R v Khoder

[2019] ACTSC 204

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Khoder

Citation:

[2019] ACTSC 204

Hearing Date:

6 August 2019

DecisionDate:

6 August 2019

Before:

Elkaim J

Decision:

See [24]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Traffic in controlled drug other than cannabis – guilty plea – prospects for rehabilitation

Legislation Cited:

Criminal Code 2002 (ACT) s 603(7)

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33

Magistrates Court Act 1930 (ACT) s 90A

Cases Cited:

R v Brown [2019] ACTSC 59

R v Cekic [2016] SASCFC 26
R v Clark [2019] ACTSC 147
R v Huat Phay [2015] ACTSC 238
R v Pishdari & Anor [2018] SASCFC 94

R v Tran [2014] ACTSC 368

Parties:

The Queen (Crown)

Khaled Khoder (Offender)

Representation:

Counsel

S Jerome (Crown)

B Shelton (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson Solicitors (Offender)

File Number:

SCC 146 of 2019

ELKAIM J:

1. On 20 June 2019, the offender entered a plea of guilty in the Magistrates Court to three charges of trafficking in a controlled drug other than cannabis namely methylamphetamine, methylenedioxymethamphetamine (MDMA) and cocaine.

1. These matters were committed to the Supreme Court for sentence on the same day pursuant to s 90A of the Magistrates Court Act 1930 (ACT). Each charge is an offence contrary to s 603(7) of the Criminal Code 2002 (ACT) carrying a maximum penalty of 10 years’ imprisonment, a fine of $160,000, or both.

1. On 1 August 2019 an indictment was filed in this court, dated 31 July 2019. The offender was arraigned on this indictment this morning and confirmed his plea of guilty to all three counts. The counts in the indictment mirror the matters to which he pleaded guilty in the Magistrates Court, the only difference is an amendment to the dates the offences are said to have been committed.

1. The offender was born in Sydney in 1991. His parents separated when he was 16 years of age. He has a step sibling but has no contact with this person. After a period of strained relations he now has an amicable relationship with his father. He is close to his mother who is his main support.

1. The offender left school during Year 11. This seems to be when he started to use illicit drugs. He did however start a bricklaying apprenticeship, but did not complete it. He has since become a qualified plumber but does not have a stable work history. He apparently had a good job leading up to him being taken into custody in May 2019. He hopes to return to the same employment.

1. Unfortunately the offender has had some associations with an outlaw motorcycle club and he has a drug debt of over $25,000. It is not clear if he has left or remains a club member. It will be vital for him to disassociate himself from gangs and drugs.

1. The offender was once a promising rugby league player but his prospects were also thwarted by his involvement with antisocial associates. The reference from his stepfather, Mr Farrell, provides some insight into the offender’s turn to criminal activity. He says that:

Somehow and somewhere over the last few years Khaled’s paths changed from being a qualified plumber looking to start his own business, get married (he was engaged) and make his mum proud with grandkids, to a person getting trapped in a cycle of addiction, losing interest in living the life you worked so hard for and ending up here today.

1. Mr Farrell says that he and his wife will continue to support the offender. Mrs Farrell, the offender’s mother, has also provided a reference. She talks about his desires to reconnect with his family and to embrace rehabilitation in order to achieve this. The reference from the offender’s uncle says that the offences are out of character. The same theme is repeated in his aunt’s reference. She talks about the support he gave to her when she was getting divorced. She pleads for him to “get a second chance to prove that this occurrence was unusual and out of character”.

1. The offender agrees with the statement of facts and says that his actions were generated by his need to have money quickly to finance his own drug addiction.

1. The offender has a criminal history. In the ACT he has been convicted of a number of driving offences and some drug offences. He has a minor matter against him in New South Wales.

1. The current offences were committed while the offender was subject to Good Behaviour Orders. He was also on bail. The offences relates to an undercover operation in which sales of illicit drugs were negotiated with the offender for a range of prices extending from $3000 up to $16,500. There were six sales in total. The respective counts are distinguished by the type of drug involved.

1. There can be no doubt that in offences of this type, general deterrence is a very important sentencing consideration. The Crown concedes that it does not know where this offender sits in the hierarchy of this drug dealing operation. Suffice to say he was high enough up to be involved in the negotiation of prices.

1. The amounts of the drug are relevant. A trafficable quantity of methylamphetamine is 6 g. The offender had 218.765 g. The street value could have been as high as about $200,000. The rolled up nature of the first count is also an important consideration.

1. The trafficable quantity of MDMA is 10 g. The offender had 13.992 g.

1. The trafficable quantity of cocaine is 6 g. The offender had 28 g of cocaine. The street value could have been over $16,000.

1. The defendant pleaded guilty in the Magistrates Court and he is entitled to a discount for his pleas. Although the Crown case is very strong I still think the discount should be fairly substantial, in the order of 20%.

1. The Crown submitted that the offender’s prospects of rehabilitation are poor. I disagree. I think with family support and a genuine wish to rid himself of his involvement with drugs, that he does have the capacity to live a decent life. His letter to me suggests this is a possibility.

1. Turning to objective assessment, I think the offences concerning methylamphetamine are of about medium objective seriousness. The other two counts are below this benchmark.

1. I have taken into account ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) which set out the objects and principles of sentencing. Section 10 is not relevant because there is no alternative but full time imprisonment. The factors listed in s 33 are also important.

1. The offender has been in custody for 77 days. Accordingly his imprisonment will be backdated to 22 May 2019.

1. I need to have regard to principles of totality in order to avoid an overly crushing sentence. At the same time, I must recognise that each offence needs to be reflected in its own punishment. Therefore, my sentences will involve a degree of both concurrency and accumulation.

1. The parties referred me to a number of cases which I have taken into account. They include, from the Crown, R v Pishdari & Anor [2018] SASCFC 94 and R v Cekic [2016] SASCFC 26. The defence referred me to R v Brown [2019] ACTSC 59, R v Clark [2019] ACTSC 147, R v Huat Phay [2015] ACTSC 238 and R v Tran [2014] ACTSC 368.

1. I regard the breaches of Good Behaviour Orders as aggravating factors to be considered in the sentencing for the offences in the indictment. I will take no further action on the breaches themselves.

1. I make the following orders:

(a)In relation to Count 1, traffic in a controlled drug other than cannabis namely, methylamphetamine (CC2019/5860) the offender is sentenced to 19 months imprisonment (reduced from 24 months) to commence on 22 May 2019 and end on 21 December 2020.

(b)In relation to Count 2, traffic in a controlled drug other than cannabis namely, methylenedioxymethamphetamine (MDMA) (CC2019/5863) the offender is sentenced to 10 months imprisonment (reduced from 12 months) to commence on 21 July 2020 and end on 20 May 2021. 

(c)In relation to Count 3, traffic in a controlled drug other than cannabis namely, cocaine (CC2019/5865) the offender is sentenced to 10 months imprisonment (reduced from 12 months) to commence on 20 January 2021 and end on 19 November 2021.

(d)The total term of imprisonment is 2 years and 5 months and 29 days.

(e)I set a non-parole period of 16 months commencing on 22 May 2019 and ending on 21 September 2020.

(f)No further action is taken on the breaches of Good Behaviour Orders.

I certify that the preceding twenty four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 6 August 2019