R v Zreika

[2019] NSWDC 347

District Court

New South Wales

Medium Neutral Citation:	R v Zreika [2019] NSWDC 347
Hearing dates:	3 May 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Criminal
Before:	Hunt DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment for 3 years with a non-parole period of 18 months. Matters on s166 certificate are withdrawn and dismissed. For the offence of drive while disqualified, the offender is sentenced to a fixed term of imprisonment of 9 months which is served wholly concurrently with the aggregate sentence. The offender is disqualified from driving for a period of 12 months upon his release from custody. For the offence of possess cannabis the matter is dealt with under s10A convicted with no further punishment
Catchwords:	CRIMINAL LAW – Sentence – Supply prohibited drug – Not less that indictable quantity – Form 1 – S166 Certificate – Cocaine – Drive While Disqualified – Cannabis – Deal with proceeds of crime – Consent confiscation forfeiture order – Indicia of drug supply – On s12 bond at time of offending – Street level dealer – Supporting own addiction – Dysfunctional upbringing – Morbidly obese.
Legislation Cited:	Crimes Act. Crimes (Sentencing Procedure) Act Criminal Procedure Act Drug Misuse and Trafficking Act Road Transport Act
Cases Cited:	. R v Callaghan [2006] NSWCCA 58, R v Pham [2001] NSWCCA 307
Category:	Sentence
Parties:	The Crown Shaylin Zreika
Representation:	Counsel: N Funnel - Offender   Solicitors: Director of Public Prosecutions – Crown
File Number(s):	2017/286768

Judgment

1. HIS HONOUR: Shaylin Zreika is before the Court for sentence in relation to two principal offences, both of them being a supply of a prohibited drug being not less than the indictable quantity of cocaine in breach of s 25(1) and subs 29 of the Drug Misuse and Trafficking Act. In each case the maximum penalty is a period of 15 years imprisonment and/or a fine of 2,000 penalty units. No standard non-parole period has application.

2. Additionally in relation to count 1 which is the supply of 87.18 grams of cocaine I take into account a further offence on a Form 1 being a knowingly deal with the proceeds of crime in breach of s 193B(2) of the Crimes Act. That matter on indictment has a maximum penalty of 15 years. It is inevitable that the fact of that matter being on the Form 1 will place upward pressure on the penalty that would otherwise apply in relation to count 1.

3. Additionally there are four matters before the Court pursuant to s 166 of the Criminal Procedure Act, two of those matters being possession of amounts of cocaine are backup charges to the deemed supply charges at count 1 and count 2. Ultimately I will order that those matters be withdrawn and dismissed.

4. Additionally there is a drive while disqualified in breach of s 54(1)(a) of the Road Transport Act that has a maximum penalty of 12 months imprisonment and/or 50 penalty units, a fine and an automatic disqualification of 12 months that can be in certain circumstances reduced to not less than six months.

5. Additionally there is one charge of possess prohibited drug being 2.8 grams of cannabis in breach of s 10(1) of the Drug Misuse and Trafficking Act which has a maximum penalty of two years imprisonment and/or a fine of 20 penalty units. Those two latter matters fall for sentence when I have concluded sentencing Mr Zreika in relation to the principal matters.

6. It is common ground between the parties that Mr Zreika was committed for trial from the Campbelltown Local Court and pleaded guilty against the backdrop of some discussions in the preceding week for the matter on 4 March 2019, on the first day of a listed trial.

7. The agreed facts are extracted in a document of 22 paragraphs that is part of the Crown bundle. I do not propose to recite all of the facts, but will deal with them shortly in this fashion: On Wednesday 6 September 2017 the offender was driving a vehicle on Spitfire Drive, Raby. He veered across the centre lines and collided with a parked vehicle. After the vehicle pushed that vehicle some distance away it eventually came to a stop. Significant damage was caused to both vehicles. The offender was observed to be vomiting by a bystander who contacted triple-0. At the time that the paramedics arrived, some assistance from police was required to get Mr Zreika onto a stretcher. In the course of that a paramedic noticed something in the offender’s pockets and removed a plastic bag which was handed to the police. That bag was found to contain three further plastic bags, each of which contained a white powder. Ultimately when analysed the total quantity of cocaine located in those plastic bags was 87.18 grams. That is the deemed amount that relates to count 1.

8. The offender was taken to Liverpool Hospital where he was treated.

9. Within the offender’s vehicle was found a further amount of white powder, being an amount of 1.08 grams. Some other items were found relevantly including $3,895.25 which is the subject of the deal with proceeds of crime and it has been the subject of a consent confiscation forfeiture order today along with other items. Additionally there were portable digital scales and three mobile telephones and a number of small, resealable plastic bags and 2.8 grams of cannabis. There was also some material that linked the offender to those items by way of bankcards.

10. At the time of the offender’s collision his blood was analysed and it was found to contain relatively small amounts of cocaine, a derivative of cannabis. diazepam, more diazepam and a psychiatric medication.

11. I am going to move now onto the facts in relation to count 2. At about 8.30 on 21 September 2017 police attended the offender’s premises at Westmead. He was placed under arrest, and with the consent of the offender’s mother, a search of the premises disclosed the presence in a living room where the offender was said to reside, a blue biscuit tin that contained a plastic bag containing white powder that was subsequently analysed to be 17.23 grams of cocaine, some mobile phones and a small quantity of change. Within one of the phones the police were able to extract a message. As an example of a received message extracted, “Hey man, how much can you do me for two bags for this Saturday?”

12. The Crown accepts in relation to the contents of that cocaine within the blue tin which forms the basis of count two that the Crown cannot exclude the possibility that some of the drugs found in that biscuit tin were for personal use. Although it is not explicit in the facts, I draw an inference from all of the evidence that at the relevant time that the offender had a not insignificant cocaine addiction and the reason for the accident that I have described that took place on 6 September 2017 was in part, as a result of the offender having a cocaine induced cardiac event. I am prepared to draw a similar inference that it is available that some of the 87 grams were for personal use alongside the operation of the deeming provision in terms of supply.

13. At the time of the offender’s driving on the first date he was a disqualified driver, having been disqualified until 19 November 2019.

14. When it comes to assessing the objective seriousness of the offences I propose to concentrate on the two principal offences, but make some passing comments about the other matters.

15. At 87 grams of cocaine the weight involved in count 1 was about a third of the way from the indictable level to the commercial quantity. Obviously the 17 grams was much lower on that scale. Weight of itself is not determinative, although it has some relevance in terms of assessing objective seriousness. In relation to both of the matters the offender was in breach of conditional liberty and a powerful form of conditional liberty being a suspended sentence. I take that into account as an aggravating circumstance in relation to both matters.

16. The parties are broadly joined in characterising the offending as being consistent with street level activity by a dealer who was dealing to support his own addiction. I am prepared to find that that was the offender’s role on the basis of the drug indicia found on both occasions that demonstrate some level of active supply and I accept the evidence of the level of his cocaine addiction at the relevant times. In circumstances where there is little other material weight has a little bit more work to do in relation to characterise objective seriousness.

17. In relation to count 2, that matters falls into the low range, at a point in the low range just below the end of the middle range.

18. Count 1 is below midrange but does not approach the low range. When I come to sentence Mr Zreika I will have regard to the deal with the proceeds on the Form 1. Obviously it is somewhat related to the offence at count 1. Whilst the amount of cash is not insignificant it is a much smaller amount than will often be found in deal with proceeds matters caught within this jurisdiction on that discrete charge.

19. Additionally I take into account his preparedness to forfeit both that amount of money and the other items subject to the order that I made by consent earlier as a manifest of his remorse and his preparedness to assist in the administration of justice.

20. Moving to matters that are personal to him. He has a prior record that denies him leniency. His record commenced with offences committed in 2011 and he has been before the Court, apart from on multiple occasions in relation to driving while disqualified, he has also been before the Court on multiple occasions for the supply and possess prohibited drug. His record does not serve to aggregate the offending, but, as I have already said, denies him the leniency that would be available to a person with no criminal record.

21. Against that, his record also forms to fortify my view that I can place reliance on some of the conclusions that are made by Ms Godbee, a forensic psychologist of LSC Psychology and her careful assessment of the offender. Some of the material that Ms Godbee relied on is also the subject of evidence before this Court by a detailed reference and statement of family circumstances made by the offender’s mother, who is in court with several of his younger siblings to support him today.

22. In short, the offender had a difficult background in circumstances where his father subjected his mother to not insignificant domestic violence and sometimes, I accept, took the offender’s mother into the offender’s bedroom so that he could witness and apparently be further distressed by observing the assaults upon his mother. That is a pattern that continued through much of his upbringing at the same time because he was always, what in the vernacular might be described as “a very fat boy”. He was the subject of significant bullying at school. The way that he described it to Ms Godbee is because of the difficulties at home, notwithstanding the great love and support of his mother, and his fondness for his siblings, and the unremitting nature of the way that he was treated at school, meant that he felt that he could not escape from those difficulties. Ultimately, as is not uncommon in these circumstances, the offender turned to delinquent peers and ultimately to drug use to try and deal with the effects of what I consider to be a dysfunctional upbringing.

23. A slightly unusual approach has been taken in terms of one important evidentiary issue. I am advised, by those at the bar table, that some subpoenas issued to get material principally from Justice Health in relation to the offender’s treatment and condition while in custody. Relevant portions of those records have been shown by the defence to Mr Taylor, who appears for the Crown, and it has been agreed that the parties would put as matters of fact material that can be sustained from those records without me having the records physically before me. I endorse that approach and congratulate the parties on arriving at a sensible mechanism to bring that material in an efficient manner to the Court’s attention.

24. What the evidence demonstrates for instance is at the time the offender entered into custody at around 22 September 2017 he weighed 126 kilograms and, to the lay person, for his height would have already been considered to be grossly obese at that weight. By February 2018 he was 176 kilos, by May 2018 he was 189 kilos and as at 25 March 2019 on the last measurement entered on the records the offender had achieved 200 kilograms in weight. What that means is during a period of a little over 18 months the offender has gained a significant amount of weight. Some of the matters that he observed to Ms Godbee, that were also the subject of submissions, that is he now diagnosed with diabetes and he suffers from cellulitis as a result of his diminished mobility. As a lay person I would be prepared to characterise him now as being morbidly obese. I accept from his responsible counsel a submission from the bar table that he was out of breadth by the time he came up a relatively set of stairs from the cells below this Court. Additionally he suffers from poor circulation, has had sepsis from time to time and suffers, perhaps unsurprisingly, both from sleep apnoea and what is commonly known as GORD.

25. I am prepared to accept in a general sense that just as life was difficult for him because of his weight as a younger man, his period in custody must necessarily be more onerous because of his physical attributes, the increase in his weight and the compromise to his health. There is nothing to suggest that Justice Health isn’t able to render adequate medical care. The situation emerges here where it is clear that continued incarceration will continue, I safely drawn an inference, to compromise the offender’s health in a very significant way. I am not persuaded that the condition of the offender in terms of his weight and related health conditions ought ameliorate the whole of the sentence. However I am persuaded that his health along with a need for an extended period of supervision in the community to maintain his current remission from drugs, forms a proper bases to find special circumstances. I have ultimately determined not to have regard to the offender’s weight, other than on the issue of a very significant arrangement in what would otherwise be the statutory relationship between the non-parole period and the head sentence.

26. Although the offender has been in custody since September 2017 the parties agree that latest date on which I could commence a sentence in relation to custody solely referable to these matters is 18 August 2018. That said it will be observed that I treated the breach of the suspended sentence as a significantly aggravating circumstance in terms of the way that I characterise the objective seriousness of the two index offences.

27. For that reason and consonant with the rationale in of R v Callaghan [2006] NSWCCA 58, (even though Callahan’s case went to breach of parole rather than a sentence on revocation of a suspended sentence), I am persuaded that there should be a fairly high level of concurrence between the sentence served as a result of the revocation of the suspended sentence.

28. In terms of the issue of the utilitarian discount, I accept that there was an offer to plead to count 1, but not formalised by a plea in the Local Court. Whilst there was ultimately a plea to a lesser amount than originally averred for count 2 that matter has never been the subject of any offer to plead. I have ultimately determined to deal with the matters by way of an aggregate sentence and when I come to announce the indicative sentences consistent with the range that the parties submitted was available for me in relation to count 1 I will reduce the indicative sentence by utilitarian discount of 15% and in relation to count 2 I will reduce the indicative sentence by a utilitarian discount of 10%.

29. I take the view that the offender has good prospects of rehabilitation, partly because of the observations made to and the observations made by Ms Godbee. He is somebody who has a very significant level of family support. It is clear that whilst people often find themselves at the crossroads because they meet middle age and realise that they need to resolve problems to do with breaching the criminal law so that they could have the balance of their life in an orderly fashion, that process it would seem is underway more early with Mr Zreika. That may be because his longevity is significantly reduced because of his health problems.

30. I have regard to authorities like R v Pham [2001] NSWCCA 307 that the non-parole period must represent the minimum that can do properly the work of all the purposes of sentencing. I have regard to all the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. I accept because of his dysfunctional upbringing that Mr Zreika’s utility as a vehicle for general deterrence is somewhat reduced. I make no such reduction otherwise in relation to specific deterrence. I take the view with his record he does need to be specifically deterred from behaving in the way that he has repeatedly over the years.

31. In relation to both count 1 and count 2 you are convicted. The indicative sentence for count 1 had a starting point sentence of three years but for the discount applied so that the indicative sentence after a 15% discount becomes 30 months and two weeks. The indicative sentence for count 2 as a starting point before me the implementation of the utilitarian discount of 10% would have been two years so it becomes 21 months and two weeks. I have found special circumstances.

32. I impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. The head sentence will be 36 months or three years to date from 1 December 2017 and accordingly to expire on 30 November 2020. There is to be a non-parole period of 18 months which means that the earliest date of release to parole will be 31 May 2019. I have had regard to the matter on the Form 1 when I calculated the indicative sentence for count 1.

33. The two possess cocaine matters that are before the Court on a s 166 certificate are marked withdrawn and dismissed as being backup matters.

34. In relation to the drive while disqualified, having regard to the maximum penalty available and the fact that the offender has multiple offences of that kind on his record, he is sentenced to a fixed term of nine months to date from 1 December 2017 and that sentence expired on 31 August 2018. It is my intention to have that sentence wholly concurrent with the aggregate sentence that I have already announced. In relation to the drive while disqualified matter I accept Mr Taylor’s submission that there is no proper reason to reduce the automatic disqualification so that there is a disqualification of 12 months imposed.

35. In relation to the possession of the cannabis in light of all the subjective case and the very small amount of cannabis being 2.8 grams that matter is subject to a conviction pursuant to s 10A without any further punishment.

36. The way the regulations work Mr Zreika is that that 12 month disqualification will commence when you are released back into the community. So you will need to count a year, check with RMS whether there is anything else that’s disqualifying you and otherwise apply for your licence at the end of that year. Don’t drive during the period of disqualification otherwise all the hard work of your lawyers to have you out in a fairly orderly fashion will be lost because you’ll be back in.

**********

Decision last updated: 24 July 2019