District Court New South Wales Medium Neutral Citation: R v Eldamouni [2020] NSWDC 807 Hearing dates: 21 February 2020 Decision date: 03 April 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Supply prohibited drug and matter on Form 1: 12 months imprisonment to be served by way of an Intensive Corrections Order. Possess prohibited drug: Community Correction Order for 18 months. Catchwords: CRIME – sentence – supply prohibited drug – possess prohibited drug – poly drug use – substance dependence – pleas of guilty – remorse – no prior convictions – good character – attempts to reform since being charged – family responsibilities – promote rehabilitation. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Cicciarello v R [2009] NSWCCA 272 Parente v R [2017] NSWCCA 204. Robertson v R [2017] NSWCCA 205 R v McDonnell [2002] NSWCCA 34 Thomson and Houlton v R [2000] NSWCCA 309 Category: Sentence Parties: Regina (Crown) Talah Eldamouni (Offender) Representation: Counsel: Mr Phillips (Offender) Solicitors: Mr George (DPP) File Number(s): 2018/00101429 Publication restriction: No Judgment 1. Talah Eldamouni appears today for sentence in relation to two matters, one on an indictment and another matter on a s 166 certificate which came to the Court as a back-up charge, but by reason of negotiations between the parties, winds up requiring treatment as a related charge under s 167 Criminal Procedure Act. 2. There is a matter to be taken into account on a Form 1 in respect of the matter on the indictment. The charge on the indictment alleges that the prisoner, on 2 April 2018 at Zetland in the State of New South Wales, did supply a prohibited drug namely gamma‑butyrolactone in the amount of 93.66 grams. An indictable quantity of this particular prohibited drug is 50 grams; a commercial quantity is one kilogram. This is an offence contrary to s 25(1) Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 15 years' imprisonment and/or a fine of 2,000 penalty units. It is not appropriate in this matter to impose a fine. There is no standard non-parole period. 3. The Form 1 matter is another supply prohibited drug offence, contrary to the Drug Misuse and Trafficking Act. This is an offence of supplying 3.15 grams of 3,4‑methylenedioxymethamphetamine, otherwise known as MDMA, at the same time. The matter on the s 166 certificate, which is sequence 3 of the offences at the Local Court, is an offence of possessing a prohibited drug, to wit cocaine. 4. The offender was in fact committed for trial on three offences, one offence in relation to the matter currently on indictment, another offence of supplying cocaine in an amount of 5.79 grams and the offence of supplying MDMA in the amount of 3.15 grams. Three back-up charges came up to the Court. There is a related charge on the s 166 certificate of possessing a prohibited drug, alprazolam. That is an offence which now is to be treated in the same way as the remaining back-up charges and is to be dismissed. 5. The facts of the matter are set out in an Agreed Statement of Facts. The prisoner pleaded guilty a couple of days after the matter was listed for trial. The learned Crown Prosecutor appearing via audiovisual link, has assisted the Court to understand that the plea of guilty to the current indictment, arose out of negotiations and, subject to some further enquiries, had been agreed between the parties on the Friday before the trial. 6. The matter is caught by the principles laid down in the guideline judgment of Thomson and Houlton v R [2000] NSWCCA 309 and in my view, in the context of the principles laid down by Spigelman CJ in that judgment, which was a guideline judgment in relation to discounts for pleas of guilty to recognise the utilitarian value, I propose to accord the prisoner a discount of 10% upon the otherwise appropriate penalties requiring orders today. 7. There are aspects of the facts that confirm some matters of background. The prisoner was seen at 8am on Monday morning 2 April 2018, yesterday being the second anniversary of her arrest. She was clearly intoxicated by some substance consistent with her history of drug use, which I understand to be poly drug abuse, and to some extent her possession of various drugs at the time of her arrest is consistent with that aspect and her pleas of guilty to the two supply matters. 8. The car in which she was seated was stationary. The prisoner was seated behind the driver's steering wheel. She gave the impression of being asleep. She was not affected by alcohol, returning a negative result when breathalysed. She did deny recently using drugs, but she clearly was in a state that reflected prior drug use. A fluid drug test sample returned a positive result to the presence of MDMA. Enquiries by the police led to the discovery of clear liquids found in two Dettol bottles which resulted in the identification of the 93.66 grams of the prohibited drug on the indictment. 9. During the search, police found three clear, resealable bags containing a brown crystalline substance. This is the MDMA in a quantity of 3.15 grams, which is, in the range of offences of that type, a relatively small quantity. She was also in possession of a quantity of cocaine amounting to 5.79 grams in nine clear, resealable bags of white powder, although she pleads guilty to the possession of those drugs, not the supply of them. 10. Police examined a message on her mobile phone and it is consistent with her negotiating a drug deal with another person. It is accepted in the submissions that were made to me that the offender was involved in the conduct of drug dealing negotiations in the context of her being a drug user herself. 11. Of course, the facts available to me do not permit of an analysis of the extent of her drug dealing. It is quite clear as at the time of her arrest she was no stranger to the use of the prohibited drugs, and I will come back to the history of that. But whilst I accept that she was involved in drug dealing, particularly in relation to MDMA and the drug identified relevant to the count in the indictment, it is impossible for me to conclude beyond reasonable doubt the extent of that. Certainly the quantities in her possession and the way in which they were sealed were not consistent with what I would classify, in my experience as a Judge, as substantial involvement in drug trafficking. 12. It has not been the subject of particular comment by the parties, but the issue of an appropriate approach to sentencing persons convicted of drug supply has been discussed widely in a range of cases for a long time. There was authority consistent with the observations of Hunt J many years ago, a very wise and experienced judge, that those substantially involved in drug trafficking should ordinarily expect a term of full-time imprisonment. That general principle has been the subject of discussion in cases such as Robertson v R [2017] NSWCCA 205 in the judgment of her Honour Simpson J and then considered by a five-judge bench in the decision of Parente v R [2017] NSWCCA 204. The analysis by that Court, particularly at [93]-[103] and [107]-[115], I have taken into account. 13. Obviously there are overarching issues relevant in every sentencing exercise, including consideration of the purposes of sentencing as discussed in Parente, consideration of the protection of the community from offenders and from their criminal conduct, the relevant maximum penalty, the relevance of any standard non-parole period if it applies and the like. 14. I have concluded that in this particular matter, whilst taking into account the matter on the Form 1 and the character if the related offence, the threshold pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed. The term of imprisonment that I regard as appropriate for the offence on the indictment should not be served by way of full-time custody. 15. I do that by reference, not only to the objective facts, but also to a consideration of the material that is produced on behalf of the prisoner. I have taken into account her letter of apology. She sets out the background to this offending. I see this offending, in part, in the context of her own struggles with drug use, both in relation to the use of prescription and then prohibited drugs, and the transition from the use of opioids that are prescribed, to prohibited drugs, is well known and this is confirmed in the references from her family. 16. She has had something of an unfortunate life in some respects. I am not saying for a moment that having four children is a misfortune, but she was married at a very young age. She comes from a Lebanese-Australian background. She married her husband on a visit to Lebanon and there have been difficulties in the marriage, leading to their separation. She has been the subject, on her account, of some abuse, but primarily, as I would understand it, she has been subject to the pressures that are placed on a young mother in having to bring up her children, and four children is quite a handful without the aid and assistance of her husband in material respects. 17. Her mother and her sister both speak to their respect for her, her unhappy family environment, the struggles she has had throughout her life for a start - and I do not mean to be particularly "unkind" or personal, I hope the prisoner understands this, but I understand she has had difficulties with obesity in past years. She underwent weight loss surgery in 2015, one of the matters that turned her towards the use of prescription painkillers, leading ultimately to the use of drugs. 18. With regard to this issue of her drug use, I bear in mind, to reflect the difficulties for her of trying to rid herself of this curse, the fact that since she was arrested in relation to the current matters, she in fact was charged with further offending on 16 May 2018 three offences of possessing prohibited drugs. I note the Local Court imposed orders under s 10A of the Act, that is, recorded convictions with no other penalties. But it demonstrates to me, that notwithstanding the fact she was on bail in relation to the current matters, she could not give up her use of prohibited drugs, and in fact the history she gives the psychologist confirms this. At the time of his meeting and examination of her, she had only been, on her account, drug free for some period of time after she had appeared at the Downing Centre Local Court in July 2018 in relation to those three other offences. 19. It follows from what I have just said that the prisoner had no prior criminal convictions at the time of the offending with which I am now concerned. I bear that in mind as a mitigating factor. I am prepared to accept that she was, noting her history of drug use, a person of good character before she was charged in relation to the current matters. These are mitigating factors of relevance in this sentencing exercise. 20. There is evidence available to the Court through the prisoner and her family of her attempts since being charged, to "reform". She has become qualified in employment assisting people with disabilities, and I am told that she is still in employment now, which is of course a difficult thing to maintain, given the crisis confronting the economy which has arisen in the last three or four weeks. 21. So far as the psychologist's report is concerned, it sets out in greater detail some of the matters of background that I have earlier outlined. I note that since separating from her husband she has endeavoured to undertake some study in other areas, including primary school teaching. But there have been difficulties with the burden of having responsibility of her children without much assistance. The psychologist, in assessing her, concluded on his examination of her that she presented to him with symptoms of depression and generalised anxiety. He assessed her symptoms as being "in the severe range". 22. I note in relation to that assessment by the psychologist, it is impossible to divine whether that assessment is by regard only to the circumstances in which she presented herself to him at the beginning of this year, or whether it involves a consideration of her state of mind at the time that she was arrested in relation to the current matters. It is not uncommon for matters of depression and anxiety to go hand in glove with reliance upon prohibited substances, or even prescribed substances, to try and flatten the emotional effect or to try to act as some sort of salve for one's problems. He formed the view that she had been substance-dependent for approximately three years. 23. Substance dependence can develop among people using illicit substances to numb their pre‑existing emotional, psychological or physical pain, in the opinion of the psychologist. There is no long term solution to this, the psychologist tells us, and I think we would understand that from our day‑to‑day dealing with various people with various substance abuse problems. 24. He pointed out that prohibited substances, and even prescribed substances such as opioid type drugs, can create chemical imbalances in the brain and can lead to increased emotional instability. Sometimes people turn to substances to forget or suppress memories and feelings of anxiety or worthlessness and it speedily leads towards addiction. 25. He noted aspects of the offender's behaviour with which I am concerned, as being related to her substance dependence. But that is to my mind self-evident without the benefit of the psychologist's opinion. 26. She has a number of continuing issues that would be difficult to monitor on her part or at least to address. She has poor sleep hygiene and difficulties with concentration. She is a person who does not deal with stressful situations well, as her mother pointed out in her very lengthy letter setting out details of her background. 27. She has a positive prognosis in the opinion of her psychologist because of her endeavours to seek treatment and points to her recent abstinence, but admittedly, abstinence over a relatively short period of time. She told him that she had in fact been abstinent since Australia Day 2020, he having prepared his report in relation to this matter on 13 February 2020. He believes that she requires professional assistance and some psychiatric assessment and she has an appointment to see Dr Hook (a psychiatrist) to provide treatment. She will need assistance in relation to some pharmacotherapy, as he describes it, that is, the use of antidepressant drugs. She may need to receive some assistance in relation to Cognitive Behavioural Therapy. 28. There are services available, albeit I would imagine limited in the area in which she lives. Bankstown Hospital Health Service can provide group therapy in relation to anxiety and depression. I will leave the issue of what treatments she should undergo with Community Corrections and her own good judgment. 29. The prisoner's letter of apology is eloquent, intelligent and insightful. Likewise, the letters from her mother and sister are eloquent documents. I am told that her mother is 70 years of age. She is to some extent dependent upon the prisoner, although I note that there are other children, in fact the sister of the prisoner who wrote the reference for her is 16 years older. The prisoner is much younger than her siblings. The sister confirms the circumstances of the prisoner's travel to and from Lebanon over a period of time before she was married at quite a young age. It is to be pointed out that one of the siblings has been gaoled for a substantial period of time in relation to what the sister describes as "illegal drugs"; I am assuming in relation to the supply of prohibited drugs. But I have no evidence that that matter or that person's activities are connected with this prisoner. 30. She has many financial difficulties given the lack of support she is receiving from her husband. But she has endeavoured to do the best she can to address her current situation and try and conduct herself in a positive fashion since this matter initially came to trial. She has a reference from another acquaintance who has known her for approximately six years when the prisoner was pregnant with her fourth child. She knows her both professionally and personally. She notes the prisoner has found what she describes as a new group of friends in recent years, although that new group of friends apparently are perhaps a cause of some of her difficulties. The friend who has written the reference, notes that she was worried about these new associates and that they may have had some influence upon her lifestyle, although the prisoner has not sought to blame others for her downfall. She noted that the prisoner has changed her associations since being charged in relation to these offences, or at least since early 2019. 31. In concluding the appropriate orders in this matter, I have had regard to the helpful submissions of the learned counsel for the prisoner. He submitted primarily that the threshold pursuant to s 5 of the Act had not been passed. Alternatively, he submitted there should not be a term of full-time imprisonment. The Crown does not oppose or does not find fault with the latter position. In the context of the restrictions upon the Crown's position in this regard, I am of the same view that a term of full-time custody is not appropriate for a range of reasons, including the prior good character and the lack of criminal convictions before this offending, noting what the Crown has said about its relative seriousness. I also bear in mind the prisoner's family circumstances and her responsibility for her children. 32. I accept as mitigating factors that the offending was not relatively "planned" in the context as "planned" is expressed in s 21A, both in subs (2) and subs (3) and, as explained for example, by Howie J. I accept that she has at the present time some good prospects of rehabilitation. Whether she is unlikely to re-offend or not, I do not know, but I am prepared to find on balance that she is, if she is prepared to follow the path that she has paved for herself for the future. 33. A plea of guilty is of course a mitigating factor. She has, in my view, through her letter to the Court and her plea of guilty, taken responsibility for her conduct, reflecting relevant remorse, although it is not a matter where remorse is a significant mitigating factor usually. These are matters of degree. 34. So far as aggravating factors are concerned, under s 21A(2), I cannot find a particular "aggravating factor" as that expression is understood. I appreciate there is obviously a clear inference of some "financial reward" although the detail of it is not known to me. But I could not be satisfied beyond reasonable doubt that financial reward was the sole motivating factor in the offending, and in any event, the degree of that financial reward is not such as to warrant a finding of its being an aggravating factor. 35. Again, we are talking matters of degree when we are dealing with drug supply matters. But one only needs to look at the cases that learned counsel for the prisoner took me to, cases such as R v McDonnell [2002] NSWCCA 34 and Cicciarello v R [2009] NSWCCA 272, to see that those cases, in their facts and in the context of the particular charges brought against the prisoner, were concerned with offenders involved in far more substantial drug dealing, with the potential for far greater profit or financial reward or benefit than could reasonably be contemplated from the quantities of the drugs here. Even noting, as the Crown pointed out to me, that the matter on the indictment involves a quantity twice the minimum quantity required to establish the indictable quantity of the particular drug with which I am concerned. 36. The prisoner has had many trials and tribulations to overcome in the years past, but of course they are not excuses for criminal behaviour, particularly of this type. But that having been said, one can see, in the domestic pressures that she has been under, how for her, offending of this particular type involving the use of drugs might be a means of escape from her reality. It is not a far step from being a drug user to a drug supplier at a relatively low level, as appears to be the case here. 37. I have not lost sight of the fact - and I am not saying this in any way to be personally critical of the prisoner - that on Monday 2 April 2018 at 8am she is sitting in a car in Zetland, right next door to Waterloo Oval, drugged, and in possession of a quantity of drugs, while her four children are somewhere in Yagoona or Bankstown in the care of somebody else. Anyone who has children would know a person ordinarily, acting responsibly, would not leave their children in such a situation to be out on the town having a good time, without regard for their welfare. 38. I am not saying the prisoner is a bad mother or anything of that sort, but the fact of her being so far from her children in the early hours of the morning, reflects aspects of her lifestyle that not only do not do her any credit, but also reflect upon the character of the offending with which I am now concerned. 39. Obviously I have had regard to s 3A of the Crimes (Sentencing Procedure) Act in reaching the decision I have reached. I feel that, overall, making due allowance for personal and general deterrence and the like, the orders I contemplate will promote her rehabilitation. I do not propose to fix as a condition of the two orders that I make that she be required to undertake community service work. I do not think that is a practical alternative and of course there are to be fairly said the practical difficulties in this COVID-19 environment as to whether people can actually perform community service work, many of us being confined to barracks when we are not working. 40. In that regard, as I have earlier mentioned, this proceeding is undertaken in the context of concerns within the community about the spread of the infection known as the coronavirus or COVID-19. There have been in recent weeks, and very recent days in fact, some decisions from courts of high authority, the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal, about the relevance of COVID-19 in the community and within the Correctional Centres of the States, in fixing bail and sentencing, but this is not a matter that brings into sharp focus those matters. I acknowledge the authorities point out that, even in the absence of particular evidence, people in custody would be anxious about contracting the virus in the absence of proper processes to avoid or minimise infection. But this is not a case where I have concluded that I should make the orders I am going to make because of the virus's impact upon the community. 41. Those were matters of fact that I discussed yesterday because I had people actually in custody, and I saw two people being treated in a way entirely without concern for the matters that are of concern in the wider community. This does not give me much confidence that people in custody are being treated in a way to minimise their risk of infection, but that is not an issue that arises in this particular case. Otherwise, I have taken into account all that has been put before me. 42. Ms Eldamouni, would you just mind standing up. In relation to count 1; that is the supply a prohibited drug matter, taking into account the matter upon the Form 1, another supply prohibited drug matter, you are convicted. There being no other appropriate penalty you are sentenced to a term of imprisonment for a term of 12 months pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today, that is, on 3 April 2020. You must report to the Community Corrections officer at Bankstown as soon as practical, by telephone or in person, no later than seven days from today 3 April. A further condition of the order that I make is that the standard conditions of the order apply: you must not commit any offence and you must submit to supervision by a Community Corrections officer. I am satisfied that there are exceptional circumstances existing for not imposing an additional condition for the following reasons: family and work commitments, restrictions on movement and association because of the coronavirus. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions or it may include revocation of this order. If the order is revoked, you may be required to serve some or all, of your sentence in full-time custody. Finally, you are now directed in due course to attend the Court Registry where a copy of this order will be explained and given to you. 1. In relation to the related offence under s 166, that is, H130208001/sequence 3, possess prohibited drug - cocaine, you are convicted. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with Community Correction Order for 18 months. The standard conditions of the order apply. You must not commit any offence and You must appear before the Court if called to do so at any time during the term of the order. This order can be brought back to me. Exceptional circumstances exist for not imposing an additional condition, and I have just noted family and personal circumstances, but I orally add the observation, the coronavirus situation makes it unclear whether community service work can be performed. You are now directed to attend the Court registry where a copy of this order will be explained and given to you. 1. I have sentenced you to 12 months' imprisonment, however, bearing in mind I have to take into account the matter on the Form 1, but if you are of good behaviour for 12 months and you otherwise comply with the conditions of the Community Corrections Service then you won't go to gaol, but if you breach the orders I make then the Parole Authority or the Commissioner for Corrective Services can issue a warrant for your arrest and you will be taken back into custody. 2. In relation to the Community Correction Order, I have extended that to 18 months. If you are in breach of that you will come back before me or, if I'm dead or not otherwise sitting as a judge, another judge has the power to impose a penalty in addition to a penalty that you have had imposed upon you. 3. I bear in mind, and this should be noted, you have pleaded guilty to possession of a quantity of cocaine, not supply, so I'm not suggesting for a moment than an additional penalty would be substantial, but it certainly could be an additional penalty to the 12 months imposed by me in relation to the supply charge. 4. Sequences 1, 6 and 7, possess the GBL, possess the MDMA and possess the alprazolam; those three matters are withdrawn and dismissed ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 January 2021