R v Negah
[2019] ACTSC 243
•29 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Negah |
Citation: | [2019] ACTSC 243 |
Hearing Date: | 26 June 2019 |
DecisionDate: | 29 August 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [69] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – criminal history – where offender was on conditional liberty – where amount of illicit substance was substantial |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 161 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 63, 71 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 |
Parties: | The Queen (Crown) Suliman Negah (Offender) |
Representation: | Counsel E Wren (Crown) H Hayunga (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 62 of 2019 |
LOUKAS-KARLSSON J
Introduction
On 13 May 2019, Suliman Negah (the offender) pleaded guilty to an offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine (CC2018/14939) contrary to section 603(7) of the Criminal Code 2002 (ACT) (Criminal Code).
The maximum penalty for this offence is 1,000 penalty units, imprisonment for 10 years, or both.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. What follows is a summary.
On the morning of 21 December 2018, the offender received a message from an unknown person stating “Pheasants Nest NSW 711”. On the same day, police obtained search warrants for the offender and for a grey Mazda 3 sedan. The car had been loaned to the offender the day before without the owner of the vehicle being told the purpose for which it was being borrowed.
Between 12:36pm and 3:00pm on 21 December 2018, the offender travelled from the Sydney region to the ACT in the borrowed car. At approximately 3:00pm, the offender was stopped by police conducting random breath testing on the Federal Highway. Shortly after, additional police attended and executed the search warrants.
In the boot of the car underneath carpet covering the spare wheel well, police located a plastic bag, inside which was a smaller clear bag with a clip seal bag inside it containing a white crystalline substance. A presumptive test conducted at the scene was positive for methylamphetamine. The package subsequently underwent analysis and was found to contain 983.8g of methylamphetamine with purity testing producing a result of 58.7%, making a pure weight of 577g.
The offender denied knowledge of the package located in the boot and told police he had never touched it.
Police conducted a digital forensic examination of the offender’s mobile phone, during which they located messages on an encrypted application called ‘Signal’ which suggested he was involved in the buying of illicit drugs on 8 December 2018. In addition, data on the offender’s phone suggested he was in financial difficulty, including:
(a)messages on 23 November 2018 from debt relief and loan companies;
(b)messages sent on 23 November 2018, 16 and 20 December 2018 indicating he had been lent money by an associate and the associate had made several enquiries as to when it would be paid back;
(c)internet search history revealing the offender accessed websites of a number of loan and finance companies and had used search terms such as “need money now”, “sign up real pokies get money”; and
(d)internet search history revealing between 23 November 2018 and 16 December 2018 the offender accessed various gambling websites.
In addition, the search revealed that on 7 December 2018 the offender had made a number of online searches for information regarding the presence of methamphetamine in one’s system.
10. During his subsequent record of interview the offender denied knowing the last name of the person from whom he borrowed the car, denied that he owed money to anyone other than the associate referred to above (whom the offender stated had lent him $300 with which to gamble), and denied that he had sent the messages on the Signal application. The offender suggested that it was a friend who used his phone that sent the messages.
11. DNA testing on the packaging located in the car did not identify the offender, but two of the offender’s fingerprints were identified on the outer bag.
Objective Seriousness
12. The prosecution referred to the decision of Bui v The Queen [2015] ACTCA 5 (Bui) for the principles relevant for the sentencing of drug traffickers and objective seriousness at [41]:
Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50; [33].
(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.
13. In respect of the amount of the drug, it was submitted that this was a factor of relevance although not determinative (Zdravkovic v The Queen [2016] ACTCA 53 (Zdravkovic) at [26]). The prosecution submitted that the amount trafficked in this case was 163 times the trafficable quantity. Of the 983.8g in total, 577g was pure methylamphetamine. I note by way of comparison, the amount of 983.8g is 33% of the prescribed commercial quantity, 3 kg, of the same substance (Criminal Code Regulation 2005 (ACT), Schedule 1). I again underline in this context the observations of the High Court in Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong).
14. In addition, it was submitted by the prosecution that given the size of the package, the quantity of the drugs would have been obvious to the offender, if not the purity (see Zdravkovic at [27]). The prosecution submitted the value of the drugs was somewhere between $172,000 and $740,372. It was noted with respect to the lower figure that this was “a very conservative view” and that the amount was significant. It was submitted that the quantity and relative purity represented a potentially significant harm to the community.
15. In respect of the motivation of the offending, the prosecution submitted that the suggestion it was done as a favour for a friend, as noted in the pre-sentence report (PSR), effectively minimises the offender’s culpability. It was submitted that “no weight” (T 8.12) should be placed on his version as, first, the statement is self-serving, not tested in any way and the authorities require it to be treated with caution (citing R v Quatami [2001] NSWCCA 353; 127 A Crim R 369; Imbornone v R [2017] NSWCCA 144; Munro v R [2006] NSWCCA 350). Second, it was submitted that the version is inconsistent with the agreed facts which establish the offender was in a dire financial situation and had a history of gambling addiction and that therefore it could be inferred there was a financial motivation to the offending.
16. Putting aside the offender’s version of the events, the prosecution submitted there was limited evidence in respect of the role the accused played in the trafficking process, but submitted that given the significant value and quantity of the drugs, if he acted only as a courier, it should be assumed he was nevertheless a trusted member of the operation (R v Hoang [2016] ACTSC 272 at [15]). It was further submitted that even those at low levels play a vital role (Bui at [11]).
17. Ultimately, the prosecution submitted that given the amount of the substance, the offending was “towards the higher range of objective seriousness” (T 9.43).
18. Counsel for the offender submitted that the facts establish the offender’s role was limited to that of a courier and that his role was “at a lower level and unsophisticated”. It was accepted that the quantum involved was significant as was the potential value, but it was submitted it was otherwise difficult to establish where this offending sits with the “very wide range” of conduct encompassed by the offence.
19. It was, however, accepted by counsel for the offender that it was open for the Court to find that there was a financial motivation for the offending (T 19.27).
20. I find that there was a financial motivation for the offending and the offender’s role was that of a courier. Given the significant value of the drugs, he was a courier in whom trust was placed.
21. I find the offence to be of mid-range.
22. Nevertheless, it must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo’ua)). I have discussed the identifying features above.
Subjective Circumstances
23. In evidence before me is the PSR prepared for the offender.
24. The offender is 27 years old, was born in Afghanistan and is an only child from his parents’ union. His father died when he was 2 years old due to armed conflict in that country, after which the offender and his mother, having relocated to several countries, settled in Australia in 2003 and became citizens in 2008.
25. The offender normally resides with his mother and records indicate she is a frequent visitor to the Alexander Maconochie Centre where the offender has been incarcerated.
26. The offender left school prior to completing Year 12 and has since been employed in the construction industry, an industry to which he intends to return.
27. The offender commenced cannabis use at 19 years of age and used the substance on a daily basis. He admitted to the use of MDMA, cocaine and methamphetamine on an inconsistent basis and did not consider their use to be problematic. The offender reported he ceased using illicit substances in July 2017 and when subject to frequent urinalysis on parole, commencing on 22 August 2018, returned negative results.
28. The offender commenced drinking alcohol at the age of 15 and admitted to binge drinking, mainly on weekends, consuming up to 18 standard drinks per sitting. Between the ages of 18 to 19, the offender reported drinking on a daily basis. The offender acknowledged the impact of drinking on his behaviour and ability to remain employed. The offender reported he ceased drinking at age 19. Tests conducted for the PSR indicated the offender was a “low” risk with respect to his alcohol and substance use.
29. The offender is being treated with anti-depressant medication. He further reported an issue with gambling which he reported had an impact on his offending behaviours for which he expressed some interest in seeking treatment.
30. The author reported that the offender accepted full responsibility for the offending and understood the impact on the community. The author indicated that the offender’s gambling addiction may have played a role in the offending.
31. The author concludes that the offender is at a medium risk of general reoffending, noting the criminogenic risks of employment, gambling and financial stress, associates and orientations towards offending. The author noted the offender displayed “limited insight” into the offending and knew the conduct was illegal when it was carried out.
Remorse
32. The PSR notes that the offender accepts responsibility for, and understood the impact of, the offending. In that sense remorse is limited.
Conditional Liberty
33. At the time of the offence, the offender was on parole for offences including: attempting to pervert the course of justice, committing an act of indecency without consent, damage to property, burglary, forcible confinement and common assault.
34. The offender was released on parole on 22 August 2018, with a balance of 10 months and 25 days to serve. On 5 February 2019, the offender’s parole was revoked, at the request of the offender. The Crown Tender Bundle indicates that on that date Sentence Administration Board ordered, under s 161 of the Crimes (Sentence Administration) Act 2005 (ACT), that the offender serve a term of imprisonment of 10 months and 25 days, ending on 29 December 2019.
35. The prosecution submitted that the breach of conditional liberty was a “serious aggravating feature”, and that it represents a “betrayal of the opportunity for rehabilitation” (R v Tran [1999] NSWCCA 109) but that double punishment is to be avoided (Kelly v Ashby [2015] ACTSC 346; 73 MVR 360). I accept this submission.
36. The commission of the offence while on conditional liberty is an aggravating factor on sentence: see R v Bandy [2018] ACTSC 261 (Bandy) at [27]-[30].
37. I take this into account as an aggravating factor on sentence while avoiding double punishment.
Criminal History
38. The offender has a criminal history dating back to a 2006 offence in the Children’s Court, including convictions for property offences, offences of violence, driving offences, breaches of good behaviour orders and the offences referred to above, for which the offender was on conditional liberty.
39. The offender’s most recent sentence, for which he is currently serving a period of revoked parole, is as follows:
| Offence | Date of offence | Sentence | Start and finish dates |
| Common assault | 8 June 2016 | 6 months | 18 December 2016 – 17 June 2017 |
| Damage to property | 10 June 2016 | 3 months | 18 January 2018 – 17 April 2018 |
| Burglary | 10 June 2016 | 9 months | 18 June 2017 – 17 March 2018 |
| Forcible confinement | 10 June 2016 | 9 months | 18 June 2017 – 17 March 2018 |
| Common assault | 10 June 2016 | 4 months | 18 June 2017 – 17 October 2017 |
| Act of indecency | 10 June 2016 | 15 months | 18 July 2017 – 17 October 2018 |
| Attempt to pervert the course of justice | 11 July – 11 November 2016 | 12 months | 18 July 2018 – 17 July 2019 |
Plea of Guilty
40. The offender entered a plea of guilty on 13 May 2019, following a committal for trial but prior to a trial date being set. While the prosecution conceded this was indicative of a willingness to facilitate justice and has a utilitarian value, it was submitted this should be viewed against the “strong prosecution case” (in particular noting the presumption under s 604 of the Criminal Code).
41. Counsel for the offender accepted that the plea was not entered at an early stage (T.17.3), but nevertheless submitted a discount in the range of 15 to 20% was appropriate. The prosecution accepted that this range was not an “unrealistic” submission (T 18.1).
42. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].
43. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50]
44. I therefore allow 20% discount for the plea of guilty.
Cases
45. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
Considerations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent
46. I was referred to the following cases by the prosecution.
47. In R v Zhao [2017] ACTSC 385, the 40 year old offender pleaded guilty to four counts of trafficking in a controlled drug other than cannabis: 358.9g of methamphetamine, 191.7g of heroin, 665g of methamphetamine, 521.9g of methamphetamine, respectively. The offences occurred across a number of occasions. The offender had no relevant criminal history, claimed to have a gambling problem and had made progress towards rehabilitation whilst on remand. In respect of the four counts the offender received 2 years and 3 months, 16 months, 3 years and 2 months and 2 years and 6 months, each reduced by approximately 10% for the pleas of guilty. He was given an aggregate sentence of 5 years imprisonment, with a non-parole period of 3 years. A sentence appeal was dismissed (Zhao v The Queen [2018] ACTCA 38).
48. In R v Le Pavoux [2017] ACTSC 330, the 31 year old offender pleaded guilty to a number of offences including trafficking 229.72 grams of methamphetamine. He was caught selling it to undercover police officers. The offender was a regular drug user, was remorseful and had made attempts at rehabilitation. The offender was described as having “a very large number of traffic, driving and dishonesty offences associated with driving”: [37]. Following a discount of approximately 25% for the plea of guilty, the offender received a sentence of 23 months imprisonment for the trafficking offence. After having imposed sentences for the additional offences, the offender’s sentence was partly suspended after approximately a year upon entry into a good behaviour order.
49. In R v Bui [2014] ACTSC 182 the 46 year old offender pleaded guilty to two charges of trafficking in a controlled substance other than cannabis: 425.24g of methamphetamine and what was described as a “small scale” (at [6]) supply of heroin. The offender was found to be a drug user at the time of the offences, demonstrated remorse, was a gambler, had a minor criminal history and was considered to have reasonable prospects of rehabilitation. Following a discount of 15%, the offender received sentences of 4 years and 10 months imprisonment and 15 months imprisonment, respectively, with a non-parole period of 3 years and 2 months. An appeal on the ground of manifest excess was dismissed (Bui).
50. In R v O’Brien [2014] ACTSC 156, the 52 year old offender pleaded guilty to a number of offences, including: dealing with the proceeds of crimes, unlawful confinement, assault occasioning actual bodily harm, attempting to pervert the course of justice and trafficking 931g of cocaine. The offender had a lengthy criminal history and the sentencing judge did not find the plea exhibited remorse and found the Crown case was “very strong” (at [23]). After a discount of 10%, the offender was sentenced to 6 years imprisonment for that offence. The sentencing judge also took into account additional offences in his sentencing consideration of the trafficking charge. After receiving a total sentence for all offences of 12 years and 11 months, the non-parole period was at eight years and four months. An appeal on the ground that the sentence was manifestly excessive was dismissed (O’Brien v The Queen [2015] ACTCA 47).
51. In R v Nguyen (Supreme Court of the Australian Capital Territory, Penfold J, 5 April 2012) (Nguyen) the 30 year old offender was convicted of trafficking 71.2g of methamphetamine and 6.159g of MDMA. The offender was not found to have expressed remorse but had made some efforts at rehabilitation, it was also noted the offender began using heroin at age 13 and his own father died of an overdose. The offender was sentenced to four and half years and two and half years’ imprisonment, respectively, to be served concurrently. A non-parole period of 2 years was imposed.
52. In R v Silkeci (Supreme Court of the Australian Capital Territory, Nield AJ, 16 February 2011) the 37 year old offender pleaded guilty to one count of trafficking 114g of methylamphetamine. The offender did not plead at an early stage but had no criminal history, had a gambling addiction, expressed remorse and had taken steps towards rehabilitation. After a discount of 10%, the offender received a period of imprisonment of 2 years and 3 months, apportioned into periodic detention of 1 year and 3 months and a suspended sentence for 1 year. In respect of this case the prosecution submitted that it would be difficult to make the comparison to the present case given the differences between the cases.
Statutory and Other Relevant Considerations
53. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
54. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and rehabilitation are important sentencing considerations.
55. The prosecution submitted that in drug trafficking offences, general deterrence is afforded significant weight Zdravkovic at [62]; Wong; DPP (Cth) v El Karhani (1990) 21 NSWLR 370; R vTang [1998] 3 VR 508; R vTait (1979) 24 ALR 473. In addition, it was submitted that specific deterrence, adequate punishment and denunciation were “of primary consideration”. I take into account the above matters.
56. In respect of rehabilitation the prosecution submitted:
While the offender is still a relatively young man and is not beyond rehabilitation, his prior criminal history and the opportunities that have been afforded to him to address his criminogenic factors suggest that his prospects of rehabilitation at this stage are still guarded.
57. I accept that rehabilitation prospects are guarded at this stage.
58. Counsel for the offender’s submission that the evidence of a gambling addiction by the offender will be a relevant subjective matter for the Court in considering rehabilitation and the structuring of any sentence. I accept there is potential for rehabilitation.
59. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. The prosecution submitted that given the objective seriousness of the offence and the criminal history of the offender, the appropriate sentence would be one of fulltime imprisonment. In this case, an alternative to full-time custody is not appropriate in my view.
60. In respect of totality and concurrency with the existing sentence, the prosecution submitted there should be “a level of concurrency” (T 11.36), “some degree of concurrency” (T 11.43), or “a degree of concurrency” (T 18.13). Counsel for the offender submitted that a “substantial” overlap was warranted to reflect the principle of totality.
61. I accept the prosecution’s submission that some concurrency is appropriate. I accept the offender’s concession that “100% overlap is in all the circumstances not indicated” (T 16.44).
62. I take into account the principle of totality as discussed in Mill v The Queen [1988] HCA 7; 166 CLR 59 at [62]-[63], and the recent observations in the case of Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [61]-[65], in the process of both structuring the sentence and then reviewing the overall result to determine whether that adequately reflects the totality of criminality involved in relation to the pre-existing sentences and the current sentence. I also pay regard to s 63 Sentencing Act in relation to the start of sentences and backdating sentences: see R v Lockwood [2018] ACTSC 288 at [47].
63. Finally, as with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Time in Custody
64. The offender has spent 46 days in custody solely referable to this offence, as bail was refused on 21 December 2018. As noted above, on 5 February 2019, the offender’s parole was cancelled at his request to serve the balance of the parole period, being 10 months and 25 days, expiring on 29 December 2019.
65. Accordingly, and taking into account totality with the existing sentence, I propose to backdate the sentence to 14 May 2019.
Sentence
66. It must be recognised by the Court that the offence is serious. There is no doubt that the offence of drug trafficking requires general deterrence, the human misery that feeds illegal drug trafficking is well known to the courts: Nguyen.
67. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, the subjective matters and totality.
68. The appropriate sentence for the offence of trafficking in a controlled drug other than cannabis is 5 years reduced to 4 years on account of the discount for the plea of guilty. The sentence will incorporate both concurrency and accumulation, pursuant to s 71(2) of the Sentencing Act.
Order
69. I make the following orders:
(a)I record a conviction in relation to the offence.
(b)In respect of the offence of trafficking in a controlled drug other than cannabis (CC2018/14939), the offender is sentenced to a term of 4 years of imprisonment, commencing on 14 May 2019 and ending on 13 May 2023.
(c)I set a new non-parole period to expire on 14 May 2021.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson Associate: Date: |
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