R v Tuameh, Salim

[2007] NSWDC 348

CITATION:	R v Tuameh, Salim [2007] NSWDC 348
JUDGMENT DATE:	12 December 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted.; Non parole period of 17 months to commence on 4 December 2007 and to expire on 3 May 2009. Balance of term of 17 months to expire on 3 October 2010
CATCHWORDS:	Criminal Law - Sentence - Knowingly take part in supply of prohibited drug - cocaine - involvement in several transactions - 2 deliveries - total 217 grams - 29 year old - Lebonese heritage - medical issues - unreliable historian - early guilty plea
CASES CITED:	R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Salim Tuameh
FILE NUMBER(S):	06/21/0345

JUDGMENT

1. Police were investigating the supply of cocaine focusing in particular on Granville and Merrylands. In the course of that work they uncovered a cell of four persons including Salim Tuameh knowingly involved in supplying cocaine.

2. With the use of phone taps, undercover police operatives, surveillance, marked money and other means police were able to obtain evidence against these four. Three of these offenders have already been sentenced by Judges of this Court. Today Salim Tuameh is to be held accountable for his criminal conduct between 8 March 2006 and 31 March 2006 when he knowingly took part in the supply of cocaine, a prohibited drug in New South Wales.

3. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court committed by this offender harming this community.

4. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender, that is, his subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

5. My fact-finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court a judge is not party to the agreed set of facts. The tender of agreed facts does not relieve him or her from the fact-finding responsibility. It simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered the Court can only find facts from the evidence placed before it.

6. The offender’s rehabilitation prospects will need to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, the length of the parole period and of course the ultimate length of term of imprisonment or other penalty to be imposed.

7. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740.

Facts

8. One Aboud Yasin had made arrangements to supply 4 ounces or 112 grams of cocaine to an undercover operative involved in a controlled operation seeking to be supplied with drugs. Yasin of course was unaware he was dealing with a police operative. In the course of fulfilling that order Yasin received a portion of this cocaine, namely 22 grams, from Tuameh.

9. Lawfully intercepted telephone calls captured the negotiations, which led to that supply of 22 grams of cocaine for later use as evidence. Tuameh directed Yasin to “Fishing R Us”, a business run by his family located on Parramatta Road at Auburn, to collect the 22 grams of cocaine. Yasin was observed attending the shop, leaving shortly afterwards, placing an object in his pocket. As Yasin drove from the shop, telephone intercepts recorded further conversations with this offender where he discussed prices and the need to cut the cocaine with other agents in order to make a total volume of one ounce or 28 grams.

10. Yasin had made it clear to Tuameh that he was seeking 4 ounces for the purpose of supplying to the undercover operative. Yasin intended the 28 grams would then be mixed to a further 3 ounces or 84 grams of cocaine that he was obtaining elsewhere to satisfy a total supply quantity of 4 ounces or 112 grams of cocaine.

11. Yasin then spoke with Hamid, another member of the cell, and indicated that he required a further 3 ounces of cocaine. Ultimately Hamid and Yasin travelled separately to Granville Park in order to supply the total quantity of cocaine to the undercover operative. Yasin supplied the undercover operative with cocaine weighing a total of 109.6 grams. At that weight it fell short by 2.4 grams of the intended supply. He received $26,000 in cash payment. Tuameh was not present at the time of this exchange. The cocaine was seized by police, the money however was never recovered.

12. Prior to 30 March another arrangement was made between Yasin and the undercover operative for the supply of a further 4 ounces or 112 grams of cocaine. On 24 March 2006 Tuameh contacted Yasin indicating to Yasin that he had access to further quantities of cocaine. On 28 March Tuameh rang Yasin indicating that he would be “good for further” cocaine for Yasin to supply to the undercover operative and for providing a better price than Yasin might otherwise obtain. Tuameh described in this conversation a maroon Hyundai Excel motor vehicle he had bought. That call was finalised with Yasin confirming that he would see Tuameh at his shop Fishing R Us the following day.

13. About 4pm on 29 March 2006 Tuameh contacted Yasin stating that there was “one person that wanted ‘five five’ but he could get it from the Asians for ‘five four’”. By “five five” or “five four” Tuameh was quoting prices of cocaine available as being $5,500 or $5,400 per ounce. There were further calls between Tuameh and Yasin on 29 and 30 March 2006 on the same topic. On 30 March 2006 Tuameh and Yasin met, travelled to a location where Tuameh then lent Yasin his Hyundai Excel. Further calls were intercepted whereby Tuameh directed Yasin to a location to receive the cocaine. Tuameh and Yasin were also under physical surveillance during this time.

14. The agreed facts then say Yasin went alone to Granville Park area where he met with the undercover operative and supplied the cocaine. They commenced the drug and money exchange. It would seem that in the course of that exercise police arrested Yasin and seized 108.1 grams of cocaine. About 2.40pm that day police executed a search warrant on Fishing R Us where Tuameh was arrested. So far as the evidence goes it does not disclose finding any incriminating material at that site.

15. Tuameh was taken to Parramatta Police Station. He declined to be interviewed and was charged.

Objective Criminality
16. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of an offence as an essential step in assessing the seriousness of the criminal behaviour of the offender in the commission of that offence. That is done by comparing objectively the criminality exhibited in the case before the court with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence can be evaluated. The objective criminality will usually have the most important impact upon the overall sentencing outcome.

17. The courts and the legislature have made it clear that drug supplying is an unacceptable criminal activity. It should not be difficult to understand why. The courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the drug’s potential for harm. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and by its indirect impact upon the community at large. For some users, drugs such as the one that I am concerned with here, cocaine, can be addictive.

18. Some illicit drugs are destructive causing or contributing to mental health problems and/or aggression. Supplying drugs can lead to, create or sustain drug addicts. Drug addicts are human beings whose capacity to function and to feel human is smothered to a greater or a lesser extent by their addiction and the other effects of drugs. Some drugs are otherwise harmful to the health both physical and mental of persons. This is the real essence of the criminal harm done by those supplying drugs to others, that is, that in a greater or a lesser way they are contributing to the disenabling of other human beings who consume drugs.

19. Associated with addiction are other forms of crime such as armed robbery, break and steal and crimes of fraud, that is, a loss to an owner of property from his or her productive efforts at the hands of the drug addict. Associated with those crimes is the trauma, emotional and psychological, that occurs to victims. Spending money on drugs by addicts without corresponding productivity to the community amounts to a monumental transference of wealth usually from those who are already poor or struggling without any corresponding economic gain for the community. At every level then drug supplying is criminal conduct because of its corrosive effect upon individuals and society as a whole.

20. This offender has not been charged with supply, but in the course of his dealings with Yasin he became concerned in two deliveries of drugs to the undercover police operative. The total quantity of cocaine supplied in those two deliveries amounts to 217.7 grams of cocaine. The significance of that sum is to be measured against these benchmarks. A trafficable quantity of cocaine, that is, a quantity of cocaine that is considered sufficiently large for the authorities to regard as being held by a person for the purposes of supply, is measured at 3 grams. An indictable quantity of cocaine is measured at 5 grams. Indictable means that it would come before this Court rather than the Local Court. It is another measure of seriousness. The commercial quantity is measured at 250 grams and the large commercial quantity at 1 kilogram.

21. The maximum penalty for an indictable quantity is fifteen years imprisonment, for a commercial quantity twenty years imprisonment, and for a large commercial quantity if memory serves me life imprisonment. The supply that Tuameh was involved in is about 33 grams shy of a commercial quantity. His involvement in the first delivery involved the supply of 22 grams, advising on prices, drawing attention of the need to dilute the cocaine he had supplied with other agents to increase its volume to 28 grams.

22. As to the second delivery Tuameh’s involvement was to inform Yasin of his access to cocaine, then to present as being able to obtain cocaine at a better price, to advise Yasin of prices per ounce being offered by sellers, joining with Yasin to travel to a location where he lent his Hyundai Excel so that Yasin could collect and pay for the cocaine. Implicit in that must be that Tuameh arranged to put Yasin in contact with the suppliers of the cocaine. I am also satisfied the Hyundai was used by Yasin to return from the supplier. What is unclear on the evidence however is whether Yasin returned to this offender or went directly to the rendezvous with the undercover operatives in the Excel and with the cocaine. In other words it is not made clear whether there was any change of vehicles, it not being proved I am not permitted to speculate.

23. In respect of both deliveries Tuameh’s involvement was critical to Yasin’s success in delivering the specified quantity of cocaine and in the second in the actual delivery of the specified drug and quantity. His role in the second delivery was as a facilitator between Yasin and the ultimate supplier of the cocaine. His role in the first was by way of advisor and completing the total quantity of drug required. I am satisfied beyond a reasonable doubt his involvement in both deliveries was for financial gain. I am satisfied he supplied the 22 grams of cocaine in the first delivery at some profit to himself. I am also satisfied there was some financial benefit accruing to him for his involvement in the role of facilitator.

24. Finally, it is important to note this offender’s capacity to operate at the level he did can only be consistent with past activity. In other words, his involvement in these two deliveries was not a one off first time event for him. Put another way, this offending conduct cannot be viewed as some unpredictable, inexplicable act contrary to his past experiences. His level of criminal culpability in the two deliveries represented by the charge of knowingly concerned in supply is significant. As I said, it was critical to the success of each delivery.

Subjective Matters
25. I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but also I am sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate.

Background, Personal Circumstances, Relationship
26. Tuameh is a twenty-nine year old man residing with his wife in Guildford. He is the third eldest of five siblings. He was born in Australia although is parents are of Lebanese origin. They all returned to Lebanon in 1999. He returned to Australia and worked in the family fishing tackle store. In 2002 though he returned to Lebanon, married in June of that year and returned with his bride to Australia.

27. It appears his family is supportive. He and his wife have had conflicts relating to his self indulgent, negative, peer oriented and drug indulgent lifestyle. In more recent times there apparently has been some improvement. His wife was in Court supporting him when submissions were being put yesterday.

Education, Skills and Employment
28. The offender completed Year 10 at the Merrylands High School. He claimed his parents strove to give him the best in terms of education. He commenced working at seventeen. What happened between leaving Year 10 and seventeen is unclear. He began a bricklaying apprenticeship in 1998. That was interrupted when his family moved to Lebanon the following year. Upon his return he worked in the family fish tackle shop. Matthew Carlton, a rehabilitation consultant with CRS Australia, notes “Mr Tuameh is also restricted from undertaking retail store management that he has been employed in, in the past as he is unable to be alone in the store in case he experiences another [epileptic] seizure.”

29. On the other hand Joseph Chalouh wrote a reference to the offender in which he noted the offender has “helped in the management and running of his business and has moved mountains of stock in a single day without complaining about the workload”. On 9 March 2006 the accused directed his co-offender to meet at the Fishing R Us store to collect 22 grams of cocaine. On 31 March Tuameh was also working at the shop when police arrived with the search warrant. He told Probation and Parole he had been employed in the family business for four years. I am satisfied he was working in the fish tackle shop during the early part of 2006. It may be he is seeking to use epilepsy as a means of claiming invalid status or for some other purpose, but I do not accept that he has told Mr Carlton the complete truth. In any event he also appears to possess work skills as a bricklayer and in retail selling.

General Health
30. His doctor, without providing any history, claims Tuameh has been suffering epilepsy since 2002. The doctor says he is receiving medication for it. His last attack was on 23 March 2005 when he suffered a single, generalised seizure lasting several minutes. Significantly, that seizure is said to have occurred eight months after he stopped taking his medicine to control his epilepsy. What is interesting to note however is that ten days before that seizure and before telling the Auburn Hospital he had not taken his medication for eight months he was telling Peter Kalogiannis he had been taking Epilim (an epilepsy suppressor) daily.

31. There is a report from his dentist dated 18 October 2007 claiming the offender has been attending the dental clinic of Dr Adel Mathias “for urgent dental treatment course which in my view might take a month to complete”. What the nature of this condition was requiring urgent dental treatment was not disclosed. No history was given. The month predicted for the treatment has now completed, one can only assume the problem requiring the treatment has now been resolved.

32. Mr Tuameh presented in Court on crutches. I assume that related to a comminuted fracture of the proximal to the mid shaft of the tibia. That injury occurred in February 2007. In May 2007 Dr Hanna, the offender’s GP, notes that the initial treatment was open reduction and fixation. Dr Hanna remarks that unfortunately the wound became infected and noted that he was using antibiotics and dressing daily.

33. Mr Tuameh has also been consulting his physiotherapist since April 2007 in respect of this injury. On 3 December the physiotherapist notes, “We are in the process of having Tuameh comfortably ambulating without the aid of crutches”. Even so, the physiotherapist believes it is imperative for him to continue with physiotherapy for a further six months to improve what has been achieved.

The most recent Probation and Parole report notes,

“Mr Tuameh failed to attend three prearranged appointments on 29, 30 and 31 October. He cited work and a conflicting specialist appointment as reasons for failure to attend the first two appointments...in interview the offender related dental problems and ongoing physiotherapy for a motor cycle accident as factors of concern for him at present...Mr Tuameh subsequently notified the Service he had been hospitalised with gastrointestinal virus from 1 December 2007...Mr Tuameh has related a number of unverified health problems...”

34. A number of matters are worth noting. In that report the offender cited work as among other reasons for his failure to attend. However, in May 2007 he told Probation and Parole he was “unemployed” and a “financial drain on his family”. CRS Australia has commented in July 2007 that “a vocational rehabilitation program to assist him return to employment” was being undertaken. The offender’s work status consequently is unclear.

35. I note that Tuameh does not nominate to Probation and Parole the specialist he is seeing. The letter from the dentist in October 2006 does not specify any dates of appointments. Tuameh claims, I’m going to physiotherapy for a “motor cycle” accident to Probation and Parole. Yet the physiotherapist appears to be treating a fracture that the offender told Peter Kalogiannis he had received whilst jogging in the evening with his friend.

36. The onus of proving mitigating factors falls upon the defence. While there is evidence before the Court of various conditions, as the evidence presently stands it also raises issues requiring clarification. At the end of the day I can put my findings this way.

· I am satisfied he has had some epileptic seizures. Those are likely to be contained by medication, but he appears not to be taking it at least regularly.

· I am satisfied he had some need for some form of dental treatment, has had the opportunity to have that treatment, but whether he has availed of that opportunity is unknown, but he seems to have used it as a basis for failing to comply with Probation and Parole appointments without prior consultation with them.

· In February 2007 he fractured his right tibia. It was set by standard medical procedures. At some point there was an infection. The cause of the facture is unclear as are the circumstances in which it occurred. He has received some physiotherapy for it although how frequently and what progress was made as a consequence of physiotherapy is unclear. Long after the fracture should have healed he presents in court on crutches, but with no medical record of its progress. I do note however his hypochondrial scores in psychological testing were high. There is no evidence before the court other than second hand hearsay that he was hospitalised with a gastrointestinal virus from 1 December 2007.

In those circumstances the case for mitigating any sentence outcome on the basis of general physical health is weak.

Mental Health Issues

37. The defence retained Mr Peter Kalogiannis, consultant psychologist, who prepared two reports on Tuameh. Mr Kalogiannis assessed the offender as presenting with symptoms that placed him in the moderate range of depression, the severe range of experiencing anxiety and having features consistent with bipolar issues in his personality.

38. In both reports he expresses the opinion that Tuameh is immature and impulsive, although his testing only focused on symptoms exhibited in the fortnight preceding each test. He sought to extrapolate from testing an opinion “It...seems likely that his mental state at the time of the offence was one of disorganised paranoia and chaotic thoughts also adversely contributed to by his excessive use of substances....”

39. It is difficult understanding this assessment from the material before me. Scores from the March test that appear to contradict this diagnosis include:
· Impulsivity - slightly below average, prudent, sober, serious
· Conformity - average score for males
· Suspiciousness - slightly above average, hard to fool, jealous
· Imagination - average score for males
· Shrewdness - very high score, shrewd, polished, calculating
· Self sufficiency - average for normal male
· Self-discipline - average for normal male.

40. It follows that I regard Mr Kalogiannis as overstating the offender’s mental condition prior to the offending conduct and at the time of the offending conduct. He also has failed to distinguish between the stressors prior to and at the time of offending from the stressors arising as a consequence of being caught, charged and seeing co-offenders sentenced to substantial periods of imprisonment.

Drug and Alcohol
41. Tuameh told Probation and Parole he began using drugs at the age of twenty-two. He told Peter Kalogiannis “he didn’t actually like drugs” and that his consumption of them was a consequence of peer pressure and helped dealing with stress.

42. He links his early drug abuse to helping him deal with anger after arguments with his wife. He concedes use of large amounts of cocaine and ecstasy and occasionally cannabis. His cocaine use was daily. When using drugs, presumably ecstasy and cocaine, he would skip sleep often for days. Then he would become irritable and cranky.

43. There were other times he said when he could go without drugs and work full time. In May he told Probation and Parole he had ceased all illicit drug use. I am satisfied his involvement in drugs made his participation in this offence easier for him than it would have been without that drug history. I accept that some portion of his financial reward was spent on drugs, but in the light of his concession of occasions of minimal drug use when working full time I do not regard his level of dependency as reaching a level where it was a factor in his determination to be involved in this offending conduct.

44. I note to his credit that Tuameh does not appear to have problems with alcohol.

Criminal History and Character
45. Tuameh is a married man aged thirty. He appears to have good family support and a stable childhood environment. After leaving school he presented as having a good work ethic. He still works in the family fishing tackle business. Regrettably, his associates are linked to drug dealing and probable drug use.

46. To date his criminal offending has been dealt with completely in the Local Court. All of his offences to date are related to driving and traffic matters. Such, however, has been his persistence in driving whilst disqualified that he has received imprisonment, for example, sixteen months, six months and four months. All of those terms of imprisonment were suspended in December of last year.

47. It was within three months that he was thereafter involved in this offence. While those offences on his criminal record are different in kind to drug offences, what they do demonstrate is a calculated disregard for orders made by the Court. The commission of this offence at a time when he was on s 12 bonds to be of good behaviour aggravates the seriousness of this offending conduct. No doubt he will also be called up in respect of each breach of each bond, but that is not a matter I need to consider.

48. I have already noted his past criminal history discloses no prior drug offences. He is entitled to some mitigation on that account.

Attitude to Offence
49. This offender has not given evidence. Thus it is very difficult to form any personal view as to his level of remorse. Probation and Parole when speaking to this offender about the offence noted in May 2005,
“The offender did not dispute the police facts, he mentions that he accepts his behaviour and attitude was not acceptable and appears to be remorseful and disappointed in his actions. He claimed that the reason behind his ongoing illicit drug use was to suppress his feelings of anger and stress within his relationship and his financial difficulties.”

50. Mr Tuameh presents as a person who has a stable upbringing and close connection with his family, which appear to be a positive influences in his life. He now acknowledges that if he is going to modify his offending behaviour he will have to attend appropriate criminogenic interventions. In speaking to Peter Kalogiannis he “expressed remorse and appeared to understand that he was in need of extensive psychological intervention and retraining in areas such as anger management, communications skills...”

51. His plea of guilty demonstrates acknowledgment of his offending conduct and a willingness to be held accountable for it. Nonetheless that acknowledgment and willingness occurs in the face of a strong crown case. My own sense of his interaction with Mark Matenga of Probation and Parole and Peter Kalogiannis is that Mr Tuameh regrets having been caught, feels embarrassment at the hurt and embarrassment he has caused his family and wife. I do note in the tests administered by Mr Kalogiannis his sense of guilt was at a high level, but regrettably it is unclear what that guilt is directed towards.

52. As yet he appears unmotivated to focus on drug rehabilitation and clearly his current response to intervention as referred to in the Probation and Parole report of 10 December last appears disappointing.

Plea Status

53. This offender has pleaded guilty before the Local Court. That plea was early entered. The plea has utilitarian value. It must be recognised as a significant contribution by this offender to advancing the administration of criminal justice in this case firstly and foremost because those interests are served through public acknowledgement by an offender of guilt. Pleas of guilt by offenders sustain the community’s confidence in the administration of criminal justice in that they maintain confidence of the community in the investigation of crime and the community’s expectation that persons guilty of crime will be held accountable for them.

54. Criminal justice is also served because court time, witness’s time, legal expenses and the like are freed so they can be devoted to other cases. This plea will reduce considerably the likelihood of a contest at the Court of Criminal Appeal on an issue of guilt in respect of this charge. All of these are important utilitarian factors so far as the administration of justice is concerned. In the light of that value I intend to give a discount of twenty-five per cent for the plea.

Rehabilitation Prospects
55. There are a number of positive rehabilitation prospects including:
· family support and support from wife
· accommodation available on release
· presumably work available in the family business
· possession of other work skills including bricklaying
· he possesses an insight into the dangers of being involved in the drug culture, although has not yet done much about it other than to claim to be drug free
· level of regret recognising impact of offending on family, wife and himself
· an absence of anti-social mental health issues.
On the negative side are the following:
· failure to cooperate with Probation and Parole in recent months
· failure to be of good behaviour even though that failure would result in imprisonment, that is, a willingness to take risks endangering his future welfare regardless of consequence
· past disobedience to orders of the Court, another manifestation of his risk taking behaviour
· past entrenched history of drug abuse
· Peter Kalogiannis’s opinion of the need for psychological counselling which has not yet been pursued to completion
· a proneness to poor general health.

56. The best that can be said of this offender is that his rehabilitation prospects are clouded. Whenever he continues his association with the drug culture and continues to engage in risk taking behaviour, his rehabilitation prospects will be in peril.

Setting the Sentence

Deterrence
57. In modern Australian society there is a very extensive raft of criminal laws passed by both federal and state parliaments. The chief purpose of the criminal law as put in place by parliament is to deter those in the community tempted to breach the criminal law. Parliament applies deterrence by prescribing maximum penalties for those who engage in conduct prohibited by the criminal law. Consequently, when a person is sentenced for a breach of the criminal law he or she is exposed to that maximum penalty provided by the statute breached. In this case the maximum penalty is one of fifteen years.

58. Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind that maximum penalty available and its deterrent purpose. There is also a specific deterrence aimed at individuals like minded to the offender who but for such deterrence would be willing to commit crimes similar to those for which this offender is being sentenced.

59. Finally, there is a component of deterrence to be considered personal to the offender with a view to discouraging or deterring him or her from re-offending.

60. Bearing that in mind, the overall sentence that I would have imposed for this offence is one of four years imprisonment. Applying the twenty-five per cent discount to that figure it becomes one of three years imprisonment.

61. I have determined to find special circumstances, the basis upon which I do so is twofold. This is this offender’s first time in custody and secondly, a custodial environment is an artificial environment in which to advance rehabilitation particularly in respect of drug issues. Drug rehabilitation and the certainty of rehabilitation can be better assessed if it is advanced in the community or at a full time drug rehabilitation setting.

62. The distribution then of the sentence that I would have imposed was one of eighteen months non-parole and eighteen months balance of term. Mr Vertigan who appears for the offender has submitted there may be an issue of parity of sentencing arising. Parity is a principle relating to the question of whether an offender may have a justifiable sense of grievance because an offender having like circumstances received more favourable treatment from a court. It does not form a basis for increasing a sentencing outcome, but rather may provide a basis for exercising discretion to reduce a sentencing outcome.

63. Both parties agree the co-offender whose criminality is most likely to parallel this offender’s is Yusef Assam. Yusef Assam was sentenced by Judge Quirk on 12 June 2007. Points to be made in respect of his sentence include:
· Six days of prior custody
· Twenty-five per cent discount for early plea.
Sentence for supply comprised of:
· Agreement to supply 112 grams on 17 January, that agreement not fulfilled
· Supplying to Yasim with co-offender Hamid 3 ounces of cocaine to fulfil the order which was ultimately 109.6 grams delivered
· Agreement to supply cocaine for the delivery on 30 March, that agreement being unfulfilled.

Form 1 matters:

· Deem supply 5.1 grams of cocaine

· Possess 23.1 grams of cannabis

· Possess prohibited weapon Curber brand crossbow and 83 rounds of ammunition

· Possess methylamphetamine 2 grams

Subjective matters:

- Aged twenty at time of offending, good family supportive

- Minor criminal history including drive whilst disqualified for which he received a community service order of 200 hours

- Breach of s 9 good behaviour bond

· Working as a labourer for electrical contractor, good report from employer

· Responded well to past Probation and Parole supervision

· Doing TAFE literary course

· Psychologically assessed as “developmentally delayed” and having a “substance abuse disorder”

· Positive rehabilitation progress since offending, regular drug screening.

The objective criminality in Assam’s case seems to me to exceed that of the offender. Firstly, he has made an agreement to supply 112 grams of cocaine. That would constitute at law a sufficient material to charge him with supplying that. Secondly, where this offender has supplied 22 grams of cocaine, Assam has been involved in the supply of approximately 84 grams of cocaine. Thirdly, he agreed to supply all of the cocaine, which Yasim was looking for, for the 30 March deal. On the other hand as against that this offender facilitated Yasim actually getting the cocaine.

64. Finally, the matters on the Form 1 required her Honour to increase her assessment of the objective criminality. On the other hand Assam’s subjective features are substantially more powerful than this offender’s. To reflect that greater objective criminality of Assam but tempering any adjustment in the light of this offender’s less favourable substantive circumstances I have decided to reduce the sentence I otherwise would have given by two months diminishing both the non-parole period I otherwise would have given by one month and the balance of term by one month. Time in custody previously in respect of this offence has amounted to nine days. This sentence therefore will need to be backdated to 4 December. Would you stand up please, Mr Tuameh.

65. Salim Tuameh, I convict you of the offence that you between 8 March and 31 March 2006 at Merrylands in the State of New South Wales did knowingly take part in the supply of a prohibited drug namely cocaine. For that offence I sentence you to a non-parole period of seventeen months to commence on 4 December 2007 and to expire on 3 May 2009. I set a balance of term of seventeen months to expire on 3 October 2010. I order your release to parole on 3 May 2009.

HIS HONOUR: I recommend to the Department of Corrective Services that this offender’s health needs to be assessed as a matter of priority.