R v Nchouki
[2022] ACTSC 227
•30 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nchouki |
Citation: | [2022] ACTSC 227 |
Hearing Date: | 10 August 2022 |
DecisionDate: | 30 August 2022 |
Before: | Mossop J |
Decision: | See [38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in cocaine – unlicensed driver – unregistered vehicle – uninsured vehicle on road or road related area – trafficking offence in the mid-range of objective seriousness – good prospects for rehabilitation – limited criminal history – general and specific deterrence are significant considerations – custodial sentence required – sentence of imprisonment imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP Criminal Code 2002 (ACT), s 603(7) Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1) |
Cases Cited: | Kelly v Ashby [2015] ACTSC 346 R v Harmouche [2020] ACTSC 194 R v Pahl [2022] ACTSC 113 |
Parties: | The Queen ( Crown) Jomal Nchouki ( Offender) |
Representation: | Counsel J Hiscox ( Crown) S Whybrow ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Offender) | |
File Numbers: | SCC 275 of 2021 SCC 276 of 2021 |
MOSSOP J:
Introduction
The offender, Jomal Nchouki, has pleaded guilty to the following offences:
(a)One count of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (CC2021/4561). The maximum penalty is imprisonment for 10 years, 1000 penalty units or both.
(b)One count of being an unlicensed driver, contrary to a 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC2021/4562). The maximum penalty is 20 penalty units.
(c)Two counts of using an unregistered vehicle, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) (CC2021/6343 and CC2021/6344). The maximum penalty is 20 penalty units.
(d)One count of using an uninsured vehicle on a road or road related area, contrary to s 289(1) of the Motor Accident Injuries Act 2019 (ACT) (CC2021/6345). The maximum penalty is 50 penalty units.
Facts
The facts are agreed and are in summary as follows.
Police commenced an investigation into the offender’s trafficking of controlled drugs in November 2020. His movements and communications were monitored. The offending to which he has pleaded guilty relates to the period 6 April 2021 until 1 May 2021. The movements of the offender and telephone records indicated that he was trafficking drugs to three men, although the Crown cannot prove the volume of drugs that were supplied to those three men prior to the time that he was arrested. Trafficking of an unknown quantity and value occurred on 9 April and 23 April 2021. The three men were onselling at least some of their drugs and had customers of their own. The identity of the person who supplied the cocaine to Mr Nchouki is unknown.
On 30 April 2021 at 11:26am the offender met one of the persons to whom he was supplying drugs, Mr Wood, at the Melba shops and gave him a green bucket. Police subsequently searched Mr Wood’s house and found a drug wrap with cocaine residue on it and the offender’s right ring finger fingerprint.
After the delivery to Mr Wood, police conducted a traffic stop of the offender’s vehicle (a Nissan Navara) which was towing a trailer. They executed a search warrant on him, his vehicle and his trailer. Inside the trailer they found four freezer bags and a cryovac bag each containing white powder. The white powder was subsequently tested and contained cocaine at between 61 and 66 percent purity. The total weight was 390.138 g. It was arranged in 1 oz amounts. They also found $1567.70 on the offender. The offender was arrested. The same day the police searched another vehicle of his and a clip seal bag containing cocaine was found inside the fuel cap of the vehicle. It contained 18.34 g of material which contained cocaine at 25 percent purity. DNA on the clip seal bag provided extremely strong support for the proposition that the offender was a contributor to the DNA profile obtained.
The total weight of cocaine seized was 408.478 g. If sold in 1 g deals, the cocaine would be worth between $119,685 and $159,580.
As at 30 April 2021 the Nissan Navara’s registration had been expired since 27 December 2020. This gives rise to the offences of driving unregistered and uninsured CC2021/6343 and CC2021/6345. The offender’s licence had been inactive since 17 April 2021. This is the offence of driving unlicensed CC2021/4562. The trailer was registered in someone else’s name and its registration had expired in September 2017. This is the further offence of driving unregistered, CC2021/6344.
Objective seriousness
The trafficable amount of cocaine is 6 g. The commercial quantity of cocaine is 3 kg (see Sch 1 of the Criminal Code Regulation 2005 (ACT)). The quantity of cocaine possessed was substantial. The offender was a mid-level dealer supplying to others who then onsold cocaine. He was doing so in order to support his own habit as well as to pay drug debts. The evidence does not establish that he was profiting from the dealing in a way that went beyond those purposes. The offending is in the mid-range of objective seriousness for this offence.
Subjective circumstances
The offender’s subjective circumstances are outlined in a pre-sentence report dated 12 July 2022, a psychological assessment report of Professor Douglas Boer dated 4 July 2022, a letter from Ms Leesa Morris dated 13 July 2022, a radiology report, a document from Dr Mark Porter confirming planned surgery, an MRI report and six character references. The offender and his partner also gave oral evidence.
The offender was born in Canberra. He had a positive and supportive relationship with both parents and his five siblings, all of whom reside in the Australian Capital Territory. The offender was largely raised by his brothers due to his parents frequently being absent on work or social engagements. His brothers often attracted the attention of police during his adolescence. It was through his brothers that the offender was introduced to alcohol and illicit substances.
The offender has been in a relationship with his current partner for approximately seven years. They have two children together, a son aged one and a half years old and a daughter aged five months old. He described this relationship in positive and supportive terms and cited his partner as a major positive influence upon his life. Prior to the offender’s arrest, things between them had been difficult. His partner had become aware of his drug use some five months before his arrest and had separated from the offender. She had moved out along with their young son two weeks prior to his arrest.
The offender currently resides in a granny flat, situated at the rear of his sister’s residence in Theodore. The offender and his partner own an apartment in Denman Prospect, which they are currently renting out to tenants.
He completed his Year 12 Certificate before obtaining a Certificate III in carpentry at the Canberra Institute of Technology. The offender has a consistent history of employment in the construction industry, primarily as a carpenter. Prior to working in the construction industry, he worked sporadically in the hospitality industry and was a professional rugby league player for a period of three years with the Canberra Raiders.
The offender has a problematic history of alcohol consumption and illicit substance use. The offender commenced the consumption of alcohol at the age of 18. By the age of 25 he was consuming between six and 10 standard drinks every second day and associated this increase with his corresponding use of illicit substances.
The offender identified his primary drugs of choice to have been methylenedioxymethamphetamine (MDMA), cocaine and cannabis. He commenced consuming MDMA at 20 years of age, consuming four to five pills each weekend within a social context. He reported continuing his use of this substance until being remanded into custody in May 2021 and advised that by that time his usage had increased to 4 or 5 g per fortnight, which he equated to being between 40 and 50 capsules.
The offender reported that he commenced the consumption of cocaine from the age of 21. He stated that he had initially consumed between 1 to 2 g each fortnight by inhaling the substance, however, by the age of 25 he was smoking between 10 to 12 g of the substance each week. The offender has not previously engaged with alcohol or other drug programs or counselling. However, he expressed a willingness to engage with these services in the future.
The offender agreed with the police statement of facts. He acknowledged that he had been under the influence of illicit substances at the time of committing the offences and cited work and relationship pressures as having contributed to his actions. He acknowledged the risks that his actions had represented to the wider community and the strain that his use of illicit substances had placed upon his relationship with his partner. In oral evidence he explained that he was trafficking in order to both fund his own habit and pay off his pre-existing debts to his drug supplier.
The author of the pre-sentence report assessed the offender as a medium-low risk of general reoffending. The offender is assessed as being suitable for a good behaviour order with a medium-low level of intervention. He is also assessed as suitable for a community service work condition and an intensive correction order.
The report of Professor Douglas Boer, clinical psychologist, identifies that the offender meets the criteria for a DSM-5 diagnosis of stimulant use disorder, specifically, severe cocaine use disorder, in sustained remission. The offender is also reported to meet the criteria for a DSM-5 diagnosis of Major Depressive Disorder, of a severe nature, with recurrent episodes and Anxious Distress. Although compliant with medication, the offender did not report functioning that would suggest he was in remission. In addition, the offender met the criteria for dependent personality disorder, in part due to insecure attachment with his parents and dependence on his siblings for care and nurturance growing up. The criteria of and consequences of dependent personality disorder were not explained in Professor Boer’s report.
Professor Boer expressed the opinion that the offender’s diagnosis of stimulant use disorder, specifically severe cocaine use disorder, in the lead up to the commission of the offences and at the time of the offences, helped to explain his offending. The offender reported that he was addicted to cocaine for several years up to the time of his arrest and that his need for increasing amounts of cocaine lead to drug debts and the eventual decision to begin selling cocaine. Professor Boer expressed the opinion that the offender was suffering from Major Depressive Disorder, of a severe nature, at the time of the offences as well as dependent personality disorder. He reports that these untreated conditions can result in problems in problem solving, concentration and making responsible decisions. While there was some association between the offending and his mental health conditions and they, to some extent, help explain his offending, I do not consider that they reduced his moral culpability in any significant way. Professor Boer assessed his overall risk of general reoffending as low in accordance with the Level of Service Inventory-Revised assessment tool.
A letter from Ms Leesa Morris, forensic psychologist, indicates that that offender has attended three psychological intervention sessions since 3 May 2022 and that the offender “is an engaged client who is eager to improve his life and treatment outcomes are likely to be positive”.
References for the offender were given by his partner, his partner’s sister, the offender’s elder sister, a rugby friend and two other friends. Those references provide some further insight into his personal circumstances and the support that he retains from his family and friends. They indicate that the return to playing rugby league is a sign of his rehabilitation and they attest to the significance he now places upon his family.
For the offender, the return to playing rugby league was a good sign, however, within six weeks of recommencing first grade he had injured his knee. This was approximately four weeks prior to the sentencing hearing. The surgery was scheduled for 18 August and a follow-up appointment was booked for 26 August. The parties agreed that if I was contemplating a sentence involving full-time custody, I should defer giving sentence until after the surgery. As I had not determined how to deal with the matter on the day of sentencing submissions, I adjourned my decision until today, 30 August 2022.
The offender struck me as engaging, with considerable insight into his own circumstances, including his past drug addiction, and genuine in his desire to rehabilitate himself. He described his arrest as having saved his life and his time in custody as having given him time to appreciate life and family. His partner also impressed me as a stabilising force in his life who would not readily tolerate a return to drug use.
Criminal history
The offender’s criminal history is limited to three driving related offences in December 2016. These are driving an uninsured vehicle, driving an unregistered vehicle and driving while his licence was suspended.
Plea of guilty
The offender pleaded guilty to the four driving related offences on 19 November 2021 in the Magistrates Court. Those charges were transferred to this court under s 90B of the Magistrates Court Act 1930 (ACT). These pleas of guilty will be taken into account in determining the sentence.
The offender pleaded guilty to the trafficking offence following a criminal case conference on 21 April 2022. It is appropriate that he received a discount of 20 percent on account of the plea of guilty to the trafficking offence.
Time in custody
The offender was remanded in custody from the time of the arrest on 30 April 2021 until being granted bail on 6 May 2021. The offender has spent a total of seven days in custody in relation to these offences. He was also arrested and spent a day in custody as a result of an allegation of a breach of his bail conditions. That allegation was not pursued.
Since his arrest, his bail conditions have included a curfew. While this has obviously involved a substantial restriction upon his freedom, the rehabilitative consequences of this restriction have been positive.
Consideration
The submissions made on behalf of the parties were very similar, really only departing on the question of the ultimate disposition. The submissions made by the offender were directed to the potential to serve a custodial sentence by way of intensive correction in the community. On the other hand, the submissions of the Crown were that, having regard to the objective seriousness of the offending, a period of full-time custody was required.
Obviously, the various purposes of sentencing pull in different directions. There is a clear need for general deterrence of this sort of serious drug trafficking. A particular feature of the present case is that actual trafficking is proved, as is the fact that those to whom the drugs were trafficked were themselves dealers. Notwithstanding the current circumstances of the offender which involve a degree of stability, a supportive partner and a focus on family life, for somebody with a long history of drug use such as his, specific deterrence remains a consideration. On the other hand, the current subjective circumstances of the offender indicate significant protective factors and good prospects for rehabilitation. It is necessary to have regard to the fact that he has young children and a supportive partner who provide motivation for his rehabilitation and who would obviously be substantially affected by a sentence of imprisonment. Further, he has a knee injury which has required surgery.
Comparable cases indicate a pattern of sentencing which includes dispositions by way of intensive correction orders as well as partially suspended sentences. Recently I dealt with a trafficking offender in somewhat similar circumstances in R v Pahl [2022] ACTSC 113. He was somewhat younger than the offender and his subjective circumstances were somewhat more favourable than the offender’s. The circumstances were unusual enough to warrant dealing with the matter by way of a combination sentence involving a very substantial fine, a substantial period of community service as well as a sentence of imprisonment served by way of an intensive correction order. R v Harmouche [2020] ACTSC 194 involved a 20-year-old with no criminal record who possessed 389 g of a substance containing cocaine. The role of the offender in the sale of the drug was undetermined. He had a low risk of reoffending. Murrell CJ accepted the Crown submission that a sentence served entirely in the community would be inadequate and inappropriate given the offence it was one of drug trafficking involving a substantial quantity of cocaine.
Mr Wood, to whom the offender supplied cocaine and who onsold it, was found in possession 52 g of material containing cocaine. He was given a 16-month sentence of imprisonment in the Magistrates Court on 24 November 2021, to be served by an intensive correction order. The sentence appears to reflect a starting point for the sentence of 20 months’ imprisonment.
Ultimately the objective seriousness of the offending and consequent need for general and specific deterrence is such that I consider that a period of full-time custody is required and therefore that a disposition by way of intensive correction order is not appropriate. However, I am mindful that a long period of imprisonment will not well serve the offender or the community. Indeed, a long period in custody may well set back his rehabilitation as a result of the associations that he makes in custody, particularly in circumstances where his brothers, who share his surname, have spent time in custody. For these reasons it is appropriate that the sentence be suspended after a short period of imprisonment, recognising, ultimately, the strong interest of the community in his rehabilitation. The suspension of the sentence will allow a period of supervision in the community. That will allow reinforcement of the steps he has taken towards becoming permanently free of what has been a long-term difficulty with illicit drugs and the consolidation of his commitment to family life.
The sentence will be backdated by eight days to take into account the time he spent in custody on remand or as a result of the allegation of a breach of bail.
The starting point is a sentence of imprisonment of two and a half years (30 months) reduced by 20 percent on account of the plea of guilty to 24 months. That sentence will be suspended after having served four months’ imprisonment.
Each of the other charges will be dealt with by way of fine. In the circumstances of this case it is appropriate that he be allowed no time to pay. The effect of allowing no time to pay and the consequences of s 116ZP of the Crimes (Sentence Administration) Act 2005 (ACT) are described in Kelly v Ashby [2015] ACTSC 346 at [74].
Orders
The orders of the Court are as follows:
1. On the charge of trafficking in a controlled drug other than cannabis, namely cocaine (CC2021/4561), the offender is convicted and sentenced to imprisonment for two years commencing on 22 August 2022 and ending on 21 August 2024.
2. The sentence of imprisonment is suspended after the offender has served four months of imprisonment upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the condition that he be subject to supervision of the Director-General and obey all reasonable directions of the Director-General for that period or such shorter period as determined by the Director-General.
3. On the charge of using an unregistered registrable vehicle (CC2021/6343), the offender is convicted and fined $500 and allowed no time to pay.
4. On the charge of using an unregistered registrable vehicle (CC2021/6344), the offender is convicted and fined $250 and allowed no time to pay.
5. On the charge of using an uninsured motor vehicle (CC2021/6345), the offender is convicted and fined $2000 and allowed no time to pay.
6. On the charge of being an unlicensed driver (CC2021/4562), the offender is convicted and fined $500 and allowed no time to pay.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 11 October 2022 |
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