R v Hussein

[2021] NSWDC 835

District Court

New South Wales

Medium Neutral Citation:

R v Hussein [2021] NSWDC 835

Hearing dates:

19 March 2021

Decision date:

26 March 2021

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted. Form 1 matter taken into account

Special circumstances found – to re-establish relationship b/w NPP & parole periods

Sentenced to:

Indicative sentences of imprisonment:

SEQ 1 + FORM 1 (SEQ 18): 3 years

SEQ 2: 6 months

SEQ 8: 18 months

SEQ 15: 18 months

SEQ 23: 9 months

s166 (related matters)

SEQ 5: 1 year

SEQ 13: 1 year

SEQ 19: 6 months

SEQ 22: 6 months

Aggregate sentence of imprisonment:

Sentenced to a term of imprisonment for 5 years and 6 months with a NPP of 4 years to commence on 12.6.2020 and to expire on 11.6.2024, upon which date he will be eligible for parole, and a balance of term of 1 year and 6 months to commence on 12.6.2024 and to expire on 11.12.2025.

Forfeiture orders made as per orders handed up in court today, placed on the court file

Catchwords:

CRIMINAL – Sentence – supply prohibited drug on ongoing basis, methylamphetamine – supply prohibited drug, cocaine – police pursuit - break & enter, commit serious indictable offence, supply prohibited drug – deal with property suspected of being proceeds of crime – Form 1 & s166 matters – subjective matters – aggregate sentence

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes(Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act1985

Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Callaghan v R [2006] NSWCCA 58.

R v Fernando [2002] NSWCCA 28

R v Huynh [2003] NSWCCA 239

R v McVittie [2002] NSWCCA 344

R v Moffatt (1990) 20 NSWLR 114

Category:

Sentence

Parties:

Regina
Hussein, Ahmed

Representation:

Counsel:
Mr E James - Defence

Solicitors:
Mr J Rafeeq ODPP
Ms I Viney ODPP
Mr F Kak Abbas Jacobs Lawyers

File Number(s):

2019/00392327

Judgment

1. HIS HONOUR: Ahmed Hussein appears for sentence in respect of a number of offences:

Sequence 1, supply drugs on an ongoing basis, methylamphetamine, contrary to s 25A(1) of the Drug Misuse and Trafficking Act1985. The maximum penalty provided is 20 years' imprisonment and/or a $385,000 fine.

Sequence 2, supply a prohibited drug, being 0.54 grams of cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty is 15 years' imprisonment and/or a $242,000 fine.

Sequence 8, police pursuit, being the first such offence, contrary to s 51B(1) of the Crimes Act 1900. The maximum penalty is three years' imprisonment.

Sequence 15 is break and enter, commit serious indictable offence, supply prohibited drug contrary to s 112(1)(a) of the Crimes Act. The maximum penalty is 14 years' imprisonment.

Sequence 23, deal with property suspected of being proceeds of crime contrary to s 193C(2) of the Crimes Act. The maximum penalty is three years' imprisonment.

2. When being dealt with in respect of the first of those offences, that is Sequence 1, supply drugs on an ongoing basis, he asks the Court to take into account a further offence contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. That offence is Sequence 18, resist police officer in the execution of duty contrary to s 58 of the Crimes Act 1900. The maximum penalty for such an offence in this Court is five years, although it is limited to two years in the Local Court.

3. In addition, there are four offences contained on a s 166 certificate as related offences to which he has also indicated pleas of guilty. They are:

4. Sequence 5, secrete items inside a place of detention contrary to s 253G(2)(e) of the Crimes (Administration of Sentences) Act 1999. The maximum penalty is two years' imprisonment and/or 50 penalty units.

5. Sequence 13 is again an offence of the same nature contrary to the same section with the same penalty.

6. Sequence 19, fail to disclose identity of driver contrary to s 15(2) of the Law Enforcement (Powers and Responsibilities) Act 2002, and the maximum penalty is 12 months' imprisonment and/or 50 penalty units.

7. Sequence 22, possess prohibited drug being 0.11 grams buprenorphine contrary to 10(1) of the Drugs Misuse and Trafficking Act. The maximum penalty in respect of that offence is two years' imprisonment and/or 20 penalty units.

8. The offender was committed for sentence on 2 September 2020 from the Burwood Local Court and is entitled in the circumstances to a discount of 25% for the utility of the plea alone in respect of each of the offences. The facts have been agreed and are as follows.

1. In September 2019 Strike Force Mountevan was created to investigate the supply of prohibited drugs. During the period the offender was subject to electronic and physical surveillance and was detected coordinating the supplies of prohibited drugs.

Sequence 2 - supply a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act - 0.54 grams cocaine.

Sequence 5 - unlawfully secrete thing for inmate to receive contrary to s 253G(2)(e) of the Crimes (Administration of Sentences) Act 1999 - s 166 related offence.

2. On Sunday 29 September 2019 police intercepted a phone call between the offender and an inmate who utilised the phone number 0431 570 412 at the John Morony Correctional Centre. In this conversation it is clear that the offender was driving to the correctional centre to supply prohibited drugs, which were to be collected by an inmate at a later time.

3. In the conversation the inmate asked, "They are all in one bag, yeah?” The offender replied, "Yeah, in one bag". The inmate said, "All right, so my bag is separate?” The offender replied, "Yeah, your bag is separate from the other bloke's bags, separate. One's got 19 balloons and your one's got seven balloons." The inmate replied, "Yeah, beautiful.”

4. At 11.16pm the offender contacted the inmate and advised him that he was currently "on Second Street". The offender then said "I'm about to jump out of the car and there's a sign. You know where the fence is? The sign where it says Bird Farm." The offender then said, "This time I'm going to jump it because I don't want to throw it over, bro". The offender then entered the grounds of John Morony Correctional Centre and placed the bag at an unknown location.

5. On Monday, 30 September 2019, that is the following day, police attended the correctional centre and located a black bag at the base of a tree which was the location attended by the offender the night before. The bag was examined and found to contain the following items:

• 0.5 grams of cocaine and a small resealable bag.

• 11 vials of a clear liquid.

• One vial of a white liquid.

• Nine needles and six syringes.

• 22 open packages of brown vegetable matter and Tally-Ho papers, being tobacco rolling paper.

• One black electronic media player and one 64 gigabyte SD card.

• One paper receipt.

• Plastic bags.

9. [I note there is nothing referred to in the facts as to what the receipt showed, and I have been informed that the brown vegetable matter was apparently tobacco. As to the 11 vials of clear liquid and one vial of white liquid, I have been informed from the bar table that these were analysed to see whether they were prohibited drugs and not found to be. As to what they were in fact, there is no evidence, as apparently analysis did not go beyond endeavouring to ascertain whether they were prohibited drugs. Considering the circumstances in which they were delivered by the offender to the grounds of the John Morony Correctional Centre, they are presumably substances that are not readily available within the prison system. I will not speculate about what they may have been, other than to that extent they were clearly substances that were desired by inmates and not available through the prison system. However, they are not the subject of a separate charge.

10. The purpose of the nine needles and six syringes is obvious. The tobacco and rolling papers are also obvious in circumstances where tobacco and smoking within the prison system is prohibited. As to the plastic bags, there is no indication as to how many or what size, merely the reference "plastic bags".]

6. The items found were removed and a water bottle was placed inside the black bag. The black bag was then returned to the base of the tree so that on Monday, 7 October 2019 at about 4pm the inmate again contacted the offender. The offender said, "They set you up, straight up. Whoever is there is playing games with ya." The inmate responded, "Yeah". The offender replied:

“W’allah whoever is there is playing games with ya coz something went wrong. I went and jumped over, yeah? I went to the same place I put it, the ag-bay" (pig Latin for bag) "was there and then I grabbed the ag-bay and then I felt like something like a bottle in there and I still grabbed it anyways and I put it in my bag and chucked it over the fence and I jumped over the fence again, you know what I mean?".

7. The inmate replied, "Yeah". The offender said, "And then I'm in the car driving off. I went and I feel it, I'm curious, I want to know what's in it, you know what I mean?". The inmate replied, "Yeah", and the offender said, "It was a bottle of water bro."

11. [The agreed facts to this point, as to the offender supplying a prohibited drug and other materials by way of trespassing on the grounds of the correctional centre and leaving materials to be collected by inmates or other persons assisting - the initial conversation at para 3 does not clearly relate to the goods that were referred to as being delivered or secreted on 30 September 2019 and what was found by police.]

Sequence 8 - police pursuit, not stop, and drive in a manner dangerous, contrary to s 51B(1) of the Crimes Act.

8. On Monday, 18 November 2019 at about 3.15am police were conducting a patrol while travelling on Pyrmont Street, approaching the intersection of Pyrmont Bridge Road, when they observed a black Holden Barina BMG 88U disobey a red light. They pursued the vehicle and activated warning lights and sirens. The vehicle began to slow down and bear to the left side of the road. However, due to insufficient space to stop police waved and signalled the driver to turn down nearby Murray Street to stop at a safer location. The vehicle began to do as police had signalled but then conducted a U-turn over double white lines. Police continued to pursue the vehicle with lights and sirens still active.

9. Police had to increase speed to follow the vehicle and a police pursuit commenced with police advising VKG of the pursuit. The offender then turned right onto Quarry Street and right onto Harris Street, contrary to another red light signal. The vehicle then drove on the wrong side of the road. At this point police terminated the pursuit due to safety reasons. The interaction on Harris Street was captured by CCTV footage.

10. A short time later police were contacted by the International Convention Centre security at Circular Quay to advise that a vehicle had entered a loading dock. This entry was captured on CCTV and depicted the offender exiting from the vehicle and abandoning the car. The offender was then seen to leave the vehicle and hide what was suspected to be illicit drugs he was carrying at the time of the police pursuit. CCTV also depicted the offender to be in the company of two females at the time, before leaving the International Convention Centre.

11. Later on the same day, at 12.37pm, the offender communicated with an unknown person using a mobile number ending 074 where he was discussing the police pursuit and indicating to the unknown male that he, the offender, would need to go back and "pick up his batch".

12. The offender also had a conversation where he made reference to the police pursuit where he said:

“I'm looking at a minimum three years and that's only if they don't find the stuff, and I'll cop 18 months for taking off on them. So I waited for them to come out of the car. I'm going to drive dangerously as once you drive dangerously they have to pull it off you, you know what I mean? I went onto oncoming side of the traffic and then I went onto the footpath. I found this little loading dock" and then referred to something in a foreign language "drove it up there".

13. In a further call on 30 November 2019 at about 9.49pm the offender said, "I nearly went back to hubbas" (foreign language for gaol)." The unidentified person said, "You what?" and the offender said "I nearly went back to hubbas". The unidentified person said, "No man, what the fuck did you do?". The offender said "I'm a dumb cunt bro", "I got two schnockers in arkay (car) an ounce of pot. I've got $6,000 cash on me. I've got no licence and I'm driving and I'm fuckin' on three years parole, yeah.”

Sequence 13 - unlawfully secrete thing for inmate to receive contrary to s 253G(2)(e) of the Crimes (Administration of Sentences) Act 1999 - 166 related.

Sequence 15 - break and enter and commit serious indictable offence contrary to s 112(1)(a) of the Crimes Act.

14. On 28 November 2019, the offender attended the John Morony Correctional Centre. He entered the facility when it was dark and was able to open a door to the linen area which was apparently locked but not closed. The offender entered the linen area and dropped items he had with him into a bin.

15. At 12.02 the next day, 29 November 2019, a call was intercepted between him and an identified person where the offender stated,

"In the second bin, all the linen, not there. There's four bins there. It's in the second bin more towards the linen."

The unidentified person responded, "When you opened the latch, yeah, you walked in?”

The offender, "I opened the latch, yeah. I seen the linen right in front of me."

Unidentified person, "Yeah, but did you walk down to the end?" Offender, "I walked down to the end. I chucked a left…rubbish bin…you know those green bins. It's in the second bin."

The offender: “I told the boys. I think they said in the tub and they go no, no, chuck it in the bin. Yeah, and all right, I grabbed the linen, you know the pink linen, so I grabbed the pink linen and chucked the stuff in there and I put the linen in front of them."

Unidentified person, "So you opened the latch, yeah?".

Offender: “You go down to the end of the last laundry, chuck a left, then you walk a bit more, say not even 10 metres, then there's four bins right next to the office. Not an office, cabin thing. It's right there, it's in the second bin. I think there were two bins and two bins small. I think it's in the small bins. So there's two large and two small bins.”

Unidentified person, "It's in the one of the small bins?”

Offender, "Yeah, it's not much smaller than the big bin but smaller." Unidentified person, "It's covered, at least it's covered."

Offender,” I put the linen in the bin…there were heaps of linen tubs.”

16. Using the information provided by the offender police were able to locate the following items:

• 7.49 grams of white powder, being methylamphetamine, and a small resealable bag.

• Ten packages of tobacco and 30 Tally-Ho papers.

• Ten Valium tablets.

• One black Samsung A20 mobile phone and a fast charger.

• One Samsung SM-G9 30F mobile phone, SIM card and chargers.

• A resealable bag containing tablets labelled AL/G@ (Alprazolam) weighing 12.29 grams.

17. On Wednesday, 4 December 2019 at 8.32pm police intercepted a sale of methylamphetamine by the offender to another unknown person using his mobile phone. The offender exchanged methylamphetamine for cash from the buyer and the buyer left the location in a Subaru WRX. At that point the offender realised that he had not been paid the full amount for the drugs that had been supplied and called the buyer. The offender said, "Hello, you only gave me 250. Doesn't matter, next time." Unknown person, "You sure?". Offender, "Did you count 300?” Unknown person, "I counted 300. I must have been short. I'll come back.”

18. Police then stopped the Subaru WRX which had left from the offender's location. The occupants were cautioned, and a search was conducted. Police located two small clear resealable bags containing 1.75 grams of methylamphetamine.

19. On 5 December 2019, the offender used his mobile phone to have a conversation with a female in relation to the supply of prohibited drugs. The offender organised to meet the female in Auburn to supply her with a small clear resealable bag with a drug believed to be methylamphetamine. The female's vehicle was later stopped by police shortly after the transaction and the vehicle searched, and a small resealable bag containing 0.31 grams of methylamphetamine was located. The whole of the supply was the subject of surveillance by police.

Sequence 18 - resist officer in the execution of duty contrary to s 58 of the Crimes Act (Form 1).

Sequence 19 - driver not disclose identity of driver or passenger as required contrary to s 15(2) Law Enforcement (Powers and Responsibilities) Act 2002 - s 166 related.

Sequence 22 - possess prohibited drug contrary to s 10(1) Drug Misuse and Trafficking Act - 0.11grams of buprenorphine - s 166 related.

Sequence 23 - deal with property suspected of being proceeds of crime contrary to s 193C(2) of the Crimes Act.

20. On 12 December 2019, the offender used his mobile phone to organise the sale of prohibited drugs. At about 7.25pm the offender was observed to be walking through Auburn Park towards the intersection of Hutchinson Street and Gibbons Street. Police approached the offender and introduced themselves. The offender was advised that he was going to be spoken to about drug supply and cautioned. Police commenced a search. They requested the offender remove his side satchel bag that he was wearing over his shoulder. He was seated at the time and proceeded to stand up and begin to take off his bag, when he suddenly turned and proceeded to run towards the driveway of 35-37 Gibbons Street. Police gave chase down the driveway, which bordered 42 Macquarie Road with a green fence. The fence had a slight gap through which the offender proceeded to go. In doing so he brought down the fence paling. The offender then actually made his way to Macquarie Road where he ran into a row of shrubs on the side of 21 Macquarie Road, eventually reaching a dead end of a fence line.

21. When police reached the offender, they grabbed his left arm, moving it to the rear of his back to apply handcuffs. Police informed him that he was under arrest. The offender then dropped his right shoulder, attempting to break free of the arresting officer's grip. Police then forcefully moved the offender to the ground onto his chest in order to handcuff him.

22. The offender's person was then searched and nothing was found. A search of his satchel resulted in:

• One Samsung mobile phone with the service number 0450 337 074.

• $844.35 made up of a number of bank notes and coins, as referred to in the facts.

23. The offender was then taken to Auburn Police Station where the formalities were complied with. He declined to participate in an interview, as was his right. However, he also declined to declare who the driver was at the time of the pursuit, which was of course a matter he was required to comply with.

24. At 9.55pm police attended the offender's residence at premises at a unit in Macquarie Road, Auburn, to execute an authorised search warrant. They seized mobile phones, SIM cards, digital scales and resealable bags from the offender's bedroom.

25. On top of the fridge, police located a protein powder container which contained a tied-up sock. In the sock police found a large clear resealable bag, and inside that bag were three freezer bags and a smaller clear resealable bag containing methylamphetamine with a total weight of 55.44 grams.

Sequence 1 - supply prohibited drug on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act.

26. As a result, the offender supplied prohibited drugs on 28 November, 4 December, 5 December and 12 December.

12. The facts also refer to a supply on 18 November, but the facts contain no evidence of such a supply, and it has been accepted by the parties (by way of email communications with the court post the sentence proceedings) that there was no relevant supply on 18 November. Accordingly, the dates and quantities relevant to the ongoing supply offence are the supply on 28 November 2019 of 7.49 grams, the supply on 4 December 2019 of 1.75 grams, and the supply on 5 December 2019 of 0.31 grams of methylamphetamine, giving a total of actual supplies of 9.55 grams of methylamphetamine. In addition, the charge relies on the 55.44 grams located in his premises on top of the fridge. Accordingly, the total weight of methylamphetamine supplied was 64.99 grams, as relevant to the charge of ongoing supply.

12. As to the objective seriousness of the offending, as will become apparent from these reasons on sentence, the offender made use of his knowledge of the John Morony Centre's security, or lack thereof, in order on at least two occasions to enter the grounds and secrete various materials including prohibited drugs to be collected by either inmates or other persons, clearly for distribution within the prison system. Overall, the facts indicate that the offender was a supplier of at least methylamphetamine and cocaine that he supplied to members in the community who would contact him and arrange to meet him for the purpose of exchanging money for drugs, and also it would seem inmates who contacted him for the supply of prohibited drugs and other materials not available within the prison system, the offender apparently expecting to get something in return, as indicated by his collection of the bag containing the bottle of water on one occasion.

13. Prohibited drugs and equipment that might be used for their administration are serious problems within our prison system, and the offender's conduct in twice entering the John Morony grounds including somehow obtaining access to the laundry area at night is of serious concern in supplying prohibited drugs and/or equipment in those circumstances, and in my view must be regarded more seriously than simply supplying a small quantity to some person in the community because of the difficulty that the presence of prohibited drugs causes within the prison system, as would be well-known to the offender.

14. Overall, an ongoing supply relating to three separate occasions of actual supply and a quantity in possession for supply, totalling 64.99 grams, considering that ongoing supplies can apply to any quantity of prohibited drug providing that it is supplied on three or more occasions within a 30-day period, is a serious matter. That the intrusions onto the John Morony Correctional Centre grounds and premises at night included both the provision of drugs and other items such as phones in my view indicates that those offences - that is the offences charged in Sequences 5 and 13 - should be regarded as serious examples of such offences, considering what was supplied.

15. As to the offence involving the police pursuit, while it was of a relatively short duration, that was only in effect because the police being in the Central Business District area decided to desist because of the danger represented by the offender's immediate conduct in seeking to evade them. Because they broke off the pursuit so soon, it was a pursuit of only a short period, but there was a significant risk of injury or death to anyone who may have been present in the street when he drove, contrary to the direction of traffic and on the wrong side of the street. It was at approximately 3.15am and injury or death may have been caused to anyone else travelling in a motor vehicle in the opposite direction. There was no actual evidence of other persons or vehicles being present at any time, but it was, as indicated by the offender's conversation with the unknown person he communicated with on 18 November 2019, clearly in circumstances where he deliberately embarked on a course of dangerous driving in order to induce the police to cease following him, and in circumstances where in the phone call on 30 November 2019 he indicated in particular why he was doing so, that is that he had no licence, he was at the time on parole, and he was concerned because he had an ounce of pot and $6,000 in cash. His election to drive dangerously causing the police to have to pursue him was a deliberate and reasoned course of action to create danger to deter police from continuing to pursue him.

16. Again, it is a serious offence, although it is fortunate that it was of short duration and there is no evidence of any other person or vehicle in fact being caused potential injury, with the exception of the two females who were apparently present in his vehicle, who may have been injured if he had managed to have an accident in the vehicle. As to the offence of dealing with property suspected of being proceeds of crime, I note that the total amount was a relatively insignificant amount, being some $844.35.

17. As to subjective matters, before the Court is the offender's criminal history, a Breach of Parole Report, a Sentence Assessment Report under the hand of Maggie Allcott, Community Corrections officer, dated 1 December 2020, a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report, his New South Wales criminal history, a report from Mr Chafic Awit, psychologist with Bridges Psychology Clinic, dated 23 February 2021, a letter from the offender's mother Amina Mohammed, undated, a letter to the Court from the offender's sister Zeynep Huseyin dated 11 February 2021, an unsigned affidavit of Aden Huseyin, an older brother of the offender, the affidavit being unsworn and relied on in effect as a letter to the Court. Subjective matters are drawn from that material.

18. The offender's criminal history commenced as a juvenile in 2009 when he received control orders in respect of offences committed in 2006 but dealt with in 2009 in the Children's Court of break and enter a building and steal, and break and enter building and destroy or damage property, in relation to each of which he was provided with a Control Order pursuant to s 33(1)(g) of four months which was suspended. He has had a number of other offences as an adult such as affray, recklessly wound, custody of a knife in public place, resist officer in execution of duty, carry cutting weapon upon apprehension: in respect of at least two of those being called up for breaching the s 9 bonds that had been imposed for resist officer and carry cutting weapon upon apprehension.

19. He has further been before the Court in 2015 for offences committed in 2014 of enter inclosed lands, failing to appear in accordance with a bail acknowledgement, use uninsured motor vehicle, and use unregistered registerable class of motor vehicle, in relation to each of which he received a s 10A conviction with no other penalty. However, at the same time he also received in respect of driving motor vehicle during disqualification period, second offence, and drive recklessly, furiously or speed manner dangerous, two periods of concurrent imprisonment, being five months for the drive while disqualified second offence, and six months for the drive recklessly, furiously or speed manner dangerous. In 2016, in the District Court he received in respect of an offence of in company rob while armed with a dangerous weapon a term of imprisonment of six years with a non-parole period of three years. The non-parole period was to expire on 11 December 2017. I note from his record that he was not released on parole until 11 June 2019 as a result of further offending.

20. There were further offences committed in 2014 of fire firearm manner likely to injure persons or property, and again robbery while armed with a dangerous weapon, which were also dealt with at the same time as the last two offences that I have referred to on 7 October 2016 at the Downing Centre. In relation to the firearm, he received a term of imprisonment of 12 months commencing on 12 November 2014 and in respect of the robbery while armed with a dangerous weapon, a sentence of four years and six months expiring on 11 June 2019, and a further offence of assault law officer. There are various other offences involving his driving of motor vehicles, resisting arrest and possessing prohibited drugs. Although there is only one offence on his record relating to possessing prohibited drugs.

21. In the Sentence Assessment Report of Ms Allcott, he is assessed as being a medium to high risk of reoffending. As to his offending on this occasion, he stated to her that he was disappointed with himself and that he had a habit but could not afford it anymore. He said he had been struggling since his release from custody on parole "smoking drugs to escape reality", but said he was willing to undertake any appropriate interventions. His explanation for his conduct in entering the John Morony Centre grounds and/or premises was that having been released on parole, he had received phone calls from inmates that he had been associated with during his incarceration, and they had requested that he provide drugs after seeing "a guy". As to his personal use of prohibited drugs while on parole, he said that he thought he could "outsmart parole" and had lied about his usage to his supervising officer.

22. As a result of the commission of these offences the State Parole Authority revoked the parole that he was then on, to be treated as having been revoked from 12 December 2019. He had been released on 11 June 2019. This offending took place between 30 September 2019 and 12 December 2019: that is within a period of three months after being released on parole he was already committing further offences in breach of his parole, and it would be apparent from what he said to the Sentence Assessment Officer that he had commenced the use of prohibited drugs shortly after his release.

23. I note the breach of parole report under the hand of Kerry Thomas of 16 December 2019 indicates that when he has been released on parole he initially demonstrated a positive and satisfactory response to supervision. He was compliant in attending and completing the EQUIPS Aggressions course in October 2019, and feedback from that course indicated that he was an engaged member of the group, attending most supervision appointments and all home visits conducted by Community Corrections. It would appear that if during that initial period he was again using prohibited drugs it was not detected by the service.

24. The offender was approximately 30 years of age at the time of the offending. Having been originally born in Iraq, he and his family moved to Turkey when he was approximately six months of age, before migrating to Australia in 1995 at the age of six. He is the youngest of 12 siblings, two of his brothers being deceased, having died before he was born. His father passed away when he was six months of age, which prompted his family to move to Turkey. Two of his brothers remained overseas, both living in Germany, one of whom had lost both legs due to stepping on a landmine in Iraq. He and his family clearly lived through the traumas of the Iraqi wars and suffered, as did many others, from those unsettling circumstances and clearly traumatic times. He was fortunately young and does not quite remember the war as he was an infant at the time, although he observed the ongoing impact on his family.

25. On a number of occasions they attempted to flee Iraq by entering Turkey, and at least on two occasions they were caught and returned to Iraq by the Turkish authorities. They had to move constantly and did not have a set home to go back to, having frequently left their possession behind to move on. He looked to his older brothers as father figures. This was unfortunate because after arriving in Australia several of his brothers became involved in providing prohibited drugs or illicit substances, and they unfortunately exposed him to this at a young age. He was apparently on occasions given $5 to go and buy chocolates or lollies from the corner store if he had assisted his brothers in bagging up illicit substances. At the time he engaged in that activity it is said that he did not understand what they were, that he was simply being rewarded for his involvement with his brothers.

26. Subsequently on several occasions there were drive-by shootings at his home during his childhood and early adolescence. The cause of those is unspecified. This is said to have led to him having significant anxiety and symptoms of anxiety and depression. He was apparently at one stage, according to the information he provided to the psychologist, shot in the leg, stomach and arm, which required part of his intestines to be removed, and ongoing treatment in hospital on a few occasions for up to a week at a time in the year following his treatment. He is also said to have occasionally required his stomach to be pumped after consuming foods that aggravate his stomach, having issues as a result of his voluntary use of Xanax and Valium.

27. As to his having been shot, I note that his sister's letter to the Court indicates that he "was shot at randomly four times after an attempted robbery. Two bullets penetrated his body, one in his arm and one in his stomach". His mother refers to him as having been shot a number of times in the abdomen and spending many months in hospital. His brother refers to him as being hit with two bullets, one to his kidney region and the second to his elbow. There is some variation between the different accounts as to how many bullets he was struck by and where, although I accept that he caused a significant injury to the abdomen which required significant treatment. The cause of the shooting at least appears not to have been the result of his conduct.

28. I note the references from his family contain some matters which appear to be inconsistent with what he informed the psychologist of. In particular, I have already noted his assistance of his older brothers in the distribution or bagging up of illicit substances. Having come to Australia, he was enrolled shortly thereafter but barely went to school in the first year. He had a significant language problem and eventually they found a Turkish community in Auburn and he commenced attending school at the Auburn North Primary School for Year 2 to Year 4. He however found himself in a lot of fights, so left that school and then commenced at the Auburn West Public School from Year 5 to Year 6. He then moved on to Granville Boys High for Year 7 to Year 9. He was struggling significantly academically and was expelled at the end of Year 9. He then attended Macquarie Boys for Year 10 and completed the School Certificate, but having commenced Year 11, in the absence of any assistance classes, he decided to leave school. Some of his schooling years were in fact broken up by Juvenile Justice Centre detention on two occasions.

29. He tried his hand at a number of certificates at TAFE, including painting and decorating, carpentry, car detailing and glass glazing, but he never completed any of those certificates. He commenced employment part time at the age of 15, helping one of his brother's friends in a mechanic shop for three months, and at the age of 16 he worked in the tiling industry for six months, before moving into glass glazing, which he did for one and a half years. Although he enjoyed it, he was then working for his sister's husband and as they divorced, he ceased working in that job. He then did not work for approximately two years and was then heavily involved in the use of illicit substances. Over the years he has done a number of labouring roles for friends.

30. He describes himself as a social drinker, being first exposed to illicit substances at the age of 14. Presumably that is a reference to his exposure to the use of them, rather than his exposure to them by way of bagging them up. He started with cannabis, which became a daily habit by the time he was 16, and on weekends he was using ecstasy with his use spiralling. His older siblings, or at least some of them, have apparently been in and out of prison and he has been exposed to that, visiting them while in custody on occasions when growing up. His drug addiction continued over the years up until his most recent incarceration and his use of prohibited drugs had expanded to both ice and cocaine.

31. He also commenced gambling at the age of 17, which he indicated got out of hand, meaning he had significant losses. He claims that most of his offences over the years have been in order to treat his drug and gambling addictions. He is a single man, although he had one relationship which lasted for approximately five years. He has no children.

32. In June of 2019 when released on parole he commenced assisting one of his older brothers in a chicken shop. After some three weeks his brother went on holiday, expected to be for a period of two months. The offender was then required to work long hours in order to care for the business, which he found stressful, as well as finding the responsibility of taking care of his brother's business also stressful.

33. A number of his old friends observed him in the store and invited him out and he relapsed again to using illicit substances, and again his life according to him began spiralling out of control.

34. His mother is some 80 years of age. I note that all of those members of his family who have provided references for him indicate that they will continue to support him. I accept that they intend to do so. There is in my view a serious difficulty in respect of accepting that he will be assisted by such support in the circumstances where the family has apparently been exposed to members of the family being involved in the drug trade for a significant period of time, and a number of his siblings being, as it is said, “in and out” of prison, and the offender then being taken to see them. That could hardly have assisted him in deciding not to commit criminal offences himself.

35. I accept that he has had a very difficult early life and an exposure to drugs and crime at an early age, and on a continuing basis in relation to his family's circumstances. I accept that the principles as referred to in Bugmy and Fernando apply to reduce his moral culpability for the offending, and accordingly also reduce the extent to which any sentence imposed must reflect general deterrence, and I will take those matters into account when determining the sentence.

36. I have already noted that there seems to be some inconsistency about what his family in their references say of the offender, but to be more specific, his mother refers to his current incarceration as taking a toll on his mental health, and that he has a loving family willing to support him to get back on his feet and keep him on the straight path.

37. He is said by his mother to be a soft-hearted young man, still capable of changing his path, and she notes that he has supporting and loving siblings. She of course makes no reference to the involvement of his older siblings in criminal offending and his exposure to that and their having been in and out of gaol. His sister refers to him as being a person who can be trusted and relied upon as a “good kid”, never causing trouble, being quiet and a deep thinker who likes school. That does not appear to be in accord with his own information given to the psychologist about school. His sister refers to him over the last few months as having a genuine sense of calm, and observing a real sense of maturity, both in his reflections and his aspirations, with a mind which is totally clear as evident from the AVL connections and phone conversations. She also states that during the last few months he has "embarked on his relationship with Allah" which she anticipates will benefit his rehabilitation. She also indicates that she is confident he will not reoffend as she knows he has remorse for his mistakes.

38. Mr Awit also indicates that he has expressed his shame and remorse in relation to the offences to him. He does not say how it was expressed. Mr Awit also makes the following observation:

“Based upon the history provided by Mr Hussein it is clear and evident that Mr Hussein was suffering a mental health condition prior to/during the offending period that likely impacted his ongoing decision making processes during the period of offending.”

40. His mental health condition appears to be referred to as having been brought up in a stressful environment, seeing his brothers arrested and constantly visiting them in prison, causing him to then suffer from symptoms of anxiety and depression from a young age, and as a result of the stress caused to him by being shot at and injured, supposedly causing him to turn to illicit substances and gambling to relieve himself of his anxiety symptoms. I have accepted that his upbringing brings into play the matters referred to in Bugmy and Fernando. Anxiety and depression may well cause people to use prohibited drugs and that use may cause them to need to engage in the supply and distribution of prohibited drugs in order to fund their own use. But I note Mr Awit refers to those matters as only “likely” to have impacted on his ongoing decision-making processes.

40. In relation to his brother's reference, he states that in high school, although the offender did not excel academically "however behaviourally the offender was always reported to be quiet, well-mannered and disciplined." The offender "almost never got into trouble and almost always received praise from his teachers and peers." Again, that appears to be inconsistent with the offender's information as supplied to the psychologist. His brother Ahmed indicates at para 33:

“The offender became involved with substance abuse and the use of prohibited substance. The offender at this point changed dramatically and it was soon after this in 2015 that he was charged and gaoled for his first offence. The offender served five years in custody.”

42. It is at least evident from the offender's criminal history that his offending commenced at a much earlier time, and from what he has informed the psychologist, his offending, at least in relation to the use of prohibited drugs, also from a much earlier time. Being in custody awaiting sentence for a significant raft of offences is always likely to cause an exacerbation of anxiety and depression, and I would accept that he has no doubt become more depressed and anxious. However, in respect of remorse and contrition I note that the offender has not given any evidence on sentence. A plea of guilty in itself is not necessarily evidence of remorse or contrition. I am unable to discern from Mr Awit's report on what basis he states that the offender is remorseful, other than that the offender has stated that to him.

43. I have some difficulty in relation to the letters to the Court or references from his family in the circumstances of the family history, as I have previously indicated.

44. It is certainly the case that being faced with a significant raft of charges it can be anticipated that the offender would be seriously concerned by the position that he has placed himself in, and as I have said, increasingly anxious and depressed while in custody awaiting sentence. I will at least accept that there is some evidence of remorse and contrition, although I do not regard it as being of a high or convincing standard in the circumstances of the information before the Court.

45. I have taken all those matters into account, as well as of course the purposes of sentencing as referred to in s 3A of the Crimes (Sentencing Procedure) Act. I have taken into account the fact that his parole was revoked as and from the date of his arrest. That revoked parole expired on 11 December 2020.

46. The commission of offences whilst on parole is a significant aggravating circumstance. Parole is a privilege, and an abuse of that privilege calls for a higher punishment, R v McVittie [2002] NSWCCA 344, R v Fernando [2002] NSWCCA 28 at 42. Offences committed while on parole demonstrate that rehabilitation which parole is designed to assist has failed, and the Court cannot proceed on the same expectation of rehabilitation that is open in other circumstances.

47. Greg James, J in R v Huynh [2003] NSWCCA 239 stated that:

“…It is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit, which constitutes the breach. You surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach, and you must expect to serve in custody the sentence from the custodial nature of which you have been liberated conditionally.”

48. In R v Moffatt (1990) 20 NSWLR 114 it was held the offender should not only suffer the revocation of his parole and consequently to serve out the balance of the original sentence but should also suffer a significant punishment for the latter offence to mark the gravity of his conduct in abusing his parole.

49. I also recognise that the Court has a discretion on sentence, including the ability to make any sentences imposed in respect of this matter concurrent, partially concurrent with or wholly cumulative upon the sentence which the offender has served as a consequence of the revocation of parole for the reasons referred to by Simpson J in Callaghan v R [2006] NSWCCA 58.

50. I intend to commence the sentence to be imposed in relation to these matters which will be an aggregate sentence from halfway through the revoked parole period, that is from 12 June 2020. As I intend to impose an aggregate sentence, I am required to provide indicative sentences. As there is no standard non-parole period in respect of any of the offences that I have previously referred to, I am not required to specify an indicatives non-parole period. Although the need for the sentence to reflect general deterrence is reduced, as I have previously referred to, I regard personal deterrence as an important matter to take into account with respect to this offender, who so quickly returned to committing serious criminal offences after being released on parole.

51. In relation to Sequence 1, being supply drugs on an ongoing basis, being 64.99 grams of methylamphetamine, between 28 November and 12 December 2019, and taking into account when sentencing for that matter the offence contained on the Form 1, being Sequence 18, resist police officer in the execution of duty, noting although I have not previously referred to it, that it was in my view a very minor form of resisting police, of very short duration, with no consequent injury to anyone. The indicative sentence is three years.

52. As to Sequence 2, supply prohibited drug being 0.54 grams of cocaine, I note that this is just more than a half gram which would have been dealt with in the Local Court except for the other offences, where the limit is two years and in my view it is appropriate to take that into account. In my view it is a relatively minor matter. The indicative sentence is six months.

53. As to Sequence 8, being the police pursuit, as I have previously indicated in my view this is a serious offence, given that it was deliberately engaged in, in order to deter the police from arresting him and finding certain material that he apparently had in his vehicle, and discovering that he was unlicensed and on parole. The indicative sentence is a term of imprisonment of 18 months.

54. In relation to Sequence 15, being the break and enter and commit serious indictable offence of supply prohibited drug contrary to s 112(1)(a) of the Crimes Act I note that this matter refers to the occasion on which the offender with his knowledge of the John Morony Correctional security, entering the prison building in order to secrete 7.49 grams of methylamphetamine, tobacco, Valium tablets, and other items, although the charge itself only refers to supplying a prohibited drug, which is of course the 7.49 grams. The indicative sentence must take into account for the purpose specified in the section was the supply of the 7.49 grams. The indicative sentence in that case is 18 months' imprisonment.

55. As to Sequence 23, being deal with property suspected of being proceeds of crime, contrary to s 193C(2) of the Crimes Act, being some $844 approximately, in my view this is a relatively minor occasion of such an offence. The indicative sentence is nine months. Again, in my view, it is a matter that could have been dealt with in the Local Court in the absence of the other matters.

56. As to the matters contained on the 166 certificate, Sequence 5 and Sequence 13 were both offences of secrete inside premises of detention. At least one is to some extent already covered in part by Sequence 15. In each case the indicative sentence for Sequence 5 and Sequence 13 is one year’s imprisonment.

57. As to Sequence 19, failing to disclose the identity of the driver, the indicative sentence is six months’ imprisonment.

58. As to Sequence 22, the possession of 0.11 grams of buprenorphine, the indicative sentence is six months.

59. I have then taken into account that there is some overlap in relation to some of the specific offences that I have referred to, and I must also take into account the concept of totality and have done so. The sentence imposed must reflect the overall objective seriousness of the offending. I have already indicated that I will give him the benefit of backdating the sentence to commence at a point halfway through the revoked parole period.

60. I have then also taken into account in terms of establishing the relationship between the non-parole period and the full term of sentence, the statutory relationship. Having taken all of those matters into account, the aggregate sentence is a non-parole period of four years with a balance of term of one year and six months, giving a total sentence of five years six months with a non-parole period of four years. The term of the sentence will commence from 12 June 2020. He will be first eligible for parole on 11 June 2024, and the balance of term of one year six months will expire on 11 December 2025.

61. I have taken into account in determining the period of parole the six months spent in custody on revoked parole prior to the commencement of this sentence.

HIS HONOUR: Is there anyone who cannot understand that? Do you appreciate that?

JAMES: Yes.

62. HIS HONOUR: Mr Hussein, I am sure you appreciate that if you continue to be in breach of what I have not referred to so far, prison regulations, you are unlikely to be released when your earliest date for parole comes up, and I note that since being arrested in respect of these matters and returning to custody in December 2019 you have been in breach of prison regulations in relation to matters involving violence, whether it was caused by you or someone else, and violence to property or disobeying directions or not complying with correctional centre routine on at least six occasions up to July 2020.

63. The Department of Corrective Services Conviction, Sentence and Appeals Report that I have been provided with only runs up to 20 November 2019. You may accordingly have had further matters which are in breach of prison regulations, which have not been placed before me. But I am sure you understand that if you have been continuing to breach prison regulations and continue to breach prison regulations while you are subject to the non-parole period that I have imposed, it is highly unlikely that you will actually be released at the earliest date. It is a matter for you Mr Hussein. You have a poor criminal history. You are rated at best a medium risk of reoffending, and you committed these offences within three months of being released on parole.

64. Your mother is now 80 years of age. I am sure she would like to be able to spend some time with you in circumstances where you are free in the community, and that is up to you. There is nothing she can do about it. It is only up to you.

CROWN: There is one last matter.

HIS HONOUR: You wanted to forfeit the money?

CROWN: Yes, that is correct. I understand it is by consent. It is also in relation to a Samsung phone.

HIS HONOUR: Yes, all right. Do you have the papers?

CROWN: Yes, I do.

65. HIS HONOUR: I order pursuant to s 18(1) cash in the approximate sum of $844.35, which does not sound very approximate, found on the offender on 12 December 2019, be forfeited to the State, and also pursuant to s 18(1) one Samsung mobile phone, also seized from the offender on 12 December 2019 be forfeited to the State.

CROWN: Thank you very much.

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Decision last updated: 24 February 2023