R v Safi; R v Aswad

[2019] NSWDC 231

District Court

New South Wales

Medium Neutral Citation:	R v Safi; R v Aswad [2019] NSWDC 231
Hearing dates:	5 April 2019
Date of orders:	26 April 2019
Decision date:	26 April 2019
Jurisdiction:	Criminal
Before:	Sweeney DCJ
Decision:	Mr Safi – Sentenced to an aggregate sentence of 5 years 6 months imprisonment with a non-parole period of 3 years imprisonment.  Mr Aswad - Sentenced to an aggregate sentence of 4 years 6 months imprisonment with a non-parole period of 2 years 6 months imprisonment.
Catchwords:	Drug supply offences – significant rehabilitation – pleas of guilty - delay
Category:	Sentence
Parties:	Regina (Crown)   Badaoui Safi (Offender) Marc Aswad (Offender)
Representation:	Counsel:   Mr R. Simone (Crown) Mr G. Stanton (Offender )
File Number(s):	2014/000384282014/00039114
Publication restriction:	Nil

SENTENCE

1. HER HONOUR: Marc Aswad and Badaoui Safi pleaded guilty in this court to two charges for which they appear for sentence today. They were supplying 15.82 grams of 3,4 MDMA on 23 December 2013 at Leichhardt and supplying a commercial quantity of cocaine, 258.57 grams, on the same date and at the same place. The first offence has a maximum penalty of 15 years imprisonment and the second a maximum penalty of 20 years imprisonment and a standard non parole period of 10 years imprisonment is prescribed.

2. Mr Safi also asked that when I sentence him for the second offence I take into account three offences on a Form 1, being dealing with the proceeds of crime, approximately $52,000 in cash, an offence of supplying 4.88 grams of cocaine and supplying 3,4 MDMA in the quantity of .8 of a gram. The applicable principle in taking those offences into account is that the sentence for the offence in count 2 must be increased to more than if I was dealing with that offence alone, the amount of increase taking into account the circumstances and seriousness of the offences on the Form 1.

3. Mr Safi is also to be sentenced for 12 offences of possessing a prescribed restricted substance. Each of those offences has a maximum penalty of two years imprisonment.

4. The sentences proceeded on the basis of a joint agreed statement of facts which I summarise as follows,

5. On 23 December 2013 police searched a studio unit at Leichardt. It had been leased by Mr Aswad four months before. In the lease application Mr Aswad had stated he was employed by Mr Safi’s business. There were a few documents in the unit belonging to Mr Aswad, Mr Safi and another man Adrian Lyneham, whom I have sentenced previously. In the unit police found items consistent with the supply of prohibited drugs being vacuum sealers, hundreds of resealable plastic bags, scales, a notebook with workings consistent with a drug ledger, a calculator, prepaid phone SIM cards, powder and liquid which can be used to cut drugs, and numerous ANZ bank deposit bags.

6. Cocaine was found in a humidifier and several of eight safes in the unit in various quantities. Most of the cocaine was not tested for purity. Two quantities of cocaine totalling 152 grams were found to have a purity of 21 and 21.5%. The total quantity of cocaine in various safes was 258.7 grams. That is the subject of the offence in count 2. One of the safes contained 15.82 grams of 3,4 MDMA which is the subject of count 1 on the indictment. Another safe contained Valium and Xanax tablets and various steroids which are the subject of some of Mr Safi’s offences on the s 166 certificate.

7. Mr Aswad’s fingerprints were identified on a paper cup and the external door of the humidifier. CCTV records showed Mr Safi and Mr Aswad had entered the unit on at least 32 separate occasions from 12 November until 23 December 2013.

8. Police also searched Mr Safi’s home unit at Balmain. In the main bedroom police found $2,980 in a bank deposit bag on the floor and in a number of bank bags in a safe a total of $49,230. The total sum of cash found was $52,230. That is the subject of the proceeds of crime charge on the Form 1 and Mr Safi has consented to that sum of money being forfeited to the state. They also found some steroids which are the subject of charges on the s 166 certificate.

9. Police also searched Mr Safi’s car in the garage. In a tissue box in the centre console of the car police found several small plastic bags containing a total of 4.88 grams of cocaine and two small plastic bags containing 3 MDMA capsules weighing a total of .8 gram. Those drugs are the subject of the two supply drug charges on the Form 1, the drugs being deemed to be in Mr Safi’s possession for supply because of their weights.

10. In assessing the objective seriousness of the offences, the weight of the drugs is a relevant factor though not determinative of sentence. 15.82 grams of MDMA is a moderate quantity of that drug. Most of it had a purity of 10%, which is of low purity for that drug. The quantity of cocaine, 258 grams, is just over the commercial quantity threshold of 250 grams. The purity of 152 grams of the cocaine, 21%, is low purity for that drug.

11. The set-up of drugs in safes and the amount of drug packaging equipment in the unit suggested the enterprise was well organised, and the amount of money in the safe at Mr Safi’s home suggests it was lucrative. The parties agreed there was a hierarchy within the enterprise, although not a steep hierarchy, consisting of Mr Safi then Mr Aswad then Adrian Lyneham who drove around delivering drugs.

12. There is not a great deal in the facts from which to glean the conceded hierarchy but I do infer it from Mr Safi having the money, just over $50,000, at his place, and Mr Aswad having rented the unit which was being used to store the drugs and package them for distribution. Mr Aswad’s fingerprint on the door of the humidifier suggests he was involved in packaging the drugs. Both Mr Aswad and Mr Safi had attended the unit in the previous six weeks.

13. The nature and scale of the operation and that these two offenders were conducting the operation, with the assistance of Mr Lyneham, are factors which elevate the seriousness of the offence but because of the quantities of the drug in each offence I assess them as below the mid-range of seriousness by both offenders. Mr Aswad’s offence is less serious than Mr Safi’s because he was subordinate in the hierarchy. Because of that assessment of objective seriousness and the pleas of guilty I will not impose the standard non-parole period. Mr Safi’s offences of possessing steroids and prescription drugs on the s 166 certificate are, because of the nature and quantities of the substances, offences of low seriousness.

14. There are factors in the background of each offender which, according to psychologist Patrick McGee, led to the commission of these offences.

15. Mr Safi is 39 years old. At the time of these offences he had no prior record. He was born in Lebanon, though he is now an Australian citizen, having come to Australia with his family at the age of 12 and having completed university studies in computer science and business information systems. He told Mr McGee his father was demanding of him but emotionally unavailable, but also did not set boundaries on his behaviour.

16. In his pre-teen years, Mr Safi witnessed a friend accidentally shoot his sister dead and he has had nightmares and flashbacks about that event since. After he finished his studies Mr Safi began a computer technology company with two brothers he had met at university. Due to the brothers’ embezzling funds from the company the business failed. Then when a long term relationship ended, Mr Safi became depressed. He met some people who used drugs and began using psychoactive drugs, which relieved his depression and symptoms of post-traumatic stress disorder, and he continued to use them. In 2013, his marriage to a woman he had met in 2008 broke down and he again resorted to drug use. To fund his own drug use, Mr Safi supplied drugs. Mr McGee diagnosed Mr Safi with cocaine dependence with sustained full remission when he wrote his report in July 2018, and post-traumatic stress disorder as a result of the shooting death he witnessed when young. Mr McGee said in his opinion Mr Safi’s long-term cocaine use was precipitated by his confusion over his father’s ambivalence, his witnessing the shooting incident, the loss of his first serious girlfriend and the acrimonious breakdown of his marriage and the considerable financial loss from the fraudulent actions of his business associates and the loss of his business. He said the stresses of these events and Mr Safi’s resort to cocaine to escape from those stresses led to his cocaine dependence and to his committing the offences. He said therefore it was his opinion that at the time of Mr Safi’s offences he had a longstanding mental illness, post-traumatic stress disorder and cocaine dependency, which significantly contributed to and explained his offending behaviour. I will take that into account in sentencing Mr Safi. It distinguishes him from someone who commits similar offences without that background and those conditions.

17. At the time of his report in July 2018, Mr McGee said that Mr Safi had attended 81 sessions with him since 2015, and in a letter dated 4 April 2019 he said Mr Safi had continued to see him monthly since July last year. He said Mr Safi came to see him seeking assistance with long-term cocaine use, and throughout his sessions he had demonstrated a high degree of participation to realise his goal of abstinence from cocaine abuse. He said when he initially saw Mr Safi he was experiencing an “intense cluster of withdrawal symptoms” as a result of abstaining from cocaine. He said at the time of his July 2018 report he was of the view that Mr Safi was drug free, based on his demeanour throughout the session. He said Mr Safi had learned strategies to cope with stresses without using drugs, had made significant changes to his life, including deriving income from legal means, had responded to treatment for his post-traumatic stress disorder and had therefore reduced his need to resort to drugs, although he remained aware of his propensity to relapse. He said Mr Safi’s treatment had been “intense and over a long period”. The treatment described shows a marked commitment by Mr Safi to his process of rehabilitation.

18. Mr McGee was present in court during the sentence hearing to support Mr Safi and Mr Aswad, although he was not required for cross-examination by the Crown or to give evidence for the offenders. He said in his letter of 5 April 2019: “I am of the view that any custodial sentence will affect Mr Safi’s ongoing recovery. Mr Safi has made significant changes to his life and the chance of a relapse is highly unlikely. There is however a vulnerability that Mr Safi experiences and will do for some time”.

19. Mr Safi conceded through his counsel that a full-time custodial sentence was the only appropriate sentence for his offences, a concession properly made. However, his need for continued treatment with Dr McGee to maintain his rehabilitation is a special circumstance in his case to reduce his non-parole period from the statutory ratio, as is the fact that he suffers from a serious heart condition, constrictive pericarditis, which requires treatment and monitoring and will make his time in custody more onerous.

20. Mr McGee said Mr Safi is remorseful. Mr Safi also expressed remorse in a letter which was tendered without objection by the Crown and the Crown did not require him for cross-examination, expressed insight into the harm done to the community by drug use and his offending, and I take his remorse into account.

21. I note Mr Safi is in a relationship now of a few years duration and has been running a film making business as well as assisting his partner with an Airbnb business. I was told today his partner is now expecting their child. I will also take into account strict bail conditions Mr Safi complied with for some years, including a curfew and daily reporting. They were not such as to amount to quasi custody but Mr Safi’s compliance with them is another demonstration of his rehabilitation process. I do note that in 2017 Mr Safi committed some less serious offences related to possession of a drug, which shows that his rehabilitation was not completely straightforward, but overall as I have noted his devotion to his rehabilitation was significant.

22. Mr McGee the psychologist also prepared a report about Mr Aswad, including about events in his background which influenced his offending. He said Mr Aswad suffered severe back pain from an injury and was prescribed strong pain relieving drugs, on which he became dependent, and he also became addicted to cocaine. Mr Aswad disclosed to Mr McGee two episodes of sexual abuse when he was a child by two different people. According to Mr McGee he has not disclosed the details of those events to anyone else so I will say no more about them. They form part of the basis of Mr McGee’s opinion about Mr Aswad, which was why I needed to mention them.

23. Mr Aswad was born in Lebanon and experienced conditions of war and threats of violence as a child in Beirut. His father was absent fighting with a militia. He came to Australia in 2006, after having completed degrees in computer science. In Australia he completed a Master’s degree in computer information and technology. Mr McGee diagnosed Mr Aswad with adjustment disorder with anxiety, conduct disorder, and dysthymic disorder or persistent depression. He said he used drugs in part to anaesthetise his emotions about his sexual abuse. He said because Mr Aswad did not have his father present during critical periods of his development he made poor choices in friends and behaviour which led him to drugs and crime. He expressed the opinion that the circumstances which led to Mr Aswad’s offences were: the long term traumatic effects of growing up in an extremely dangerous environment in Beirut, emotional turmoil associated with undisclosed and unresolved sexual abuse as a child, the acquired addiction to the painkiller Tramadol and the subsequent addiction to cocaine, the stress associated with caring for his two children against the background of the previous circumstances, the breakdown of his marriage, and the state of his physical and mental health while he was using illicit drugs. These events, and his drug abuse led to, in Mr McGee’s opinion, his mental health problems in the form of adjustment disorder and dysthymia.

24. I accept Mr McGee’s opinion that traumatic events in Mr Aswad’s childhood and his dependence on painkilling drugs and cocaine compromised his mental health and contributed to his offending. I take it into account in sentencing him, as it distinguishes him from people who commit offences of the kind he did without that background and context.

25. Mr McGee said in his report in July 2018 that Mr Aswad had attended 75 sessions with him since May 2015 and then in an April update that Mr Aswad had continued to see him monthly since then. He said initially Mr Aswad was quite depressed and seemed to be suffering from drug withdrawal symptoms, but otherwise he appeared to be free of drug use. He said Mr Aswad has been committed to the process of rehabilitating himself from the abuse of illicit and prescription drugs.

26. Before he began seeing Mr McGee, Mr Aswad had attended a chronic pain clinic at Royal Prince Alfred Hospital, which helped him with his chronic back pain and to reduce his dependence on Tramadol and cocaine. Mr McGee said over the period of him treating Mr Aswad he saw a significant improvement in his demeanour and he is learning to cope with daily stresses without resorting to drug use. He said Mr Aswad has demonstrated a willingness to achieve long term sobriety from drugs and he believes his prognosis is promising and the possibility of him re-offending is extremely remote. He said a custodial sentence, with the absence of treatment, may exacerbate Mr Aswad’s illness.

27. Mr Aswad conceded through his counsel that a full-time custodial sentence is the only appropriate penalty for his offences. That is so, especially having regard to the need for general and specific deterrence to be reflected in sentences with drug supply offences. Nevertheless, I will take Mr McGee’s opinion into account in fixing Mr Aswad’s sentence and non-parole period.

28. Mr Aswad is 41 years old. He had one prior matter on his record, of driving while his licence was suspended, in 2008, which is of no moment in sentencing him for these offences.

29. His marriage has suffered as a result of his use of drugs and his offending. He has two young daughters and he is described as a devoted father. His separation from his daughters while he is in custody will make his time in custody more difficult.

30. He has been working full-time for the last 18 months for Betaview Aluminium Windows and Doors as their warehouse and inventory control. The general manager of the business commented favourably that he is valued for his reliability and his work ethic. Medical records show Mr Aswad has some degenerative conditions in his upper and lower spine. I was also provided with many reports of clean urine tests apart from the buprenorphine which Mr Aswad was prescribed and took to help him with his Tramadol addiction. The urine test reports dated from 2015 to 2017 confirmed that Mr Aswad had stopped using cocaine.

31. Mr Aswad has expressed remorse in a letter to the court, which was tendered without objection by the Crown and without Mr Aswad being required for cross-examination, and to Mr McGee, his family members and friends who wrote references. I accept his remorse is genuine. It is consistent with his efforts at rehabilitation.

32. I am told Mr Aswad complied with onerous bail conditions including a curfew and daily reporting for three years. They are strict conditions, They do not equate to quasi custodial conditions but I take into account Mr Aswad’s compliance with those conditions over a lengthy time as another demonstration of his rehabilitation, in addition to his significant commitment to that process in his attending the RPA pain clinic, stopping his use of Tramadol and cocaine, attending Narcotics Anonymous meetings and conscientiously attending Mr McGee for a long time.

33. There are special circumstances in Mr Aswad’s case to reduce his non parole period from the statutory ratio. They are that this is his first time in custody, Mr McGee’s opinion that he will require ongoing therapy to maintain his recovery from addiction, that he has been the primary carer for his two young daughters, and that his spinal condition will need care which will likely be less optimal in custody than he would be able to access in the community.

34. A significant time has passed since the offences for sentence occurred in December 2013, the arrest of Mr Safi and Mr Aswad in February 2014 and their sentence proceedings now. Part of the time was taken up by Mr Safi and Mr Aswad’s seeking to withdraw their pleas of guilty and then abandoning those applications but the Crown agreed that approximately one-third of the delay was not attributable to the offenders, so I have taken that into account in fixing their sentences.

35. Both offenders pleaded guilty to the charges on the day of their trial but had advised the Crown of the pleas a few days earlier. It appears the parties had agreed that an appropriate discount for the pleas in those circumstances was 12½%. In the circumstances that seems an appropriate discount and I will apply it to the indicative sentences, having decided that an aggregate sentence will be imposed on each offender. The aggregate sentence for each will involve some accumulation of the sentence for the two offences because they involve the supply of two different drugs, but there will be a high degree of concurrency of the sentences because the offences occurred at the same place and time.

36. I previously sentenced Adrian Lyneham who was driving and delivering drugs for these two offenders. The parties agree that parity is not strictly relevant. However there must be some relativity of sentences having regard to his offending and role relative to those of Mr Safi and Mr Aswad. Mr Lyneham was sentence for four offences. The first was supplying 57.2 grams of cocaine which was in his possession for supply in a car he was in. He pleaded guilty to that offence in the Local Court. Two other offences corresponded to the offences for which Mr Safi and Mr Aswad are to be sentenced. They are related to the drugs in the Leichhardt unit. Mr Lyneham pleaded guilty to those offences in this court, for which he received a 15% discount. He also had a proceeds of crime offence on a s 166 certificate relating to $31,000 in cash in his possession. He had a strong combination of subjective circumstances. He was sentenced in 2016 to suspended sentences. For the two offences which correspond to Mr Safi’s and Mr Aswad’s offences, the terms of the suspended sentence were 15 months for the supply of the MDMA and two years for the commercial supply of cocaine.

1. For Mr Safi, I indicate the following sentences: For the offence in count 1, two years imprisonment. For the offence in count 2 and taking into account the matters on the Form 1, 5 years imprisonment and a non-parole period of 3 years imprisonment. For the 12 offences on the s 166 certificate I record a conviction and impose no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act. The aggregate sentence will be 5 years 6 months imprisonment, the non-parole period 3 years imprisonment. The sentence must be backdated by the six days of pre-sentence custody.

2. Mr Safi, would you stand up please. I sentence you to 5 years 6 months imprisonment with a non-parole period of 3 years imprisonment to date from 20 April 2019 The non-parole period will expire on 19 April 2022.

3. With Mr Safi’s consent, I order that the sum of $52,230 in cash be forfeited to the State and be disposed of forthwith.

4. For Mr Aswad I indicate the following sentences: For the offence in count 1, 21 months’ imprisonment. For the offence in count 2, 4 years imprisonment and a non-parole period of 2 years 6 months imprisonment. The aggregate sentence is 4 years 6 months imprisonment, the non-parole period 2 years 6 months imprisonment. The sentence must be backdated by the eight days of pre-sentence custody.

5. Mr Aswad would you stand up please. I sentence you to 4 years 6 months imprisonment with a non-parole period of 2 years 6 months imprisonment to date from 18 April 2019. The non-parole period will expire on 17 October 2021.

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Decision last updated: 13 June 2019