R v Sheikhlary
[2010] NSWDC 117
•25 March 2010
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v SHEIKHLARY [2010] NSWDC 117
FILE NUMBER(S):
DC 2009/00191644
HEARING DATE(S):
25 March 2010
EX TEMPORE DATE:
25 March 2010
PARTIES:
The Crown
Shayan Sheikhlary
JUDGMENT OF:
Berman SC DCJ
COUNSEL:
SOLICITORS:
The Director of Public Prosecutions
Gregory J Goold Solicitor - Offender
CATCHWORDS:
CRIMINAL LAW
Sentence
Supply a prohibited drug
Methylamphetamine
Benzylpiperazine (BZP)
LEGISLATION CITED:
CASES CITED:
TEXTS CITED:
DECISION:
Sentenced to imprisonment with a non-parole period of fourteen months and head sentence of twenty-eight months.
JUDGMENT:
SENTENCE
HIS HONOUR: Shayan Sheikhlary appears for sentence today after having pleaded guilty at an early stage to an offence of supplying a prohibited drug. The drug in question was methylamphetamine. He asked that when I sentence him for that matter I take into account two other matters on a form one: One of possession of prohibited drug relating to 108.2 grams of cannabis and one of supplying prohibited drug, a drug by the name of benzylpiperazine, more commonly BZP.
The police went to the offender’s premises on 25 August, 2009. They were armed with a search warrant. When they arrived they found a small quantity of cannabis and when they spoke to the offender he told them he had a confession to make. He said that he had a safe in the bathroom which contained within it a small to medium amount of Marijuana and a number of what he would call speed pills. When police searched the safe they found twenty-four methylamphetamine tablets in two separate forms as well as ten tablets of BZP.
The offender was then charged with supplying the methylamphetamine. By his plea of guilty and admission on the form one, he accepts that he had those drugs in his possession for the purposes of supplying them. It is also to be noted that police found other things in the accused’s premises consistent with him having those drugs in the possession for the purpose of supplying them. I refer here to digital scales which bore signs of previous use, receipts for Commonwealth Bank account deposits, including significant cash deposits at times and notes on paper which, although I do not actually have the notes before me, clearly were suggestive of supplying drugs. Were it necessary for me to make a determination, I would find that the accused was supplying to a substantial degree. In any case, I am able to say that this was not supplying at the bottom of the range. The accused had a number of tablets of two different drugs and there was significant evidence of other drug supplies.
The accused has a criminal history as well, mainly for offences of violence, but there are other matters involving drugs in his record. It is very important to note that at the time of committing these offences he was on a S 11 remand, it having been granted to him by a judge of this court. It is somewhat remarkable that at a time when the appellant was appealing against a sentence of imprisonment, and at a time that the judge hearing the appeal had adjourned the matter under s 11 in order to ascertain the appropriate sentence to impose, the offender would supply drugs and thereby commit very serious criminal offences.
I note that the offender was actually in custody on these matters when he came back before the judge. Despite that circumstance, the judge did not dismiss the appeal but put Mr Sheikhlary on a s 9 bond.
Mr Sheikhlary has told a probation and parole officer that he had an upbringing which was affected by his parent’s separation when he was only five years of age. Whatever the problems between him and his mother in the past, it now appears that he has her full support and that he very much regrets the position that he has put her in having, to visit her only child in custody. The offender recalled a poor relationship with his father and has not had any contact with him for about two years now.
The offender has been seen by a psychiatrist. I was also able to assess, briefly of course, the offender in court when he gave evidence. He seems to be an intelligent man who is quite capable of being a productive member of society. I note that the offender finished year nine in 1996 and was suspended and later expelled from school for inappropriate behaviour. He has worked mainly in unskilled positions but as far as I can see, he is capable of studying and capable of, upon release from custody, doing much for himself.
He has a relationship with a woman who is not a drug user and, with one exception, is not happy about his drug use. The one exception seems to be that she tolerated his use of Marijuana because he suffers from a disease known as Sherman’s Disease which causes pain to his back. Ms Martin suggests that in those circumstances, the offenders use of Marijuana might be explained. However, the offender is someone who clearly has a problem with drugs and if he is to break the cycle of offending he needs to give up drugs altogether, whether the drug is Marijuana or not.
The offender has been doing some drug rehabilitation programs in custody and a report from Christos Aristidou tendered before me today suggests that he is doing well. However, the offender will need assistance in the future. He recognises that the life that he has been living up till now with regular offending is not the sort of life he wants to lead in the future. He will need some assistance in order to maximise the possibility that the offender can remain offence free upon his release from custody.
The offender is serving his time in segregation because of threats from other prisoners. Of course there is a risk that that will involve harsher conditions of custody than it would involve if the offender was serving his sentence as part of the general prison population. There is a risk that that will be the case during the entirety of his term in prison. On top of that, as I have mentioned, the offender suffers from Sherman’s Disease. Those matters of course each will make the offenders time in custody harder than would otherwise be the case. I have taken those matters into account.
The plea of guilty was entered at an early stage and so I have discounted the sentence I would otherwise have imposed by about twenty-five percent to reflect the utilitarian value of that plea.
The offender expressed his remorse for what he had done, in particular, as it affected his mother.
Clearly there are special circumstances in this case relating to the offenders desire to overcome his problems with drugs. It is in the community’s interest, just as it is in the offender’s interests, for him to succeed in that regard and so I will enlarge the period of eligibility for parole at the expense of a non-parole period to reflect that circumstance.
Both Miss Martin in the letter she wrote to me and Mr Goold suggest that the offender’s time in custody, currently seven months, is enough. I do not agree, this was objectively a very serious offence. Of course there are more serious drug suppliers sentenced regularly in the courts but that does not automatically mean that this is an offence at the bottom of the range of objective seriousness. On top of that there is the circumstance that the offender failed to take advantage of the leniency that was offered to him when he was placed on a s 11 remand. Although there are explanations for the offender’s behaviour, in particular those referred to in the report from his psychiatrist, it remains the case that the offender himself needs to be personally deterred from future misconduct and the sentence that I have chosen to impose upon the offender has been selected with that very much in mind. It is part of the offender’s rehabilitation that he will know that if he commits further offences in the future, he will received significant, perhaps even harsh, sentences involving lengthy periods of full-time imprisonment. If the offender wants to avoid those, he needs to simply avoid committing further offences in the future.
Taking into account the matters on the form one, the offender is sentenced to imprisonment. I set a non-parole period of fourteen months to date from 25 August, 2009. It will therefore end on 24 October, 2010 on which day the offender is to be released to parole. The head sentence is one of twenty-eight months.
The condition of the offenders release to parole are as follows:
• He is to be of good behaviour.
• He is to refrain from any use of illegal drugs whatsoever, including Marijuana.
• He is to be closely supervised, and I emphasise the word closely, by the Probation and Parole Service upon his release.
• He is to be assessed for outpatient community drug rehabilitation programs.
• He is to satisfactorily participate in courses, counselling and other programs as recommended by the Probation and Parole Service and he is to obey all reasonable directions of the Probation and Parole Service.
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LAST UPDATED:
29 June 2010
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