R v John Youkhana

[2011] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:

R v John YOUKHANA [2011] NSWDC 62

Hearing dates:

21 April 2011

Decision date:

21 April 2011

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Count 1 - Supply offence and Form 1. NPP 5 years 7 months 15 days with a balance of sentence of 1 year 10 months 16 days.

Count 2 - Supply on ongoing basis offence. NPP 5 years 3 months with a balance of sentence of 2 years 3 months.

Count 3 - Common assault offence. Fixed term 1 month.

Count 4 - Firearms offence and Form 1. NPP 2 years 3 months with balance of sentence of 9 months.

Count 5 - Firearms offence and Form 1. NPP 2 years with balance of sentence of 9 months.

Total effective sentence is 9 years with a NPP of 6 years 9 months.

Catchwords:

CRIMINAL - Supply prohibited drug - Supply prohibited drug on ongoing basis -Possess prohibited drug - Proceeds of crime - Firearms offences - Common assault - Operation Schoale

Legislation Cited:

Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Evidence Act 1995

Cases Cited:

Qutami (2001) 127 A Crim R 369
Way (2004) 60 NSWLR 168
Hemsley [2004] NSWCCA 228
Cahyadi [2007] 168 A Crim R 41
XX (2009) 195 A Crim R 38
Smiraldo (2000) 112 A Crim R 47
Giang [2005] NSWCCA 387
Engert (1995) 84 A Crim R 67
Clinch (1994) 72 A Crim R 301
MAK (2006) 167 A Crim R 159
Thomson and Houlton (2000) 49 NSWLR 383
Wong (2001) 207 CLR 584
Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146

Category:

Sentence

Parties:

Regina
John Youkhana

Representation:

Mr T Gartelmann (Offender)
Ms F Gray (Director of Public Prosecutions)

File Number(s):

2009/13447

sentence

Introduction

1. A joint operation by New South Wales Police and the New South Wales Crime Commission, Operation Schoale, has led to the charging of a number of people associated with the importation and distribution of cocaine in the community. John Youkhana, the offender, was a cocaine seller associated with this group, he was not involved in the importation of the cocaine. The investigation into the offender's activities included telephone intercepts, listening devices, a controlled purchase, an authorised covert search and the execution of a search warrant. The results of these investigations are summarised in the Facts Summary, Tab 1 of Exhibit A.

Matters in dispute

1. Two factual matters were put in dispute by the defence, these were highlighted in the Facts Summary, Tab 1. Objection was also taken to the summaries of telephone intercepts in Exhibits B and C. I admitted Exhibits B and C as aides only to my review of the full transcript of the telephone intercepts that comprises Exhibit D. The defence also put forward an assertion that the offender was acutely mentally ill in the period leading up to his arrest and also that he was addicted to the drug cocaine. My conclusions in relation to these disputed facts are based upon facts not in dispute, the brief of evidence and my reading of the seven hundred plus telephone transcripts which are Exhibit D. I am also assisted by the written submissions of Ms Gray, for the Director of Public Prosecutions, and Mr Gartelmann, for the defence, that were provided to me today. In the limited time available to prepare these remarks I cannot do full justice to those comprehensive and helpful submissions, which I take into account.

1. It is not in dispute that in January and February 2007 the offender received a large number of telephone calls; a very large number of telephone calls. Some of those calls involved customers making arrangements to purchase small amounts of cocaine for money or, occasionally, goods. In addition to what is contained in the telephone intercepts, on 4 February 2007 the offender was observed counting cash into piles of $50 notes. On 12 February 2007 he threw out a number of mobile phone boxes. On 6 February 2007 an undercover police operative purchased 0.17 grams of cocaine, seventy-three per cent purity, from him for $100. On 13 February 2007 when police searched his premises at Newington they found 657.83 grams of cocaine stored at different locations, some of it packaged in small bags. Other drugs were also found along with indicia of supply, such as multiple mobile phones and SIM cards, scales, boxes of plastic bags, over $38,000 in cash, firearms, prohibited weapons and ammunition: see photographs Exhibit A, Tab 13. The firearms were:

• a Glock 19 pistol with a loaded magazine;
• an SKS Piers Dev semi-automatic rifle; and
• a 12 gauge SKB pump action shot gun.

1. None of the firearms were stored safely. On 1 February 2007 in a controlled operation police had found, temporarily removed and rendered inoperable, these firearms before returning them to the offender's property.

1. The two matters put in issue involve a Crown assertion that the telephone intercepts reveal the offender supplied cocaine on at least two hundred occasions to forty different recipients and an assertion that the offender, on 11 February 2007, prepared cocaine for sale by grinding and adding to it the substance called Diltiazem.

1. The offender did not give evidence. His version of events comes primarily from a history given to Dr Olav Nielssen, Forensic Psychiatrist, Exhibit 1. The version asserts the offences stem from the offender's own serious drug problem that had escalated to the stage he was baking cocaine with bicarbonate of soda to ensure a more intense experience. He asserts he sold cocaine to support his own serious habit and he had no significant assets. The money found, he says, was to buy more cocaine in bulk to sell. He asserts the firearms were required because he was afraid for his own safety, not because of a rational fear of other drug dealers or criminals but because of a paranoid psychosis triggered by his own drug use. Dr Nielssen proffered a diagnosis of substance abuse disorder and substance induced psychotic illness, now in remission. He concluded, "It seems likely that he was acutely mentally ill in the period leading up to his arrest".

1. Dr Nielssen's diagnosis was made, "on the basis of Mr Youkhana's account of the pattern of daily use of large quantities of both cannabis and cocaine".

1. The Justice Health file, Exhibit 2, indicates that on reception to gaol in 2007 the offender reported that he had no mental health or drug or alcohol issues. Reports of mental health problems and the extensive drug history were not given to Justice Health doctors and nurses until about October 2008.

1. The snapshot of the offender's life provided by the telephone intercepts, Exhibit D, supports a history of drug use. There are mentions of smoking and taking time out for a "choof" of what I understand to be marijuana. They also evidence a highly organised life. The offender speaks in derogatory terms of junkies: see call 187, 20/01/07 at 4.45. There is no indication of persecutory beliefs or extensive drug abuse. Possession of loaded weapons could indicate persecutory beliefs but it could equally indicate the extent of the offender's involvement in dangerous and illegal activities.

1. Very considerable caution must be exercised in relying on statements in reports such as that provided by Dr Nielssen when they are not able to be supported by evidence from the offender or others: see Qutami (2001) 127 A Crim R 369. I have a great deal of respect for the opinion of Dr Nielssen and of Dr Furst of Justice Health, nevertheless, the offender has the onus, on balance, of establishing mental illness as a matter of mitigation of the offence when I come to consider my assessment of the objective circumstances of the offence: see Way (2004) 60 NSWLR 168 at [86]. That onus also applies before he can rely on the principles such as those set out in Hemsley [2004] NSWCCA 228 in mitigation of sentence. In my opinion, that onus has not been met. I am prepared to accept that while in custody the offender did develop a psychosis for a period and that made his time in custody more onerous. I am prepared to accept that he was a drug user and that some of the drugs found were for his own use: see calls numbered 276 and 282. I am prepared to accept that he was using some of his product and that his drug supply financed that use but I cannot accept that these offences, "stem from his drug use", as he told Dr Nielssen.

1. Dr Nielssen formed his conclusion based upon what was said to him. I am sure he was discriminating in taking a history, as I am sure was Dr Furst, however, the lapse of time of eighteen months in the Justice Health documents makes me pause and reflect before I accept assertions that came so late in the day, particularly when there were considerable opportunities for the offender to be observed and treated by Justice Health as is evidenced by those reports. I make no finding against the offender. It may be that he developed a psychosis and there is certainly some history of excessive marijuana use in the material before me but because I am unable to accept the foundations for Dr Nielssen and Dr Furst's opinions, as I have said, the offender has not met the onus placed upon him.

1. So far as the second assertion put forward by the defence is concerned, that he was a cocaine addict, again while I am prepared to accept that he was using far too much marijuana and also using his product, the evidence before me, including the statement of Ms Palumbo, Exhibit A11, does not establish other than that he was a user of cocaine, it does not establish an addiction.

1. The calls indicate five ways in which deliveries would take place. Buyers would meet the offender at a pre-arranged spot, he would visit their homes, he would call by certain locations specified by buyers, sometimes they would come to his home, and he would arrange for others to make deliveries. It is clear he was not always happy with those who assisted him: see Exhibit D call 598 at 13.06 on 07/02/07. He would only keep a certain amount of drugs with him at any one time and then, presumably if sales were good, he would have to go and get some more: see calls 631 to 633 on 09/02/07. This indicates he had stock to hand.

1. Mr Gartelmann submits that when I come to consider the telephone intercepts I might be prepared to accept that meetings were arranged but in the absence of something more I could not be satisfied to the requisite standard (which refers to matters in aggravation) of beyond reasonable doubt that the meetings took place or that the sale of cocaine resulted from such a meeting. Ms Gray submits to the contrary in extensive written submissions, which I will not set out in full. She draws my attention to the matters in Exhibit B that are highlighted in yellow. She says that the calls so highlighted have the following features:

• the offender arranges to meet the same person on numerous occasions;
• the calls do not usually disclose what the meeting is about;
• the meetings are in public places;
• the meetings are quick, as is apparent from the references the offender makes to how many people he has to see and estimated waiting times; and
• the call to police operative, Joe, follows the same pattern.

1. It is also clear from the course of all the calls that the offender develops a commercial relationship with those he is supplying to. Examples are given from the telephone intercepts.

1. When I come to consider those matters in context it is clear that there is a pattern of behaviour. It is clear that that pattern is followed on an almost daily basis. It is clear that there are no complaints from those persons, who I find beyond reasonable doubt were purchasing small amounts of cocaine from the offender, and what complaints there were were not about him failing to deliver a substance as a consequence of the meeting but were occasionally about the quality of the product delivered, one batch in particular.

1. When one looks at the totality of the evidence (and this fact finding exercise although not subject to the Evidence Act 1995 as such is one where I have applied Evidence Act standards) it still satisfies me as a course of conduct that included, as is asserted by the Crown, more than two hundred transactions to over forty customers. I base that conclusion on the pattern, the repeat business and my finding that meetings were not just arranged but took place for the supply of drugs and that drugs were sold as a consequence. Given the number of transactions, regardless of my finding as to their number, it is conceded by the defence that this was a very significant example of an offence pursuant to s 25A.

1. While the drugs may have been cut with Diltiazem there is nothing to indicate that this was done by the offender. On 23 January 2007 (call 336) he told the customer he did not dilute his drugs. In telephone intercepts he speaks of, "cooking the cocaine to increase its purity". He told Dr Nielssen he did this to intensify the drug experience. He would have needed scales and perhaps a grinder to process his bulk cocaine into the small bags used for retail sales. I cannot see how this further aggravates either of the offences. Even if he was diluting to a small degree, that would not significantly aggravate the offences.

1. The offender was buying wholesale to sell small amounts in quantity, by doing so he maximised his return. The telephone intercepts reveal he ran a significant drug supply operation at the street level. He had a system of work, his phones were "on" or his phones were "off". He was well organised. At times he had assistants who would, it appears, deliver for him or drive him around. He had multiple phone numbers that he changed regularly to avoid detection. He had regular customers who introduced new customers. He appears to have run a regular, if illicit, business operation. He was organised and systematic and able to provide a regular, almost daily, service. He had drugs to hand and his operation had considerable turnover, although each transaction appears to have been quite small and, individually, at the bottom of the range for such matters. He may have been using his product but he was also, as the tapes demonstrate, in the business to share in the considerable profits that can be made from illicit drug supply.

1. The offender pleaded guilty to supplying a commercial quantity of cocaine, being 657.83 grams, and supplying cocaine for reward on three or more occasions within thirty days. I have been asked to take into account in relation to Count 1 three related matters of possession of other drugs and knowingly deal with the proceeds of crime and I do so. As the Facts Summary noted above indicates, the drug offences on indictment and the Form 1 have a number of common features. Each are so intertwined that it can be said that they comprehend and reflect the criminality of the other: see Cahyadi (2007) 168 A Crim R 41 and XX (2009) 195 A Crim R 38. Here, the 657.83 grams appears to be the drug stockpiled for future sale using the business arrangement disclosed by the second count. The money appears to be that earned from prior sales, the bulk of which I am prepared to find was set aside for future purchases but I do not find that it was solely for those purchases. The telephone intercepts give me the impression that the offender was engaged in these drug transactions for his own personal gain.

1. The boundaries within which particular offences are drawn mean that there is considerable overlap between these offences. Each illustrates and reinforces the seriousness of the other. The offender should not be punished twice for areas of overlap. Here, the various charges seek to encompass the whole of the offender's criminal conduct. This conduct means that more than one offence must be charged and punishment exacted for each charge.

1. The Form 1 must also be taken into account. Any increase in the sentence that results flows from the need for retribution and personal deterrence because of the course of criminal conduct demonstrated. But, as I have already indicated, the two offences cover a course of criminal conduct. Where the Form 1 matters, particularly the first matter, are so intertwined with the course of conduct punished by the principal offence that they would, if charged separately, lead to concurrent or substantially concurrent sentences means any increase in penalty because of the Form 1 need not be large.

1. The combined sentence for all the counts here cannot exceed what is warranted to reflect the total criminality of the offences. Here, it is reasonable to expect that where drugs are supplied in a large number of small transactions there will be stock in hand and profit set aside for the future purchase to continue the business.

1. That said, both the s 25(2) Drug Misuse and Trafficking Act 1985 and the s 25A offences are of considerable seriousness. This is reflected in the maximum penalties of twenty years and the fact the s 25(2) offence carries a standard non-parole period of ten years. Because of that standard non-parole period I must determine whether that offence falls in the middle of the range of objective seriousness and whether there are reasons for departure from the standard non-parole period in the sentence to be imposed. One reason for departure is the guilty plea, another reason for departure is that there must be necessary adjustments for totality and accumulation and to ensure that the overall non-parole period is proportionate to the total criminality of the offender's behaviour. Even where there is departure the standard non-parole period must remain as a guide to my assessment of an appropriate penalty.

1. Here, I find that the 657.83 grams was held for the purpose of supply and some possible personal use. The amount is one, but only one, of the factors I can take into account. That amount is not at the bottom of the commercial range fixed by Parliament nor is it at the top. The supply was clearly primarily for commercial purposes and part of a supply operation of some magnitude. This is reflected in the amount of drugs to hand and the cash available. It would appear to me to be the very sort of case envisaged by the term "middle of the range".

1. So far as the s 25A offence is concerned, it cannot be characterised as other than a very serious example of the type of matter sought to be caught by the section. There were a great number of small transactions, indicating a considerable quantity of the drug supplied for a considerable sum: see Smiraldo (2000) 112 A Crim R 47. There is evidence of system, repetition and organisation: see Giang [2005] NSWCCA 387.

Firearms Act offences

1. So far as the firearms offences are concerned, they were laid pursuant to s 71 of the Firearms Act 1996 and carry maximum penalties of fourteen years and a standard non-parole period of three years. Two firearms were found in the offender's flat: the pistol and the semi-automatic rifle. They are the subject of the charges. However, other firearms and prohibited weapons are to be taken into account on the Form 1s attaching to these two counts. The firearms were not stored safely. The pistol was loaded on 1 February 2007 and it was in the offender's bedside drawer. On 13 February 2007 it was in a bag on the balcony. The semi-automatic rifle was initially under the offender's bed and then found, after arrest, in a wardrobe of the bedroom.

1. The possession of firearms, particularly a loaded pistol, in premises used for the storage, distribution and occasional sale of illicit drugs needs only to be stated to indicate the seriousness of what was done. There was considerable potential here for the firearms to cause harm to individuals and to the community. It is that potential for serious harm that requires strict rules for the licensing and possession of firearms. While s 7 criminalises both the possession and the use of firearms, in many cases their use would be a more serious offence and could bring the offence above mid-range. Here, the possession of a loaded pistol in the circumstances described falls within the middle of the range. The circumstance surrounding the possession of the rifle and its storage are slightly less serious and put this matter just below the middle of the range.

1. Given my earlier conclusions in relation to the disclosure in Dr Nielssen's report, I make no finding one way or the other about the mitigatory or aggravating affect of the offender's purported mental illness but I note at this stage what fell from the then Chief Judge in Engert (1995) 84 A Crim R 67: mental illness, particularly where there is a danger to the public relating to the possession of firearms, is not always a mitigatory matter.

The assault offence

1. Count 3 relates to an assault on the offender's partner, Ms Palumbo, on 13 February 2007. The facts reveal an assault in a domestic context but with no lasting physical effect. It was nevertheless a serious assault. Ms Palumbo was grabbed by the throat, slapped to the face and threatened. The Courts treat matters such as this with considerable seriousness. They can result in custodial sentences. When viewed in the context of the other matters on the indictment however and the time that has elapsed any penalty would be subsumed by those for the other counts. This is not to diminish the seriousness of the offence but simply to recognise that time has passed and that this matter falls into a different category than the other matters on the indictment. Had it been dealt with alone and in the Local Court alternatives to a custodial sentence might have been considered appropriate.

Subjective matters

1. The offender has a long history of serious offending since he was a teenager. He has spent more time in custody than out of custody. He can gain no comfort from his record but he is not to be punished for it. He has, in my opinion, a significant risk of institutionalisation were he to receive a very lengthy sentence. He has been treated for psychosis and exhibited, at least since 2008, persecutory beliefs. Given my earlier findings, I am not prepared to find however that this matter was totally fabricated. It is not uncommon for people who have served long times in custody and are facing the stresses and strains of delay awaiting a serious sentence to develop psychiatric illnesses. I am pleased to note that all the reports indicate that he has responded well to treatment.

1. The offender has the support of his partner and his family. He has a young child. Dr Nielssen says that his prognosis depends on his addressing his drug abuse issues and counselling is recommended. He has a motivation to change his pattern of behaviour. That said, past behaviour is the best predictor of future behaviour. Although there are three matters on his record and some self reports to doctors of breaches of prison discipline, including one occasion for the use of cannabis, the delay has not led to any significant indications that he has other than kept to prison discipline and used his time in custody to advantage. There is certainly no indication that he is going backwards.

1. Given his age and family situation I make a guarded finding that he has some prospects for success if given assistance on release. Given the total sentence that I am about to impose, the length of the parole period of that sentence should enable the offender to have the assistance, one would expect, to enable him to adjust to community life.

1. On occasions, special circumstances can reflect subjective matters and matters in mitigation. There are a few matters in mitigation here but because I have endeavoured to impose the lowest possible total non-parole period that is practical in the circumstances given the seriousness of the crimes involved, to further reduce that period by a finding of special circumstances would lead to a disproportionately lenient sentence. Accordingly, I find no special circumstances here other than the need to adjust the sentence I have imposed on Count 2 to make allowance for the accumulation of the sentences.

What is adequate punishment?

1. A considerable sentence of imprisonment must be imposed. The severity of sentences however is not simply proportional to their length. Long sentences have a compounding impact on an offender: see Clinch (1994) 72 A Crim R 301 and MAK (2006) 167 A Crim R 159. A court must always stand back and look at the totality of offending and adjust sentences to ensure there is a just result. In this regard again I thank counsel for their helpful written and oral submissions. I have attempted to do so in this case, taking into account not only the case for the Crown but also that of the offender and the various purposes of punishment. The offender is clearly a man of some intelligence. With help he has the capacity to live a law-abiding life but the evidence so far indicates he has adopted a criminal lifestyle. A sentence should, if possible, avoid entrenching such attitudes. The offender must be removed from the community for a period but I do not find there is a need to further protect the community from the offender except for the period of the sentence that I must impose.

1. The guilty pleas took some time coming. They were however indicated in the Local Court and although time is a significant factor when making an assessment of utilitarian value (Thomson and Houlton (2000) 49 NSWLR 383) it is not the only measure. The Crown concedes, here, that the pleas do have considerable utilitarian value and should attract twenty-five per cent reduction in the otherwise appropriate penalty. I agree.

1. Any sentence must recognise the potential for harm to the community in large-scale drug supply and possession of illicit firearms. Sentences must operate to deter not only the offender but others from committing such offences. In fixing appropriate and individual sentences I take into account the matters summarised above, including my findings of fact and the facts, which are not in dispute. I take into account the maximum penalties that are attached to each offence.

1. I also take into account the submissions of the parties. I note the cases I have been referred to and the other material available to me through the resources of the Judicial Commission. I note, in particular, the need to adjust the overall sentence taking into account the principles of proportionality and totality. I note the other sentences imposed on those arrested and so far dealt with after Operation Schoale, but each case is different and individual. Consistency is not always capable of mathematical expression: Wong (2001) 207 CLR 584.

1. I note that where there are reasons for departure from the standard non-parole period this does not dictate a strict mathematical deduction must be made, even where the only significant reason for departure is the early guilty plea. Once reasons for departure exist, the Court's general sentencing discretion must be exercised. Nevertheless, the standard non-parole period remains as a guide and a reference point to the sentences where that standard non-parole period applies. I note that Counts 1, 4 and 5 have Form 1s attached. I take them into account and in doing so have regard to the guidelines of the Court of Criminal Appeal in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146.

1. There must be, of course, a measure of personal deterrence and the offender must be held accountable. From what I have said, it is clear that the principle of general deterrence is also a significant factor. The community must understand that people who engage in conduct such as that of the offender will be sent to gaol for lengthy periods.

1. What then is an adequate penalty? But for the plea of guilty, I would have imposed sentences of ten years in relation to Counts 1 and 2. In relation to Count 3, had it been the only matter before me I may not have imposed a custodial sentence but I have determined that a one month penalty be imposed. In relation to Counts 4 and 5, but for the guilty pleas, sentences of four years and three years nine months would have been imposed.

1. If you could stand please Mr Youkhana.

1. You are convicted on each count. On Count 1 on the indictment, taking into account three matters on Form 1A, you are sentenced to a term of imprisonment consisting of a non-parole period of five years and seven months and fifteen days, to commence on 13 February 2008 and expire on 27 September 2013, and a balance of term of one year and ten months and sixteen days. The total effective sentence is seven and a half years, to commence on 13 February 2008 and expire on 12 August 2015.

1. In relation to Count 2, taking into account a finding of special circumstances, you are sentenced to a term of imprisonment consisting of a non-parole period of five years three months, to commence on 13 August 2008 and expire on 12 November 2013. You will be eligible for consideration for release to parole on that date, 12 November 2013. You will then serve the balance of term of two years three months. The total effective sentence on this matter is seven years and six months, to commence on 13 August 2008 and expire on 12 February 2016.

1. In relation to Count 3 you are sentenced to a fixed term of imprisonment of one month, to commence on 13 February 2007 and expire on 12 March 2007.

1. On Count 4, taking into account the two matters on Form 1B, you are sentenced to a term of imprisonment consisting of a non-parole period of two years and three months, to commence on 13 February 2007 and expire on 12 May 2009, and a balance of term of nine months. The total effective sentence is three years, to commence on 13 February 2007 and expire on 12 February 2010.

1. On Count 5, taking into account the nine matters on Form 1C, you are sentenced to a term of imprisonment consisting of a non-parole period of two years, to commence on 13 August 2007 and expire on 12 August 2009, and a balance of term of nine months, to commence on 12 August 2009 and expire on 12 May 2010. That total effective sentence is two years and nine months, to commence on 13 August 2007 and expire on 12 May 2010.

1. Now Mr Youkhana that means the total effective sentence is nine years, to commence on 13 February 2007 and expire on 12 February 2016. A non-parole period of six years and nine months is to commence on 13 February 2007 and to expire on 12 November 2013, on which date you will be eligible for consideration for release to parole.

1. I note that in relation to the s 166 matters, sequences 9, 14 and 17, they are withdrawn and dismissed. Sequence 21 was not before the Court, having previously been withdrawn.

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Decision last updated: 19 September 2011