R v Jawad Hadid

[2016] NSWDC 376

District Court

New South Wales

Medium Neutral Citation:	R v Jawad Hadid [2016] NSWDC 376
Hearing dates:	21 October 2016
Date of orders:	21 October 2016
Decision date:	21 October 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted of each offence. 2 Pursuant to section 11 Crims (Sentencing Procedure) Act 1999 I adjourn the sentence proceedings part heard before me to 19 May 2017.
Catchwords:	CRIINAL LAW – offence - plea of guilty – drugs – supply prohibited drug – firearms – possess prohibited firearm – possess unauthorised pistol SENTENCE – mitigating factors – aggravating factors – objective seriousness – specific deterrence – general deterrence – prospects of rehabilitation SENTENCE PRINCIPLES – deferral of sentencing for rehabilitation - offender’s progress in current residential rehabilitation program – “Griffith’s Remand”
Legislation Cited:	Crimes Act 1900 s.93G(1)(a)(i) Drugs (Misuse and Trafficking) Act 1985 s.25(1) Firearms Act 1996 ss. 7, 66(b) Crimes (Sentencing Procedure) Act 1999 ss.11, 21A(3)(g)
Cases Cited:	R v Farrell [2014] NSWCCA 30 R v ABS [2005] NSWCCA 255 R v Brown (2009) 193 A Crim R 573 R v Rayment (2010) 200 A Crim R 48 R v Robinson (NSWCCA, 15 September 1995, Unreported) R v Leahy [2004] NSWCCA 148 R v Trindall (2002) 133 A Crim R 119 Cramp v R [2208] NSWCCA 40 R v Kristic [2005] NSWCCA 391 R v Tolley [2004] NSWCCA 165 DO v R [2010] NSWCCA 182 R v Amurao [2005] NSWCCA 32 R v Goktas [2004] NSWCCA 296 Butters v R [2010] NSWCCA 1 Yang v R [2007] NSWCCA 37 Muldrock v R (2011) 244 CLR 120 Palijan v R [2010] NSWCCA 142 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 R v Lawrence [2005] NSWCCA 91 R v Todorovic [2008] NSWCCA 49 R v Henry (1999) 46 NSWLR 346
Category:	Principal judgment
Parties:	Regina (Crown) Jawad Hadid (Offender)
Representation:	Counsel: Mr G James AM QC (Offender)     Solicitors: C Hyland, Solicitor for Public Prosecutions (Crown) Macquarie Lawyers (Offender)
File Number(s):	2015/00141472

Judgment

1. Jawad Hadid (the offender) appears for sentence after pleading guilty in the District Court to one count of each of the following offences:

1. supply prohibited drug contrary to section 25(1) Drug Misuse and Trafficking Act 1985 (count 1);

2. possess loaded firearm in public place contrary to section 93G(1)(a)(i) Crimes Act 1900 (count 2);

3. possess firearm with defaced identification contrary to section 66(b) Firearms Act 1996 (Count 3); and

4. possess unauthorised pistol contrary to section 7 Firearms Act 1996 (Count 4).

2. The maximum penalty for Count 1 is 15 years imprisonment and/or a fine of $220 000.

3. The maximum penalty for Count 2 is 10 years imprisonment.

4. The maximum penalty for Count 3 is 14 years imprisonment.

5. The maximum penalty for Count 4 is 14 years imprisonment and parliament has specified a standard non-parole period of 3 years.

6. During the course of the sentence hearing the offender raised the possibility of deferring the sentence proceedings pursuant to section 11 Crimes (Sentencing Procedure) Act 1999, to allow for the completion of his drug rehabilitation.

Relevant principles relating to section 11 Crimes (Sentencing Procedure) Act 1999

7. The rationale for the deferral of sentencing pursuant to section 11 is that it may aid in the determination of the appropriate sentence; R v Farrell [2014] NSWCCA 30 at [58].

8. There must be good reason for concluding that a section 11 adjournment is likely to assist the court in determining whether a custodial sentence should be imposed and, if so, in assessing the length of the sentence or non-parole period: R v Farrell at [51]. Before consideration can be given to making an order under section 11 there must be some assessment of the objective gravity of the offence: R v Farrell at [27], [52]. A section 11 remand should not be ordered where the objective seriousness of the offences requires the imposition of substantial custodial sentences; R v ABS [2005] NSWCCA 255

9. The fact that a full-time custodial sentence is inevitable does not preclude, in exceptional cases, the grant of an order under section 11: R v Brown (2009) 193 A Crim R 574 at [22]; R v Rayment (2010) 200 A Crim R 48 at [22], [160]. A section 11 remand is not confined to cases where the court contemplates a sentence other than full-time imprisonment if rehabilitation is successful: R v Farrell [2014] NSWCCA 30 at [55]. A section 11 remand may be appropriate to allow an offender to complete a course of rehabilitation that they have already commenced; R v Robinson (NSWCCA, 15 September 1989, unreported).

10. In R v Leahy [2004] NSWCCA 148; the Court of Criminal Appeal confirmed that section 11 remand may be appropriate where a fulltime custodial sentence remains the most likely outcome, even if rehabilitation has been achieved, so that the court can gain a more reliable assessment of the offender’s prospects of rehabilitation, for determining the head sentence and the non-parole period.

11. The Court should inform the offender that they are going to gaol if the remand is granted for the purpose of determining both the head sentence and the non-parole period; R v Trindall (2002) 133 A Crim R 119 at [64].

12. The court must be satisfied that the delay that will inevitably result from an adjournment is wholly justified in order to ensure proper exercise of the sentencing discretion: R v Farrell [2014] NSWCCA 30 at [53]. The court must take into account any unfairness that may be caused by the delay.

Facts

13. The parties presented an Agreed Statement of Facts that can be summarised as follows.

14. At about 5.40pm on 12 May 2015, police were patrolling Surry Hills in a marked police car.

15. The police observed the offender standing outside 13 Waine Street talking on his mobile phone. As the car drove past him, he noticed it and walked away. The police car reversed and police asked the offender to stop. He did not comply with the request and disappeared from view.

16. One of the police officers got out of the car and followed the offender to an electrical box. The officer found a small plastic bag containing clear crystals, an electronic garage key and a single silver key on top of a couch behind the electrical box.

17. The offender was arrested and searched. A black Nokia phone, silver key and Volkswagen car key were recovered in the search.

18. The police then located a Volkswagen in Pelican Street which they were able to unlock and the offender was brought to the location of the car. The vehicle was searched and police recovered the offender’s driver’s license, and a St George Bank Visa card belonging to the offender.

19. A drug detection dog was brought to the vehicle and gave a positive indication for drugs in the front of the car. The police discovered a hidden compartment inside the glove box which contained a black glock pistol loaded with eleven 9mm rounds and three knotted plastic bags containing a crystal substance.

20. The pistol was in working order and had the serial number obliterated.

21. The crystal substance was methylamphetamine with a total weight of 97 grams.

22. DNA was recovered from the glove box of the Volkswagen, the trigger of the pistol and the trigger guard. The DNA on the glove box was a mix from five individuals with the major component having the same profile as the offender. The DNA on the trigger and trigger guard of the firearm had the same profile as the offender. There were also traces of DNA from another person at levels too low for further interpretation. Certificate’s obtained from the Firearms Registry certified that on 12 May 2015 the offender did not hold a license or permit authorising him to possess or use firearms or ammunition.

23. A registration check was done of the vehicle and it was found to be registered to the offender’s mother. Mrs Hadid informed police that the offender had been driving the vehicle on that day.

24. The offender was refused bail and remained in custody for a period of 6 months and 29 days.

The Offender’s Case on Sentence

25. The offender tendered a defence bundle containing:

1. Letter from Ross Shepherd dated 20 September 2016;

2. Letter from Wayne Elks dated 21 June 2016;

3. Report of Christa Bidgood, project administrator at Australian Council on Alcoholism and Drug Dependence Inc, dated 18 May 2016;

4. Psychological Report of Chafic Awit dated 10 May 2016;

5. Letter from Pastor Matt Nichols dated 10 May 2016;

6. Letter from Amer Eladib dated 23 March 2016;

7. Character reference from Timothy Pearson dated 19 September 2016; and

8. Certificate of Completion for Canton Beach Family Recovery Rehabilitation Program dated 21 June 2016.

26. The offender was released on bail on 10 December 2015 on condition that he enter and remain in residential rehabilitation. He was inducted into the Canton Beach Recovery Centre (the Centre) on 11 December 2015 and remained there until the Centre closed down on 21 June 2016. The offender was compliant with the program offered by the Centre, he had remained abstinent from drugs and alcohol and had progressed well.

27. On 8 July 2016 the offender was admitted to Niagra Lodge (the Lodge), another residential rehabilitation facility. He had progressed well at the Lodge and had remained abstinent from drugs and alcohol. He has expressed remorse for his actions whilst on drugs and demonstrated insight into the negative ramifications of those actions. The offender is approaching the phase of the program were he can live outside of the Lodge and return for weekly support sessions to facilitate his reintegration into the community.

28. The offender has the offer of employment as an apprentice electrician with his former employer. This will involve re-enrolling at TAFE to undertake a Certificate III in Electro-Technology.

Psychological Report

29. The court received a psychological report of Chafic Awit dated 10 May 2016 which can be summarised as follows.

30. The psychologist met with the offender on one occasion on 6 May 2016 in order to prepare the report. At that time, the offender had been participating in residential rehabilitation for a period of 5 months.

31. The offender told the psychologist that he had a troubled home life and was physically disciplined by his father during childhood. He was sexually abused on 4 occasions by his neighbour from around 10 years of age. He reported being unable to fully comprehend the sexual abuse, feeling ashamed, and being unable to confide in anybody.

32. The offender behaved poorly at school and was often punished with detentions and suspensions. He reported having difficulty sleeping, poor memory and poor concentration.

33. The offender began smoking cannabis when he was around 14 years of age in order to escape reality. He experienced racing negative thoughts, and was having difficulty coping with flashbacks to his past sexual abuse. He continued using cannabis until he was around 18. When he was no longer getting any benefit from cannabis, and began smoking ice. Due to his drug use the offender found it difficult to maintain employment and was financially unstable. He told the psychologist that by the age of 21 he owed a drug debt of around $40,000. The offender began supplying ice to repay this debt and support his own drug habit.

34. The offender told the psychologist that he had made an impulsive decision to hold the pistol for his supplier. He had possession of the pistol for about 4 or 5 days and it was due to be given back to its owner in a few days. It was submitted on behalf of the offender that his supplier believed that he was under surveillance by the police and that was the basis of the request and that the DNA evidence supported the offender’s version.

35. The offender told the psychologist that his life has significantly improved since his arrest and subsequent participation in residential rehabilitation.

36. The psychologist diagnosed the offender as suffering from Generalised Anxiety Disorder, Major Depressive Disorder and Substance Use Disorder (in remission).

37. The offender expressed remorse for the offences to the psychologist.

38. The offender informed the psychologist that during his residential rehabilitation he has become a cluster manager with responsibility for supporting and delegating tasks to 10 other individuals. He informed the psychologist that he intended to continue his electrician apprenticeship when he completed his treatment and has two places of employment lined up.

39. The psychologist opined that the offender would benefit from ongoing counselling, and that a custodial sentence would be likely to cause deterioration in the offender’s condition.

Report of Christa Bidgood

40. Ms Bidgood is the Project Administrator and founder of the Australian Council on Alcoholism and Drug Dependence Inc and Canton Beach Family Addictions Recovery Centre where the offender attended for residential rehabilitation.

41. During an assessment on 9 October 2015, the offender reported addiction to alcohol, heroin and ice.

42. The offender was born in Australia into a Lebanese family. His father suffers from mental illness, and his mother and sisters were particularly dedicated to their religion.

43. When he was around 12 years of age, the offender was introduced to alcohol by school friends. He sought freedom from his strict home life, and used drugs and alcohol as an escape mechanism. He turned to crime in order to support his addiction. The offender reported that he experienced learning difficulties and felt socially isolated.

44. Ms Bidgood reported that the offender has been abstinent from drugs and alcohol during his residential rehabilitation and complied with all rules. He has engaged with treatment and re-connected with his Muslim faith. The offender has expressed deep remorse for the pain he has brought to his family due to his substance abuse issues, and a desire to assist his mother to care for his father.

45. It was submitted on behalf of the offender that he is expected to complete a further short period of residential rehabilitation, after which he will live outside of the Lodge and return as often as is required for support. It was submitted that the offender is expected to complete his course of rehabilitation in approximately 6 months’ time; that is to reach a time where he could independently live in the community and be considered to be drug-free.

Pre-Sentence Report

46. The Court received a Pre-Sentence Report dated 20 May 2016 that can be summarised as follows.

47. The offender has the ongoing support of his family, and has maintained contact with them during his time in residential rehabilitation.

48. The offender completed his Higher School Certificate after which he commenced an Electro-Technology Electrician apprenticeship. He worked for 2 employers over 18 months, one of whom has indicated a willingness to employ the offender again if he wished to continue his apprenticeship.

49. After working in the apprentice roles, the offender held two roles as a courier for a total of one year and 10 months. Following this, the offender was unemployed for around 2 years. The offender reported an intention to re-commence employment following his completion of residential rehabilitation and multiple positions are available to him.

50. The offender told the author of the PSR that he began smoking cannabis at age 15, and was smoking cannabis daily by age 17. He began smoking ice at 18 and was using ice daily by the age of 21. He reported being abstinent from drugs on days that he worked in 2015 in order to complete a Community Service Order. He reported being under the influence of ice at the time of the commission of these offences.

51. The offender has a prior offence of a violent nature, however the manager of the rehabilitation facility told the author of the PSR that he has developed increased insight into his history of violence.

52. The offender accepted responsibility for these offences. At the time of writing the report, the offender had ceased use of illicit drugs and expressed a willingness to maintain that abstinence and live a crime-free life.

53. The offender was assessed as being a medium risk of re-offending. The author of the PSR opined that the offender would benefit from supervision from Community Corrections and was assessed as suitable for a community service order.

Objective Seriousness

The supply offence - Count 1

54. The amount of the drug at 97 grams and it is a deemed supply offence. By his plea of guilty the offender accepts that he possessed the drug with the intention of supplying it. The offender was also a user of the drug. I cannot ascertain from the facts how much of the drug the offender intended to supply but it is apparent that his own drug use was significant. There are no other indicia of supply except perhaps for the presence of the pistol, which I will come back to. The offender obtained the drug from a dealer higher up the chain, presumably being the person who asked him to hold the pistol. I cannot ascertain how the offender intended to supply the drugs to others. The objective seriousness of the supply offence is slightly below the mid-range.

The firearms offences – Counts 2-4

55. Section 3 Firearms Act 1996 sets out the principles and objects of the legislation that the Courts must seek to implement. They require “strict control” of firearms and “strict adherence” to the law; Cramp v R [2008] NSWCCA 40 at [52]. The legislation is intended to deter and punish the possession of firearms per se; R v Krstic [2005] NSWCCA 391 at [14]. It applies to honest citizens and not just to disarm the criminally minded; R v Tolley [2004] NSWCCA 165 at [53].

56. In a possession offence the fact that the pistol was loaded increases the objective seriousness of the offence because of the danger it presented to the public: Do v R [2010] NSWCCA 182. The criminality of the offence will also be increased where the offender possesses the firearm as part of their involvement in crime, such as supplying prohibited drugs; R v Amurao [2005] NSWCCA 32 at [69]. However, possession for a non-criminal purpose is generally not regarded as a matter in mitigation; R v Kristic at [14].

57. The length of time for which a firearm is in the possession of the offender does not necessarily affect the criminality, but possession for a short period may reduce the seriousness of the offence; R v Goktas [2004] NSWCCA 296 at [26]. I do not consider that the firearms offences could have been dealt with summarily. The seriousness of each count is maximum penalties I have referred to. In respect of count 4 there is a standard non-parole period of 3 years, which would apply to a finding of guilty following a trial for an offence in the mid-range of objective seriousness. The standard non-parole period for count 4 is relatively low by reference to the maximum penalty and is available as a guidepost in a plea of guilty.

58. The pistol was extremely dangerous and capable of killing or at the very least inflicting grievous bodily harm on more than one person. It was loaded with 11 live rounds. It was capable of being concealed and taken into the public areas.

59. The location of the pistol in the glove box of the car with the drugs is evidence that the pistol was in the offender’s possession as a tool of trade. The offender told the psychologist that he was holding the pistol for his drug supplier for a few days, with the expectation that it would be returned to that person in a few more days. The offender did not give evidence on this point and accordingly I must exercise very considerable caution in relying on the statement to the psychologist: Butters v R [2010] NSWCCA 1 at [18].

60. The presence of other DNA on the pistol supports the offender’s version. There is no evidence that the offender intended to use the pistol aggressively or at all. His conduct at the time of his arrest was consistent with that conclusion.

61. On the evidence, I am not satisfied beyond reasonable doubt that the offender possessed the pistol as a tool of the trade of drug supply and I am satisfied on the balance of probabilities of the offender’s explanation.

55. The obliteration of the serial number is evidence that ultimately it was intended that the pistol would be used for a criminal purpose, but not necessarily by the offender; Yang v R [2007] NSWCCA 37 at [18]. In the present case the offender accepted the pistol to hold for its owner in the condition it was given to him. In so doing he assisted in providing the pistol for use in the future for criminal activity. I am satisfied on the balance of probabilities that the offender had the pistol in his possession for about 1 week.

56. The offender has been charged with 3 offences relating to his possession of the pistol. The offences punish different criminal conduct. Eventually there will need to be some partial accumulation for the firearms offences, but it should be limited bearing in mind the principle of totality.

57. The objective seriousness of the count 2 is in the mid-range. The objective seriousness for count 3 is in the low range. The objective seriousness for count 4 is slightly below the mid-range.

Consideration

65. General deterrence is of significance in sentencing offenders for drug supply offences and firearms offences. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.

66. The offender’s substance abuse, in particular his abuse of methamphetamine that was the most direct cause of his offending behaviour. Addiction is not normally an excuse for committing offences, but considered to be a choice: R v Henry (1999) 46 NSWLR 346. In this case, the offender turned to drugs at about 14 years of age to alleviate the psychological symptoms following childhood sexual abuse. The offender’s substance use disorder and the context in which it arose reduce his moral culpability for the offence and require a reduction of the weight to be afforded to general deterrence in this sentencing exercise.

67. At that time that he was introduced to drugs the offender did not have the capacity to make an informed choice: R v Todorovic [2008] NSWCCA 49. In such cases the rehabilitative aspects of sentencing should assume a more significant role.

68. The need for specific deterrence in this sentencing exercise is likely to be reduced. The offender has confronted his addiction which has been the source of his offending behaviour in the past and taken extensive steps to deal with it. In my view it is important to allow the offender the opportunity to complete his rehabilitation to be able to properly assess the extent to which specific deterrence is relevant. The offender may be able to satisfy me that he is unlikely to reoffend by reason of the extent of his rehabilitation, in which case specific deterrence would be irrelevant and he would be able to rely on the mitigating factor provided for in section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

69. The offender has demonstrated that he has good prospects of rehabilitation. It is important to consider the extent of rehabilitation that he can achieve by completing the program he has embarked on. There is a chance that he may be able to satisfy me that he has achieved rehabilitation by putting himself in a position to remain drug free and to secure employment.

70. It is important to be able to assess the circumstances of the rehabilitation programs and the entire length of the course of rehabilitation to be in a position to quantify the appropriate credit to be given to the appellant for the quasi-custodial conditions imposed on him whilst he has been on bail. He has presently been in residential rehabilitation for 10 months and 11 days. There is evidence before me as to the conditions at the Centre, but not at the Lodge. In any event the conditions at the Lodge may change in the next phase of his rehabilitation and some adjustment of the credit to be given may have to be made.

71. The advances in the offender’s rehabilitation may be halted or lost if he was to serve a further lengthy period in custody. I would like to be able to assess the extent of his rehabilitation before determining the length of the appropriate non-parole period.

72. I intend to grant the section 11 remand initially for a period of 7 months being the anticipated time for the completion of his course of rehabilitation. I do not consider that any injustice arises from that period of delay.

73. The offences are objectively serious and require the imposition of full-time custodial sentences. The sentences will be partially accumulated and there will be significant concurrence for the firearms offences.

74. On the basis of the evidence presently before me I am adjourning the sentence proceedings so as to better understand the extent of his rehabilitation from drug use and to determine the proper credit to be applied for the entirety of his participation in the course of rehabilitation he has undertaken, for the purpose of setting an appropriate head sentence and non-parole period. The offender will be receiving a custodial sentence for these offences.

75. The orders that I make are as follows.

76. The offender is convicted of each offence.

77. Pursuant to section 11 Crimes (Sentencing Procedure) Act 1999 I adjourn the sentence proceedings part heard before me to 19 May 2017. I grant the offender bail on the following terms:

1. That he reside at Niagara Lodge or at 113 Excelsior Street, Merrylands

2. That he be of good behaviour and appear at court for sentence on 19 May 2017

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Decision last updated: 03 February 2017