R v Khazma

[2018] NSWDC 58

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Khazma [2018] NSWDC 58
Hearing dates:	8 March 2018
Date of orders:	08 March 2018
Decision date:	08 March 2018
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 – Supply prohibited drugs – Methylamphetmine – Knowingly take part in the supply of prohibited drugs – Deal with property suspected to be the proceeds of crime – Not a user dealer – Offences committed solely for financial gain – Bail conditions – Demonstrated rehabilitation
Category:	Sentence
Parties:	The Crown Adam Khazma
Representation:	Counsel: Mr J Brock – The offender   Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender
File Number(s):	2016/261522; 2016/75582

Judgment

1. HIS HONOUR: Many people come before the courts to be sentenced to be sentenced for drug supply. Almost all of them are, or at least were, at the time of their offending, drug users, who supplied drugs to fund their own drug habit. It has long been recognised that it is a much more serious offence for a person who is not themselves addicted to drugs to involve themselves in drug supply but that is what the offender Adam Khazma did.

2. When a drug user sells drugs, then achieving a result where they no longer sell drugs is usually done by bringing about a circumstance where they no longer use drugs. But where here the offender’s motivation to sell drugs is for financial gain such a motivation is perhaps less easily dealt with. It is certainly less easy to demonstrate that it has been overcome.

3. At the age of only about 18 and a half the offender lost his job. He appears to have reacted to that in perhaps an unusual way, taking it very much to heart. He became depressed, and so opines a psychologist whose report was tendered today, he felt worthless, giving up hope and withdrawing from positive supports, instead choosing to associate with antisocial peer influences. These antisocial peer influences were drug suppliers, Mr Khazma was impressed by them because they obviously had a lot of money, and so that is how he got involved in the offences for which I must sentence him.

4. Police had been monitoring the activities of the offender and his associates through the usual methods. They were are able to identify a mobile phone used by the offender as being a “runner phone”, which means that it was being used by people as a point of contact for arranging orders and supply of prohibited drugs.

5. On 9 March 2016 police stopped a grey Mazda hatchback. It was driven by a man by the name of Omar Barbar. Police asked questions of Mr Barbar in order to ascertain who owned the car. Mr Barbar nominated the offender who was seated in the passenger seat. It was in fact the offender’s car. When police searched it they discovered, most importantly, that a secret compartment had been installed in the centre console. In that secret compartment police found three mobile phones, 23 clear resealable bags containing methylamphetamine, a small resealable plastic bag containing another quantity of methylamphetamine and $1,850 in Australia currency.

6. The offender was taken to the police station. He made admissions to knowing that the bags contained methylamphetamine and that he intended to supply them.

7. Further evidence as to the offender’s drug dealing activities was discovered when the mobile phones were examined. On one of them a number of messages were discovered showing that on four occasions, the 15th, 16th, 21st and 26 January the offender had some contact with a customer and arrangements were made for the customer to be supplied with drugs.

8. As a result, the offender now stands to be sentenced for two offences. The first is supplying a prohibited drug for which the maximum penalty is 15 years imprisonment. That relates to the quantity of drugs the offender had in his possession when his car was searched by police on 9 March 2016. He is also to be sentenced for an offence of knowingly taking part in the supply of a prohibited drug, and that relates to the four messages found on the mobile phone. The maximum penalty for that offence is also 15 years imprisonment.

9. When I sentence him for the first matter he asks that I take into account a further offence of dealing with property suspected to be the proceeds of crime, and that relates to the $1,850 found by police.

10. Consistent with his early admissions the offender pleaded guilty at the earliest opportunity and thus so the sentence I will impose upon him will be about 25% less than it would otherwise have been.

11. The offender spent one day in custody before being granted bail. The conditions of bail included that he report every Tuesday and Thursday, something which the offender has done for about two years now, and there was also a curfew. Initially he had to be home from 10pm but after he breached that on one occasion a more stricter curfew was imposed, he has now got to be home from 8pm. He has not breached that curfew since that variation was made.

12. The offender is not one of those people who turns up for sentence having been raised by a family and in a community where offending behaviour is commonplace. His parents separated just before he was born and his mother remarried. The offender did not get on well with his stepfather, nor it seems did his mother, they separated after about ten years of marriage. His mother and stepfather had two children. His brother is 17 years of age and is autistic and has been diagnosed with an intellectual disability. Despite those challenges he is in his final year in school, the offender assisting him in his studies. His sister is much younger being either eight or nine years of age. He is supported in court today by his mother. He really has no excuse for what he did. He really has no excuse for deciding to become a drug dealer.

13. As I mentioned earlier, after he lost his job he became depressed. A psychologist suggests there is some link between his offending and his depression. I will read quite a lengthy paragraph from the psychological report:

“Mr Khazma’s pervasive interpersonal style could explain why at approximately 18 years of age he experienced such notable emotional distress after his employment was terminated. Mr Khazma stated that at that time he did not cope with losing his job and reported feeling depressed and worthless. He stated he gave up hope and withdrew from his positive supports, instead choosing to associate with antisocial peer influences. The symptoms and behavioural responses at that time are consistent with a diagnosis of adjustment disorder where depressed mood, anxiety and alterations to his usual behaviour and conduct were prominent features.”

14. Contrary to the Crown submission I do accept that the offender’s moral culpability is affected by his mental state at the time he began to associate with antisocial peers and became a drug dealer, but the mitigation will not have a terribly significant impact on sentence. It is one thing to become depressed and to begin associating with antisocial peers, it is another thing to say to oneself “here is an easy way of making money, I will become a drug dealer”, but that is what the offender did.

15. I mentioned before that where drug users are supplying drugs, removing the drug use often removes the motivation to supply them. In this case Mr Khazma has been treated by a psychologist and this has been beneficial, there is thus less chance, in my view, that the offender will commit further offences in the future than might otherwise have been the case.

16. The offender has no previous criminal conviction and appears to have been, apart from a brief period when he was a drug supplier, a hard worker. Since his release on bail after spending one day in custody, the offender has had a couple of jobs, firstly as a cabinetmaker which he left when he realised it was not his ideal career choice. He now works at an exhaust repairers where he is working well. He enjoys his job and a reference attesting to his work was tendered today.

17. When account is taken of his work hours and his curfew, I accept Mr Brock’s submission that that does not leave a lot of time for himself. This is one of those comparatively rare occasions where I will take into account the restrictions on the offender’s liberty since his arrest in determining the sentence to impose upon him.

18. I should also mention that, through no fault of his own, this is the second occasion that the offender has appeared for sentence on these charges .  The matter was listed in this court last year but was not reached, that being, if I can divert myself for a moment, a function of the lack of adequate resources which the Court has been provided in recent times as a result of which people like Mr Khazma suffer.

19. Maybe people are not terribly concerned about Mr Khazma but if I can divert myself even further, victims of crimes suffer perhaps even more.

20. It is certainly a significant event for a young person to attend Court where a full‑time custodial sentence is at least a possibility if not a likelihood.

21. Mr Khazma’s offending was of course serious and it went over some time, about two months in fact, so this was not some isolated breach of the criminal law immediately regretted. Mr Khazma was deeply involved, even to the extent of having a secret compartment constructed in his car to facilitate his drug dealing activities.

22. There are two particular features which I want to mention at this stage, one of them being of significant importance, that is, the offender’s youth. He was only 18 and a half or thereabouts at the time of his offending. Although, of course, having turned 18 the law treats him as an adult for the purposes of various sentencing options and principles, it does not ignore the fact that Mr Khazma was an immature young man. A person does not reach full maturity on the day of their 18th birthday. The law tells me that I should give great weight to Mr Khazma’s relative youth.

23. The other factor I want to refer to at this stage concerns Mr Khazma’s good prospects of rehabilitation. He is working. He is not surrounded by criminal types and in the two years since he has offended there has been no repetition of any illegal behaviour.

24. I can frankly say that if the offender were older at the time of his offending I would have imposed a different form of sentence from that which I am now contemplating.

25. Whilst I am satisfied that a period of imprisonment is required I consider it likely that a sentence of two years or less will be imposed.

26. I consider it at least a possibility that I would order that Mr Khazma serve that sentence of imprisonment by means of an intensive corrections order.

27. I therefore will adjourn this matter for assessment as to his suitability to serve a sentence by means of an intensive corrections order. I make no promises as to what the ultimate outcome will be. A lot will depend on the contents of the ICO assessment report.

28. In the meantime, Mr Khazma’s bail is continued unconditionally.

29. I consider it important that an assessment be made of Mr Khazma when he is not subject to the restrictions of a curfew and reporting to police.

30. The drugs are to be destroyed. The phones and the cash to which I have referred are to be forfeited.

31. ADJOURNED TO FRIDAY 27 APRIL 2018

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Amendments

27 March 2018 - Grammatical corrections in para [18] and [19]

Decision last updated: 27 March 2018