R v Saleh

[2015] NSWDC 319

District Court

New South Wales

Medium Neutral Citation:

R v SALEH [2015] NSWDC 319

Hearing dates:

28/07/2015

Decision date:

31 July 2015

Jurisdiction:

Criminal

Before:

Judge S Norrish QC

Decision:

CONVICTED: Sentenced to a term of imprisonment of 5 years and 3 months with a non parole period of 2 years and 6 months.

 

s 166 Certificate – related matter
CONVICTED: Sentenced to a term of imprisonment of 12 months.

Confiscation Order pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989 – forfeiture of cash in the sum of $20,000.

Catchwords:

Criminal - Sentence, supply prohibited drugs (amphetamine), deal with proceeds of crime.

Legislation Cited:

Crimes Act 1900
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:

R v Blackman and Walters [2001] NSWCCA 121
R v Bloomfield (1998) 44 NSWLR 734
DPP v De La Rosa [2010] NSWCCA 194
R v Heard [2000] NSWCCA 107
R v Morres George [2002] NSWCCA 419
Muldrock v The Queen [2011] HCA 39
RCW v R (No 2) NSWCCA 190
R v Shi [2004] NSWCCA 135

Category:

Sentence

Parties:

Director of Public Prosecutions – Crown
Bland Saleh - Offender

Representation:

Counsel:
Mr M Pincott – Crown
Mr King - Offender

  Solicitors:
Director of Public Prosecutions – Crown
Legal Aid - Offender

File Number(s):

2014/303567

Sentence

1. HIS HONOUR: Bland Saleh appears today for sentence in relation to a matter for which he was committed for sentence to this Court, an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The crime to which he adhered to his plea of guilty is an offence of supplying not less than a commercial quantity of the prohibited drug amphetamine contrary to that section. The offence was committed on 15 October 2014 at Yarragundry near Wagga and the quantity of the amphetamine in question was 856.6 grams according to the Court Attendance Notice. The offence carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units, that is a fine of $385,000. There is a standard non-parole period of ten years imprisonment.

2. There is another offence contrary to s 193C Crimes Act 1900 to be dealt with pursuant to s 167 Criminal Procedure Act brought to this Court on a s 166 certificate as it is described. This arises out of the circumstances of the arrest of the prisoner at Yarragundry to which I will come in a moment. The offence is dealing with certain property to wit $2,000 that were made up of 50 and 100 dollar bills in Australian currency "that there are reasonable grounds to suspect is (sic) the proceeds of crime". That is a summary offence and carries a maximum penalty of 50 penalty units or imprisonment for two years or both.

3. The offender was arrested on the date of the offence, 15 October 2014, and has been in continuous custody since that date and all that time in custody will be taken into account. The offender pleaded guilty to the principal matter, that is, the indictable matter, at the Local Court and will receive a discount of 25% upon the otherwise appropriate sentence to recognise the utilitarian benefit of the plea of guilty.

4. Whilst the two offences are intimately bound together they represent separate offences. Logically that is so as was revealed in the course of discussion of the matter in the course of submissions. Thus there will be some partial accumulation of the sentence for the supply of the prohibited drug upon the obviously lesser sentence for the matter on the s 166 certificate.

5. The prisoner on a presumably sunny day in October 2014 at about 11.15 was driving a silver BMW sedan bearing South Australian registration plates along the Sturt Highway. He was in company with another male, I assume, of about the same age. I do not mean any disrespect to the prisoner but from my experience of sitting in Wagga he may as well have been driving along with a neon sign on top of his car saying, “drugs and proceeds of crime in this car”. Because he should understand, as he now does, the police are very alert to watch for young men driving along the Sturt Highway in motor vehicles, usually in pairs, as suspects in the clear trade in drugs that occurs between South Australia and New South Wales. If it be of any, if I could use the expression, solace as to why I should make those observations for the benefit of the prisoner, I have done cases in Sydney, in fact I did a trial a couple of years ago involving quite substantial quantities of heroin and other prohibited drug, being traded between South Australia and Sydney amongst organised crime networks.

6. The prisoner was not part of those networks, I accept that, and that was totally separate offending. But it was no surprise ultimately that in this matter the prisoner’s car was pulled over. He was subject to a random breath test. That received a negative result. Police checked his licence and undertook a search of his car.

7. I do not mean this unkindly of Mr Saleh, but he only has himself to blame.  He was driving with a provisional licence but did not have his P plates on.  Another false step one would have thought, in the circumstances where Highway Patrol officers are very vigilant on the Sturt Highway.

8. A search of the car was undertaken and ultimately the sum of $20,000, as I would understand it in 50 and 100 dollar notes, was found in the glove box. I should say in fairness, I am told from the bar table and am prepared to accept this, the car, whilst described as a “silver BMW” it was an older model car. It is not suggested the offender was driving the latest model of BMW car which would be a very valuable commodity particularly in the context of what was claimed to be the offender’s financial difficulties.

9. When the offender’s boot was searched some items were found that belonged to the passenger in the car and in the bottom of the boot area there was a thin base as it is described. This was removed. The tyre under that thin base was not anchored and ultimately police found a black, long sleeved jumper which concealed another bag that was underneath.

10. The spare wheel was removed. The jumper was retained for further examination and ultimately a Coles brand plastic bag was then found isolated in the spare wheel well. A cursory look into that bag was made and police identified a number of packages that contained what appeared to be amphetamines. In other words, in the spare tyre well were found the drugs ultimately the subject of this charge.

11. The offender said that he was the owner of the car and had come into possession of it about three weeks previously. He was taken to the police station by police and accorded the relevant protections under the Law Enforcement (Powers and Responsibilities) Act 2002. The car that the prisoner was driving was released to the passenger who apparently was not charged.

12. When the plastic bag was examined there were found resealable plastic bags inside which were found two plastic containers. Inside one of the plastic containers was a pasty, brown substance. Inside the other container was a brown, partially liquefied substance. These items were scientifically examined and they both were found to be amphetamines. One container of amphetamine weighed 451.5 grams and had a purity of 13.5 per cent. The other container with the pasty substance, as it is described in the certificate, was amphetamine. The quantity was 405.1 grams with a purity of 12 per cent. The total weight being 856.6 grams which is clearly greater than the commercial quantity for the drug which is 250 grams and less than the large commercial quantity of this particular drug which is one kilogram.

13. There were examinations undertaken of plastic bags and the plastic container. A number of fingerprints were recovered from the plastic bag or “Glad bag” containing the plastic container and these fingerprints were consistent with that of the prisoner. The plastic containers and that are described in the facts and there is no need for me to go into the detail of that.

14. The prisoner, when spoken to by the police did not provide a great deal of detail about the matter. I am told, “The offender was offered participation in an electronically recorded interview and consented”, but the facts are completely silent on what, if anything, the prisoner told the investigating police.

15. In fairness to the prisoner throughout the course of the police examination, it would appear, is entirely cooperative. There is no suggestion that he struggled with police or sought to divert them from what was to be the inevitable finding of the drugs.

16. Mr Saleh, as I understand it, was born in August 1991. He is a comparatively young man. He will turn, as I would calculate it, 24 years of age in August. He has prior convictions; in fact, has previously served terms of imprisonment although his criminal history is not a significant criminal history in one sense. He has a conviction for possessing prohibited drugs in 2009 consistent with a history of drug usage over at least over the last four or five years. He has some driving offences: in 2010 including a special category driver PCA for which he was convicted on 2 February 2011.

17. I should point out as a juvenile he was dealt with in the Children’s Court for assault with intent to rob and given nine months probation and required to attend school regularly. He was convicted also in the Local Court of the offence of affray on 30 April 2010. That offence is discussed in one of the reports and he was placed on a good behaviour bond for 12 months pursuant to s 9 of the Act.

18. At Parramatta Local Court in November 2011 he was convicted of common assault and intimidation and sentenced to nine months imprisonment with a non-parole period of six months. On appeal to the District Court the sentence for the intimidation matter was varied to three months imprisonment. The conviction was confirmed in relation to the common assault pursuant to s 10A.

19. Also, on 1 November 2011 at the same time, he was convicted of threaten to cause injury or harm to “prevent information to police” and sentenced to 18 months imprisonment with a non-parole period of 12 months. That conviction was confirmed on appeal but the sentence was varied to 12 months imprisonment with a non-parole period of three months. It would appear that non-parole period being concurrent with the sentence of three months for the intimidation matter.

20. He has another conviction in 2011 for possessing a prohibited drug. He was not on probation or parole or bail at the time of the offence with which I am concerned which is by reference to the maximum penalty and by consideration of the standard non-parole period a serious offence but of itself just by its facts is to be seen as a serious offence.

21. I have a report from the Community Corrections Service and it notes previous supervision by the Service. When subject to parole, as I would understand it, he was subject to urinalysis and there were no drugs detected. An attempt was to try and get the offender to focus on employment opportunity with little success, but he did complete the period of parole without re-offence. However, “It would appear that no significant gains were made”.

22. Whilst in custody his performance has been impressive and I take that into account. He has not incurred any charges. He has been given the position as a wing sweeper and according to Community Corrections he attracts positive comment in relation to his work performance and overall behaviour. He “utilises the telephone system advising that he maintains regular contact with his partner and family”. But he is also managed as an ‘A2’ remand inmate and has alerts relating to “outlaw motorcycle gang affiliations” and a “behavioural management plan”. Of course, I do not propose to - and I cannot - give him extra penalty for those claimed associations. But they lie, it seems, in the background of the circumstances of the current offending to which I will refer in a moment based upon the account the prisoner has given to the psychologist.

23. The offender has a family that comes from Iraq. His parents are or Kurdish background and thus come from Northern Iraq. They are refugees to Australia. The family came to Australia via Turkey in 1998. The parents clearly have impressive achievements in Australia. His father is a man of substance, his mother is involved in the education system and she wrote an eloquent letter on his behalf setting out her support and her husband’s support for him which I take into account.

24. He does have a strained relationship, however, with his father. He views his father as strict and he has said to Community Corrections that he has rebelled against this and that his own conduct has caused a rift, as he would understand. I understand his parents to be entirely law abiding people and I am sure that the offender’s arrest in relation to this matter, his associations before arrest and his other offending have caused his family considerable distress. The offender, however, feels that his father was less strict with his siblings with whom he would appear to have a reasonable relationship, although he has a strong bond with his mother.

25. The prisoner has been in a relationship, it is reported, with a young woman for approximately four years who gave evidence before me. She was a very impressive witness and I will deal with her evidence in a moment.

26. He suffered, apparently, a very serious head injury when he was four years of age. His mother believes that it has had some adverse effect on him. He fell of the roof of a building and what he was doing on the roof of a building I have no idea, but there is nothing in the psychological report that speaks to a significant acquired brain injury as is thought by the mother. He finished Year 10 at school.

27. He has primarily worked as a painter. He has had casual and “on and off” employment and he tried sometime before his arrest to start up his own business as a painter. Part of a history I had is that he borrowed $50,000 to buy himself a van and to set himself up in that business but that business was not a particular success.

28. His partner appeared to be quite an intelligent, ‘switched-on’ sort of person. She said she had tried to assist him with his paperwork and other things and I can understand from the nub of the psychological report that the prisoner would have trouble organising his personal affairs.

29. He started drinking in his teens and moved to the use of prohibited drugs using “ice” and cocaine, although in one part of the material his preferred drug is cocaine. He has completed a ‘Break Out’ program when in custody. He does have, however, some substantial health issues. Whether they are related to his fall or not is not established on the evidence. However he suffers panic attacks and suffers particular anxiety from the condition of claustrophobia. This is an unfortunate condition to have when you are in gaol, to be fearful of being in enclosed spaces. But gaols provide no other types of accommodation. I accept from the material available to me that the circumstances of his custody and his imprisonment will provide some degree of hardship arising out of these conditions, but inevitably a term of imprisonment must be imposed.

30. He claimed that he was in a desperate financial position before he committed this offence and had sought to obtain forgiveness of debts that he had acquired. Thus, apparently he went to South Australia as his counsel concedes to pick up the drugs and bring them back to Sydney. I will come back to some concessions that his counsel made about this aspect of the matter, but it is clear that whichever view one takes of it, the offence that he committed, the principal offence, was for financial benefit even if it was for forgiving a debt.

31. So far as taking responsibility for his offending, he said he does and he said that he was working for other people and he had “turned to the wrong people for help”. The Community Corrections Services said he was at medium risk of re-offending and there were particular matters that needed concentration or attention by Community Corrections including his education and his employment, his financial circumstances, his associations, his alcohol and drug problems and, of course, his attitude and orientation.

32. Psychology staff at Junee Gaol are aware of his panic attacks and his concerns relating to his claustrophobia and, of course, there are in place alerts in relation to his association with what are described as “outlaw motorcycle gangs”. There is no evidence that he is actually a member of a gang. But it seems to me, based upon what he said to the psychologist and what appears from the Community Corrections Service, that he was leading something of two lives. He had a life that he presented to his parents and his girlfriend, but he had another life where he found favour in associating with people that clearly have a connection with the drug trade in a range of ways.

33. So far as the assessment of his prospects is concerned it notes the positive family support, notes his recognition of his offending and his good behaviour in custody. I have taken that into account.

34. The evidence of the girlfriend or partner, as I said, was quite impressive. She is a young woman who had known him and been going out with him for four years. She seemed to be largely ignorant of his criminal behaviour. She hopes to be married to him and obviously she can be a very positive influence upon him, but it must be pointed out as a matter of common sense that she has not been able to exert a positive influence upon him in relation to the current matter and other aspects of his behaviour as his criminal history makes clear.

35. She is studying architecture at the University of Canberra and she has a Diploma in Architectural Technology. She struck me as an intelligent woman, as I said. She is not of the Kurdish community, she is of the Egyptian community, but it would appear, judging from my observation of her, that she is an entirely presentable, respectable young woman who is well liked by his family, it would seem, and she would wish to continue the relationship.

36. She helped him with the paperwork in his business, but she understand that before he was arrested he had a number of outstanding debts, not just arising from his borrowing of monies from “the wrong people” for his business, but he had credit card debts and the like. She is not a drug user which I think was self-evident and she does not approve of drug use. One of the background facts of this matter which is a little unsavoury, if nothing else, is the fact that the offender was shot 12 months ago in the leg. I was not given much detail in relation to that. No‑one has been charged, but he was shot in the Merrylands area. Whether this was related to criminal activity or some vendetta against him or simply because of his association with criminals is not clear. This must be, of course, very distressing for his parents and his partner.

37. His parents, she said, continue to support him as does she, although her visits to Junee Gaol are limited. She has tried to see him three or four times. One such occasion her car broke down. She had noted a number of changes whilst in custody and thought that he had improved his attitude and she would hope that on his release from custody he would take the opportunity to avoid using drugs. She was aware of his panic attacks and his anxiety about being in confined spaces.

38. Other evidence of a personal nature comes from his mother in the reference that she wrote. It is an erudite document. She is a person of accomplishment and her husband and she have worked hard to create a better life for their children in Australia. She said that they have tried to instil “good values in our children” and that the younger children, the offender apparently being the eldest of the family, are stable and achieving well at school.

39. The father is a volunteer for SES and the mother, as I say, has constructive employment within the education system. She said that Bland was different to the other children. He had poor concentration, hyperactivity and learning difficulties and this comes through in the psychological report. Being unable to engage in school, he associated with groups of boys with a negative attitude to school.

1. One of the features of this matter is, I fully appreciate, that the young man that I am dealing with now has come to this country for his family to make a better life. He would have had English as a second language. I would imagine that the Kurdish language or some other language, would have been the primary language in his family’s home and he would have had difficulties assimilating into the education system and also would have had difficulties, obviously, having to deal with having to be educated in a language that was not the primary language at home. I appreciate this needs to be taken into account indicating that he has had some struggles in his education.

2. But he should understand, of course, that many people have come to this country over the years, particularly since World War II, from disadvantaged backgrounds with English as the second language and have gone on to make a great contribution to the country. The offender should realise that that is not beyond him.

3. The psychologist’s report dwells upon some of the background to which I have referred. It notes amongst other things that when he committed the offence the offender was not living at home because of his relationship with his father and whilst he was away from home for the year before the offence he did not have stable accommodation. This has not come out in his girlfriend’s evidence.

4. He spoke of his history of being teased at school about his presentation and language and I can understand that would create difficulties for him.

5. His financial circumstances at the time of the offending are referred to and I have already summarised those. So far as his history of psycho‑social matters he noted that his partner was a good person who was a positive influence upon him. With regard to his friendship network he described his associates as “rubbish factor friends” and by this it was said that he associated with “rubbish friends” because of his drug use and they helped each other out. He feels as if where his parents live is a bad thing for him because it means that he is still in contact with past bad associations.

6. There have been some positives in custody. Apparently he has gone from 160 kilograms to about 120 kilograms and says he is in better health than he has been for several years. He has been shot in the leg. The bullet has apparently not been removed. He regards his appetite as healthy, but he has the difficulty of sleep apnoea which is severe. He is a chronic snorer and this, no doubt, would cause some annoyance to people with whom he had to share a cell and also have disruption to his sleep.

7. He is not on any psychoactive medication. He has no history of treatment for mental illness or mood disorder. There is no family history of mental illness. Whilst he thought he was “bipolar”, he simply was referring to his change of moods and opinions, but there is no evidence that he is suffering bipolar disorder as such. His panic attacks can be very severe.

8. With regard to custody he has adjusted to custody reasonably well in all of the circumstances, apart from the claustrophobia, but he has limited access to education and counselling. He claimed in relation to the offences with which he is now charged that he was in fear of being killed because of the fact that he could not repay his debts. Apparently now, however, even though he has been arrested, he has lost the $20,000 that belonged either to him or to somebody else and he has lost the drugs. “Everything is sweet now”. But he does acknowledge that he was stupid.

9. According to the intelligence testing undertaken by validated psychometric testing his verbal subtests scored him at a percentile rank of five, that means 95 per cent of his age cohort would score equal or ahead of him, however his non-verbal testing was superior. He was assessed as below average, but his particular score was commensurate with a percentile rank of 16 meaning he would score equal to or ahead of 16 per cent of his age group. Part of his verbal testing, of course, would take into account perhaps his language difficulties.

10. With regard to his composite IQ score he was given a percentile ranking of six. The psychologist said that his educational history and his clinical presentation and participation was essentially consistent with the test scores derived. He needed assistance to explain or understand complex words.

11. So far as his severity of dependence scale testing was concerned he achieved a total score of ten. The cut-off point for a diagnostic threshold for psychological dependence and compulsive use of cocaine was three, hence his score was indicative of marked psychological dependency and impulsive use.

12. He exhibited symptoms of adult ADHD, but this assessment is not intended to be a diagnostic assessment. It does indicate that he acknowledges symptoms of impulsivity that are associated with the disorder. His risk of recidivism on the psychometric test undertaken places him at the moderate to high risk of re‑offending, which is self-evident given his associations and his past conduct.

13. His scale of returning to drug and alcohol abuse on the scores assessed was in the “highly significant” range. It was thought thus that treatment for him in the future should focus on helping him to control his substance misuse and that may theoretically diminish his risk of re-offending.

14. The summary of the psychologist reflecting upon these matters indicates the need for him to have professional assistance on his release from custody.

15. His parents have been subjected to considerable trauma in their lives. Apparently at one stage they had left Iraq and then after returning to Iraq came home to find their homes and villages had been destroyed or badly damaged. As to the prisoner, of course, having been either conceived in Iraq but born in Australia or born in Iraq and coming to Australia as a very small child, had no direct experience of trauma himself in Iraq. But it is thought that he may be ‘vicariously’ affected and it could well be that his parents’ attitudes and hopes for their children are very much influenced by their own personal experience.

16. His IQ test performance indicated that his cognitive ability was not in the range that would have enabled him to achieve the type of professional qualifications and success he believes his family wanted from him. In other words, his cognitive limitations would make him a disappointment to his parents.

17. It is thought by the psychologist that his offences were directly linked to his substance dependence and he has an impulsive predisposition which may be part of a wider diagnosis of adult ADHD. He has got a history of disruptive school behaviour which may be evidence of an undiagnosed ADHD. He has never been treated for that condition.

18. It was said that being in the company of his chosen peers would have also had a normalising impact on his own thinking and behaviour. He perceived those he associated with as glamorous and financially successful and this may have influenced him to emulate their behaviour in the hope that he would share their image and lifestyle.

19. He was not safe to make independent decisions in his own best interests and he said he felt pressured to engage in criminal activity to reduce perceived threat to his safety and welfare and possibly that of his family. It must be said if he was shot by someone in Merrylands there is clear evidence there of a real risk to him, but what relationship it has to this offending directly I do not know.

20. This imprisonment has had a greater impact upon him than the earlier imprisonment, but then again it is going to be for a considerably lengthier period of time. Ms Robilliard, a very experienced psychologist, points to the need for various psychological and drug and alcohol counselling programs to be set in place.

21. With regard to the evidence of his partner I have already pointed out that - giving her full credit for her presentation and her concern for him - she has not yet been able to change him. Certainly, as I have said, his record of offending in recent years has obviously occurred during the relationship but it may be now that he may pay greater heed to her.

22. Having regard to all the evidence that was presented, the submissions of counsel for the prisoner concentrated on the following matters in summary. Whilst it was a serious offence which is self-evidently so the Court should not just be concerned with the quantity of the drugs. I needed to consider the role of the prisoner. It was submitted that he could be regarded as a ‘courier’ and that he committed the offence motivated to repay debts to people for whom he was beholden and people who may well have been quite sinister.

23. It was put from the bar table that the prisoner candidly admitted being involved in these activities not just this once, but I appreciate by reference to that ‘concession’ it was also submitted that I should be satisfied that the prisoner was at the lower end of the scale of responsibility for the particular enterprise in which he was involved. I should take into account the quality of the drug was at the lower end of the scale given the range of purities that this Court sees. Although this is not crystal methylamphetamine I note.

24. I should point out just a little while ago I was dealing with a drug supplier in possession of crystal methylamphetamine where the percentage purity was in the 70 per cent range. But, of course, this not being the crystalline substance it is more common to find it in a lower grade of purity.

25. It was submitted that I should accept the hearsay account of the prisoner as to his motivation for committing the offence. The aggravations were identified as financial gain, albeit to get rid of a debt. It was conceded that the prisoner was involved in organised criminal activity but I should note, and I do, that there is no evidence that he was “the organiser”. He was a hireling. He was not the person who planned the criminal activity with which the Court is now concerned.

26. It was submitted that I should give the maximum discount for the utilitarian benefit of the pleas of guilty which I do. So far as his background is concerned I should take into account the disadvantages of his upbringing in Australia, not so much the family influence - that has been positive - but other matters to which I have referred and I take that into account.

27. It was submitted that he came into this criminal enterprise by setting up a business in good faith but having the wrong associates from whom he borrowed money. He had the support of family and his partner. He had the possibility of rehabilitation and he had made changes in custody which I acknowledge.

28. I was also to take into account the health problems which he has which I accept are a reality. Thus, the circumstances of custody for him will be less attractive or more onerous than it would be for other offenders. It was submitted ultimately that he was not irredeemable, that he was seeing the light, that he had positive support. His criminal history was not unblemished, but it was not a bad criminal history.

29. I was taken to some comparative cases to examine. There were not many submissions made about the cases but I have read those cases. Those cases include Heard [2000] NSWCCA 107, Morres George [2002] NSWCCA 419; and the case of Shi [2004] NSWCCA 135.

30. I point out so far as principles are concerned, bearing in mind these cases were brought to my attention more for comparative purposes, that in the case of Shi the then Chief Judge at Common Law, Justice Wood, pointed out in upholding the Crown appeal that in sentencing for that offender:

“Insufficient consideration had been given to the weight and purity of the drug involved in the instance or to the well recognised principle of the culpability of those who engage at any level in drug supply networks is significant and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution would simply collapse” [34].

70. I appreciate Shi would appear to have the appearance of a case arising from the sequelae of an importation which is not the case here, but the general principle, even accepting the prisoner was acting as a courier for the drugs in question, is that he was performing a significant role bearing in mind particularly that he was taking the drugs from South Australia to Sydney. This is not a case of a man as a favour for an associate going to Villawood, picking up the drugs and driving them to Liverpool.

71. With regard to these cases for comparative purposes, of course, there are many differences, even though the quantities might be similar. For example, in the case of Heard it was an appeal against a sentence of seven years imposed which, on appeal, was reduced to a sentence of five years with a non-parole period of two years in respect of the supply of 583 grams of the drug with a purity of 6.9 per cent. There was an estimated street value for that drug given in that case. I have no estimated street value here.

72. The offender was part of a network of offenders, although he had a significant criminal history. Part of that appeal’s merit for the purposes of the determination of the appeal was the sentences imposed on co-offenders giving rise to parity principles.

73. Morres George was also involved in the supply of methylamphetamine, 850.4 grams of the drug. However, he was an older offender sentenced to four years with a three years non-parole period pursuant to the same provision in circumstances where, as with Herd, no standard non-parole period was considered by the Court, where the offender was 60 with a criminal history of some antiquity only for minor offences, with significant health problems given his age. Thus, although the appeal was dismissed, the sentence needs to be considered in that light.

74. With regard to the matter of Shi, that person was convicted of the supply of not less than a commercial quantity of methylamphetamine being 992.2 grams which had 84.5 per cent purity to which I referred. But he performed the role of a courier apparently to forgive a debt of something like $2,000 - $3,000 and he was only 19 years of age. He had no prior criminal convictions of any type whatsoever. That was a successful Crown appeal and particularly it was a case involving consideration of a standard non-parole period in the light of the decision of Way which, of course, was effectively set aside by the High Court in Muldrock v The Queen.

75. I have had regard to those cases for comparative purposes but no particular case usually can provide specific guidance. In fact, there is a recent decision from memory, I think the decision is RCW (No 2) where the Court of Criminal Appeal criticised the sentencing Judge for focusing on one sentence as being a yardstick for an appropriate sentence in the instant case and, of course, each of the cases are different. But I have had regard to those cases as sought by counsel for the prisoner.

76. With regard to the Crown’s submissions to the Court they were relatively brief. I was to have regard to the amount of the drug and the purity. It was submitted, I think approaching the matter from the same perspective as Mr King for the prisoner, that there was planning in the offence as an aggravating factor. I think this was the matter that Mr King sought to identify as being an offence committed within the rubric of organised crime, but with the prisoner not the organiser which I accept.

77. Justice Howie in a number of judgments pointed out that drug trafficking and drug supplying usually has, by definition, an element of planning which could not be regarded as an aggravating factor because it was inherently part of the character of the crime. Likewise Mr Crown also pointed out this was an offence for financial gain. He accepted the discount submitted, as I do, for the utilitarian benefit of the plea but he submitted that there should be some partial accumulation for the s 166 certificate matter which I accept.

78. Dealing with some issues that further arise, obviously I have to have regard to the purposes of sentencing and in this sentencing exercise matters of general and personal deterrence are, of course, important. The plague of drug abuse is one that this Court and other courts see all the time and those who traffic in drugs, even if they are drug users themselves, causing damage to the community must expect punishment.

79. Although neither counsel referred to it, I should point out in the case of Shi that Mr King gave me that one of the aggravating factors pointed out in the sentencing of him was the fact that the case involved conduct that constituted what is described in the aggravating factors under s 21A(2) as an offence committed ‘without regard for public safety’. That is not an uncommon finding in relation to substantial drug supply. This was not a matter addressed by Mr King, it was not a matter addressed by the Crown.

80. I believe I need not find it as an aggravating factor on this occasion simply because the facts eloquently speak for themselves as to the seriousness of the offending by reference as everyone says to the quantity of the drug, albeit that I have to factor in the role of the prisoner. As I say, Mr King himself produced a judgment that indicated substantial supply of this quantity at least represented an offence committed without regard for public safety.

81. It is to be fairly said that those who use drugs well know the effects of them and when they supply them to other people they must well know or foresee the damage that can be done by that drug supply, even if it is supply in the character of delivering drugs to others for distribution.

82. With regard to s 21A(2) I believe I have identified the relevant aggravating factors. With regard to mitigating factors ultimately I conclude that the prisoner has shown some remorse. I am prepared to accept he has taken responsibility even though he has not given evidence before me. His plea of guilty is a mitigating factor although he receives a discrete discount for that.

83. Obviously I cannot find, based on his own psychological report and the presentence report and his background and the character of the offending and his associations, that he is unlikely to re-offend or that he has good prospects of rehabilitation. However, I note that he has that positive family support and if he can avoid the use of drugs his prospects of rehabilitation will be enhanced. Clearly he was not a person of good character and he could not be said to not have a record or significant record of criminal convictions.

84. Although I have taken into account the matters in the psychological report it is not submitted, nor is there evidence of, a relevant mental condition or disability that would warrant consideration of the principles summarised in the decision of De La Rosa [2010] NSW CCA 194, particularly in the judgment of the learned Chief Judge at Common Law at [177] - [178]. But I am required to take into account the health of the prisoner. Although it is not requiring any specific or urgent attention by the authorities at the moment as impacting upon his circumstances of custody. I have taken into account in his favour his behaviour whilst in custody.

85. There is no doubt, notwithstanding s 5 of the Act, that this is a matter that requires the imposition of a term of imprisonment.

86. With regard to the fixing of the term of imprisonment I am required to have regard to the standard non-parole period as a guidepost. I am mindful of the fact, of course, that s 54A(2) and s 54B(2) require the Court to first of all have regard to the standard non-parole period in the context of firstly the consideration of the standard non-parole period as being applicable to an offence in the middle range of objective seriousness only by regard to the objective facts in the case.

70. The sections require then the Court to further have regard to the other matters, including the relevant matters that arise under s 21A and any finding of ‘special circumstances’ in determining an appropriate non-parole period. I should do this by, as the High Court held in Muldrock and Markarian, the use of the mystical powers of instinctive or intuitive synthesis.

71. In relation to the offending, notwithstanding the quantity but having regard to the purity and the role of the prisoner, I am prepared to find that the offence is not within the middle range of objective seriousness. Of course, quantity is a relevant matter but it is not the only determinate of the matter otherwise clearly it would be at least in the middle range of objective seriousness given that a large commercial quantity is greater than one kilogram. But, as I say, the role of the prisoner is a relevant matter in that regard.

72. I am mindful also in relation to the general principles concerning the sentencing of offenders in relation to drug trafficking that those who are substantially involved in trafficking, as clearly this prisoner was, must expect full time custodial sentences. Certainly no suggestion of ‘exceptional circumstances’ or no suggestion of a sentencing discretion permitting other than full time custody arises in this matter.

73. I am also to take into account given the age of the prisoner the need to have regard to the promotion of the prisoner’s rehabilitation amongst those purposes of sentencing. I am required to consider, for example, matters such as those that were identified in cases like Blackman and Walters [2001] NSW CCA 121, adopting the South Australian authority that point to the protection of the community includes consideration of assisting offenders to avoid offending in the future because the extent that people are prevented from offending in the future or are assisted in their rehabilitation the protection of the community is enhanced. That is what I am seeking to do by fashioning the non-parole period.

74. I have determined that there are ‘special circumstances’. This is the second term of imprisonment for the prisoner but it seems to me that there is a raft of matters identified in the presentence report and the psychological report that require professional guidance particularly drug and alcohol counselling, associate monitoring, education and employment guidance as well as the need to assist the prisoner to find financial stability, his financial instability contributing to his offending on this occasion. He will need an extended period of time to adjust to community living.

75. Thus, having regard to all that has been put to me, including I hasten to say the statistics which were provided showing a range of penalty for 82 cases under this provision between 2007 and 2014 where imprisonment was imposed for periods between six months imprisonment and 12 years imprisonment, the mean period of imprisonment apparently being three years. There are many limitations in relation to statistics and particularly in the area of drug supply and particularly in the area of drug supply where there are limits to the character of the prosecution by reason of quantity. The statistics do not provide details of the quantity, the purity, the role of the prisoner. In the decision of Bloomfield in 1998 the Chief Justice pointed out for the purposes of deciding matters on appeal the many limitations of statistics, but they do provide some guidance.

76. I understood Mr King to be telling me in his submissions that Shi might provide the better guide for comparative purposes. I am not sure that that is right. Again, there are many distinctions, both objectively and subjectively between the two cases. As I said, I have generally had regard to those comparative cases for the limited assistance they provide me as do the statistics.

77. Can you stand up, thanks very much, Mr Saleh. In relation to the offence on the s 166 certificate you are convicted. You are sentenced to a term of imprisonment of 12 months. That sentence of imprisonment includes a discount of 25 per cent. That sentence will date from 15 October 2014 and will expire on 14 October 2014 (as said) but I decline to fix a non-parole period because of the sentence I will impose for the other matter.

78. I should interpose my remarks just for a moment to point out that there is no satisfactory explanation for your possession of that cash. I cannot be satisfied beyond reasonable doubt that it is your cash. In fact, I believe it is not your cash simply because of your financial difficulties, although it is clearly cash associated with drug supply. It seems to me to be cash that you were transporting in company with the drugs for the benefit of others. But it shows how much you were trusted, of course, and it does reflect in itself substantial criminality.

79. Thus, I propose in accordance with Pearce principles ((1998) 194 CLR 610 particularly at [45]) and of course decisions such as Hammoud to partially accumulate the next sentence upon that sentence.

80. For the principal offence of supplying not less than a commercial quantity you are sentenced to a term of imprisonment of two years six months by way of non-parole period to date from 15 April 2015 and to expire on 14 October 2017. That means the effective non-parole period is three years.

81. In relation to that sentence I fix a balance of sentence of two years nine months and on my calculation that sentence will expire on 14 July 2020.

82. Just take a seat. Thus, the total sentence I have imposed upon you is five years nine months imprisonment with a non-parole period of three years. the non-parole period expiring, on my calculation, on 14 October 2017.

83. HIS HONOUR: Now, Mr Crown, are there any particular errors in the orders that need to be corrected?

84. THOMAS: No, your Honour, I’d just be seeking a confiscation order as well.

85. HIS HONOUR: I have made that.

86. THOMAS: Thank you, your Honour.

87. HIS HONOUR: I’ll have copies provided to you, Mr Crown, and to you, Mr Murnane. So those orders are made in accordance with the consent orders. Are there any other matters, like errors in calculation?

88. THOMAS: No, your Honour.

89. HIS HONOUR: What about you, Mr Murnane?

90. MURNANE: No.

91. HIS HONOUR: Mr Saleh, first of all I owe you an apology - no, sit down, thank you. My normal practice is to tell people from the outset what the sentence is going to be and I didn’t do this on this occasion. It was just an oversight on my part. The total sentence imposed upon you is five years nine months imprisonment with a non-parole period of three years. You’ll be eligible for release to parole, as I said, on 14 October 2017. I’ve taken into account the time in custody. But you must understand it will be a matter for the Parole Authority whether you’re released on that date. I wish you well for the future, but the truth of the matter is, you know, you know as well as I do if you want to hang around - I don’t mean this unkindly - with gangsters, you’ll just end up in gaol. And that’s a matter that you need to address.  

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Decision last updated: 14 January 2016