R v Tommous Elchiekh
[2013] NSWDC 238
•08 November 2013
District Court
New South Wales
Medium Neutral Citation: R v Tommous Elchiekh [2013] NSWDC 238 Hearing dates: 7 August 2013 to 15 August 2013, 25 October 2013, 8 November 2013 Decision date: 08 November 2013 Before: Mahony SC DCJ Decision: Aggregated terms of imprisonment. For orders see [64]
Catchwords: Sentencing; four counts of deemed supply; Aggregation of terms Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Confiscation of Proceeds of Crimes Act 1989
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Amendment (Standard non-parole periods) Act 2013Cases Cited: R v Todd [1982] 2 NSWLR 517
Pearce v The Queen (1998) 194 CLR 610
R v Wong [1999] NSWCCA 420
Mill v The Queen (1988) 166 CLR 59 at 63
Luu v R [2008] NSWCCA 285
R v Rae [2013] NSWCCA 9
Maree Collier v R [2012] NSWCCA 213
R v Clark [2009] NSWCCA 49
R v Kama [2000] NSWCCA 23
R v Fidow [2004] NSWCCA 172Category: Sentence Parties: The Crown
Tommous Elchiekh - OffenderRepresentation: Director of Public Prosecutions - D Robinson
For the Offender - P Nematalla
File Number(s): 10/402429 Publication restriction: Nil
SENTENCE
On 15 August 2013 the jury delivered verdicts of guilty on four counts with which the offender was charged, namely:
"Count 1 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely, methylamphetamine, in an amount not less than the commercial quantity applicable to that drug, namely 294.28 grams.
Count 2 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely, 3, 4 methylenedioxy-methylamphetamine in the amount of 11.05 grams.
Count 3 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely ketamine, in the amount of 409.7 grams.
Count 4 - On 30 May 2005 at Meadowbank in the State of New South Wales supplied a prohibited drug, namely cannabis leaf, in the amount of 1,689.1 grams."
In respect of Count 1, the maximum penalty proscribed by s 25 of the Drug Misuse and Trafficking Act 1985 ("the Act") is 20 years imprisonment or 3,500 penalty unit fine or both. There is a prescribed standard non-parole period of 10 years in respect of this offence. In respect of Counts 2, 3 and 4, the maximum penalty proscribed by s 25 is 15 years imprisonment or 2000 penalty unit fine or both.
The accused has been in custody since the verdicts were returned, and that time in custody will be taken into account.
Circumstances of the Offending
Based on the evidence at trial, I make the following findings of fact. The evidence comprised the Crown case against the offender, who did not give evidence, but called Mr Jason Barbara to give evidence in his case.
On 30 May 2005 Police executed a search warrant at premises leased by the offender at 69/141 Bowden Street, Meadowbank. There was no challenge to the search warrant and a DVD of the search became exhibit A. It was an edited version of what was recorded on that day. Detective Sergeant Mathieson gave evidence to explain what was revealed on the DVD.
The premises comprised a master bedroom with ensuite, and a smaller second bedroom. There was a lounge/living area and kitchen, and a separate laundry area. In the lounge area was a small bar fridge. In the freezer of that fridge was located a plastic resealable bag containing a solid which was analysed as comprising 35.2 grams of methylamphetamine.
In the freezer of the refrigerator in the kitchen, two bags were located which were analysed to contain 227.88 grams of methylamphetamine and 31.2 grams of methylamphetamine respectively. The total quantity of methylamphetamine comprised those three bags in a total of 294.28 grams. That was the substance of Count 1.
In the main bedroom ensuite, in a vanity, Police located a resealable bag containing 50 pale green and brown tablets on the top shelf. These were analysed to contain 11.05 grams of 3, 4 methylenedioxymethylamphetamine which are the subject of Count 2.
In the vanity unit another substance was found in a plastic bag comprising a white powder which was analysed as comprising 409.7 grams of ketamine. This was the subject matter of Count 3.
In the kitchen in a cupboard adjacent to the sink, Police found a plastic resealable container containing green vegetable matter, together with a smaller plastic resealable bag containing green vegetable matter. In the laundry area under the sink, three vacuum packed sealed bags were found containing green vegetable matter. The total quantity of vegetable matter was analysed to be cannabis leaf in an amount of 1,689.1 grams.
The traffickable amounts proscribed in respect of the drugs the subject of each charge are respectively:
Methylamphetamine 3 grams
3, 4 Methylenedioxy-Methylamphetamine .75 grams
Ketamine 7.5 grams
Cannabis 300 grams
It is clear that the quantities of each drug involved greatly exceeded the proscribed traffickable quantities.
The commercial quantity is defined in relation to methylamphetamine as 250 grams.
Section 29 of the Act deems possession of a drug to be for the purpose of supply where the amount of the drug is not less than the "traffickable quantity" specified for the particular drug the subject of the charge.
A number of plastic bags were found in the laundry in the sink. These were empty bags which the Crown alleged had previously contained cannabis. On two of those bags, fingerprints were identified to be that of the offender.
Not shown in exhibit A were two individual pills found in the main bedroom on top of a cupboard. They were part of the total substances the subject of Count 2.
In the main bedroom in the bed head behind a sliding door was found a large amount of cash in bundles of notes in various denominations. The total amount of money found was $13,590.00. Also found in a drawer in the main bedroom was a small resealable plastic bag with nine SIM cards and under the mattress of the bed in the master bedroom was found a small book which contained a list of names and amounts. The Crown alleges that this indicated it was the property of someone who was supplying drugs. Documentation in the bedroom included a copy of the birth certificate of the offender and certain taxation records.
In the second bedroom was located a document identifying a Mr Wayne O'Farrell, who was called as a witness in the Crown case. He was sharing the premises with the offender and was working as a tow truck driver at the time. He denied any knowledge of any of the drugs found in the premises.
Mr O'Farrell had returned to the unit premises within two or three days of the execution of the search warrant, to find the lock of the front door of the unit broken and the premises open. He contacted the real estate agent and, whilst the lease had been terminated, paid the balance of rent owing on the lease and stayed there until termination of the lease on 18 June 2005. In cross-examination Mr O'Farrell was subjected to an attack on the basis that he was in fact a drug supplier and had been a drug supplier in partnership with Mr Stephen Seymour. He denied those allegations and an allegation that Mr Seymour had stolen small amounts of drugs from him. Whilst he was the owner of the small bar fridge in the living area of the unit, he denied that the drugs in the small bar fridge were his. Mr O'Farrell gave evidence that he did not call the accused when he returned to the premises, but that the accused's brother had contacted him.
The offender was not located, despite subsequent enquiries. He was ultimately arrested pursuant to the execution of a Police Warrant on 21 June 2012. At the time of his arrest, he was given the usual caution and then said:
"My name is Tom Elchiekh. I feel like I've been in gaol for the past seven years. I just want to get these charges over and done with."
The offender declined to be interviewed by Police and did not give evidence at the trial. He did call in his case Mr Jason Barbara who gave evidence to the effect that in early 2005 he had obtained a pound of cannabis for Mr O'Farrell and Mr Seymour to supply, and that they had paid $4,000.00 for the cannabis. He gave evidence that he observed scales in the premises occupied by Mr O'Farrell and Mr Seymour and empty plastic bags. Mr Barbara also gave evidence that he observed an argument between Mr O'Farrell and Mr Seymour involving Mr Seymour pinching cannabis from the packets to be sold. He also gave evidence that he heard about an incident where they were watching TV at the premises and some people busted through the door with guns and demanded money from them, and it was "something to do with E's".
Mr Barbara gave evidence that he had never bought drugs from the offender and had never known him to be a supplier of drugs. He considered himself to be a good friend of the offender but had not seen him for seven years until the week of the trial.
Mr Barbara himself had been a drug dealer and in 2007 had been convicted for supplying a prohibited drug, to which he had pleaded guilty. He had a criminal record that went back to 1988 in the Children's Court and had multiple offences in his record. He gave evidence that he stopped supplying prohibited drugs after he was charged on 20 October 2006.
Subjective matters
The offender is aged 38, and has, at the time of sentencing, been in custody for 304 days altogether. He has no relevant criminal history, namely, this is his first offending concerning drugs.
At the age of 16 the offender left school and commenced work in the panel beating industry. For some years prior to his arrest he had operated his own panel beating business and had significant and substantial contracts with a number of motor dealers, together with work from the public. He employed a number of people and had always been in full employment.
No pre-sentence report was tendered on the sentence hearing, however, it was submitted on behalf of the offender that he had used drugs recreationally in his youth, but in the years prior to the offending, had not used drugs at all, nor had he used them in the 7 year hiatus between the offending and his arrest.
In 2003 he had entered into a relationship with a woman who became his de-facto wife, and together they had a son, Mustapha, who is now aged 6 years. The couple had separated amicably in 2010, however, the offender had continued to support his former partner by way of payment of her rent, together with a weekly amount. There were no Family Court orders in place. It was submitted that in 2009 his former partner had been diagnosed with leukaemia and that her treatment was ongoing. This meant that she required respite from time to time and the offender had provided support to her by having contact with his son from Friday to Monday each week, together, at other times to provide her with respite. It was a flexible arrangement. He had also provided financial support to his parents from time to time, his father had been diagnosed with throat cancer and his mother had recently undergone an operation on her leg.
Following his arrest, his business lease had been transferred and the Court was informed that the contracts had been sold off.
Submissions made of behalf of the Offender
Counsel for the offender submitted that given the supply charges were deemed to be supply, it was an inescapable conclusion that the offender had not been charged with selling the drugs per se, that is, there was no evidence of actual transactions of supply and the Court would move cautiously in finding beyond reasonable doubt that the offender was in fact trafficking, having regard to the absence of indicia of supply. Such evidence as there was could be interpreted equivocally and therefore the Court should exercise caution.
It was further submitted that as all the drugs were found at the same time during the execution of the Police search warrant, that reflected criminality to the extent of one transaction only and in those circumstances, warranted a totally concurrent sentence for all offences. Counsel, relying on Pearce v The Queen (1998) 194 CLR 610, submitted that the sentences should not in those circumstances be separated and accumulated.
Counsel for the offender submitted that s 53A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") gave the Court power to impose an aggregate sentence of imprisonment in respect of all of the offences instead of imposing a separate sentence of imprisonment for each. The separate offences here were charged because of the nature of the drugs found. The fact that they were found in different locations within the one premises, was not sufficient reason to accumulate the sentences on all four offences.
Counsel for the offender further submitted that delay was an important matter here, relying on R v Todd [1982] 2 NSWLR 517.
It was submitted that during the 7 year hiatus between the offending and the offender's arrest, there was no evidence whatsoever that he had absconded in any way. Indeed, he was arrested at his place of work and there was no evidence to establish that he had any knowledge that a warrant had been issued for his arrest some two years after the offences had taken place. For those reasons he should be entitled to the benefit of that delay, together with the fact that he had not offended during that period.
In respect of the objective seriousness of the offending here, given the large quantities of drugs which were acknowledged, together with the fact that they were intercepted before being disseminated into the community, it was submitted that the objective seriousness lay below the mid-range, or at the top end of the low-mid range for such offending.
It was further submitted that special circumstances applied here given that it was the offender's first full time custodial sentence and that at the end of his imprisonment he would require rehabilitation and time to readjust for the purpose of taking his place back in the community. Thus, the Court could alter the statutory ratio of the overall sentence and the non-parole period, pursuant to s 44(2) of the Sentencing Act.
The Crown Submissions
The Crown submitted that the objective seriousness of the offending here was above the mid-point, but not greatly above that mid-point of objective seriousness. It was inevitable that a substantial term of full time custody was warranted, as on the whole of the evidence, the Court should reject the submission that this was a one-off type of offence. Rather, the evidence led to an inevitable conclusion that the offender was involved in trafficking in a very substantial way. In addition to the large quantities of drugs involved in each of the four offences, there were other objective indicia of a drug trafficking operation, namely, the substantial amount of cash found in the offender's bedroom, the variety of drugs involved (referred to as a "supermarket"), the plastic bags of a resealable type found in the premises, the notebook with a list of names and numbers found under the mattress of the bed in the offender's bedroom and the empty bags found in the laundry which had previously held cannabis.,
The Crown submitted that the amount of cannabis found itself was a very large amount indicative of dealing in drugs in a very substantial way and that it could be clearly inferred that the offender was responsible for disseminating drugs into the community on a large scale operation for profit.
The Crown submitted a very significant aspect in sentencing for these offences was general deterrence. In addition, specific deterrence was relevant here. The subjective matters raised by the offender did not go close to a category of hardship to third parties that might sound in mitigation of penalty. Rather, the offender was in no different position to the circumstances that many offenders find themselves on sentence in terms of their personal and working lives.
On the question of delay, the Crown submitted that it "beggared belief that the offender did not secrete himself from the authorities". He knew the search warrant had been executed and that the Police had visited his workplace on a number of occasions. They had gone to his family home and spoken to his brother. The evidence established that a warrant was issued for his arrest two years after the offences, however, there was no evidence that he had personal knowledge that that warrant had issued. He was not arrested until 5 years later. The Crown submitted that the delay should not benefit him in any way in terms of mitigation of penalty and that the offender's submission to the contrary was misconceived.
The Crown acknowledged that the fact that he had not offended for a period of 7 years after these offences was a matter that could be taken into account. However, there was no evidence of remorse and little evidence in respect of his prospects of rehabilitation.
On the question of special circumstances, the Crown submitted that the only factor that could be taken into account was that this was his first time in custody and that that was of little weight in the exercise of the Court's discretion. Further, there was no set proportion or adjustment of the statutory ratio in these circumstances that would warrant anything other than a nominal adjustment of the statutory proportion.
The Crown submitted that the maximum penalty and the standard nonparole period in respect of Count 1 were guide posts which must be meaningful guide posts. The objective seriousness of the offence was higher than mid-range because of the sheer quantities of drugs involved together with the variety of drugs which were indicative of trafficking in a very substantial degree. The Crown submitted that it was appropriate to partially accumulate the sentences in respect of each matter, having regard to the principles of sentencing set out in Pearce v R, supra.
Determination
Section 3A of the Sentencing Act sets out the purposes of sentencing as follows:
"3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender, and
(g) To recognise the harm done to the victim of the crime and the community."
In considering the appropriate sentence in respect of each of the offences, I have had regard to the maximum sentence proscribed in respect of Count 1 of 25 years and the standard non-parole period of 10 years imprisonment, together with the maximum sentence proscribed in relation to the s 25 ss(1) Counts, 2, 3 and 4 of 10 years imprisonment. The maximum penalties and standard non-parole period are guide posts which I have taken into account in considering all of the circumstances of the offending. I have also taken into account the large quantities of drugs involved in each case, and the large amounts by which they exceed the proscribed traffickable quantities in respect of each drug; and in respect of Count 1, the fact that it is a commercial quantity.
I accept the Crown's submission that general deterrence is an important matter to be taken into account in drug trafficking offences (see R v Wong [1999] NSWCCA 420) and that specific deterrence is also relevant here. Having regard to the presence of the large sum of cash, the notebook, the resealable plastic bags and the used plastic bags that had previously contained cannabis, I am persuaded beyond reasonable doubt that the offender was involved in drug trafficking for profit. Counsel for the offender submitted that he had not used drugs for some years prior to the offending, however, that merely underlines his involvement in disseminating a variety of prohibited drugs into the community.
I note however, that the quantities of each drug are well below the proscribed quantities that are defined under the Act as large commercial quantities. I have taken into account that there is no evidence before the Court of manufacture of the drugs, and there is little evidence of repackaging the drugs for sale to end-users. It is clear that the offender is not at or near the top of any hierarchy in the distribution of the drugs.
Having regard to all of the evidence and the matters outlined above, I find that the objective seriousness of the offending here falls below the midrange of seriousness of offences pursuant to s 25 of the Act. However, it is not in the low range of seriousness of such offences given the quantities of drugs involved and therefore I find that it is just below the mid-range of seriousness for such offences.
I am not persuaded that the subjective matters relied on by Counsel for the offender, including his financial support for his ex-partner and son, and the support provided by him from time to time for his parents, amounts to hardship that would mitigate the penalty for the offences.
On the question of delay, I am not persuaded that the whole of the period of 7 years delay can be attributed to the offender secreting himself from the authorities. It was conceded that there was no evidence to establish that he knew that a warrant had been issued for his arrest. At the time of his arrest, that warrant had been outstanding for a period of 5 years. There was scant evidence of the attempts that the Police made to find him immediately following the execution of the search warrant which led to the charges, and the evidence established that he owned a property outside Sydney and travelled to his place of work regularly. He was eventually arrested near his place of work. In those circumstances the charges had been hanging over him for a substantial period of time which is reflected in what he said to the Police upon his arrest, as set out in paragraph 20 above. I am therefore prepared to take into account as delay, relevant to his sentence, half the period of 7 years that expired between the date of the offence and his arrest. In R v Todd [1982] 2 NSWLR 517 Street CJ said at [519]:
"Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
I have also had regard to the fact that the offender has remained in custody for a total period of 304 days. Whilst bail was refused following his arrest on 20 June 2012, he was released on bail on 4 February 2013 and appeared on bail at the trial which commenced on 7 August 2013. Following the jury's verdict of guilty on each of the four counts in the indictment, he was refused bail on 15 August 2013 and has been in custody ever since.
Section 53 and s 53A of the Sentencing Act provide as follows:
"S 53 Multiple sentences of imprisonment
(1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence.
(2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.
S 53A Aggregate sentences of imprisonment
(1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.
(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following:
(a) The fact that an aggregate sentence is being imposed,
(b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.
(3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation another offence.
(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour - see Mill v The Queen (1988) 166 CLR 59 at 63.
I am mindful that the offences are interrelated in that all of the drugs were located within premises leased by the offender at the same time during the execution of the search warrant. However, in Luu v R [2008] NSWCCA 285 at [32] it was held that possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of deemed supply. This applies here where there are four different types of drugs in comparatively large quantities. Having regard to the principles of sentencing referred to above and in particular to those of totality and proportionality, I propose to aggregate the sentences to be imposed having first assessed the indicative sentences to be imposed in respect of each Count. It is clear that aggregation of sentences pursuant to s 53A must reflect some accumulation of the indicative head sentences - see R v Rae [2013] NSWCCA 9.
Section 54B of the Sentencing Act was amended by the Crimes (Sentencing Procedure) Amendment (Standard non-parole periods) Act 2013, which commenced on 29 October 2013. It applies to offences committed before the Act commenced pursuant to clause 4 of Schedule 2. It provides as follows:
"54B Consideration of standard non-parole period in sentencing
(1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.
(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.
(3) The court must make a record of its reasons for setting a nonparole period that is longer or shorter than the standard nonparole period and must identify in the record of its reasons each factor that it took into account.
(4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.
(5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account.
(6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable.
(7) The failure of a court to comply with this section does not invalidate the sentence."
As outlined above, Counsel for the offender submitted that the finding of special circumstances should be made here on the basis that it is the offender's first custodial sentence and that he will require assistance in his rehabilitation back into the community. In Maree Collier v R [2012] NSWCCA 213, McClellan CJ at CL (with whom Hulme and Schmidt JJ agreed) said:
"[35] It was submitted to this court that the applicant, being almost 50 years of age and facing her first time in custody with good prospects of rehabilitation, should have been given the benefit of the finding of special circumstances.
[36] Inherent in this submission appears to be a misunderstanding of the role of special circumstances when sentencing. The finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. From my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances; see also R v Kama [2000] NSWCCA 23. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated, is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period; R v Fidow [2004] NSWCCA 172 at [18] (Spigleman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify the finding that the offender's circumstances are special."
No pre-sentence report was relied on by the offender at the sentencing hearing, and whilst the submissions made by counsel on his behalf make it clear that he has strong familial support in the community, there is no evidence upon which to base a finding that he will require assistance in his rehabilitation back into the community. For those reasons, I decline to make a finding of special circumstances pursuant to s 44(2) of the Sentencing Act.
I have taken into account as a mitigating factor pursuant to s 21A(3) that the offender does not have any significant record of previous convictions, and that he did not offend during the seven year period between these offences and his arrest, together with the delay between the date of the offences and his sentencing.
Sentence
I am satisfied pursuant to s 5 of the Sentencing Act that no penalty other than imprisonment is appropriate.
In respect of the offence in Count 1 of supplying drugs not less than the commercial quantity, the indicative sentence is a non-parole period of 6 years. As you have been in custody for 304 days, that non-parole period would have commenced on 8 January 2013 and would have expired on 7 January 2019. I would have sentenced you to an additional term of 2 years to expire on 7 January 2021.
In respect of Counts 2, 3 and 4, pursuant to s 53A(2)(b), the indicative sentences that I would otherwise have imposed in respect of each offence are as follows:
(i) In respect of Count 2, a non-parole period of 2 years and 6 months imprisonment with a balance of a term of 1 year imprisonment. The total sentence would have been 3 years and 6 months imprisonment.
(ii) In respect of Count 3, a non-parole period of 3 years imprisonment with a balance of a term of 1 year imprisonment. The total sentence would have been 4 years imprisonment.
(iii) In respect of Count 4, the sentence would have a non-parole period of 2 years with a balance of a term of 1 year imprisonment. The total sentence would have been 3 years imprisonment.
I convict you of each of the offences in Counts 1-4 in the Indictment and pursuant to s 53A I impose an aggregate term of imprisonment. I fix an aggregate non-parole period of 7 years and 6 months to commence on 8 January 2013 which will expire on 7 July 2020.
I order an aggregate total term of imprisonment of 10 years to commence on 8 January 2013 and terminate 7 January 2023.
The Court orders that your parole eligibility date is 7 July 2020.
I further propose to order that the amount of cash in the sum of $13,590.00, referred to above, be forfeited pursuant to s 13(2) of the Confiscation of Proceeds of Crimes Act 1989. That order was not contested by the offender.
Orders
I make the following orders:
(1) You are convicted of the four Counts on the Indictment and pursuant to s 53A I impose an aggregated term of imprisonment. The Court fixes an aggregate non-parole period of 7 years and 6 months to commence on 8 January 2013 and to expire on 7 July 2020, and an aggregate total term of 10 years to commence on 8 January 2013 and to expire on 7 January 2023.
(2) The Court orders that your parole eligibility date is 7 July 2020.
(3) Pursuant to s 53A(2)(b) the indicative sentences are as follows:
- Count 1 - Indicative non-parole period of 6 years and total sentence of 8 years.
- Count 2 - Indicative non-parole period of 2 years and 6 months and a balance of sentence of 1 year. The total sentence would have been 3 years and 6 months.
- Count 3 - Indicative non-parole period of 3 years and a balance of sentence of 1 year. The total sentence would have been 4 years.
- Count 4 - Indicative non-parole period of 2 years and a balance of sentence of 1 year. The total sentence would have been 3 years.
(4) Order the sum of $13,590.00 be forfeited pursuant to s 13(2) of the Confiscation of Proceeds of Crimes Act 1989.
Decision last updated: 16 December 2013
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