R v Fennah [2020] NSWDC 234

District Court New South Wales

Medium Neutral Citation: R v Fennah [2020] NSWDC 234 Hearing dates: 14 February 2020 Date of orders: 13 March 2020 Decision date: 13 March 2020 Jurisdiction: Criminal Before: Sweeney DCJ Decision: Sentenced to an aggregate sentence of six years imprisonment with a non‑parole period of three years six months imprisonment. Catchwords: Commercial drug supply offences Cases Cited: Licastro v R [2008] NSWCCA 131 R v Day [1998] ACrim R 275 R v Henry [1999] NSWCCA 111 Category: Sentence Parties: Regina (Crown)

Mitchell James Fennah (Offender) Representation: Counsel:

Ms J. Todhunter (Crown) Mr W. Terracini SC (Offender) Mr P. Kondich (Offender) File Number(s): 2018/00377774 Publication restriction: Nil

SENTENCE 1. HER HONOUR: Mitchell James Fennah pleaded guilty in the Local Court to two offences. 2. One was supplying a large commercial quantity, 811.9 grams, of the drug 3,4‑MDMA. That offence has a maximum penalty of life imprisonment and a standard non‑parole period of 15 years imprisonment is prescribed. 3. The second offence was supplying a commercial quantity of cocaine, 473.7 grams. That offence has a maximum penalty of 20 years imprisonment and a standard non‑parole period of 10 years imprisonment is prescribed. In sentencing Mr Fennah for both offences, both of those legislative guideposts must be borne in mind. 4. Both offences occurred on 7 December 2018 and arose out of police finding drugs in Mr Fennah's home. 5. Mr Fennah has asked that when I sentence him for the offence of supplying the MDMA, I take into account a number of offences on a Form 1. They are: 1. Dealing with $29,305 in cash suspected of being the proceeds of crime. 2. One offence of supplying cocaine. 3. One offence of supplying cannabis leaf. 4. Three offences of possessing a prohibited drug, being Xanax, oxycodone and morphine. 5. Two offences of possessing a restricted substance, being Somatropin, a human growth hormone, and diazepam. 6. One offence of possessing ammunition without a licence and one offence of possessing a prohibited weapon, being an anti electroshock vest. 1. In taking those offences into account the penalty for the offence of supplying MDMA will be more than if I was dealing with that offence alone, the degree of increase in the penalty depending on the circumstances and seriousness of the offences on the Form 1. 2. The matter proceeded by way of agreed facts. In August 2018 police commenced an operation in relation to the ongoing supply of drugs by Mr Fennah. A man named Paul Robinson was identified as a regular associate to Mr Fennah. Police intercepted calls and messages between Mr Fennah and Mr Robinson, in which Mr Robinson requested Mr Fennah to supply him with prohibited drugs. After the police observed a meeting between Mr Fennah and Mr Robinson, Mr Robinson was arrested on 8 November, being in possession of cocaine that had been supplied by Mr Fennah, and Mr Fennah remained under investigation. 3. The dealings between Mr Robinson and Mr Fennah are recorded as starting on 11 October 2018, when Mr Robinson sent a message to Mr Fennah that he was about to head his way, asked for his address and he asked for "nose", which I take to be a reference to cocaine. There were further messages on 22 October, when Mr Robinson said he hoped to get "some nose for his 50th next week" and he said he would call later. 4. On 7 November 2018 Mr Robinson left a voicemail on Mr Fennah's phone, indicating he was coming to Sydney and needed something for his birthday. On 8 November in a telephone call between Mr Robinson and Mr Fennah, Mr Robinson said he was coming to Sydney to see Mr Fennah to get 'the stuff' for his birthday and he said his mate "wants some stuff too. He has the paperwork too", which I take to be a reference to money in payment for the drug. 5. On 8 November at 3.19pm Mr Robinson sent a message to Mr Fennah, "Give me half till I get home. Just got mate's paperwork for one and could I get as well?" and also referred to some "tech tabs". Mr Robinson sent a message to Mr Fennah that he would meet him at the ranch. Later there was another call where they were trying to meet up at the Ranch Hotel, and then police observed both men arrive at the Ranch Hotel at North Ryde, each driving Camrys. They got into one car, Mr Robinson's car, for a short time and then they both drove off separately in their cars. Police stopped Mr Robinson's car and found two bags containing white powder. He said it was his birthday present and said it was "coke", and testing showed there was 2.02 grams of cocaine in the two plastic bags. That is the offence on the Form 1, supplying cocaine, referring to the 2 grams of cocaine supplied to Mr Robinson by Mr Fennah. 6. On 7 December 2018 police searched Mr Fennah's address in Macquarie Park. He was found in the front bedroom wearing a black latex glove on his right hand which had white powder on the fingerprints, next to a bag that contained white powder. He was separating cocaine into individual bags, which is part of the offence in sequence 3. He was arrested, cautioned and charged. 7. Also in the unit were what are described as other indicia of drug supply, including multiple mobile phones, a black notebook containing handwritten notes, plastic bags, scales and money. Mr Fennah admitted he lived there with his girlfriend, but said only he had access to the front bedroom where most of the drugs were found. 8. So the two offences for sentence and all the offences on the Form 1, other than the supply cocaine offence, are based on what was found in the unit. 9. In terms of the sequence 2 offence, supplying a large commercial quantity of MDMA, the facts say that in the front bedroom in the top drawer was a brown crystallised substance weighing 815 grams, which was later found on testing to be 3,4‑MDMA. There were three packages, of 766.7 grams with a purity of 76%, 31.4 grams and 13 grams, giving the total of 811.9 grams. The large commercial quantity prescribed for that drug is 500 grams or half a kilogram. 10. In terms of the offence of supplying a commercial quantity of cocaine, Mr Fennah was arrested with his hand above a bag containing white powder. The drugs were located in resealable bags in the front bedroom. There was 142 grams in separate bags, some in the top drawer, 443 grams, and others in a black bag on the floor, 117 grams. Testing later confirmed the drug was cocaine. The packages were found to be 137.5 grams with a purity of 77.5%, 27.8 grams, 13.8 grams, 187.6 grams with a purity of 78%, and 107 grams with a purity of 78%, giving the total of 473.7 grams. The commercial quantity prescribed for cocaine is 250 grams. With one of the bags of cocaine police also located 109.7 grams of lidocaine, which is a common cutting agent for cocaine. 11. Police found $29,305 in cash in the bedroom close to the drugs. The money was in various locations within the bedroom of Mr Fennah's unit. 12. In terms of one of the possess prohibited drug offences there were 74 sealed bottles in the front bedroom containing alprazolam or Xanax. There were 50 tablets in each bottle, each with 2 milligrams of alprazolam, which gave rise to that charge. 13. There were cannabis plants in various locations throughout the unit, including the front bedroom, on the kitchen table and the living room cabinet. Testing identified cannabis leaf and there were various quantities, some smaller, some larger, adding up to 6,304.4 grams or just over 6 kilograms. 14. In terms of the charge of possessing oxycodone, there were seven boxes of Endone or oxycodone in the front bedroom, each with 20 tablets. There were vials of Somatropin, human growth hormone, in the kitchen. Two cardboard boxes each contained ten vials. There were 11 single .22 calibre bullets found in the front bedroom, 7 in a drawer and 4 in a storage tub. 15. There were five vials of morphine sulphate injection found in the kitchen. Testing later identified they each contained morphine and each ampule had 30 milligrams in it. There were four blue tablets found in bedroom 2 in Mr Fennah's unit and they were later tested and found to be diazepam. 16. There was a vest in the hallway study of the unit which was found to be capable of providing protection against electroshock and therefore fell within the definition of a prohibited weapon. 17. Mr Fennah did not give any oral evidence in the sentence proceedings, nor did he give an account of his offending to the psychologist who prepared a report about him. Therefore findings about his role in the offences must be inferred from the agreed facts. Mr Fennah told the Community Corrections officer who prepared a Sentencing Assessment Report about him that he was using cocaine, ecstasy and cannabis in large quantities, he began accruing a drug debt and his co‑offenders requested him to store drugs at his home in order to pay off his drug debts. That assertion needs to be assessed in the light of the agreed facts. 18. Before I consider the objective seriousness of the offences I should refer to some features of Mr Fennah's background. They were mostly as told to the psychologist, Ms De Santa Brigida, supported by some documents and some letters from family members and friends. 19. Mr Fennah was 26 at the time he committed his offences. His mother died of cancer when he was 13. Her death certificate states she was 42. She was diagnosed when he was 12. He spent much of his time when he was in year 7 at school at the hospital with his mother. He was brought up in the Jehovah's Witnesses faith and when his mother died he became "angry with God". He attempted to block out the feelings of anger and loss about his mother's death by abusing cannabis and alcohol, beginning at age 14, about 12 months after his mother died. 20. Ms De Santa Brigida said he has used drugs and alcohol to chemically numb himself and dissociate himself from loss and grief. Mr Fennah told Ms De Santa Brigida he reduced his alcohol use at age 23, but approximately 12 months before his arrest he began drinking alcohol every night, averaging three to five shots per night. He said he began using cocaine at 19 and used it daily, although he had a period of sobriety between the ages of 23 and 25. He used ecstasy, amphetamines, benzodiazepines, Xanax and valium from 19 until 21. 21. At 21 he went to France to join the French Foreign Legion. He then went to England to join the army. Ms De Santa Brigida expressed the opinion that these were attempts by Mr Fennah to find attachment in his life. 22. While in England waiting for a response to his application to join the army, he began to use cocaine heavily because it was cheap in England. When he returned to Australia he stopped using cocaine and used psychedelic drugs for about six months. Mr Fennah said between the ages of 23 and 25 he abstained from drug use because he was aware he had a significant drug problem. 23. In 2016 his grandmother, who had helped look after him after his mother died, passed away. His father said Mr Fennah was devastated again and began to associate with the wrong people. Ms De Santa Brigida noted a doctor's contemporaneous note in October 2016 that Mr Fennah reported anxiety following the death of his grandmother. 24. He also told Ms De Santa Brigida he was experiencing financial stress and stress in his work environment at that time. He began to use cocaine again, about 2 grams a day, Xanax and valium to come down from the effects of cocaine, alcohol every night and Endone tablets on weekends. 25. It was a strikingly common theme in the references from family members and friends that the death of his grandmother in 2016 brought up similar grief for Mr Fennah to that which he suffered when he lost his mother, and he withdrew from family and friends and began to associate with people outside his usual circle. Their observations of a downward spiral support Mr Fennah's account of his relapse to drug abuse at that time. 26. Ms De Santa Brigida expressed the opinion that Mr Fennah meets the criteria for Post‑Traumatic Stress Disorder, which developed against the background of his mother's cancer diagnosis and death. She said Mr Fennah's subsequent alcohol and substance abuse problems is intricately related to his trauma, as he has attempted to dissociate himself from the trauma, and chemical abuse has allowed him to chemically disassociate himself from those feelings. She said people with Post‑Traumatic Stress Disorder attempt to "over control their emotional responsiveness, as a way of preventing themselves feeling vulnerable to the internal distress of their traumatic memory." 27. She said Mr Fennah began alcohol and substance abuse approximately 12 months after the loss of his mother, and he has found that this abuse allowed him to chemically dissociate and chemically numb himself from reliving the trauma of his mother's death. She said he then developed the secondary problem of substance and alcohol abuse. She said "one of the biggest problems for individuals with Post‑Traumatic Stress Disorder is that they employ strategies to avoid having to feel the emotions associated with the original trauma, but this exacerbates the symptomology associated with the original trauma." 28. She said "Mr Fennah has over controlled his emotional responsiveness with escalating amounts of illicit substances and alcohol." She said "the difficulty Mr Fennah faces is that he has never addressed the feelings of loss and grief in relation to his mother's death and has continued to become further entrenched in the drug using milieu as he has further attempted to dissociate himself from the early trauma in his life." 29. Accepting her opinion, I am satisfied that Mr Fennah began using drugs and alcohol in an attempt to deal with the trauma of his mother's death and for many years heavily abused drugs. I am also satisfied that in the wake of the death of his grandmother in 2016, which reawakened the trauma of his mother's loss, he relapsed to drug abuse and that led to his offending conduct. 30. The objective seriousness of the offences was a matter of contention between the Crown and Mr Fennah. In assessing the objective seriousness of the offences the quantity of the drug is a relevant factor, though not determinative of sentence. The quantity of cocaine, 473 grams, aggregated from five quantities, is approaching twice the commercial quantity of 250 grams. The purity was high, at 77.5% and 78%. The high purity and the presence of a cutting agent nearby indicates the potential for the cocaine to be diluted to increase the quantity for supply. 31. The quantity of MDMA, 811.9 grams, is a little over one and a half times the prescribed large commercial quantity of 500 grams. The purity of 76% was high. 32. There was no evidence of planning or organisation beyond that which is inherent in commercial drug supply offences. 33. The role of the offender is difficult to discern in the absence of any account by him. It was submitted on behalf of Mr Fennah that there was no evidence that he was a principal in the sense that he contributed financially to set up the operation, that he had any managerial role in any enterprise, that he shared in the profits of the enterprise as distinct from receiving payment, or that he had any decision making role. 34. It was submitted his role appeared to be limited to diluting and packaging drugs for future supply by others; that there was no evidence of his receiving profits as distinct from receiving payment in money or drugs; there was no evidence his role was as a wholesaler or any greater than a subordinate; that the actual supply of cocaine of 2 grams directly to the user, which is the offence on the Form 1, does not indicate he was any higher in the hierarchy; that the fact that Mr Fennah conducted his activities in his home, which he shared with his girlfriend, suggested he was not operating at a higher level at which people separate their drug supply activities from their homes; and that although Mr Fennah was under police surveillance from August 2018 until his arrest in December 2018, there was no evidence of any other actual supply by him, except that to the man Robinson, which is the matter on the Form 1. 35. The Crown submitted that the offender had conducted an actual supply of 2 grams of cocaine to the person Robinson, had been caught in the act of repackaging cocaine and had lidocaine nearby, from which the court could infer that he was going to dilute the cocaine and prepare it for individual sales. 36. The Crown relied on the indicia of supply in Mr Fennah's home: scales, plastic bags, money and a notebook which the Crown submitted was a drug ledger, and submitted that those items elevated the offender's role. However, the Crown accepted there was no evidence of any other actual supply by Mr Fennah than the one to Mr Robinson. 37. In respect of the money in Mr Fennah's unit, the Crown submitted that there was no evidence as to whether the money belonged to Mr Fennah or was to be paid to someone else, but even if it were the latter it was a significant amount of money and indicated a high degree of trust was placed in Mr Fennah. 38. The Crown submitted that Mr Fennah has not put forward any evidence of his level of financial reward, and the court was not bound to find in his favour that he received a low level of financial reward, that it is not open to the court to find his financial gain was low or minimal. 39. On behalf of Mr Fennah it was submitted that as well as offending to support his own addiction, he did engage in offending for financial gain to pay off loans. There was no oral evidence to support that submission, although there were loan documents in evidence, dated 2017 and 2018, referring to two loans totalling just over $50,000. I note that at the time Mr Fennah was in paid employment. 40. It was submitted on behalf of Mr Fennah that financial gain is inherent in commercial drug supply offences and should not be treated as an aggravating factor. The Crown did not submit that the offender's financial gain should be treated as greater than would generally be expected in commercial drug supply offences or as an aggravating factor. 41. Mr Fennah relied on the authorities that the punishment must be greater for those who receive greater award: Licastro v R [2008] NSWCCA 131. Mr Fennah submitted that his offending conduct was less serious than if it had occurred solely for profit because it was in part to support his drug addiction, which addiction began at a young age and had continued. He relied on the statement of the Court of Criminal Appeal in R v Day [1998] ACrim R 275 that "The objective criminality of an offender who traffics in drugs to feed a personal habit is somewhat less than that of a trafficker for greed." 42. Counsel for Mr Fennah conceded that his moral culpability for his offences was not reduced because they were motivated by his addiction, but in accordance with the observations of the Court in R v Henry [1999] NSWCCA 111 his addiction began at a young age because of his mother's death and his addiction compromised his judgment and reasoning when he came to commit his offences. 43. In response the Crown submitted that the offender was not young at the time of his offences and he could not say his judgment was impaired by his drug abuse because he had obtained qualifications and maintained a professional job, that he made a rational decision to supply drugs to make some money and his moral culpability for his offending was not reduced by his addiction. 44. The psychologist's report noted that Mr Fennah finished Year 12 of school with an ATAR of 67 and completed two TAFE certificates in network administration before he secured employment with the CSIRO as a computer technician. Whether those qualifications and employment represent Mr Fennah's full potential is impossible to say. 45. His former supervisor at work, Christopher Griffin, described him as professional and a hard worker, with a broad range of skills and knowledge of IT systems. He said during 2018 Mr Fennah gained a significant amount of weight, which he thought was a sign of stress. Mr Fennah's brother Joel also noted Mr Fennah's weight gain in the 12 months before his arrest, which he attributed in hindsight to depression. 46. Mr Fennah referred in his letter to the court to the "stress and anxiety of living a double life." Although Mr Fennah was able to maintain his job, others observed signs of stress. I have noted that his family and friends remarked how he withdrew from them at that time and was associating with people who were negative influences. 47. It was submitted on behalf of Mr Fennah that the court should take into account that the drugs were not disseminated into the community, not as reducing his moral culpability for his offences, but in the sense that the potential harm to the community was averted. 48. The Crown submitted that because of the quantities of drugs involved, the purities of the drugs, Mr Fennah's role in repackaging drugs and actually supplying them for individual sale, his offences fell within the midrange of objective seriousness. 49. On behalf of Mr Fennah it was submitted that because of all the matters he relied on, including the quantities of drugs, his role and actual conduct and the short duration of his offending, the objective seriousness of each of his offences falls well below the midrange of seriousness. 50. I take into account the quantities of the drugs and the high purities of the drugs. From the presence of the lidocaine in the offender's flat and that he was packaging cocaine when the police arrived, I infer that he knew the purity of the cocaine in order to dilute it. Two of the quantities of cocaine in the flat were equivalent to an ounce and a half ounce, but otherwise there was no information about the quantities Mr Fennah was packaging the drugs in. The 2 grams of cocaine he supplied to Mr Robinson was in two bags, and I note that Mr Robinson had requested a gram each for his friend and himself so that supply was at user level. 51. Given what is known of Mr Fennah's financial situation at that time, his loans and his employment situation, I accept he was not financing the purchase of the quantities of the two drugs he had himself and that he was diluting and packing drugs at the behest of someone else, as he told the sentencing report writer. The scales and plastic bags in his unit are consistent with that task. The presence of $29,000 in cash in the flat, a not insignificant amount of money, and a notebook which can be used to record sales, are suggestive of a greater role than simply packaging and storing drugs. 52. However, although police commenced investigating Mr Fennah in August 2018 and arrested him in December 2018, the facts refer to only one actual supply of drugs by him, and that of 2 grams to Mr Robinson, for Mr Robinson and his friend, one gram each being consistent with the supply being to the actual users. So that detracts from Mr Fennah having any greater role than that he asserted, of packaging and storing the drugs for future supply by others. 53. The presence of the $29,000 is difficult to make a finding about. I accept the concession made on behalf of Mr Fennah that he made some financial gain from his offending. The extent is impossible to determine. I do not treat the $29,000 as Mr Fennah's. The facts say that the money was in the same room as the drugs, close to the drugs, in various locations. Those facts tend against it being Mr Fennah's money. I do not treat his financial gain as greater than to be expected in commercial drug supply offences. 54. I take into account that because the offences involved possession deemed to be for supply, and not actual supply, of those drugs, the harm to the community was prevented by the drugs being seized and not going into the community. 55. I take into account Ms De Santa Brigida's opinion that Mr Fennah suffers from Post‑Traumatic Stress Disorder as a result of the loss of his mother when he was very young, and that his abuse of drugs and alcohol since a year after his mother's loss had been attempts by him to self-medicate his trauma. I take into account that the loss of his grandmother in 2016 brought back trauma from the loss of his mother, so that he relapsed to drug use and his life spiralled downwards as witnessed by his family and friends. Although he was still working, I accept his drug use impaired his judgment in relation to his commission of the offences. 56. Taking all those factors into account I assess each of his offences for sentence as below the midrange of seriousness. The offences on the Form 1 I assess as all less serious offences of their kind. 57. Mr Fennah is now 27. He was 26 at the time of his offences. He was supported in court by his partner, his brother, his former boss and family members. His father could not be present because he was having surgery for cancer, but he wrote a supportive reference, as did many family members, friends and the people in court. 58. Mr Fennah has two prior matters on his criminal history, both occurring in 2011, an assault for which he was placed on a s 10 bond and having custody of a knife in a public place, for which he was fined. 59. He was a volunteer with the New South Wales Rural Fire Service from 2011 until 2019. 60. He wrote a letter to the court expressing his remorse, which the Crown acknowledged showed great insight into the terrible effects of drugs in the community. It was a thoughtful letter, in which he took full responsibility for his offending and expressed deep remorse, which I take into account. His family and many of his friends referred in their references to Mr Fennah's expressions of remorse to them. 61. He is reported to be a compliant inmate in custody, although he had one misconduct charge in December 2019 of possessing two buprenorphine strips and 0.1 gram of white powder, which he told the psychologist was the drug ice. That may show that Mr Fennah's path to rehabilitation from drug abuse has not been entirely straightforward, which is not unexpected in light of his history of drug addiction. 62. He has attended the Remand Addictions and Narcotics Anonymous meetings to the extent they are available to him on remand. As well as reflecting on his past conduct in custody, he has developed an interest in finance and when sentenced plans to study accounting through TAFE. On his release he intends to work, study and rejoin the Rural Fire Service. He has a positive attitude about his future and rehabilitation. 63. He was assessed by the psychologist, Ms De Santa Brigida, as at moderate risk of reoffending. She says he needs treatment for his Post‑Traumatic Stress Disorder and his drug abuse problems to reduce his risk of reoffending. Mr Fennah expressed a willingness to undertake further drug rehabilitation. His need for treatment to facilitate his rehabilitation is a special circumstance for which I will reduce his non‑parole period from the statutory ratio. 64. For his pleas of guilty to the offences in the Local Court I will discount the sentences I will indicate for the individual offences by 25%. I note also that Mr Fennah did not oppose the forfeiture of the approximately $29,000 seized from his unit, a further sign of his cooperation and remorse. 65. The aggregate sentence will date from the date of his arrest, 7 December 2018. It will involve some accumulation of the sentences for the two offences, reflecting that although the two offences were related as part of the same conduct, there were two different drugs. I therefore indicate the following sentences. 66. For sequence 2, the offence of supplying a large commercial quantity of MDMA and taking into account the matters on the Form 1, five years imprisonment with a non‑parole period of three years imprisonment. 67. For sequence 3, the offence of supplying a commercial quantity of cocaine, four years imprisonment with a non‑parole period of three years imprisonment. The aggregate sentence will be six years imprisonment with a non‑parole period of three years six months imprisonment. 68. Mr Fennah, I sentence you to a non‑parole period of three years six months imprisonment, dating from 7 December 2018. That will expire on 6 June 2022, with an additional term of two years six months imprisonment.