R v Mahfouz [2023] NSWDC 559

District Court New South Wales

Medium Neutral Citation: R v Mahfouz [2023] NSWDC 559 Hearing dates: 24-25 October 2023 Date of orders: 25 October 2023 Decision date: 25 October 2023 Jurisdiction: Criminal Before: Neilson DCJ Decision: The application for detention is refused. Catchwords: CRIME – DETENTION APPLICATION – Jury returned verdict of guilty of not guilty as charged, but guilty of supplying a prohibited drug – Application by the Crown for the detention of the Respondent – Application refused. Legislation Cited: Bail Act 2013 (NSW) Criminal Code 1995 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Haddara v The Commonwealth Director of Public Prosecutions [2006] VSC 8 R v Naizmand [2016] NSWSC 836 R v NK [2016] NSWSC 498 Texts Cited: Nil Category: Procedural rulings Parties: R – Crown (NSW) Respondent– Gladiss Mahfouz Representation: R – Gul, S. Respondent – Hopper, S. File Number(s): 2019/00091558 Publication restriction: Nil.

Judgment 1. HIS HONOUR: On 27 September 2023, the Respondent was arraigned on an indictment, charging her that between 22 February 2019 and 22 March 2019 in Sydney, in this State, she did supply an amount of prohibited drug, 265.2 grams of cocaine, being an amount which was not less than the commercial quantity applicable to that prohibited drug. That is an offence contrary to the Drug Misuse and Trafficking Act 1985, s 25(2). On 11 October 2023, the jury returned a verdict of not guilty as charged, but guilty of supplying a prohibited drug, namely cocaine. 2. This is a detention application. The detention application was made after the jury returned its verdict. It was inappropriate to entertain the detention application at that time because the Court was sitting in court 18A in the John Maddison Tower. That was a courtroom initially designed for a civil jury trial, but the jury facilities have been expanded, so it can also be used for a criminal trial. There is no dock and no secure facilities for confining a convict. 3. I imposed new bail conditions upon the Respondent and stood the matter over part heard to Monday 16 October at 10am, when I was sitting in a secure court. The detention application was part heard on that day, and I gave the Respondent to the application, further time to prepare the case that she wished to put before me. 4. I stood the detention application over to Tuesday 24 October 2023 at 3pm. That was yesterday. Yesterday, further evidence was adduced, and in particular there was an affidavit affirmed by the Respondent's father tendered. He was required for cross-examination by the Crown. The application finished at about 4.30pm, and I stood the matter over until 2 o'clock this day on the basis that I was summing-up to a jury this morning, and I would expect to be free to give judgment in this matter this afternoon, which I now do. 5. Section 22B(1)(b) of the Bail Act 2013 is in the following terms: "(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court: (b) on a detention application made in relation to the accused person - must refuse bail unless it is established that special or exceptional circumstances exist that justify the decision." Subsection (5) defines the word "conviction" to include a plea of guilty. "Conviction" is also defined in s 4(1) of the Bail Act to include a finding of guilt. Because of where I was sitting on the day that the jury returned its verdict, I did not pronounce the allocutus, so that no formal conviction has been recorded. However, there has been a finding of guilt made by the jury. 1. The first matter to be considered is whether the Respondent will be sentenced to imprisonment to be served by way of full-time detention. There are a number of co-offenders. The principal of the group that was supplying cocaine was the Respondent's son, Omar Mahfouz. He pleaded guilty and was granted a discount of 25% for the utilitarian value of his plea at the earliest opportunity. He was sentenced to imprisonment for four years and two months with a non-parole period of two years and six months. Another co offender was Abdul Arnaout, who was charged with supplying an indictable quantity of cocaine, namely 249 grams, between 6 February 2019 and 23 March 2019. He received a 10% reduction in his sentence because of a plea of guilty before the trial, the plea being entered at a "Super call over" on 25 September 2021. He was sentenced to imprisonment for three years with a non-parole period of one year and six months, allowing for the 10% reduction. The starting point for his sentence was a period of imprisonment of some 40 months. 2. Another co-offender was Fawaz Mahfouz, the offender's husband. He was charged with knowingly take part in the supply of an indictable quantity of cocaine, 36 grams. He was given a discount of 10% on his sentence for making agreements that reduced the scope of the trial. He was sentenced to an intensive corrections order for a period of 16 months. Another offender was Wissam Awde, who, like Abdul Arnaout, was a taxi driver who was engaged at some stage to drive a taxi from which the drugs were supplied and from which the money was collected for the supply during a period when Abdul Arnaout's taxi was off the road. He received a 25% discount on his sentence because of his plea of guilty at the earliest available opportunity. He was sentenced to a term of imprisonment of one year and six months to be served by way of an intensive corrections order that require him, inter alia, to carry out 80 hours community service. Of course, had he not been allowed the discount, the period of imprisonment or head sentence would have been 2 years. 3. In addition to the matter which requires me to sentence her, the Respondent has not yet been sentenced for an earlier conviction recorded by Gartelmann DCJ, but it is convenient that I also deal with her for that offence and that is consented to by his Honour. Of course, the sentencing hearing has not yet been conducted. However, as currently advised, it appears to me that the offending committed by the Respondent is comparable to the offending of Abdul Arnaout. Parity would require that I impose a similar sentence of imprisonment to that imposed upon Abdul Arnaout but bearing in mind that there was a slight reduction for his plea of guilty before trial. 4. In the current case, the Respondent maintains her innocence of the charge of which the jury has found her to be guilty. She is entitled to do so but what it shows is that there is no contrition and no remorse on her part. That will also have to be taken into account. Abdul Arnaout's plea of guilty indicated some contrition and some remorse. Accordingly, it appears to me that the Respondent will be sentenced to imprisonment to be served by way of full-time detention. 5. In those circumstances, I am required to refuse bail to the Respondent, unless it is established that special or exceptional circumstances exist that justify a decision to do otherwise. I have been referred by Madam Crown to the decision of Harrison J in R v Naizmand [2016] NSWSC 836. In that matter, the accused person, Naizmand, made a release application. He was charged with five offences under s 104.27 of the Criminal Code 1995 (Cth) alleging contravention of a control order issued by the Federal Court of Australia on 30 November 2015. In [2] of his reasons, his Honour said this: "An offence under s 104.27 is a 'terrorism offence' as defined by s 3 of the Crimes Act 1914, being an offence against Part 5.3 of the Criminal Code. Section 15AA of the Crimes Act provides that bail must not be granted to a person charged with a terrorism offence unless the Court is satisfied that 'exceptional circumstances exist to justify bail'." The test under 22B(1)(b) of the Bail Act 2013 is the same. At [8] his Honour said this: "The expression 'exceptional circumstances' is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what are looked for are circumstances that are or that appear to be an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics." In [9] of his reasons, his Honour said this in the final sentence: "Circumstances that occur regularly or frequently, even if wholly unacceptable, are hardly exceptional." His Honour went onto quote what was said by Osborne J in Haddara v The Commonwealth Director of Public Prosecutions [2006] VSC 8. His Honour there said: "4... this Court is required to implement the law as enacted by Parliament and it is necessary for the applicant to satisfy the threshold requirement of "exceptional circumstances" before the Court turns to other considerations. 5. The concept of exceptional circumstances is necessarily a flexible one but it is clear that it may be constituted by a combination of matters which taken together render the case exceptional." In [14] his Honour quoted from what was said by Hall J in R v NK [2016] NSWSC 498 at 26, in which his Honour pointed out that the requirement for exceptional circumstances imposes a high test. His Honour also quoted in [15] a further portion of the judgment of Hall J, to which I have just referred, in which he pointed out that the phrase, "Exceptional circumstances" may be taken as referring to circumstances that are, unusual, out of the ordinary, or special. 1. Bearing those considerations in mind, I turn to consider if there are exceptional circumstances which would justify the decision to continue the bail previously granted to the Respondent. In her affidavit affirmed on 10 October 2023, which is exhibit 1-1, the Respondent referred to her various medical conditions, none of which are, in my view, exceptional, and all of which could be treated by Justice Health. 2. She also then referred to her role as a caregiver for her father. Her father was born on 5 March 1939, and on my calculation, is now 84 years old. The Respondent in her affidavit referred to his being 87 years old. He resides in premises in Bankstown from which it appeared that Omar Mahfouz, with the assistance of his mother and father, were running his cocaine supply business. In [22] of her affidavit, the offender said this: "If I am placed into custody, there is no one else available to provide the level of specialised care and attention that my father requires." It transpired from cross-examination that the Respondent had, in fact, made very little - in fact, probably no actual attempt to have seen if there was somebody else who could care for her elderly father. When the matter came before me yesterday, as I said, the Respondent's father gave evidence and was cross-examined by Madam Crown. Further documentary evidence was tendered. Most of that documentary evidence concerned the health of the respondent's father. 1. On 17 October 2023, the Respondent made an inquiry to the NDIS about its being able to care for her father. The reply was one that ought to have been well-known to any member participating in our society: "NDIS care isn't recommended for your father. You need to apply for Aged Care Services on his behalf, as NDIS is a disability scheme, also NDIS requirement usually needs under the age of 65 years old." On 19 October, the Respondent received an email confirming that an application had been submitted for aged care for her father. One of the early communications in that email was this: "An assessor will be in touch within approximately 2 to 6 weeks to arrange the assessment." Also in evidence is a further email from Monique Morgan of South Western Sydney Local Health District which says this: "As per our conversation, I was unable to leave a message on your mobile. If you could please call me on [PHONE NUMBER REDACTED] to discuss referral." Monique Morgan states at the foot at the document that her position was, "Intake/Triage Officer/Aging Well in Community/Primary and Community Health, SWSLHD." I assume that she will be the assessor of the aged care that might be provided by the local health district to the Respondent's father. When I enquired as to what was the outcome of that request, I was told that Monique Morgan's call was returned on the morning of 24 October 2023, but the outcome of it is not established in evidence. 1. It is patently clear that the Respondent has cared for her elderly father since the death of her mother, the wife of her elderly father. It is clear from the medical evidence adduced concerning the health of the father that the Respondent is perceived as being an adequate, in fact, a favoured carer for her elderly father. However, the father has two sons and two daughters, and would appear to have about nine grandchildren. There is no evidence that any of the members of the family have been asked to provide care and what their response may have been, other than by a say-so of the Respondent. 2. The problem with the evidence of the Respondent is that it is patently clear as a result of the verdict returned by the jury, that it did not believe the evidence of the Respondent, who gave evidence over three days during the trial that she did not know that she was involved with the supply of cocaine, rather that she was involved in the supply of Viagra. It is patently clear that the jury did not believe anything she said. The jury deliberated for one half hour. I am required to sentence the offender on the basis of what the jury must have found, and what the jury found is they could not believe the defence raised by Gladiss Mahfouz to a very strong Crown case. Clearly, Ms Mahfouz does not believe she should go to gaol, and has raised the prospect of an ICO in her evidence, albeit that she maintains that she is not guilty. I find her evidence to be completely unsatisfactory in the matters that I am currently dealing with. 3. However, I do not take the circumstances of Ms Mahfouz into account, the circumstances of the Respondent. I do, however, take into account the circumstances of her father, Mr Hussein Hadid. By temporising, by trying to delay the inevitable, and the offender has put him in a difficult position. There is currently no one who could probably adequately provide the care he needs albeit that I believe it to be grossly exaggerated by the Respondent. A sentencing date has been fixed for 14 December 2023 and there are approximately seven weeks between now and then. I am prepared in the circumstances of Mr Hussein Hadid, not in the circumstances of Gladiss Mahfouz, to find that there are special or exceptional circumstances to warrant the continuation of bail until the sentencing hearing. 4. I draw very strongly to the attention of Gladiss Mahfouz and those representing her that it is highly likely that she will be sentenced to full-time imprisonment and if no adequate arrangements are made in the interim for someone to care for her father, then that will be her sacrificing his health and his comfort for her own purposes, a form of elder abuse. For those reasons the application for detention is refused. 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 December 2023