R v Khoshaba [2016] NSWDC 150

District Court New South Wales

Medium Neutral Citation: R v Khoshaba [2016] NSWDC 150 Hearing dates: 14 July 2016 Date of orders: 14 July 2016 Decision date: 14 July 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is to enter into a bond under s10 of the Crimes (Sentencing Procedure) Act to be of good behaviour Catchwords: CRIMINAL LAW – Sentence- Drug supply - MDMA - Good prospects of rehabilitation Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: Lowe v The Queen [1984] HCA 46; 154 CLR 606 Category: Sentence Parties: The Crown Johni Khoshaba Representation: Solicitors: Director of Public Prosecutions Oxford Lawyers Pty Ltd - Offender File Number(s): 2015/224934

Judgment 1. HIS HONOUR: When the offender in this case, Johni Khoshaba, gave evidence and said he was sorry for supplying drugs, the offence for which I must sentence him, he was asked by the Crown why it was wrong for him to have done what he did. All Mr Khoshaba could say at that stage was that it was wrong to supply drugs because that was against the law. Later through a leading question in re-examination, he did mention the harm that drug supplying causes. It seems that the offender has a limited concept of just how harmful drug supply and drug use are. In truth, such activities cause significant harm to drug users, the families of drug users, and the community generally. That is why those convicted of supplying drugs face a maximum penalty of 15 years' imprisonment and it is why the Court of Criminal Appeal has repeatedly said that those who are trafficking to a substantial degree must expect a full‑time sentence of imprisonment unless there are exceptional circumstances. Make no mistake, this was serious offending. 2. In the very early hours of Saturday 1 August 2015 police were in Surry Hills, they saw a Volkswagen hatch car and stopped that vehicle. They approached the driver's side. As the window was wound down a strong scent of cannabis wafted out, and not surprisingly, given that circumstance, police decided that they would search the vehicle. Eventually they found a very small quantity of cannabis, and much more importantly, a total of 47 capsules of MDMA. The offender was one of the three occupants of the car and he told police that the drugs were his, that he intended to use some of them but to supply the rest to friends of his whom he was going to meet up with that evening in order to celebrate his 19th birthday, having turned 19 just a day or so earlier. 3. The offender gave sworn evidence-in-chief, and he was cross-examined by the Crown. There is no evidence to contradict the offender's assertion that that was the limit of his drug supply activities, on a single occasion purchasing $500 worth of ecstasy tablets for the purposes of distributing them to his friends at his birthday party to take place that evening, I will thus sentence him on the basis that that is what he was going to do. There is no commercial flavour to this offence, he was not intending to sell the drugs, nor was he intending to supply to anyone other than his friends. That is of course a significant matter in assessing the objective gravity of his conduct. 4. He pleaded guilty at the earliest opportunity and so he is entitled to a discount on the sentence that would otherwise have been imposed upon him. I will not quantify that discount, it has been one of a number of factors which has led to me imposing a different form of sentence on the offender from that I would have otherwise have imposed. He has also asked that I take that into account when I sentence him for the drug supply matter, an offence of possessing cannabis. The photographs of the relevant drug were tendered by the Crown, it is a very small quantity indeed, and properly described as remnants. 5. The offender was born in Iraq, he came to Australia with his parents and his sister when he was about five years of age. His parents separated when he was about 12 and he sees his father but lives with his mother and sister. He has not told anyone in his family about his current charge. His girlfriend knows, and indeed, she is in court today to support him. 6. This is one of a number of fairly common cases where the arrest and charging of the offender has led to a significant change in his lifestyle. Mr Khoshaba left school after completing Year 12 but did not get his HSC. He started out as an apprentice bricklayer but has since changed to a carpentry apprenticeship, which he is close to completing. Indeed the cannabis to which I referred appears to have been wrapped up in some teaching materials relating to roof construction. A reference from Mr Khoshaba's employer was tendered on his behalf today. His employer speaks highly of him and also speaks of the consequences for the offender of having been charged. He speaks of stress and constant worry as a result of being charged and having to be sentenced for his wrong‑doing. Perhaps most importantly the offender, and there is nothing to contradict this, says that he has given up drug use. 7. There is a MERIT report tendered on the offender's behalf. The offender told those on the program that after his arrest he had continued to use drugs but then ceased all drug use. There is, it has to be said, nothing to back up these claims by way of urinalysis, but all the other evidence does suggest that what Mr Khoshaba has said about ceasing drug use is likely to be true. Mr Khoshaba no longer associates with the people who he intended to supply drugs to and so he is in a much different position than he was on the day of hs arrest. 8. It is important to note that he just barely turned 19 at the time of the offence. Youth has always been regarded as a significant factor in determining an appropriate sentence to impose upon a person. More and more we are understanding about the way people mature, and thus an offence committed by a 19 year old often does not demonstrate the same moral culpability as an offence committed by someone significantly older. 9. Part of the change in Mr Khoshaba has no doubt come about because of consequences for him since his arrest. He was in custody for a day and a half and then for a while on fairly strict bail conditions, reporting every day and subject to a curfew. How he could be in custody for a day and a half and then comply with a curfew and report to police every day without his mother finding out is a bit difficult to understand, but I accept that he has kept these things from her because of his concern for her. 10. In evidence Mr Khoshaba said that he had learnt a lesson. I suspect that is true. He thus has good prospects of rehabilitation and, at least if he continues on the path that he appears to be on at the moment, he is unlikely to offend again in the future. 11. The question now becomes what sentence to impose upon him? He was certainly not trafficking to a substantial degree and so he does not need to demonstrate exceptional circumstances before a sentence of other than full time custody will be imposed upon him. 12. Mr Khatiz, who appeared for Mr Khoshaba, relied on two sources of information to assist me, one was some sentencing statistics and the other was a single case from the Court of Criminal Appeal of R v Mauger [2012] NSWCCA 51. In that case English DCJ had given an offender the benefit of an order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act in circumstances where there were some similarities between that offender's conduct and Mr Khoshaba's. In that case a 30 year old man pleaded guilty to supplying MDMA, that plea being based on his possession of 20 ecstasy tablets at a music festival. He intended to take two tablets and give the balance to friends over the course of the weekend. Her Honour took into account things which the Court of Criminal Appeal said should not have been taken into account, such as what was described as a generalised prognostication about how travel overseas would be affected by a conviction, but importantly - certainly importantly for this offender - the Court of Criminal Appeal dismissed the Crown appeal against what was asserted to be the leniency of the sentence imposed. 13. Mr Khatiz freely admits that that is but a single case, and indeed acknowledges that the sentencing statistics to which he refers show that the vast majority of those who plead guilty to supplying a prohibited drug do not get the benefit of an order s 10 of the Crimes (Sentencing Procedure) Act. The Court of Criminal Appeal has said on many occasions that a single case does not establish a range, but on the other hand it is important to avoid what the High Court in Lowe v The Queen [1984] HCA 46; 154 CLR 606 described as a badge of unfairness, namely, inconsistency in sentencing. For that reason the decision in Mauger has been of significant assistance to me. 14. In deciding the appropriate sentence to impose upon the offender I pay particular regard to the non‑commercial nature of this transaction, that it appears to have been a one-off exercise; that the offender was very young; that he has spent some time, a very short time, but nevertheless significant for him, in custody; that he has changed his lifestyle by giving up drugs and not associating with those with whom he use to associate; and I am satisfied that he has very good prospects of rehabilitation. In my view, this is one of these very rare cases where I am satisfied that a s 10 order can be made for a drug supply offence. The offender, should he comply with the conditions of the bond I am about to announce, will be able to put this isolated episode of wrong doing behind him. I frankly admit that this sentence achieves little, if anything, to deter others from similar offending, but despite that, I am satisfied that this is the most appropriate sentence in the present case. 15. Taking into account the matter on the Form 1 I find the offence proved without proceeding to conviction. The offender is released on a bond to be of good behaviour for a period of two years from today. The conditions of that bond are that, 1. He is to commit no criminal offences whatsoever. 2. He is to use no illegal drugs at all. 3. He is to be supervised by the Probation and Parole Service for as long as they consider appropriate. 4. In order to confirm that he is not using illegal drugs he is to undergo urinalysis on at least three occasions within the first six months of the bond, the results of which are to be provided to my associate. In the event that the Probation and Parole Service does not organise such urinalysis, the offender is to arrange for his own urinalysis. 5. He is to appear before this Court if called upon to do so at any time. 6. He is tell the Registrar of this Court of any change in his residential address.