R v Khatib (No 2)

[2016] NSWDC 396

District Court

New South Wales

Medium Neutral Citation:	R v Khatib (No 2) [2016] NSWDC 396
Hearing dates:	24 March 201625 November 2016
Date of orders:	25 November 2016
Decision date:	25 November 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence – Drug supply – Consequential orders following s 11 remand
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Milad Khatib
Representation:	Solicitors: Director of Public Prosecutions – The Crown Hallani & Associates - Offender
File Number(s):	2014/314703

Judgment

1. HIS HONOUR: Remands under s 11 of the Crimes (Sentencing Procedure) Act are an important tool which judges can use in order to assess an appropriate sentence to impose upon an offender. Sometimes things end badly when a s 11 remand is granted. Sometimes offenders commit further offences which not only demonstrates that promised rehabilitation has not been achieved but also, of course, causes further harm to the community. On other occasions and this is one, an offender is able to demonstrate to the Court that he is a very different person from the one who committed the offence for which he must be sentenced. Mr Khatib has achieved a lot since he was arrested by police, he is to be congratulated for that, but it nevertheless remains the case that I must impose upon him a sentence which reflects the objective gravity of his conduct.

2. I briefly made reference to what he did when he first appeared before me on 24 March 2016. He was arrested after he supplied drugs to another male, was found to be in possession of 36 white tablets and when his mobile phone was examined by police it was clear that he had been involved in the supply of drugs to other people. As I described Mr Khatib on 24 March this year he was an enthusiastic supplier of drugs. He was interested in the money that drug supply provided him with. He had debts and needed to pay his rent and so he was prepared to supply drugs to other people for that financial gain. This is an offence of some seriousness.

3. The offender on the last occasion suggested that since his arrest on 26 October 2014, he had changed his life around to a significant extent. There were, as I said at the time, two problems with this, the first is that there was no evidence to back-up the offender’s claim that he had, for example, given up drugs. The second was that although he was then employed he was employed in a job where a conviction for drug supply was likely to see him lose his job. Those two aspects were addressed during the period of remand. Mr Khatib revealed his conviction to his now former employer and lost his job. He has been supervised by the Probation and Parole Service and undergone regular urine analysis which has demonstrated that he has given up drugs. Despite losing his job he has obtained other employment and a reference from his new employer tendered today speaks highly of him. He is living at home. He is studying and he has a considerable future ahead of him. This is his first criminal conviction so he was a man of otherwise good character before committing the offence for which I must sentence him.

4. He pleaded guilty at an early stage and so the sentence I impose upon him would be about 25% less than it would otherwise have been. His plea of guilty is also one of a number of factors which have led to me imposing a sentence of a different form from that I would otherwise have considered.

5. It is fairly clear that the offender was trafficking to a substantial degree, the contents of his telephone were sufficient to demonstrate that. The Court of Criminal Appeal tells me that in those circumstances subject to qualification a sentence of full time custody is required. The qualification is that that principle of sentencing was laid down by the Court of Criminal Appeal well before the option of an Intensive Corrections Order became available. I am satisfied that given the offender’s rehabilitation and given the option of an ICO which is now available, it is appropriate that if the sentence I would impose upon him were two years or less that he be assessed as to a suitability to serve the sentence in that way.

6. Mr Hallani began his submissions by submitting that a suspended sentence would be appropriate. Without wishing to minimise the consequences for an offender of serving a sentence which is suspended I should simply say that in my view there is insufficient punishment for the offender in a suspended sentence such that the sentence would not reflect the objective gravity of his enthusiastic drug supply conduct. In my view, an element of punishment is required, there is an element of punishment in an ICO, curfews, community service and the like, but the good thing about an ICO is that punishment is combined with further supervision and rehabilitation and perhaps most importantly, checking up on Mr Khatib to make sure he does not fall back into his own ways. Having decided that a sentence of two years imprisonment or less will be imposed I, therefore, adjourn the matter for assessment as to the suitability of Mr Khatib to serve that sentence by means of an Intensive Corrections Order.

7. I will list the matter on 3 March and will look at the contents of the ICO assessment report then.

8. Mr Khatib, you probably heard me say, you are to be congratulated for what you have achieved but you are not out of the woods yet, do you know what I mean by that?

9. OFFENDER: Yes.

10. HIS HONOUR: You are going to be assessed by people from the Probation and Parole Service and it is up to you to make sure that you make a good impression upon them because if they say you are not suitable for an ICO then there is a very good chance that ultimately you will go to gaol after all so it is up to you again, Mr Khatib, to keep doing what you have been doing. Thank you, sir.

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Decision last updated: 22 February 2017