boat along with many others. The boat was intercepted and the family taken to Christmas Island before being moved to a caravan in Derby, Western Australia. They spent 4 months there, where the offender began learning English. They then moved to Port Hedland where his mother worked for some time although became ill and often needed to go to hospital. The offender cared for his younger brother. In mid-2000 the family moved to the Villawood Detention Centre for about 3 to 4 months before moving to the western suburbs of Sydney. The offender went to several high schools.

12. The offender’s mother has suffered serious continuing health complications as a result of the injuries received during the house fire as well as several strokes and needing a heart valve replacement. The offender has always taken care of her. He was in year 10 when he started to help his mother out in her small shop business, then halfway through year 11 left school to work there full-time.

13. The offender says that he had a difficult time at school because of his language problem but this improved when he moved to schools where there were many other boys of his background. He says this is when he started to associate with the wrong crowd.

14. The offender married in February 2016 and has two children, one born in July 2017 and the other in June 2018. The offender said that he believed he changed as a person when his first child was born. His priorities had changed. His bail conditions at the time in effect kept him in the house and he became his wife’s primary carer, as she went back to work full-time. I accept that the birth of a child can have significant emotional and maturing effects on both mother and father. The offender gave persuasive evidence of how much his children mean to him and the significance of this in changing his attitude towards both his criminal associates and his criminal conduct.

15. For reasons which do not need to be detailed the offender and his family have been targeted by a criminal gang. This has included a drive-by shooting in July 2012 of his home where he lived with his mother and his younger brother. Two further drive-by shootings occurred in mid-2013 and he was shot at whilst in his car in 2015. In March 2016 he was the victim of another shooting. As the events unfolded, he became aware of the attackers’ identities. He reported what happened to the police. Whilst he was in custody another drive-by shooting occurred at his house in July 2016. There was also a physical attack by someone with a machete at the front of his house.

16. The offender says that his time in custody has been extremely stressful because he has become the target of a number of inmates. (He also makes a number of allegations against Corrective Officers but in terms that do not permit of fair assessment and I therefore have not taken them into account.) He was assaulted whilst in custody in December 2018, which required hospitalisation. In July 2019 he was seriously assaulted by 6 inmates, again requiring hospitalisation. In September 2019 he was stabbed a number of times and was hospitalised suffering from broken ribs, a broken nose and 9 stab wounds. He fears that, unfairly, he has been marked as a police informant.

17. He has attempted to make the best of his time whilst in custody and has participated in the Positive Lifestyle Changes program and spends his time in positive activities. He suffers from insomnia and has lost a lot of weight since he has been in prison stop he says that he is anxious, depressed and feeling very alone. He is worried about his family who have not been able to visit because of the pandemic although he can communicate with them briefly by AVL and by telephone.

18. The offender admits that he has “done the wrong thing” and that his bad decisions have affected everyone, including his family who are subject to risks because of his involvement in the activity for which he is being sentenced. He cites (reasonably, I think) the fact that he was prepared to give evidence against his attackers was a decision made to demonstrate his remorse and an attempt to be a role model for his children. His likely deportation undoes what his mother did for him to bring him to Australia.

19. An affidavit of the offender’s mother was also read. It confirms, with some additional details, his own account. Not surprisingly, she is extremely distressed by the likelihood of her son’s deportation when he has served his sentence.

20. The affidavit of the offender’s wife was read. She confirms the close relationship between their children and to the offender and the attacks on their family, and she suffers from the distress that many wives and other family members undergo when their loved one is incarcerated. However, this is a consequence of the offender’s own conduct and, in the present case, though severe and deserving of sympathy, is not such as to be placed in the scales when considering the sentence that should be imposed.

21. The offender relies on a report from Mr Sam Borenstein, a clinical psychologist, who interviewed and assessed the offender on 28 January 2020. Mr Borenstein briefly relates the offender’s personal history, which I have set out above. He said that the offender was moderately to severely depressed with a flat and restricted affect. There was no suggestion of serious psychiatric disorder and his thoughts for content and process are normal. Nor was there any evidence of perceptual disturbance. The offender presents as cognitively intact.

22. Mr Borenstein’s opinion, which I accept, is that the repeated and significant traumatic events in the offender’s life have impacted negatively on his psychological and emotional development and he notes that he is currently experiencing re-traumatisation in the present context. He considers that the offender suffers with severe Recurrent Depression and PTSD. His being held in segregation, in which he spends 23 hours of the day in his cell with only one hour for exercise, makes his time in prison more onerous and stressful and compounds his pre-existing psychological burden.

23. The offender expressed feelings of guilt and remorse, including the impact of his behaviour on his family as well as the broader community and indicated that he had already cut all ties from his past associates.

24. Mr Borenstein thought that the offender would require ongoing psychological treatment, given his propensity towards recurrent and severe depressive episodes and untreated PTSD. Although he has requested such treatment in prison, this has not been forthcoming. Mr Borenstein noted, and I accept, that the psychiatric and psychological treatment which the offender needs is both intensive and long-term but unfortunately cannot be provided in the present context due to lack of resources.

25. Overall, I think that the balance of the evidence establishes that the offender is remorseful for his conduct. Although his regard for and care of his mother and his wife did not lead to his avoiding participation in serious criminal activity which, he must have known, would result in lengthy imprisonment were he apprehended, his attitude has changed as a result of the added sense of responsibility for his young children. Whether this change will be effective when he is released is necessarily uncertain and some scepticism must remain about the influence his good intentions will actually have. Nevertheless, there are grounds for thinking that rehabilitation is real possibility, with appropriate support.

26. The prosecution brought to my attention an element of manipulation of the prison authorities in the history of schooling and employment he gave, which (despite his explanations of misunderstanding given in evidence) overstates his true situation. However, this does not significantly qualify my view of his remorse for his offence. It is inconsequential.

Co-offender

27. The offender’s co-offender, Daniel Gaibisso, was a runner used from time to time by the offender to deliver drugs and collect the proceeds. The following transactions were all by way of arrangement with the offender. On 4 March 2016 Gaibisso supplied 1.75g of methylamphetamine for $450, on 11 March 2016, 0.3g of methylamphetamine for $150, on 12 March 2016 1g of methylamphetamine, part of a total supply of 3.5g, for $850 and, on 15 March 2016, 1.75g of methylamphetamine for $250. Gaibisso was arrested on 1 September 2016 and participated in a recorded interview with police in which he made a number of admissions, including identifying the offender as one of his suppliers. The total supply was 4.8g of methylamphetamine. He was sentenced in the Local Court to 12 months imprisonment with a non-parole period of 2 months for 4 charges of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 each carrying a maximum term of imprisonment of 15 years.

28. Although there are substantial and obvious differences between the situations of the offender and Gaibisso, the principles of parity still apply to ensure that, as between them, there should not be engendered in the offender a justifiable sense of grievance and the appearance of injustice. Most significantly, Gaibisso was sentenced only in respect of 4 occasions of supply, whilst the offender’s offence covers 36 separate transactions. Furthermore, he acted on the instructions of the offender (and others), who sourced the drugs. He was much the same age as the offender. His criminal record shows a number of offences of supplying between a small and an indictable quantity of drugs, for which he was convicted and received concurrent twelve month sentences, which were suspended but then called up when his later offences were committed. There were several other relatively trivial offences. This record does not approach that of the offender in terms of seriousness. The Court has not been provided with the subjective features relevant to the co-offender. I note, however, that experienced counsel appearing for the offender did not suggest that there was anything in those features or the criminal record which was helpful to the offender.

Assessment

29. The offence for which the offender is to be sentenced is a serious one, as indicated by the maximum term of 20 years imprisonment that may be imposed. Of particular importance are the requirements of general and specific deterrence and protection of the community. Quite apart from the damage to the community arising from the supply of drugs and the criminal subculture which it engenders, to which the offender’s own account bears witness, no society can permit people to profit from breaking the law. The particular characteristic which marks out offences under s 25A of the Act is drug supplying as a business, as distinct from individual, perhaps happenstance, transactions. In this case, there is the additional factor that the offender had previously committed a drug supply offence and was on conditional liberty for that offence as well as other very serious offences at the date of his instant offending. (I note, however, that the offender’s previous convictions do not operate to increase the objective seriousness of his present offence, although they remove any entitlement to leniency).

29. It must be borne in mind that the maximum term available comprehends a wide range of criminal culpability and quantities of drug and levels of trading far greater than those we see in the present case. Even so, the offender’s trafficking was not insignificant and likely would have continued had not the police brought it to an end. In no sense could it be regarded as an aberration in the conduct of someone otherwise of good character. The total amount of methylamphetamine sold was about 20 times the indictable quantity and something less than half of the commercial quantity for that drug. However, the offender was, essentially, a street level supplier, using runners for only six of the transactions. Although the prosecution points to his use of code words for the drugs, their quantity and price, in reality this was simply drug trading patois, demonstrating experience undoubtedly but not sophistication. The “code” would have been a completely useless disguise. I note that the prosecution does not rely on s 21A(2) or s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 on the basis that the level of planning and financial gain involved here does not exceed what is inherently involved in the elements of the offence.

30. To my mind, the objective seriousness of the offending is towards the lower end of the culpability comprehended by the section. So far as the Form 1 offence is concerned, it seems likely that the cash reflected the transactions involved in the commission of the offence and, therefore, its possession does not add, or significantly add, to the offender’s criminality.

31. Of course, there is no direct link between the offender’s criminal conduct and the traumatic events of his early teenage years and the difficulties that he had in adjusting when his family finally came to Australia. Many other persons have suffered in that way, and worse, but do not commit serious crimes. At the same time, it is reasonable to consider that the unfortunate, indeed, tragic, events that affected his early years, limited his ability to objectively assess the seriousness of his actions and take positive steps to avoid criminality. This is a factor which cannot sensibly be measured but which, I think, needs to be reflected in the sentence ultimately imposed.

32. On the whole, I am satisfied that for various reasons largely outside the offender’s control, he has so far suffered in prison to a significantly greater degree than the ordinary run of prisoner and this situation is likely to continue, this not only from the violence that has been inflicted on him but also from the psychological issues identified by Mr Borenstein. Accordingly, I have ameliorated somewhat the sentence that otherwise would have been imposed.

33. As previously mentioned, I accept that the offender has a powerful emotional attachment to his very young children and, also, that this has provided him with a powerful motive for rehabilitation. It would be desirable for the purpose of assisting his rehabilitation that the statutory ratio specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 should be varied to provide for a longer period of supervision in the community than would otherwise be the case.

34. The likelihood that the offender will be deported when he completes his prison time, though I accept is distressing to him, is not a matter that can be taken into account to ameliorate an otherwise appropriate sentence.

35. Having regard to the principles of totality, there must be a degree of concurrency between the sentence to be imposed and those which he is already serving.

36. In Daher v R [2018] NSWCCA 287, Payne JA (with whom Simpson AJA and Johnson J agreed) helpfully (if I may respectfully say so) set out the following at [72] –

The JIRS statistics also provide some very limited guidance. The sentences imposed for s 25A offences, principal offences only, show a range of sentences between 18 months and 7 years with the majority being sentences of between 2 and 4 years. Non-parole periods for s 25A offences, principal offences only, ranged between 6 months and 54 months with the clear majority being clustered between 12 and 30 months. The sentences imposed for s 25 offences, principal offences only, show a range of sentences between 6 months and 6 years with the majority being sentences of between 18 months and 3 years. Non-parole periods for s 25 offences, principal offences only, ranged between 6 months and 48 months with the clear majority being clustered between 12 and 2 years. I am conscious that these figures are a very blunt tool in a case like this, but they also provide some very limited guidance.

Sentence

38. A number of possible approaches are available to account for the period the offender has already spent in custody which was, in respect of the period from 16 March 2016 to 15 August 2016 solely referable to the instant offence and, from 14 May 2019, for something over 1 year and two months, but this period was also referable to his other offences. His other sentences commenced on 28 January 2018. It is clear, a significant accumulation is required. Some of the “joint” period (as it were) should be taken into account for the purpose of calculating the commencement period of the present sentence, though I do not think a mathematical calculation reflects all the relevant factors. Ultimately, the first period of 153 days must be taken into account as a discrete deduction but, as to the “joint” period, this is largely adjusted for by providing concurrency which will reflect the totality of the offender’s criminality.

39. The offender’s plea of guilty should be reflected by a 5 percent discount. The sentence I would have imposed but for the discount would have been 4 years and 6 months imprisonment. Accordingly, the offender is sentenced to a term of 4 years and 3 months imprisonment (rounded down) with a non-parole period of 2 years and 3 months, commencing on 1 June 2022. The non-parole period will expire on 31 August 2024.

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Decision last updated: 21 August 2020