R v Turi

[2025] NSWDC 159

District Court

New South Wales

Medium Neutral Citation:

R v Turi [2025] NSWDC 159

Hearing dates:

27 February 2025

Date of orders:

27 February 2025

Decision date:

27 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence –

Aggregate sentence of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 9 months

Severity appeal –

Appeal upheld – Orders of the Court below are varied – Commencement date and licence disqualification period only

Catchwords:

CRIME — Drug offences — Supply prohibited drug — More than indictable quantity less than commercial quantity — More than commercial quantity — Participate in criminal group — Deal with property reasonably suspected of being the proceeds of crime

SENTENCING — Aggravating factors — Breach of conditional liberty — Planned or organised criminal activity — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity

SENTENCING — Relevant factors on sentence — Form 1 offences — Form 1 assessment intrinsic to offences for sentence — Moral culpability — Objective seriousness — Purposes of sentencing

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorders —Refugee — Childhood sexual assault – Multiple childhood traumas — Strong family support

TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Drive vehicle with menaces

CRIME — Appeals — Appeal against sentence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Flick v R [2023] NSWCCA 197

R v Cantarakis [2024] NSWDC 650

Tukuafu v R [2024] NSWCCA 84

Category:

Sentence

Parties:

Mastajab Turi (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
I Lloyd KC (for the offender)

Solicitors:
Hanna Legal (for the offender)
T George solicitor advocate for Public Prosecutions (NSW) (Crown)
S Everson solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/140835; 2023/167654

JUDGMENT – ex tempore revised

Introduction

1. Mustajab Turi was born in 2002. He came to Australia with his family to escape war and persecution. While his family established themselves and eventually thrived in their new home, Turi did not. He suffered from bullying at school and there is a reported episode of sexual abuse.

2. Turi took up the use of cocaine as a maladaptive coping mechanism. Despite his parents’ efforts to get him psychological intervention his various conditions worsened. To support himself, and what appears to be a serious drug habit, he chose to supply cocaine to others in our community. His activities came to the notice of police. His premises were placed under lawful surveillance in early 2023.

3. On 2 May 2023 he committed a serious road transport offence of menacing driver: Road Transport Act 2013 (NSW), s 118(1). The victim was his then partner. He was arrested and bailed.

4. On 25 May 2023 he was arrested in possession of a quantity of cocaine. The apartment he lived in was searched and more cocaine and items associated with cocaine supply were seized. He was refused bail.

5. He was released to bail after serving 113 days on remand, but on 26 October 2023 he was re-arrested. He has been in custody ever since.

6. On 3 April 2024, a magistrate sentenced him to 10 months imprisonment for the menacing driving offence. That offence’s non-parole period is 6 months. He appealed against the severity of that sentence to this Court and those appeal proceedings are being heard together in conjunction with the sentence proceedings.

7. After plea negotiations in the Local Court his various drug related charges were formulated and four specific matters were put before this Court for sentence, with another to be dealt with on the s 33 Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1:

• Sequence 28 – Participate in criminal group, s 93T(1) Crimes Act 1900 (NSW), maximum penalty 5 years imprisonment.

• Sequence 15 – Supply prohibited drug less than commercial quantity, 145.7 grams of cocaine, s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), maximum penalty 15 years imprisonment.

• Sequence 27 – Supply prohibited drug more than commercial quantity, 251.6 grams of cocaine, s 25(2) Drug Misuse and Trafficking Act, 20 years imprisonment maximum penalty, standard non-parole period 10 years.

• Sequence 29 – Deal with property reasonably suspected of being proceeds of crime, total sum of $66,500, s 193C(2) Crimes Act 1900, maximum penalty 3 years imprisonment.

The Form 1

8. The charge on the Form 1, Sequence 7, relates to the supply of a quantity of cocaine between 26 April and 29 April 2023. That period corresponds to the period in the indictment that relates to the Sequence 28, participate in criminal group offence. I do not sentence for that matter. I take it into account on the commercial supply matter, Sequence 27: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].

9. A Form 1 it has to be taken it into account on sentencing. But the facts of the Form 1 matter here relate to, and are intrinsic to, my assessment of the seriousness of the criminal group offence. Assessing the gravity of the principal offence without reference to the drug that the criminal group was supplying, would be entirely artificial, as the object of the group was the distribution of cocaine for profit: Flick v R [2023] NSWCCA 197, but see Tukuafu v R [2024] NSWCCA 84. A judge has to take into account all relevant matters when formulating a sentence. It would be quite wrong if a judge were to double count such matters. As the facts that found the matter on the Form 1 are coextensive with, and intrinsic to, my assessment of the facts and the seriousness of another matter for sentence considerable caution is required to avoid any double counting.

Maximum penalty and standard non-parole period

10. I have noted the maximum penalty and, where applicable, the standard non-parole period. They are important guides to the exercise of my sentencing discretion. They reflect Parliament’s view of the seriousness of the offences. The drug matters penalty range is based on the quantity of the drug supplied. Here those quantities were rolled up from multiple supplies. This is a both legitimate and sensible way of disposing of matters relating to drug supply.

Facts for sentence

11. There are comprehensive facts before the Court. They are agreed.

Sequence 28 – Participate in criminal group

12. The facts relate to Turi supplying cocaine to others on a number of occasions and working with an associate named ‘Rubbo’ in that supply. He has also supplied drugs to, or through, an unknown female who came to his apartment and was caught on surveillance devices. Between 26 and 29 April 2023 just under 60 grams of cocaine, the matter on the Form 1, was distributed.

Sequence 29 – Deal with property, the proceeds of crime

13. The facts describe Turi’s handling of money, which was reasonably suspected to be the proceeds of crime. In April and May of 2023, he was observed dealing with four specific amounts. The surveillance video was good enough to show Turi counting the money and the police were able to see how much was counted.

14. It would appear that Turi’s upline supplier was providing cocaine on credit, called in the drug trade – on ‘tic’. It also appears that Turi was supplying to his customers on tic. In May 2023 the surveillance revealed that his upline supplier was putting considerable pressure on him to pay for the drugs that had been supplied. And, he in turn was putting pressure on those further down the line so that he could receive cash to repay his debts.

Sequence 15 – Supply of 145.7 grams of cocaine

15. Between 6 May 2020 and 20 May 2020 Turi supplied 145.7 grams of cocaine. Ten transactions were recorded. He would communicate with his upline supplier and arranging meetings. He drove to certain locations to obtain cocaine from his upline supplier. He would then return to the unit and secrete or distribute the cocaine. The recordings show money and drugs being exchanged with associates.

16. What occurred and how matters occurred and the weighing of the cocaine by him with associates are set out in the Agreed Facts. Over the ten transactions noted. They all follow a similar pattern. I do not believe that it is necessary to go through them in any detail other than to note that there were supplies of various quantities for various amounts. For example, on 19 May 2023 3.5 grams of cocaine was supplied for $1,300.

17. The facts indicate that there were a series of transactions carried out of cocaine distribution for cash by the offender before the Court. Care is required that I sentence according to what is agreed here.

18. A number of the persons Turi was involved with have been sentenced, including Cantarakis: R v Cantarakis [2024] NSWDC 650. The facts in relation to Turi’s dealings with Cantarakis indicate that Cantarakis delivered a certain quantity of drugs to Turi. When I sentenced Cantarakis a slightly different factual scenario was put to me.

Sequence 27 – Supply more than a commercial quantity

19. This charge relates to events on 25 May 2023. The quantity of cocaine had been brought by Cantarakis and delivered to Turi on 25 May 2023. Turi then left his premises carrying a portion of those drugs. He was stopped by police and arrested. They found 56.7 grams of cocaine on him.

20. A search warrant was then executed on his home. Scales, bags, other things associated with drug supply were found, including 194.6 grams of cocaine with a purity of 71%. The 56.7 grams and the 194.6 grams of cocaine make up the supply offence, Sequence 27.

Seriousness

21. One fundamental aspect of any sentencing exercise is an appropriate appreciation of the seriousness of offences.

Sequence 28 – Participate in criminal group

22. Where criminals work together it increases the threat to the community. Community wellbeing is undermined by those who work together with the objective of committing offences against the community. The criminal group offence was short-lived, but this offender took a leading role, and his participation contributed to a serious criminal activity of drug supply.

Sequence 15 – Supply

23. As I noted, these offences, the drug quantities from a number of transactions were rolled up. Most were slightly above street level deals. Turi dealt in bulk to most of his suppliers.

24. It was a business; he was running it. He was running it from his home, its aim was to, I accept, enable him to have drugs for himself to meet a heavy drug habit and to get basics for his survival, rent and food. It was not well organised. He relied on credit from his upline suppliers, and he giving credit to downline suppliers. But he was able to over the period deal in quite a considerable amount of cash and cocaine.

Sequence 27 – A commercial supply matter

25. The penalty range relating to commercial supply is based on a minimum of 250 grams. The quantity here was only just above that amount; one reason to depart from the standard non‑parole period. The same business plan, if it can be called that, applied. It revealed haphazard sales to various members of the community, with various quantities contemplated. He was caught with one portion of the amount. It fitted the pattern of the earlier supply matter of obtaining drugs in bulk for distribution to others and personal use – I am quite sure some of it would have been used by himself.

Sequence 29 – The proceeds offence

26. This was a commercial operation as is obvious from the facts. Money was needed to purchase from the upline suppliers and money was received from those he supplied to. The amount of money, $66,000, reflects the level of funds consistent with the level of supply.

27. There is no evidence before me that the money had been set aside as some sort of savings, rather it would appear that the police surveillance enabled them to get a handle on the size and extent of the business being operated, it’s haphazard nature and the fact that, as is obvious for most drug supply matters, cash is required to purchase illicit drugs. The various snapshots of his activity reflected in the facts give some insight into the nature of the operation being run.

28. Each matter for sentence has to be individually assessed, but it is clear that each was part of a drug supply operation conducted without particular sophistication. But that said, each offence individually and collectively was serious, each contributed to the considerable harms that drug supply offences cause to the community. Sums of untaxed cash can be used to finance other crimes and cause economic harm. Those who take drugs suffer from the effects of the drugs. Families suffer, the community suffer. For those reasons, giving proper weight to the maximum penalties involved, it is expected that people who involve themselves in the drug trade and criminal groups will receive severe and significant penalties. Those penalties are designed to deter, not just them, but others from doing what they did.

Criminal record

29. The offender has a criminal record. His record does not entitle him to leniency. He was on bail for matters for sentence. Because of the Local Court matter, he was on a Community Release Order, which had been imposed in November 2022. His breach of those conditional orders and his breach of a promise that he made to the courts to be of good behaviour, aggravate the sentence I have to impose.

30. His time in custody must be taken into account. He has not, on the material before me, coped well with his custody. He was still using drugs until August 2024, but the information now before me indicates that he is at last beginning to understand that he needs to deal with his drug problem before he can be the son his parents want him to be.

31. Because the Local Court matter fell in the middle of a remand period, because of the time spent in the community between the two remand periods, I will, in order to properly credit him with time served, need to make some adjustments in penalty and commencement dates to ensure that; (a) there is adequate minimum punishment for the appeal matter, and (b) to ensure that he gets full credit for every day he has served in custody.

Subjective case

32. Mr Turi did not give evidence. He wrote a letter to the Court. In it he expressed his regret for the harm that he has caused the community and his family in particular. He said he had had a lot of time to reflect on his behaviour and his mental health. He said he was “ashamed and stricken with guilt”. He expressed appropriate regret and sorrow for the harm he had caused and showed some insight into the harm drugs cause others in the community. He made appropriate promises to do what he could not to return to crime and drug use.

33. I have a report of a psychologist, Mr Borenstein, which is in the appeal bundle, Exhibit A, and a comprehensive report of a psychiatrist, Dr Calvin, in the sentence Exhibits.

34. There are also references and affidavits put forward by his family. They were not required for cross-examination. What they say is uncontroversial.

35. The offender did not give evidence, but I am prepared to give some weight to what he set out in his letter. However, as submissions of both counsel have made clear, it is easy to make promises in custody, the real test is when he is released to the community, and he had previously made promises I am sure, to his family and the courts and he failed to keep those promises.

36. I will not, given the time and the hour, go through the full extent of the background material before me. It is comprehensive and uncontroversial.

37. Turi is still young. When he was a child in Pakistan, he witnessed violence and war. His family experienced persecution. He had trouble adjusting to life in this community.

38. There is, on balance, evidence to support the proposition that he suffered a sexual assault while at school. Shortly after this incident there was psychiatric hospital admissions.

39. It is clear that his parents did what they could, given the information they had. There is evidence here of other multiple traumas suffered as a child. It is clear that those traumas had an impact on him and must reduce his moral culpability. They help explain why he took up the use of illicit drugs. While drug use cannot excuse what he did, it enables me to understand the man for sentence and help plan for his future.

40. Dr Calvin at par 30 notes:

“There does not appear to be a direct causal link between any single psychiatric diagnosis and Mr Turi’s offending behaviour, the combination of his mental health conditions, substance use, and social instability has played a significant role in contributing to his criminal activities.”

41. He then goes on:

“In Mr Turi’s case the interplay of his trauma history, early life adversity, sexual trauma, and ADHD-related impulsivity has likely resulted in emotional dysregulation, elevated anxiety, and compromised judgment. These issues, alongside his heavy reliance on substances and a maladaptive coping mechanism, eventually led [him to engage] in criminal conduct.”

42. Contrary to the written submissions for Turi there is no direct causal link between this criminal activity and those conditions. But sentencing judges must adopt a nuanced approach. There is no one path to a reduction in an offender’s moral culpability, just as there is no one path towards a person’s rehabilitation. Human beings and human interactions are too complex for that.

43. I will take into account Turi’s history. I will take into account his youth and the impact of multiple traumas when he was young, and that since he was a child his mental health, for various reasons, has not been good. It is described as “unresolved mental health challenges” by Dr Calvin at par 32. Mr Borenstein details some of those challenges in his report.

44. Like many young people Turi will take time to develop a moral compass. He will not be able to do that in gaol. I accept that his time in custody was hard for him and will be hard for him.

45. The other material indicates that he did have, and he still has, extremely strong family support. He knows that his family will be there for him both financially and personally. And, just as they have made sacrifices in the past for him and his siblings, they are prepared to do so again. He is lucky to have such support. It is one important reason why a court might have confidence in the promises that he has made to change his ways.

Structure

46. There are a number of matters for sentence today. I have to indicate a sentence appropriate to each. I have to at the same time, formulate an aggregate sentence that properly reflects his crimes and their seriousness. The various charges that were negotiated were obviously designed to give a picture or cover the period during which he was caught on surveillance supplying drugs for profit as part of his criminal group offences.

47. It is accepted given his youth, his mental health conditions, his trauma, the hardship in custody, that after he has served the minimum period his crimes deserve, he should be given a substantial period on parole so that he can be supervised, assisted and tested.

Parity

48. I have sentenced Mr Cantarakis. I have some details of the sentences imposed on others with whom he dealt. There should be some proportionality between offenders who are part of a criminal enterprise. Here however, there were different facts and different personal circumstances for each of the others. It is accepted that overall Turi played a greater role, and for longer, than any of them. He was the principal source of drugs and the centre about which the other offenders revolved. Most of them received sentences of imprisonment, but they were moderated by serving sentences subject to Intensive Correction Orders (‘ICOs’) in the community. Efforts were made to deal with their underlying drug problems by treatment in the community.

Submissions

49. Mr Lloyd KC spoke to the comprehensive written submissions prepared by his solicitor, Mr Soukie. He made the specific point that the time had come, given the time served, for Turi to be tested in the community. He noted a Sentence Assessment Report which indicates that a supervision plan can be put in place.

50. In response, Mr George accepted that there was a powerful subjective case. He noted that there were internal gaol matters and that Turi has never been in regular employment. He then said:

“While his plans and reflections are admirable and encouraging, and gains to address those habits can be noted during his time in custody, exposure and access to those activities when released from custody will be the true test of ongoing avoidance for the offender.”

51. There is a difference of emphasis between both submissions, but while not exactly as one, there is little difference when it comes to matters of principle.

The severity appeal matter

52. Turning briefly to the appeal.

53. The accused and his then partner had in an ‘on and off’ relationship for a number of years. On the morning of 2 May 2023 there was a verbal argument. The young woman involved hopped into her car and drove away. The appellant followed her. He threw something at her car which hit it. He then drove onto a grass median strip and swerved at the complainant multiple times. She had to swerve to avoid a collision. During his attempts to collide with the complainant’s car she was forced into the path of a truck heading towards her. They eventually pulled up in a service station where further verbal abuse followed. There was an allegation of an assault, which is not before me.

54. The offence was domestic violence related. There was a significant risk to the complainant, the appellant and the public. It was a real risk. This Court commonly has to deal with matters where people are seriously injured where motor vehicles are used to menace or harass.

55. In all the circumstances, even with the subjective material now before me, a custodial sentence was warranted. When I come to assess the seriousness of the matter, its domestic violence content and the submissions of Mr Lloyd and Ms Everson, who appeared for the Director, in this aspect of the matter, I formed a view that the sentence imposed by the magistrate was entirely appropriate.

56. The appellant was disqualified from driving for 2 years. The minimum period is 12 months disqualification. His time in custody does not count towards that disqualification. When he is released, he will be older and hopefully more mature. He will have learnt, I hope, some lessons. Having a driver’s licence will be very important to his future employment prospects. For those reasons I will reduce the disqualification period to the minimum of 12 months, but it is stayed while he is in custody. He must not drive without getting a licence and must not drive during the disqualification period. Driving disqualified could well breach any parole. I will also vary the sentence by moving its commencement date.

57. Section 47 Crimes (Sentencing Procedure) Act gives judges considerable flexibility when it comes to fixing the various dates for matters that must be accumulated one on the other. I have to take into account, because of the sentence and appeal matters, principles of totality. There must however be some independent punishment for the appeal offence.

Synthesis

58. When I consider the harm done to the community by drug supply related offending, a custodial sentence of some length is required. We have no Drug Court or Drug Court programs in the Illawarra. I cannot place the offender on any Drug Court program. The best I can do is structure the sentence so that he is given an opportunity while on parole to engage in psychiatric or psychological treatment, to engage in drug rehabilitation programs and to engage with Community Corrections.

59. No submission was made that this sentence be subject to an ICO, and in any event the length of the sentence would preclude that option.

60. I can however, moderate the severity of the law for a young man who has a number of underlying problems that need to be addressed, problems that can be best addressed in the community. His moral culpability is not that of someone who did not suffer the multiple traumas or have the mental illnesses outlined in the reports. His release to parole will still require a decision of the State Parole Authority. They will not release him unless supports are in place because they have an overriding restriction on release to parole, being community safety. But it would seem to me that he will soon be ready for release.

61. I appreciate that his parents have gone to the trouble or organising an appointment with a reputable psychiatrist in the very near future, and how difficult it is to get such appointments. But that fact alone cannot, and should not, govern a sentencing exercise such as this. As I noted earlier, the minimum time he must spend in custody must reflect the seriousness of his crimes.

62. He pleaded guilty in the Local Court. That guilty plea reflects his remorse and regret which will be taken into account. Each individual sentence that I indicate will be reduced by 25% to reflect the utilitarian value of that plea. I will be indicating sentences and imposing an aggregate sentence. I will take care that the process of accumulation does not erode that benefit. I will be making a finding of special circumstances which will be substantial and will be reflected in the indicated sentences and in the total aggregate sentence.

63. I will sentence first for the appeal and then the sentence matters which will take into account Sequence 27, the Form 1.

Orders

64. In relation to the appeal, I confirm the conviction. I confirm the sentence of 10 months imprisonment and the non‑parole period of 6 months. I vary the commencement date. I just note that I have worked on the calculation from 26 October 2023 of 113 days on remand, which gives me a sentence commencement date of 5 July 2023. I vary the commencement date of the appeal to 5 July 2023. I will reduce the disqualification period to the minimum of 12 months.

Aggregate sentence

65. Taking into account special circumstances, and 25% utilitarian discount, I indicate the following sentences:

• Sequence 28 – 1 year 1 month.

• Sequence 15 – 1 year 10 months.

• Sequence 27 – 2 years 4 months, non‑parole period 1 year 2 months.

• Sequence 29 – 1 year 3 months.

66. The aggregate sentence will be 3 years and 3 months. It will commence 3 months after the commencement of the appeal sentence which will be 5 October 2023. My finding of special circumstances also takes into account this accumulation. The non‑parole period will be 1 year and 9 months. It will commence on 5 October 2023, which means that he will be eligible for consideration for release to parole on 4 July 2025. There will be a parole period of 1 year and 6 months from that date. The sentence will expire on 4 January 2027, which means that the release date is 4 July 2025, that will require a decision of the State Parole Authority.

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Decision last updated: 02 May 2025