R v MUUSTAFA [2011] NSWDC 238

District Court New South Wales

Medium Neutral Citation: R v MUUSTAFA [2011] NSWDC 238 Hearing dates: 2 December 2011 Decision date: 02 December 2011 Before: Berman SC DCJ Decision: Sentenced to an effective overall sentence consisting of 7 years imprisonment with a non-parole period of four years Catchwords: CRIMINAL LAW - Sentence - Form 1 - Possess unauthorised and prohibited firearm - Supply commercial quantity of prohibited drug - Cocaine - Hardship to third parties taken into account. Category: Sentence Parties: The Crown Adel Muustafa Representation: Mr J Korn - The Offender The Director of Public Prosecutions Galloways Solicitors and Attorneys - The Offender File Number(s): 2010/408453

Judgment 1HIS HONOUR: Adel Muustafa committed two very serious offences between 1 December and 8 December last year. 2He is twenty-five years of age and despite a relatively innocuous criminal history with no suggestion of involvement in drugs, let alone drug supply in the past, he was the principal supplier of more than a quarter of million dollars worth of cocaine. He may not have been a Mr Big of the drug trade but he was a Mr Big enough. Ordinarily that would see him going to gaol for a very lengthy period of time. However, there is a significant matter, which I will get to in a little while, which concerns the way in which a sentence of imprisonment for Mr Muustafa affects other members of his family who were not involved in any way in this offence and who have no history of antisocial behaviour at all. Despite that matter, the objective gravity of what the offender did means that he must go to gaol for a time that I am sure he will regard as excessive, but that is necessary to reflect the objective gravity of what he did. 3On 1 December he agreed to supply cocaine. There was talk of each ounce costing $10,500 with $500 going to the middle man so that the cost to the ultimate purchaser would be $11,000. Then it was agreed that the offender would supply twenty-five ounces of cocaine for $275,000 on 8 December. Lest it be thought that this was simply the offender big-noting himself and that he was making a promise to supply drugs which he could not keep, on 8 December he was arrested in possession of 697 grams of cocaine which was the subject of the agreement that had been reached on 1 December. The drugs had a relatively high purity too, 61.5 per cent and to compound matters even more, at the time of his arrest he was in possession of a loaded revolver. 4He pleaded guilty to supplying a commercial quantity of cocaine and possessing an unauthorised and prohibited firearm. When I sentence him for that second matter he asks that I take into account a further offence relating to the same firearm. That is an offence relating to the fact that it was loaded in a public place. 5Both of these matters carry standard non-parole periods of ten years in the case of the commercial supply and three years in the case of the possess unauthorised and prohibited firearm. As well, the maximum penalties are important to be born in mind, twenty years for commercial drug supply and fourteen years for the firearm matter. I have taken both the maximum penalties and standard non-parole periods into account. My reasons for not imposing the standard non-parole period for either offence are to be found in these remarks on sentence. 6It is something of a puzzle as to how the offender found himself in a position to supply a substantial quantity of drugs. He is now twenty-five years of age. At the time of his arrest he was at home with his father, his stepmother and his siblings. His mother died at a very young age when Mr Muustafa was only five. For a short time the family returned to Syria, they being of Syrian descent, but came back to Australia where Mr Muustafa's father remarried. The evidence would suggest that Mr Muustafa is an intelligent young man. He has worked in the past and received positive references from his employers. References from other people as well attest to this offence being out of character. The most that really can be said in determining what led to this offence being committed is that the offender has been a fairly long term cocaine user which is related in two ways to his longstanding anxiety disorder. The two ways are that that disorder may have prompted the offender taking the drug but paradoxically would have increased the problems that he faced. He also has problems with gambling. 7This is the second matter that I have dealt with today where addiction to gambling has been a factor in serious offending. I will not repeat what I said at length about the experience that judges of this Court have in seeing the problems that gambling causes, beyond saying that I wish those who promote gambling as a harmless and enjoyable activity spent some time reading the judgments of this Court. 8I turn now to the most important factor that Mr Korn relied on. It concerns the rather tragic circumstances of the offender's younger brother, Bilal. He has been diagnosed as having a severe intellectual disability, autism, epilepsy and a blood disorder. His behaviour is highly unpredictable and disturbing. For a while he went to a special school but he was asked to leave because of his aggression which ultimately resulted in two staff members being seriously injured which required their long term rehabilitation. Bilal is largely non-verbal and can only say the words for mother, father, the Arabic for water and toilet. The only other word his uses is the name that he has given to the offender. It is this offender who seems to have most control over his younger brother. Since the offender went into custody Bilal's behaviour has deteriorated and other members of his family are physically at risk from this large, strong and occasionally violent person. Bilal is at risk of injuring himself and those that care for Bilal are at risk from him injuring them. For whatever reason it appears that the person who has the most control over Bilal's behaviour is this offender. 9The principles that guide me when I determine whether I can take into account hardship to third parties in imposing a sentence on an offender are well known. It is only in exceptional circumstances that I can take that matter into account. The Crown did not suggest that these circumstances were not exceptional, indeed they clearly are. However having a severely disabled younger brother is not a licence to commit serious crimes. The Courts have to be realistic here. Ultimately the purpose of sentencing is to protect the community and the community is just as much at risk from offenders with disabled younger brothers as it is from offenders who do not fall into that category. And, as Mr Korn predicted I would say, the offender well knew the problems that his younger brother faced and that his family faced in dealing with him in December last year when he committed these most serious offences. He knew that if he was detected committing these offences he would go to gaol for a long time. He knew that Bilal would suffer and he knew that other family members would suffer too, but he went ahead regardless. 10In those circumstances it seems a bit strange that he now asks me to reduce the sentence I would otherwise impose upon him. It is of course something he should have thought about before he committed these offences. However, despite what I have just said, I will reduce the sentence that I would otherwise have imposed upon the offender to a significant degree because of the circumstances surrounding Bilal's wellbeing and that of his family. Bilal is entirely innocent, the offender's family who have problems dealing with Bilal are entirely innocent and the offender will know that he is responsible for those problems because of his offending. For all of those reasons, as I have said, the sentence I will ultimately impose is much lower than it would otherwise have been. 11The offender pleaded guilty at the first opportunity and the sentences I will impose upon him are thus twenty-five per cent less than they would otherwise have been. 12It is a fundamental rule in sentencing that a sentence has to reflect the objective gravity of what an offender did. Here the risks to the community through the offender's behaviour are substantial. It is fortunate that the drugs were not actually distributed to members of the public and it is fortunate indeed that the offender did not use the firearm that he had available to him at any time. Of course that firearm was taken by him in order to deal with any issues that might arise if something went wrong with the deal or perhaps only for his self-protection. Whatever the precise circumstances in which he was going to use the firearm, there is no doubt that he was prepared to use it, why else would it be loaded? 13The combination of a drug dealer to this magnitude and in possession of a loaded firearm demonstrate enormous risk and enormous criminality. That is why, despite all the matters that I have referred to regarding the offender's younger brother Bilal, Mr Muustafa must spend a significant time in custody. 14For the offence of possessing the firearm, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of two years with a head sentence of three years to date from 8 December 2010. 15For the offence of supplying a prohibited drug, I set a non-parole period of three years and a head sentence of six years to date from 8 December 2011. Thus the overall sentence is one of seven years with a non-parole period of four years and the offender is eligible to be released to parole on 7 December 2014.