R v Mohamed

[2010] NSWDC 322

CITATION:	R v MOHAMED [2010] NSWDC 322
HEARING DATE(S):	19 November 2010 26 November 2010
JUDGMENT DATE:	26 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment for an overall term of 7 years with a 5 year non-parole period. Make order under the Confiscation of Proceeds of Crime Act
CATCHWORDS:	CRIMINAL LAW - Sentence - Forms 1 - Overlapping offences - Dealing with property suspected to be the proceeds of crime - Ongoing supply - Possess cannabis - Possess prohibited weapon - Possess for the purposes of supply - Conduct drug premises - Possess shortened firearm without authority - Possess unregistered firearm - Posses ammunition without licence or permit
LEGISLATION CITED:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Weapons Prohibition Act Confiscation of Proceeds of Crime Act 1989
CASES CITED:	R v Tranh [2010] NSWCCA 183
PARTIES:	The Crown Ahmed Mohamed
FILE NUMBER(S):	DC 2009/049124; DC 2009/250074
COUNSEL:	Mr R Webb - Offender
SOLICITORS:	Director of Public Prosecutions Macquarie Lawyers Burwood - Offender

JUDGMENT

1 HIS HONOUR: Last Friday Ahmed Mohamed appeared for sentence on a large number of offences. He had earlier pleaded guilty to some of these offences in the Local Court and was committed for sentence to this Court. Another offence is a summary matter that was dealt with in this Court under s 166 of the Criminal Procedure Act and yet further offences appear on a number of Forms 1 attached to some of the offences committed to this Court for sentence.

2 These many offences represent significant criminality extending over a lengthy period from 3 June 2009 to 12 November 2009. The offences can conveniently be divided into two groups. Police became aware of suspicious activity involving the offender and his de facto partner, Ms Jodi Campbell. They obtained a search warrant and so, on 3 June 2009 they went to premises which the offender and Ms Campbell shared. The offender was alone there when the police arrived. In one of his pockets was a plastic resealable bag of cannabis with a net weight of one gram. That offence appears on a Form 1 attached to an offence of supplying 448.2 grams of cannabis, the circumstances of which I will later mention.

3 In the premises themselves police found a number of other items including more than $4,000 cash. That represents an offence of dealing with property suspected to be the proceeds of crime, also attached to the supply cannabis offence I have just mentioned, and two taser gun devices located within a wardrobe. One of those was working but the other was not. The working weapon is the subject of a specific charge of possess prohibited weapon under s 7 of the Weapons Prohibition Act. It carries a maximum penalty of fourteen years imprisonment with a standard non-parole period of three years. The other non-working taser is the subject of an offence on a Form 1 attached to that offence. Police also found, in a bedside table, two plastic resealable bags containing cannabis. That cannabis weighed 5.4 grams and the possession of that drug also appears on a Form 1 attached to the supply cannabis offence.

4 There were many indicia of a drug supply business found in the house, including two mobile phones, one of which displayed fifty missed calls when police looked at it, and various quantities of cannabis totalling 448.2 grams, and 13 grams of another drug called 1-benzylpiperazine. Both drugs were clearly possessed for the purposes of supply.

5 The offender is thus to be sentenced for supplying 448.2 grams of cannabis and supplying 13 grams of 1-benzylpiperazine, both under s 25 of the Drug Misuse and Trafficking Act, each offence carrying with it a maximum penalty of fifteen years imprisonment.

6 Finally, in relation to this first group of offences, the offender is to be sentenced for an offence of conducting drug premises. That is a summary offence, with a maximum penalty of twelve months imprisonment, to be dealt with by me under s 166 of the Criminal Procedure Act.

7 The offender was granted bail after spending, he believes, one night in police custody. In his evidence to me last Friday he made it clear that having been released from custody he went right back out again and commenced re-offending. As he expected, police noticed what he was doing and so, once again, he became the subject of police attention.

8 A controlled operation was conducted. On 15 October 2009, the offender took part in the supply of 6.8 grams of cannabis to an undercover officer. That offence appears on a Form 1 attached to an offence of ongoing supply of methylamphetamine. Thereafter on 22 October, 28 October and 12 November 2009, the offender took part in another offence of supplying cannabis, this time 3.5 grams, also on a Form 1 attached to the ongoing supply, and supplied relatively small amounts of methylamphetamine on four separate occasions, there being two such supplies on 28 October.

9 Those four supplies of methylamphetamine form the basis of an offence of the ongoing supply prohibited drug, an offence under s 25A of the Drug Misuse and Trafficking Act for which the maximum penalty is twenty years imprisonment.

10 The final offence for which this offender is to be specifically sentenced relates to what police found when they searched his premises after arresting him. They found a loaded, sawn-off shotgun on the floor in the main bedroom of those premises. That represents an offence of possess a shortened firearm without authority under s 62 of the Firearms Act for which the maximum penalty is ten years imprisonment.

11 When I sentence him for that matter he asked that I take into account two related offences on the Form 1 attached to that matter, one of possessing an unregistered firearm, the same sawn-off shotgun, and another of possessing ammunition without a licence or permit, that relating to ammunition of various calibres located throughout the house, including some suitable for the shotgun.

12 Two other offences are attached to the ongoing supply of methylamphetamine matter, both offences of dealing with property suspected to be the proceeds of crime. One of those relates to $300 of buy money which the offender had in his possession when he was arrested, and the other a sum of $1800 found in his premises later.

13 Once more, the premises contained a great deal of material, suggesting that the offender was engaged in the drug supply business including, helpfully for the authorities, a digital camera which contained a photograph of the offender packaging cannabis into small plastic resealable bags.

14 The offender is now thirty-five years of age and he was born in Sydney and raised in a devout and strict Muslim household. He told a psychologist he believed that this contributed to earlier adolescent rebellion. He struggled at school, his academic performance dramatically declining when he started hanging out with the wrong people. After leaving school, following completion of year 12, he went to a TAFE college in Orange. It was here that he became isolated from his family and he drifted into smoking cannabis as a means of self-medication. Upon returning to Sydney he tried to complete a diploma in mechanical engineering but found that too difficult. Since then he has worked in a range of jobs until the end of 1998. He has been married and divorced twice, and is currently in a relationship with his co-offender Ms Campbell. The offender described his escalating use of drugs to the psychologist which led to him facing sentence for these many matters today.

15 Along the way the offender has obtained a significant criminal history starting in 1994. Many of those offences are driving matters but it is to be noted that there were not too many years when a conviction of some sort was not recorded against him. He managed to get through 2006 without committing an offence, but that appears to be because he spent a significant proportion of that year in custody, after having been found guilty of a number of offences of defrauding the Commonwealth.

16 I noted above that one of the offences for which the offender is to be sentenced carries with it a standard non-parole period of three years imprisonment. Of course that is not of direct application because of the plea of guilty but it remains as an important guidepost. I am required to assess the objective seriousness of that offence in a manner in which I would not be required to do if the offence did not carry with it a standard non-parole period.

17 It is to be remembered that the offender pleaded guilty to possession of a taser stun gun. Where in the range of seriousness does that offence fall? The Crown drew to my attention a decision of the Court of Criminal Appeal in R v Tranh [2010] NSW CCA 183. In that case the Court of Criminal Appeal held that,

“By reason of the nature of the weapon involved (the offence) was significantly below the mid range of objective seriousness for such offences.”

18 The Court of Criminal Appeal had previously noted the width of items which are defined as “prohibited weapons” in para 19 of the judgment. Schedule 1 to the Weapons Prohibition Act lists a large number of items caught by the definition of “prohibited weapon”. In assessing the objective gravity of an offender’s conduct one of the most important considerations involves me determining how serious a taser stun gun is when compared with other weapons listed in schedule 1. On the one hand, as the Court of Criminal Appeal noted in Tranh, bombs, grenades, rockets, missiles and mines are covered, but at the other end one can find extendable batons, side-handled batons, nunchakus and cats-o-nine tails.

19 I do not regard myself as bound by the description given by the Court of Criminal Appeal to a taser weapon in R v Tranh because it is not a finding at law. When I look at the range of items covered in schedule 1 and place the taser in that range, I am satisfied that it is in the middle of the range of weapons as far as their seriousness is concerned. A taser is a device capable of causing painful and immediate incapacitation and carries with it the risk of death. For those reasons I am satisfied that the offence is in the middle of the range of objective seriousness for offences of possessing a prohibited weapon. However I will not impose a non-parole period of three years on that matter, not only because of the early plea of guilty to the offence but also because of the other mitigating features I will deal with in this judgment.

20 The offender has been addicted to drugs for more than five years but since he went into custody on 12 November last year he has not used drugs. This has not only improved his health - he has put on eighteen kilograms which suggests he must have been skeletal when he went into custody - and is now thinking clearly. As part of his clear thinking he expressed his remorse in evidence before me.

21 On the other hand the offender’s prospects of rehabilitation could not be said to be good, nor can I say that he is unlikely to re-offend upon his release from custody. His lengthy and substantial addiction to drugs, together with his regular offending in the past, are both barriers to me making positive findings regarding the offender’s prospects of rehabilitation.

22 Despite the number of offences with which I am dealing, ultimately it has to be borne in mind that the offender was supplying relatively small quantities of drugs, although I would not accept the description offered to me by Mr Webb of this being a “small time operation” in view of other evidence which demonstrated the enthusiasm with which the offender was carrying on his drug supply activities.

23 It must also be remembered that low level drug supplies to drug users is precisely the sort of conduct that s 25A was introduced to deal with. Furthermore, that offence was committed whilst the offender was on bail, as was the firearm offence with which I will now deal.

24 To police, the offender said that he had the sawn-off shotgun for personal protection and that it had nothing to do with drug deals. To me, the offender said that he accepted the shotgun and ammunition as collateral for cannabis that he had supplied on credit, but that the customer never came back to reclaim his shotgun. I do not know which, if either, is true. What I do know is that the offender had immediate access to a loaded, sawn-off shotgun and the potential for tragedy to have occurred is obvious.

25 As Mr Webb points out, I have to be very careful regarding the overlap of some of those offences. I will give some examples: The proceeds of crime offences are directly related to the drug supply offences; The same firearm was both shortened and unregistered; The drug supply premises were operated so that the offender could commit other offences including his ongoing supply offence; and it is not an aggravating feature of the ongoing supply offence that the offender was armed with a sawn-off firearm when that latter matter is the subject of a separate offence.

26 One other matter I must mention is that I earlier sentenced the offender’s co-offender, Jodi Campbell, for both the drug premises offence as well as ongoing supply. I must ensure that when the offender compares the sentence I impose on him for those matters he does not have a justifiable sense of grievance. I take into account also that the supply cannabis matter could have been dealt with in the Local Court and that in assessing the seriousness of supplying 1-benzylpiperazine the Drug Misuse and Trafficking Act specifies the same weights for that drug as it does for the drug, methylamphetamine.

27 The offender had sunk to a significant low at the time he committed these many offences. Even after he was released on bail he committed further offences because, as he explained in evidence, he had to do whatever he could to feed his habit. His attitude demonstrates a need for both personal deterrence and also a sentence which promotes his rehabilitation. As well, of course, there is a need to impose sentences upon him which would deter others who may be tempted to act in the significantly criminal way that he has acted.

28 As I mentioned earlier, the offender pleaded guilty at an early stage and so I will discount the sentences I would otherwise have imposed upon him by twenty-five per cent to reflect that circumstance.

29 I will also date the sentences from 11 November 2009 to take into account the one night that the offender spent in custody in June before being released on bail.

30 Mr Webb asked me to find that there are special circumstances but many of the matters that he relied on in support of that submission have already been taken into account by me in setting the overall sentence and it would be wrong of me to double count them by using those factors to reduce the effective non-parole period. On the other hand, it is clear that the offender will need assistance upon his release from custody if he is to rehabilitate himself. I have therefore made a modest adjustment to the ration between non-parole period and head sentence. That adjustment is indeed modest because the effective non-parole period I will shortly announce is the least I consider properly reflects the objective gravity of the offender’s conduct.

31 Taking into account the matters on the Forms 1, where appropriate, the offender is sentenced as follows. For the offence of conducting drug premises, the offender is sentenced to imprisonment for a fixed term of six months to date from 11 November 2009.

32 For the offences of supplying a prohibited drug relating to 1-benzylpiperazine and cannabis, the offender is sentenced to imprisonment for a fixed term of eighteen months to commence on 11 February 2010.

33 For the offence of possessing a prohibited weapon, the offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 11 February 2011 and an overall term of two and a half years.

34 For the offence of possessing a shortened firearm without authority, the offender is sentenced to imprisonment for a fixed term of two years to commence on 11 November 2011.

35 For the offence of ongoing supply of a prohibited drug, the offender is sentenced to imprisonment. I set a non-parole period of two years to commence on 11 November 2012 and a head sentence for that matter of four years. The non-parole period will expire on 10 November 2014 on which date the offender is eligible to be released to parole. Thus, the overall sentence is one of seven years with a non-parole period of five years.

36 Is there any opposition to making this order under the Confiscation of Proceeds of Crime Act? No? Thank you, I will make that and sign that document. Thank you for your assistance.

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