R v Mehmed [2016] NSWDC 329

District Court New South Wales

Medium Neutral Citation: R v Mehmed [2016] NSWDC 329 Hearing dates: 12 June 2015; 20 May 2016 Date of orders: 20 May 2016 Decision date: 20 May 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Drug supply – Rehabilitation after s11 remand Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Eren Mehmed Representation: Counsel: Mr S Russell - Offender

Solicitors: Director of Public Prosecutions File Number(s): 2014/323880

SENTENCE 1. HIS HONOUR: When Mr Eren Mehmed appeared before me last June I adjourned the matter under s 11 of the Crime (Sentencing Procedure) Act telling him that if he wanted to stay out of gaol what he had to do between then and when I would ultimately sentence him was to perform remarkably well. In fact I think I used the expression "you need to get an A-grade pass". He has since then achieved what I asked him to do. He has demonstrated, not just promised, but demonstrated, a substantial level of rehabilitation. I will thus, consistent with my applied promise to him not send him to fulltime custody. Whether a custodial sentence of some form needs to be imposed remains to be seen. 2. The offender came to the attention of police when he was driving a motor vehicle. Indeed he drew attention to himself by driving through a stop sign. Police stopped him and noticed that he was acting quite strangely, they searched his vehicle, but found nothing relevant there. They then searched him and found some cash in his possession. They asked him whether he had anything down his pants. He gave a somewhat evasive answer before saying "Well I'm fucked either way aren't I man, you're going to search me anyway". He then admitted to having half an ounce of ice in his pants. He retrieved a package, gave it to police and it was found to contain 13.9 grams of methylamphetamine. He said that the ice was for his own use but he has pleaded guilty to an offence of supplying that drug on the basis that he had it in his possession for the purpose of supply. 3. The police found a loose SIM card inside a mobile phone cover and downloaded three messages which clearly relate to the supply of drugs. 4. The offender was one of those who was in the grip of his own drug addiction and to fund his drug addiction he supplied drugs. Of course and this is relevant to the offender's rehabilitation, if we remove the motivation to supply, that is if Mr Mehmed can give up his use of drugs, then it is very unlikely that he will commit an offence of this type in the future and it is here that the offender has done remarkably well. He has engaged with drug and alcohol workers and spent six months at a residential rehabilitation facility. Upon his satisfactory completion of that program he has returned home and he is living once again with his family. He now has the support of his family as I recall on the first occasion when he appeared in court his parents refused to come to court to support him because of his behaviour. It is pleasing to see that there has been a reconciliation such that his parents are with him to support him today. 5. The pre-sentence report most recently tendered suggests that the offender is continuing to address issues to deal with his past addiction to drugs. Perhaps the most important feature of the offender's rehabilitation is that regular urinalysis has proved that he no longer uses drugs. Many people will tell you that they do not use drugs but when that is supported by objective evidence it is much easier of course to accept what has been said. 6. Mr Mehmed has plans for the future. He has not really had a terribly good employment history but recognises that he needs to get a job and plans to do that. 7. Thus far I have been focussing on the offender and his rehabilitation but it must be borne in mind that he committed a very significant criminal offence, one which carries a significant maximum penalty of imprisonment, 15 years in fact and one where fulltime custodial sentences are to be imposed, unless there are exceptional circumstances, on those who traffic to a substantial degree. I am not able to make a finding that the offender was trafficking to a substantial degree in this case. Part of the problem is that the statement of facts prepared by the Crown do not tell me whether those three messages to which I referred came from three people or one person. In saying that I cannot be satisfied that the offender was trafficking to a substantial degree I also take into account that there was no drug paraphernalia found, no bags, no scales, nothing of that kind. There was some money found which the offender agrees should be forfeited to the Crown, but that is the limit of what I will call drug paraphernalia. 8. The offender pleaded guilty at the earliest opportunity and so the sentence that I impose upon him will be 25% less than it would otherwise have been. 9. He was only 18 at the time and the principles regarding sentencing of young offenders are well known. He was barely old enough to be sentenced as an adult rather than a child when quite different sentencing principles would have applied. 10. The six months that the offender has spent in quasi custody have to be borne in mind and I note also that for drug possession matters was bail refused for four months, that was unrelated to this offence and so I cannot take it into account as pre-sentence custody. I will however take it into account in this regard - the offender now knows what fulltime custody is like and that should be some powerful disincentive to him committing further offences in the future. Personal deterrence thus has less relevance in this matter than might otherwise have been the case. 11. General deterrence remains important, I have said many times that drugs are terrible things. One only needs to consider that in three separate matters that I am dealing with today, the use of drugs has led to the supply of drugs directly. Every time a drug user supplies to others those others are harmed, the families of those others are harmed and the community in general is harmed. Drug supply is not the sort of offence that can be lightly dismissed. 12. Drug supply is serious criminal behaviour and despite the offender's age he must have been well aware of that circumstance at the time he did what he did. 13. Mr Russell began his submissions as to the ultimate dispossession of this matter by suggestion that a s 9 bond would be appropriate. I do not agree. Mr Russell as a fall-back position suggested that a s 12 suspended sentence would be appropriate and indeed the Crown did not speak in opposition to that outcome. However I do not agree with that either. What needs to happen is that a sentence needs to be imposed upon the offender which involves a level of punishment such that others who may be tempted to act in the way he did might be deterred from conducting themselves the same way. Certainly I have no desire and it would be contrary to the interests of the community to do anything to interrupt or risk the offender's continued rehabilitation. In those circumstances having determined the length of the sentence which is appropriate, having satisfied myself that a sentence of imprisonment of two years or less is likely I propose to refer the offender for assessment as to the suitability to serve his sentence by means of an intensive corrections order. 14. I had in mind and I'll get a transcript of these remarks so I'll remember this. I had in mind imposing in fact a sentence of 18 months to be served by means of an ICO. 15. Mr Mehmed just stand up for a second. 16. You are to be congratulated for what you've achieved, there's a lot of people who try and a lot of people who fail and you haven't failed, so you are to be congratulated. Now make sure however that you don't do anything to ruin things at this late stage okay, so you've still got another few weeks to do before I'll finally deal with you, make sure you don't come back with anything disappointing because there's still that risk that you'll go to gaol after all okay, do you understand that? Right thank you and thank you Mr Russell. 17. ADJOURNED TO FRIDAY 8 JULY 2016 AT 2PM