R v Naji

[2019] NSWDC 847

District Court

New South Wales

Medium Neutral Citation:	R v Naji [2019] NSWDC 847
Hearing dates:	30 September 2019
Date of orders:	30 September 2019
Decision date:	30 September 2019
Jurisdiction:	Criminal
Before:	ML Williams SC
Decision:	A term of imprisonment of 2 years with a non-parole period of 14 months: at [11].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous conviction SENTENCING — Penalties — Imprisonment SENTENCING — Probation and parole — Revocation of parole SENTENCING — Relevant factors on sentence — Deterrence — General principles — Multiple offences — Totality re existing offences — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Osenkowski (1982) 5 A Crim R 394 R v Parente [2017] NSWCCA 284
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Ibrahim Naji (Offender)
Representation:	Mr A Wilczek (Solicitor for the Crown)   Mr M Fokkes (Counsel for the Offender)
File Number(s):	2018/61544
Publication restriction:	Nil

Judgment

1. Ibrahim Naji, aged 35, appears for sentence having been found guilty by a jury of one count of supplying 17.4 grams of cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act1985, which carries a maximum penalty of 15 years imprisonment with no standard non parole period. There is a backup charge of possess 17.4 grams of cocaine, which is to be withdrawn at the conclusion of proceedings.

2. There was some debate during submissions on sentence following the jury’s verdict in August this year, about various times that the offender has spent in custody both in relation to this offence and in relation to other matters. This was complicated to an extent by the State Parole Authority, which revoked an intensive corrections order on 27 June 2019, with the effect that he is serving a sentence of full time custody expiring 25 April 2020. The sentence proceedings were adjourned to today pending the outcome of the State Parole Authority’s review of that decision on 4 September 2019. The State Parole Authority indicated that they declined to rescind the order and stood the matter over to 9 October 2019, that is next week, pending the results of today’s sentence proceedings. So rather than continue to play ping pong with the State Parole Authority, counsel are content for me to determine the matter today.

3. As a result of discussions with counsel on the last occasion it was fairly described as common ground that any term of full time custody might commence, in the exercise of my discretion and bearing in mind questions of totality, on 12 April 2019. Sentencing must of course take into account the purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Mr Fokkes, counsel for the offender, ultimately conceded on a number of occasions last time that full time custody was appropriate, and it is unnecessary for me to consider his faintly put alternative submission of an Intensive Corrections Order in those circumstances.

4. The Crown facts on sentence prepared following the trial are consistent with the jury’s verdict in my view. On 23 February 2018 police were executing a search warrant at a sixth floor apartment in Kogarah. When the Public Order and Riot Squad attended the unit the offender put his hand through a window and dropped a package on the ground six floors below. The package was found to contain five bags of cocaine totalling 17.43 grams. He denied that the item thrown out the window belonged to him and he said that he had stayed there the previous night and some of his belongings were in the front room. He initially denied throwing anything out of the window.

5. When he gave evidence at trial he said that he found the package when he was cleaning the house; he did not like the look of it, and he did not know what it was. He opened it, put it back, and did not want to have anything to do with it. He essentially denied knowledge of the cocaine, denied possession and he denied possessing for the purpose of supply. It is accepted by Mr Fokkes that the jury rejected a Carey defence, and found that the offender had possessed the drugs solely and not jointly with his cousin Mr Toohey or any other person.

6. His custodial record was the subject of considerable debate on the last occasion. He was on a section 9 bond for possessing a prohibited drug at the time of this offence. He committed a further offence on 27 June 2019 and was given a fixed two months sentence. He has a record for stealing property offences and relatively minor drug possession offences and domestic violence offences and served a significant term of three years and nine months with two years non-parole period for firearms offences.

7. He laid out his subjective circumstances in evidence before me. He worked in his father’s barber shop for a while, but his life took a turn for the worse when he was about 19 when he started taking drugs on a daily basis. He saved a fair bit of money while he was working and bought a house for $470,000. He then had a dispute with his family members and ultimately lost the house. He acknowledged that he wants to change the direction of his life and he said that he was prepared to comply with the domestic violence orders that remain in place. He denied on sentence that he had been dealing the drugs and proffered no alternative version.

8. It was common ground that the offending was below mid-range of objective seriousness and, as the Crown points out, in these circumstances general deterrence must figure significantly in the sentence. Sentencing must take into account principles affirmed in R v Parente [2017] NSWCCA 284. As Mr Fokkes points out there is no evidence of any indicia of supply which one frequently sees, namely no money, no text messages or laundry lists.

9. I have taken account of a number of reports from Community Corrections which are not strictly relevant to these proceedings, but they set out some subjective matters which are consistent with his evidence. Mr Fokkes gave me the statistics and the Crown provided an extract from the Public Defender’s website of sentences in a number of cases which I have taken into account.

10. Although not specifically addressed it is clear that the offender’s record is an aggravating factor. As to any mitigating factors his evidence shows that he has reasonable prospects of rehabilitation, if one accepts his desire to stay out of trouble. There are no other mitigating factors apparent or suggested by counsel. Mr Fokkes put that in a sense he was at the crossroads in Osenkowski ((1982) 5 A Crim R 394) terms and that there is a basis for a finding of special circumstances given his risk of institutionalisation and the need for an extended period of supervision.

11. The orders that I make are:

001 Supply prohibited drug

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 2 years, to commence on 12 April 2019.

3. I impose a non-parole period of 14 months, expiring on 11 June 2020.

4. I find special circumstances.

Section 166 certificate: 002 Posses prohibited drug

5. The back-up offence is withdrawn.

Bond call-up (H64280288): Possess prohibited drug

6. I take no further action

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 10 March 2020