R v Chahoud [2013] NSWDC 228

District Court New South Wales

Medium Neutral Citation: R v Chahoud [2013] NSWDC 228 Hearing dates: 4 October 2013 Decision date: 04 October 2013 Before: Berman SC DCJ Decision: Adjourned under s11 of the Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW - Sentence - Knowingly concerned in the supply of a prohibited drug - Cocaine - Courier - Criticism of reports prepared by psychologist - Reports in near identical terms. Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Joseph Chahoud Representation: Director of Public Prosecutions - The Crown File Number(s): 2011/417806

SENTENCE 1HIS HONOUR: On 30 December 2011, Joseph Chahoud was acting as a drug courier, assisting someone else in the supply of a substantial quantity of cocaine. Fortunately, he drew attention to himself by driving too fast. Police stopped him for speeding offence. They discovered that he was already on bail for a traffic offence and that what he had just done represented a breach of that bail. They then noticed that he had a large sum of cash with him. For obvious reasons therefore they decided to search the car he was driving. They discovered twenty-five small, resealable plastic bags, each containing white powder. That turned out to be a total of 15 grams of cocaine with a purity of 37%. It was those drugs that the offender was involved with to the extent that he has now admitted that he was knowingly concerned in their supply. 2I should mention that there was a female passenger in the motor vehicle who was allowed to leave. It does not matter, but my suspicions are that she may have had some involvement in the offence as well. 3I say that the offender was acting as a courier because that circumstance was conceded by the Crown. There is no evidence one way or the other as to the extent of the offender's role, but I will act upon the concession by the Crown, it clearly being a considered one. 4Originally the offender was charged and committed for trial on an charge of supplying a prohibited drug. He was arraigned on that charge and pleaded not guilty, but on the morning his trial was due to commence he pleaded guilty to being knowingly concerned in the supply of the drug. Mr Turnbull, who appears for the offender today, concedes that that was a late plea of guilty. Nevertheless, it had a utilitarian benefit which must be reflected in the sentence I impose upon him, it being one of a number of factors which has persuaded me to defer passing sentence on Mr Chahoud at this stage for reasons I will indicate in a short while. 5The offender is now twenty-nine years of age. He was born in Australia to parents who had migrated from Lebanon. He is the eldest in a family of two brothers and two sisters. His father was a taxi driver and the family was close. After the offender completed year 12, he began a carpentry and joinery apprenticeship and finished that. He then began to do a builder's licence course but gave that up in favour of driving his father's taxi on the afternoon shift. 6He met a young lady of about his age of Greek Cypriot background. They formed a relationship. Things have not been plain sailing because of the offender's drug use. At times the relationship ended because of understandable concerns about what the offender was doing by consuming cocaine excessively, and indeed they were not in a relationship on the day that this offence was committed. Their relationship has now resumed, but I have to say that Ms Polyviou seems to have a fairly realistic attitude towards staying with the offender if he uses drugs in the future. 7She became aware that he was using drugs after becoming concerned about his behaviour. Previously, when his shift ended at 3 in the morning, he would go home, have a sleep, and they would spend the day together before he started driving again in the afternoon. But things changed. At the end of his shift he began to go out, would come home, go to sleep and wake up just in time to go to work. She discovered that he was using Xanax. She did a bit of work on the internet and discovered that Xanax is often used by cocaine users to bring them down after consuming the drug. She confronted the offender and he eventually admitted that he was a user of drugs. 8The evidence would tend to suggest that he has recently given up drugs completely, perhaps around the middle of this year. There are clean urinalysis reports, so I am prepared to accept at least the high probability that the offender has given up his use of cocaine, but there remains some doubt as to how he will go in the future. He has been accepted into the In-Patient Drug and Alcohol Program at the St John of God Hospital. He is on a waiting list for admission to that program. He is seeing Dr Jacmon, a psychologist, and that is apparently beneficial. 9I should say something about Dr Jacmon. I have in the past been very critical of his reports and nothing I have read in the report tendered today causes me to alter my opinion. His reports suffer from two particular defects. One is that they are virtually identical and almost every report of his I have ever read suggests that "the offender's actions which led to offending indicated markedly diminished capacity for judgment because there appeared to be little thought given to the consequences". The second problem with Dr Jacmon's report is that there is little or no explanation as to how he has drawn conclusions. For example, in this report he says that the offender's clinically significant major depressive disorder is likely to have arisen as a result of cocaine use from 2009. There just appears to be little explanation as to how Dr Jacmon was able to date when the disorder was likely to have arisen. 10I should say that I drew these matters to the attention of Mr Turnbull and the offender before commencing today's proceedings in the event that they considered I was not the appropriate person to sentence the offender. No application that I disqualify myself has been made. However, I wish to emphasise something. While I have been highly critical and continue to be highly critical of Dr Jacmon's abilities to assist the Court, or willingness to assist the Court, I am not critical at all of his ability to assist those people he treats I say that in the context of, as I have mentioned, the circumstance that he is treating the offender, and none of my criticisms of Dr Jacmon should be taken to reflect on his ability as a psychologist who treats others. 11The Crown appropriately drew my attention to those well-known authorities regarding sentencing in the case of drug traffickers. The principles are well known. If the offender was trafficking to a substantial degree then a full time custodial sentence is required unless there are exceptional circumstances demonstrated. That does not mean that a full time custodial sentence is inappropriate in the case of a drug dealer who is not trafficking to a substantial degree. 12In this case, whilst it is important to bear in mind that I am not interpreting legislation, I am not satisfied that he was trafficking to a substantial degree. The two particular features that have led me to draw that conclusion are that he was acting as a courier and that it was only on one occasion. Of course, pointing in the other direction is the number of separate packages that were found in his car but, despite that circumstance, I am satisfied that he was not trafficking to a substantial degree. Of course, that does not mean that ultimately he should not receive a full time custodial sentence. Much will depend on whether he is able to demonstrate, rather than just promise, that he has given up cocaine and that he is able to rehabilitate himself. 13Primarily because his complete abstinence from cocaine is of fairly recent origin, I propose to adjourn this matter under s 11 of the Crimes (Sentencing Procedure) Act in order to better assess the offender's prospects for rehabilitation. In the event that he does what is required of him then it will be much less likely that a full time custodial sentence is imposed. If he fails to demonstrate rehabilitation then it will be clear that nothing less than a full time custodial sentence will be appropriate. To use a cliché, the ball is very much in Mr Chahoud's court. His future is in his own hands. 14I will adjourn this matter until I was thinking 23 May next year at 2.00pm. 15These are the conditions of bail in substitution for the current conditions of bail. * He is to be supervised by the Probation and Parole Service during the period of remand. * As part of that supervision he is to undergo regular and random urinalysis. * He is to use no illegal drugs whatsoever. * He is not to use the drug Xanax unless that drug is prescribed to him. * He is to pursue admission to the St John of God Drug and Alcohol InPatient Program and enter that program in the event that it is offered to him. * If he has not done the program on the next occasion he is to provide evidence as to why that was the case. * Unless he is an in-patient at the St John of God program he is to live at (an address known to the Court). * He is to report to the Probation and Parole Service within seven days in order that they may commence supervising him. ADJOURNED TO FRIDAY 23 MAY 2014 AT 2PM FOR SENTENCE