District Court New South Wales Medium Neutral Citation: R v Sahgal [2023] NSWDC 127 Hearing dates: 12 April 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Criminal Before: Montgomery DCJ Decision: See [96]. Catchwords: CRIME – Sentence – ss 25A(1), 25(2) Drug Misuse and Trafficking Act 1985 (NSW) – Form 1 – Discount 25% for early plea – young offender – user/street dealer – good prospects of rehabilitation – risk of reoffending – 423 days imprisonment before hearing – Community safety – Intensive Corrections Order Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 25D, 44(2A), 53A, 66 Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1) Cases Cited: AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 Cam Huynh Giang v R [2017] NSWCCA 25 Daher v R [2018] NSWCCA 287 Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Griffiths v R [2021] NSWCCA 226 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 La v R [2021] NSWCCA 136 Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 Parente v R [2017] NSWCCA 284 R v Care; R v Al-Khateib [2020] NSWDC 856 R v Dahmoul [2019] NSWDC 920 R v Dando [2019] NSWDC 833 R v Fadel [2019] NSWDC 26 R v Frankcom [2021] NSWDC 294 R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 Remington v R [2018] NSWCCA 98 Robertson v R [2017] NSWCCA 205 Shavali v R [2022] NSWCCA 178 Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3 Zuffo v R [2017] NSWCCA 187 Category: Sentence Parties: Rex (Crown) Sahil Sahgal (Offender) Representation: Counsel: Ms. A Van der Velde (Crown) Mr. G Scragg (Offender) Solicitors: Director of Public Prosecutions (Crown) LY Lawyers (Offender) File Number(s): 2020/00060957 Judgment 1. Sahil Sahgal (the "Offender") is to be sentenced for the following offences: 1. s 25A(1) Drug Misuse and Trafficking Act 1985 (NSW) ("DMTA"): supply prohibited drug on an ongoing basis (2.78 grams of cocaine) - Maximum Penalty 20 years imprisonment or a fine equal to 3,500 penalty units or both - Sequence 6; 2. s 25(2) DMTA: supply prohibited drug in not less than a commercial quantity (200.07 grams of MDMA) - Maximum Penalty 20 years imprisonment or a fine equal to 3,500 penalty units or both - Sequence 16. A Standard Non-Parole Period of 10 years applies to the Sequence 16 offence. 1. By a Form 1 signed by the Offender on 24 March 2023, he asks the Court to take into account the Sequence 10 offence, which he admits, when sentencing him for the Sequence 6 offence. The Sequence 10 offence is: s 25(1) DMTA - supply prohibited drug (4.46 grams of cocaine) – Maximum Penalty 2 years imprisonment or a fine equal to 50 penalty units or both. 1. Pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), the following charges are before the Court. The Court has been informed by the Crown that they are backup charges and will be withdrawn or dismissed at the time of delivery of this judgment: 1. Sequences: H86247706 - 1 to 5, 7 to 9, 11 to 13 and 15. There is no Sequence 14 charge. FACTS 1. A Statement of Agreed Facts, signed by the Offender and for the Crown on 20 October 2022 was tendered with the Crown Sentence Summary, Exhibit A. For convenience, I will not set out the whole of the Statement of Agreed facts. 2. In regard to the s 25A offending, I bear in mind that while the quantity of supply is relevant, it would be wrong merely to consider the quantity when evaluating the offence. 3. In Daher v R [2018] NSWCCA 287 at [52], Payne JA (Simpson AJA and Johnson J agreeing) said: "It is well established that s 25A of the [DMTA] is directed to the business operation of drug supply, meaning that the objective criminality of a contravention of the provision is determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied. It must be remembered, however, that the quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance. They take their place beside the number and quantities of individual incidences of supply …" 1. And in regard to both ss 25 and 25A offending, at [54]: "I accept the applicant's submission that it is not possible properly to make an assessment about the objective gravity of drug supply offences under ss 25 and 25A of the [DMTA] without giving at least some consideration to the quantity of the prohibited drug involved …" 1. Each of the incidents of supply the subject of the offences involved the Offender selling cocaine to one police officer undercover operative. In Sequence 16 the drug was MDMA. The Offender received orders by message and arranged the location of the sale in a public place. The Offender accepted orders expressed in code such as "Bugatti", "Audi", "Pearl", "M" and "Black M" although, any reader of the messages would have been particularly naïve not to understand the transaction described, as being drug related. For example, on 6 October 2021 the undercover police officer made the order enquiry in the following terms: "hey mate, can I catch up with you tomorrow around lunchtime for a bag of that Bugtti and a gram of M" to which the Offender replied "hey bro new one is Audi and yeah fir sure."… "M Sold out atm g". The undercover police operative responded: "No worries, how much is a bag of Audi?" and the Offender replied "300". The Offender's system of operation included his issuing to the police undercover operative via the encrypted platform Telegram in a group chat named "Diamonds" - "Sleazy's Daily Stock Menu Update! Private message me for prices, photos videos and more information." The facts do not describe the content of that stock menu. It is agreed that the menu was prohibited drug supply related. 1. The Sequence 6 s 25A offending occurred during the month between 29 September 2021 and 28 October 2021, at Rouse Hill, New South Wales. An element of the offending is that the Offender on more than three occasions supplied the prohibited drug cocaine. By his plea he has admitted supply of the total small quantity of 2.78 grams of cocaine and that it was sold for a total financial reward of $1,450. 2. The individual trades were as follows: * on 29 September 2021 the Offender supplied the police undercover operative with two clear resealable bags each containing 0.59 grams, totalling 1.18 grams of cocaine in exchange for $600; * on 7 October 2021 the Offender supplied the police undercover operative with one clear resealable bag containing 0.52 grams of cocaine in exchange for $300; * on 11 October 2021 the Offender supplied the police undercover operative with one clear resealable bag containing 0.49 grams of cocaine in exchange for $300; and * on 14 October 2021 the offender supplied the police undercover operative with one clear resealable bag containing 0.59 grams of cocaine and one clear resealable bag containing 0.94 grams of MDMA in exchange for $450. 1. The cocaine supplied varied in purity between 10.5% and 30%. On 13 October 2021 the police undercover operative had messaged the Offender an enquiry concerning "black M", meaning MDMA, the Offender replied that supply was "easy bro" and, as above, supplied MDMA to the police undercover operative the next day. 2. The above facts of the Sequence 6 offending show a system of ready supply of 3 quantities below a "small" quantity (as defined in Schedule 1 DMTA) and 1 supply (29 September) of a small quantity but well below a traffickable quantity of cocaine to order placed by messaging platforms and marketing by an encrypted messaging platform inviting the placement of further orders. The offending involved 4 supplies being only 1 in excess of the minimum of 3 required for the offence. During the period of the subject offending, the Offender also promoted his willingness to supply the illicit drug MDMA in addition to his already engaged trading in cocaine with the police undercover operative. No part of Sequence 6 offending involved actual supply of MDMA. 3. The Sequence 10, Form 1, s 25(1) offence occurred at Rouse Hill, New South Wales when the offender did supply 4.46 grams of cocaine over three transactions as follows: * On 30 October 2021, the police undercover operative requested supply of a bag of "Audi", meaning cocaine, to which the Offender responded that he could "sort" that immediately and on 1 November 2021 he delivered 0.53 grams of cocaine for a financial reward of $300 in one clear resealable bag to the police undercover operative. * During the 30 October 2021 meeting the police undercover operative informed the Offender that his "friend" was interested in buying "M", meaning 3,4 methylenedioxymethylamphetamine ("MDMA"). When the Offender was informed that the "friend" would buy larger quantities of "around half an ounce to a full ounce of MDMA" the Offender responded to the police undercover operative that he could supply it. * The "friend" of the first police undercover operative was a second police undercover operative who will later be referred to as "UCO 2". * On 15 November 2021, in a response to the police undercover operative's encrypted message order for "a bag of pearl", meaning cocaine, the Offender supplied to the operative 0.48 grams of cocaine for value of $300. * On 14 December 2021, in response to the police undercover operative's further enquiry of supply of MDMA to his "friend" UCO 2, the Offender confirmed his willingness and new pricings of $3000 per ounce ("3k for 1oz"). * On 17 December 2021, both the police undercover operative and UCO 2 met the Offender and the Offender asked UCO 2 to communicate with him by way of an encrypted application known as "Wickr". Subsequently by Wickr, the Offender informed UCO 2 to set the application for messages to automatically delete 10 minutes after being read and the chat to expire after one day. * On 21 January 2022, the Offender supplied the undercover police operative with 3.45 grams of cocaine for a price of $1,500 in response to the operative's encrypted order message the preceding day for "an 8 ball of pearl". * During their conversation on 21 January 2022 concerning UCO 2, the Offender told the police undercover operative that he had been unable to get any "M", meaning MDMA, because there was "none around". He promoted his trade to the police undercover operative by representing: "Like I bought Coke up there and paid $1,300 for a ball and I felt nothing. The quality is shit. I only sell what I can get which is good bro. But there is no M at the moment." 1. The cocaine supplied by the Offender to the police undercover operative ranged between 22% and 76% purity. 2. The above facts of the Sequence 10 offending, which I am asked to take into account on the Form 1, show a system of ready supply of two quantities below "small" (Schedule 1 DMTA) and one traffickable quantity of cocaine to order placed by messaging platform, over about 3 months to one police undercover operative. The total quantity supplied was traffickable. The Offender expressed his willingness to supply an introduced other person according to the availability of the illicit drug MDMA. No part of the Sequence 10 offending, to be taken into account pursuant to the Form 1, involved actual supply of MDMA. 3. The Sequence 16, s 25(2) DMTA offending occurred during a period of 1 month between 1 February 2022 and 2 March 2022 at Rouse Hill, New South Wales. By his plea of guilty, the Offender has admitted supply of 200.07 grams of 3,4 methylenedioxymethylamphetamine (MDMA) being an amount which was not less than the commercial quantity applicable to that prohibited drug and in exchange for a total price of $21,750. The total offending was supply exceeding the minimum commercial quantity by 75 grams. The total quantity supplied falls at the 20% mark within the range of commercial quantity for this offence. Accordingly, the total quantity was in the lower range of commercial quantity for which s 25(2) prescribes this offence. 4. The trade of supplying occurred as follows: * On 14 October 2021, the Offender supplied the police undercover operative with one clear resealable bag containing 0.94 grams of MDMA in exchange for $450. Standing alone, the supply was above a small quantity and in the lower range prescribed for a traffickable quantity; * On 1 November 2021, the Offender supplied the police undercover operative with one clear resealable bag containing 3.23 grams of MDMA in exchange for $450. Standing alone, the supply was in the lower range of indictable quantity; * On 21 December 2021, the Offender and UCO 2 began to text each other using the encrypted application Wickr regarding the regular supply of MDMA. The Offender informed UCO 2 that he was working on a source and agreed that for one ounce (28 grams) UCO 2 could pay $3,100; * On 1 February 2022, the Offender supplied UCO 2 with one plastic bag containing 28 grams of MDMA in exchange for $3,100. Standing alone, the supply was in the lower range of indictable quantity; * Having accepted UCO 2's Wickr message order for 2 ounces on Thursday 10 February 2022, on that day the Offender supplied UCO 2 with one plastic bag containing 56 grams of MDMA in exchange for $6,000. Standing alone, the supply was in an indictable quantity; * On 24 February 2022, the Offender supplied UCO 2 with one plastic bag containing 56.1 grams of MDMA in exchange for $6,000. Standing alone, the supply was in an indictable quantity; and * On 2 March 2022, the Offender supplied UCO 2 with one plastic bag containing 55.8 grams of MDMA in exchange for $6,000. Standing alone, the supply was in an indictable quantity. 1. The MDMA supplied by the Offender to UCO 2 was of a range of purity between 21.5% and 67.5%. OBJECTIVE SERIOUSNESS 1. That the supply the subject of these charges was to police undercover operatives is not a relevant consideration in the assessment of the Offender's criminality. The Offender does not submit that there was a real possibility that he would not have committed the offences charged but for the involvement of the police undercover operatives. He was a ready and willing supplier, of the cocaine and of the MDMA, in relation to each of the offences, considered separately. Nor is the fact that the drugs were not actually disseminated into the community as a result of the police undercover operation a factor which reduces the objective seriousness of the offending or the moral culpability of the Offender. It is not a mitigating factor. There is no evidence of broad distribution into the community, which would be an aggravating factor: Cam Huynh Giang v R [2017] NSWCCA 25 at [18]-[24]. SEQUENCE 6 OFFENDING 1. The cocaine supplied was of relatively low purity. The gravity of the offending is elevated because the Offender's system was associated with promotion of the Offender's illicit drug "menu" on the encrypted application Telegram. The Offender showed that he was actively involved in an operation where he was in a position to supply cocaine at short notice. He conducted his trade using encrypted messaging platforms and codes such as "Audi". These facts show that he was involved in a system of trading. The Offender acted on the opportunity of engaging a new buyer when the police undercover operative introduced him to his "friend" UCO 2 which again revealed engagement in a basic businesslike system of trading. 2. The agreed facts include conversations in which the Offender made reference to his own use of the drugs. 3. The monetary reward won by the Offender was relatively low. The total quantity was small. 4. Whilst the actual transactions and mode of business would meet the generalised description of a low-level user/street supplier, the Offender spoke with the police undercover operative of his ability to supply larger quantities; nevertheless, the facts do not show that the Offender was in reality able to or did transact in more than relatively low-level street supply. That the Offender was a user/dealer supplying to fund his own addiction, is relevant to the assessment of objective seriousness to the extent that it lessens the pure commercial profit motivational context to his involvement in his system of supply: Daher v R [2018] NSWCCA 287 at [66]. His system of operation was crude and unsophisticated relative to the range of offending under s 25A DMTA. He did not use a runner and there is no evidence of significant customer numbers. As already observed, his offending involved 4 deals, being above the minimum prescribed for offending of this type and the cocaine was of variable purity amongst the deals of relatively small quantity overall. In my opinion and bearing in mind the observations of Payne JA in Daher, particularly at [66], the offending was of a small-scale operation in the range of offending under s 25A. 5. The defence submits that the objective seriousness of the Sequence 6 offending was at the lower end of the range. The Crown submitted that it was below the mid-range for offending of this type. There is no applicable standard non-parole period and therefore it is not incumbent upon me to specify a place in the range of seriousness; however, in response to the submissions made and for understanding of these reasons, I assess the Sequence 6 offending as in the low range of objective seriousness for offending of this type. SEQUENCE 16 OFFENDING 1. The Sequence 16 offending took place over the longer period of four and a half months. It stopped when the Offender was arrested on 2 March 2022. The total quantity supplied is at the lower end of the range for offending of this type in a commercial quantity. The Offender's system of operation was, in my opinion, no more sophisticated than I have described above for the Sequence 6 offending. He continued the same practices. That he engaged UCO 2, being a friend of his customer, the police undercover operative, does show a willingness to expand his clientele, in this case to one other person. There is no evidence of a significant number of clients or of a larger operation such as using a runner. The Offender continued to supply on a one-on-one, user/street dealer basis. The evidence is of a relatively small scale operation for s 25(2) offending. The Offender's spoken willingness to supply larger quantities of prohibited drug and his supply of MDMA in the subject quantities, was acknowledged by him in oral evidence as of the potential to permit the drugs to be on-sold. That some of the MDMA supplied was of the higher purity of 67.5% is consistent with the reality of that risk. The Crown points to the increase in the quantities supplied in the transactions over time. I note that those increases were in accordance with the police undercover operatives increased orders and not pressed by the Offender. Other than his Telegram platform "Menu", his offending was reactive to requests for supply. 2. Each party submits that the Sequence 16 offending for which there is a Standard Non-Parole period, falls below the middle range for offending of this type. I agree with that assessment. THE SEQUENCE 10 - FORM 1 OFFENCE 1. The Form 1 offence for supply 4.46 grams of cocaine between 1 November 2021 and 21 January 2022 at Rouse Hill is in a traffickable quantity and toward the threshold into the range for an indictable quantity (5 grams). I agree with the Crown's submission that it is offending of a serious nature and is to be taken into account when sentencing after consideration of all relevant matters, for the Sequence 6 offence in order to give a degree of greater weight to general deterrence and protection of the community for that offending. Again, his operation was of a relatively unsophisticated user/street dealer type and the monetary reward was relatively low for offending of this type. Again, the purity of the cocaine supplied varied. The supply on 21 January 2022 of 3.45 grams was in the lower range of traffickable quantity. DISCOUNT FOR PLEA 1. The Offender entered an early plea and, as the Crown concedes, is entitled to a 25% discount on sentence pursuant to s 25D, Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) for the utilitarian value of his guilty plea. AGGRAVATING AND MITIGATING FACTORS 1. The Offender's antecedent criminal history includes no offences of violence. It includes driving a motor vehicle whilst license suspended and goods in possession suspected of being stolen in his motor vehicle. I note these offences were committed in 2019. In December 2019, he committed possession and supply prohibited drug below indictable quantity offences for which he received 2 Community Corrections Orders of 18 months, to run concurrently, commencing 9 November 2020. The terms of his bonds included monitored compliance with drug rehabilitation and abstention. The Agreed Facts for that offending show that the Offender immediately cooperated with the police including directing them to the drugs stashed in his motor vehicle when he first came to their attention. In relation to the offence of owner not disclose identity of driver or passenger committed on 6 May 2020, on 9 November 2020 he was sentenced to a Conditional Release Order of 1 year duration. 2. The subject offending was committed whilst he was subject to those bonds. The Crown does not seek any order in relation to those breaches of bond, the bonds having expired. The Crown submits that the offending having occurred in breach of bonds is an aggravating factor to be taken into account. I agree with that submission. The Crown properly submits that planning and organisation of the criminal activity for financial gain are not aggravating factors, they being not other than is inherent to offending of this type. I agree with that submission. SUBJECTIVE FACTORS 1. The Offender's immediate cooperation with police at the time of his December 2019 offending, his pleas of guilty in those Local Court proceedings and his early pleas of guilty to the present, subject offences is a history consistent with his heightened and difficult to afford use of prohibited drugs, predominantly cocaine, whilst being a young adult and his acknowledgement of the wrongfulness of that lifestyle. 2. The Offender was 21 years of age when arrested on 2 March 2022 and he has remained in full-time incarceration. This has been his first experience with prison. He had been incarcerated 407 days when, following his entering early pleas, he first came before a court for sentence in the subject hearing. At the time of this judgment he will have been incarcerated 423 days – approximately 1 year and 2 months. 3. The Offender has written to the Court and gave evidence on oath expressing that he is truly remorseful and that his time in custody has been "the biggest wake up call in my life". He appreciates that his time in custody has created difficulty for his family, friends, and partner also. He has strong family support and support from his partner who is a nurse. The Offender said that his time in prison has caused him to observe other inmates, who experience a life of coming in and out of gaol, and he realises that he does not want incarceration in the next chapter of his life. He wrote that he realises that he cannot associate with drugs in his future if he wishes to avoid that lifestyle of some inmates and further time in prison. His note to the Court informed that his plan is to return to scaffolding work and, on the evidence, full-time employment remains available to him. He also plans to resume tertiary study in personal physical training. The Offender wrote that he has reflected on his decisions the subject of the offending and, consistent with the evidence before me, that he has taken steps toward making changes in his life to better himself. Whilst incarcerated, he speaks to the prison chaplain, attends church weekly, has sought assistance from a psychologist and has undertaken programs available to him in regard to his addiction and toward adoption of a positive lifestyle. He said that he is completing a business management course. 4. During evidence he said that he accepted responsibility for his prior drug use. I accept that his contrition is genuinely expressed. 5. In my opinion, the Offender's youth is particularly relevant in the assessment of appropriate sentence. He is at a point in his life when he has the opportunity of his youth to turn his life around and to benefit from rehabilitation in order to have a long future in the community with the support of his family and his present fiancée. 6. The Offender's time in prison has been particularly difficult because of 86 days of lockdown due to the pandemic. Also, on 22 March 2023 he was assaulted by three inmates and the Justice Health record confirms that he suffered some degree of physical injury including a head injury. He has remained in protective custody since two days following that assault. In protective custody he remains fearful to leave his cell because he is surrounded by serious offenders. The Offender has also witnessed assaults and intimidation, including a stabbing. Expert psychological opinion evidence confirms his hypervigilance experienced in that environment. 7. The Offender said that he suffers pain in his left shoulder because of a rotator cuff injury suffered on 15 March 2023 whilst training with weights, but I am not persuaded that injury, given the availability of care with Justice Health, identifies any special hardship. 8. Whilst in custody the Offender works with textiles, performing sewing, Monday to Friday, five hours per day. 9. A special circumstance is that this has been the Offender's first time in custody. 10. All of the evidence supports finding, as I do, that during the substantial period of 423 days in custody, the Offender has remained abstinent from drug use. The Offender said that he would comply with any drug rehabilitation program available to him including inpatient rehabilitation. He said that should his mental health decline in the future, he now realises that he would be at risk of drug use, and he would address his decline by seeking the assistance of a psychologist. I was struck with the frankness of his evidence which was to the effect that if he relapsed into drug use, he would seek counselling and professional help. This evidence sounded sincere and readily acceptable over what might otherwise have been a claim that he would never again succumb to his temptation to use drugs. 11. Whilst the Offender had experienced on occasion a difficult life with his father including some physical assault as an adolescent, he completed his High School Certificate. He said that should he be released from prison he would live with his parents and get married and start a family with his fiancée. He said that they plan to move to a different State to make a fresh start. The affidavit evidence of his father and fiancée expressed that they will support him in his plan. 12. I observe that the Offender was directed to assistance with rehabilitation from drug use made available to him under his 9 November 2020 court sentences but went on to these offences. 13. Consistent with what is to be found in the MERIT report, and the submission of his counsel, which I accept, is the Offender's evidence that at that young age and before his substantial experience with full-time incarceration, he believed that he could deal with his drug addiction himself. I gained the impression, from his oral evidence and from the documentary evidence in his subjective case, that it is the extensive experience with incarceration which has assisted him to realise the serious consequences of his addiction and that in the future he would be not as likely to take the risk of dealing with it himself, as he did before. 14. During cross-examination, he readily conceded that despite having received the assistance of Odyssey House in 2020, after only approximately one year he reoffended. He agreed with the Crown Advocate that whilst on those prior Bonds and with the opportunity to address his drug addiction, he nevertheless offended. He also agreed, during cross-examination, that he informed the undercover police operatives that it was available to him to obtain for supply larger quantities and that he understood that supply of larger quantities could be on-sold to the community. 15. The documentary material relied upon by the Offender has been read and considered. In closing written submissions, the Crown acknowledged the Offender's expressions of remorse for offending by virtue his guilty plea, his strong ties to family and in the community that will support him upon his release and that the Sentencing Assessment Report suggests that the Offender will reside with his parents and that he has that support. 16. A Sentencing Assessment Report dated 5 April 2023 recorded that the Offender spoke to the author of the report of his worsening cocaine habit and how his daily use became unsustainable financially and that he engaged in the supply of cocaine and MDMA to continue affording his own habit upon which he would spend approximately $1,000 when his weekly wage from his full-time employment was $1,500. The author recorded that the Offender "demonstrated a good understanding of the impact of his behaviour including the impact of drugs in the community, and upon his friends, family, partner and in his employment". He acknowledged the impact of drugs on other users and spoke of his willingness and ability to undertake intervention. 17. The Offender gave oral evidence which was consistent with the author's opinions as properly acknowledged by the Crown. The Offender was assessed as of Tier 1 medium-low risk of reoffending and to be suitable to undertake community service work, for which he is willing. Community Corrections will monitor him for any indicators of increased risk. I accept the Offender's evidence of his willingness to perform that work and to comply with that monitoring. 18. The Offender relied on two expert reports of psychologists. Mr Kris North, forensic psychologist, by report dated 4 April 2023, wrote of the Offender's drug use since 13 years of age as his maladaptive response to life stressors both at home and to achieve at a high level academically. He noted that the Offender's habit became unaffordable in late 2020 and that at the time of arrest his drug abuse involved mainly cocaine but also occasional MDMA and benzodiazapines. 19. On all of the evidence before me and as the Offender reported to the expert psychologists, his drug use increased in 2020 and his selling drugs at the time of his offending was a means of supporting his own habit. 20. The Offender identified his additional stress trigger in that period as the financial stress which resulted from the pandemic lockdown. In accordance with his oral evidence, all expert report evidence records the Offender's abstinence from drugs during his time in gaol. In accordance with his oral evidence, all of the expert psychological evidence is supportive of the observation that this substantial experience, as a young male, with his first full-time incarceration, has been a major turning point in the Offender's life. As Mr North put it "… he presented as motivated towards engaging in future drug treatment to assist him in maintaining abstinence upon his release." 21. Mr North diagnosed the Offender to suffer Major Depressive Disorder with anxious distress. He recommended that the Offender be engaged with a psychologist in learning how to manage his symptoms more effectively, particularly because a decline in his mental health functioning may place him at risk of relapse to drug use in the future. All of the expert report evidence, consistently with the Offender's oral evidence, acknowledges the positive value of the support of his family and fiancée toward his opportunity to achieve future pro-social goals. 22. Mr North expressed the opinion that should the Offender engage in appropriate treatment and supervision, his risk of reoffending could be suitably managed within the community. 23. Having commenced with cannabis at age 13, the Offender used MDMA from age 14 and cocaine from age 16. By age 18 his cocaine use was daily but his use of MDMA, cannabis and benzodiazapines remained occasional. 24. The Offender achieved entry to a selective school for Year 7 however, in accordance with the timing of his commencing drug use, his academic performance declined, and he attended a regular high school during Years 9 to 12. He achieved his High School Certificate in 2018 and matriculated into a Business and Applied Finance degree course at Western Sydney University in 2019. However, after only 2 months he deferred from the course due to lack of interest. He has remained in steady employment, as earlier stated. 25. During early 2020, the Offender attended the MERIT program. The MERIT Final Court Report dated June 2020 confirms the Offender's report of a history of physical abuse and domestic violence exposure during his young development years as well as the pressure he experienced to perform at a high level academically. It concluded: "Mr Sahgal reported some reduction in change in his overall substance use. This could be considered some gain, considering his young age and that this is his first attempt at treatment. He has declined any further referral yet could benefit from ongoing intervention." This statement meets with the Offender's evidence that at his then age of 19 years, he considered himself able to control his drug use. The period of abstinence to which the report referred, was of only a few weeks duration. 26. He completed Stages 1 and 2 of the Alcohol and Other Drug Recovery Group. This was an online course during 2019 and 2020 and his doing so is consistent with his evidence of his purpose of managing his drug use at that early age, but with a lack of success. 27. The Offender informed Mr North, just as he gave oral evidence in court, of his having been intimidated by other inmates whilst in custody. He reported having "a knife pulled on me" during a "stand over" and he had witnessed a stabbing of another prisoner whilst at Long Bay Correctional Centre. The Offender reported what Mr North described as hypervigilance since his witnessing that stabbing, difficulty sleeping, nightmares, elevated heart rate and generalised anxiety. Mr North noted the observations of Ms Rose, clinical psychologist, of the Offender's extremely severe anxiety symptoms, stress, and moderate symptoms of depression at the time of her assessment in April 2022. 28. Mr North assessed the Offender as posing a low risk of self-harm whilst scoring on the BECK Depression Inventory and on the BECK Anxiety Inventory a severe range of depressive and of anxiety symptoms. 29. Mr North diagnosed the Offender to suffer the following mental health problems: * Major depressive disorder with anxious distress; * Stimulant use disorder, cocaine, moderate, in sustained remission, in a controlled environment; and * Sedative, hypnotic, or anxiolytic use disorder, moderate, in sustained remission, in a controlled environment. 1. Mr North recommended that the Offender be referred to a psychologist for treatment in relation to his anxiety and depression. Mr North observed that treatment is available both in the community and whilst the Offender is in custody. Mr North opined that the Offender's mental health symptoms are likely to decline upon discharge from custody. 2. Mr North concluded that as the Offender has completed EQUIPS Addiction whilst in custody, he should be referred for treatment in the community as part of his discharge planning from custody, for example, that the Offender re-engage with Odyssey House. 3. Mr North also recommended that should the Offender be discharged into the community, it be under the supervision of Community Corrections to assist him in his reintegration into the community with the provision of case management, counselling, and referrals to treatment programs as considered appropriate. Mr North recommended that random drug testing be included in supervision to monitor the Offender's drug use. 4. The Offender relied also on the report of Ms Rose, following her consultation with the Offender on 28 April 2022. The report is dated 30 April 2022. On the basis of clinical testing, Ms Rose determined that the Offender: * suffers no cognitive impairment; * suffers high drug dependence; * suffers substance abuse disorder at the level of addiction, his being severely dependent; and * moderate depression with severe anxiety. 1. Ms Rose expressed her opinion that continuing incarceration of the Offender is not the best environment for achieving his rehabilitation from abuse of drugs. Naturally, Ms Rose does not, as a component of her clinical opinion, incorporate consideration of general deterrence or other principles of sentencing law. 2. Ms Rose recommended that the Offender attend an inpatient drug rehabilitation program "so he can become a better person in society". 3. The Offender's expressed choice to rehabilitate from his drug abuse lifestyle is supported by the further following documentary evidence which I have considered: Odyssey House AOD 2 Completion Certificate dated 15 December 2020, The Salvation Army Positive Lifestyle Program certificate dated 7 March 2023, and a letter from Chaplain Reyes of Bathurst Correctional Centre dated 7 March 2023. Affidavits of the Offender's father Sanjeev Sahgal made 6 April 2023 and of his fiancée Imogen Yeung confirm his close family support which he has enjoyed the benefit of whilst incarcerated and that the support would continue outside of prison. Those affidavits refer to the Offender experiencing hardship whilst in prison. They expressed their genuine belief that the Offender wants to make a change for his future and not find himself in the prison environment again. 4. Documents tendered for the Offender from Justice Health and Forensic Mental Health Network confirm that he suffers left shoulder weakness and pain for which he receives physiotherapy. This was the physical training injury referred to earlier. Additionally, Justice Health documents confirm that the Offender has received psychological consultation assessment for his ongoing anxiety and depression whilst incarcerated. I do not consider that his left shoulder weakness, ongoing discomfort whilst receiving medical care through Justice Health, or his ongoing states of anxiety or depression to be hardships warranting any discount of sentence by way of full-time imprisonment. SYNTHESIS 1. The Tier 1 medium-low risk of reoffending assessed by the author of the Sentencing Assessment Report and the substantial evidence supporting the defence argument that he is of good prospects of rehabilitation, although commonly linked, are separate concepts: Zuffo v R [2017] NSWCCA 187 at [47]. Price J with reference to R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [118]–[121] adopted that distinction as drawn by McClellan CJ at CL and Johnson J, and noted that whilst judges express an opinion as to whether the person is unlikely to reoffend, "… it could never be said that a person who has once offended would never reoffend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding reoffending." 2. In the present case, my assessment of the risk of the Offender reoffending is moved by my acceptance of his expressions of real remorse, his realisation earned during his substantial incarceration of what the future might hold for him in the event that he did reoffend and his efforts, so far as it has been available to him to do so whilst incarcerated, to embark upon rehabilitation in combination with his abstinence whilst in the controlled environment of prison. Those factors are further elevated by the obvious family support surrounding him and the promise of full-time employment. These are factors strongly persuasive of mitigation of sentence in this case. The Offender's youth is an important factor in that assessment. In my opinion, the need for specific deterrence is substantially reduced. 3. Under the subheading "How should sentencing in drug supply cases be approached?", In Parente v R [2017] NSWCCA 284 at [107]-[112] the Court (Macfarlan JA; Hoeben CJ at CL; Leeming JA; Johnson J; RA Hulme J) provided guidance as to some matters which should be emphasised in the application of general principles of sentencing. The first was that amongst the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 the court is to be mindful of the importance of the prevention of crime by deterring not just the offender but other offenders from committing similar offences (s 3A(b) CSPA) and to protect the community from the offender (s 3A(c) CSPA). For present purposes, and in addition to my above observations concerning application of the principle of specific deterrence in this case, the Court emphasised the importance of a consistent message of general deterrence from sentencing judges. Further, courts are to be mindful of the impact of drug use on the community, particularly as an underlying cause of other criminal offending. The Court emphasised the importance for judges to be mindful of the maximum penalties and of any standard non-parole periods, they being the legislative guideposts which, for drug offences, are set at high levels. Finally, the Court emphasised the importance of the s 5 CSPA threshold before a determination for full-time imprisonment is made. That section provides that an offender must not be sentenced to imprisonment unless the court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The Court approved what was stated by Simpson JA in Robertson v R [2017] NSWCCA 205 at [97]: "[T]here is nothing in s 5 that directs a judge, having decided that no alternative to imprisonment is a viable option, then to exclude from consideration any non-custodial means by which the sentence may be served." 1. I bear in mind the substantial statutory guidepost of maximum penalty of 20 years imprisonment in relation to my consideration of sentence for each of the offences, under ss 25A(1), 25(2) DMTA respectively. I bear in mind my separate assessments of the objectives seriousness of the offending, that the offending occurred whilst the Offender was on conditional liberty and the need for some increase of sentence for the Sequence 6, s 25A(1) offence on account of the Form 1 offending. In relation to the Sequence 16, s 25(2) offence, I bear in mind the further statutory goalpost of standard non-parole period of 10 years. 2. In my opinion, in relation to both offences, it is protection of the community and general deterrence which weigh most heavily in the synthesis of this sentencing exercise. Whilst adequate punishment, denunciation of his conduct, making the Offender accountable for his actions, as well as recognising the harm done to victims of drug crime in the community prevail as important principles (s 3A CSPA), the 423 days of imprisonment experienced by the Offender has been accepted by me as a turning point in his life and whether the sentence be by way of full-time imprisonment or otherwise; a substantial opportunity for reintegration into the community to pursue his direction toward rehabilitation which he has already commenced, in accordance with the recommendations of Mr North, forensic psychologist, will be important in regard to protection of the community against risk of his reoffending. 3. The Offender's youth is a significant special circumstance deserved of recognition with his need for rehabilitative assistance, in the environment which I have found to include his attempts to rehabilitate himself to this point, his mind shift to the need to comply with professional psychological assistance and maintain abstinence in order to avoid future imprisonment from drug related offending and his surrounding family and fiancée network which will support him in achieving the benefit of rehabilitative assistance: AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 at [86] (per Johnson J with McClellan CJ at CL and Garling J agreeing). 4. I am satisfied on the history of the Offender first having received psychological treatment at age 17 in response to his difficulty coping with issues in his surrounding family environment and the expert observations of Mr North and Ms Rose, that his mental health conditions of depression and anxiety have contributed to his offending as he failed to deal with pressures of his life environment, including exacerbation of financial pressures during his early adult years leading to his maladaptive course of personal drug use and finally to financial need in order to afford his addiction. 5. Particularly given his chosen course for treatment aimed at his development of appropriate coping mechanisms and a law abiding future, free of drug offending; in my opinion, he is not a good vehicle for general deterrence and there should be a reduction in the sentence which would otherwise have been imposed: Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] per McClellan CJ at CL. 6. I am mindful of the relevance of sentences in other cases and the need for consistency of sentencing: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]. The High Court approved (at [54]) the statement by Simpson J (as her Honour then was) in De La Rosa at [304], that "When considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned." 7. A search of JIRS statistics of cases sentencing for offending against s 25A(1) DMTA – plea of guilty, supply prohibited drug (non-cannabis) on an ongoing basis including consideration of a Form 1 matter, some quality of antecedent criminality in the offender age range 21 to 25 resulted in only 26 cases in which 3.8% of offenders were sentenced by way of CCO, 53.8% by way of ICO and 42.3% by way of prison. 8. The statistics for sentences for offending against s 25(2) on the same statistical search parameters found only 12 cases within which offenders were sentenced to ICO 16.7% and to prison 83.3% of the results. 9. When referring to the JIRS statistics for drug offending, including offences pursuant to s 25A, Payne JA (Simpson AJA and Johnson J agreeing) in Daher v R [2018] NSWCCA 287 at [72] observed that the broad range of sentences and non-parole periods led to the conclusion that the statistics were "a very blunt tool" but that they also provided "some very limited guidance" to sentencing in cases such as this. 10. Mr Daher had pleaded guilty to 3 counts contrary to ss 25(1) and 25A(1) DMTA. The subject offending involved unsophisticated user/dealer offending, principally in cocaine of purity and quantity greater than in the present case. No standard non-parole period applied to those offences. Mr Daher relevantly suffered from ADHD. There was no serious antecedent criminal offending and his prospects of rehabilitation were favourable. He was 50 years of age at the time of his first instance sentencing hearing and 52 years of age at the time of his appeal. The Court considered the offender's genuine remorse and expression of contrition a significant mitigating factor, as was his having taken steps toward rehabilitation and withdrawing from drug use. The Court proceeded by way of aggregate sentence, indicating a sentence of 3 years and 9 months for the s 25A(1) offence, finding that a modest degree of notional accumulation was appropriate and ordered an aggregate head sentence of 4 years and 6 months imprisonment with an aggregate non-parole period of 2 years and 9 months. The Court maintained the 60.6% non-parole period to which the first instance Judge had arrived. 11. In Zuffo v R [2017] NSWCCA 187 the offending against ss 25A(1) and 25(2) DMTA involved the drug MDMA. The same statutory goalposts applicable here, applied there. The quantities of drugs supplied and the price received were significantly higher than in this case. The offender was 22 years of age at the time of the offending. He suffered stress, depression and anxiety, having left school at year 10 and commenced drug use at 18 years of age to heighten his self-confidence and feel good about himself. As in this case, the offender there found himself unable to support his drug habit with his salary alone and he began to deal in drugs. The Court accepted that he was remorseful and aware of the harmful effects of his offending upon his own life, his family, his girlfriend and society in general. As in this case, his experience with gaol caused the offender to realise the gravity of the consequences of his lifestyle upon himself and those around him and he adopted a positive approach to rehabilitation prior to the offending. Price J (Hoeben CJ at CL and Adamson J agreeing) included in his reasoning at [66] the observation that "As with any person who has had a serious drug addiction, there remains a degree of uncertainty about predicting the future." Her Honour Adamson J at [92] provided the additional observation that "I would have thought that a finding that an offender has substantially rehabilitated would incorporate a finding that the offender is unlikely to re-offend." After allowing for a 10% discount on account of his plea of guilty, the Court maintained the penalties ordered by the first instance Judge: for the Count 1, s 25(2) DMTA offending including a significant Form 1 offence, 5 years imprisonment with a non-parole period of 2 years and 6 months; for the Count 2, s 25A(1) DMTA offending, 1 year and 6 months imprisonment. As a result of partial accumulation, the overall effective sentence was imprisonment of 5 years and 3 months with a non-parole period of 2 years and 9 months, incorporating a non-parole period of 52.3% of the total term. 12. In Remington v R [2018] NSWCCA 98, Fullerton J (Bathurst CJ and Campbell J agreeing), the offender had entered pleas of guilty to 3 offences against s 25(1) DMTA. That is a less serious offence than those under consideration here. The statutory goalpost was a maximum term of 15 years imprisonment. There was no standard non-parole period. The offending involved supply of more than twice the minimum indictable quantity of methamphetamine and the second and third offences involved smaller supplies of that and other drugs. Offences before the Court pursuant to a s 166 (CPA) certificate included bringing tobacco into a place of detention, drive while suspended and 2 counts of failing to appear whilst on bail. The Court dealt with the offender's strong subjective case and imposed wholly concurrent sentences of 12 months with a non-parole period of 6 months for the more serious methamphetamine count and 2 months for the second and third less serious counts. The offending was committed in order to feed the offender's drug habit. The exercise of discretion in regard to concurrency of sentencing is of significance here. 13. I have also considered the following cases: Griffiths v R [2021] NSWCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26. 14. In my opinion the s 5 CSPA threshold has been crossed. That finding was not contested by the parties. 15. In my opinion, it is appropriate to proceed pursuant to s 53A CSPA, particularly in circumstances of the offences arising out of a single course of trade in illicit drugs and the distribution. Those same facts, I consider unifying in the sense that following my indicative sentences for each of these serious offences, significant accumulation to accord appropriate consideration of totality is required. 16. In my opinion, the following sentences are appropriate after applying a 25% discount on account of his pleas of guilty: 1. Sequence 6, s 25A(1) DMTA: 2 years and 10 months with a non-parole period of 1 year, 6 months and 21 days – incorporating the s 25(1) DMTA, Form 1, Sequence 10 offence; and 2. Sequence 16, s 25(2) DMTA: 3 years and 4 months with a non-parole period of 1 year and 10 months. 1. After bearing in mind the principle of totality such that the total sentence reflects all of the offending behaviour and is just and proportionate, a measure of accumulation is required. In my opinion, an aggregate total sentence of 4 years imprisonment is appropriate. Pursuant to s 44(2A) CSPA, I impose a single non-parole period of 2 years, 2 months and 12 days. 2. The defence submits that sentence by way of Intensive Correction Order would provide greater protection for the community than sentence by way of further full-time imprisonment because it would afford this relatively young offender the best opportunity of advancing his rehabilitation by receiving in the community better access to mental health treatment and associated rehabilitation therapies from drug use than that which is available to him within prison. The Crown submits that the appropriate sentence is full-time imprisonment. 3. s 7, read with Part 5 of the CSPA provides the discretion to make an Intensive Correction Order directing that the sentence be served by way of Intensive Correction in the community but only, there being more than one offence, if the imprisonment imposed does not exceed 3 years. In his application for sentence by way of ICO, the Offender is entitled to the benefit of the 423 days imprisonment he has served to date: Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 per Simpson AJA at [63]; Shavali v R [2022] NSWCCA 178 per Brereton JA at [11]. The balance of the head term of imprisonment at which I have arrived, less 423 days served is 2 years, 10 months and 1 day. 4. In the exercise of discretion whether or not to proceed by way of ICO, the paramount consideration is community safety: s 66(1) CSPA. s 66(2) requires the court to assess the relative merits of full-time detention as against Intensive Correction in the community, for the purposes of evaluating the "paramount consideration" of community safety identified in s 66(1): Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3 per the plurality at [54]. s 66(3) requires this be done whilst the court also considers the purposes of sentencing set out in s 3A CSPA and any relevant common law sentencing principles. 5. I bear in mind the Sentencing Assessment Report and all of the information above referred to, particularly the expert opinions of Mr North, forensic psychologist and Ms Rose, psychologist. That information is sufficient for the consideration in the exercise of my discretion. Each of the expert reports supports the appropriateness of the Offender engaging with treatment and rehabilitation whilst in the community. Ms Rose recommends that the Offender be given the opportunity to participate in an inpatient Drug Rehabilitation Program in the community. She concluded stating: "NSW Health delivers a comprehensive range of treatment, specialist treatment and aftercare services provided by local health districts and non-government organisations including counselling, withdrawal management, opioid agonist treatment, residential rehabilitation, drug and alcohol consultation liaison in targeted hospitals. There are also privately run inpatient rehabilitation treatment programs for severely substance dependent individuals." 1. Given her diagnosis following clinical testing of Substance Abuse disorder with moderate Depression and Severe Anxiety and that he is severely substance dependent and addicted to drugs, the Offender, in her opinion, is a person who would benefit from those in-community programs toward reducing his risk of reoffending. 2. Mr North concluded: "it is my opinion that should he engage in appropriate treatment and supervision, his risk for reoffending could be suitably managed within the community." 3. It is well recognised that drug supply does not only harm the immediate users but more generally the community through crime committed by drug users in order to fund their habit. 4. In the exercise of my discretion, sentence served by way of ICO in the community is preferred for this Offender given the relative merits of him pursuing those expert recommendations for rehabilitation, given his youth, the support of his family and employer. It is my opinion that sentencing the Offender by way of an ICO in the community is preferable to sentencing him to full-time detention, for the purposes of the paramount consideration of community safety. ORDERS 1. The Orders I make are: 1. You are convicted. 2. Charges under Sequence H86247706 - 1 to 5, 7 to 9, 11 to 13 and 15 are dismissed. 3. The Offender is sentenced to a term of imprisonment 2 years, 10 months and 1 days to be served by way of an Intensive Correction Order. 4. The sentence will commence on 28 April 2023 and expire on 28 February 2026. 5. The mandatory conditions are imposed, they are that: 1. The Offender must not commit any offence; and 2. The Offender must submit to supervision by a community corrections officer. 1. The following additional conditions apply: 1. The Offender must for the term of the sentence abstain from any drug use other than those prescribed for him by a medical practitioner; 2. The Offender must undertake any course of counselling or other treatment recommended to him by either a community corrections officer, his general practitioner, psychiatrist or psychologist; 3. The Offender is to undertake 400 hours community service work as directed by a community corrections officer; 4. Within 7 days of this date the Offender is to contact Windsor Community Corrections Office in regard to his undertaking community service work and these conditions of his Intensive Correction Order; 5. The Offender is to comply with any Mental Health Plan, treatment and medication prescribed by his treating general practitioner, psychiatrist, psychologist or other medical practitioner as appropriate and is to engage in any counselling his treating medical practitioners consider appropriate; 6. The Offender is to accept and complete any referral or testing in relation to specialist testing or diagnosis in relation to his conditions of depression, anxiety, substance abuse disorder and addiction; and 7. The Offender is to comply with any testing to which he is directed by a community corrections officer in relation to consumption of illicit drugs or prescribed medications unless those drugs are prescribed to the Offender by his treating medical practitioner. 1. I make no specific order in relation to the breaches of Bonds ordered in the Local Court on 9 November 2020. ********** Amendments 29 April 2023 - Date of Orders and Date of Decision corrected. 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: 29 April 2023