R v Masoud ZIYA

[2008] NSWDC 99

CITATION:	R v Masoud ZIYA [2008] NSWDC 99
HEARING DATE(S):	1 May 2008
EX TEMPORE JUDGMENT DATE:	1 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [15], [16] & [17]
CATCHWORDS:	CRIMINAL LAW - Sentence - Knowingly take part in the supply of a prohibited drug
PARTIES:	The Crown Masoud Ziya
FILE NUMBER(S):	DC 2007/11/0822
SOLICITORS:	NSW DPP Marsdens Law Group

SENTENCE

1 HIS HONOUR: The offender appears for sentence today after having pleaded guilty to two serious drug offences. The first was an offence of knowingly taking part in the a of 141 grams of cocaine which took place between 15 November and 22 November, 2006. The second offence was one of supplying prohibited drug, namely 3, 4-methylenedioxymethamphetamine, a drug commonly known as ecstasy. He supplied 122.4 grams of that drug on 22 March, 2007.

2 The offender pleaded guilty at an early stage to both of those matters and so is entitled to a twenty-five per cent discount for the utilitarian value of that plea. Although he was indicted before me today that seems to have come about because of an error in the committal charges and it may well be that that error was that he was in fact committed for sentence on the aggravated form of supplying the ecstasy tablets. The court papers reveal that he got a court attendance notice for supplying a commercial quantity of that drug. In fact 122.4 grams of MDMA is just short of the commercial quantity.

3 The two separate offences involve the offender acting as a middle man in drug supply activities. On the first occasion he was the middle man between a man by the name of Shamoon who was a drug supplier and a man by the name of Daher who was anxious to obtain drugs.

4 The police facts set out in some detail the activities of Mr Shamoon and more importantly of course the activities of the offender as he set about arranging the supply of drugs by Shamoon and the payment of money by Daher . It is clear that the offender was an enthusiastic participant in the arrangements in which he was involved. It is clear also that Mr Shamoon was a fairly high level drug dealer and that the particular transaction that the offender was involved in represented a significant breach of the law. I presume from the quantity involved that it was intended to supply Mr Daher with 141 grams of cocaine, so that he in turn could on supply that drug. This is not a case where the offender was simply supplying low level street users with drugs but he was an important middle man in the drug supply hierarchy.

5 On 22 March, 2007 the offender committed his second offence when he supplied more than 600 MDMA tablets to a man by the name of Berger. Again, there were a number of arrangements made leading up to that supply, involving telephone calls between the offender and Mr Berger. Of course the offender had to obtain the drugs himself. He initially sought 1000 tablets but ultimately arrangements were made to supply Berger with 600. In fact what was ultimately supplied was slightly more than 600 tablets, indeed 658.

6 When the offender was arrested on 21 April, 2007 a number of telephones were seized from his residence as well as two sets of scales. He initially denied matters to police, but it appears that after being played numerous telephone calls the offender saw the strength of the case against him and pleaded guilty, as I have said, at the earliest opportunity.

7 This is not the first occasion where the offender has supplied drugs either. He was dealt with in 2000 for supplying a prohibited drug and received a s 9 bond. It is apparent that he did not comply with conditions of that bond and so he was called up and dealt with in the Local Court for that breach ultimately being fined $750.00.

8 It is clear that the offender is a significant drug user. It is submitted on his behalf that what motivated him to get involved in these two very serious drug supplies was the prospect of getting drugs for his own use. It is clear also that the offender was substantially involved in drug supply operations and a lengthy full-time custodial sentence is thus required.

9 The offender was born in Iraq, he had an unremarkable upbringing in that country until at the age of eighteen he was conscripted into the army. He was a Catholic and thus suffered discrimination from the mainly Muslim armed forces. As part of his service in the army he was captured and as a result of the experiences he then suffered, it is thought that he may have suffered from post-traumatic stress disorder. He escaped to Turkey and came to Australia in 1991. He has family members throughout the world, being the fourth of twelve or sixteen siblings, but no other members of his family live in Australia. He has worked in Australia in various positions according to a psychological report tendered on his behalf. He formed a relationship with a woman and hopes to marry her in the future. What is most important of course, however, is that he developed a significant drug use which led ultimately to him committing these offences.

10 The Probation and Parole Service prepared a report at the request of the court. There was much in it which was not to the offender’s credit. Accordingly, the author of the report, Miss Perry, was called by the Crown at the request of Mr Archibald who appeared for Mr Ziya. It was put to Miss Perry that she had misunderstood a number of things which the offender had said to her. In response Miss Perry referred on occasions to notes that she had made, either at the time, of or soon after, the interview. Given the nature of the statements which were challenged by Mr Archibald in cross-examination it is difficult to see how Miss Perry could have misunderstood what the offender was saying. When the offender gave evidence he denied some things which had not even been put to Miss Perry. I have no hesitation in preferring, beyond reasonable doubt if necessary, the evidence of Miss Perry. She was clearly acting as an officer of the Probation and Parole Service and was thus focussed on obtaining from the offender, information as set out in her report. She was not a casual participant in a conversation, but was actually interviewing the offender knowing that her conclusions would be put before the court. Her report is supported by the notes to which I have earlier made reference. All the cross-examination of Miss Perry has done was to actually put the offender in an even worse light, as she expanded on some brief comments she made in the report by reference to the notes she made.

11 It is clear, as a result of that finding, that there needs to be a substantial component of personal deterrence in the present sentences. I am satisfied that the offender does not truly appreciate the wrongfulness of his conduct. I am satisfied that he said things to Miss Perry along the lines of: well if he did not supply drugs, someone else would and that it was the fault of Australia for allowing him to supply drugs in the first place. The attitude displayed by the offender to Miss Perry is very worrying indeed.

12 I am not satisfied that the offender is remorseful at all. There is no acknowledgement from him anywhere at the harm that his conduct has caused, or that the harm that drug supply offences can result in. Nor am I able to find that he has prospects of rehabilitation whether good or otherwise. I cannot find it is unlikely that he will offend in the future.

13 The Crown and Mr Archibald together say there is contrition in the plea of guilty, but it must be remembered that this was a very strong Crown case against the appellant involving intercepted telephone calls and surveillance revealing with almost complete precision the nature of the offender’s wrongdoing.

14 These two offences were completely separate, both in time, but also in circumstances. They involve different drugs, different parties and so it is quite inappropriate that there be anything other than accumulation of sentence. This will not be total accumulation, to give affect to the principle of totality. The offender was arrested on 21 April, 2007 and it is appropriate that the effective sentence commence on that day.

15 For the first count on the indictment the offender is sentenced to imprisonment. I set a non-parole period of one and half years to date from 21 April, 2007 and a head sentence of two and half years.

16 On count two on the indictment the offender is sentenced to imprisonment. I set a non-parole period of two years to date from 21 April, 2008 and a head sentence of three years.

17 The overall sentence is thus one of four years with a non-parole of three years and it will be clear I have made no finding of special circumstances. There are matters capable of amounting to special circumstances, but the effective non-parole which I have just announced is the shortest which I consider properly reflects the circumstances of this case.

**********