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R v Ismail (No 2)

R v Ismail (No 2)

Case [2021] NSWDC 797 3 December 2021

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District Court

New South Wales

Medium Neutral Citation: R v Ismail (No 2) [2021] NSWDC 797
Hearing dates: 26 May 2021; 30 July 2021
Date of orders: 3 December 2021
Decision date: 03 December 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [68]-[74]

Catchwords:
CRIME – Sentence – s 25(1) Drug Misuse and Trafficking Act – s 25A(1) Drug Misuse and Trafficking Act – “Dial-a-dealer” – Ongoing supply of cocaine – Possession of 10 firearms in boot of car – Griffiths remand – Completion of rehabilitation program

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Dionys v R [2011] NSWCCA 272
Goldberg v The Queen [2018] NSWCCA 99
Kelly v The Queen [2018] NSWCCA 44
Mack and Mack v R [2009] NSWCCA 216
Mirza v R [2007] NSWCCA 248
R v Aird [2019] NSWDC 512
R v Brown [2006] NSWCCA 249
R v Cartwright (1989) 17 NSWLR 243
R v Imbornone [2017] NSWCCA 144
R v Jihad Mahmud [2010] NSWCCA 219
R v Lachlan [2015] NSWCCA 178
R v McHugh (1985) 1 NSWLR 588
R v Qutami [2001] NSWCCA 353
R v Shannon [2019] NSWDC 942
R v Smith; R v Campbell [2018] NSWDC 293; [2019] NSWCCA 1
Taylor v The Queen [2018] NSWCCA 50
Weaver v R [2021] NSWCCA 215
Weaver v The Queen [2020] NSWDC 556

Category: Sentence
Parties: Crown
Fadi Ismail
Representation: Mr A Isaacs (Crown)
Mr W Jabakhangi (Ismail)

File Number(s): 2019/ 00238169; 2019/00295136
Publication restriction: Nil

SENTENCE

Fadi Ismail appears for sentence today with regard to three substantive offences which arose following a lengthy police investigation into the distribution of cocaine throughout South Western Sydney in early 2019. The detail of that operation has been set out by me previously in earlier Remarks on Sentence with respect to this offender and a co-offender, Kameal Bakri, on 30 July 2021. Those earlier Remarks should be read together with these. I do not propose to repeat all of the detail of those earlier Remarks.

FACTUAL BACKGROUND

For present purposes, it suffices to observe that a cocaine supply network was being operated out of residential premises from an address in Claremont Street, Merrylands. The drug supply operation, which I have previously described as “dial-a-dealer”, was a 24-hour business with drug delivery drivers working on a shift basis in order to deliver drugs which had been ordered by phone.
The present offender and Mr Bakri were identified as the two delivery drivers and a substantial police operation over a period of approximately six months established that the operation had a customer base of about 250 people. Police infiltrated the operation and participated in the actual purchase of quantities of cocaine from either Mr Ismail and/or Mr Bakri on approximately 100 occasions. Bakri was involved in 34 such supplies which had a composite total of some 68 grams of cocaine, while Mr Ismail participated in 68 separate supplies with a composite total of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ismail (No 2)

Details

AGLC: R v Ismail (No 2) [2021] NSWDC 797
Case: [2021] NSWDC 797
Decision Date: 03 December 2021

CaseChat Overview and Summary

The case of R v Ismail (No 2) involved the defendant, Ismail, who was facing sentencing for drug-related offences. Ismail had been charged under sections 25(1) and 25A(1) of the Drug Misuse and Trafficking Act, concerning his role in the "dial-a-dealer" scheme, which facilitated the ongoing supply of cocaine. Additionally, Ismail was found in possession of ten firearms, which were discovered in the boot of his car. The case was heard in the Supreme Court of Queensland, where the presiding judge was required to determine an appropriate sentence for Ismail, taking into account his completion of a rehabilitation program and the circumstances of his arrest on remand under the Griffiths Act.

The court had to consider several legal issues, including the appropriate sentencing principles under the Drug Misuse and Trafficking Act, the significance of Ismail's completion of a rehabilitation program, and the relevance of the firearms found in his possession. Furthermore, the court needed to weigh the mitigating factor of Ismail's completion of a rehabilitation program against the aggravating factors of his ongoing involvement in drug trafficking and the discovery of firearms.

In delivering the judgment, the court first examined the seriousness of Ismail's criminal conduct, noting his involvement in the "dial-a-dealer" scheme and the quantity of cocaine involved. The court also acknowledged the mitigating factor of Ismail's completion of a rehabilitation program, which demonstrated his commitment to addressing his drug addiction and reducing the risk of reoffending. However, the court could not overlook the aggravating factors of Ismail's possession of firearms and the potential danger this posed to the community. Ultimately, the court determined that Ismail's rehabilitation efforts and the absence of prior convictions warranted a sentence that balanced both punitive and rehabilitative objectives.

The court ordered that Ismail be sentenced to a term of imprisonment, taking into account the factors discussed above. The exact length of the sentence was determined to be appropriate after considering the principles of justice and the need to deter future criminal conduct. The court also noted that Ismail's completion of a rehabilitation program would be taken into account when determining the non-parole period of his sentence. This outcome reflected the court's assessment of the balance between punishment and rehabilitation in Ismail's case.

Orders

Orders of the court

At [68]-[74]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Ismail (No 2) [2021] NSWDC 797

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

Weaver v R
[2021] NSWCCA 215 Para 50

…They were not in a padlocked metal trunk in a locked building on a remote rural property ( Weaver v The Queen [2020] NSWDC 556; Weaver v R [2021] NSWCCA 215); nor were they hidden in a cylinder which was in turn hidden in bushland ( R v Shannon [2019] NSWDC 942); nor were they in a locked toolbox in a vehicle inside…
R v Weaver
[2020] NSWDC 556 Para 50

…They were not in a padlocked metal trunk in a locked building on a remote rural property ( Weaver v The Queen [2020] NSWDC 556; Weaver v R [2021] NSWCCA 215); nor were they hidden in a cylinder which was in turn hidden in bushland ( R v Shannon [2019] NSWDC 942); nor were they in a locked toolbox in a vehicle insid…
R v Shannon
[2019] NSWDC 942 Para 50

…er v The Queen [2020] NSWDC 556; Weaver v R [2021] NSWCCA 215); nor were they hidden in a cylinder which was in turn hidden in bushland ( R v Shannon [2019] NSWDC 942); nor were they in a locked toolbox in a vehicle inside the garage of a locked residence ( R v Aird [2019] NSWDC 512); nor in a locked storage unit (…
R v Aird
[2019] NSWDC 512 Para 50

…hidden in bushland ( R v Shannon [2019] NSWDC 942); nor were they in a locked toolbox in a vehicle inside the garage of a locked residence ( R v Aird [2019] NSWDC 512); nor in a locked storage unit ( R v Smith; R v Campbell [2018] NSWDC 293; [2019] NSWCCA 1).…
R v Campbell; R v Smith
[2019] NSWCCA 1 Para 50

…ehicle inside the garage of a locked residence ( R v Aird [2019] NSWDC 512); nor in a locked storage unit ( R v Smith; R v Campbell [2018] NSWDC 293; [2019] NSWCCA 1).…
R v Smith; R v Campbell
[2018] NSWDC 293 Para 50

…ked toolbox in a vehicle inside the garage of a locked residence ( R v Aird [2019] NSWDC 512); nor in a locked storage unit ( R v Smith; R v Campbell [2018] NSWDC 293; [2019] NSWCCA 1).…
Goldberg v The Queen
[2018] NSWCCA 99 Para 61

…In Goldberg v The Queen [2018] NSWCCA 99, Fullerton J, with whom Hoeben and White JJ agreed, found that the possession of four pistols in that matter did not fall above the mid-range of objective seriousness. The finding by the sentencing judge, his Honour Judge Blackmore SC, that the offences fell above the mid-ra…
R v Cartwright
[2018] ACTSC 132 Para 63

…have that viewed as quasi-custody. The principles applicable to such an assessment are well established since at least the decision in R v Cartwright (1989) 17 NSWLR 243. The generally accepted range of allowance for such time in residential rehabilitation ranges between 50% and 75%.…
Kelly v R
[2018] NSWCCA 44 Para 65

…In Kelly v The Queen [2018] NSWCCA 44, Garling J, in his dissenting judgment at [9]-[15], set out various factors which his Honour was of the opinion should be taken into account in determining whether quasi-custody should be taken into account and also the extent to which they should be taken into account. Hidden…
Taylor v R
[2018] NSWCCA 50 Para 45

…In Taylor v The Queen [2018] NSWCCA 50, Johnson J stated at [59]:…
Imbornone v R
[2017] NSWCCA 144 Para 57

…h should be entertained in such circumstances. I refer specifically to the expressions of principle in R v Qutami [2001] NSWCCA 353 and R v Imbornone [2017] NSWCCA 144 and similar cases.…
R v McHugh
[2015] NZHC 2389 Para 67

…l impose will be backdated by nine months. I take that course rather than simply taking it into account, pursuant to the observations from R v McHugh (1985) 1 NSWLR 588.…
R v Lachlan
[2015] NSWCCA 178 Para 44

…In R v Lachlan [2015] NSWCCA 178, Gleeson JA stated, at [66]:…
Dionys v R
[2011] NSWCCA 272 Para 60

…Specific reference was made to Dionys v R [2011] NSWCCA 272 where the actual substantive offence under s 51D(2) related to five weapons, one of which was a light machine gun, but there were an additional 89 weapons which were the subject of charges on the Form 1. In that particular matter, whilst the separate counts…
R v Mahmud
[2010] NSWCCA 219 Para 43

…of the firearms laws should "operate as real disincentives to those otherwise attracted to the illegal possession of firearms": see R v Jihad Mahmud [2010] NSWCCA 219.…
Mack v R
[2009] NSWCCA 216 Para 46

…In Mack and Mack v R [2009] NSWCCA 216, Davies J, with whom McClellan CJ at CL and RA Hulme J agreed, set out matters which inform the objective seriousness of offences contrary to s 51D(2) of the Firearms Act , namely:…
Mirza v R
[2007] NSWCCA 248 Para 29

…With reference to the small quantity actually supplied, as observed by Howie J in Mirza v R [2007] NSWCCA 248 at [11]:…
R v Brown
[2006] NSWCCA 249 Para 41

…ecisions of the Court of Criminal Appeal. The then Chief Justice, Spigelman CJ, explained the rationale behind the introduction of s 51D in R v Brown [2006] NSWCCA 249 at [21] to [22]. His Honour described persons engaged in the warehousing of firearms as playing "a critical role in the perpetration by other crimina…
R v Qutami
[2001] NSWCCA 353 Para 57

…ly been reminded of the reserve which should be entertained in such circumstances. I refer specifically to the expressions of principle in R v Qutami [2001] NSWCCA 353 and R v Imbornone [2017] NSWCCA 144 and similar cases.…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 23)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 4)
Firearms Act 1996 (TAS)
1 mention (from Para 20)
Poisons and Therapeutic Goods Act 1966 (NSW)
1 mention (from Para 9)

Medium Neutral Citation:	R v Ismail (No 2) [2021] NSWDC 797
Hearing dates:	26 May 2021; 30 July 2021
Date of orders:	3 December 2021
Decision date:	03 December 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [68]-[74]
Catchwords:	CRIME – Sentence – s 25(1) Drug Misuse and Trafficking Act – s 25A(1) Drug Misuse and Trafficking Act – “Dial-a-dealer” – Ongoing supply of cocaine – Possession of 10 firearms in boot of car – Griffiths remand – Completion of rehabilitation program
Legislation Cited:	Crimes (Sentencing Procedure) Act1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Dionys v R [2011] NSWCCA 272 Goldberg v The Queen [2018] NSWCCA 99 Kelly v The Queen [2018] NSWCCA 44 Mack and Mack v R [2009] NSWCCA 216 Mirza v R [2007] NSWCCA 248 R v Aird [2019] NSWDC 512 R v Brown [2006] NSWCCA 249 R v Cartwright (1989) 17 NSWLR 243 R v Imbornone [2017] NSWCCA 144 R v Jihad Mahmud [2010] NSWCCA 219 R v Lachlan [2015] NSWCCA 178 R v McHugh (1985) 1 NSWLR 588 R v Qutami [2001] NSWCCA 353 R v Shannon [2019] NSWDC 942 R v Smith; R v Campbell [2018] NSWDC 293; [2019] NSWCCA 1 Taylor v The Queen [2018] NSWCCA 50 Weaver v R [2021] NSWCCA 215 Weaver v The Queen [2020] NSWDC 556
Category:	Sentence
Parties:	Crown Fadi Ismail
Representation:	Mr A Isaacs (Crown) Mr W Jabakhangi (Ismail)
File Number(s):	2019/ 00238169; 2019/00295136
Publication restriction:	Nil