R v Korhani

[2023] NSWDC 610

District Court

New South Wales

Medium Neutral Citation:

R v Korhani [2023] NSWDC 610

Hearing dates:

28/8/23-1/9/23, 1/11/23, 9/11/23

Date of orders:

9/11/23

Decision date:

09 November 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a term of imprisonment of 5 years 3 months with a NPP of 3 years 4 months (10/9/22-9/1/26).

I find special circumstances.

Catchwords:

Crime – Sentence – Supply large commercial quantity of prohibited drug - GBL

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Green v The Queen (2011) 244 CLR 462

Category:

Sentence

Parties:

NSW DPP – Crown\
Ferouk Korhani - Offender

Representation:

Mr D Phillips for Crown
Mr W Shukoor and Mr F Awada for Offender

File Number(s):

21/354283

remarks on sentence

1. The offender, Mr Feruok Korhani, stood trial before a jury and myself between 29 August and 1 September 2023. On 1 September the jury found him guilty of the offence of supplying a large commercial quantity of a prohibited drug, the prohibited drug being a quantity of gamma butyrolactone, also known as GBL. The maximum penalty for that offence is life imprisonment and a standard non-parole period of 15 years is specified. I have taken into account the maximum penalty and the standard non-parole period as important guideposts in the sentencing exercise.

FACTS

2. The facts on which the offender is to be sentenced are to be determined by me, but must be consistent with the verdict of the jury. Matters in aggravation must be proved beyond reasonable doubt while mitigating matters need only be established on the balance of probabilities. I find the following facts.

3. In November 2021 police were investigating the activities of Mahmoud Karanouh in relation to the supply of gamma butyrolactone. Karanouh lived in a unit at Bourke Street, Waterloo. In the course of the police investigations they became aware of a Kurshed Alam who worked as a taxi driver, but who was also transporting drugs for Karanouh. As part of its investigation police intercepted certain telephone numbers and also used an undercover officer who was known as UCO 675.

4. On 15 November 2021 the UCO messaged Karanouh saying, “Hey, man, can I grab five drinks for tomorrow?”, and, “Can you do five more for me tomorrow?”, after which Karanouh replied, “Should be sweet.” The words “five drinks” were a coded request for about five litres of GBL.

5. On 16 November 2021 the UCO messaged Karanouh again saying, “We good today, bro?”, to which Karanouh replied by text saying, “Straight out, I’ve been trying to contact my people, but no answer. They know about today and everything fine, but today no answer.” At about 11.16pm that day the offender and Karanouh spoke by telephone and in that conversation Karanouh said he could “move 5” tomorrow, to which the offender replied, “It can be done.” In this conversation the two men were making reference to the offender sourcing five bottles of GBL.

6. On the morning of 17 November 2021 Karanouh messaged the UCO confirming that “he” was being picked up from Bankstown and telling the UCO to come over to Karanouh’s unit. The “he” in this communication was a reference to this offender now before the Court.

7. At about 9.40am and 10am that day Karanouh spoke by telephone to the co-offender Mr Alam, the taxi driver, when Karanouh told Alam he wanted him to pick somebody up from Punchbowl and drive them to Karanouh’s residence in Waterloo. Shortly after this, text messages were exchanged between Karanouh and the current offender to confirm an address from which Alam could collect the offender.

8. At about 10.55am Karanouh and the offender agreed that the taxi driver, Mr Alam, should meet the offender at an address in Reynolds Avenue, Bankstown. Around this same time the UCO and Karanouh exchanged messages confirming that “he”, that is, the offender, was just being picked up from Bankstown and suggesting that the UCO come to Karanouh’s address.

9. At about 11.10am the offender exited premises at Reynolds Avenue, Bankstown and entered the taxi driven by Alam which had been arranged by Karanouh. At about 11.40am that day the taxi driven by Alam with the offender as passenger arrived at Karanouh’s address in Bourke Street, Waterloo where it entered the underground car park. The offender got out of the taxi with a backpack and was greeted by Karanouh. These actions were captured on CCTV recordings.

10. Around this time the UCO contacted Karanouh advising that he had arrived and Karanouh said he was coming down to meet him. Karanouh then left his unit and entered a vehicle being driven by the UCO and gave the UCO five plastic bottles which contained GBL to a quantity of about 4,918 grams of a purity of between 82 and 88 percent. The plastic bottles were inside a green and white Woolworth’s plastic shopping bag which Karanouh removed from his backpack. The UCO gave Karanouh $17,500 cash and Karanouh exited the vehicle.

11. During this exchange the offender remained in Karanouh’s apartment. Karanouh then returned to his unit after which he and the offender exited the foyer of the premises and the offender re-entered the taxi driven by Mr Alam and was driven back to premises at Reynolds Avenue, Bankstown which he entered. Very shortly after, the offender exited those premises carrying a red and white coloured “Nike” brand shoebox, walked back towards the passenger side of the taxi and then walked away no longer holding the shoebox.

12. The offender was arrested on 14 December 2021 at his unit in Reynolds Avenue, Bankstown. During a search of those premises police found clothing consistent with that worn by the offender on 17 November 2021 as well as a red Nike brand shoebox consistent with that seen by surveillance police in the offender’s possession that day.

13. Those are the facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

14. The offence before the Court is obviously a potentially very serious one given the prescribed maximum penalty and the specification of a very high standard non-parole period. However, it is important that I make some assessment of the relative seriousness of the particular example of the offence before the Court by reference to its facts.

15. The quantity and purity of the drug is a very relevant matter although it is just one of a number of factors to be considered. In this case the quantity of GBL agreed to be supplied and actually supplied by the offender was about 4,918 grams. The prescribed large commercial quantity is 4,000 grams and so the quantity was only slightly in excess of that large commercial quantity. It was, however, of high purity at 82 to 88 percent.

16. It is apparent on the evidence that the offender was, as submitted by the Crown, acting as an intermediate supplier to Karanouh who then passed the drug onto the UCO. It is apparent also that the offender had ready access to this sort of quantity of GBL given that he was asked by Karanouh only one day before the supply as to whether he could arrange the supply of the requested amount.

17. In making this observation I do not suggest that the offender is to be sentenced for any other supplies of drugs. Rather, the facts to which I have referred simply indicates that his conduct on 17 November 2021 cannot be looked at as an isolated aberration. The evidence led in the trial indicated that Karanouh had access to other potential sources of drugs sought by the UCO and so it cannot be said that this offender was ordinarily an indispensable member of Karanouh’s apparent drug supply “business”. And of course the offender is not to be sentenced for a role wider than that indicated by his supply to Karanouh on 17 November 2021.

18. In relation to that particular supply, however, being the immediate source of the drugs that Karanouh passed on to the UCO, he clearly performed a fundamentally important and crucial role. As I have earlier said, he was essentially acting in the role of an intermediate supplier to Karanouh. His role was therefore greater than that of a mere or bare courier, although I do not regard the offender as being a principal. While I have no doubt that he carried out this supply for monetary benefit, I am unable to determine how much that benefit was to be or whether or not he actually received any monetary benefit.

19. Having regard to all of the objective facts and the matters to which I have referred, I assess the objective seriousness as being slightly below the mid-range.

20. While not relevant to the objective seriousness of the offence, the overall offending is, as was accepted on behalf of the offender, aggravated by the fact that he was on bail up until the morning of 17 November 2021 when he was dealt with in the Local Court for drug possession offences. He was therefore on conditional liberty at the time that he agreed to supply these drugs and presumably at the time that he was making the arrangements to source them.

SUBJECTIVE MATTERS

21. Turning then to subjective matters relating to the offender. He is now aged 25 and was 23 at the time of the offence. His subjective case has been placed before the Court by means of a volume of written material.

22. The report of psychologist Mr Awit makes diagnoses of ADHD, anxiety disorder, major depressive disorder, substance use disorder and gambling disorder. The psychologist notes in his report, however, that these diagnoses are not based on psychometric testing, but were reached by:

“...revealing the history gathered from the client, the symptoms reported, a review of the offending behaviour, an analysis of the DSM-5 criteria for the diagnosis of a condition, followed with the analysis of the consistency of the results between this multi-modal assessment by a trained psychological professional to gain an accurate picture of the client.”

23. That collection of words appears to suggest that the comments made in the psychological report are very much dependent upon the history given by the offender.

24. The history reported to the psychologist included that the offender had a “rough upbringing” in that he was abused “as long as he could remember”. He said the offender also reported a history of physical injuries suffered in a motorcycle accident when he was 16 which required several surgeries and another incident where he was hit by a car at age 18.

25. He reported a history of drug use, mainly cannabis, which was used on a daily basis partly for pain relief. He told the psychologist that he was also sexually abused on six occasions by a teacher when he was in years 4 to 5. The report of the psychologist notes that “he has filed a legal claim for this”, however, no documentation to confirm this was tendered in the sentencing hearing.

26. He also made reference in his history to the psychologist of a “heart condition” with which he said he was diagnosed at age 16 and that he was on some sort of medication before entering custody. In the offender’s unsworn statement, which was admitted in the sentence proceedings, he says that he has been experiencing severe chest pains since being in custody and has had little medical attention. These asserted chest pains are given some support by the statement from his wife and also from a discharge summary of May 2016 which refers to his admission to Bankstown/Lidcombe Hospital with stabbing chest pains.

27. The Crown submitted that I would be circumspect in accepting some of the history given to the psychologist by the offender especially in the absence of independent evidence to confirm the claimed heart condition and the alleged sexual abuse as a child. I have exercised a degree of caution with respect to this evidence. While the history was not supported by evidence on oath, I accept that the offender, to use his own words, “didn’t have the best upbringing”. I also accept on balance that the offender suffered some sort of sexual abuse as a child although the weight that I give to this evidence about his upbringing and alleged sexual abuse is reduced slightly by the lack of detail as to its nature and impact.

28. I accept that the offender suffered the physical injuries he described as being associated with two motor accidents and that these still cause him physical problems. I furthermore accept that the offender suffers some sort of condition, the details of which are somewhat unclear, which causes him frequent chest pain and associated anxiety. These physical issues are given some support by the medical material that was tendered on sentence.

29. The offender has a relatively limited criminal history which includes some repeated offences of driving unlicensed or disqualified, but also assault and more relevantly several offences of drug possession. His criminal history does not aggravate his offending, but it disentitles him to the leniency that might have been available if he had no such history.

30. The Sentencing Assessment Report notes that before his arrest on this offence he was living with his mother and three siblings in Punchbowl and was in receipt of a carer’s allowance by reason that he was the main carer for his mother. He has no sustained history of employment. The author of the sentencing assessment report says that the offender disclosed using cannabis on a daily basis since about age 17 and made admissions to selling drugs to support his own drug habit.

31. Justice Health records indicate that the offender has previously been diagnosed with anxiety disorder when a teenager, however, he is apparently not currently on medication for this. The Sentencing Assessment Report notes that the offender gave no indication that his offending was influenced by his mental health issues.

32. As I have said, the weight I attach to the evidence about the offender’s upbringing and sexual abuse is diminished slightly given the absence of detail as to its nature and current effects. Nonetheless I accept that this background likely made some contribution to the offender making poor decisions as demonstrated by this offence and his criminal history. I accept that this reduces his moral culpability to some limited degree. I balance this, however, against the need to protect the community from the risk of similar poor decisions in the future.

33. I also accept that the offender’s various mental and other health problems have made and will continue to make his time in custody more onerous. I note, of course, the principles discussed in Commonwealth DPP v De La Rosa [2010] NSWCCA 194 at para 177 relating to the significance of mental health problems. I remain of the view, however, that considerations of general and personal deterrence and denunciation are important considerations in this case.

REMORSE AND REHABILITATION

34. Turning to questions of remorse and prospects of rehabilitation. There is no remorse in this case as the offender continues to deny his offending notwithstanding the jury’s verdict and the powerful Crown case against him. The Sentencing Assessment Report notes that the offender is assessed as a medium risk of re-offending. There is also the consequences of his difficult childhood upbringing, the history of drug and gambling problems, and the fact that he has not yet had effective treatment for any of these issues. He also has no insight into his offending. While it is positive that the offender retains the support of his wife and mother and that he has some part time employment available to him on his release, I consider that he remains a risk of re-offending. In my view his prospects can at best be described as guarded.

PARITY

35. An important consideration in this sentencing exercise is the question of parity with other offenders who were also involved in the supply of drugs by the same group of persons with whom this offender was associated.

36. Mahmoud Karanouh was, on 28 April 2023, after a 25% discount for an early plea of guilty, sentenced by Fitzsimmons SC DCJ to full time custody of six years, nine months with a non-parole period of four years, seven months. That was after a starting point of nine years, before the 25% discount was taken into account.

37. He was being sentenced for an offence of supply large commercial quantity of GBL, being just over 20 kilograms, which was more than five times the large commercial quantity. This offending also involved multiple transactions of supply committed over a period of about two and a half months. His Honour found the offending to be above the mid-range. Also in sentencing for that offence his Honour took into account a further five offences on a Form 1 document.

38. Karanouh also had a lengthy criminal history which was significantly worse than that of the current offender. His Honour accepted that Karanouh suffered from depression and that this slightly reduced his moral culpability, and also found that there was genuine remorse and reasonable prospects of rehabilitation.

39. Kurshed Alam was also sentenced by Fitzsimmons SC DCJ. Mr Alam pleaded guilty to an offence of knowingly take part in the supply of a commercial quantity of GBL and also to dealing with suspected proceeds of crime. His Honour found that the financial benefit to Mr Alam was modest and concluded that the drug offence was just above the low range and that the proceeds of crime offence was within the low range. He also found genuine remorse and other significant mitigating circumstances including good prospects of rehabilitation. Mr Alam was also a person who, at age 62, had no prior convictions and his Honour found that his role was considerably less than that of any of the co-offenders with whom he was dealing.

40. After receiving a 25% discount for his early plea of guilty Mr Alam was sentenced to an aggregate term of two years, four months which seems to indicate a starting point of just over three years before application of the plea of guilty discount. His Honour ordered, however, that the sentence be served by Intensive Correction Order and, after deducting five months due to pre-sentence custody, an ICO of one year, 11 months’ duration was imposed.

41. Strictly speaking, the only “co-offenders” to Mr Korhani’s offending are Karanouh and Mr Alam. However, having regard to the remarks on sentence relating to Bilal Sowaid and Jahralee George, I am of the view that I should have some regard to the outcome in each of those matters also given that they involve broadly similar offending to Mr Korhani and in the context of supplies being made to Mr Karanouh.

42. Sowaid pleaded guilty and received a 25% discount in relation to an offence of supply large commercial quantity, namely, 4.9 kilograms of GBL. Based on a starting point of five years, six months his Honour imposed, after the 25% discount, a head sentence of four years, one month with a non-parole period of two years, two months after finding that the offence was in the low range of objective seriousness and that Sowaid was more than a courier, but at the lower end of the hierarchy and a facilitator of up-line supply. He was, however, on a Conditional Release Order at the time.

43. His Honour found that Sowaid’s moral culpability was reduced by reason of his traumatic upbringing, childhood sexual abuse and mental health issues. He also found remorse and reasonable prospects of rehabilitation and also took into account hardship associated with part of Mr Sowaid’s period of remand being during the pandemic and its consequences.

44. Ms George also received a 25% discount for a plea of guilty, however, her offence was one of supply commercial quantity of GBL which was about two kilograms with a similar supply on a Form 1. Her offence was regarded as mid-range and she was described as more than a low-level street dealer. His Honour found that her moral culpability was reduced by reason of her upbringing and having been sexually abused and the resultant mental health conditions that she suffered.

45. She had a limited criminal history and his Honour also found remorse, good prospects of rehabilitation and made allowance for the impact of the pandemic on her custody. She received a head sentence of three years, four months with a non-parole period of one year, ten months after the 25% discount was taken into account from a starting point of four years, six months.

35. In my view the current offender Mr Korhani’s offending is considerably less serious than Mr Karanouh, but significantly more serious than Mr Alam’s. Although Mr Sowaid is not, strictly speaking, a co-offender to this offender, the circumstances of his case do share some similarities with those relating to this offender. In applying parity principles it is important to compare “like with like” and the application of the principle is governed by substance rather than form. Green v The Queen (2011) 244 CLR 462 at para 30.

36. I have had regard to these principles and while none of the sentences imposed on others by Fitzsimmons SC DCJ binds me in any way, I have endeavoured to impose a sentence in this case which is proportionate and does not create a justifiable sense of grievance when compared with other relevant decisions.

THE PANDEMIC   

48. In determining the sentence I have also taken into account the fact that the offender has already spent a considerable period of time in custody on remand and that during that period, particularly from late 2021 and into 2022, his custodial circumstances would have been adversely affected by the consequences of the COVID pandemic which at that time was impacting persons in custody in quite significant ways in terms of interference with access to programs and other facilities including contact with the outside world and also frequent lockdowns. As I say, I have taken those consequences into account.

DETERMINATION

49. I have had regard to the purposes of sentencing set out in s 3A the Crimes (Sentencing Procedure) Act 1999. I am satisfied that, for the purposes of s 5 of that Act, no penalty other than full time imprisonment is appropriate. I make a finding of special circumstances in this case for adjusting the ratio between head sentence and non-parole period based upon this being the offender’s first period of full time custody, his relative youth and the need for a lengthy period of supervision in the community upon release, given his drug problems and other history.

50. I impose a head sentence of five years, three months. I impose a non-parole period of three years, four months. Those will date from 10 September 2022 so as to take into account pre-sentence custody of 425 days. The head sentence therefore will expire on 9 December 2027 and the non-parole period of three years, four months will expire on 9 January 2026.

51. Mr Crown, Mr Awada, anything to raise?

52. PHILLIPS: Nothing from the Crown, your Honour.

53. AWADA: No, your Honour.

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Decision last updated: 19 March 2024