Offending While on Parole Does Not Increase a Crime’s Severity

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By Paul Gregoire and Ugur Nedim

Mouraf Elhassan was asked to keep an eye on the apartment and car of a friend who was traveling overseas in mid-2014. Unbeknownst to Mr Elhassan or his friend, NSW police had the driveway of the apartment under video surveillance.

Police subsequently installed an additional camera that was motion activated in the kitchen of the apartment. And over two days in late June, it captured Mr Elhassan and another man packaging quantities of cocaine into plastic bags using a heat-sealing machine, while smoking from a glass pipe.

As Elhassan attempted to leave the apartment on the second day of recorded activity, officers arrested him. And on a search of the house, police found two heat-sealing machines and small quantities of various drugs.

Inside the car that Mr Elhassan’s had been asked to mind, officers found a plastic bag containing two heated-sealed bags that together held 278 grams of cocaine. A laboratory analysis later found that the purity of the drug was 87.5 percent.

The charges brought against

Mr Elhassan appeared in the NSW District Court charged with one count of supplying not less than the commercial quantity of a prohibited drug, contrary to section 25(2) of the Drug Misuse and Trafficking Act (DMT Act) 1985.

This offence carries a maximum penalty of 20 years behind bars and a standard non-parole period (SNPP) of 10 years. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars, before being eligible to apply for release on parole.

The offender was facing a supply charge even though there was no evidence that he was intending to provide the cocaine to another person, as section 29 of the DMT Act stipulates that if a person is found with more than a traffickable quantity of an illicit substance they can be charged with supply.

This is known as deemed supply. In NSW, a traffickable amount of cocaine is 3 grams, while a commercial quantity, which was the amount Mr Elhassan was charged as being in possession of, is 250 grams of the drug.

A second charge of dealing with the proceeds of crime, under section 193C of the Crimes Act 1900, was also brought against Mr Elhassan. However, he was acquitted of this charge.

Objective seriousness

In assessing the objective seriousness of the crime, NSW District Court Judge Helen Syme took into account the quantity and purity of the cocaine, the absence of any evidence of any profit or drug transaction and the drug paraphernalia that was found around the apartment.

The sentencing judge stated that the level of organisation of the operation was mid-level and well-organised. Her Honour also made clear that the fact Mr Elhassan was on parole at the time he committed the crime increased the objective seriousness of the offence.

Judge Syme said she considered the crime to be “close to but below mid-range seriousness for the charged offence.” And on 13 April last year, Mr Elhassan was sentenced to 9 years and 6 months prison time, with a non-parole period of 7 years and 1 month.

Conditional liberty

Mr Elhassan appealed against his sentence to the NSW Criminal Court of Appeal (NSWCCA) on 13 April this year. He did so on the sole ground that the trial judge made an error in taking into account that he was on parole at the time when assessing the objective seriousness of the offence.

And the Crown conceded the sentencing judge had indeed made an error. As NSWCCA Justice Lucy McCallum explained the fact that the offender was on conditional liberty at the time of the offending was not relevant as part of the assessment of its objective seriousness.

Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 provides a list of aggravating factors, which are aspects of a crime that increase the culpability of an offender. And being on conditional liberty at the time of committing an offence is listed as an aggravating factor.

But as her Honour pointed out the Act states that aggravating factors are to be considered when determining an appropriate sentence for an offence. So, being on parole at the time of offending can increase gaol time, but it doesn’t heighten the objective seriousness of the crime committed.

Reassessing the severity

Justice McCallum said that in considering the sentencing judge’s remarks regarding Elhassan’s parole increasing the objective seriousness of his crime, the Crown’s concession must be accepted, and the appeals court must move to re-sentence.

Her Honour explained that in re-sentencing the court has to make its own assessment of the offence. The justice said that she found “the seriousness of the offence as being more than minimal, but of a lower order than that reflected in the sentencing judge’s determination.”

The justice assessed the seriousness in this manner as there was no evidence of Elhassan’s position in the organisation or of any other role he played. She added, that “while the drugs were presumably packaged for future sale, the future involvement of the applicant, if any, is speculative.”

Rehabilitation is the key

Mr Elhassan had a clean record before being gaoled in 2000 after he was found in possession of 17.5 kilograms of cocaine, Justice McCallum explained. He served 10 years inside, before being released on parole, and he was on his fourth year of conditional liberty at the time of his current arrest.

The NSWCCA considered affidavits from his current partner and two daughters, who described him “as a generous, loving and dedicated family man.” And his prison records also revealed that he is a “model prisoner,” who works hard and causes no trouble.

Criminal psychologist Tim Watson-Munro tendered a report at the trial which expressed that Mr Elhassan relapsed into cocaine use during his parole period and it was this that had a significant impact on his judgement.

“Whilst the applicant must be adequately punished, rehabilitation is also a purpose of sentencing,” Justice McCallum reasoned, after assessing the subjective circumstances. “The applicant’s rehabilitation will not be promoted by the imposition of a crushing sentence.”

A lesser sentence is justified

Her Honour stated that after considering all the circumstances, she believed a sentence should be handed down that departs from the statutory ratio, so that Mr Elhassan could serve a longer time on parole providing him with a lengthy period of rehabilitation and supported reintegration.

NSWCCA Acting Justice Carolyn Simpson and Justice Elizabeth Fullerton both agreed with Justice McCallum’s conclusion “that a lesser sentence is warranted in law and should have been passed.”

On 13 June this year, the NSWCCA ordered that the sentence of Judge Syme be quashed. And Mr Elhassan was re-sentenced to 9 years behind bars, with a non-parole period of 6 years.

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