R v Mezher

[2018] NSWDC 212

District Court

New South Wales

Medium Neutral Citation:	R v Mezher [2018] NSWDC 212
Hearing dates:	16 February and 24 April
Date of orders:	11 May 2018
Decision date:	11 May 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Counts 1, 2 and 3: I sentence you to imprisonment for a non-parole period of eight years commencing on 26 January 2017 and expiring on 26 January 2025. I impose a further period of imprisonment of four years to commence upon the expiration of the non-parole period and expiring on 26 January 2029. The total sentence is therefore 12 years comprising the non-parole period and the balance of the sentence.  Count 4: I sentence you to a fixed term of imprisonment for one year to commence on 27 January 2016 and expiring on 26 January 2017.
Catchwords:	CRIME – SENTENCE – Drug supply – Large commercial quantity and commercial quantity – Attempt to pervert course of justice
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Romano [2004] NSWCCA 380
Category:	Sentence
Parties:	Regina (Crown) Tony Mezher (Offender)
Representation:	Counsel: Mr G Newton (Crown) Mr G James QC with Mr E James (Offender)   Solicitors: Solicitors for the DPP (Crown) McGirr Lawyers (Offender)
File Number(s):	2014/14018
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Tony Mezher stands for sentence as a consequence of having pleaded guilty to four charges contained in an indictment presented on 6 July 2016. The offender also asks me to take into account on a Form 1 referable to count 1 in the indictment two further offences.

2. It is convenient to note how the offender comes before this Court. He was initially arrested by the police on 8 January 2014 and charged with certain offences. He appeared before the Waverley Local Court on 9 January 2014, the following day, when he applied for and was granted bail. The circumstances of his being granted bail give rise to one of the counts in the indictment. He was arrested again on 15 January 2014 and remained in custody until being granted bail by the Local Court on 26 June 2014. On 15 July 2015 he was committed for trial in this Court by the Downing Centre Local Court. His trial was listed for hearing on 4 July 2016. It is clear that there were then some plea negotiations and on 6 July 2016 the Crown presented the indictment to the counts of which the accused has pleaded that he is guilty. The offender surrendered himself into custody, having entered his pleas of guilty. He has been in custody ever since then.

3. His sentencing hearing commenced before me here at Darlinghurst on 16 February 2018 and was stood over part heard to the Downing Centre District Court on 24 April 2018 and the offender now appears before me today here at Darlinghurst to be sentenced.

Charges

4. The first charge to which the offender has pleaded guilty is that between 30 August 2013 and 27 September 2013 at Maroubra he did supply a prohibited drug 3,4-methylenedioxyamphetamine in an amount not less than the large commercial quantity for that drug. It is important to note that the drug was 3,4-methylenedioxyamphetamine known as MDA rather than 3,4 methylenedioxymethylamphetamine known as MDMA or ecstasy. However the properties of MDA are almost identical with those of MDMA and MDA is often supplied as a substitute for MDMA. The offence is one contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. It carries a maximum penalty of life imprisonment and carries a standard non-parole period of 15 years.

5. The two matters the offender asks me to take into account on the Form 1 in connection with that offence are an offence of supplying a commercial quantity of a prohibited drug namely 396.89 grams of ecstasy. That supply was between December 2012 and January 2013. Dealt with on its own, that crime carries a maximum penalty of 20 years imprisonment and there is a standard non-parole period of 10 years. The second offence on the Form 1 is that between 31 December 2012 and 27 September 2013 the offender knowingly participated in a criminal group. The maximum penalty for that offence is five years imprisonment.

6. The second count in the indictment is that between 2 September 2013 and 27 September 2013 at Maroubra he did supply a prohibited drug namely 4-bromo-2,5-dimethoxyphenethylamine in an amount not less than the large commercial quantity for that drug. That is another offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The drug the subject of count 2 can be shortly described as bromo. According to par 18 of the agreed facts, the offender and an associate of his, code-named Alpha, believed the drug was ecstasy. When sentencing Alpha, Arnott DCJ described bromo as “nexus” and described that drug as apparently having the effects similar to but less than LSD. When sentencing another co-offender of this offender, code-named Delta, Scotting DCJ described bromo as “similar to ecstasy”.

7. The third count in the indictment is that between 11 September 2013 and 27 September 2013 at Maroubra, he did supply a prohibited drug, namely cocaine in an amount not less than the commercial quantity for that drug. The maximum penalty for that offence is imprisonment for 20 years and Parliament has fixed a standard non-parole period of ten years.

8. The final count in the indictment is that on 9 January 2014 at Waverley he did an act, namely produced a fabricated document to a Court in support of a bail application, with intent thereby to pervert the course of justice. That is an offence contrary to s 319 of the Crimes Act 1900 and carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period for that offence.

Facts

9. The parties have agreed to a number of facts. In reciting the facts, I shall do my best to abbreviate them and to exclude unnecessary matter. In early 2011, the offender met the man code-named Alpha at Randwick. Subsequently the offender and Alpha entered into an arrangement whereby the offender supplied Alpha with amounts of cocaine initially for cash. That arrangement continued throughout 2011 and 2012. At some point the offender and Alpha agreed, as part of their arrangement, for the offender to supply larger quantities of cocaine but less frequently on credit. The amount that Alpha owed the offender varied from week to week. The debt increased when further drugs were supplied and decreased when payments were made by Alpha to the offender. The offender continued to supply Alpha with cocaine throughout 2012 and 2013, the supply occurring at meetings between the two men. Each meeting was similar in fashion and generally occurred initially at Malabar at the offender’s mother’s home and later outside premises in Beauchamp Road, Matraville where the co-offender Delta lived. Those meetings were generally on Mondays and Fridays.

10. The first recorded supply is the first matter on the Form 1. Over a one week period in December 2012 and January 2013, the offender supplied Alpha with approximately 14 ounces of ecstasy powder, 396.89 grams, for a price of $4,500 per ounce, totalling $63,000. The powder was purple in colour and crystalline in form. The bulk of the drugs were supplied in a car park at Waterloo.

11. The police commenced an investigation in June 2013. That investigation was into the activities of Alpha and Delta. Detectives were granted a number of telecommunications interception warrants relating to telephone services used by those two offenders. Other surveillance device warrants were obtained. During that investigation, detectives became aware of the arrangement between Alpha and the offender whereby this offender would send Alpha a text message when he had drugs to supply to him and Alpha would send a text message to the offender when he had further money to pay to him.

12. The following facts relate to count 1 in the indictment. At 1.18pm on 21 August 2013, the offender entered Delta’s car in Beauchamp Road, Matraville. Alpha paid the offender $20,000. Conversation took place regarding the quality of the ecstasy that was thought to be involved in the drug deal. The conversation also extended to the quantity of the drug to be supplied. Alpha made reference to the purple coloured ecstasy previously supplied to him by the offender, being the first matter on the Form 1 which I have already described. Alpha admitted collecting money to pay for the previous supply. Later in the conversation, the current offender said:

“I’ve seen somebody yesterday but it’s MDA, not MDMA yeah, so I don’t want it.”

After some discussion the offender and Alpha agreed that the offender would supply Alpha with one kilogram of ecstasy. The offender said:

“I’ll just get us one to get us by.”

And later:

“I think I’ll get one and then I’ll cut it in half...I’ll get someone else to take another half.”

The reference being obvious.

13. At 10.44am on 23 August 2013 there was an exchange of text messages setting up a meeting. Again at 12.29pm on that day the offender entered Alpha’s car in Beauchamp Road, Matraville. Alpha paid the offender $10,000. The conversation between the two indicated that the outstanding debt as a result of that payment was reduced from $170,000 to $160,000.

14. At 9.45am on 27 August 2013 there was another exchange of text messages setting up another meeting. The meeting again took place in Alpha’s car in Beauchamp Road, Matraville outside Delta’s residence. On this occasion Alpha paid $20,000 to the offender, lessening Alpha’s debt to the offender to $140,000.

15. On 30 August 2013 similar arrangements occurred and a further $10,000 was paid by Alpha to the offender, reducing Alpha’s indebtedness to $130,000. On 31 August 2013 further text messages were exchanged and another meeting was arranged. At 3.20pm the offender entered Alpha’s motor car in Beauchamp Road, Matraville and paid the offender $15,000, reducing his indebtedness to $115,000. The offender then supplied to Alpha 18 ounces of powder, weighing 510.29 kilograms, which both the offender and Alpha believed was MDMA but was in fact MDA. The price of that transaction was $3,800 per ounce, making a total purchase price of $68,400, increasing Alpha’s indebtedness to the offender to $183,400.

16. On 9 September 2013, in another meeting in Alpha’s car in Beauchamp Road, Matraville, there was a conversation between the offender and Alpha. The offender asked Alpha whether those to whom he was supplying the drug had tried it yet. That clearly indicates that the offender knew that Alpha was himself supplying the drug to other persons in the community. On this occasion Alpha paid the offender $20,000. During this meeting the offender supplied Alpha with approximately 18 ounces or 510.29 grams of powder, which they both believed was MDMA but which was in fact MDA. The total price of that transaction was $68,400. As a result of that transaction Alpha’s indebtedness to the offender increased to $218,400.

17. I turn now to count 2 in the indictment, supplying a large commercial quantity of the prohibited drug known as bromo. On 3 September 2013, after a further exchange of text messages, the offender met with Alpha outside the Beauchamp Road, Matraville premises of Delta. The offender gave Alpha approximately 1,000 tablets, which both the offender and Alpha believed was MDMA, but which was in fact bromo. The agreed price was $13 per tablet, indicating a total transaction value of $13,000. On this occasion Alpha paid the offender $13,400, but Alpha’s debt to the offender remained $183,000.

18. On 6 September 2013 Alpha and the offender again agreed to meet after exchanging text messages. On this occasion the offender, after the exchange of text messages, contacted Delta and spoke to him. On this occasion Delta entered Alpha’s car in the usual place in Beauchamp Road, Matraville, and Alpha handed to Delta $13,000 for the outstanding debt, reducing it to $170,000.

19. I now turn to count 3. After an exchange of text messages on 12 September 2013 Alpha and the offender met at the usual place in Matraville, and the offender supplied Alpha with 18 ounces of cocaine at a price of $9,000 per ounce, totalling $162,000. That increased Alpha’s debt to the offender to $380,400. The metric amount of the supply of cocaine was 510.29 grams. On the following day there was again a meeting arranged in the usual fashion and Alpha paid the offender $13,400, reducing his outstanding debt to $367,000. In a conversation recorded by the police Alpha admitted that he owed the offender a third of a million dollars.

20. There was a further meeting arranged on 16 September 2013 at which Alpha paid the offender $27,000. During that meeting Alpha and the offender discussed the quality of the MDA, which they both believed to be MDMA, that had previously been supplied, the subject of count 1 in the indictment, albeit that the agreed facts refer to it as being the subject of count 2 in the indictment.

21. A further meeting was set up on 20 September 2013. On that occasion Alpha paid the offender $15,000 reducing his debt to $325,000. The offender discussed going to the Lebanon and told Alpha to deal with Delta who the offender referred to as “his mate” and who was known to Alpha as “Darren”. In other words, the offender told Alpha to deal with Delta as his agent while the offender was away in the Lebanon. The offender told Alpha that he would send Delta’s telephone number to him.

22. On 26 September 2013 another meeting was arranged and on that occasion Alpha paid the offender $10,000. On that occasion police observed the offender opening and showing the contents of a Myer plastic bag to Alpha. The bag contained what was said by the offender to be 10 ounces of cocaine, although in fact it was slightly less than that amount of that drug. This was given to Alpha. The total price of the cocaine supplied was $90,000, increasing Alpha’s debt to the offender to $405,000.

23. The offender then left Alpha’s vehicle. Alpha then drove his car away but remained under police surveillance. He was stopped by the police a short time later. A search of the vehicle located the Myer plastic bag containing the cocaine. Alpha was arrested and the vehicle seized. Subsequent forensic analysis identified the fingerprints of the offender on the front passenger side door of Alpha’s vehicle.

24. The police then obtained a search warrant which was executed at Alpha’s home at Bondi Junction. The police found a large amount of cocaine, a large amount of MDA and a large amount of bromo. Subsequent forensic analysis identified the fingerprints of the offender on the exterior lid of a Versace box which contained 14 resealable bags of MDA weighing a total of 12.9 grams. All of the drugs found at Alpha’s home had been supplied to Alpha by the offender, with the exception of 4 ounces of cocaine which Alpha admitted had been supplied to him by a man known to him merely as “Rusty”.

25. Alpha remained in custody after 26 September 2013. Nevertheless, the offender sought to communicate with him by text message. On 14 November 2013 the offender attended Parklea Correctional Centre to visit Alpha. The offender spoke to Alpha enquiring about his arrest and the seizure of drugs during the execution of the search warrant. The offender offered to organise a solicitor for Alpha and offered to assist Alpha’s family. On 16 November 2013 the offender made an international call to a male in the Lebanon. That telephone call was intercepted by the police. In it the offender and the unidentified male discussed the arrest of Alpha and the seizure of drugs at his residence. The offender made reference to a contention that when Alpha was ultimately released from custody he could repay the offender, clearly a reference to the outstanding drug debt.

26. In December 2013 Alpha provided two induced statements to the NSW police concerning the drug transactions which are identified in the agreed facts.

27. At 11.55am on Wednesday 8 January 2014 the offender was arrested and cautioned in relation to the supply made on 26 September 2013. A search of the offender located $3,440 in Australian currency along with a white Apple iPhone the subject of police electronic surveillance. A search warrant was later executed at the offender’s residence at Malabar. In that search police found numerous items of clothing that matched clothing worn by the offender at his meetings with Alpha that had been the subject of police surveillance. The police also found approximately $5,000 in Australian cash, $US1,581, 2,860 Thai baht and 69,000 Lebanese pounds. The value of the Thai and Lebanese currency was not great. It was submitted by Mr James QC on behalf of the offender that it amounted to approximately $10,000 Australian and I have no hesitation in accepting that assessment.    

28. Police examination of the offender’s white Apple iPhone located a drug ledger outlining moneys owed by Alpha to the offender. Next to the offender’s name was recorded “410”, being the amount of thousands of dollars that Alpha owed the offender.

29. The second matter in the Form 1, participating in a criminal group, is the joint activity of the offender, Alpha and Delta.

30. I turn now to count 4 in the indictment. As I have earlier mentioned, on 9 January 2014 the offender appeared before the Local Court at Waverley to make an application for bail. Part of that application was based on the offender’s needing bail due to his being employed. In support of that contention, the offender tendered, through his legal representative, a letter from H2 Limousines outlining his purported employment with that business. The Local Court granted bail. Evidence obtained through telephone interception and electronic surveillance revealed that the letter was fabricated, its contents were untrue and its being obtained was instigated by the offender. The principal of the H2 Limousines, after obtaining legal advice, declined to assist the police but evidence was eventually obtained that the offender did not work for H2 Limousines. The offender, by his plea, admits that he presented to the Court a fabricated document in order to obtain the grant of bail.

31. The offender was again arrested on 15 January 2014 and taken to Maroubra Police Station. Later on the same day Delta was arrested and charged.

The offender’s factual case

32. The offender seeks to diminish his culpability and to establish parity with Alpha in this way. The offender says that Alpha owed him $100,000 lawfully earned by the offender which Alpha was unable to repay to the offender. Alpha then suggested that the offender obtain drugs for Alpha for Alpha to sell at a profit so that Alpha could reimburse the offender the $100,000 which the offender had given to Alpha. The offender says that he acceded to Alpha’s request. The effect of the offender’s position is that he was being manipulated by Alpha and that his criminality should be seen as less than Alpha’s.

33. The offender’s position was first recorded in a history obtained by a clinical psychologist, Dr Stephen Woods, who interviewed the offender at the Metropolitan Reception and Remand Centre at Silverwater on 31 October and 4 November 2016. At the foot of p 4 of Dr Woods’ first report the following history is recorded:

“Following the collapse of a previous relationship and subsequent suicide, by hanging, of the former girlfriend, Mr Mezher began to frequent brothels where he, in addition to securing the services of prostitutes, accessed/used illicit drugs; the person from whom he (reportedly) obtained drugs whilst at the brothel being [Alpha]. [Alpha] reportedly ‘managed’ the brothel and allegedly claimed to hold qualifications in the area of accountancy. During the course of his frequent/regular visits to the brothel, Mr Mezher reportedly developed what he described as being ‘a sort of friendship’ with [Alpha]. Reportedly in deference for the gentleman’s age Mr Mezher perceived [Alpha] as being an authority/father-like type figure. In the circumstances where Mr Mezher believed [Alpha] was a qualified accountant and having failed to adequately plan for, or at least set aside monies to pay tax on income received from his contracted work as a security guard, he ‘Mr Mezher’ reportedly sought the advice of [Alpha]. Following and arising from the advice reportedly provided, Mr Mezher agreed to provide [Alpha] with a short term loan at an interest rate higher than he would receive if he had placed the money in a bank account. When unable to repay the loan, [Alpha] allegedly suggested to Mr Mezher that he access and provide him [Alpha] with small amounts of drugs which would be ‘on-sold’ at a profit thereby enabling the loan (provided by Mr Mezher) to be repaid. [Alpha] is said to have claimed that he could not access drugs from his usual sources due to having (himself) accumulated a large debt. In order for Mr Mezher to obtain the drugs for [Alpha], he reportedly (also) accumulated a large (personal) debt. Mr Mezher asserted that the moneys received from [Alpha] were regular but not sufficient to cover his increasing debt personally incurred and Mezher began to receive threats from the ‘supplier’.” When challenged as to ‘why’ he persisted in providing [Alpha] with drugs and in doing so fell further into debt Mr Mezher stated:

‘I was too far into it...they are putting interest on me...seeing this account every week and he is giving me some sort of money back’.”

34. The Crown then asked Alpha certain questions about that and Alpha made a statement on 9 February 2017 in which he was directed to certain parts of Dr Woods’ first report. In that statement Alpha said this:

“6. Tony never, ever bought drugs from me; the only time he ever got drugs from me was when I returned a batch of bad pills he had previously supplied to me.

7. I didn’t meet Tony in a brothel, we only ran into each other a couple of times in brothels over the time we knew each other. We met in a back street in Coogee that Joe set up. I gave this information in the last statement I gave police.

8. At the time I knew Tony I acted as an accountant or bookkeeper for a number of brothels, never as a manager.

9. In relation to being an authority or a father-like figure to Tony, it was actually Tony who took me under his wing and told me to be cautious of other drug dealers. Tony told me that if I ever had problems collecting debt or had other problems with people picking on me to let him know and he would handle that. Tony also provided me with SIM cards for my ‘drug phones’. I remember after I got arrested for the drug matters I’m currently in gaol for Tony came to visit me at Parklea Gaol where he offered to pay for a solicitor for me and volunteered assistance from his friends who were already in gaol if I had any problems.

10. I never knew Tony was a security guard and don’t remember giving him tax advice, however when people learn I’m an accountant they generally ask me questions and it is possible Tony asked me tax related questions during our relationship.

11. In relation to the point about Tony giving me a loan, I’ve never received any form of loan from Tony, he only ever gave me credit on drugs and there was never any interest. The whole purpose of meeting Tony and our continued relationship was for him to supply me drugs.

12. In relation to owing money to previous drug dealers, Joe was my supplier before Tony and he was the one who introduced me to Tony. The supplier before that was Wayne and he ran off with $32,000 of my money without ever supplying me the drugs.

13. Detective Spencer asked me about what my opinion was of Tony being a drug user; I never got the impression Tony was a drug user, he never commented on using drugs and never commented on the quality of the drugs he supplied me. He was also fit like a body builder and didn’t appear to be someone who used drugs. That was also the appeal of dealing with Tony; he was never off his head which is why it was I liked dealing with him. He was well spoken, presented well, articulate and intelligent in my opinion. I got the impression he may have used steroids based on his physique.”

35. The contents of par 13 of that statement must be put to one side. It is clear that the offender was himself a drug user. It is also clear from the agreed facts that there were discussions, as one would expect, between the offender and Alpha as to the quality of drugs being supplied. If the drugs were of inferior quality Alpha, as a user would realise that, as would those as to whom Alpha supplied the drugs. The discussion of the quality of drugs being supplied is common amongst those in the drug supply chain.

36. Both Alpha and the offender gave evidence on this issue before me at the sentencing hearing. The need for the offender to give evidence in the sentencing hearing was not only about the current issue but in order to verify the history that the offender gave to Dr Woods, which history the Crown would not accept as being accurate. I must approach the evidence of Alpha circumspectly. Alpha is a criminal turned Queen’s evidence. He has turned Queen’s evidence in order to obtain a discount on his sentence. He did obtain a significant discount on his sentence. His Honour Judge Arnott gave him a 25 per cent discount for an early plea of guilty to the various charges which Alpha faced, but increased the discount to 55 per cent for assistance given and assistance promised by Alpha to the Crown.

37. Alpha on his oath stated that the statement which I have just quoted at some length was true and correct. His version as to his initial meeting with the offender was that there had been a pre-arranged meeting with his then drug supplier, identified merely as Joe, but that instead of Joe turning up at that meeting the offender did and the offender then took over as Alpha’s drug supplier. That was the circumstances in which Alpha met the offender in a back street in Coogee, a meeting that had been pre-arranged by Joe to be with Joe but was in fact with the offender.

38. In cross-examination Alpha admitted that when he was arrested his main concern was the need to protect himself and that is why he agreed to turn Queen’s evidence. He admitted to obtaining drugs from Wayne in about July 2010, and that when Wayne absconded with his money that he started obtaining drugs from Joe and that Joe then handed over the supply of drugs to the offender.

39. Alpha also admitted that he owed the offender $405,000 for drugs that the offender had supplied to him. He went on to give this evidence in questioning by Mr James QC:

“Q. And...you expected that Mr Mezher would have had to have obtained the drugs to that value, to enable you to have obtained from him, on credit, drugs to that value?

A. Well he was making a reasonable mark-up, but yes he would have been...of course he’s a mark-up but you would have expected...obtaining them.

Q. Let’s expect that he had a mark-up of about 50 per cent?

A. Right.

Q. That’s not an unusual sort of figure in this milieu is it?

A. Oh okay.

Q. So we could assume that he would have had to have paid out, or run up a debt of about $200,000 in order to supply you with about $405,000 worth of drugs?

A. Yes.”

Counsel put questions on instructions. The instructions given to Mr James QC were that the mark-up that the offender was charging Alpha was about 50 per cent.

40. Later, Alpha volunteered this evidence about the development of his relationship with the offender:

“What I know is when I first started dealing with Tony I was paying cash for what I wanted and I was buying 1, 2 ounces at a time. But as I required more Tony suggested...so that we meet less frequently and he would give me a bigger supply and give me credit. No discussion of interest was ever had. So then I started buying 5 ounces and gradually built up to 10 and so on and so forth. It was just business. As my business got a little bigger, the size, the quantities that I would buy from him got a little bigger. It’s as simple as that.”

41. The offender then gave his evidence. I shall only refer at this stage to the evidence he gave about this issue. Initially the offender gave evidence consistent with what Alpha had said:

“Q. The dealing that you have just been charged with involves the supply to Alpha?

A. Yes.

Q. How would it operate for you to provide Alpha with drugs?

A. At the time it was - I met him through someone.

Q. Now who did you meet him through?

A. Through Joe. So he’d place an order with Joe. I used to get the phone call and drop it off to Alpha.

Q. Then Joe dropped out of the scene?

A. Yeah.”

That is consistent, as I said, with what Alpha said, and consistent with the agreed facts.

42. However then a different story was led. The offender said that the first time he met Alpha was in a massage parlour on the corner of Riley and Foveaux Streets in Surry Hills, which he thought was named Nirvana. The offender then said that Alpha had his own office in the massage parlour and the offender believed that he had some sort of interest in the massage parlour/brothel which he described as a “partnership”. Then the offender said that he thought Alpha owned the accounting side of the brothel and was “looking after the place”. He was then asked whether he recalled meeting Alpha at any stage in a lane in Coogee or Randwick and he said “No”. Of course Alpha had said that they met in a back street in Coogee, and the agreed facts say that they met in Randwick. However the word “first” is absent from the agreed facts. I leave that issue to one side.

43. The offender then went on to say this:

“When I used to visit the massage place, sometimes I used to stay there for a few hours so I used to go downstairs and see him because it was two levels. I used to get drugs off him just to go upstairs and party with the girls.”

A little later the offender clarified that he would obtain drugs from Alpha if he himself was short of drugs. That could well be consistent with the evidence of Alpha because if the offender himself ran short of drugs he could have got some from Alpha and that was not a matter of a major supply that might stay in Alpha’s mind.

44. At p 55 of the transcript of 16 February 2018 the offender said that when he first met Alpha he gave him a loan of “close to” $100,000 being money that he had saved up from his previous lawful work and which the offender believed Alpha would invest for him because he thought Alpha had an ability with money and could get him a return. Nevertheless, no return was ever received for this “loan”, nor was the loan ever repaid, nor was the loan part of the debt of $405,000 which Alpha owed to the offender for drugs supplied by the offender to Alpha. The offender said that when Alpha could not repay the loan or interest or any money earned from the loan, Alpha asked the offender to commence to supply Alpha with drugs so that Alpha could sell the drugs at a profit and thereby return the loan moneys piecemeal to the offender.

45. This evidence was given by the offender in cross-examination:

“Q. I want you to assume that the psychologist at p 5 of his report says this: ‘Mr Mezher perceived Mr Alpha as being an authority/father like type figure’?

A. Yeah.

Q. Is that true?

A. Yeah.

Q. So you saw him as an authority figure did you?

A. Yeah.

Q. Do you feel that you were manipulated by him into becoming a drug dealer?

A. No.

Q. You agree, do you, that you were a drug dealer on your own account prior to being involved with Mr Alpha?

A. No, because I was - I’ve never dealt drugs before but when I fell in this situation with him, the only way he could pay me back if he said, I can get him drugs.”

46. He went on to say in cross-examination that Alpha told him that Alpha was good with money and that the offender then volunteered:

“Okay, I can invest it with you”.

The offender said that he thought Alpha was going to open up some business with it. He then volunteered this in answer to a further question:

“He was smart when he came to money and that and he said, ‘Invest 100, I’ll give it back to you in a few months’. And I never got it back.”

47. A little later the offender in cross-examination remembered that he visited Alpha at Parklea Correctional Centre and offered him a lawyer. He was then asked some questions of a subsequent telephone conversation. The offender agreed that he had tried to help Alpha and it was suggested to the offender that that was because he felt a sense of Alpha’s being under his wing and not the other way around. The offender then answered that he did what he did:

“… because the bloke had no family, so I thought I’ll support him because he’s my friend.”

Alpha had a wife. Alpha in his evidence was cross-examined by Mr James QC about giving money to his wife immediately after the time of his arrest, which was spirited overseas. The inference that Mr James QC wished me to draw was that Alpha was being swift with the money giving it to his wife to get it offshore, that he himself was being manipulative rather than co-operative with the Crown. Alpha admitted that he gave $200,000 to his wife but that he did so with the consent of the police because his wife had a valid claim to the money. In other words, this concept of the offender’s offering assistance to Alpha “because the bloke had no family” is just wrong.

48. A little later I asked the offender a number of questions. They are these:

“Q. You were here earlier today, Mr Mezher, when Alpha was cross examined about his owing you $405,000 at the time of his arrest, correct?

A. Yeah.

Q. And the $405,000 represents drugs that you had - represents the money that he had to pay to you for drugs that you had supplied to him?

A. Yes.

Q. So you allowed him to run up a debt of $405,000, correct?

A. Yeah.

Q. And you had allowed this to a man who had said you had borrowed $100,000 from you and had never repaid you a cent?

A. Yes.”

49. The offender bears the onus of diminishing his otherwise objective culpability, that is, of minimising his culpability for what one can objectively glean from the facts. As it is to diminish his culpability, the offender only bears the onus of proof on the balance of probabilities. However, the offender has not discharged that onus. Quite frankly, I found the offender’s evidence on this aspect of the case literally incredible, that is, unbelievable. It was extremely implausible, it was bizarre, it was risible. I do not accept that the offender, Mr Tony Mezher, is a fool, or naïve, or completely unworldly-wise. The idea that one would meet a man in a brothel, decide on the first meeting that the man was some form of economic expert who could be trusted with $100,000 of lawfully earned money and give it to him on a first meeting in a brothel is literally incredible. The offender then asked me to believe that, in essence, Alpha said, “Give him the money for a number of months and he would see a good return,” but the offender never saw another penny. It is then said that Alpha said to him, “I can repay you what I owe you if you supply me with drugs which I can further supply to others at a profit and I can give you the profit to return to you the $100,000 which I owe you.” The offender asked me to believe that he readily accepted that without feeling that he was being manipulated. He then has access to those who can supply him with drugs which he can supply to Alpha which Alpha can supply to others and he allows Alpha to run up a debt of $405,000 when he asks me to believe he had lent Alpha $100,000 when they first met in late 2011 and had not had one cent repaid to him. Mr Tony Mezher is not such a fool. This evidence I cannot accept, I reject it and I prefer the evidence given by Alpha on that issue.

Aggravating factors

50. The Crown has submitted that there are two aggravating factors in the current case. On the first day of the sentencing hearing, Mr Newton who appeared for the Crown, provided me with written submissions which are MFI 1. Those submissions contain this:

“[16] In relation to counts 1-3, the Crown submits that the following aggravating factors apply:

a. (2)(m) the offence involved a series of criminal acts

b. (2)(n) the offence was part of a planned or organised criminal activity

It is submitted that the planning and organisation was over and above that which would “normally” be required and expected.

[17] The fact that the offences were committed for financial gain is relevant in assessing the offender’s criminality. However, it is conceded that financial gain is “part and parcel” of most drug offences and accordingly, in order to avoid double counting, should not be regarded as an additional aggravating factor pursuant to s 21A(2)(o).”

I am unable to accede to the submissions contained in [16] which I have just quoted. A large commercial supply of a prohibited drug may only involve one transaction but more frequently involves a large number of transactions. Furthermore, the supply of a large commercial quantity of a drug does not occur spontaneously or haphazardly but is generally part of a planned and organised criminal activity. The amount of money to be gained is great; the interest in such activities by law enforcement authority is great and, therefore, there must be planning and organisation merely to circumvent the detection of the drug trafficking. In my view, the drug offences here concerned have as part of their essence, of their very nature, the aggravating factors referred to in paras (m) and (n) of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 and I do not, therefore, accept that they are aggravating factors but only part of the underlying criminal activity.

Seriousness

51. I am required to consider the objective seriousness of the offences for which the offender stands for sentence. The following remarks refer to the offender’s drug dealing. There was a prolonged period of drug trafficking according to the agreed facts from early 2011 to early 2014, a period of some three years. It is common ground that when the offender and Alpha first met there was a drug supply. Three years is a long time.

52. Secondly, the drug supply would have continued had Alpha not been arrested, and had the offender not been arrested. There is no suggestion that the offender had given away supplying drugs prior to his being arrested.

53. Thirdly, the amount of drugs was large and the number of dealings involved was also large.

54. Fourthly, the transactions could hardly be described as unsophisticated because the offender was able to avoid detection for the best part of the three years during which he was supplying drugs.

55. A fifth point to be noted is that the offender left the street dealing of the drugs to Alpha. He was higher in the drug hierarchy than Alpha, although he himself was a user of the drugs. Alpha was both a user and a street vendor, but obtained his drugs from Alpha.

56. The sixth point to note is that the offender’s involvement may originally have been to fund his own drug habit, but the large sums of money involved objectively indicate that the offender must have been making a profit. The making of a profit is an inherent feature of the offence of supplying a large commercial quantity of a drug, and indeed of supplying a commercial quantity of drug. Both are designed for the making of a profit. The offender said in his evidence that he made no profit at all. That I find extremely hard to swallow, and again, bearing in mind my finding that the offender’s evidence about his involvement with Alpha cannot be accepted, I am unable to accept his evidence that he did not make any profit.

57. He was cross-examined about a number of photographs, exhibit 14, showing him driving a motor cycle and the motor cycle involved, driving and using a Mercedes motor car, using a wristwatch which appears to have been an expensive one, and of going overseas for lengthy periods for holidays, and objectively that is consistent with the making of a profit.

58. The seventh point is that the offender knew where to obtain large amounts of drugs which he could on-supply to Alpha.

59. In my assessment, the offender’s objective culpability is just below the mid-range of objective seriousness because of the amounts involved. The commercial quantity of MDA is 125 grams. The large commercial quantity of MDA is 500 grams. The offender supplied 926.4 grams of MDA which was nearly twice the large commercial quantity. The commercial quantity of bromo is 12.5 grams. The large commercial quantity is 50 grams. The offender supplied 212.24 grams of bromo, which was four times the large commercial quantity. Count 3 involves the supply of 763.59 grams of cocaine. The commercial quantity of cocaine is 250 grams. The large commercial quantity is one kilo. Merely looking at the defined large commercial quantities and noting the amounts involved, one might think that this was at least in the mid-range of objective seriousness as far as quantity is concerned. However, the courts are well aware, as are members of the public, that illicit drugs can be dealt with in tens of kilos and sometimes in tonnes. The police are keen to advertise whenever there are large commercial quantities of drugs discovered, but the “bragging” of the police is usually about tens of kilos and tonnes of illicit drugs. Bearing in mind that tonnes of drugs would be the subject of the same charges as this man faces, I have formed the view that this is just below the mid-range of objective seriousness.

51. As far as count 4 is concerned, the Crown concedes that it is below the midrange of objective seriousness; that is a very proper submission. The obtaining of a false document is hardly sophisticated and is something that could be fairly easily detected by police. After all, employment records are required to be kept by any employer. In my view this offence falls towards the bottom of the range of objective seriousness. However any offence which strikes at the administration of justice is serious and must be punished accordingly.

Personal circumstances

61. I turn then to consider the offender’s personal circumstances. Because of my findings thus far about the offender’s evidence I must approach this issue circumspectly.

62. The offender was born in the Lebanon in December 1982. He is currently 35 years’ old. He was born into a Maronite Catholic family. He is the middle of three children. He has an elder sister and a younger brother. His father was an officer in the Lebanese army. The offender migrated to Australia with his family in the mid to late 1990s.

63. The offender told Dr Woods, and told me in his oral evidence, that his father was a violent alcoholic who was frequently absent from the family for extended periods. That may have been because of his military obligations. Dr Woods’ history confirms that the father’s absence was due to his military duties. When the father was at home, the offender told Dr Woods that his father was prone to extreme outbursts of verbal abuse. The offender said that his father brought him up to detest Muslims and to actively fight with them. He said that his father took him to military installations where he saw people being tortured by being whipped and by being hosed and being tied up and being locked up.

64. After coming to Australia the offender said that his father abandoned the family, leaving the offender to be the “man of the house”. He said that when his father left the family his mother found it very hard to cope with the three children and she struggled and that he was required to look after her.

65. Returning to his childhood, the offender told me that when he was about seven years old his family moved from a rural area of the Lebanon to Beirut, after an Israeli military incursion. At about that time his father’s brother and his father’s mother were kidnapped, tied up and murdered. They were the victims of Hezbollah terrorism. When they moved to Beirut there was frequent shelling. Their house was demolished and they needed to shelter in what the offender referred to as a “bunker” but from his description it seems more likely to have been the cellar of the house in which they had been living. He could recall scenes of destruction and carnage throughout his youth and having to avoid active fighting by hiding in the bunker/cellar. In his oral evidence he told me “I remember everything”.

66. The offender told me that he commenced drinking alcohol at the age of 13 which would have been probably in 1996 and may represent the time when he first moved to Australia. He started smoking cannabis at the age of 15 and at the age of 21 started using cocaine and Viagra. Prior to his being arrested, he had started using crystal methamphetamine and his evidence indicates that that may have been since about 2010 or 2011.

67. At about the age of 24 which takes one to about 2009, he formed a relationship with a girl called Chloe. By that stage, he had a drug habit as did she. The offender referred to their taking Xanax, Valium and cocaine. Chloe had suicidal ideation and had self-harmed on a number of occasions. He terminated the relationship but Chloe then met up with another man but six months later, she committed suicide by hanging herself. However, it has to be borne in mind that that relationship had ended for six months prior to her committing suicide and she had another partner at the time, so that the offender’s absence from her life could not have been a proximate cause of her taking her own life. The offender told Dr Woods that he held himself, at least in part, to be responsible for her death.

68. The offender’s history is not well described in either Dr Woods’ reports or by the offender in his own evidence but it appears that he does not have any trade or other professional qualifications. He has worked in the past mainly in the security industry or in the construction industry.

69. One can readily accept that somebody coming from the Lebanon at the time that the offender did would have been subjected to, and affected by, the civil war and other wars taking place in that very unhappy land. I can accept that the offender was exposed in the Lebanon to warfare, to personal loss, to destruction and carnage. That having been said, however, does not necessarily mean that the offender’s psyche was adversely affected by it. Dr Woods diagnosed post-traumatic stress disorder (PTSD) which was chronic and moderate to severe. He also diagnosed persistent depressive disorder which was chronic, punctuated by recurrent major depressive episodes. Major depression is a syndrome different to persistent depressive disorder and major depression can have episodes. He appears to have been diagnosing three different conditions. He then went on to diagnose polysubstance, primarily stimulant, misuse disorder, which was moderately severe and in particular, diagnosed cocaine use disorder, amphetamine use disorder and cannabis use disorder, and unauthorised prescription medication use, namely the use of Viagra. He also appears to have diagnosed alcohol misuse disorder. One can accept that the offender had used alcohol and cannabis, Viagra and other prescription drugs, and cocaine, and methamphetamine but many using those drugs does not necessarily mean that the person is suffering from a disorder because those drugs have been used.

70. Dr Woods estimated that the offender’s intelligence was towards the lower end of the normal/average range. He also conceded that initially, the offender denied the existence of any symptom suggestive of mental illness. In other words, it had to be “cross-examined” from the offender by Dr Woods. According to the Beck Anxiety Inventory, the offender had a level of anxiety symptoms which fell in the severe clinical range. According to the Beck Depression Inventory he had depression which was severe. According to the Kessler Psychological Distress Scale the offender was suffering from clinically severe symptoms of disturbed mental health functioning. Dr Woods also administered the Personality Assessment Inventory known as PAI. In a footnote to his first report Mr Woods said this:

“The PAI is a particularly detailed and clinically reliable inventory designed to assess dominant personality traits and clinical factors influencing current mental state, (emotional and social) functioning and behaviour. The PAI also contains four Validity scales.”

Dr Woods then said this:

“Mr Mezher’s PAI clinical profile is conspicuous in that inconsistencies across many of his responses are noted. Reference to the test manual suggests that profiles of the type obtained by Mr Mezher often occur in response to reading difficulties, carelessness, or confusion.

Having regard for Mr Mezher’s clinical presentation I, Associate Professor Woods, am of the view that the many inconsistencies in Mr Mezher’s response was a function of his level of intelligence, apparent level of psychological distress and thus negative impact on his ability to maintain concentration when completing what is a lengthy inventory.”

71. There are inconsistencies internally in what Dr Woods says. If the PAI is “a particularly detailed and clinical reliability inventory” to be administered to those who may be psychologically distressed, it appears to me that it ought be able to cope with levels of intelligence within the normal range with psychological distress and with an inability to concentrate. An inability to concentrate is often a symptom of psychological stress.

72. The Crown, in order to rebut what was said by Associate Professor Dr Woods, has qualified Dr Susan Pullman also a forensic psychologist. Dr Pullman did not examine the offender. She had available to her a copy of the indictment, the agreed facts, the offender’s criminal history and Dr Woods’ report of 17 November 2016. She also reviewed the offender’s Justice Health records. Those are before me as exhibit 13. They are themselves of interest.

73. On 19 September 2003 the offender was taken into custody and was taken to the MRRC on 23 September 2003. He was bailed on 24 September 2003. On 23 September 2003 he completed a Justice Health questionnaire. The offender was also taken into custody on 3 November 2009 and transferred to the MRRC on 5 November 2009. There he completed another Justice Health questionnaire. He was released from custody on 2 December 2009. After his arrest on 15 January 2014 the offender was taken to the MRRC on 17 January 2014 and completed another Justice Health questionnaire. All of those were available to Dr Pullman. They are not contained in exhibit 13 but what is contained in exhibit 13 are the Justice Health case note reports.

74. Dr Pullman says this about the review of the offender’s Justice Health records:

“Mental Health Assessment Referral Decision/Suicide Risk Assessment dated 23/09/03 - Mr Mezher denied any history of mental health problems, self-harm, suicidal ideation. Nil concerns, relaxed, co-operative. Nil concerns, coping in prison.

Risk Assessment Summary dated 5/11/09 has family and partner’s support, denies any concerns.

Kessler 10 completed 5/11/09 - nil indicated of mental health issues. Reception triage process dated 4/11/09 denies any mental health concerns. Patient observed to be conscious and stable during BD triage rounds at Sydney police cells.

Kessler 10 completed 17/1/14 - score of 14/50 - denied thoughts of self-harm or suicidal ideation. Cope OK in prison.

Reception screening assessment dated 12/7/16 - Kessler score 15/50 indicates that patient may currently not be experiencing significant feelings of distress. Patient presentation congruent with K10 score, appropriate, cooperative, alert, oriented, good eye contact, easy to engage. Denied any treatment for mental health or suicidal ideation. Nil medications.”

75. Of the items contained in exhibit 13 some should be noted. There is a note made on 7 July 2016. It was noted at the time that the offender presented calm with good eye contact and that the offender raised no issues to the staff member interviewing him at the Surry Hills Court cells. When the offender was taken to the MRRC in July 2016 it was thought by those in authority that he was an associate of an outlaw motor cycle gang. The significance of that I do not know. However it was thought that the offender could be managed in the normal discipline of the MRRC.

76. The offender was interviewed when he was taken to the Lithgow Correctional Centre later in July 2016. The offender reported no issues and said that he was able to look after his own safety. An interview two days later gave no indication that he may be a drug user or that he required any intervention. In October 2016 the notes indicated that he was concerned about back pain which I understand to be a chronic condition that he has, but he had no complaint about his mental health.

77. On 19 November 2016 the offender was back at the MRRC and had been working as a sweeper since 17 November 2016. The records go on to say this:

“Inmate is compliant and does the duties of the pod sweeper. Inmate got nil issues with other inmates housed in pod 14. Inmate is polite with the pod officers and keen to work.”

In other words the offender at that time was coping quite adequately with imprisonment and appears to have been well-regarded by those who supervised him.

78. On 30 November the offender was seeking information re alcohol and other dug programs. The offender completed the ‘R’ program with success on 14 November 2016. He then started a Life and Work Skills course. The first mention of psychiatric problems was on 19 March 2017. This comment was made:

“Inmate was seen briefly for triage interview to clarify referral reason. Inmate has not yet been seen for comprehensive assessment. He has been placed on psych 1 MHI service line to be seen in order of priority.”

In other words the offender was seeking referral to a psychologist. That appears to have occurred on 9 March 2017. The following is recorded:

“Inmate presented as calm, polite and cooperative. He stated he has made a self-referral following the advice of an external psychologist/psychiatrist (?) he had seen for a court report [I infer this must have been Dr Woods]. Inmate stated he has been provided with a copy of the report, however, he does not understand the content well. However, after some discussions, he identified that he would like an appointment to further discuss his ‘depression’. When asked inmate briefly stated he is coping fine with his current situation and his mood is stable. He denied any risk of harm issues to self or others. He noted some difficult past experiences, which reportedly may have contributed to his depression and offending behaviour.

Inmate also enquired about a mental health assessment. He was advised to put in a medical referral form to Justice Health with regards to a mental health assessment, re depression. Explained process to inmate, inmate stated he is able to put in a form by himself without further support by the interviewer.”

79. There was another interview with a psychologist on 15 March 2017. As I read the entry it appears to indicate that the offender was seeking some psychological report for the purpose of his sentencing hearing. The report says this:

“He...stated that he did not have any need to speak with psychology about any current difficulties coping or active symptoms of mental illness. He reported that he is coping in the pod area as a pod sweeper. He was polite, articulate and logical in his discussion with psychology. His self-care appeared to be intact and he maintained good eye contact. He did not sign the consent form and stated that at this time he did not wish to engage with psychology, but wished to speak with Justice Health. He was advised that if he should change his mind he should self-refer back to psychology.”

Again on 24 March 2017 the offender said that he did not wish to speak with psychology but did wish to have a Justice Health assessment.

80. There is nothing further about psychology or psychological problems in exhibit 13. However, it ought be noted that on 16 April 2017 the notes say this:

“Mehzer is a very good worker and is always keen to offer assistance with extra cleaning and sweeper’s duties. Mehzer has not been involved in any incidents whilst in pod 14. Inmate Mehzer is very quiet and keeps mostly to himself. I would recommend Mehzer for any job employment within a correctional centre.”

Later on the same day this entry was made by another officer:

“Inmate Mehzer has been employed as pod 14 sweeper for at least six months. Have Inmate Mehzer to be very polite to officers. Inmate has been head sweeper, he always delegates tasks to other sweepers making sure the wing is always clean and tidy. Inmate Mehzer always makes sure all food and rations are always distributed evenly. He always keeps to himself I have noticed no conflict with other inmates or officers.”

In other words the offender is behaving very well in custody, but the records do not suggest that the offender is suffering from any psychological difficulty.

81. I return now to Dr Pulman’s report. In it she outlines her view of the validity of the PAI testing instrument and in her view the inconsistent responding of the offender, as identified and reported by Dr Woods, raises the possibility that Mr Mehzer’s profile was invalid. She goes on to say this:

“While many respondents, particularly the offender population can have impaired reading ability, completion of the PAI is not restricted to above average intellectual ability and therefore those offenders with an intellectual ability at the lower end of the normal/average would have the capacity to respond to the items in an appropriate manner. In addition, the literature does not suggest that individuals who are experiencing psychological distress have difficulties responding appropriately to the items. On the contrary, the PAI is designed to identify symptoms of psychological distress.

Mr Mehzer’s profile on the Paulhus Deception Scale yielded results suggestive of an individual who may have distorted their responses either positively or negatively. As outlined in Associate Professor Woods’ report, PDS is ‘useful in identifying individuals who distort their responses and in evaluating the honesty of their responses’.

I do not concur with the view that Mr Mehzer’s ‘raised scores’ on the Paulhus Deception Scale (PDS) Impression Management, Self-Deceptive Enhancement and Overall Deception Rating score (which fall in the higher end of the average range and high average range) ‘is not surprising’. Based on the T-scores for each of those scales which range from 66-77 (indicating significant deviation from the mean/average), it is my opinion that Mr Mehzer’s scores on the personality instruments of the PAI and Mental Health Screening Inventories such as the Beck Anxiety inventory, the Beck Depression inventory, the Kessler Psychological Distress Scale, and the PTSD Checklist are likely to be invalid and therefore cannot be meaningfully interpreted.

Mr Mezher’s scores on the Kessler 10 scale, completed in October/November 2016, indicated he reported he was suffering clinically severe symptoms of disturbed mental health. This finding is inconsistent with all previous Kessler 10 scales completed by Mr Mezher in response to mental health screening conducted by Justice Health which indicated scores within the normal or non-clinical range.”

82. This has led to a duel, and I use that word advisedly, between Dr Pulman and Dr Woods. Dr Woods generated another report dated 2 February 2018 and as part of that he carried out a further interview of the offender on 25 August 2017 and also on 30 January 2018. The first thing mentioned by the offender was that he was “frustrated by the delays in finalising his matter”, a fact which I am sure we are both frustrated about, but appears to have been likely because of the level of representation which he sought and the lack of time available for Mr James QC to appear for the offender.

83. I am afraid that in his second report Dr Woods said some things which were untrue or misinterpreted some information. For example, on p 4 of his second report he said this, “I refer the reader to s 2:4:1 of my report regarding the sister’s confirmation of the family’s ‘community-based trauma’...” but there is no such reference. He also referred to corroborative evidence being given by the offender’s new girlfriend, Casey Van Dyke, which record the offender’s telling her about the trauma he had suffered in his childhood. The problem there is that the offender only met Ms Van Dyke when he was on bail between June 2014 and July 2016, when it would have been clear that there needed to be some mitigating factors put forward on the offender’s part.

LUNCHEON ADJOURNMENT

84. At the foot of p 8 of his second report Dr Woods says this:

“Dr Pulman’s assertion that the ‘literature does not suggest that individuals who are experiencing psychological distress have difficulties responding appropriately to the [PAI] items’ is not consistent with clinical literature relevant to cases where the individual’s level of distress is significant, thus impacting on cognitive functioning.”

If that be so, one must postulate that the test would be of no value. Furthermore, if it have some validity, it is postulated on the offender’s levels of distress being ‘significant’, when there was nothing to suggest that they are other than the observation made by Dr Woods himself. Such significant distress is not borne out by any contemporaneous document nor by any relevant facts that I can ascertain.

85. When I read the reports of Dr Woods closely it appears to me that they suffer from the defect of partisanship, of the doctor’s trying to justify what he had earlier said in light of the criticisms levelled at his opinion by Dr Pulman. It is on the defence to satisfy me on the balance of probabilities that the offender does suffer from the psychiatric illnesses diagnosed by Dr Woods. I am not satisfied that the opinions of Dr Woods are valid.

86. However common sense must prevail. I can accept what the offender has told me about his childhood and teenage experiences in the Lebanon. I can accept what he tells me about the distress caused by his father’s attitude towards his family, and his father’s deserting the family. All of those would lead inevitably to a depressive illness. One can also understand the offender being upset and depressed at the suicide of his former girlfriend Chloe, any human being would. However one can also accept that any man standing for sentence on such serious charges would also be suffering from not only depression but anxiety as well.

87. The real question is what part did they have to play, if any, in the offending behaviour? It appears that the offender started experimenting with alcohol when he was first exposed to it, to cannabis at the age of 15, which is fairly common, and then to try harder drugs when he was about 18 years old. One does not need to be suffering from a depressive illness to go through that line of experience. However I can accept that the depressive illness would encourage the use of drugs and inhibit the desire to avoid taking drugs, to avoid becoming addicted. However there are many drug addicts who do not traffic drugs and, although there are some who traffic drugs merely to support their own habit, do not get to the stage of trafficking commercial quantities, let alone large commercial quantities of drugs.

88. I am not persuaded on the balance of probabilities that the offender’s psychological condition, any anxiety or depression from which he suffers, is a material ingredient in the causation of the offences which he has committed. Rather I see that depressive illness as something which may make incarceration onerous and perhaps is contributing to his isolation from other prisoners, which is indicated repeatedly in the Justice Health/Psychology records, exhibit 13.

Remorse

89. This leads me to consider the question of remorse. In the Crown’s written submissions the following are stated:

“[19] The Crown submits that the offender has sought to minimise his role/degree of culpability in terms of various matters asserted by him on sentence. If that submission is accepted, that would adversely affect the Court’s assessment of his degree of remorse. In those circumstances and given his previous offending, it is submitted that the Court could not find that he is unlikely to re-offend...nor would the Court find that he has good prospect of rehabilitation...

[20] If the Court makes findings in favour of the offender in terms of the likelihood of re-offending and prospects of rehabilitation, it is submitted that any such findings should be guarded. Furthermore, in the absence of sworn evidence from the offender, it is submitted that the Court would give no weight to, and would not accept, assertions made by [him] to third parties that are supportive of any such findings...This also applies in relation to any assertions as to the role the offender made to third parties in the absence of sworn evidence.”

Of course those submissions were made before the offender gave evidence. However, as I have said, I have grave reservations about much of that evidence.

90. When the Court looks for the recognition by the offender of the damage he has done to society and his regret and apology for that conduct, I have no doubt that the offender is remorseful in that he has done damage to himself and his family by his conduct and got himself into extremely hot water. However trafficking in drugs leads to the destruction of many lives, hurt to many families, the families of those who become addicted to drugs, the families of those whose lives are ruined, whose careers are blighted by their drug addiction, and the offender has by his conduct led to that occurring. I find no evidence of any real remorse.

Rehabilitation

91. However that does not necessarily mean that there are no prospects of rehabilitation or that reoffending will occur. The greatest incentive not to reoffend will be the effect of the sentence to be passed upon him for the crimes which he has committed. If he does more of the same he can expect more of the same plus. The other matter which in my view points towards a lack of reoffending is the offender’s age: he is now 35. He needs, I am sure he realises, to settle down and have a family, his current girlfriend, Casey Van Dyke, indicates that that is what she and he wish to do. If Ms Van Dyke is prepared to wait for the offender’s being discharged from custody that can occur. However, from the offender’s point of view, if he is to have a loving family in the future, he can only do that if he stays away on his release from gaol from a life of crime.

92. Another thing is, of course, increasing maturity and the insight which the current experience will give the offender. They are likely to deter him from again offending. I have formed the view that the prospects for not reoffending and therefore the prospects for rehabilitation are fair. It appears also that the offender has, since he has been in custody sought to participate in and complete courses designed to rehabilitate him.

Assistance

93. The offender has offered some assistance to the authorities. The extent of that is limited and what might occur in the future is limited. The offender offered to surrender items to the police which he did and without the offender’s assistance the police may not have been able to recover the items in question. He has indicated his willingness to supply details of other materials that might be taken by the police but the police have found it difficult to assess the truthfulness, reliability and completeness of the information which the offender has given to them. In the circumstances only a very slight discount can be provided to the offender.

Discount on sentence

94. I turn then to that question. The offender clearly pleaded guilty very late. His case was listed for trial in this Court on 4 July 2016 and two days later he pleaded guilty to the four counts contained in the indictment. Mr James QC on the offender’s behalf submitted that there should be a discount for the late plea of guilty of 15% because the trial would have been lengthy and there was a prospect of the offender’s being acquitted. On the other hand the Crown points out that the pleas were late, that everyone was ready “to run” and that the discount should be no more than 10%. In my view the Crown case was strong and therefore the plea of guilty may have been but a recognition of the obvious. For the offender’s late plea of guilty together with the limited assistance he has so far provided to the police I am prepared to allow the offender a discount of 12%.

95. Because questions of parity arise with Alpha, I must point out that the combined discount that Alpha obtained was 55% being for the plea of guilty at the earliest available opportunity and a further substantial discount for turning Queen’s evidence.

Count 1

96. I turn then to consider count 1 in the indictment. As I earlier mentioned the maximum penalty is life imprisonment. The Judicial Commission keeps no statistics for the supply of MDA but it does keep statistics for the supply of MDMA. Both the offender and Alpha thought that the MDA supplied was in fact MDMA. The statistics show that the median head sentence for the supply of a large commercial quantity of MDMA is seven years imprisonment. The 80% range is between 20 years and two and a half years. The highest number of sentences passed for this offence have been eight years.

97. This offender supplied 926.4 grams of MDA. Alpha supplied 932.4 grams of MDA. Looking purely at that, their offences were comparable and questions of parity arise as the Crown has acknowledged. However this offender’s culpability is higher. He was higher in the hierarchy of drug trafficking than was Alpha. It was the offender who supplied Alpha, so that Alpha could satisfy his own addiction and sell at the street level. Arnott DCJ started with a head sentence of eight years for Alpha. Doing the best I can, I believe the appropriate starting point for the offender’s sentence for this offence is eight and a half years. Applying a 12% discount and rounding down that becomes a head sentence of seven years and five months.

Count 2

98. Count 2 also carries a maximum penalty of life imprisonment. The Judicial Commission keeps no statistics for the drug known as bromo or Nexus. The Judicial Commission does keep statistics for hallucinogens, however that entails a large number of different drugs. For a large commercial supply of hallucinogens the 80% range is between six years and one and a half years and the median sentence is three years. However if one looks at the bromo as being equivalent to MDMA one turns to a median head sentence of seven years.

99. Again parity questions arise. The offender supplied 212.24 grams of bromo, Alpha supplied 221 grams of bromo. However, the bromo supplied by Alpha came from this offender. Again the offender’s culpability is greater than that of Alpha because Alpha was beneath him in the drug supply chain. Arnott DCJ started with a head sentence of seven years for Alpha’s supply of a large commercial quantity of bromo. Doing the best I can, I believe that the appropriate starting point for the offender’s crime is seven and a half years. I discount that by 12% so that the head sentence becomes six years and seven months.

Count 3

100. For count 3 in the indictment the maximum penalty is 20 years imprisonment. The statistics tell me that there are 62 cases of offenders who have been sentenced to some form of imprisonment. 58 of the 62 offenders were sentenced to full time imprisonment. The 80% range is between ten years and one and a half years, and the median head sentence is four and a half years. The offender supplied three times the commercial quantity, had he supplied four times the commercial quantity it would have amounted to the large commercial quantity. I believe the appropriate head sentence to start with is five years. I discount that by 12% and round it down to become four years and four months. Having made those findings I indicate it is my intention to impose an aggregate sentence for the three drug offences.

Count 4

101. For count 4 there is a maximum head sentence of 14 years. The statistics tell me that there have been 160 cases dealt with for the offence of doing an act with intent to pervert the course of justice. 20% of offenders have been given a suspended sentence, 4% of offenders have been given an intensive corrections order and 59% of offenders have been sentenced to imprisonment. The median head sentence is three years and the 80% range is from five years to one and a half years. I have determined it is appropriate in the circumstances of this case to impose a fixed term of imprisonment of one year, commencing on the agreed commencement date, 27 January 2016 and expiring on 26 January 2017.

Aggregate sentence

102. I turn then to the aggregate sentence for counts 1, 2 and 3. If one adds together the three sentences I have previously indicated, one reaches a total head sentence of 18 years and four months imprisonment. Having considered the matter in detail I have come to the view that the aggregate sentence should be 12 years imprisonment. That will commence on 26 January 2017 and expire on 26 January 2029.

Non-parole period

103. The remaining question, of course, is the non-parole period for that aggregate sentence. Applying the statutory formula the non-parole period ought be nine years. The question is whether there are special circumstances to warrant the breaking of the head sentence and the non-parole period. I have found that the offender does suffer from some form of depressive illness which is probably making his incarceration more onerous than it ought otherwise be. I am also acutely aware that the offender has a diagnosed low back condition, a moderate sized disc protrusion, probably at the L5, S1 level affecting the right S1 nerve root leading to sciatica. That has been diagnosed by Dr Ammer Ibrahim, a sports and exercise physician, working at the Sydney Sports Medicine Centre. Dr Ibrahim rejoices in being the Chief Medical Officer for the Sydney Roosters. He would know something about back problems. Having such a problem is one that would interfere with the offender’s ability to do certain types of work in a Correctional Centre and is not one that is readily amenable to treatment by Justice Health.

104. The other matter I bear in mind is the concession made by the Crown that a degree of accumulation may also give rise to special circumstances and the Crown cited the authority of R v Romano [2004] NSWCCA 380. Another word for accumulation is aggregation and here I am passing an aggregate sentence. A lengthy sentence itself can indicate special circumstances.

105. I have come to the view in the circumstances of this case that the non-parole period for the aggregate sentence should be eight years expiring on 26 January 2025.

106. As counts 1, 2 and 3 have standard non-parole periods, I am required by the statute to state the non-parole periods I would have imposed for those counts had an aggregate sentence not been imposed. Applying the same methodology as I have employed with the aggregate sentence, the non-parole period for count 1 would have been four years and 11 months, for count 2, four years and four months and for count 3, two years and ten months.

Other matters

107. I have not yet imposed the sentence but does anyone want any further reasons for sentence?

STEPHENSON: No, your Honour, just a confiscation--

108. HIS HONOUR: Yes. I just add this. I am acutely aware of the supportive evidence that the offender puts before me from the Reverend Mark Muss, from Father Elie Nakhoul, from Ms Van Dyke, his girlfriend and from Mr Abraham Stanbouli and Mr Nakita Regan and I have taken that character evidence into account in passing the sentences which I have indicated I am about to pass.

109. I should also mention that the offender does have a criminal history that has been referred to obliquely thus far. In 2003 he was dealt with by the Downing Centre Local Court for two counts of obtaining money by deception. For offences committed on 14 September 2003, he was dealt with by the Downing Centre Local Court: common assault, larceny, destroying or damaging property and contravening an ADVO. He was also dealt with by the Downing Centre Local Court in 2009 for an offence committed on 18 June 2008, possessing or attempting to possess a prescribed restricted substance for which the court imposed a fine. The Crown submitted that these offences prohibited the Court from dealing with the offender leniently but considering the extent of the criminality involved in those offences compared to the criminality involved in the current offences, I do not believe that the prior criminal history weighs heavily against the offender in this sentencing hearing.

Sentences

110. Tony Mezher, on the charge that on 9 January 2014 at Waverley in this State you did an act, namely produced a fabricated document to a Court in support of a bail application with intent thereby to pervert the course of justice, you are convicted. I sentence you to a fixed term of imprisonment for one year to commence on 27 January 2016 and expiring on 26 January 2017. In respect of the other three offences contained in the indictment presented on 6 July 2016 to which you have pleaded guilty, you are convicted. I sentence you to imprisonment for a non-parole period of eight years commencing on 26 January 2017 and expiring on 26 January 2025. I impose a further period of imprisonment of four years to commence upon the expiration of the non-parole period and expiring on 26 January 2029. The total sentence is therefore 12 years comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence, I have taken into account the matters on the Form 1.

111. The confiscation order please.

STEPHENSON: Can I hand up a signed and initialled minutes of order.

HIS HONOUR: By consent, I make forfeiture orders and drug destruction orders in accordance with short minutes of order which I have executed and left with the papers.

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Decision last updated: 07 August 2018