R v Ismael

[2022] NSWDC 560

District Court

New South Wales

Medium Neutral Citation:

R v Ismael [2022] NSWDC 560

Hearing dates:

10/12/21, 4/2/22

Date of orders:

4/2/22

Decision date:

04 February 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years 10 months with a NPP of 3 years (27/10/20-26/10/23).

I find special circumstances.

The indicative sentences are:

Seq 1 Supply commercial qty methylamphetamine – 4 years 3 months with NPP 2 years 7 months (3 matters on Form 1 taken into account)

Seq 11 Possess pistol – 2 years 9 months with NPP 1 year 8 months (Form 1 taken into account).

Seq 12 Proceeds of crime – 18 months.

I make the forfeiture order as per the Short Minute of Consent Order signed and dated by me today.

Catchwords:

Crime – Sentence – Supply commercial quantity of MDMA – Possess unauthorised pistol – Dealing with proceeds of crime

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Commonwealth DPP v De La Rosa [2010] NSWCCA 194

Doudar v R [2021] NSWCCA 37

Mbele v R [2021] NSWCCA 182

Moodie v R [2020] NSWCCA 16

Muldrock v R [2011] 244 CLR 120

Parente v R [2017] NSWCCA 284

Veen v R (No.2) (1998) 164 CLR 465

Category:

Sentence

Parties:

NSW DPP – Crown
Michael Ismael - Offender

Representation:

Ms L Robeau for Crown
Mr A Williams for Offender

File Number(s):

2020/307798

SENTENCE

1. Mr Michael Ismael is for sentence in relation to three offences. Those being firstly, the sequence 1 offence which is an offence of supply commercial quantity of MDMA, also known as ecstasy. The maximum penalty for that offence is 20 years imprisonment and it attracts a standard non-parole period of 10 years. In sentencing him for that offence, he asks that I take into account three offences on a Form 1 document and I intend to take that course.

2. The second offence before the court is the sequence 11 offence of possessing an unauthorised pistol. The maximum penalty for that being 14 years and a standard non-parole period of 4 years applies. In addition, he asks that I take into account a further offence on a Form 1 document which is an offence of possessing ammunition.

3. The third offence before the court is a sequence 12 offence which is one of dealing with property, namely $102,850 in cash that is reasonably suspected of being proceeds of crime. The maximum penalty for that offence is five years’ imprisonment.

4. Of course the maximum penalties and where applicable, the standard non-parole periods are important yardsticks or guideposts in the sentencing exercise, to which I have regard.

5. The offender pleaded guilty at the earliest opportunity and I will therefore allow a discount of 25 per cent, by reason of the utilitarian value of those pleas of guilty.

FACTS

6. The facts are agreed and are set out in an agreed document. Re-stated as to their form, but not substance, they are as follows. The facts revolve around a two bedroom, two bathroom residential unit located in Palm Avenue, Breakfast Point, in Sydney. In early May 2020, an application to lease that unit was submitted to Breakfast Point Realty, from a person by the name of Maziar Khaneghah. The application stated that three persons, namely Mr Khaneghah, his partner Ms Kammoun, and an unnamed third person would be occupying the unit.

7. On 15 May, Breakfast Point Realty sent an email to Mr Khaneghah, advising that his application had been successful and that a 12 month lease would commence on 19 May 2020 at a weekly rental of $690. Mr Khaneghah replied to the email, stating that Mohamed Ismael, which is the name of this offender, although he also uses the name Michael, would collect the keys on his behalf.

8. On 19 May 2020, the offender collected the keys and some associated paperwork. On 19 October 2020, police commenced making inquiries in relation to the Palm Avenue unit and met with the strata manager, who provided police with a key fob for the building and a resident form which listed Mr Khaneghah and the offender, Mr Ismael, as residing at the unit. The resident form also recorded a single motor vehicle, which was a Hyundai i40 model and a single telephone number for the purposes of contact.

9. Police checks conducted in relation to Khaneghah and the offender indicated that Khaneghah was the subject of a Firearms Prohibition Order, which had been served on him on 30 December 2017.

10. On the morning of 27 October 2020, police attended the Palm Avenue unit for the purposes of executing a Firearms Prohibition Order search. Upon entry, police saw the offender attempting to flush items down a toilet. They also observed the offender to be next to a safe which was in the bathroom and which was open and contained a large quantity of cash and a freezer bag containing white powder. Police also found several brown rock-type substances scattered on the bathroom floor and residue of a brown rock substance on the toilet seat.

11. As a result of these observations, police declared the unit a crime scene, arrested the offender and obtained a search warrant for the premises, including its storage unit and also for the Hyundai i40 vehicle.

12. Police commenced searching the unit later that morning and found that only the main bedroom contained a bed and that the second bedroom was being used as an office. Police found and seized the following items: 23.8 grams of MDMA in compressed rock form inside an open plastic bag on the bathroom floor, 86.5 grams of MDMA in compressed rock form on the bathroom floor, 15 grams of MDMA in compressed rock form, also on the bathroom floor, .75 grams of MDMA in brown granule form in a torn plastic bag in the bathroom, 40.5 grams of MDMA in compressed rock form in the bin in the bathroom, 12 grams of MDMA in the form of two pieces of compressed rock, also in the bathroom, and 84.4 grams of MDMA in brown crystal powder form inside an IKEA brand resealable bag in a cabinet in the office area, alongside a large number of empty, small resealable bags. The total quantity of MDMA found, which is the subject of the sequence 1 offence, was 262.95 grams.

13. Police also found a knotted plastic bag inside the safe in the bathroom, which contained two other plastic bags, one with 16.67 grams of cocaine, the other with 4.06 grams of cocaine. Those quantities of cocaine are the sequence 2 offence which is on a Form 1 document, the total being 20.73 grams.

14. Police also found a total of 16 five milligram diazepam tablets in various locations in the bedroom which had a total combined weight of 2.64 grams. This being the sequence 7 offence on one of the Form 1 documents.

15. Police also found 852.8 grams of gamma Butyrolactone, also known as GBL, in a glass jar labelled ‘Olives’, in the kitchen and an additional 13.4 grams of GBL in a glass bottle under the kitchen sink, the total quantity of GBL being 866.2 grams. This is the sequence 10 offence on a Form 1.

16. In addition, police located and seized the following items: $102,850 cash in 13 bundles, held together by rubber bands, which were found in the safe in the bathroom. This is the sequence 12 offence for which the offender is to be sentenced.

17. Police also found a dismantled .45 calibre pistol, which was located in the kitchen inside a Tupperware container filled with liquid. This is the sequence 11 offence for which the offender is also to be sentenced. They also found seven .45 calibre pistol rounds, six of which were in the bedroom, with one being found in the office. Those are the subject of the sequence 6 offence, which is on a Form 1 document attached to the sequence 11 offence.

18. The facts state that an examination of the pistol indicated it was in working order and capable of holding and firing seven rounds and that its serial number had been defaced. An examination of the pistol rounds indicated that they were suitable for use in the seized pistol.

19. Among the items seized were also four firearm parts including a barrel and magazine in a kitchen drawer.

20. The offender’s DNA was found on a number of items, namely a black grip of the dismantled firearm, a bottle that contained 13.4 grams of GBL, the plastic bag containing 20.73 grams of cocaine and the IKEA bag containing 84.4 grams of MDMA. Also, the offender could not be excluded as a contributor to the mixed DNA profile found on rubber bands wrapped around the cash and could not be excluded as a contributor to the mixed DNA found on the lid of the glass jar containing 852.8 grams of GBL.

21. While in custody at Burwood police station, the offender participated in a record of interview. He told police that he worked as a self-employed painter and is not on the lease for the Palm Avenue unit, but does live at the unit and that the phone number on the resident form was his number and that the Hyundai i40 vehicle, which was parked in the complex, was his sister’s car. He told police he did not have a script for the Diazepam but denied having seen the firearm before. Those are the factual matters upon which I proceed to the sentence.

OBJECTIVE SERIOUSNESS

22. Turning then to the objective seriousness of the offences. Firstly, the seriousness of the three offences on which the offender is to be sentenced is marked in part by the maximum penalties and where applicable, the standard non-parole periods. But, as is always necessary, it is important that I make an assessment of the objective seriousness of the particular examples of the offences that are before the court, based on the agreed facts and any inferences that can rationally be drawn from them. Any aggravating matters must be proved beyond reasonable doubt, whereas matters in mitigation need only be proved on the balance of probabilities.

23. Turning then to the objective seriousness of the sequence 1 offence of supply commercial quantity of MDMA. In relation to this supply offence, it is relevant to note the comments of the Court of Criminal Appeal in Parente v R [2017] NSWCCA 284, in which it was said that:

“It is necessary for a sentencing court to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 which include to prevent crime by deterring the offender and other persons from committing similar offences and to protect the community from the offender.

Since at least the 1970s there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.

Further, having regard to the social impact of drug use, particularly as a underlying cause of criminal other criminal offending, protection of the community will usually be of significance as well. Secondly, it is necessary for sentencing judges to remain mindful of the maximum penalty and any standard non-parole period. They are legislative guideposts (Muldrock v R [2011] 244 CLR 120) and for drug supply offences they are set at a high level”.

24. The supply offence in this matter involved 262.95 grams of MDMA, which is a substantial quantity and more than twice the commercial quantity of 125 grams. While quantity is not a determinative factor, it is highly relevant. Most of the MDMA was in compressed rock form and not in a form that was ready for easy consumption.

25. Counsel for the offender submitted that there is no evidence capable of establishing that the offender was involved in any broader supply activity or any actual supply and that it is open to the court to find that his role was limited to allowing the drugs to be stored at the premises, for the purposes of facilitating their supply. I have considered this submission by the offender, but I do not entirely accept it. I do accept that the offender is not to be sentenced on the basis of any “actual supply”, as the supply offence in this case is a deemed supply based on the quantity off drug found in the apartment. I do not however accept that the offender’s role was limited to merely allowing the drugs to be stored at the premises so as to facilitate their supply. While this was the version given by the offender to the psychologist, Mr Borkowski, the offender gave no evidence on oath to confirm this assertion and have it tested by cross-examination.

26. Furthermore, the agreed facts note that when police entered the premises, the offender was attempting to flush some of the drugs down the toilet, with other drugs scattered on the bathroom floor in the vicinity of an open safe, which contained the cash and a quantity of cocaine. Also, the offender admitted to living in the unit and his DNA was found on various items including the bag containing the cocaine, as well as the cap of a bottle that contained GBL and on and an IKEA bag that contained MDMA.

27. It was also argued by the offender that I should find that he committed the supply offence in order to feed his own drug habit and that this placed his offending at a lower level than someone engaged in supply for greed or profit. I have also considered this submission, but I do not accept it. Again, it was not supported by evidence on oath. Furthermore, it is not consistent with the matters I have set out above, and in particular the offender’s possession of the large quantity of cash, his possession of other drugs including substantial quantities of GBL, cocaine and a number of diazepam tablets and the presence of his DNA on various items.

28. I note the submission on behalf of the offender that the presence of his DNA on a bag or bags containing drugs might have been due to his accessing the drugs for his own use. However, while this might be a possibility, there is no evidence from the offender to support such a suggestion.

29. On the evidence before the court, I am unable to identify with any precision, what role the offender performed. However, in my view, his role was more than just a warehouseman allowing the premises to be used by others. In my view, the evidence supports a conclusion which I draw beyond reasonable doubt, that the offender was in possession of the MDMA, perhaps jointly with another person or persons, for the purposes of supplying it again perhaps in conjunction with others, for the purposes of profit. Given the quantity and physical form of the MDMA, his role was at a level higher than that for example, of a street level dealer.

30. I accept however, and as the Crown submitted, that the offence did not involve any planning or sophistication beyond that inherent in this type of offence. Having regard to these various matters, in my view the objective seriousness of this offence lies slightly below the mid-range.

31. Turning then to the sequence 11 possession of unauthorised pistol offence. This was a fully functioning and highly lethal weapon, although I note that it was in a disassembled state and was not loaded when it was found. It is also relevant that the weapon’s serial number had been altered and the presence of compatible ammunition, albeit located in another room of the unit, increases the objective seriousness, although I note, as I have said, that the weapon was not at the time, loaded. I am mindful however, of the importance of not double counting the presence of the ammunition, given that that is a separate offence which I will take into account on the Form 1 document when imposing sentence for the sequence 11 pistol possession offence.

32. I am mindful also of the fact that, as conceded by the Crown, the offender was not the only person with access to the unit where the gun was found and that there is no evidence that it was intended to be used in connection with drug supply or any other offence. Also, the offender is to be sentenced for possessing the weapon and not for using it. Having regard to these various matters, I assess the objective seriousness as being slightly below the mid-range.

33. Turning then to the objective seriousness of the third offence, that being the sequence 12 offence of dealing with cash that is reasonably suspected of being proceeds of crime. It was submitted by the Crown that this cash was derived from the supply of prohibited drugs and that the criminality of this offence is inextricable from the supply offence in sequence 1. I have considered this submission, but I am unable to accept it for the following reasons: The sequence 1 offence is based on a “deemed” supply, not an actual supply in exchange for money. In these circumstances, it seems to me that the cash found in the safe must be treated as being reasonably suspected of being the proceeds of some other crime. That is, some crime other than, and presumably prior to, the deemed supply.

34. The sequence 12 matter must therefore be seen as a discrete and separate offence. Counsel for the offender referred to the “potential” connection between this cash and the drug supply offence, but pointed out that the offender is to be sentenced for an offence involving “reasonable suspicion” of being proceeds of crime and not of knowingly dealing with actual proceeds of crime. This is an important distinction and I am conscious of the need to avoid any De Simoni error, and it may involve such an error to conclude that the money was in fact derived from drug dealing. In my view, the evidence strongly supports a reasonable suspicion that the money was the proceeds of prior drug dealing either by the offender alone or in conjunction with others. This conclusion is supported by the fact that the cash was found in a safe in which drugs were also found and in proximity with various other drugs, being a safe and drugs of which the offender had apparent possession and control. I do not however, approach the offence on the basis that the cash was in fact the proceeds of drug dealing or was in fact, the proceeds of any particular crime.

35. I also note that the amount of cash was only slightly in excess of the threshold amount of $100,000 set out in s 193C(1). Again, I accept that the offence involved no real planning or sophistication. Having regard to these various matters, I regard the objective seriousness as being below the mid-range but not in the lower range.

36. Although not relevant to objective seriousness of any of the offences, the fact that they were committed while the offender was subject to Community Correction Orders is a matter that aggravates the seriousness of his overall criminality.

37. There is also the fact that in sentencing for the sequence 1 and sequence 11 offences, I will take into account further offences to which the offender admits. In taking these additional offences into account, I will place greater weight on the need for personal deterrence and the community entitlement to extract retribution for serious offences. Again, these Form 1 offences do not increase the objective seriousness of any of the substantive offences before the court but they may justify some addition to the penalty for the substantive offences. Some increase in the penalty is particularly justified in the case of the sequence 1 offence given that the Form 1 attached to that matter, involves three other different drug offences.

38. As to the possession of the ammunition offence, which is to be taken into account on a Form 1 in sentencing for the sequence 11 firearm offence, any additional penalty should, in my view, be fairly minimal, given that as already observed, I have had regard to the ammunition in assessing the objective seriousness of the firearm offence.

SUBJECTIVE MATTERS

39. I turn then to subjective matters relating to the offender himself. He is aged 46 and was 45 at the time of the offences. According to the history given to psychologist Jason Borkowski, the offender was born in Iran and lived there until he was 18, when he moved to Pakistan, seeking asylum before coming to Australia when he was 24. The offender was raised by his biological parents, however he described his father as having been a drug addict and alcoholic who was often violent towards the offender’s mother and who has spent a large amount of time in prison in Iran. Although the offender’s father died in 1996, the offender has a continuing relationship with his mother, who lives in Australia.

39. The offender has a history of drug use which commenced when he was 11 or 12 and led to some level of drug addiction, as well as a three year prison term in 2008 for drug trafficking when he travelled back to Pakistan. After this, he returned to Australia in 2011 where he has continued to engage in drug and violent offending, which he claims has been due to his drug dependency problems. He has had periods of full-time imprisonment from June 2012 to November 2017 and from August 2018 to August 2019. In addition, on 5 August 2020, he was placed by the Local Court on a Community Correction Order for drug possession and the offences before the court today involve a breach of one of the conditions of those orders, namely that he not commit any offences.

40. After his release on parole in August 2019, the offender worked intermittently as a painter for about 13 months, but once the COVID pandemic commenced, this work was minimal.

41. The offender also reported to the psychologist that he was subject to sexual abuse by a male associate of the family when the offender was in his late childhood. He also told the psychologist that he had previously been diagnosed with Post-Traumatic Stress Disorder, although the basis for this claimed diagnosis and its cause or causes is not made clear in the report. Ultimately, the psychologist provides a diagnosis of Post-Traumatic Stress Disorder, major depressive disorder and opiate use disorder. The report notes that these diagnoses were made on the basis of the offender’s self-report, his presentation in a video interview and “information available to me in the preparation of this report”, which appears, leaving aside the offender’s self-report, to have been the agreed facts and the criminal history.

42. In circumstances where these diagnoses are not based on psychological testing and appear to rely fairly significantly on the offender’s own history, which has not been tested, the weight that I attach to this evidence must be treated with some care. However, the letter from the offender’s sister provides some corroboration of the history of family violence and of sexual abuse and the letters from psychologist Mr Mihalich and hypnotherapist Steven De Nikolits refer to a similar history of trauma and other negative experiences. I do accept therefore, that the offender had a difficult and at times, traumatic upbringing and early adulthood and that this provides some explanation for his frequent abuse of illicit drugs. The fact however, that the offender’s use and addiction to drugs might have contributed in some way to his offending, does not provide any excuse or mitigation.

43. It does seem to me however, that the offender’s difficult background as a child and young adult does reduce his moral culpability to some degree. Also I accept that the offender’s diagnosed mental health issues have and will continue to make his custody more difficult than it otherwise would have been: see Commonwealth DPP v De La Rosa [2010] NSWCCA 194.

REMORSE

45. Turning to matters relating to remorse and future prospects, I make the following findings. The psychologist, Mr Borkowski, notes that the offender expressed sadness, regret and contrition in relation to his offending, accepted responsibility and appeared to be genuinely remorseful. This is consistent with the comments in a letter from the offender’s sister. I accept therefore, that there is some evidence of remorse, but the weight I attach to this is reduced by the fact that the offender gave no evidence on oath.

46. In relation to the offender’s prospects of rehabilitation and risk of future offending, I take particular note of the following;

47. The psychologist’s report says that the offender was unable to identify any prosocial supports stating that he has “no friends” and that relations with his family are strained, due to his history of drug abuse. Although he has some work history, this has been interrupted by periods in custody and has been sporadic even when at liberty. He also has a history of suffering a back injury, which increased his use of illicit drugs and this, in my view, is a matter that will be a continuing challenge into the future in terms of him getting on top of his drug problems.

48. There is also the fact that the offender has, to date, not engaged successfully in any long-term treatment for his drug and other issues. In making this observation, I have not overlooked the fact that he consulted with psychologist Mr Mihalich between October 2019 and July 2020, before relapsing and ending up back in custody. I also note that the offender has apparently, while in custody, completed the brief psychoeducation program known as SMART and told the psychologist that he can “generally” avoid drug use in custody. On the other hand, he does have some institutional offences on his record since he has been in custody.

49. The real test as to his future prospects and future risk, will of course be once he is back in the community. Although I accept that the offender has expressed some wishes to avoid drug use in the future, the various matters I have noted do not instil confidence in his prospects, which I would describe as tenuous. I consider his risk of future offending to be moderately high and to depend on whether he has the strength of character to engage in productive work and to seek out and follow through with drug and other psychological treatment.

THE PANDEMIC

50. I have taken into account a number of recent decisions about the relevance of the COVID-19 pandemic in sentencing, including Moodie v R [2020] NSWCCA 160, Doudar v R [2021] NSWCCA 37 and Mbele v R [2021] NSWCCA 182. Those cases indicate that the impact of the pandemic ought, in appropriate cases, be taken into account but that that impact should not be overstated and it should not be assumed that all people will be impacted equally. There is no evidence that the offender has any heightened physical susceptibility to the disease. However, I accept that the 2021 outbreak, in some prisons, is likely to have added to the stress of his incarceration and that the pandemic has had a practical negative impact by reason of continuing restrictions in contact with family, limitations in accessing medical and counselling services, restrictions in accessing work and education and additional lockdowns in prisons.

51. I have therefore taken into account that the offender’s imprisonment has been and is likely to continue to be, more difficult than it would have been prior to the pandemic.

CONSIDERATION

52. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which in summary involves the importance of adequate punishment, of deterrence, both personal and general, of protecting the community, of making the offender accountable, denouncing his conduct, recognising the harm done to the community, but also the importance of promoting the offender’s rehabilitation.

53. It was argued by the Crown that the offender’s history indicates a continuing disobedience of the law such that specific deterrence and the protection of the community ought to be given added weight, leading to a more severe penalty. In this regard, the Crown referred to the principles discussed in Veen v R (No.2) (1998) 164 CLR 465. I have considered this submission but I do not consider that the offender’s background of offending is of a magnitude or type that warrants the application of Veen (No.2) principles. That is not however, to deny the importance in this case of a deterrence, both general and specific, and of the need for adequate punishment and protection of society.

54. I am satisfied that the s 5 so called threshold, has been crossed and that no penalty other than full-time imprisonment is appropriate.

DETERMINATION   

55. I note that there was consent to me dealing with the breaches of the Community Correction Orders imposed in the Local Court and I note that those breaches were admitted. In relation to those matters I revoke those Community Correction Orders but I take no action, given that the sentence I will impose will subsume any appropriate penalty that might attach to the matters that led to the imposition of those Community Correction Orders.

56. I intend to impose an aggregate sentence and in those circumstances I am required to nominate the indicative sentences, those being the ones that I would have imposed had I not imposed an aggregate sentence.

57. Mr Ismael, the sentences I am about to announce are not the actual sentence that I will impose. That will be done at the conclusion of my remarks. These are what are called indicative sentences.

58. For the sequence 1 offence, which is the supply commercial quantity of methamphetamine, taking into account the three matters on the Form 1, a head sentence of four years three months and a non-parole period of two years, seven months. In relation to the sequence 11 offence, possessing a pistol and taking into account the matter on the Form 1, a head sentence of two years nine months, with a non-parole period of one year eight months.

59. For the sequence 12 proceeds of crime offence, a sentence of 18 months. Of course, all of those have been reached after the application of the 25 per cent discount for the pleas of guilty.

60. I have had regard to totality principles and the extent to which there should be any accumulation and/or any concurrency in determining the ultimate sentence. It seems to me that there should be some accumulation with regard to the sequence 1 supply offence and the sequence 11 firearm offence, given that they involve discrete criminality. The level of accumulation however, should not be great. As to the sequence 12 proceeds of crime offence, again I think there should be some limited level of accumulation as this offence also involves a discrete example of offending, given that it cannot be linked directly to any of the other offences before the court.

61. I make a finding of special circumstances for varying the ordinary ratio between head sentence and non-parole period, based on the fact that the entirety of the offender’s time in custody has been during the uncertainty and limitations associated with the pandemic and also due to the risk of his institutionalisation.

62. I impose an aggregate head sentence of 4 years 10 months. I impose a non-parole period of 3 years. Each of those will date from 27 October 2020, which is the date that the offender went into custody. The head sentence therefore, will expire on 26 August 2025 and the non-parole period will expire on 26 October 2023. I note that a consent order as to the forfeiture of the cash was provided to the court and I have signed that order.

63. Ms Crown, Mr Williams, anything to raise?

64. ROBEAU: No your Honour.

65. WILLIAMS: No your Honour.

66. HIS HONOUR: So Mr Ismael you will be eligible for release to parole on 26 October 2023. That will of course be subject to your behaviour in custody. So it will be in your interests to effectively, stay out of trouble while you are in custody. Okay, do you understand all that?

67. OFFENDER: Yes I do your Honour.

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Decision last updated: 16 November 2022