R v Kammoun; R v Kammoun

[2024] NSWDC 120

District Court

New South Wales

Medium Neutral Citation:

R v Kammoun; R v Kammoun [2024] NSWDC 120

Hearing dates:

4 March 2024

Date of orders:

5 March 2024

Decision date:

05 March 2024

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Abdullah Kammoun: Impose an aggregate sentence of 3 years and 4 months with an aggregate non-parole period of 2 years. The sentence commences on 25 August 2022 and expires on 24 December 2025. The non-parole period expires on 24 August 2024.

Osman Kammoun: Impose an aggregate sentence of 3 years and 8 months and an aggregate non-parole period of 2 years and 3 months. The sentence commences on 31 December 2022 and expires on 30 August 2026. The non-parole period expires on 30 March 2025.

Catchwords:

CRIME – Drug offences – Supply prohibited drug – Indictable quantity

Legislation Cited:

S 25(1) Drug Misuse and Trafficking Act

Cases Cited:

Bugmy v R (2013) 302 ALR 192

DPP (Cth) v De La Rosa [2010] NSWCCA

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)

Abdullah Kammoun (Offender)

Osman Kammoun (Offender)

Representation:

Crown: Mr J Jones

Mr McMahon (Abdullah Kammoun)

Mr Barrack (Osman Kammon)

File Number(s):

2022/253069; 2022/253141

Judgment

Introduction

1. The Offender Abdullah Kammoun is to be sentenced having pleaded guilty to the following charges:

2. That on 25 August 2022 in Lurnea he possessed the proceeds of crime being $41,815 in circumstances where he knew that the $41,815 was the proceeds of crime. That is an offence under s.193B(2) of the Crimes Act and has a maximum penalty of 15 years imprisonment.

3. That between 3 June 2022 and 22 June 2022 in Liverpool and elsewhere, he supplied a prohibited drug, namely cannabis leaf, that was above the indictable quantity and below the commercial quantity, namely, 5,517 grams.

4. That between 4 July 2022 and 31 July 2022 in Liverpool he supplied a prohibited drug, namely, cannabis leaf, that was above the indictable quantity and below the commercial quantity, namely, 4,186.2 grams.

5. That between 1 August 2022 and 24 August 2022 in Liverpool and elsewhere supplied a prohibited drug, namely cannabis leaf, that was above the indictable quantity and below the commercial quantity, namely, 7,691 grams.

6. The supply prohibited drug offences are offences under s.25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and have a maximum penalty of 10 years imprisonment and/or a fine equivalent to 2,000 penalty units. None of the offences have an applicable standard non-parole period.

7. When the offender is sentenced on the proceeds of crime offence, he asks that I take into account the following offences that are on a Form 1:

8. That between 12 and 25 August 2022 he supplied a prohibited drug namely cocaine, in an amount of 65.5 grams.

9. That between 3 and 24 August 2022 he participated in a criminal group whose activities were organised and ongoing and directed activities of the group knowing that it was a criminal group, and knew such participation contributed to the occurrence of criminal activity.

10. That on 25 August 2022 he supplied a prohibited drug, namely, cannabis leaf, that was above the indictable quantity and below the commercial quantity, namely, 449.9 grams.

11. That on 25 August 2022 he supplied cannabis leaf being 4.449 kgs.

12. Osman Kammoun who is the brother of Abdullah, is to be sentenced having pleaded guilty to the same offences as his brother. When he is sentenced on the proceeds of crime offence, he asks that I take into account the same offences as his brother on a form 1, except there is no offence of supply cocaine on his form 1. In relation to Osman Kammoun there is also a drive whilst disqualified offence on a certificate under s.166 of the Criminal Procedure Act.

13. In these remarks I propose to refer to Abdullah Kammoun as AK and Osman Kammoun as OK. I do not intend any disrespect in doing so, it will simply make the reading out of the remarks easier in terms of differentiating between the two offenders.

The Facts

14. The offender AK was a serving NSW police officer of the rank of Senior Constable at the time of the offences. He was attached to the transport command in Southwest Metro region. AK commenced duties with the NSW police force in August 2011. Since December 2020, he had been on long term sick leave. He lives with his wife and two young children aged 9 and 4 years. AK drives a black Range Rover with NSW registration CAH52N.

15. Ok is the brother of AK and resided at Liverpool. He predominately drives a white Audi Q3 with QLD registration 303YHO.

16. The third offender is Mitchell BERKE (MB). MB resides at Busby. The fourth offender is Ali HAKIM (AH). The fifth offender is Meri Berke (MB2).

17. In March 2022, police commenced Strikeforce INCE to investigate the street level supply of cannabis via telephone service 0410 929 781 (the “run phone”) around the Liverpool area by a ‘dial a dealer’ criminal enterprise. The sim card for the telephone service and a $30 credit voucher was purchased by OK on 11 May 2022 from the Liverpool Coles Service Station. The telephone service was subscribed under the name ‘Skinner Misti Breeze’ at Foreman Street, Glenfield NSW 2167.

18. Through physical surveillance and lawfully intercepted telecommunications of the “run phone”, police identified that the “run phone” would receive requests for the supply of cannabis. The controller of the “run phone” would then organise a time and supply location. The controller of the “run phone” would contact the controller of phone service 0406 630 031 with the supply location and time, and the controller of that service would undertake the physical supply.

19. OK and AK were identified as the controllers of the “run phone”. They would take shifts controlling the run phone. MB was identified as the controller of phone service 0406 630 031. This service was subscribed under MB’s birth name, Dajca MAKIAL. MB possessed the phone service between the hours of 10am and 8pm, seven days a week. MB would often reply to the run phone confirming that a supply was complete.

20. MB drove a black Toyota Caldina with NSW registration CO37BQ, a black Great Wall Utility with NSW registration BP90AS, a white Volkswagen van with NSW registration CU45TY, a red Fiat Abarth with NSW registration DWJ15Z, and a white Volkswagen Caddy with NSW registration CNX73Q. These five vehicles are registered to either MB or his mother MB2 and were used to deliver amounts of cannabis around the Liverpool area.

21. It is estimated the run phone serviced a customer base of over 800 individuals. Each customer’s details were saved into the run phone, indicating they had been verified to purchase cannabis from the syndicate. On occasions, new customers were introduced through existing customers. New customer’s had to be verified by an existing customer to the satisfaction of the controller of the run phone. The controller of the run phone would then save the new customers details in the run phone and supply cannabis to them at their request.

22. On four occasions between 2 June 2022 to 24 August 2022, the run phone sent out a ‘bulk advertising message’ to its customer base. The message contained a list of cannabis strains for sale, including ‘Granddaddy Purple’, ‘White Widow’, and ‘Motorbreath’, each with a different price listed.

23. OK and AK used the KAMMOUN family home at Lurnea as a ‘safe house’. The safe house was used for storing cannabis, a base for re-supplying cannabis to MB, and controlling the run phone from the house. The controller of the run phone would direct the runner to the address to collect more cannabis. Cell tower records show the run phone was predominately connected to a cell tower located on Jeda Road, Prestons, which provided the arch of usage within the Lurnea area. Physical surveillance on the address confirmed that OK and AK would regularly attend the address and be present at the address when MB would attend for re-supply.

24. On 22 June 2022, the co-offender AH was identified as supplying 168.1 grams of cannabis over 30 transactions on direction of the run phone. On 26 July 2022 and 13 August 2022, MB2 supplied 72.2 grams of cannabis over 13 transactions.

25. The syndicate sold cannabis in the following quantities: 2.7 grams, referred to as a ‘50’ was $50. 7 grams referred to as a ‘Q/ Quarter/ 100’ was $100. 14 grams referred to as a ‘half/ 200’ was $200. 28 grams referred to as an ‘ounce/ Occa/ O/ Oz’ was $300.

26. OK was identified as the controller of the run phone from between 0930hrs until around 1300-1500hrs. AK was identified as the controller of the run phone from between 1300-1500hrs until 2000hrs. This shift pattern was present almost every day that the run phone was intercepted. On some very few occasions, however, the voice of AK was heard in the morning and the voice of OK heard in the afternoon.

27. Both offenders participated in a joint criminal enterprise with MB and others to supply a total of 17,394.2 grams of cannabis across 2590 transactions and received payment of $247,340.

The individual supply offences for which the Offenders are to be sentenced:

28. Between 3 June 2022 and 22 June 2022, the offenders participated in a joint criminal enterprise to supply 5,517 grams of cannabis across 867 supplies.

29. Between 4 July 2022 and 31 July 2022, the offenders participated in a joint criminal enterprise to supply 4,186.2 grams of cannabis across 619 supplies.

30. Between 1 August 2022 and 24 August 2022, the offenders participated in a joint criminal enterprise to supply 7,691 grams of cannabis across 1104 supplies.

31. On 25 August 2022, police stopped the vehicle of OK (Audi QLD 303YHO) and placed him under arrest. Police seized an Apple mobile phone and a Gucci man bag from OK. Police obtained house keys from him and executed a search warrant at his residence in Liverpool.

32. On the same day, police executed a search warrant at Lurnea. Alex Kammoun and Malake Kammoun, the parents of OK and AK were present.

33. Located within the Lurnea address was:

1. $22,200 of cash and rubber bands (consisting of $100, $50, $20 and $10 notes) in the room used by OK, as well as a further $3,255 and $16,360 in cash; (Knowing deal with proceeds of crime (s 193B(2) Crimes Act)

2. 449.9 grams of cannabis head in a vacuum sealed clear bag located in a red esky in the backyard shed. The esky also contained empty coffee cups, 3x set of scales, clear resealable bags, and scissors.

3. 1.3grams of cannabis found in 2 resealable plastic bags; and

4. Red iPhone – run phone.

34. On the same day, police from Professional Standards executed a search warrant on the residence of AK at Carnes Hill. They placed AK under arrest. Police seized 6 mobile phones and $2700 in cash.

35. Police then executed a search warrant at Busby and placed MB under arrest. Police seized a red Fiat vehicle with registration DWJ15Z parked outside the residence. Police seized $6200 in cash, a taser, body armour, a tin containing 56 plastic bags with 26.5grams of cocaine, drug ledgers, a Medicare card number advice in the name of OK, 4 mobile phones and 169.7 grams of cannabis.

36. Located in the boot of the Red Fiat vehicle (DWJ15Z) which was parked at 32 Galloway Street, was 8 large bags of vacuum sealed cannabis weighing a total of 4.449kg in the boot of the Fiat.

37. One of the six mobile phones seized from AK’s residence was cellebrite examined by Police. Analysis of the messages stored on the phone identified the use of the phone by AK to direct the co-accused “Mick” Mitchell Berke, to supply cocaine as a runner between 12 August 2022 and 24 August 2022. AK was the user of the mobile number 0415 597 419.

38. AK and MB used the same methodology in their communication that they used in their enterprise to supply cannabis. AK, using the run phone, would advertise the sale of cocaine by sending group messages to phone contacts. AK received messages from prospective customers and negotiated the agreement to supply cocaine. AK would advise MB of the location of the purchaser, the purchaser’s contact number, the amount of prohibited drug sought by the purchaser and the agreed price for the supply. MB consistently communicated to AK when the transaction occurred.

39. AK and MB supplied a total of 65.5 grams of cocaine, which is comprised of the 39 grams actually supplied, and the 26.5 grams located by the police at MB’s residence which was jointly possessed by the offenders.

40. Police lawfully installed a surveillance device in the police cells of the police station in which each accused person was held. AK and OK made implicit admissions in the recorded conversations between them and the co-offender MB which are set out in the Agreed Facts.

Objective seriousness

41. I turn now to my assessment of the objective seriousness of the offences and later in these remarks I will consider the closely related issue of the offender’s moral culpability.

42. The quantity of drug supplied in each supply offence is a relevant but not determinative factor when it comes to assessing the objective seriousness of supply prohibited drug offences. The 3 supply offences that the offenders are to be sentenced for each involve an amount of cannabis leaf that is a long way short of the commercial quantity under schedule 1 of the Drug Misuse and Trafficking Act. However, the number of individual transactions for each offence was significant: 867; 619 and 1,104.

43. The two offenders committed the offences as part of a joint criminal enterprise where they were principals in a so-called dial a dealer drug supply syndicate and they were what are said to be controllers of the “run phone”. As I understand it, approved customers would dial the “run phone” in order to place orders with one of these two offenders. They would then direct the co-offender Berke to undertake the physical supply of the cannabis to the customer concerned. These two offenders would also attend the so-called safe house, their parents home, to oversee the collection of more cannabis.

44. There was some level of planning involved in operating what was essentially a drug business, but not above what would normally be utilised in such offending. The run phone was subscribed under another person’s name and address other than that of the offenders. New customers were required to be verified by existing customers.

45. The offenders clearly engaged in the offending for financial gain, with the proceeds of crime offence in part reflecting that gain. The amount of money the subject of the proceeds of crime offence was somewhat modest.

46. All of the offences are serious offences, but clearly not at the upper end of the range of objective seriousness. It is no longer necessary, if it ever was, that I attempt to classify the offences along some notional range of objective seriousness.

The subjective case concerning AK

47. AK’s date of birth is 27 October 1990 so he is currently 33 years of age.

48. He has no criminal history which entitles him to some leniency in this sentence.

49. The affidavit material that is before me, which I will shortly mention, demonstrates that the offender AK is generally a person of good character and that too entitles him to some leniency here.

50. In relation to AK I have the following documentary material before me: A SAR dated 16 Feb 2024; a letter dated 2 June 2021 from Dr Ashraf Phillips; two letters dated respectively 6 October 2021 and 18 May 2022 from Dr Yaser Mohammad; a psychiatric report dated 25 Feb 2024 by Dr Olav Nielssen; a letter of apology by the offender and documentation from Corrective Services and Justice Health. Affidavits from the offender’s ex partner Rouda Hamra; his sister Howayday Kammoun; a former work colleague, Jacob Phillips and a neighbour Dalena Pham were read on sentence.

51. AK did not give evidence on sentence and I have had regard to that fact in assessing what weight to give statements he has made to third parties contained in the tendered material.

52. AK told Dr Nielssen that he had a good upbringing in a stable family and understood that his early development was normal.

53. According to what is contained in Dr Nielssen’s report, the offender has 3 older sisters, and a younger brother, who is his co-offender OK.

54. AK separated from his wife in 2017 although they still lived together under the one roof as at the date of his arrest. He and his wife have two daughters now aged 6 and 9. His wife remains very supportive of him despite the fact that they have separated.

55. AK’s wife in her affidavit described the offender as a family oriented man who has a very close relationship with his two daughters, and has maintained that relationship as best he can whilst he has been in custody.

56. The affidavit of his sister records that he has been very supportive of her in the past and of her young son who has autism.

57. AK told Dr Nielssen that he completed the HSC with a low pass but completed a certificate four course in management at TAFE in order to qualify for the police service. After leaving the Police Academy he was assigned to general duties in Green Valley near where he grew up.

58. While in the Police Force the offender had risen to the rank of Senior Constable. According to what is recorded in Dr Nielssen’s report, at some point he was investigated for allegedly passing information to his brother an allegation that was subsequently withdrawn. Prior to going on extended leave AK had worked at the Transport Command based in several police stations. The information before me suggests that because of incidents at his employment he developed paranoia and depression. The precise nature of those incidents is not clear to me, but there is some reference to bullying in the material that is before me.

59. As at the time of the offending, as I understand it, he was still employed by the NSW Police but was on Workers Compensation. Due to his offending, not surprisingly, his employment has been terminated.

60. The material before me suggests that the offender has never been a user of prohibited drugs, although the Sentencing Assessment Report records that AK reported to the author of that report that at the time of the commission of the offences he was affected by Valium which prevented him from experiencing fear in engaging in the offending.

61. Dr Philips’s report indicates that as at 2 June 2021 the offender was exhibiting symptoms of paranoia. Dr Mohammed in his first report records that AK as at 6 October 2021 was suffering from depression and PTSD and had a history of bullying in his work place. The doctor noted that AK presented as sad and with a depressed mood. The doctor at that time considered that AK was unfit for work due to his low mood and psychological problems.

62. Dr Mohamed’s second report dated 18 May 2022, which is around the time of the offences, records that the offender as at that point in time was suffering from PTSD which contributed to severe stress and anxiety. Somewhat ironically, given how close the date of that report is to the offending, the report records that AK “constantly feels worried that he is going to be framed and that work colleagues are spreading false rumours about him and his family”.

63. Dr Nielssen records in his report that AK said that around the time of the offences his mental state “was bad”, that he had stopped showering and could not speak to his family or leave the house.

64. Dr Nielssen considered that AK on presentation had an anxious manner with an underlying depressed mood. He considered the offender to have an intelligence within the normal range. Dr Nielssen diagnosed the offender as suffering from a Depressive illness and an Anxiety Disorder. Dr Nielssen considered that the internal investigation of AK appeared to have triggered an episode of depressive illness made worse by the circumstances of his detention.

65. The Sentencing Assessment Report records that AK attributed his offences to a fear of financial instability if his workers compensation payments ran out. That report records that despite not experiencing any financial strain, AK stated that he engaged in the offences for financial gain. Dr Nielssen records in his report that the offender told him that he had been under some financial pressure because of the reduced payment from the loss of penalty rates and he had additional costs from hiring a lawyer.

47. The Sentencing Assessment Report records that while the offender was able to articulate the impact of his offending, specifically in relation to his family, AK was unable to identify the impact of the offences on the community. Consistent with that report Dr Nielssen noted that AK had expressed his regret over the effect of his behaviour on his family. Dr Nielssen records that the offender reported that his offending behaviour was a reaction to the loss of his police career and his perception that he did not have an alternative way to make a living.

48. The offender’s letter to the court, however, contains statements of remorse that go beyond simply recognising the harm done to his own family. The affidavits from family and friends indicate that he is remorseful for his offending, recognising what a significant fall from grace his offending is.

49. Dr Nielssen considered that the offender was affected by a depressive illness in the period in which the offences took place. The doctor noted that such an illness is often accompanied by impairment in cognitive function and problem solving, and that depressed mood can result in impaired decision making and a reduced concern for the potential consequences of the affected person’s actions.

50. Dr Nielssen considered that AK was receiving what seemed to be a good standard of care, although was of the opinion the offender was unlikely to fully recover until he was released from custody.

51. The Sentencing Assessment Report records that the offender is considered to have a low risk of re-offending.

52. The material before me satisfies me that due to safety concerns and AK’s status as a former police officer, he has been kept in a restrictive environment within the prison system. Material before me suggests that for certain periods he has been held in his cell some 23 hours a day and for safety reasons segregated from the rest of the gaol population. The material from Justice Health and Corrective Services that is before me is to the effect that AK’s mental health has deteriorated while he has been in custody.

53. Counsel for AK placed some reliance on the principles discussed in DPP (Cth) v De La Rosa [2010] NSWCCA 194 about the relevance of an offender’s mental health condition to sentencing. While I accept that the offender had a depressive illness as at the time of the offences, I do not consider that the evidence here, in particular, the report of Dr Nielssen, goes so far as to support a finding that the offender’s mental health contributed to the commission of the offences in a material way, such that his moral culpability is reduced. Nor do I consider that he is not a suitable vehicle for the expression of the sentencing principle of general deterrence.

54. I do accept that his time in custody will be more arduous than it is for other offenders because of his mental health conditions together with the fact that he has been in the past a serving police officer, which has required him to be held in a more restrictive environment.

55. I also accept that AK’s continued detention will cause some hardship to his former wife and young children. It was not submitted that hardship was exceptional, however, I have had some regard to it in the general mix of factors that I have had regard to in imposing sentence.

56. The offender entered an early plea of guilty and I will allow him a 25% discount of this sentence for the utilitarian value of the early plea of guilty.

57. All of the evidence including his early plea of guilty supports a finding that the offender AK is genuinely remorseful.

58. Given the offender’s lack of a prior criminal record and his family support I consider he has good prospects for rehabilitation, and is unlikely to re-offend.

59. I note AK has been in custody since his arrest on 25 August 2022 and his sentence will be back date to that date.

The subjective case concerning OK

79. Before imposing sentence on AK I will review the offender OK’s subjective case.

80. In relation to OK I have the following material:

81. A Sentencing Assessment Report dated 24 January 2024; a psychological report by Sam Albassit dated 29 Feb 2024; a medical report dated 22 Feb 2024 by Dr Elsadig Mohammed; a letter by the offender’s wife dated 1 March 2024, an offer of employment from Iconic Constructions; a medical report in relation to OK’s mother in law; a letter of apology from the offender and a letter from the offender’s sister Massa Kammoun. OK also did not give evidence on sentence and I have had regard to that fact when assessing what weight to give to statements he has made to third parties.

82. OK has a criminal record that does not assist him in this sentence. Of some significance is the fact that on 10 May 2021 in the Local Court he was dealt with for the following offences by way on an intensive correction order which was imposed for 2 years: Possess unauthorised firearm, which was a call up of an earlier community correction order; Resist Police; Supply Prohibited Drug; Two possess Prohibited Drug offences; Two Possess Restricted substance offences; Goods in custody and deal with the proceeds of crime. On 13 July 2022 he was placed on a community correction order for 3 offences of drive whilst suspended.

83. The offences that I am to sentence OK for were all committed while he was subject to the intensive correction order I just referred to and in breach of the community corrections orders. That is an aggravating factor on sentence.

84. The Sentencing Assessment Report records that OK was residing with his wife prior to being incarcerated. He and his wife have one child and when released from custody he intends to live with his wife and child. Their son is currently 22 months old. The Sentencing Assessment Report notes that he appears to have the pro-social support of his family members to address his offending. OK’s wife in her letter sets out the difficulties she is having with the sole care of their son and the responsibilities she has towards her mother who is far from well. The offender’s wife remains supportive of him while he is in custody.

85. According to the contents of the psychological report, at the age of around 14 he began to associate with an anti-social crowd.

86. Mr Albassit records OK reporting that he experienced an “horrendous childhood”; stating that his father was a chronic gambler who was seldom home and argued a lot with his mother.

87. OK is recorded in Mr Albassit’s report as stating that he struggled physically and emotionally throughout his child hood. He is recorded as completing his HSC. The psychologist’s report sets out that the offender was suspended from school on a number of occasions.

88. I note that Mr Albassit appears not to have spoken with anyone to confirm the offender’s account of his early childhood and schooling. No school reports were tendered before me or referred to in Mr Albassit’s report.

89. After finishing school, according to Albassit’s report, OK attended TAFE and obtained a security licence and worked in that industry, and he told the psychologist he had remained out of trouble for 5 years.

90. As at the time of the offences the Sentencing Assessment Report records that OK was unemployed and not in receipt of unemployment benefits. He is said to currently be employed at the Clarence Correctional Centre as a unit cleaner.

91. According to the psychologist’s report, the Covid 19 Pandemic affected his capacity to engage in employment and that he again began to associate with the so-called “wrong crowd” and was introduced to illicit substances. OK told Albassit that by 2021 he had incurred an $180,000 debt in relation to his drug use, in particular in relation to cocaine and cannabis. OK also told Albassit that due to his drug debt he was threatened by those to whom he owed the debt and that he engaged in the supply of prohibited drugs to rid himself of his drug debt.

92. OK’s wife in her letter states that in in 2020 she was aware of the offender using illegal substances.

93. Mr Albassit records OK telling him that he has been “clean of substances” since being incarcerated and there is nothing to suggest otherwise in the material before me.

94. The Sentencing Assessment Report notes that Correctives NSW records record OK as being diagnosed with severe anxiety which he said was untreated as at the time of the offending. He was said not to be receiving any treatment for his mental health in custody.

95. Mr Albassit states in his report that in relation to his drug debt the offender developed symptomatology of anxiety and panic attacks. The report records that the offender said that he had reported to Liverpool hospital on multiple occasions with symptoms consistent with anxiety. No hospital records or reports were tendered to support such an assertion. There is a one page report from Dr E Mohammed which states that in terms of the offender’s past medical history on 2 October 2020 he had Anxiety and on 6 Feb 2018 he had depression. That report provides no detail and does not refer to OK having presented to hospital in relation to his mental health conditions.

96. Albassit administered a DASS 21 Questionnaire to OK and he was said to have returned a reading in the severe range for depression, anxiety and stress. The psychologist considered that the offender’s symptomatology was consistent with a Depressive Disorder. He also considered that the offender had a Substance Dependence disorder that was active as at the time of the offences.

97. Albassit opined that “there appears to be a correlation between Mr Kammoun’s Mental Health Impairments and his offending behaviour”. According to the psychologist’s report OK’s feelings “of worthlessness, low self-esteem stemming from his childhood neglect and deprivation, and subsequent association with people who consumed illicit substances led to carrying out anti-social behaviours”.

98. There is a letter from a sister of OK, not the sister who provided an affidavit in support of AK, which does offer some support in relation to the offender’s poor early upbringing. However, absent sworn evidence from either the offender or a member of his family about the circumstances of his early life, I am not prepared to sentence him on the basis of his early childhood being as he described it to the psychologist. While I accept that what his brother told the psychiatrist about his early family life is not relied upon by the Crown in its case concerning OK, the fact AK stated to Dr Nielssen that he came from a good and stable family background strengthens my view that in the sentencing of OK I should not proceed on the basis of OK having a deprived upbringing, absent sworn evidence to that effect.

99. Absent sworn evidence from the offender OK, I am also not prepared to sentence him on the basis that he engaged in the offences due to threats he received from persons to whom he says he owed a significant sum of money in relation to a drug debt.

100. The Sentencing Assessment Report states that the offender rationalised his offences by downplaying the severity of them and that he considered his lack of stable finances as the reason for his offending. He claimed to the author of the Sentencing Assessment Report that he committed the offences to support his family as he had been under financial strain at the time.

101. Mr Albassit records in his report that the offender expressed shame for his behaviour and lack of judgment in committing the offences.

102. The offender in his letter expresses his remorse for his offending.

103. The Sentencing Assessment Report records the offender as having a medium risk of re-offending. Albassit states at [34] of his report:

“Mr Kammoun’s willingness to engage during the assessment and the high level of insight in relation to the consequences of his actions lends itself that (sic) Mr Kammoun’s prospects for rehabilitation is positive”.

104. Why the fact an offender’s willingness to engage in an assessment process by a psychologist engaged by the offender’s lawyers to assist him in his sentence impacts upon his prospects for rehabilitation is difficult to understand.

105. Counsel for the offender did not submit that the material suggesting that OK had a somewhat deprived early childhood attracted the principles concerning the relevance of social disadvantaged discussed by the High Court in Bugmy v R (2013) 302 ALR 192 and in my opinion, it has not been established that those principles have any application here.

106. It was not submitted that the principles outlined in DPP (Cth) v De La Rosa [2010] NSWCCA 194 and the relevance of mental health to sentencing have application here.

107. It was submitted that it was the deprived background of the offender which led him to become a user of prohibited drugs and that the approach outlined by Simpson J in R v Henry (1999) 46 NSWLR 346 should be adopted here and the sentence mitigated to some degree. I am prepared to accept that in part he engaged in the offending to support his drug habit, I am not prepared to approach his sentence on the basis that it was his deprived early childhood that led him to engage in taking prohibited drugs, given there was no sworn evidence to that effect. I note also he had an opportunity to do something about his drug issues when he was previously placed on an intensive correction order.

108. OK also entered his plea of guilty in the Local Court and I will provide him with a 25% discount of his sentence for the utilitarian value of his plea.

109. Given the offender’s early plea of guilty and his statements to 3^rd parties, I make a finding that he has some genuine remorse although I think his insight into how serious his offending was is limited.

110. Given that the offences were committed while on an intensive correction order and on community correction orders, and that one of the offences the subject of the intensive correction order was a supply prohibited drug offence, despite his family support, I consider his prospects for rehabilitation are guarded bordering on reasonable.

111. The hardship to his wife and child from his incarceration is not exceptional, but I have had regard to it in the general mix of factors that are relevant to sentence.

112. The offender OK has been in custody since 25 August 2022. I accept that there have still been some restrictions in place as a consequence of Covid 19 during the period of time that he has been in custody, although as I understand it, the custodial environment has moved towards normality to a considerable degree. I will make some allowance for the fact that he has served his sentence during a period when restrictions on inmates have been greater than in pre-covid times.

113. As I say, Ok has been in custody since 25 August 2022. During the period 25 August 2022 to 9 May 2023 he was serving the revocation of his ICO which I referred to earlier. When I impose sentence on him, I will consider the appropriate commencement date having regard to principles of totality.

Imposition of sentence

114. In sentencing both offenders, I consider that each of the supply counts should be partially accumulated. There should be limited accumulation of the supply counts and the proceeds of crime count as clearly the proceeds of crime the subject of that charge is the product of the offender’s engaging in the supply of prohibited drug.

115. The offences on the respective form 1s have a limited impact on the sentence to be imposed on the proceeds of crime count. The criminal group offence has no real impact as the object of the group was the supply of prohibited drugs which is encompassed by the supply prohibited drug counts. I note only AK has the supply cocaine offence on a form 1.

116. I have had regard to the objectives of sentencing referred to in s.3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence; protection of the community; denouncing the offender’s conduct; recognize the harm done to the victim and the community and rehabilitation of the offender.

117. Those who engage in the business of supplying prohibited drugs for money must expect to receive significant sentences given the harm that prohibited drugs are causing in our community. General deterrence should be given greater weight in the sentencing of AK as he was a police officer as at the time of the offences. There must also be an element of specific deterrence in each sentence, greater in the case of OK because of his criminal history and the fact that he committed the offences while on conditional liberty.

118. Sentencing has been said by the higher courts to involve a process of instinctive synthesis of a number of relevant factors some of which pull in different directions. The maximum penalties have been taken into account as legislative guideposts.

119. The only appropriate sentence is one of imprisonment, having considered s.5 of the Crimes (Sentencing Procedure) Act given the serious nature of the offending.

120. In fixing the non-parole period for AK, I will make a finding of special circumstances given this is his first time in custody and the conditions of his custody and safety concerns given he is a former police officer serving a sentence.

121. In fixing the non-parole period for OK, I will also make a finding of special circumstances, given his issues with prohibited drugs and his mental health conditions, he will need considerable assistance when next in the community if he is to live an offence free life.

122. I will utilise the aggregate sentencing provisions but will deal with the offence concerning OK that is on a s.166 certificate separately.

The sentence for AK

123. The offender is convicted of each of the offences to which he has pleaded guilty.

124. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.

125. The sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence which is the sentence and non-parole period that you will serve. It is not arrived at by simply adding up the all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole.

126. On the proceeds of crime offence; sequence 5 the starting point prior to the application of the discount for the plea of guilty, having regard to the offences on the form 1, is 20 months imprisonment. After application of the discount, I record an indicative sentence of 15 months imprisonment.

127. On each of the supply prohibited drug offences, I consider that the starting point prior to the application of the discount for the plea of guilty is 2 years imprisonment. After application of the discount, I record indicative sentences of 18 months imprisonment on each of those offences.

128. I impose an aggregate sentence of 3 years and 4 months with an aggregate non-parole period of 2 years. The sentence commences on 25 August 2022 and expires on 24 December 2025. The NPP expires on 24 August 2024. The earliest date you may be released to parole is 24 August 2024.Whether you are in fact released to parole that day is a matter for the SPA which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

The sentence in relation to OK

129. The offender is convicted of the offences to which he has pleaded guilty.

130. On sequence 8 the proceeds of crime offence, having regard to the offences on the form 1, the starting point before the application of the discount for the plea of guilty is 20 months imprisonment. After application of the discount there is an indicative sentence of 15 months imprisonment.

131. On the 3 supply prohibited drug offences the starting point for each sentence prior to the application of the discount is 2 years and 4 months imprisonment. After application of the discount there is an indicative sentence on each count of 1 year and 9 months.

129. I impose an aggregate sentence of 3 years and 8 months and an aggregate non-parole period of 2 years and 3 months. That sentence commences on 31 December 2022 and expires on 30 August 2026. The NPP expires on 30 March 2025. The earliest date you are eligible to be released to parole is 30 March 2025. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

130. On the offence of drive while disqualified on the s166 certificate, the offender is convicted and I impose a community correction order for two years from today which is to be subject to supervision by Community Corrections. The offender is disqualified from driving for a period of 4 months.

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Decision last updated: 22 April 2024