R v Nabizadeh

[2022] NSWDC 150

District Court

New South Wales

Medium Neutral Citation:

R v NABIZADEH [2022] NSWDC 150

Hearing dates:

18 March 2022

Date of orders:

9 May 2022

Decision date:

09 May 2022

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced - see paragraph 63

The offender is sentenced to an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years

Catchwords:

CRIME - drugs - Supply Prohibited Drug in Not less that the Large Commercial Quantity - MDMA - methylamphetamine - cocaine

SENTENCE - plea of guilty - offending committed whilst subject to conditional liberty - courier supporting drug habit

Legislation Cited:

Crimes (Sentencing Procedure) Act, 1999

Criminal Procedure Act, 1986

Cases Cited:

Brown v R [2014] NSWCCA 215

Hili & Jones v The Queen [2010] HCA 45

Hung v R [2019] NSWCCA 303

Mbele v R [2021] NSWCCA 182

Parente v R [2017] NSWCCA 284

R v Palu (2002) 134 A Crim R 174

R v Palu (2002) 134 A Crim R 174

The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146

Toller v R [2021] NSWCCA 204

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Regina
Ali NAZIBADEH

Representation:

Counsel:
Mr T Bailey for the Crown
Mr T Thorpe for the offender

File Number(s):

2021/77414

Publication restriction:

No

REMARKS ON SENTENCE

1. The offender appeared at the Wagga Wagga Local Court on 20 October 2021 and entered pleas of guilty to two charges of Supply Prohibited Drug in Not less that the Large Commercial Quantity. Those pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 18 March 2022 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

2. In passing sentence in respect of the second of those charges the offender asks that I take into account a charge of Supply Prohibited Drug Not Less than Commercial Quantity which attaches to a Form 1 document. In passing sentence I will need to apply and have proper regard to the principles enunciated by the Court of Criminal Appeal in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146. Given that the matter on the form 1 relates to 997 grams (i.e. almost a kilogram and 3 grams short of the large commercial quantity) of cocaine the matter on the Form 1 must have some meaningful impact on the sentence to be passed in respect of the matter to which it attaches.

3. There is a further charge of Drive State False Name or Address which attaches to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. As there must be a substantial custodial sentence passed in respect of the two charges of Supply Not Less than the Large Commercial Quantity of Prohibited Drug it is appropriate to deal with the s 166 matter by way of s 10A of the Crimes(Sentencing Procedure) Act, 1999. I did not understand either counsel to submit otherwise on that matter.

4. Also attaching to the s 166 Certificate are charges of Possess Prohibited Drug which relate to the drugs to which the substantive matters on which I am passing sentence. It is appropriate that the charges of Possess Prohibited Drug be marked withdrawn/dismissed at the conclusion of the sentence proceedings.

5. The maximum penalty for the two charges of Supply Not Less than the Large Commercial Quantity of a Prohibited Drug is life imprisonment. Parliament has specified a standard non-parole period of 15 years in respect of those offences.

Facts

6. The facts are before the Court by way of a set of agreed facts within the Crown tender bundle, exhibit A on sentence. Shortly after 4pm on 18 March 2021 Highway Patrol police observed a white Audi sedan registered (NSW) BHJ-54S driving west on the Sturt Highway at Borambola, which is about 25 kilometres to the east of Wagga Wagga. The vehicle was pulled over by police at a rest area. Upon request the offender handed police a NSW P2 Driver Licence in the name of Noor Agha SYED MUSA, Licence Number 22707972.

7. The offender told police that the vehicle did not belong to him and that he was travelling to South Australia to complete a tiling job. He also told police that he was returning after two days in Sydney and that he had not booked any accommodation in South Australia for his stay.

8. Police cautioned the offender and indicated that they intended to search him and the vehicle. Nothing unlawful was found on the search of the offender. Police located two jumpers, one t-shirt and a toothbrush together with a small quantity of tools consisting of a trowel and a spirit level, which seemed inconsistent with what the offender had told police.

9. The tools were located in the boot on top of the carpet covering the spare wheel compartment. Police noticed that the spare tyre was protruding from the compartment making it visible when the boot was opened. On inspection the spare tyre did not appear to match the other tyres on the vehicle and looked older and more worn. On rolling the tyre police formed the opinion that items were inside the tyre. Police noticed the offender was nervous. He declined to comment about the contents of the tyre.

10. Police cut open the tyre and located a pair of blue jeans and a red coloured table cloth. Inside the jeans were two large vacuum sealed bags containing a brown crystal substance, two large plastic bags containing a white crystal substance and black coloured brick shaped item. Inside the red cloth police located another large vacuum sealed bag containing a brown crystal substance. The items and the vehicle were seized. The offender declined to answer any questions.

11. The offender was taken to the Wagga Wagga Police Station and entered into custody. Police were not satisfied that the licence produced was his. He was fingerprinted and the offender admitted that the licence was not his.

12. Upon analysis the three bags of brown crystal substance was 3.006 kilograms (3006 grams) of 3,4-methylenedioxymethamphetamine (MDMA), the two bags containing white crystal substance was 2.002 kilograms (2002 grams) of methylamphetamine and the bricked shaped items was 997 grams of cocaine.

13. The offender was cautioned and declined to participate in an interview.

14. A DNA profile consistent with that of the offender was found on the inside waistband of the jeans located inside the tyre. Neither a DNA profile consistent with that of the offender or fingerprints was located on the direct packing of the drugs.

15. The facts recite that the offender’s role was a courier. However, as the learned Crown Prosecutor observed at the beginning of his oral submissions that without couriers there would be no drug dealers. There can be no doubt that couriers are an integral part of the trade in illicit substances.

Assessment

16. The facts recite that the offender’s role was a courier. The sentence hearing proceeded with both parties accepting that this was the offender’s role. As I made clear while taking submissions at the sentence hearing I could not be satisfied beyond reasonable doubt that the offender was in any way involved with the packing of the drugs or beyond being the courier playing any part in the organisation of the transport of the drugs. While this is the basis on which the offender must be sentenced the quantity of illicit drugs involved is very substantial. Including the cocaine there was a total of very close to six kilograms of drugs. Although a courier the offender must have been trusted by those organising the transport given the quantities of drug involved. I am not told the street value of the drugs but again, given the quantities it would be very substantial. I am not informed of the purity of any of the drugs involved.

17. The commercial quantity for both Methylamphetamine and MDMA is 250 grams and the large commercial quantity in respect of both is 500 grams or .5 kg. The indictable quantity in respect of both is 5 grams. The quantity of methylamphetamine was four times the large commercial quantity and the quantity of MDMA was six times the large commercial quantity.

18. I also note that the large commercial quantity of cocaine is 1 kg. The matter on the Form 1 is only 3 grams off the large commercial quantity. That matter on its own is a serious example of a charge of Supply Prohibited Drug.

19. Both counsel addressed on the issue of planning. As I observed at the sentence hearing the undertaking in which this offender was involved had some degree of sophistication and clearly there had been some planning particularly given the packaging of the drugs in the tyre. However I could not be satisfied beyond reasonable doubt that the planning amounted to substantial planning required to enliven the factor of statutory aggravation in s 21A(2)(n) of the Sentencing Act.

20. Mr Thorpe of Counsel submitted at the sentence hearing that the matters fell well below the mid-range of seriousness. The Crown Prosecutor submitted that the matters were within the mid-range.

21. Given the quantities of drugs involved, that there were three different types of drugs involved and the offender’s role as the courier with no other role each of the substantive matters are below the mid-range of seriousness but not significantly so. The matter involving the MDMA being slightly more serious than the matter to which the methylamphetamine relates because of the quantities involved.

Criminal History

22. The offender was born on 23 February 1999 and accordingly was 22 years of age at the time of offending and 23 years of age at the time of sentence. On 6 February 2019 he received Community Correction Orders for Supply Small Quantity of Prohibited Drug, Possess Prohibited Drug and Deal with the Proceeds of Crime. Those orders expired on 5 February 2021 only a few weeks before the present offences were committed. Further on 30 May 2019 he was convicted of Dishonestly Obtain Financial Advantage by Deception and received a 2 year Community Corrections Order. That was current at the time of the present offending which was committed while subject to conditional liberty. The factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act is therefore enlivened.

23. There are a limited number of matters on the offender’s record and he is entitled to some very small degree of consideration for that limited record.

General Deterrence

24. Clearly the offender was involved in trafficking in prohibited drugs to a substantial degree. The significance of that finding is not as great as it once was. However, there was no issue in this matter that the sentence would be one of full time custody. There were significant quantities of prohibited drugs and several different types of prohibited drugs. There remains a significant issue of general deterrence when sentencing in respect of prohibited drugs. As I have often observed it is no exaggeration or hyperbole to note that barely a day goes by in this court that the court does not deal either on appeal from the Local Court or on indictment an offender who has committed serious criminal offending under the influence of methylamphetamine or has committed serious criminal offending to facilitate the purchase of more of the particularly nefarious and addictive substance. This is the point the Crown Prosecutor makes at paragraph 3 of his written submissions (MFI 1 on sentence).

25. The Court in Parentev R [2017] NSWCCA 284 said at [107]-[110]:

“[107] Sentencing in drug supply cases should be approached in a manner consistent with the general principles referred to earlier. Nonetheless, there are some matters that should be emphasised.

[108] First, it is necessary for a sentencing court to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act which include "(b) to prevent crime by deterring the offender and other persons from committing similar offences" and "(c) to protect the community from the offender".

[109] Since at least the 1970s (see the cases referred to above at [63]ff)there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.

[110] Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.”

Subjective Case

26. The offender’s subjective material was made available the day before the sentence hearing. It was plain that the offender was seeking that the court make an order pursuant to s 11 of the Crimes (Sentencing Procedure) Act. After an exchange between bench and bar table and Mr Thorpe being given an opportunity to confer with the offender that submission was ultimately abandoned. For more abundant caution given the contents of the quantities of drugs involved, what will need to be a substantial sentence of full time custody, the flight risk and the contents of the Sentence Assessment Report I would not have acceded to the submission that the offender be extended the very significant leniency of a disposition under s 11 of the Sentencing Act even in the circumstances where it was recognised that the offender would inevitably have to return to custody at the conclusion of a period in residential rehabilitation. I also note the decision of R v Palu (2002) 134 A Crim R 174 and in particular the judgment of Howie J (Levine & Hidden JJ agreeing) at [30].

27. The subjective material is contained within exhibit 1, which is indexed. An affidavit by the offender was read. He was not required for cross-examination. The affidavit has annexed to it a letter from the offender expressing remorse and a report from Dr Emma Collins, Psychologist.

28. In his “sorry letter” the offender says that he never realised how drugs can destroy someone until he went to prison. He now realises that being involved in drugs can lead to significant periods of imprisonment and other hardships. He comes from war torn Afghanistan. He expresses sorrow for his crimes. He goes on to say that he found himself in debt to a drug dealer connected with “the bikies”. He was “cornered into be being a courier to pay off this debt and to get his trust back so I can continue to get drugs off him”. His drug habit was worth more than he ever earned in his lifetime.

29. The offender was not required for cross examination. In those circumstances I am more able to accept the letter. I am satisfied on balance that the offender is remorseful.

30. The offender goes on to say that gaol has been hard for him. He has been “stood over and bashed”. I note that there are medical records annexed to the affidavit of the offender’s solicitor in this regard. He says he wants to undergo a course of residential rehabilitation and goes into some detail as to steps he had taken in that regard.

31. There was no oral evidence and accordingly the evidence was not tested. However, the offender was not required for cross-examination. In those circumstances I am prepared to find on balance that the offender is remorseful.

32. I now turn to the report of Dr Emma Collins, Clinical and Forensic Psychologist. The offender is one of seven children, born in Pakistan but moved between Pakistan, Iran and Afghanistan due to the civil issues in that region. He identifies as Hazara, a small ethnic group of Afghans persecuted by Islamic State Militants. The offender’s family immigrated to Australia in 2013, which was precipitated by the killings of his grandfather who was a police officer and his uncle. His father initially came by boat to secure the family’s later safe passage. The offender’s father was separated from the rest of the family for about four years. His mother who was poorly educated struggled to provide support for the family in his father’s absence.

33. The offender recalls one particularly traumatic event that occurred in 2011 when he was 12. He was praying at a mosque when he heard a bomb explode. According to Dr Collins’ report the offender saw many dead from the blast, with body parts strewn around. He continues to recall the incident.

34. As I observed at the sentence hearing one can only attempt to imagine what the offender has been through in his formative years. Clearly he has been subject to significant deprivation. The principles enunciated in Bugmy v The Queen [2013] HCA 37 are enlivened to a significant extent reducing the offender’s moral culpability.

35. However, the offender’s father was strict and the offender began to rebel in his teenage years. He left home at 18 years of age which led to some poor peer choices and negative gang associations. He accepts that he has brought shame on his family with whom he has some limited contact. He began to use cannabis at about 16 or 17, which Dr Collins notes (paragraph 10) could have exacerbated difficulties the offender had at school.

36. Until his arrest the offender worked in the construction industry and was employed as a bricklayer. He is confident of securing such work upon his eventual release. However he also acknowledged to Dr Collins that his drug use negatively affected his work history.

37. I have already noted that the offender began using cannabis at the age of 16 or 17. He progressed to cocaine at the age of 20 while partying with friends. Also at about 20 he began smoking ice (methyl amphetamine) using 1 gram every day or two. He has also engaged in problem gambling, having spent up to $10,000 in one sitting at a casino.

38. Dr Collins observed at paragraph 17 of her report:

“..It seems from his account that Mr Nabizadeh’s goals for the future are complicated by the traumatic loss of life he observed in childhood and whether has made sufficient effort with his own life. He said that using substances dulled such thoughts and improved his mood as noted earlier and this led to more frequent episodes of gambling and drug use that continued to his remand in custody”.

39. The offender reported to Dr Collins that his difficulty in adjusting to custody has been exacerbated by the COVID-19 pandemic. Indeed the sentence hearing Mr Thorpe read an affidavit prepared by his solicitor. That affidavit sets out in close detail the effects of the pandemic on the offender. In particular, the affidavit sets out the details of the movement of the offender around numerous correctional centres and a requirement to isolate for fourteen days upon arrival at each centre. As I observed at the sentence hearing although it is accepted that the effect on the pandemic are taken into account by sentencing courts as a matter of course it was of great assistance to have the details as set out in the solicitor’s affidavit. Further, as I commented at the sentence hearing the offender’s solicitor Mr Upol Amin is to be commended on the thoroughness of the contents of his affidavit.

40. I take into account the effects of the pandemic in accordance with authorities such as Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.

41. Returning to Dr Collins’ report she concludes by indicating concerns that the offender will re-offend without significant therapeutic supports in place upon his eventual release.

42. These matters indicate that there should be a generous finding of special circumstances. Not in any particular order the matters that indicate such a finding include the offender’s age, this is his first time in custody and the need for an extended period of supervision which will need to be intensive and extensive, particularly so far as substance abuse is concerned. Given the issues of the offender’s past and what will be a considerable sentence of full time custody the offender will also need assistance in the proper reintegration into society.

39. There was a volume of subjective material made available the day before the sentence hearing going to the applications made on behalf of the offender for entry into various residential rehabilitation facilities. This was intended to go towards the application for a disposition pursuant to s 11 of the Crimes (Sentencing Procedure) Act. That application was not pursued at the sentence hearing.

40. There is one issue of concern about the content of the emails from the offender’s solicitor to the various rehabilitation facilities that I raised with counsel at the sentence hearing. In his letter indicating remorse the offender maintained that he was transporting the drugs in order to pay off a debt to a drug dealer and to regain that dealer’s trust. In each of the emails forwarded by Mr Amin (the solicitor) to the rehabilitation facilities it appears:

“The facts are suggestive that Mr Nabizadeh was used as essentially a courier. He instructs that he was to be paid an about of money and drugs for his work to fund his drug habit”.

45. Had the offender given evidence that was one aspect that I would have appreciated being pursued. Ultimately probably little turns on this and accordingly I will put it down to the “lose language” as submitted by counsel.

46. In his letter expressing remorse the offender says (3^rd paragraph), “And when we are locked in so much and feeling so stressed out, to be honest we can’t help but take drugs even in jail”. However, the Sentence Assessment Report (SAR) indicates that the offender reported to the author that he had been abstinent from drugs since being in custody.

47. The SAR assesses the offender at a medium-low risk of re offending. Dr Collins concludes her report by expressing an impression that the offender is at “somewhat of a crossroads with regard to his future adjustment”.

48. The offender in his letter admits to continuing to use illicit substances. I am reluctant to find on balance that there are good prospects of rehabilitation at this point. There are some extremely positive signs. However, much will depend on the manner in which the offender engages with the appropriate agencies upon his eventual release from custody.

49. An assessment as to whether the offender is unlikely to re-offend is a little difficult. The offender admits to continuing to use substances. However he is clearly remorseful and at this stage is indicating a clear intention of seeking rehabilitation. With some hesitation I am prepared to find on balance that the offender is unlikely to re-offend.

Submissions

50. Mr Thorpe made available comprehensive and thorough written submissions which were supplemented by oral submissions at the sentence hearing. I have thoroughly read and considered those submissions. It is uncontroversial that the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. While conceding the seriousness of the offending counsel for the offender puts, correctly in my view, that there is nothing to suggest that the offender’s role was other than a courier. It is put and I accept that what have become known as the “Bugmy Principles” are enlivened reducing the offender’s moral culpability.

51. Mr Thorpe at p 4 of his written submissions puts on the issue of the significance of drug addiction:

“If the drug addiction has its origins in circumstances such as social disadvantage, poverty, emotional, financial or social deprivation, poor education achievement or sexual assault it is appropriate for the rehabilitative aspects of sentence to assume a more significant role than might otherwise be the case”

52. No authority is cited for that proposition although it has some appeal. However, while the deprivations suffered by the offender in this matter are undoubted it appears from the report of Dr Collins that the offender commenced using cannabis at 16 or 17 when he decided to rebel against the strictness of his father. That rebellion however may well have its genesis in the issues that confronted the offender in his formative years. I have already indicated that there should be a generous finding of special circumstances in this case. I have already referred to the impact of the COVID-19 pandemic in some detail.

53. There is clear evidence that the offender has been assaulted in custody. There are documents from Justice Health detailing the assaults and the treatment. I understood this to go to a submission as to custody being onerous for the offender. Again, this goes essentially to a finding of special circumstances.

54. Mr Thorpe in his written submissions goes into some detail of Dr Collins’ report and the issue of the submission that the court deal with the offender pursuant to s 11 of the Crimes (Sentencing Procedure) Act. I have dealt with the report of Dr Collins in some detail.

55. In oral submissions Mr Thorpe put quite strongly that the offending was well below the mid-range of seriousness. Given the quantities of the drug and the degree of sophistication in the operation I am not prepared to find that it is well below the mid-range. The issue of special circumstances was emphasised.

56. The Crown Prosecutor commenced his oral submissions with the rather appropriate point that without couriers like this offender there would be no drug dealers. While the Crown did not contend other than that the offender was a courier the Crown submitted that the court should be careful not to diminish the offender’s role as a courier of very dangerous drugs. The Crown Prosecutor also emphasised the significant quantities of drugs involved. The Crown submitted that given the quantities, the degree of planning and the significance of the offender’s role as a courier the matter was within the mid-range. I have dealt with the issue of the objective seriousness of the matter now in some detail.

General Remarks

57. I have a memory of indicating at the sentence hearing that I was proposing to deal with this matter by way of aggregate sentence. I did not understand either counsel to dissent from this course. I note that these remarks have been reduced to writing and a copy will be made available to the parties soon upon the pronouncement of sentence.

58. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

59. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non-parole periods prescribed for each offences and the significance of the form 1 matter clearly there must be a sentence of imprisonment in this matter. I understood that counsel for the offender accepted at the sentence hearing that there would need to be a sentence of full time custody imposed in this matter once the application for a disposition pursuant to s 11 of the Sentencing Act was not pursued.

60. Neither party referred me to the statistics kept by the Judicial Commission in respect of the offence of Supply Large Commercial Quantity of Prohibited Drug. However, given that the quantities of the drugs involved exceed by some distance the quantities I have dealt with in other matters, I have consulted those statistics. I observe that the statistics appear to indicate relatively low sentences given the maximum penalty is life imprisonment and the standard non-parole period of 15 years. I have also considered the decision in Hung v R [2019] NSWCCA 303. In that matter the quantity of methyl amphetamine was much greater than in the matter presently under consideration and the involvement of the offender in the enterprise was greater than the role of this offender. Nevertheless there is some guidance to be gained from the decision in Hung when the quantities of the other drugs as set out in the table at [6] are considered.

61. I warn myself about the use of the statistics conformably with Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J. However, there is also the issue of consistency in sentencing to be considered.

62. As I am proposing to deal with this matter by way of aggregate sentence it will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. Those sentences are:

1. In respect of Sequence 2, i.e. the offence involving the 1.987 kg of methyl amphetamine a non parole period of 2 years 10 months with a balance of term of 2 years 5 months making a total sentence of 5 years 3 months indicating a starting point of 7 years;

2. In respect of Sequence 3, i.e. the matter involving the 3.007 kg of MDMA, taking into account the matter on the form 1 document, a non-parole period of 3 years 9 months with a balance of term of 3 years making a total sentence of 6 years 9 months, indicating a starting point of 9 years.

63. There would need to be some minor partial accumulation to recognise the different drugs involved. There were three quite discreet and significant quantities of three different drugs located in the tyre by police.

64. The offender is sentenced to an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years.

65. The non parole period is to date from 18 March 2021 and will expire on 17 March 2025. The balance of term of 3 years six months is to date from 18 March 2025 and will expire on 17 September 2028.

66. The offender is eligible to be released at the expiration of the non-parole period and I recommend that release.

67. I recommend that any release to parole be supervised and conditioned that the offender obey all reasonable directions as to ongoing treatment and counselling for substance abuse.

68. The non-parole period is approximately 54% of the total sentence which indicates a substantial finding of special circumstances the reasons for which have been enunciated within these reasons.

69. The matter of Driver State False Name or Address on a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 is dealt with by way of s 10A of the Crimes(Sentencing Procedure) Act, 1999. The offender is convicted but there is no further penalty.

70. The drugs are to be destroyed.

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Decision last updated: 09 May 2022