R v Jabal
[2020] ACTSC 230
•20 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jabal |
Citation: | [2020] ACTSC 230 |
Hearing Dates: | 2 April 2020 and 27 July 2020 |
DecisionDate: | 20 August 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [76] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in trafficking of cocaine – low risk of re-offending – additional offences of drug possession – late plea of guilty – suitability of an Intensive Correction Order |
Legislation Cited: | Criminal Code 2002 (ACT) ss 45 and 603(7) Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A and 5 Crimes (Sentencing) Act 2005 (ACT) Pt. 4.4, ss 6, 7, 11, 33 and 57 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen (Crown) Youssef Jabal (Offender) |
Representation: | Counsel T Jones (Crown) M Dennis SC (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Numbers: | SCC 122 of 2018 SCC 130 of 2018 |
LOUKAS-KARLSSON J:
Introduction
On 16 March 2020, Youssef Jabal (the offender) pleaded guilty to an offence of being knowingly concerned in the trafficking of a controlled drug other than cannabis, namely cocaine, on 5 December 2017 contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) and by virtue of s 45(1) of that Act. The maximum penalty for this offence is 10 years’ imprisonment, 1,000 penalty units, or both.
The offender requested that the following additional offences be taken into account on sentence pursuant to Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act):
(a)An offence of possessing a drug of dependence, namely cocaine, on 14 December 2017, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is 2 years’ imprisonment, 50 penalty units, or both.
(b)An offence of possessing a prohibited substance, namely 3,4-methylenedioxymethamphetamine (MDMA), on 14 December 2017, contrary to s 171(1) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is 2 years’ imprisonment, 50 penalty units, or both.
Agreed Facts
In the morning of 5 December 2017, Mr Bilal Omari (Mr Omari) drove a white Jeep Grand Cherokee to the Australian National University (ANU) and entered the secure ANU car park on Kingsley Street, Acton.
Around 10am that morning, police entered the Hancock Building at the ANU and located Mr Omari for the purpose of executing search warrants. During the execution of the warrant at that building, Mr Omari stated he had not driven to work and had been dropped off that morning by a family member.
Around 3pm that afternoon, police advised Mr Omari that they were in possession of a search warrant in relation to the white Jeep Grand Cherokee. At this time, Mr Omari exercised his right to contact a friend or relative, and he telephoned his girlfriend, Ms Fiona Brosnan.
At approximately 3.20pm that afternoon, a telephone call between Ms Brosnan and the offender was intercepted. During the call, Ms Brosnan stated she was trying to call Mr Masoud Omari because he had a spare key to Mr Omari’s car. The offender stated he had not been able to get in touch with Mr Masoud Omari all day. Ms Brosnan ended the call, saying Mr Omari was calling her.
Two minutes later, a further telephone call from Ms Brosnan to the offender was intercepted. During the call, Ms Brosnan stated that the police were at Mr Omari’s work and they would be going to his car in the next 15 to 20 minutes. The offender confirmed he had not had any contact with Mr Masoud Omari. Ms Brosnan then stated: “Break it, Youssef. Something. Like, he’s got everything in his car.” Ms Brosnan further stated that Mr Omari was at work, police had his phone, and Mr Omari had called her from a police phone. The offender stated: “Leave it with me. I’ll work it out”.
A further two minutes later, at 3.25pm, a phone call was intercepted between Ms Brosnan and the offender. During the call, Ms Brosnan stated: “Yeah. Well, he just called me then. He said for you, he doesn’t care. Go break the window, he’ll hold them off. Just break the window and get to his car and take um, just clean, clean out whatever …”. Ms Brosnan explained to the offender where the car was.
At 3.27pm and 3.28pm, two telephone calls from Ms Brosnan to the offender were intercepted; each call was a group call between Ms Brosnan, Mr Omari, and the offender. During the phone calls, Mr Omari and the offender spoke in Arabic, with Mr Omari providing instructions to break the back window of the car and remove a bag from the back. Mr Omari further enquired as to how long the offender would take to complete this.
At approximately 3.45pm, police arrived at the car park on Kingsley Street. As one officer approached the wire fencing around the car park, he heard several loud bangs followed by a car alarm. The officer observed a male person standing next to the white Jeep Grand Cherokee’s driver side window and reaching into the vehicle. The officer recognised the male as Mr Adam Jabal, the offender’s brother. After the arrival of the police officer, Mr Adam Jabal walked towards the exit and police lost sight of him.
At approximately 3.55pm, additional police arrived at the car park with swipe card access. Police approached the white Jeep Grand Cherokee and observed that the rear driver side window had been smashed. On the ground below the smashed window was a white plastic bag, broken glass fragments, and a black tyre iron.
Police executed a search warrant on the white Jeep Grand Cherokee. The following items were located in a white plastic bag underneath the smashed window:
(a)A plastic sandwich bag containing white powder, found to be 32.485 grams of cocaine. Forensic analysis identified the offender’s fingerprints and Mr Omari’s DNA on this sandwich bag.
(b)A plastic sandwich bag containing white powder, found to be inositol (a known cutting agent for cocaine). Forensic analysis identified Mr Omari’s DNA on this sandwich bag.
(c)A set of digital scales with white powder residue, found to be cocaine. Forensic analysis identified Mr Omari’s DNA and fingerprints on the scales.
Forensic analysis identified the offender’s DNA on the white plastic bag.
The following items were located inside the white Jeep Grand Cherokee:
(a)$12,005 in Australian currency, comprising $9,005 in various notes in the centre console, and $3,000 in $50 notes in a bag.
(b)A clip seal bag containing white powder, found to be 0.634 grams of cocaine.
(c)Five empty clip seal bags found to contain traces of cocaine. Forensic analysis identified Mr Omari’s DNA on the clip seal bags.
(d)A jar labelled inositol.
(e)A white plastic measuring cup containing a white residue, found to be cocaine. Forensic analysis identified Mr Omari’s DNA on the cup.
(f)A false licence in the name of “Kirsten Crawford” with a photograph of Ms Brosnan.
On 14 December 2017, police executed a search warrant at the residence of the offender. Police located the following items:
(a)A plastic bag, located in the backyard, containing: a knotted plastic bag containing a white powder, found to be 2.489 grams of cocaine; a knotted plastic bag containing a light brown crystalline substance, found to be 9.805 grams of MDMA; and a knotted plastic bag containing 14 round grey tablets, found to be 3.821 grams of MDMA.
(b)A clip seal bag, located in a suitcase in the bedroom, containing an off-white powder, found to comprise 1.017 grams of MDMA. Forensic analysis identified the offender’s DNA on the bag.
(c)Electronic scales with a white powdery residue, found to be cocaine.
(d)A clip seal bag, located in the kitchen pantry, with a white powdery substance, found to be 0.009 grams of cocaine.
(e)$11,315 in Australian currency, located in the master bedroom.
(f)$1,545 in Australian currency, located on the offender’s person.
(g)$6,570 in Australian currency, located during the execution of a search warrant on the offender’s vehicle.
(h)A blackberry mobile phone.
(i)A secure, encrypted Android mobile phone.
A number of recorded phone calls following the events of 14 December 2017 show the offender making exculpatory statements to unknown persons. In a phone call on 19 December 2017, the offender stated: “I didn’t do anything. I didn’t even do anything. Just a phone call and look what happens”.
Sentencing Principles in Drug Trafficking Cases
The prosecution submitted that the NSW Court of Criminal Appeal in Parente v The Queen [2017] NSWCCA 284; 96 NSWLR 633 (Parente) provides relevant principles for sentencing in drug supply cases.
Relevant statements from the NSW Criminal Court of Appeal in Parente include the following:
How should sentencing in drug supply cases be approached?
107Sentencing in drug supply cases should be approached in a manner consistent with the general principles referred to earlier. Nonetheless, there are some matters that should be emphasised.
108First, 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 which include "(b) to prevent crime by deterring the offender and other persons from committing similar offences" and "(c) to protect the community from the offender".
109Since at least the 1970s (see the cases referred to above at [63]ff) 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.
110Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.
111Secondly, 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 The Queen (2011) 244 CLR 120 at 132 [27]; [2011] HCA 39) and for drug supply offences they are set at a high level. Gleeson CJ, Gummow, Hayne and Callinan JJ spoke of the importance of having regard to the maximum penalty in Markarian v The Queen at 372 [31] as follows:
"[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
112Thirdly, Simpson JA in Robertson v R at [50] was, with respect, correct to observe:
"[I]t may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing "to a substantial degree", a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives."
113Finally, it is a requirement of the Crimes (Sentencing Procedure) Act that, "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate" (s 5(1)). This is a consideration of the possibility of options such as a fine, a bond, or a community service order (at present) rather than of the possible alternative ways in which a sentence of imprisonment might be served (presently, by way of full-time imprisonment, home detention or an intensive correction order). As Simpson JA noted in Robertson v R at [97]:
"[T]here is nothing in s 5 that directs a judge, having decided that no alternative to imprisonment is a viable option, then to exclude from consideration any non-custodial means by which the sentence may be served."
114What her Honour said is consistent with the approach endorsed by this Court: R v Foster [2001] NSWCCA 215; 33 MVR 565 at [30]; R v Zamagias [2002] NSWCCA 17 at [22]-[29]; and Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [70]-[72]. That approach is to determine:
(1) whether no sentence other than imprisonment is appropriate (regardless of how it might be served);
(2) if so, the length of such a sentence (regardless of how it might be served); and
(3) whether any alternatives to full-time incarceration are available and appropriate.
115As to the appropriateness of imposing a sentence of imprisonment to be served in some alternative way, it is important to have regard to the following from the judgment of Howie J in R v Zamagias at [28] (and see similarly in the judgment of Johnson J in Douar v R at [72]):
"[T]he appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment." (Citation of authority omitted)
The prosecution further submitted that Australian case law on sentencing for drug trafficking offences emphasises that general deterrence is the sentencing factor that should ordinarily be afforded the most weight, citing R v Combey (Unreported, Court of Criminal Appeal for Victoria, 5 February 1980, Starke, Anderson and Fullagar JJ), Wong v The Queen [2001] HCA 64; 207 CLR 584, Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123, R v Tang (1998) 3 VR 508, and Parente. This is due to the difficulty in detecting this offending conduct and the enormous social consequences that flow from the trafficking of drugs within Australia: Parris v The Queen [2013] NSWCCA 5.
The Court accepts and underlines that general deterrence looms large in sentencing for drug trafficking offences.
Objective Seriousness
The prosecution referred me to the case of Bui v The Queen [2015] ACTCA 5, in which the ACT Court of Appeal observed the following principles in relation to sentencing for drug trafficking offences:
(a)The role of the accused is an important consideration and those at the higher level of the hierarchy are more culpable: R v MacDonnell [2002] NSWCCA; 128 A Crim R 44 at [33].
(b)While, as decided in Wong at [67]-[70], the weight of the drug is not determinative when assessing objective seriousness, it remains a relevant factor because of the harm that arises from its distribution: R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 at [34].
(c)The motivation for the offence is highly relevant, and a motive of financial gain is an aggravating factor: R v Speechly [2002] NSWCCA 300; 133 A Crim R 26 at [20] and R v Day (1998) 100 A Crim R 275 at 277.
Counsel for the offender submitted that the key considerations in assessing the objective seriousness of the offence include the following:
(a)The offender is charged with being “knowingly concerned” with supply and not the supply itself.
(b)The quantity is little more than an ounce.
(c)The role of the offender was entirely unplanned and highly spontaneous in nature.
(d)The role of the offender was brief in duration and facilitative of his own “self-preservation.
(e)The act of “self-preservation” should not be raised to the level of a desire to pervert the course of justice, as that would breach the De Simoni principle.
(f)Given the familial relationship between the offender and Mr Adam Jabal, it cannot be safely concluded that the offender was “exercising authority”.
(g)The DNA and fingerprint evidence, while circumstantial, does not sustain a finding beyond reasonable doubt that the level or duration of participation in the enterprise went beyond receiving and making the relevant phone calls set out in the Agreed Facts.
(h)The items found in the offender’s home fall short of proving beyond reasonable doubt that the offender participated in any ongoing acts of supply, again noting the principle in De Simoni. It is conceded, however, that the offender cannot establish on balance that the matter was an isolated incident, restricted to the brief period in the Agreed Facts.
(i)The Crown conceded, correctly, that it is not possible to establish a financial motive.
Quantity of Drugs
The prosecution submitted that the objective seriousness of drug trafficking offending is substantially, although not definitively, informed by the quantity of the drugs involved: Written Submissions at [8].
In this case, the quantity of cocaine, 32.485 grams, is greater than five times the trafficable quantity of 6 grams. In the prosecution’s submission, the quantity is consistent with a “relatively small but nonetheless active drug trafficking enterprise”: Written Submissions at [9].
It was submitted by the prosecution that the Court can also take into account the other items located inside the white plastic bag located under the window of the Jeep Grand Cherokee and inside the vehicle itself. These items, including inositol and digital scales, are typical indicia of an active supply operation: Written Submissions at [9].
The Offender’s Role
The prosecution submitted that the Court could be satisfied that the offender was aware of the quantity of cocaine in the sandwich bag and that the offender had an interest in arranging its removal from the vehicle before police could discover it: Written Submissions at [10]. The prosecution submitted that this inference could be drawn from the fact that the offender’s fingerprints and DNA were located on the plastic sandwich bag in which the cocaine was found; and by the “apparent shared understanding” of what was contained in the Jeep Grand Cherokee and why it needed to be removed before the police searched the vehicle.
The prosecution submitted that it was significant that the offender, knowing that police were approaching the Jeep Grand Cherokee, ordered his younger brother, Mr Adam Jabal, to break into the vehicle and remove the bag. The prosecution submitted that this reflects the offender’s authority and capacity to give direction to others: Written Submissions at [13]. In response, counsel for the offender submitted that this is “not by virtue of some drug hierarchy, but rather by virtue of their relationship” as brothers: T 2/4/20, 17.38-47.
The prosecution further submitted that the offending conduct is aggravated by the fact that “the steps taken by the offender were intended to interfere with and frustrate a police investigation”: Written Submissions at [13].
Counsel for the offender submitted that the offending was restricted to a limited and discrete period of time on 5 December 2017. Counsel indicated that the offender’s low level of involvement can be inferred from his statement on the phone to an unknown person on 19 December 2017, in which he says: “I didn’t do anything. I didn’t even do anything. Just a phone call and look what happens”.
Counsel for the offender summarised the offender’s role as follows (T 2/4/2020, 11.22-27):
…what we are talking about is he receives a bundle of phone calls in a panic from a relative of his. His misplaced loyalty gets him involved in something. There is no evidence that he knew exactly what was there, but we accept … that it was [a] reference to drugs and it was [a] reference to trafficable quantities of drugs, so we accept those two factors.
In response, the prosecution submitted that it would be “artificial” to look at the offender’s actions on 5 December 2017 in isolation: T 2/4/2020, 12.41-13.2.
The prosecution accepted that the evidence does not establish beyond a reasonable doubt that the offender had a financial interest in the drugs; however, it was submitted that it could be established that the offender had an interest in removing the drugs from the car: T 2/4/2020, 14-15.
The prosecution further submitted that the Court could be satisfied that the offending conduct was not a momentary aberration: Written Submissions at [15]. This was supported by reference to the items located during the search of the offender’s residence.
The Court accepts that the offender had an interest in the drugs, although it is not established beyond a reasonable doubt that the interest was a financial one, as conceded by the prosecution.
The offender’s counsel conceded that the motive was one of “self-preservation”. Counsel further conceded that the matter was not an isolated incident. These concessions are properly made, as the actions of the offender cannot be seen in a vacuum and extracted from context, nor extracted from the conversations that revealed a “shared understanding”. The Court takes these matters into account as context, while also being conscious of the limits of the offender’s role, in accordance with the principles enunciated in The Queen v De Simoni (1981) 147 CLR 383 at 389.
Subjective Circumstances
In evidence before me is an Intensive Correction Order (ICO) Assessment Report dated 23 July 2020.
The offender is 35 years of age, born and raised in Canberra in a positive and supportive family environment. He maintains a close relationship with his mother and five siblings; his father passed away some years ago. The report indicates that the offender has no children and is in a long-distance relationship with a woman who lives interstate. In court on 27 July 2020, counsel for the offender indicated that the offender’s circumstances in respect of this relationship had changed.
The offender completed Year 12 and is currently self-employed as a builder. He advised he has a close network of friends that are pro-social, however, he acknowledged having previous contact with anti-social peers at the time of the commission of these offences.
The offender stated that he began to use cocaine in his early twenties. The offender’s brother reported that the offender had experienced “a change in his attitudes towards his past illicit substance use and persons associated with the party lifestyle” and that the offender has distanced himself from such people. The offender advised that he spends most of his free time with family or at the gym.
The offender reported suffering from anxiety since his early twenties and provided a mental health medication script to the author of the report to demonstrate ongoing and long-term compliance with his medication for anxiety.
The report states that the offender appeared to minimise his involvement in the current offences. Nevertheless, he acknowledged the negative impact of the people he was associating with at the time of the offending. The offender verbalised to the report writer a willingness to accept the consequences of his actions and any sentencing outcomes.
Criminal History & Prior Good Character
The offender has a limited criminal history. In 2007, the offender was convicted, fined and disqualified from driving for offences of driving while suspended and providing false details to police. In 2014, he received convictions and fines for three offences of possessing a prohibited weapon without authorisation. In 2019, he was fined for using a mobile phone while driving.
The prosecution accepted that the offender’s criminal history is limited; however, it was submitted that good character carries less weight in drug offences than in most others: R v Cheikh [2004] NSWCCA 448 at [50] and R v Leroy (1984) 2 NSWLR 441 (Leroy).
In Leroy, it was stated at 446-447:
Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and lifestyles are not such as to attract suspicion. It is this, in particular, which has led courts to take in the case of drug trafficking, a view which does not involve the same degree of leniency being extended to first offenders.
The prosecution accepted that prior good character is relevant to prospects of rehabilitation and should be taken into account on sentencing, noting the limitation referred to above. The prosecution further noted that good character and lack of criminal history have significantly less weight when the offending involves deliberate and planned criminality: Ha v The Queen [2008] NSWCCA 141 at [43].
Counsel for the offender submitted that, in terms of the offender’s criminal history, “there is nothing remarkable that deters or takes away from his prospects of rehabilitation”: T 2/4/2020, 11.39-40.
The offender’s lack of a relevant criminal record will be taken into account on sentence. It is not a criminal history that disentitles the offender to leniency: T 2/4/20, 16.35.
Plea of Guilty
The offender entered a plea of guilty on 16 March 2020. This was after the scheduled commencement date of trial, but prior to the trial commencing. The commencement of the trial was delayed due to a severance application by a co-accused, and ongoing discussions between the prosecution and counsel for the offender and co-offenders.
Counsel for the offender submitted that a discount in the order of 15% would be appropriate: T 2/4/40, 20.28-29. The prosecution accepted that a discount in the range of 10-15% for the plea of guilty would be appropriate: T 2/4/20, 25.7-9.
In my view, in all the circumstances of the case, a discount of approximately 14% is appropriate.
Time in Custody
The offender spent six days in custody in relation to these offences, from 14 December 2017 to 19 December 2017.
An ICO cannot be backdated and, on one view, the offender receives no credit for the time spent in custody. In setting the length of the ICO, however, I can take into account the fact that the offender has spent some time in custody in relation to this offence, and I do so: see R v McDowall [2020] ACTSC 184 at [17].
Comparable Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
Comparable cases from this jurisdiction provide a “yardstick”, as referred to by the High Court, in relation to this sentencing exercise: Hili at [53]-[54].
I was referred to the following cases by the prosecution:
(a)Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168: The offender was charged with three counts of trafficking in a controlled drug and two counts of possessing a prohibited weapon. The trafficking offences related, respectively, to 137.96 grams of cocaine, 19.23 grams of MDMA, and 57.28 grams of methylamphetamine. The offender pleaded not guilty and had a limited criminal history. The offender was 37 years of age at the time of sentence. He had positive character references and longstanding methylamphetamine and cocaine addictions. The offender participated in rehabilitation programs, did not offend in the three years following the offences, and ceased association with an Outlaw Motorcycle Gang prior to sentencing. The offender was sentence to 2 years of imprisonment for the cocaine trafficking; 6 months of imprisonment for the MDMA trafficking; 18 months of imprisonment for the methylamphetamine trafficking; and 4 months each for the possess prohibited weapon offences. The total sentence was 3 years of imprisonment with a non-parole period of 20 months. An appeal against the sentence by the offender was dismissed.
(b)R v Hou [2017] ACTCA 14: The offender was charged with manufacturing a controlled drug for selling; possessing a large commercial quantity of a controlled precursor, namely nitromethane; and trafficking in a controlled drug other than cannabis, namely MDMA. The offender had no criminal history and pleaded guilty to the offences. The offender had leased an industrial space with the intention of setting up a clandestine laboratory for the manufacture of MDMA. When apprehended, the offender was in the course of distilling an MDMA precursor. He was found with 32.1 litres of nitromethane and 71.223 grams of MDMA. The offender was considered a person of good character and was motivated by financial gain. The offender was sentenced to 1 year and 10 months of imprisonment for the manufacturing charge; 3 years of imprisonment for the possession of a precursor charge; and 3 months of imprisonment for the trafficking charge. The total sentence was four years of imprisonment with a non-parole period of two years. In a Crown appeal against the sentence, the Court of Appeal found that, although lenient, the sentences were not manifestly inadequate.
(c)R v Harrington [2016] ACTCA 10; 11 ACTLR 215: The offender was charged with attempting to possess a marketable quantity of cocaine and trafficking in cocaine. The attempted possession offence related to 258.5 grams of cocaine, and the trafficking offence related to 24.91 grams of cocaine. The offender entered a plea of guilty and had a limited criminal history. The offender was 62 years of age at the time of sentence. He had strong family and community ties and a strong employment record. He had been diagnosed with cancer and was assessed as a person of good character with a low risk of reoffending. The offender was sentenced to four years and six months of imprisonment for the attempted possession offence. He was sentenced to 10 months of imprisonment for the trafficking offence. Following a successful Crown appeal, the offender was re-sentenced to seven years’ imprisonment for the attempted possession offence, and one year and six months’ imprisonment for the trafficking offence. The total sentence was 8 years of imprisonment, with a non-parole period of 4 years and 6 months’ imprisonment.
(d)R v Watson [2018] ACTSC 172: The offender was sentenced for two counts of trafficking in a trafficable quantity of cannabis; three counts of being knowingly concerned in trafficking of a controlled drug, namely MDMA, methylamphetamine and THC; one count of trafficking in a controlled drug, namely LSD; two counts of possessing a drug of dependence, namely amphetamine and cocaine; and one count of possessing a prohibited substance, namely MDMA. The quantities of the drug were not referred to in the judgment; however, the street value of the drugs seized was $48,000 in 2015, with the cannabis accounting for nearly $32,000 of that amount. The offender pleaded guilty and had a criminal history with prior relevant offences. The circumstances of the knowingly concerned charges were that the offender’s partner was selling various drugs from her house. For the knowingly concerned offences, the offender was sentenced to four months of imprisonment for the MDMA; six months of imprisonment for the methylamphetamine; and six months of imprisonment for the THC.
Parity
I note for completeness that there are three co-offenders who have pleaded guilty to related Commonwealth offending with which the offender is not charged: Mr Bilal Omari, Mr Peter Poulakis, and Mr Emin Yavuz.
Additional Offences
The offender has requested that, under Part 4.4 of the Sentencing Act, certain offences, referred to above at [2], be taken into account for the purposes of sentencing in relation to the offence of being knowingly concerned in the trafficking of cocaine.
A number of relevant principles in relation to consideration of additional offences were enunciated by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]-[50] (Campbell), including:
(a)The Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal: at [43], Sentencing Act s 57(1);
(b)Any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account: at [46], Sentencing Act s 57(1);
(c)In taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution, and in taking them into account they will no doubt be considered in the assessment of the offender’s character and prospects of rehabilitation: at [47], [50];
(d)It is not necessary for a court to indicate precisely what effect the taking into account the additional offences has, and while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so: at [49]-[50];
(e)“Taking offences into account” means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result of increasing, or changing the nature of, the sentence to be imposed: at [50]; and
(f)The offender is not to be sentenced for the additional sentences: at [50].
I will take into account, when determining the appropriate sentence for the trafficking offence, the additional offences referred to above at [2]. I also have regard to the principles outlined in Campbell as to how the offences are to be taken into account.
Sentencing Disposition
The prosecution submitted that no penalty other than imprisonment in the circumstances of this offending was appropriate. Nevertheless, it was further submitted by the prosecution that alternatives to fulltime imprisonment may be available and that an ICO would be within the appropriate sentencing discretion: Written Submissions at [19]-[21].
At the sentence hearing, counsel for the offender submitted against the imposition of an ICO on the offender. In this respect, counsel noted that the offender had already been subject to strict bail conditions for around two years, including reporting conditions and being subject to urinalysis: T 2/4/20, 21.4-18. Counsel for the offender submitted that a wholly suspended sentence was appropriate: T 27/7/20, 34.
Counsel for the offender submitted that the offences do not necessarily cross the threshold for imprisonment under s 10 of the Sentencing Act. Counsel submitted that the matters the Court should consider in determining whether the s 10 threshold is crossed include: the offender’s limited criminal history; the onerous bail conditions the offender was subject to for a significant period; the initial period during which the offender was remanded in custody; and the utilitarian value of the offender’s plea of guilty.
Counsel further submitted that, even if the s 10 threshold is crossed, it would be appropriate for the imprisonment to be served by way of suspended sentence: T 2/4/2020, 8.22-33.
Counsel for the offender submitted that an appropriate course of action would be to impose a suspended sentence of imprisonment, suspended immediately on the offender entering into a good behaviour order. Nevertheless, I formed the view that it was appropriate to order an ICO Assessment Report in light of the nature of the offence and the subjective matters concerning the offender.
The prosecution submitted that the s 10 threshold has been crossed, but accepted that it would be appropriate for the imprisonment to be served by way of ICO, as stated above: T 27/7/20, 36. The prosecution submitted that, if an ICO is imposed, the following additional conditions may be appropriate: a community service condition; a condition requiring that the offender attend a drug management program; and a curfew condition.
The ICO Assessment Report author stated that the offender presented as motivated to meet the obligations of an ICO and had a low risk of re-offending.
The offender was assessed as suitable for an ICO. The Report further stated that there would be little benefit gained from imposing a curfew, and that the offender was assessed as suitable for community service work. I am not persuaded that a community service order is necessary in this case as the offender is gainfully employed and has a work ethic.
The Court is further not persuaded that a curfew condition is appropriate. Similarly, the report does not recommend a drug management program. Rather, the report recommends targeting continued compliance with the offender’s mental health medication regime and, if found suitable, engagement with cognitive behaviour treatment. This, in my view, is an appropriate course to adopt, in light of the relevant subjective matters concerning the offender.
Statutory and Other Relevant Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation, and recognition of harm to victims of drug trafficking are important sentencing considerations.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, I am satisfied that imprisonment is the appropriate sentencing outcome, taking into account all the matters discussed above in the process of instinctive synthesis. I am further satisfied that this imprisonment may, and in this case should, be served other than by way of fulltime imprisonment.
Sentence
It must be recognised by the Court that drug trafficking causes significant damage in the community.
As stated above, in coming to a sentence by way of instinctive synthesis, I have taken into account all the matters considered above, including the objective seriousness of the offence, subjective matters, and the additional offences.
The appropriate sentence for the offence of being knowingly concerned in trafficking, taking into account the additional offences, is 14 months of imprisonment reduced to 12 months on account of the discount for the plea of guilty.
Orders
I make the following orders:
(a)I record a conviction in relation to the offence.
(b)The offender is sentenced to a term of 12 months’ imprisonment, commencing on 20 August 2020 and concluding on 19 August 2021.
(c)The sentence is to be served by way of an Intensive Correction Order pursuant to s 11 of the Sentencing Act. The offender is to abide by the core conditions under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).
| I certify that the preceding [76] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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