Judge Applies Outdated Principle When Sentencing for Drug Supply

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By Paul Gregoire and Ugur Nedim

On 17 May 2013, Elle Daher made arrangements via text to meet Ms Borton at the café he owned to provide her with two “more sandwich platters”. Upon leaving the café, Ms Borton was stopped by police officers, who found 2.3 grams of cocaine in her possession.

After the incident, NSW police began a controlled operation involving an undercover operative known as Samir. On 10 June, Samir called Mr Daher and asked about obtaining a “ball”. Two days later, on the directions of Daher, one Mr Henshaw supplied Samir with 3.55 grams of cocaine.

Mr Daher called Mr Aryans the following day and told him that he was taking a break, and that Mr Henshaw would be taking over. “I had people knock on my door last night in blue and I can’t talk anymore. What I’m saying is deal with him. That’s it. Leave it at that,” Daher explained.

Henshaw and Daher met at the café on 17 June. Henshaw left the premises carrying a plastic container, then met Samir and supplied him with 3.48 grams of cocaine.

The police executed search warrants on 10 September at Daher’s café and house. They found 20 vials of Deca Durabolin – an anabolic steroid agent – as well as 34 vials of Sustanon, which is a treatment to boost testosterone levels.

Police uncovered a number of other drug transactions involving Daher prior to the commencement of the controlled operation, including supplies of cocaine to Ms Borton on three separate occasions in March 2013.

A long list of offences

Mr Daher pleaded guilty to three primary drug supply charges. The first was supplying prohibited drugs on an ongoing basis, also known as ‘ongoing supply’, contrary to section 25A of the Drug Misuse and Trafficking Act 1985 (the DMT).

To be found guilty of the offence, the prosecution must prove a person supplied drugs other than cannabis for a material benefit on three or more occasions within 30 days. The prohibited drugs need not be the same type; so, for example, a person can be guilty of the offence if they supplied cocaine, MDMA and heroin one time each within 30 days.

The maximum penalty for ongoing drug supply is 20 years imprisonment and/or a fine of $385,000.

The second offence to which Mr Daher pleaded guilty was supplying a prohibited drug, contrary to section 25 of the DMT. This offence carries a maximum penalty of 15 years behind bars and/or a fine of $220,000 when dealt with in the District Court. Two further drug supply offences were taken into account when sentencing for this crime.

The third count was another section 25 drug supply offence. Three additional offences were taken into account when sentencing for this count. This included one extra drug supply offence.

The last two offences were for the unauthorised possession of a restricted substance, contrary to section 16(1) of the Poisons and Therapeutic Goods Act 1966. The maximum penalty for this offence is 2 years inside and/or a fine of $2,200.

These restricted substance possession charges related to the vials of Deca Durabolin and Sustanon.

It should be noted that these steroidal substances are now categorised as prohibited drugs.

The defunct Clark principle

NSW District Court Judge Jane Culver cited the now rejected Clark principle, which outlines that a person convicted of substantial drug supply is to be sentenced to a term of full-time imprisonment, unless there are “exceptional circumstances”.

This sentencing precedent – which was established in the 1990 case of R versus Peter Michael Clark – was overturned in the 2017 case Robertson versus R, as it was found to be contrary to section 5(1) of the Crimes (Sentencing Procedure) Act 1999, which stipulates that a judicial officer must only impose a sentence of imprisonment if no other option is appropriate.

Judge Culver found that Mr Daher had “been substantially involved in the supply of prohibited drugs”. From there, she stated that the seriousness of the offending must be considered.

Further sentencing considerations

Her Honour found it had been established that between February and June 2013, Mr Daher had supplied cocaine with frequency, quantity and purity that suggested he was operating as a wholesaler, with the understanding the drugs were being supplied for on-sale.

“The offender appears to be at the apex of his drug network,” Judge Culver remarked. “The circumstances lead to only one available conclusion and that is that the offender has trafficked in the drug cocaine to a significant extent over a considerable period of time, a matter of months.”

The fact that Daher was subject to a good behaviour bond for possession of a prohibited substance at the time of the offending was considered to be a relevant factor during sentencing.

Judge Culver also found that ‘special circumstances’ should apply on the basis that he demonstrated the need for ongoing rehabilitation on release, which would be enhanced by a longer parole period.

In that regard, section 44 of the Crimes (Sentencing Procedure) Act 1999 requires a court to set a non-parole period (the minimum term a person must spend behind bars), before setting a parole period which does not exceed a third of this minimum term. However, the section provides that a parole period can be longer if special circumstances are found; which may include the young age of the offender, or underlying mental or addiction issues.

On 21 February 2017, Judge Culver imposed a sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 4 months.

The sentence reflected a 15 percent discount for the utilitarian value of the offender’s guilty plea.

Objective seriousness not assessed

Mr Daher appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 28 September last year on three grounds.

The first was that the sentencing judge made an error in her assessment of the objective seriousness of the offending or in the way she approached this matter.

The offender’s legal team submitted that Judge Culver had limited her considerations of the objective seriousness to whether Daher was involved in “trafficking to a substantial degree”, with no consideration of the gravity of each offence.

NSWCCA Justice Anthony Payne agreed, finding it was clear the sentencing judge made no assessment of the seriousness of each of the offences. Indeed, all she did was address the question posed in the Clark principle and found that the offender had been involved in substantial trafficking.

His Honour made clear that while the quantity of drugs being supplied is not the only consideration in establishing the objective seriousness of a supply offence, it is a relevant factor nonetheless.

“It is not possible properly to make an assessment about the objective gravity of drug supply offences… without giving at least some consideration to the quantity of the prohibited drug involved,” Justice Payne remarked.

This ground of appeal was therefore upheld.

Further grounds of appeal

The second ground of appeal was that the sentencing judge had made an error when considering Mr Daher was on conditional liberty at the time of the offending. Although the fact the first ground was upheld meant this no longer had to be considered, Justice Payne gave it consideration.

His Honour agreed the fact of conditional liberty was relevant to moral culpability, and therefore dismissed the ground.

The third ground of appeal was that the sentence was manifestly excessive. Justice Payne noted it was also unnecessary to consider this ground, but nevertheless said he would not have upheld it.

A lesser sentence

The NSWCCA found that Mr Daher’s offending was at the “lower end of the scale”, given that the quantity of the drugs involved were “relatively small”, his enterprise was “amateurish”, and the recipients were “within a relatively small circle”.

Justice Payne said that the 15 percent guilty plea discount would apply on resentencing and the finding of special circumstances would not be disturbed, so the non-parole period would be around 60 percent of the overall sentence.

On 14 December last year, his Honour ordered that the appeal be granted, and the NSW District Court sentence be quashed. Mr Daher was given a new sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 9 months.

NSWCCA Justice Peter Johnson and Acting Justice Carolyn Simpson agreed with these orders.

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