R v Zreika

[2023] NSWDC 586

District Court

New South Wales

Medium Neutral Citation:	R v Zreika [2023] NSWDC 586
Hearing dates:	5 October; 13 November and 17 November 2023
Decision date:	15 December 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years with a non parole period from 24 May 2022 and which expires 15 December 2023.
Catchwords:	CRIME - SENTENCE - possess offensive weapon with intent to commit indictable offence - supply prohibited drugs greater than the commercial quantity.
Legislation Cited:	Crimes Act 1900 (NSW), s.33B(2); Drug Misuse and Trafficking Act 1985 (NSW), s.25(2).
Category:	Sentence
Parties:	Rex (Crown) Abraham Zreika (Offender)
Representation:	Ms Rankin (ODPP Parramatta) Mr Parsons (Counsel for the offender)
File Number(s):	2022/150019
Publication restriction:	Nil

Judgment

1. Abraham Zreika, you appear for sentence in relation to three principal offences.

2. First, possessing an offensive weapon (two batons) with intent to commit an indictable offence (assault in company). This is sequence 8. This offence involves a contravention of s33B(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 15 years imprisonment. There is no standard non-parole period.

3. Secondly, supplying a prohibited drug greater than the commercial quantity for that prohibited drug (methylamphetamine). This is sequence 15. This offence involves a contravention of s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 20 years imprisonment. There is a standard non-parole period of 10 years imprisonment.

4. Thirdly, supplying a prohibited drug greater than the commercial quantity for that particular prohibited drug (again methylamphetamine). This is sequence 16. Again, this offence involves a contravention of s25(2) of the Drug Misuse and Trafficking Act.

5. In addition to the three principal offences, you have asked me to take into account, in relation to sequences 15 and 16, in each case, three matters on a relevant Form 1.

6. In relation to sequence 15, you have asked me to take into account: one matter of possessing a prohibited drug (sequence 5); one matter of possessing a prescribed restricted substance (sequence 6); and one matter of knowingly deal with proceeds of crime (sequence 10).

7. In relation to sequence 16, you have asked me to take into account: one matter of knowingly participate in a criminal group (sequence 3); one matter of deal with property suspected of being proceeds of crime (sequence 7); and one matter of possess ammunition (sequence 13).

8. I have certified both of the Forms 1.

9. The facts surrounding the three principal offences and the matters on the two Forms 1 are contained in a statement of agreed facts which, recast by me as to style but not substance, are as follows.

10. As at July 2021, you were 20 years old.

11. In July 2021, New South Wales Police commenced an investigation into the activities of an organised criminal group (“the group”) which was involved in the supply of prohibited drugs in the greater Sydney area. You were a member of the group. Other members of the group included Mouhammad Zraika (who was sentenced by Hanley SC DCJ on 13 November 2023); and Asaad Alahmad and Trent Jeske (both of whom are expected to be sentenced in this Court in early 2024).

12. It is your membership of the group which constitutes sequence 3.

13. One of the prohibited drugs which the group supplied was cocaine.

14. A commonly used method by the group to supply cocaine was through a “dial a dealer” methodology. Members of the group supplying cocaine to customers at street level made use of dedicated mobile phone services known as “drug runs”. Customers contacted a drug run phone to arrange the purchase of cocaine from the member of the group operating that particular service.

15. One such drug run service was known as the “Snowy drug run”.

16. On 2 October 2021, police investigators intercepted a phone call involving you and two other members of the group. In that phone call, the three of you discussed who was to be assigned the street level use of the Snowy drug run. You suggested a person in a wheelchair and, in due course, a wheelchair bound member of the group did operate the Snowy drug run.

17. Between December 2021 and May 2022, hundreds of customers across the Sydney metropolitan area were supplied with cocaine through the Snowy drug run.

18. The activities of the Snowy drug run were the subject of numerous police controlled operations.

19. The activities of the group, in part at least, operated out of home unit premises at Blaxcell Street, Granville. These premises were used as a “safe house” by members of the group from which to conduct dealings with prohibited drugs. The AGL electricity account for that unit was in your name.

20. On 9 March 2022, police executed a covert search warrant at those premises.

21. In executing that warrant, the police “located a number of items of interest” including: quantities of cocaine and another prohibited drug, 1,4-butanediol; a range of indicia of drug supply; three firearms (which were stored in a shoe box in a bedroom wardrobe); and a sophisticated money counting machine. In another bedroom, the police found two bundles of Australian currency totalling $9,850.00. The bundles were bound by elastic bands. Nine $50.00 notes in those two bundles were notes used by police during one of the controlled operations I earlier referred to. The elastic bands which bound the two bundles were tested and a DNA profile consistent with you was recovered.

22. It is these facts which constitute sequence 10.

23. In searching a cupboard in the kitchen, the police found a plastic freezer type bag containing 13 rounds of ammunition. Fingerprints matching yours were later found on that plastic bag.

24. It is these facts which constitute sequence 13.

25. At this point in the narrative, I pause to observe that the statement of agreed facts becomes coy as to the identities of the co-offenders that are referred to – those co-offenders being referred to in the statement of agreed facts as “JE”, “AL” and “ZR”. No such coyness applied when Mouhammad Zraika, who was involved in the same criminal group as you, was sentenced by Hanley DJC on 13 November 2023. From his Honour’s recitation of the facts before him, it may be (from the apparent typographical error in [14] of the statement of agreed facts tendered by consent in your case) that “JE” is Trent Jeske. However, I cannot be certain as to who “AL” and “ZR” are. I shall, therefore, refer to all of your three co-offenders in the manner you and the Crown have thought it helpful to refer to in the statement of agreed facts tendered in your case. I have been told that only sequence 16 gives rise to a parity issue with Mr Zraika. I note, however, that in his Honour’s remarks on sentence for him, Hanley DCJ said at page 11:

“The Crown concedes it is difficult to precisely identify his role [i.e., Mouhammad Zraika] in the enterprise, although concedes the offender had a lesser role than Alahmad, Jaske, and Abraham Zreika.”

26. Returning to the narrative, in early April 2022, you, AL and JE were part of a joint criminal enterprise to supply methylamphetamine to a person in Newcastle, Christopher Wilson. Your particular role in the joint criminal enterprise was to transport the drugs to Mr Wilson – which you did on 3 April 2022. The quantity of the drug you transported and supplied was not less than 409.9 grams. The purity of that quantity of drug was 76 per cent. You and the Crown have chosen not to inform the Court of the value of the quantity of that drug with that purity; and I have not speculated about that adversely to your interests.

27. It is these facts which constitute sequence 15.

28. It would seem that the group expected Mr Wilson to on-sell the drugs in the Newcastle area – and to, in some unspecified way, account to the group for those sales.

29. However, it would also seem that, instead of on-selling the drugs, Mr Wilson chose to consume some of them.

30. At some time during 10 April 2022, JE travelled to Newcastle to retrieve whatever drugs remained in Mr Wilson’s possession, after which JE returned to Sydney.

31. At about 8:00am on 10 April 2022, you were seen to be in possession of a plastic bag which contained the drugs which, earlier that day, JE had retrieved from Mr Wilson in Newcastle.

32. At the direction of JE and AL, you hid, at about this time, that bag containing those drugs in your motor vehicle.

33. At about 9:28am on 13 April 2022, you were travelling in a motor vehicle (not yours) with “another associate”. It would seem that some form of listening device was in the vehicle you were travelling in. You were “overheard” saying to your “associate” that you wanted the drugs, that you had hidden in your own vehicle on 10 April 2022, removed from that vehicle. You were also expressing your concern that your identity, as the person who couriered the drugs to Newcastle on 3 April 2022, might be captured by CCTV installed by the road authorities.

34. On 16 April 2022 (and pursuant to a lawfully issued warrant), the police searched your motor vehicle and seized the drugs which you had hidden there on 10 April 2022. Later analysis disclosed that the drug was 409.9 grams of methylamphetamine with a purity (as I have already said) of 76 per cent. You, AL, JE, and ZR jointly possessed that quantity of that drug for the purposes of on-supply.

35. It is these facts which constitute sequence 16.

36. At or about 7:41pm on 17 April 2022, you became aware that the drugs which you had hidden in your vehicle one week beforehand were “missing”. You then made a number of phone calls to “associates” – one result of which was that ZR arrived at the location at which your motor vehicle was situated to “assist” you to “look for” the missing methylamphetamine.

37. Shortly afterwards, you travelled (by undisclosed means) to the address of an associate of the group where AL was present. AL punched you in the nose as a reprisal for “losing” the methylamphetamine.

38. On 18 April 2022, at about 12:54pm, you, JE and another unidentified “associate” were observed to be in an area (presumably where your motor vehicle had been parked on 16 April 2022) looking for CCTV cameras which might have revealed who broke into your motor vehicle and took the methylamphetamine.

39. Later that day, at about 4:30pm, you were recorded travelling as a rear seat passenger in a motor vehicle (not yours) with two other “associates”. You had two batons in your possession which you were showing to those associates. You were also in possession of a balaclava. You and your associates were discussing going to somebody’s house with the purpose / intention of assaulting that person.

40. It is these facts which constitute sequence 8.

41. On 24 May 2022, the police executed a search warrant at the residential premises you shared with “other members of [your] family”. During that search, the police found $715.00 in your bedroom and $850.00 inside a wardrobe of another bedroom. (Why you are criminally responsible for that second amount is not revealed – but it is accepted by you).

42. It is the total of those two amounts ($1,565.00) which constitutes sequence 7.

43. Also in your bedroom, police found three Valium tablets which contained the restricted substance Diazepam and approximately 2 grams of cannabis.

44. It is these facts which are, respectively, sequences 6 and 5.

45. It is necessary for the Court to make a finding of the objective seriousness of each of the three principal offences, for offences of their kind.

46. In relation to sequences 15 and 16, important factors in determining the objective seriousness of the offending are:

1. the quantity of the relevant drug;

2. the purity of the relevant drug; and

3. the role played by the relevant offender.

47. Insofar as the first two considerations are concerned, the quantity is towards the upper limit of the commercial quantity applicable to methylamphetamine; and the purity was 76 per cent.

48. Insofar as the third is concerned – to the extent that a hierarchy is discernible in the agreed facts – your role was (to a not significant degree) somewhat subservient to the others. For example, you transported the drugs to Newcastle, and later hid those drugs in your motor vehicle, at the “direction” of others. Nevertheless, you had a significant role in the offences (for example, it was you, then aged 20 years, who suggested using a wheelchair bound person to operate the Snowy drug run), and you were clearly a trusted member of the group.

49. In these circumstances, sequences 15 and 16 are slightly below the mid-range.

50. In relation to sequence 8, on the basis of the facts I have set out, it is towards, but not at, the bottom of the range.

51. In relation to the three matters on the Form 1 concerning sequence 15, sequence 10 will result in a modest increase in the sentence for that principal offence. Sequences 5 and 6 will not result in any meaningful increase in the sentence for the principal offence.

52. In relation to the matters on the Form 1 concerning sequence 16, sequence 3 will result in a modest increase in the sentence for that principal offence. Sequences 7 and 13 will not result in any meaningful increase in the sentence for the principal offence.

53. There are no additional aggravating factors in relation to any of the three principal offences.

54. The balance of your subjective circumstances were advanced through the expert report of Ms Watson (a psychologist) dated 25 September 2023, your letter of apology dated 29 August 2023, and your oral evidence on 17 November 2023.

55. At the conclusion of her report, having reviewed your developmental, educational and employment, social, substance abuse and addictions, and mental health histories – together with your current psychological status - Ms Watson expressed the following opinion:

“Mr Zreika is clearly a troubled young man who has demonstrated an enduring propensity to abuse illicit drugs, the nature of which is consistent with a chronic Substance Use Disorder, Cocaine and Marijuana, Severe…; which has undoubtedly determined a destabilisation of his mental health amidst the cycle of drug intoxication and withdrawal. Mr Zreika’s experience of grief following the loss of his friend, on the background of this mental health instability and his associated fear that his life is in very real danger by way of affiliation has contributed to the development of a depressed mood with severe anxious distress. Mr Zreika’s thought content has become increasing paranoid and characterised by the belief that he is likely being maliciously targeted. He has developed associated hypervigilance to his surroundings centred on identifying risks of harm and threatening meanings. Accordingly, Mr Zreika is in my opinion experiencing enduring symptoms that is consistent with a Major Depressive Disorder, with Anxious Distress, Mild-Moderate…

Review of Mr Zreika’s provided history is indicative that his experience of a Major Depressive Disorder with Anxious Distress, and his comorbid and severe substance dependence was relevant at the commission of his criminal conduct. His account of his then Cocaine abuse is indicative of a heavy and costly addiction to the drug which gives prominence to his apparent immurement in the cycle of criminality to fund his drug addiction, and deviant peer associations. Mr Zreika’s almost persistent Cocaine intoxication has likely determined a distortion in his thought processes and content, compromised his judgment and restraint, and reduced his consequential thinking; and in my opinion has contributed to his criminal offending.

Whilst Mr Zreika expresses a strong desire to make significant personal and lifestyle changes, the reality is that he has been drug addicted since his early adolescence and has clearly not developed the psychological resilience to cope in the face of psychosocial stressors such as loss, or the life skills to lead an adaptive existence. Unfortunately, his psychological vulnerabilities and his propensity to abuse drugs will undoubtedly serve to thwart his ability to make any desired personal changes, without the appropriate and intensive rehabilitation and intervention to assist him to do so. Mr Zreika has seemingly recognised his need for mental health intervention and rehabilitation, and he has expressed a willingness to participate in a rehabilitation program and undertake any recommend mental health interventions. I am of the opinion that Mr Zreika’s prospects of rehabilitation is largely dependent and improved with the implementation of appropriate and intensive therapeutic interventions, rehabilitation, and ongoing support.”

56. Ms Watson went on to indicate that she recommended that you participate in residential rehabilitation; engagement with a psychologist; and engagement with the relevant local district drug health counselling service.

57. One noticeable aspect of Ms Watson’s report is the absence of any clear or express reference to the criminal activities of members of your family. Nor did you apparently give her the history that you gave to the author of the sentencing assessment report that your participation in the criminal activity for which you are to be sentenced today is because you felt “obliged” to assist those family members.

58. You amplified some of the subjective material which you told the psychologist in your sworn oral evidence in these proceedings.

59. Some aspects of that oral evidence, however, were problematic. For example, the inconsistent evidence you gave as to when you stopped using cocaine and the improbable evidence as to why you hadn’t told the author of the sentencing assessment report that you had allegedly stopped using cocaine 12 months before your arrest. Also, your apparently spontaneous revelation in cross-examination that you had been sexually abused as a child, something which was not told to the author of the sentencing assessment report or the author of the psychologist report – nor was it adduced by your counsel in your evidence in chief or included in your letter of apology.

60. Notwithstanding my concerns about these aspects of your evidence - and, for the avoidance of doubt, I do not accept your evidence on these topics on the balance of probabilities - I am satisfied of the following matters on the balance of probabilities. Some of what follows is repetitive of the contents of Ms Watson’s report.

61. You were born in Sydney and you are now 22 years of age.

62. Your early childhood was marked by the unhappy marriage between your parents – which included the verbal and physical abuse of your mother by your father – and their ultimate separation and divorce.

63. You left High School in Year 10, after which you commenced a plumbing apprenticeship – an apprenticeship which you have not finished but that you wish to continue upon your release. A family member has offered to take you on as an apprentice plumber upon your release.

64. Some members of your large and extended family have criminal histories and associates.

65. However, your mother, brother and sister, with whom you wish to resume living upon your release, have no criminal convictions.

66. Your involvement in this criminal activity was for financial gain (in part to repay a significant drug debt owed to people who are not members of your extended family); to acquire more drugs for your own use; and to assist those members of your extended family who are involved in criminal activity.

67. Since you have been in custody following your arrest for these offences, you have, as a young inmate without any prior period of imprisonment, spent a very substantial period of time in isolation. It is not entirely clear precisely how long you have been held in that condition, but it would appear to be significant.

68. You have expressed an intention to address your drug and alcohol issues with a counsellor upon your release.

69. You have purported to express remorse (in both your letter of apology and in your sworn evidence), but I have doubts as to whether those expressions are meaningfully insightful.

56. Whilst the opinion of Ms Watson, which, in the circumstances, I accept on the balance of probabilities (not least because her report was tendered without objection and she was not required for cross-examination), means that the application of general deterrence is not fully engaged, it is, nevertheless, engaged to a meaningful extent. And specific deterrence is fully engaged – as is the need to encourage your rehabilitation.

57. You have a limited criminal history, but that history disentitles you to the leniency which, in appropriate circumstances, can be extended to a first offender.

58. The offending for which you are to be sentenced today, however, signifies a significant increase in the seriousness of your offending behaviour.

59. In all the circumstances, I regard your prospects of rehabilitation as being guarded. They would, however, be enhanced by a longer period on parole.

60. It follows from what I have said that no sentence for any of the principal offences other than a term of full-time imprisonment is appropriate. I intend imposing an aggregate sentence in relation to those offences. It is therefore necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. In relation to each of the indicative sentences, there will be a discount of 25 per cent to reflect your early plea of guilty.

61. In relation to sequence 8, except for the discount, the indicative sentence would have been imprisonment for 1 year 6 months. After the discount, the indicative sentence is imprisonment for 1 year 1 month.

62. In relation to sequence 15 (and taking into account the relevant Form 1 matters in the ways I have indicated), except for the discount, the indicative sentence would have been imprisonment for 2 years 6 months. After the discount, the indicative sentence is imprisonment for 1 year 10 months; and the indicative non-parole period is 11 months.

63. In relation to sequence 16 (and taking into account the relevant Form 1 matter in the I have indicated), except for the discount, the indicative sentence would have been imprisonment for 2 years 6 months. After the discount, the indicative sentence is 1 year 10 months; and the indicative non-parole period is, again, 11 months.

64. The start date of the sentence will be backdated to the date of your arrest.

65. Insofar as the non-parole period is concerned, I make a finding of special circumstances to vary the statutory ratio. I do that for four reasons. First, as I have already said, your prospects of rehabilitation would be enhanced by a longer period on parole. Secondly, because of your age. Thirdly, because this is your first time in custody. Fourthly, because of the circumstances in which you have been held in custody to date. In this regard, you gave unchallenged evidence that you have been held in isolation for a significant period of time from the date of your arrest. In your evidence, you stated that you did not know why that had occurred and, at face value, that seems surprising given your age and given the fact that you have not been previously sentenced to a term of imprisonment. Perhaps the answer lies in Exhibit B in that section entitled “Classification History Details”, which notes you are “OCN Alameddine associate” and have “OMCG associations”. Whatever the reason, the period of time that you have already spent in custody in isolation has been harsh and justifies being taken into account in making a finding of special circumstances.

66. Abraham Zreika, of the three principal offences I sentence you to an aggregate term of imprisonment of 3 years.

67. I fix a non-parole period to date from 24 May 2022 and which will expire on 15 December 2023.

68. I fix a balance to date from 16 December 2023 and which will expire on 23 May 2025.

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Decision last updated: 25 January 2024