R v Boutros [2013] NSWDC 291

District Court New South Wales

Medium Neutral Citation: R v Boutros [2013] NSWDC 291 Hearing dates: 20 December 2013 Decision date: 20 December 2013 Before: Berman SC DCJ Decision: Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Attempt to possess a marketable quantity of cocaine Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Charbel Boutros Representation: Mr T Anderson - Crown Mr G Stanton - Offender Director of Public Prosecutions - Crown Cambridge Lawyers - Offender File Number(s): 2012/237828

SENTENCE 1HIS HONOUR: Earlier this year, after a very short trial in which there was very little in dispute, a jury found Charbel Boutros guilty of an offence of attempting to possess a marketable quantity of cocaine which had been imported into Australia. The maximum penalty for that offence is 25 years imprisonment. It is now my task to sentence him. 2I described the trial as very short. The evidence consisted largely of an agreed statement of facts in which the Crown and Mr Boutros jointly put before the jury a summary of the evidence. This was supplemented by oral evidence from two police officers and other exhibits which amplified the contents of the agreed statement of facts. There was very little dispute as to what had actually occurred, but there remained a dispute for the jury to resolve concerning what inferences could safely be drawn from those facts. The jury clearly accepted the Crown submission that the evidence demonstrated Mr Boutros' guilt. 3A quantity of cocaine was imported into Australia concealed in what were purported to be tubs of sun block cream. The package was intercepted by Customs and police, who removed the cocaine and re-constructed the packaged using an inert powder. Arrangements were then made by an AFP officer posing as a delivery driver to deliver the package to the purported intended recipient. Although the consignment note indicated the package was to be delivered to "George Sarkis", in fact that identity was being used by a man named "Abdulla". Intercepted telephone calls between Mr Boutros and Mr Abdulla revealed Mr Boutros' involvement in some aspects of the process of gaining possession of the package containing the cocaine. For example he appears to have made an inquiry, probably over the internet, as to the status of the package and informed Mr Abdulla that it appeared that delivery of the package had been delayed. He expressed the opinion that that meant that police involvement was likely. 4Today a reference tendered on behalf of Mr Boutros indicated that he had previously worked for TNT a courier company and it is possible that Mr Boutros' opinion was formed using knowledge gained when he worked for that company. After expressing that opinion to Mr Abdulla (and of course the words used between Mr Abdulla and Mr Boutros were not as clear as I have summarised), Mr Boutros went to a shop which was being renovated. The evidence would suggest that Mr Boutros was there for a genuine reason involving the renovation of that shop. The address of the shop was given to the pretend delivery driver by Mr Abdulla as a place where the package could be delivered. 5When the pretend delivery driver went to the shop he met with Mr Boutros. They had a conversation which was recorded on a listening device worn by the police officer pretending to be the delivery driver. The conversation, parts of which were extremely difficult to hear, revealed that Mr Boutros claimed no knowledge of the package. He expressed no great desire to receive the package, but at one stage suggested to the delivery driver that if he wanted to leave the package at the shop, he could, because at least that way it would be delivered. The precise words he said were, "It's up to you man, if you want to leave it here it's up to you, but... then it gets delivered you see." 6Initially when I instructed the jury I instructed them that it was the conduct of Mr Boutros in speaking the words to which I have just referred which they should consider in deciding whether that conduct amounted to an attempt to possess the cocaine. However in response to a question from the jury, and over the protests of Mr Stanton who appeared and still appears for Mr Boutros, I later instructed the jury that if the elements of the offence were all present at an earlier time then they could convict Mr Boutros. I did this because it had always been part of the Crown case that the conduct of Mr Boutros in going to the shop in the first place could have constituted, without anything more, an attempt to possess the cocaine. 7The question from the jury and the speed with which a verdict of guilty was returned after that question was answered reveals the almost inescapable conclusion that at least one member of the jury was not satisfied beyond reasonable doubt that Mr Boutros' conduct in speaking to the pretend delivery driver at the shop amounted to the offence, but was satisfied beyond reasonable doubt that his earlier conduct in going to the shop did amount to the offence. We do not know whether some jurors perhaps would not have been satisfied beyond reasonable doubt that the offence was committed simply by Mr Boutros going to the shop in the first place. In those circumstances it falls to me to decide the factual basis on which I will sentence Mr Boutros. 8I will sentence him on the basis that when he spoke to the delivery driver he believed that their was cocaine in the package that the delivery driver had with him, that he intended to possess that package and that his conduct in suggesting the possibility that the delivery driver could leave the package in the shop amounted to conduct in pursuit of that intention which was more than merely preparatory. I do not need to decide whether Mr Boutros went to the shop with the intention of gaining possession of a package or whether he only formed that intention after he as at the shop. 9I do have to say that there was clear evidence of other offences committed by Mr Boutros, offences which would have been much easier to prove than the one chosen by the prosecution. For example when Mr Boutros checked on the status of the package pursuant to a request from Mr Abdulla that was an overt act performed as part of a conspiracy between Mr Boutros and Mr Abdulla. I mention this fact not at all to suggest that I will sentence Mr Boutros for an offence with which he has not been charged let alone convicted, but merely to question the choice of charge brought by the prosecution which made its case a lot harder than it truly should have been. 10Although Mr Boutros of course did not plead guilty there was a considerable utilitarian benefit in the way the trial was run. The agreed statement of facts contained almost all the evidence which the jury needed to hear. His cooperation in running this trial this way entitles him to a lesser sentence than would otherwise have been the case. 11The gross weight of the powder was almost 900 grams. The net weight of the cocaine being 324.1 grams. Not surprisingly that quantity of cocaine is very valuable. Its street value is in the order of quarter of a million dollars with its wholesale value about half that. 12The offender is approaching 30 years of age with no prior convictions. He does have two matters on his criminal history both of which were dealt with under s 10 of the Crimes (Sentencing Procedure) Act, and I am prepared to find for the purposes of sentencing today that he is a man of prior good character. As well as evidence of character in the negative sense, that is no prior convictions there is evidence of character in the positive sense. He appears to have been a hard working, industrious man who comes from a family providing good influences upon him. For example his siblings four sisters and two brothers have all pursued tertiary education. Mr Boutros has pursued employment which does not involve tertiary education but which involves hard work and skill. He is working in building maintenance and also assisting others for free doing home maintenance jobs. A number of references attested to the character of the offender and suggested that his conduct which has led to him facing sentence today was completely out of character. 13Of course one of the most important factors, if not the most important factor, in determining the appropriate sentence to impose upon Mr Boutros is the objective gravity of what he did. The Crown describes his role as being that of a low level courier and says it was a relatively minor role. It is the offender saying those words, "If you want to leave it here it's up to you, but... then it gets delivered you see" which amount to the commission of the offence. That is the criminal conduct covered by the charge for which Mr Boutros must be sentenced. As I have said on earlier occasions this is barely a crime, but it is a crime nevertheless. It was his intention that those words would persuade the courier, or at least the person he thought was a courier, to leave the package with him so that Mr Abdulla could gain possession of it. 14The Crown submitted that despite the lack of convictions of Mr Boutros this was a case where prior good character has less of a role to play than in other cases. Over the years I have watched as a category of cases where prior good character plays less of a role has been expanded until many types of offences are dealt with with that principle in mind. But I do not accept the Crown submission this is not a case where Mr Boutros was chosen because he had no prior convictions. There was no connection between the lack of criminal history and the offence. The principle the Crown relies on arises because in cases such as importing drugs into Australia through the airport, couriers with no criminal convictions are less likely to be detected than those who do have criminal convictions. But here the man purporting to be the courier was not going to ask whether Mr Boutros had any criminal history before handing over the package. I will therefore give full weight to Mr Boutros' prior good character in assessing the sentence to impose upon him. 15The Crown also suggests that whilst there was no evidence of financial gain it is to be inferred that there would be some financial benefit to the offender. It is easy to state the principle of law that circumstances of aggravation have to be proved by the Crown beyond reasonable doubt and circumstances of mitigation have to be proved by an offender on the balance of probabilities. But it is not so easy to discern into which category various factors fall. In this case is it an aggravating factor that Mr Boutros would receive financial gain or is it a mitigating factor that he would not? The matter is not without difficulty but I am prepared to proceed on the former alternative such that it would be for the Crown to prove beyond reasonable doubt financial gain was to be received by Mr Boutros and if it cannot do that beyond reasonable doubt then that aggravating factor is to be ignored. 16In this case there is simply no evidence at all of any financial gain to Mr Boutros. At one stage Mr Abdulla asks Mr Boutros to do him a "big favour" which is more consistent with there being no financial gain than the alternative. There is no mention of any financial gain in any of the recorded telephone calls and so I will sentence Mr Boutros on the basis that he was not to be paid or receive any other benefit for what he did. 17Also in assessing the objective criminality is this circumstance. The evidence would suggest that Mr Boutros' possession of the drug package, were it to be left with him, was to have been for a short time, it being highly likely that the plan was that Mr Boutros would contact Mr Abdulla, tell him that the package had been delivered and Mr Abdulla would come to the shop and collect it. 18I note that Mr Boutros had done 11 days in prison. Now no one would suggest that that is lengthy time, but I will say that any day in prison is a bad day, especially for a person going to prison for the first time. The fact that the offender has spent 11 days in prison, albeit as I noted that being a very short time, is a factor that I take into account in determining ultimately what sentence is to be imposed. 19The Crown made its position quite clear, nothing less than fulltime custody was required. It relied on a number of comparative cases which of course were all helpful. But none of the cases involved criminality of such a low level as the present case. 20Mr Stanton conceded that a custodial sentence was required. I agree. That leaves for determination the length of the sentence and if the length of the sentence is such that alternatives to fulltime custody are available whether those alternatives are appropriate. 21It is a fundamental rule that a sentence needs to reflect the objective gravity of what an offender did. Usually that principle is used to suggest the need for a sentence of some severity but it also applies to cases where criminality is, as I have found, relatively low. For those reasons I have determined that although a custodial sentence is required it is likely that the sentence I will impose will be two years imprisonment. Accordingly I turn my attention as to whether it is appropriate that the sentence be served other than by fulltime imprisonment. I am certainly satisfied that a suspended sentence is completely inappropriate as, although a real sentence of imprisonment, it would do little, if anything, by way of general deterrence. 22However I am satisfied that it is appropriate that Mr Boutros be given the opportunity to be assessed as to his suitability to serve his sentence by way of an Intensive Corrections Order. This will involve an element of punishment. This will involve some general deterrence, of course not as much as were fulltime custody imposed and it will, I am satisfied, in the circumstances of this case properly reflect the offence and the offender. 23 I will adjourn the matter till 2 pm on Friday 7 March. I will continue Mr Boutros' bail to that occasion. I will order that he is assessed for his suitability to serve his sentence by way of Intensive Corrections Order.