R v Thorne - [2021] NSWDC 455

District Court

New South Wales

Medium Neutral Citation: R v Thorne [2021] NSWDC 455
Hearing dates: 17 September 2021
Date of orders: 8 October 2021
Decision date: 08 October 2021
Jurisdiction: Criminal
Before: Judge Sutherland SC
Decision:
At [72]-[77]

Catchwords:
CRIME — Drug offences — Supply prohibited drug to undercover officer – role of co-offender – high risk classification in prison

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
R v Qutami (2001) 127 A Crim R 369

Category: Sentence
Parties: Crown
Mohammad Junaid Thorne
Representation:
Counsel:
Mr N Angelovski (DPP)
Mr I Wallach (Thorne)
Solicitors:
Solicitor for Public Prosecutions
Karnib Saddik

File Number(s): 2019/00238166
Publication restriction: Nil

Judgment

Mohammad Junaid Thorne appears for sentence with respect to substantive offences of supplying prohibited drugs to an undercover police operative in late 2018 and early 2019.
I will come to the detail of the specific offences in the course of outlining the narrative background to the offending.
A taskforce had been established to investigate suspected activities of Mr Thorne. I will say a little more about the nature of the taskforce later in these Remarks. As will become clear, a co-offender with respect to the supply of the various drugs which occurred in due course has already been sentenced by me. I will refer to that co-offender in these Remarks by a pseudonym as a consequence of non-publication orders which have previously been made.
The taskforce investigating Mr Thorne was, in fact, related to investigation into terrorism and related activities. The nature of that taskforce would ordinarily not be relevant due to the prejudicial connotation of the nature of its investigations. However, that aspect of the taskforce and its role is relied upon by the defence in this matter as being relevant to the circumstances of the offender’s incarceration which is a matter to which I will come in due course.
At all events the police investigation led to a series of meetings in September 2018 between an undercover operative and Thorne. Following enquiry about his ability to supply cocaine Thorne indicated that he would be in a position to supply cocaine in the coming weeks. During October 2018 Thorne met with the undercover operative on a further two specific occasions. The conversations on those occasions dealt with the detail and price of prospective future supplies of cocaine. In the course of a meeting on 17 October, Thorne indicated that the cocaine which he would be in a position to supply was of high quality and would be $7,000 per ounce. Thorne indicated that he would speak with the necessary persons in order to secure the cocaine for such supply.
On 5 November 2018 Thorne, accompanied by a number of additional associates, met with the undercover operative at a café in North Parramatta. Thorne indicated that his supplier wanted to start in ounce quantities and that the undercover would need to “let the money run”. This was understood to mean that money would be provided to Thorne for the purpose of him taking the cash to the supplier of the drug before ultimately meeting with the undercover operative and providing the cocaine. It might be perceived that this was not a necessarily unusual situation where supplies had not previously occurred between the protagonists, that is that money would have to be paid first rather than being supplied “on tick” as might occur in a more trusted relationship.
In circumstances which are not revealed in the Agreed Facts, a meeting took place two days later between Thorne and the undercover operative in a supermarket car park at Guildford. A mutual associate was said to be indebted to the undercover in an amount of $11,000. The arrangement which had been reached was that Thorne would reimburse that debt by supplying 1 ounce of cocaine valued at $7,000 and he would also provide $4,000 in cash in order to settle the outstanding debt.
It is appropriate at this juncture to indicate that at some time in about September 2018 Thorne had commenced a relationship with his co-offender Ms Rose (a pseudonym). The background and circumstances of that relationship are dealt with in some detail in the sentence proceedings relating to her. For present purposes it suffices to understand that they had been in an intimate personal relationship which was continuing in November 2018.
On all of the available material Ms Rose was not introduced to any of the interactions with the undercover operative until the events of 7 November 2018.
Thorne arrived at the arranged meeting with the undercover with Ms Rose in the front passenger seat of his vehicle. Thorne got out of his vehicle and went to the undercover’s vehicle in the car park which he got into. The two men discussed the prospective future supply of larger quantities of cocaine. Thorne indicated that arrangements would have to be made utilising encrypted communications via the ciphr talk mobile phone system. Thorne then returned to his own vehicle. Thorne then drove out of the car park with Ms Rose still in the front passenger seat. After driving around the block he went back into the car park. Ms Rose then left the vehicle and took a purse across to the undercover’s vehicle which she dropped through an open window into the footwell. The purse contained 28 grams of cocaine or approximately an ounce and $4,000 in cash. The cocaine had a purity of 70.5%.
This offence, namely one count of supply of a prohibited drug contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985, carries a maximum penalty of 15 years imprisonment when prosecuted separately on indictment. The offence has been placed on a Form 1 document.
Several days later, on 11 November 2018 a discussion took place between the undercover operative and Thorne by means of text messages. Thorne enquired whether the undercover needed more “parts” and in due course the undercover requested two “parts” from Thorne. The culmination of the text messages between the two men was an agreement to supply 2 ounces of cocaine for $7,000 per ounce. Thorne also offered to supply a mobile telephone with the encrypted ciphr program at a price of $2,500. The men agreed to meet on 15 November 2018.
The meeting again took place in the supermarket car park in Guildford. Thorne arrived in his vehicle with Ms Rose on this occasion seated in the rear passenger seat. The undercover got into the front of Thorne’s vehicle and handed over $2,500 as advance payment for the ciphr mobile phone and $14,000 for the cocaine. The money was passed to Rose in the backseat who counted the money. Rose then handed the undercover plastic bags which contained the 2 ounces of cocaine.
Whilst still in the vehicle Thorne and the undercover operative discussed a future proposed supply of 5 ounces of cocaine.
The supply on this occasion of 55.7 grams of cocaine, subsequently assessed at 69.5% purity, has similarly been placed on the Form 1 document.
On 22 November 2018 Thorne made further arrangements with the undercover for the supply of an additional 2 ounces of cocaine and for the provision of the encrypted mobile telephone for which payment had already been made on 15 November. The following day, 23 November 2018, Thorne again arrived at a supermarket car park, this time in Newington. The co-offender, Ms Rose was observed to arrive at the location on foot. She got into Thorne’s vehicle from which she emerged shortly after, carrying a backpack. She took the backpack to the undercover’s vehicle which was parked nearby.
Rose gave the contents of the backpack, namely 2 ounces of cocaine and the mobile phone containing the encryption software, to the undercover. She received $14,000 in payment for the cocaine being the amount that the undercover had agreed with Thorne. Whilst in the undercover operative’s vehicle Ms Rose gave instructions as to how the encrypted phone could be operated and she provided the password and the code which was to be used by Thorne in the course of future text messaging. Ms Rose then returned to Thorne’s vehicle at which time Thorne left his vehicle and went across and got into the undercover’s vehicle. They discussed the 2 ounces of cocaine that had just been supplied and Thorne suggested that larger amounts of cocaine which could be supplied in the future would need to be spread across multiple meetings to avoid higher penalties if they were detected. He also told the undercover that all future communications would need to be via the ciphr system.
The supply of the “2 ounces” of cocaine on this occasion, namely a total of 56 grams, was of approximately 68% purity. This further separate supply count has also been placed on the Form 1 document.
Thorne subsequently met with the undercover on Monday 26 November 2018 and they had lunch together at a restaurant in Chatswood. The subject matter of that conversation is not relevant to these proceedings notwithstanding that it was referred to in the proceedings against Ms Rose.
Over the following days Thorne and the undercover exchanged ciphr text messages and made arrangements for a further supply of another 2 ounces of cocaine. Thorne, who was apparently in Melbourne at the time, told the undercover that Ms Rose would meet him in person in order to effect the supply on 3 December 2018.
On 3 December 2018 Ms Rose met with the undercover operative at Parramatta and supplied the 2 ounces of cocaine that had been arranged. The undercover paid $14,000 for the cocaine. In the course of that meeting Rose stated that Thorne had left the ciphr mobile phone with her while he was in Melbourne so as to minimise the risk of seizure by police. As I indicated in my Remarks when sentencing Ms Rose, I interpret that statement as indicating that Thorne was distancing himself from the physical arrangements. Rose told the undercover operative that for the same reason he would mostly deal with her from that point on.
The cocaine supply on this occasion was a total of 55.9 grams with a purity of again approximately 70%. That supply was not charged separately but has been aggregated with a later supply as Sequence 7 which is one of the two substantive offences to which a plea of guilty has been entered.
Between 5 December and 18 December 2018 there were a series of text messages between both offenders and the undercover. On 16 December Thorne said that he was messaging the undercover because Ms Rose had advised him that the undercover was not replying to her. The undercover indicated that he had received messages from her but had not replied because he was not sure if Thorne knew of those communications. Thorne ultimately agreed to supply 3 ounces of cocaine and arrangements were made to meet up again on 19 December 2018.
On 19 December the two offenders, Thorne and Ms Rose, arrived together in Thorne’s motor vehicle at the supermarket car park in Newington. Rose went to the undercover operative’s vehicle in the car park and handed over three plastic bags containing approximately 3 ounces of cocaine. The undercover handed over $20,000 cash in payment. In the course of conversation in the vehicle Ms Rose referred to the upline suppliers who she referred to as “the boys” and indicated that they would have more cocaine available in a couple of days. She also said that the drugs had been stored at her house because “no one ever goes there”. She then left the undercover’s vehicle.
A short time later, Thorne got into the undercover’s vehicle and engaged in ongoing conversation with the operative. Thorne confirmed that the undercover could communicate openly with Ms Rose. He said, “She tells me everything. We are the same.” Thorne also said he could get an additional 2 ounces of cocaine in about two days.
Rose returned to the undercover’s vehicle while Thorne was still seated in the front passenger seat and she said that the money provided to her was short by $1,000. The undercover said that he thought there was a $1,000 discount which applied and Rose told him that that was not the case. The undercover agreed to pay the outstanding $1,000 on the next occasion.
The total weight of the approximate 3 ounces of cocaine supplied on this occasion was 83.5 grams. The purity ranged between the three bags between approximately 70 to 73%. This quantity of cocaine together with the supply of 55.9 grams which had taken place on 3 December comprises the aggregate quantity supplied, namely 139.4 grams with respect to the substantive supply which has been charged as Sequence 7. This similarly is charged pursuant to s 25(1) of Drug Misuse and Trafficking Act 1985.
On 23 December 2018 the ciphr mobile phone which had been provided to the undercover operative received a message offering to supply MDMA, that is 3,4-Methylenedioxymethamphetamine. The message came from the ciphr phone used by both Thorne and Rose.
On 27 December 2018 Thorne again met with the undercover. They again had lunch. Discussions which I referred to in the sentence proceedings against Ms Rose are of no relevance to the charges preferred against Mr Thorne. Thorne did, however, receive the outstanding $1,000 from the earlier underpayment on 19 December 2018.
On 9 January 2019 the undercover received messages on the encrypted phone which appeared to have emanated from abbreviated names for each of the co-offenders. It is clear that the handle “Mo” appeared to be an abbreviation for Mohammad Junaid Thorne but the handle or abbreviation purportedly indicating messages from Ms Rose were subsequently denied by her as being an abbreviation that she used. It is clear, however, that the import of the agreed facts is that the representations, whichever of the co-offenders actually made them, were indicative at that time of a joint enterprise between the co-offenders.
The undercover operative communicated via text message that he was interested in purchasing a kilogram of MDMA. In due course it was indicated that such a quantity would cost $32,000.
On 14 January 2019 the undercover sent messages to “Mo” and Thorne asked if the undercover still needed “the M for this week coming” apparently being a reference to MDMA. In due course two photographs which purported to be photographs of a kilogram of MDMA in each of them was sent to the undercover on the ciphr encrypted phone. This was said to be MDMA put aside for him.
The detail which is set out in the Agreed Facts makes it clear that various text messages passed between Thorne and/or Rose on the one hand and the undercover on the other with respect to the prospective supply of drugs. Reference is also made in the Agreed Facts to the prospective supply of firearms and previous discussions with Thorne on that topic. I have specifically indicated earlier in these Remarks that the topic of conversation on a number of occasions to which I have made reference in the proceedings against Ms Rose was not relevant to the proceedings against Mr Thorne and I propose to ignore the references to firearms in the Agreed Facts in this matter.
Arrangements were ultimately made for the supply of a kilogram of MDMA on 30 January 2019. On that occasion Ms Rose and Mr Thorne went to the designated meeting place, namely the supermarket carpark at Newington. However, on this occasion they arrived at the location by bus. Ms Rose had her child in a stroller. After arriving at the car park Ms Rose entered the undercover’s vehicle while Thorne pushed her child in a stroller and walked around the car park apparently keeping a lookout.
The undercover showed Ms Rose that he had brought $34,000 in cash to pay for the MDMA. Rose then communicated via encrypted text message to the person described as “the high level supplier of the MDMA”. That person, Dominic Stepanyan, arrived at the location a short while later. Prior to his arrival, Thorne had given Ms Rose’s child back to her. She placed the child in the backseat of the undercover operative’s vehicle whilst awaiting the arrival of the higher-level supplier. When Stepanyan arrived Rose went and spoke with him at his vehicle. She had left her child in the undercover’s vehicle at that time. It would appear Thorne kept his distance while Rose carried out the physical exchange of the kilogram of MDMA and the transfer of the $34,000 between the two vehicles.
After the handover, Ms Rose took her child and stroller and together with Thorne appeared to have a discussion with Stepanyan after the undercover had driven away with the drugs.
This supply of a large commercial quantity, ultimately weighed to be 995.5 grams of MDMA, constitutes Count 2 on the indictment and is the offence to which the Form 1 offending attaches. This offence is charged pursuant to the provisions of s 25(2) of Drug Misuse and Trafficking Act 1985 and by virtue of the quantity involved carries a maximum penalty of life imprisonment. Parliament has specified a standard non-parole period of 15 years. The quantity of MDMA was subsequently analysed to be of 76% purity.
Ultimately, the two offenders were not arrested until 31 July 2019. As would be clear from the proceedings against Rose, she made full admissions and participated in a full electronic interview in which she made various admissions. Mr Thorne was similarly arrested on that date and he, no doubt on legal advice, declined the opportunity of being interviewed at that time. He did, however, in due course enter pleas of guilty at an early stage and is accordingly entitled to a discount of 25% in accordance with the requirements relating to the entry of an early plea.
Notwithstanding that the individual supplies were not part of an ongoing supply in the sense of being charged as ongoing supply, the supply of what was intended all up to be approximately 5 ounces of cocaine on the two occasions which constitute the first substantive count fall, in my view, within a broad mid-range of offences relating to the supply of more than an indictable quantity and less than a commercial quantity. The supply of approximately 1 kilogram of MDMA in all of the surrounding circumstances, in my view, falls within a mid-range of objective seriousness.
I turn to subjective features. The offender was not called to give any evidence in the course of these proceedings, however, subjective material has been provided to the Court by a number of means including the tender of a psychological assessment and report dated 9 July 2021 from the clinical psychologist, Mr John Machlin. A psychology review as well as counselling session notes by a clinical psychologist Ms Michelle Pal has also been tendered together with a transcript of Mr Thorne’s academic achievements at Western Sydney University.
Further material was provided to the Court in letters of support from his mother Mrs Selina Thorne and also a reference from his ex-wife, Ms Basma Cherkaoui. I should note, of course, the reservation which this Court is reminded of regularly, flowing from the absence of the ability to cross-examine or the absence of sworn testimony, pursuant to the observations of the Court of Criminal Appeal in R v Qutami (2001) 127 A Crim R 369 and cases following. However, there is a great deal of material which the Court is able to prima facie accept notwithstanding the absence of such sworn evidence.
The offender was born in Perth in June 1989. He is now 32 years of age. His father was Aboriginal and his mother was an Australian-born Malay-Singaporean. He had a brother who was approximately 18 months older. Following the separation of his parents when the offender was an infant he and his brother resided with their mother. She subsequently married a Moroccan-born Australian citizen and had a further six children with him. Until about the age of nine or ten the offender believed that this stepfather was his real father. His stepfather was a Muslim and the offender grew up in what he describes as a strict Muslim household. He described the family being under the abusive control of his stepfather who was physically violent to both the offender and his older brother as well as to his mother.

In the history taken by the clinical psychologist, Mr Machlin, the offender described being often battered and bruised. The extreme control exercised by his stepfather meant that the offender did not attend school until approximately grade 4. Mr Thorne suspected that one of the reasons was so that the bruising he had sustained would not be observed. He and his brother were not allowed to have friends and were kept away from people who visited the house. The offender described his maternal grandmother reporting the violence to authorities. He said that there were visits from police and child protection workers to the house. However, he did not recall if he had ever been removed from the house by authorities.
When the offender was about ten his stepfather moved the family to Saudi Arabia. Mr Thorne said that his stepfather’s violence became a lot worse in Saudi Arabia where family affairs were not interfered with by outside authorities. He claimed that his stepfather would use hammers, knives, heated spoons and electric cords to torment them. He described that they were often kept at home and away from school and were not allowed to go on any school excursions. He described an incident where his stepfather struck his brother whose glasses smashed leading to surgery to his brother’s eye. He described his stepfather as a master manipulator.
The account provided to Mr Machlin indicates, however, that both brothers ultimately attended university. Although there is no detail in the history provided to the psychologist, material tendered in the defence case indicates that the offender’s older brother was sentenced to four years imprisonment in Saudi Arabia for what was described as terrorism offences. It would appear that the offender himself was involved in protests against his brother’s imprisonment as a consequence of which he, himself, was deported from Saudi Arabia.
He ultimately arrived back in Perth in 2013. His mother had already returned to Perth. The offender describes having been branded as the “brother of a terrorist” and said that he was ostracised as a result. Included among hearsay accounts in a substantial bundle of material tendered by the defence there are reports that the offender was running a Facebook page on which he posted videos and sermons relating to Islam. Apparently police suspicions were that the Facebook page had gathered an online following amongst young Islamic extremists. The offender was described as having completely memorised the Quran before the age of six and having then gone to Riyadh at the age of ten and to at that time be involved in delivering lectures to brothers and sisters in different cities around Australia.
In early 2015 the offender and a number of his colleagues flew from Perth to Sydney utilising false names. He was charged under relevant Commonwealth legislation with a number of offences relating to the use of false identification to obtain an air ticket or air tickets and the subsequent taking of a flight using a fraudulently obtained ticket. In June 2015 he was sentenced by the then Magistrate Buscombe to a term of imprisonment of eight months with a non-parole period of five months following which he was to be released pursuant to a Commonwealth recognisance release order. The offender was granted bail pending an appeal from that sentence and he was required to comply with a curfew and also to report to police daily.
In August 2015 Judge Scotting of the Sydney District Court upheld the appeal and sentenced the offender to seven months imprisonment with a non-parole period reduced to three months. This variation had the effect of putting the offender back into custody but permitting his release some weeks earlier than the original order imposed by Magistrate Buscombe.
Detailed classification notes as well as Corrective Services internal memoranda and briefing notes disclose the classification of the offender with the designation of Extreme High Risk Restricted. He was described as constituting an extreme danger to other people and an extreme threat to good order and security.
The significance of the circumstances of his classification and designation and his placement in high security is sought to be relied upon in these proceedings as a relevant consideration in his current circumstances of incarceration. As indicated earlier I will return to that topic later in these Remarks.
The offender was released in due course in December 2015. In the course of an assessment conducted for the purposes of his sentencing in 2015, the offender had described having had an intention to resume his tertiary education at university in Sydney. He described having undertaken a course in finance at Curtin University in Perth and said that he was awaiting confirmation of enrolment to pursue a degree in teaching at the University of Western Sydney. He told the interviewer that he had mental health issues and that he was seeking treatment under the care of a psychologist.
He implied that he had PTSD as a consequence of childhood traumas and that his recent psychological health had been impacted as a consequence of media and other attention due to his preaching of Islam. At the time of that interview on 5 June 2015 he said that he was employed in Sydney although the nature of that employment is not disclosed in the case note report.
Following his release from the period in custody, he resided with his then wife and apparently fathered two children. He commenced a removalist business. His academic transcript from the Western Sydney University indicates that in July 2017 he commenced in the School of Law having enrolled in a Bachelor of Arts and Bachelor of Laws. He continued those studies which embraced aspects of advanced Arabic as well as Criminal Law and other legal topics during 2018 and into 2019.
In September 2017 he commenced counselling sessions with Ms Michelle Pal, clinical psychologist. The counselling sessions notes have been tendered. At that time he had been married for a little more than two years. He had three stepsons from his wife’s previous marriage who lived with them who were then aged 17, 14 and 12. The couple also had a 16-month-old son and at that time a newborn three-week-old son. The psychologist diagnosed him with Post-Traumatic Stress Disorder.
The offender continued to attend for counselling with Ms Pal on approximately a monthly basis. In October 2017 he described to her, having met another girl, who he liked. He was worried about the possible outcome. By early 2018 he reported being divorced from his wife although it would appear he was still living with her. He discussed visiting his brother in Melbourne who was apparently in gaol for offences in that State.
The offender was said, during 2018, to be struggling financially and he has consistently asserted that although not a user of drugs himself, he became involved in the supply of prohibited drugs because of his financial situation. In counselling sessions with the university counselling service he described problems in his personal life including that he had spent the majority of his time during his period in custody in solitary confinement. He also discussed difficulties with his ex-wife and with his brother’s incarceration in Melbourne.
It was later in 2018 in the course of his removalist business that he happened to come into contact with his co-offender Ms Rose in the course of collecting a mattress which she had donated to a charity. The offending thereafter unfolded in the fashion which I have described earlier in the narrative outline which I have set out earlier in these Remarks.
Mr Machlin, psychologist, described the offender’s account of childhood abuse and trauma as being a credible account. On behalf of the offender Mr Wallach of counsel acknowledged that the difficulties in the offender’s upbringing did not invoke an application of the principles in Bugmy. However, despite the fact that there were no direct links drawn between the offender’s background and the offending, Mr Wallach submitted that “It has to play some effect even if not a direct one which could be given, as it were some sort of psychological framework”.
In my view whilst the offender’s background provides some insight into his background circumstances it does not operate as a mitigatory factory in the function which I am required to perform.
A substantial deal of additional material reveals the classification of the offender following his arrest in July 2019 as a High Risk Offender and his consequent placement within Corrective Services in accordance with that classification and designation.
Mr Wallach points to that subjective circumstance as being relevant to a consideration of the offender being in more onerous conditions than if he were classified as an ordinary prisoner. I will deal with that submission shortly.
I turn to the topic of parity. In the course of sentencing Ms Rose I reached the following conclusion. I indicated that on the evidence in those proceedings,

“It is manifestly clear that the role of the offender” (that is, Ms Rose) “might properly be described as an assistant in the earlier supplies predominantly affected by Thorne and at its highest a facilitator in introducing the undercover operative’s intentions for the acquisition of either drugs or a firearm to those who were able to fulfil such supplies.”

I also expressed the view that the proposition that the nature of the police investigations which focused on Thorne and another man who appeared to be a more substantial supplier, provided support for the proposition that Ms Rose, who lacked such an apparent profile to the investigators, might therefore have been more readily exposed in effecting the actual transactions.
Mr Angelovski, Senior Solicitor on behalf of the Director of Public Prosecutions, submitted that the facts “are generally indicative of the fact that Thorne’s role was greater than Ms [Rose]’s role as he appeared to be involved in communicating with the undercover operative about the supply of prohibited drugs at the early stages of their relationship and the co-offender [Rose] was introduced to the undercover operative by Thorne at a later stage.” The Crown further submitted,

“Even though the offender and co-offender were in a partnership to their drug supply activities with the undercover operative, the evidence demonstrates that the offender Thorne had a more authoritative role than that of the co-offender [Rose].”

Mr Wallach, on the other hand, submitted that it was not accurate to refer to Ms Rose’s role as being subordinate. In Mr Wallach’s submission the role played by her was clearly different and it would be inaccurate to classify it as subordinate. Mr Wallach’s ultimate submission was that in the overall scheme of the supply the offending as between the present offender and Ms Rose was “quite roughly on an even basis”.
I turn to relevant factors in mitigation or aggravation. The offender, as I have indicated, pleaded guilty at the earliest opportunity and the Court will be required to allow a 25% discount with respect to his pleas. I have adverted to his subjective background and the circumstances that his asserted reason for involvement in the commission of the criminal conduct, ironically at a time when he was studying Criminal Law at university, is said to have been a financial motivation. He introduced his co-offender into the arrangements which he had been negotiating with the undercover and thereafter appeared to treat her as an equal partner. There do not appear to be any of the statutorily identified factors in aggravation.
The offender’s criminal record, other than the Commonwealth matters which led to his incarceration, is confined to driving offences in 2017, 2018 and then twice in July 2019. Of some concern with regard to his compliance with the requirements of the law, specifically obviously relating to driving a motor vehicle, each of those offences relate to driving whilst either suspended or actually disqualified. In sequence he received a s 10 bond in January 2018, a fine and disqualification in January 2019 and thereafter committing two separate drive whilst disqualified offences in 2019, shortly before he was arrested, was placed on a Community Correction Order for two years for those offences. I do note, of course, that his six months disqualification from driving which was imposed on 15 January 2019 undoubtedly explains the circumstance of the offender and Ms Rose arriving for the transaction relating to the kilogram of MDMA by bus. He was obviously complying with the requirements of the law so far as his licence was concerned on that occasion.
On behalf of the offender, Mr Wallach urged the Court to make a positive finding that the offender has good prospects of rehabilitation. He conceded in his oral submissions that it was not the strongest case for such a positive finding but submitted that the Court would have some optimism as a consequence of the fact that he is not a drug user and that he went into the supply of drugs as a consequence of financial stressors. As a factor indicative of good prospects of rehabilitation, the circumstance that somebody makes a conscious decision to engage in the supply of prohibited drugs as a means of obtaining money rather than as a consequence of their own addiction or perhaps more accurately as a corollary to an addiction, is one which I view with a level of circumspection.
I would view the present offender’s prospects for rehabilitation as being somewhat guarded on my assessment of his motive in committing the present matters.
On behalf of the offender it has been submitted that his circumstances of incarceration pursuant to his maximum security and high risk classification is such that the conditions are more onerous than would be the case if he was serving a sentence as an ordinary prisoner. The position relating to the designation for reasons completely unrelated to the present proceedings is one which is not completely clear to my mind. I accept, however, on the basis of the evidence which has been presented, that the conditions of his incarceration may properly be described as more onerous as a consequence of his designation and classification. As I have observed, that classification, however, is completely unrelated to any medical condition or ordinary subjective circumstance or to the circumstances of the nature of his offending which in some cases warrant a consideration of the circumstances of incarceration in a finding of special circumstances.
Notwithstanding a degree of reservation on my part, giving consideration to first principles, I am ultimately of the view that his classification in conjunction with the present COVID-19 circumstances attending his incarceration in a correctional institution does warrant a finding of special circumstances to some degree.
I turn to a consideration of the appropriate disposition of the matter. The appropriate disposition of the current matters is substantially affected by the findings and ultimate disposition of the proceedings against Ms Rose. Each of the actual supplies charged and the matters on the Form 1 was effected, in effect, or in actuality pursuant to a joint enterprise in which the physical roles of the two co-offenders varied to some degree. The task of physically carrying the drugs and money between the two vehicles was required to be effected by Ms Rose while the two male protagonists remained in their vehicles. This might well be properly perceived to be exposing her to a greater risk of intervention if other authorities had happened onto the scene. Ultimately, however, the position as between the two co-offenders graduated, as I perceive it, to one of equal culpability although one must recognise that the earlier supplies would indicate Mr Thorne in a more authoritative and organisational capacity.
I propose to recognise that distinction in the indicative sentence with respect to the substantive supply of the indictable quantity of 139.4 grams of cocaine, Sequence 7. With respect to Sequence 2, the supply of approximately 1 kilogram of MDMA or ice, being a large commercial quantity to which the three supplies of cocaine included on the Form 1 are to be taken into account, I have reached the conclusion that the same starting point that I indicated for Ms Rose should be apposite with respect to the current offender. I have come to the view that to do otherwise would give rise to a justifiable sense of grievance.
I intend to proceed by means of an aggregate sentence.
There will accordingly be an indicative sentence of three years with respect to the s 25(1) supply charge. That indicative sentence takes into account a reduction of 25% on account of the plea of guilty.
With respect to the supply of a large commercial quantity of MDMA the indicative sentence taking into account the 25% discount will be a period of seven and a half years. The indicative non-parole period will be a period of five years. That figure takes into account the three matters on the Form 1 document.
I proceed pursuant to s 53A by way of an aggregate sentence. The ultimate aggregate sentence with a finding to some degree of special circumstances will be a figure of nine years with a non-parole period of five years and six months. Both the sentence and non-parole period will date from the date of his arrest, that is 31 July 2019. The non-parole period will accordingly expire on 30 January 2025 and the additional term will expire on 30 July 2028.

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Decision last updated: 30 March 2022

Medium Neutral Citation:	R v Thorne [2021] NSWDC 455
Hearing dates:	17 September 2021
Date of orders:	8 October 2021
Decision date:	08 October 2021
Jurisdiction:	Criminal
Before:	Judge Sutherland SC
Decision:	At [72]-[77]
Catchwords:	CRIME — Drug offences — Supply prohibited drug to undercover officer – role of co-offender – high risk classification in prison
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	R v Qutami (2001) 127 A Crim R 369
Category:	Sentence
Parties:	Crown Mohammad Junaid Thorne
Representation:	Counsel: Mr N Angelovski (DPP) Mr I Wallach (Thorne) Solicitors: Solicitor for Public Prosecutions Karnib Saddik
File Number(s):	2019/00238166
Publication restriction:	Nil