R v Khalil; R v Bilson

[2019] NSWDC 271

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Khalil; R v Bilson [2019] NSWDC 271

Hearing dates:

11 December 2018;1 March 2019

Date of orders:

01 March 2019

Decision date:

01 March 2019

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

Khalil – A sentence of imprisonment of 4 years, 3 months with a non-parole period of 2 years, 11 months: at [36].
Bilson – A sentence of imprisonment of 3 years with a non-parole period of 2 years: at [36].

Catchwords:

SENTENCING – single offence – supply large commercial quantity of a prohibited drug – Form 1 offences – early plea of guilty
SENTENCING – two offences – supply prohibited drug -

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

Ayache v R [2013] NSWCCA 41
Imbornone v R [2017] NSWCCA 144
Parente v R [2017] NSWCCA 285
R v SY [2003] NSWCCA 291
Scott v R [2010] NSWCCA 103

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

 

Belal Khalil (Offender)

Anthony Bilson (Offender)

Representation:

Mr Dickenson (Crown)

 

Mr James QC (Offender – Khalil)

  Mr McGuiness (Offender – Bilson)

File Number(s):

2017/353780; 2017/384808; 2017/371129

Publication restriction:

Nil

Judgment

1. Between 30 October 2017 and 7 December 2017 police were monitoring a mobile phone number used by the offender, Belal Kahlil, to arrange the supply of methamphetamine. On some occasions Kahlil would supply the drug by delivering it himself or arranging for the buyer to attend at his home in Belmore and on other occasions he would contact a co‑offender, Alessandra Angeloni, whose case has been adjourned today under s 11 of the Crimes (Sentencing Procedure) Act 1999, and he would arrange for her to supply either delivering the drug or have the buyer attend her home in Croydon Park. One of Khalil and Angeloni's regular customers was the offender, Anthony Bilson.

2. Khalil is 29 years of age and Bilson is 55 years of age and they both appear for sentence today having pleaded guilty in circumstances which entitle them to a 25% discount on a term of imprisonment, it being conceded by both counsel that a term of fulltime custody is required in this case. It is unnecessary for me to consider any alternatives in the exercise of the sentencing process, bearing in mind the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999.

3. Kahlil pleaded guilty to one count of supply a large commercial quantity, being 561 grams of methamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of life imprisonment and a standard non‑parole period of 15 years. To be dealt with on a Form 1, in the way suggested by the Chief Justice in the guideline judgment, are three matters:

• a money laundering count in relation to $10,700 cash, which carries a maximum penalty of three years;

• a possess 24 grams of cannabis under s 10 of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of two years; and

• a further s 10 count of possess 2 grams of methylamphetamine.

Mr Khalil has been in custody since his arrest on 7 December 2017 and his term of imprisonment will commence on that date.

Belal Khalil

Facts

4. Mr Bilson has pleaded to, firstly, a count of supply 210 grams of methylamphetamine under s 25(1) which carries a maximum penalty of 15 years with no standard non‑parole period, and a second count of supply of 25 grams of methylamphetamine, also under s 25(1). Mr Bilson has been in custody for most of the period since his arrest on 22 November 2017 and it is common ground that a term of imprisonment would commence on 18 December 2017. The facts in relation to Mr Khalil show that over the period that I have referred to there were approximately 170 transactions for the supply of prohibited drug, and of these there were not less than 133 occasions on which Khalil supplied methamphetamine either himself or by directing Angeloni to do so. The annexure to the agreed facts indicates the occasions on which Angeloni was the runner. He supplied a total of 560 grams of methylamphetamine for $89,100. Mr James QC for the offender tells me that it is agreed that the return to Khalil was in the order of $30,000.

5. Angeloni acted as the runner, at the direction of Khalil, on 89 occasions. Bilson frequently ordered methamphetamine by the ounce or 28 grams. On 22 November Kahlil called Bilson who placed an order for a full ounce and he was told that he could pick up the drugs from Angeloni's place. That day Angeloni met Bilson near her house and supplied him with 25 grams of the drug for $4,000. Police were conducting surveillance and Bilson was arrested in his vehicle shortly thereafter. The drug was of a purity of 69.5%.

6. At about 10.30am on 7 December, investigators executed a search warrant at Khalil's residence in Belmore and they found in the laundry cannabis, methamphetamine and a set of scales, the drugs being the subject of the Form 1 charges. They also found an amount of cash, which, along with cash found in his vehicle is the subject of the money laundering count. He was taken to the Police station and in an interview told police that formerly worked as a concreter but after a vehicle accident in June he had mostly stopped working.

7. He used about one joint of cannabis a week and rarely used methamphetamine.

Offender Criminal History

8. His record has not included any periods of full-time custody as an adult. He was dealt with in the Children's Court for malicious wound in 2006 and received a community service order. There were s 9 bonds for possess and supply prohibited drugs in 2008. The bonds were called up, leading to s 12 suspended sentence in relation to those, and I've had regard to the facts that have been tendered in relation to that incident. There was an assault officer in 2009 leading to suspended s 12 sentence, some driving offences and other minor offences in 2009 and 2013 including a common assault and stalk and intimidate leading to a community service order.

Subjective material

9. The subjective case for Khalil commences with the Sentencing Assessment Report and there is a lengthy psychologist's report and a significant quantity of further material which provides, in my view, a reasonable basis for the sentencing exercise, notwithstanding that it has not been tested or subject to verification, bearing in mind the principles summarised in Imbornone v R [2017] NSWCCA 144 at [57].

10. He has the support of his wife and children and has undertaken some courses while in custody. He has displayed insight into his offending and acknowledged that his poor choices were due to his drug dependency and he recognised that his criminal behaviour required fixing so that he could adopt a pro‑social lifestyle for his family's benefit at least. He admitted that he had been using for about 12 months prior to the offence, using 3.45 grams of ice, 2 points of cocaine and 25ml of GHB over a three day period each week. He had an unsatisfactory response to previous supervision and was assessed as being a medium risk of reoffending. Notwithstanding that, as Mr James QC points out, a supervision plan was recommended, which is not inconsistent with the treatment plan recommended by Mr Borenstein. I have a reference from his wife who describes the way in which he had changed after about two years of marriage and the distress occasioned to her from having to roam the streets to collect her husband who has a combination of addictions, which she said contributed to his psychosis, anxiety and depression and was admitted to hospital for various overdoses and she notes that there were two suicide attempts during their marriage.

11. She notes a positive change in his presentation while in custody and he has expressed remorse to her. I take account of his cousin's reference, who is also a former employer, and confirms his willingness to support him and continue with his attempts at rehabilitation on his ultimate release. There is no doubt that Mr Khalil was involved in a motor accident in June 2017. The precise circumstances and sequelae of that accident need not be resolved here. There is a contest about whether he was not able to work as a result of the accident, but it is not a matter that I am able to make any findings to either requisite standard.

12. He is taking antidepressants while in custody. He disclosed a very significant gambling habit and said that he was selling drugs to support his drug taking and his gambling habit. He was diagnosed with schizophrenia some years ago and commenced on Zyprexa, antipsychotic medication, which he took for about 18 months. He completed the MERIT program some time ago and remained of all drugs for about 18 months until he married his second cousin, who turned out to be a poor choice, given that she had an ice dependency as well. He now has a three and four year old child to his current wife who is, as I have said, supportive.

13. There is a suggestion by Mr Borenstein that he had relapsed into a drug induced psychotic state during the offending period but Mr James QC does not put matters that highly or that high. He was expelled during when he attended high school and completed some part of his plumbing apprenticeship at TAFE and then worked in the concreting field with his cousin for several years. He was assessed as having no better than low average intelligence and low average emotional intelligence. Mr Borenstein said he relies almost exclusively on compulsive or addictive defences as a means of dealing with his emotions which need to be targeted in the context of intensive psychological therapy and cognitive behaviour therapy.

14. I have regard to a letter from the offender in which he expresses his remorse and regret and notes the time that he has had to reflect while in custody on the mistakes that he has made. He has been attending ADD meetings and remand addictions programs. I have had regard to the documents confirming his completion of a trade course involving shift materials and work health and safety procedures while in custody and his attendance at the remand addictions program.

Anthony Bilson

Facts

15. The agreed facts set out nine separate instances between 31 October and 14 November 2017 where Khalil supplied Bilson with methylamphetamine. The subject of the first supply count involved the sale of 210 grams of methylamphetamine over 8 transactions to Bilson for a total of $30,400. On several of these occasions the delivery was carried out by Angeloni and sometimes by Khalil himself. As to the second supply count of 25 grams, Bilson placed an order with Khalil on 22 November and he met Angeloni near her house and exchanged $4,000 for the drug of 69% purity. When he was arrested by police shortly after that the sale, he acknowledged that he had about an ounce of ice on him. He declined to participate in an interview.

Criminal History

16. His record also does not involve any periods of fulltime custody. It commences with a stealing offence in 1982, possess drug in 1982, break enter and steal in 1984, offensive language, some driving offences, possess drugs in 2004, dealt with by a s 9 bond, larceny in 2005 and then goods in custody, dealt with by a fine 2013 and then a number of fraud offences in 2015 which led to a two year, s 9 bond being imposed on 15 January 2016. As Mr McGuiness points out, he had almost served out the two year bond before becoming involved in the current offending, and in the circumstances, it is not contested that I should take no action on the breaches of those bonds which have been called up today.

Subjective material

17. Mr Bilson gave evidence before me today and affirmed the history given to Anthony Fordyce, a psychologist, which is also largely consistent with a history set out in a Sentencing Assessment Report. His behaviour in custody has been good and he is not a management concern. He was living alone at the time of his offending. He has no family support and no pro‑social contacts in the community. He is in receipt of a disability support pension and he has a history of drug related offences. He has reflected on the impact that his offending has had on drug users' health and his motivation to offend was to support his own addiction, he was using one ball of ice daily, but he is willing to address his ongoing drug use by participating in a community drug treatment program and it appears that he has been abstinent from illicit drug use while in custody. He is assessed as being a medium risk of reoffending.

18. The lengthy report of Mr Fordyce was prepared following a consultation in October 2018. His background is that he is the youngest of four children and, while his father was employed, he described him as an alcoholic who engaged in domestic violence against his partner and his children. His parents separated when he was about six years old. He lost contact with his mother and she died when he was young. He was in a serious pedestrian motor vehicle accident when he was about six years old. It involved him being struck by a bus and he sustained a fractured skull and the medical evidence, including reports of a specialist neurologist, Dr Mellick, confirms evidence of a previous frontal craniotomy clearly resulted from that trauma.

19. He remained in hospital for about 18 months. He was expelled from home when he was 14. He was homeless for some months and then lived with his elder brother for a while, but that relationship deteriorated. He has had significant learning difficulties. He completed year 10 at school and he has had three lengthy periods of employment between ages 17 and 40 in manual fields in factories and labouring. He had last worked when he was about 40 and has been in receipt of government benefits.

20. He had been prescribed antidepressant medications but said they are of limited benefit. He was referred to Dr Mellick in 2011 and the doctor took the view that he was experiencing panic attacks and tried him on Epilim, an anti‑seizure medication. He described a preference for a solitary lifestyle and has not had a significant relationship for many years. There is clearly a pronounced history of alcohol, amphetamine and methamphetamine abuse. He started consuming alcohol when he was 16 or 17 and was using what was described as 14 standard units a day of alcohol until about age 32, when he stopped because he recognized that he was behaving violently when intoxicated. He started using amphetamine on a weekly basis at age 16 and also used methamphetamine as an alternative since his mid‑30s. He acknowledged heroin use for some time and had been prescribed methadone. Mr Fordyce summarised his criminal history as demonstrating a long pattern of offending behaviour beginning in his early adulthood which had become more regular and intense since he was about 40 years old, coinciding with an exacerbation and his drug use. Mr Bilson attributed his depressive symptoms to the death of his mother, his head injury and the maltreatment he received from his father. In conclusion, Mr Fordyce recognised longstanding issues with substance dependence requiring a comprehensive drug rehabilitation program including referral to a clinical psychologist to address his depression and anxiety and develop more effective coping strategies.

Submissions

21. I have been assisted by helpful written submissions prepared by the Crown and by Mr James QC and Mr McGuiness.

Khalil

22. The Crown reminds me of the principles for sentencing in drug supply cases affirmed in Parente v R [2017] NSWCCA 285. He asserts that the principal offence is around midrange, bearing in mind the objective factors which indicate that he had both the managerial and the decision making role. He employed Angeloni as a courier, directed her to make deliveries on his behalf. Mr Khalil paid Angeloni around $1,000 a week to make the deliveries and it was clear that he retained the profits from the drug supplies, as is conceded by Mr James. He supplied methylamphetamine on 133 separate occasions over a relatively short period of just over a month representing an average of 3.5 supplies per day and the value of the drugs and the quantity have been noted. It is only just over the large commercial threshold of 500 grams, there being no upper limit to that range. In short, it is clear that he was not engaged in drug supply to a substantial degree.

23. As to aggravating factors, the Crown notes that this was a series of criminal acts rolled up into a single charge. There was certainly financial gain beyond what would be expected for the lowest level of offending. As to mitigating factors, his record does not entitle him to leniency. His prospects of rehabilitation are guarded in the light of the evidence to which I have referred.

24. It is correct, as the Crown points out, that his drug use was a rational choice by him and I have regard to what was said by Whealy JA in R v SY [2003] NSWCCA 291, although, as Mr James QC points out, his range of choices was somewhat limited given his circumstances.

25. There was some helpful co‑operation between Mr James QC and the Crown Prosecutor in relation to the contents of Mr Borenstein's report and the use to which it could be put. The resolution of that debate led to the following matters being taken into account. Mr Borenstein was not diagnosing post-traumatic stress disorder but clarified that the normal grief response, when not properly dealt with, can lead to recklessness and impulsivity particularly in young men. The psychological testing had confirmed the offender's tendency to impulsivity and recklessness. His scores for depression and anxiety on testing related to his state of mind over the previous week and it was not unusual for someone in custody facing sentencing to have elevated scores. It was acknowledged that there the Paulhus Deception Scale gave a clinical indication that there was no impression management or misrepresentation; and lifestyle factors, such as extravagant purchases, might affect any conclusion that the offences were solely related to substance abuse but there might also have been, amongst the causative factors, the prospect of some financial reward.

26. It was also common ground that although Mr Khalil's mental conditions and drug addictions were linked and underlie the commission of the offences, these were properly to be treated in accordance with the De La Rosa principle as a subjective, relevant matter affecting judgment and impulsivity, rather than as wholly, solely or directly causative, notwithstanding that it may have played some role when it will affect how heavily a prison sentence would weigh upon the person. It was also accepted by the Crown that the offender had made an offer to assist police on his arrest but, unbeknown to him, the police had already arrested the people referred to so that the information was of no utilitarian value but it is a matter of some subjective significance to be taken into account.

27. Mr James QC accurately describes the frequency of dealing and volume of transactions as supporting the inference that this was street level retail operation for customers who called up for delivery. He accepts that Mr Khalil had a principal role, that his offending financed his own drug habits, he was a poly substance abuser, not merely diverting his own sale product but also purchasing and utilising other drugs and he had a managerial role, as did his co-offender Angeloni, and it's accepted that he was engaged in drug supply to a significant degree, but it was an operation which, having regard to the ambit of s 25(2) Drug Misuse and Trafficking Act 1985 and the aggravating circumstances, fell towards the lower end of the spectrum in terms of quantity and the nature of the operation.

28. The Form 1 offences added little to the objective seriousness as they involve the proceeds from supply and the prohibited drug possession and are directly related to the principal offence and they will not loom large in increasing the sentence for the principal count.

22. Although Mr James QC submitted there was no support for the proposition that turnover represented a significant financial gain. In the light of his concession, that there was a reward to his client about $30,000 that cannot be accepted. In the light of the recommendations as to treatment, Mr James QC submits that it is in the community's interests to foster his rehabilitation and treatment for drug addiction.

23. There was no challenge to the submission that a finding of special circumstances should be made. In the light of the need for treatment and rehabilitation and it being his first period of fulltime custody, there is clearly a need for extended supervision on parole. I bear in mind that the offender was hospitalised, according to the evidence, following suicidal ideation shortly before he went into custody. I bear in mind the risk of that ideation returning.

Bilson

31. The Crown submits that the first supply count is around the midrange of objective gravity, noting that over a period of about 15 days he purchased a total of 7.5 ounces of methylamphetamine in eight separate transactions for a total of $30,400. The amount was 210 grams which is less than the commercial quantity of 250 grams. It is acknowledged there was no direct evidence of the quantities, profit or degree of planning involved in Bilson's own drug supply activities, nor his precise role in any hierarchy but, given his evidence that he was purchasing an ounce every one or two days, and acknowledgement that he was using about a quarter of his purchases, that involved a concession that he was selling about three‑quarters of his purchases to support his own habit. He was something more than just a low level user/dealer as recognised in one of his comments on 3 November when he said, after ordering another ounce of methylamphetamine, "I'm out, bro. Every man and his dog is ringing me", suggesting that he had been pursued for supplies by others.

32. The second count is conceded to be towards the lower end of the range, bearing in mind the amount involved and it being a single instance of deemed supply.

33. As to aggravating factors, I take account of the breach of the 14 s 9 bonds to which I have referred, and that sequence one comprised a series of criminal acts rolled up into one charge.

34. As to mitigating factors, there is a degree of remorse and insight. His record does not entitle him to leniency to any great extent. There is a medium risk of reoffending, as I have said, and his prospects of rehabilitation are guarded. There is no challenge to the submission that there should be a finding of special circumstances made, given that he is, as Mr Fordyce says, in partial remission with respect to his drug addiction and he clearly requires drug treatment interventions and an extended period of supervision.

35. I have regard to the two cases said by Mr McGuiness to represent, broadly speaking, the upper and lower end of the relevant ranges, they being Scott v R [2010] NSWCCA 103 and Ayache v R [2013] NSWCCA 41. They are of limited assistance given the significantly different factual and subjective circumstances of each case and not because, bearing in mind questions of parity between the offenders, they are clearly not candidates for a significant degree of parity. Beyond the two cases to which I have referred to I have not been taken to any statistics or range of sentences in other cases, it being asserted by Mr James QC that it was common ground that the statistics would be of little, if any, assistance, and I say that without any criticism. In short, as has been conceded on behalf of both offenders, a significant degree of drug dealing is involved, requiring the imposition of fulltime custodial sentence.

36. The orders that I make are:

Khalil

1. The offender is convicted of the offence.

2. Taking into account the Form 1 offences, I impose a sentence of imprisonment of 4 years 3 months, to commence on 7 December 2017 and expiring on 6 March 2022.

3. I impose a non-parole period of 2 years, 11 months, expiring on 6 November 2020. The offender is eligible for release to parole on that date.

4. I find special circumstances.

5. I make a drug destruction order.

Bilson

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 3 years, to commence on 18 December 2017 and expiring on 17 December 2020.

3. I impose a non-parole period of 2 years, expiring on 17 December 2019. The offender is eligible for release to parole on that date.

4. The indicative sentences are:

1. Taking into account the Form 1 offences, H128291301/001 – 2 years, 10 months

2. H66760529/001 – 1 year, 10 months.

5. I find special circumstances.

6. I make a drug destruction order.

CALL-UP FOR BREACHES OF BOND

7. No further action taken.

Note – These extempore remarks were revised without access to the court file.

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Amendments

08 August 2019 - Correction to representation details on coversheet - Deletion of repeated QC

Decision last updated: 08 August 2019