District Court New South Wales Medium Neutral Citation: R v AFSARI, Abbas AKA Shayan [2016] NSWDC 419 Hearing dates: 1 September 2016, 4 November 2016 Decision date: 25 November 2016 Jurisdiction: Criminal Before: King SC DCJ Decision: Indicative sentences: SEQ 1 (+011,012,013) 001 Supply prohibited drugs on an ongoing basis s25A(1) DMTA 1985 LPC 28937 FORM 1 offences - to be taken into account re SEQ 1: 3 years 011 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960 012 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960 013 Knowingly deal with proceeds of crime s103B(2) Crimes Act 1900 LPC 58339 : 3 years s166 Matters: 002 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months 003 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 12 months 004 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months 008 Possess/attempt to, prescribed restricted substance s16(1) Poisons and Therapeutic Goods Act 1966 LPC 53114 2 months 016 Possess instructions for manufacture etc of prohibited drug s11C(1) DMTA 1985 LPC 63269 3 months Aggregate sentence: Convicted. Special circumstances found –need for assistance to rehabilitate in drug abuse, first time in custody. Sentence to be served partly concurrent with FT imposed in re revoked ICOs. Sentenced to a term of imprisonment for 4 years comprised of a NPP of 2 years and 6 months to commence on 23/5/16 and to expire on 22/11/18, and a balance of term of 18 months to commence on 23/11/18 and to expire on 22/5/20. Eligible for release to parole on 22/11/18. I order the destruction of the drugs, the equipment and indicia of supply. I make orders as per the Short Minutes of Forfeiture Order handed up in court today and placed on the court file. Catchwords: Criminal – Sentence – ongoing supply prohibited drug more than indictable quantity – MDMA – supply indictable quantity amphetamine – possess prohibited drugs Stanzolol, cocaine, cannabis leaf – possess prescribed restricted substance, Alprazolam – knowingly deal with proceeds of crime – possess instructions for manufacturing prohibited drug Legislation Cited: Drug Misuse and Trafficking Act 1985 Poisons and Therapeutic Goods Act 1966 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v De Simoni [1981] 147 CLR 383 R v Clark, (unreported, 15 March 1990, NSWCCA) R v Blanco, (unreported, 22 October 1987, NSWCCA) R v Thompson (unreported, 4 April 1994, NSWCCA) R v Gu [2006] NSWCCA 104 R v Cacciola [1998] 104 A Crim R 178 R v Richards (1981) 2 NSWLR 464 R v McVeety [2002] NSWCCA 344 R v Fernando [2002] NSWCCA 28 R v Huynh [2003] NSWCCA 239 R v Moffatt [1990] 20 NSWLR 114 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146 R v Qutami (2001) NSWCCA 353 R v Smiroldo (2000) 112 A Crim R 47 Callahan v R [2006] NSWCCA 58 Category: Sentence Parties: Regina AFSARI, Abbas Representation: Counsel: Ms S Stuart [CR] Mr G James QC [DEF] Solicitors: Mr Z Khatiz [DEF] File Number(s): 2015/00153375 Judgment 1. HIS HONOUR: Shayan Afsari appears for sentence in respect of a number of offences. The first is supply prohibited drugs on an ongoing basis contrary to s 25(1A) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided is 20 years' imprisonment and/or 3500 penalty units. When being sentenced in respect of that offence he asks to have taken into account three offences contained on a Form 1, pursuant to s 32 of the Crimes (Sentencing and Procedure) Act 1999. 2. Those three offences are firstly, supply an indictable quantity of a prohibited drug, being 4.17 grams of 3,4–methylenedioxymethamphetamine in respect of which the maximum penalty is 15 years' imprisonment and/or 2000 penalty units. 3. The second offence is supply an indictable quantity of a prohibited drug, being 10.06 grams amphetamine. The maximum penalty is again 15 years and/or 2000 penalty units. 4. The third offence is knowingly dealing with the proceeds of crime, being $4390 and, again, the maximum penalty is 15 years and/or 2000 penalty units. 5. In addition to the three matters on the Form 1, asked to be taken into account in respect of the primary offence, there are a number of offences contained on a s 166 certificate to which the offender has entered pleas of guilty. 6. The first of those is possess a prohibited drug, being 8.48 grams of Stanzolol, contrary to s 10(1) of the Drug Misuse and Trafficking Act. The maximum penalty is two years imprisonment. 7. The second is a further offence contrary to the same section of possessing a prohibited drug, being 0.96 grams of cocaine. 8. The third offence is again contrary to the same section: possess a prohibited drug, being 11.6 grams of cannabis leaf. 9. The fourth offence is possess a restricted substance, contrary to s 16(1) of the Poisons and Therapeutic Goods Act, being 4.98 grams of Alprazolam, in relation to which the maximum penalty is six months. 10. The fifth offence is possess instructions for the manufacture of a prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 s 11C(1). The maximum penalty is two years' imprisonment. 11. There is no standard non-parole period in relation to any of the offences provided by the legislation. 12. The Agreed Facts as provided to the Court on 1 September 2016 are as follows: 1. On February 2015, police commenced Strike Force Minnamorra to investigate the offender Shayan Afsari and his associates. Police were granted a telecommunications service warrant in relation to certain phone numbers which were being used by the offender. SUPPLY PROHIBITED DRUG ON AN ONGOING BASIS - METHYLAMPHETAMINE 2. Between 24 April 2015 and 22 May 2015 police lawfully intercepted over 200 phone calls and SMS text messages sent or received by the offender relating to the supply of the prohibited drug methylamphetamine. A code was used by the offender when negotiating and arranging the supply of methylamphetamine over the phone. 3. Having made the arrangements with a customer over the phone, the offender or another designated driver travelled in the offender's car to meet with the customer in order to supply the methylamphetamine in exchange for payment of money. This was captured by police physical surveillance. 4. On more than three separate occasions between 24 April 2015 and 22 May 2015 the offender supplied methylamphetamine for financial reward using this method of telephone contact and delivery. 5. During execution of a search warrant at the offender's premises on 22 May 2015, a total of 36.15 grams methylamphetamine was located by police. This methylamphetamine was held by the offender as stock to service future supplies to customers. The methylamphetamine was located in two separate containers under the house, along with electronic scales, packets of resealable plastic bags and other items used in the supply of prohibited drugs. The purity of 25.31 grams of the methylamphetamine was determined to be 81.5%. SEARCH WARRANT 6. On Friday 22 May 2015, the offender left his premises in his car and was stopped by police in Lilac Street, Punchbowl, where he was searched. In his possession was a mobile phone with a SIM card for one of the numbers that was being intercepted, as well as $600 in Australian currency which was seized. The offender was cautioned, arrested and taken to Bankstown Police Station. 7. A short time later, police executed a search warrant at the offender's premises at 9 Telopea Street, Punchbowl. The offender elected to return to the premises to observe the search warrant. 8. During the search warrant the following items were located and seized by police: In the offender's bedroom:- * 8.48 grams Stanzolol (92 tablets) in the wardrobe. Stanzolol is a synthetic anabolic steroid; * 4 aluminium foil packages containing 3.6 grams of cannabis in the bottom bedside table drawer; * a Blackberry mobile phone; and * a Nokia mobile phone. In the garage: * 1 resealable plastic bag containing 0.5 grams cannabis in a hole in the side wall of the garage. In the garden shed: * one resealable plastic bag containing 2.1 grams of cannabis; * one Glad resealable plastic bag containing 5.4 grams of cannabis; and * one Dettol container containing five white envelopes and $1,240. Underneath the house: * one crab chips container which held: $2,550; * one plastic bag containing 10.84 grams methylamphetamine; * 10.06 grams amphetamine (31 pills and powder) wrapped in plastic; * four packets of resealable plastic bags; * one set of electronic scales; * one USB drive which contained instructions for the manufacture/production of the prohibited drugs cocaine and methylamphetamine; * one white coffee stain remover container which held one Glad resealable bag containing 4.98 grams Alprazolam (19 Xanax) tablets; * one Glad resealable bag containing 4.17 grams of 3,4-methylenedioxymethylamphetamine; * one Glad resealable plastic bag containing 25.31 grams methylamphetamine, one set of electronic scales; * one cuticle pusher and spoon; * three packets of resealable bags; and * one plastic bag and rubber band; In the front letterbox: * two Glad resealable plastic bags containing a total of 0.96 grams cocaine. FORM 1 OFFENCES Supply prohibited drug contrary to s 25(1) 9. A total of 4.17 grams of 3,4 methylenedioxymethylamphetamine was located during the search and was in the offender's possession for the purpose of supply. This was later tested and found to have a purity of 76%. Supply prohibited drug contrary to s 25(1): 10. A total of 10.6 grams of amphetamine was located and was in the offender's possession for the purpose of supply. This was later tested and found to have a purity of 1.5%. Knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act: 11. A total of $4390 in Australian currency, which was the proceeds of crime, was located. SECTION 166 CERTIFICATE OFFENCES 12. 8.48 grams Stanzolol was located. 13. 0.96 grams of cocaine was located. 14. A total of 11.6 grams of cannabis was located. 15. 4.98 grams Alprazolam was located. 16. A USB drive was located which contained instructions for the manufacture/production of the prohibited drugs cocaine and methylamphetamine. 17. The offender declined to be electronically interviewed but was subjected to a DNA buccal swab forensic procedure. Later analysis revealed the offender's DNA and fingerprints on a number of the plastic bags, containers and electronic scales which were located by police. 1. Those were the facts as agreed and originally presented to the Court. In respect of that portion of the facts dealing with the primary count of supply prohibited drugs on an ongoing basis, the facts did not provide the Court with any significant information in relation to which the objective seriousness of that offence could be determined. They could be summarised as providing that the intercepts demonstrated that the offender, on more than three separate occasions within the time period, supplied methylamphetamine for financial reward, taking orders by telephone and making delivery by vehicle, either by himself or by another, and using code in that process. 2. The objective criminality of an offence under s 25A is determined by reference not only to the number of instances of supply and the individual quantities but also to the repetition, system and organisation of the ongoing supplies. The Agreed Facts constituted the barest outline of an offence which did not permit the Court to assess the objective seriousness of the offence. Accordingly, the parties were requested to provide further information to remedy that patent deficit in the material provided. 3. On 4 November 2016, a new set of facts were provided which I will refer to as "additional Agreed Facts". They included additional paragraphs. Inserted between the original para 2 and para 3 was an explanation of the code. The insertion was, "A code was used by the offender when negotiating and arranging the supply of methylamphetamine over the phone. In the text messages and phone calls the offender used terms such as 'pizza', 'chicken' and 'cold' to describe drugs. The offender rarely referred to the drugs by quantity and instead referred to them by value." 1. A further paragraph was provided to expand on the content of the original para 4. It is as follows: "On more than three separate occasions between 24 April 2015 and 20 May 2015 the offender supplied methylamphetamine for financial reward using this method of telephone contact and delivery. The Crown relies on the following three instances of supplying methylamphetamine for financial reward: 1. On 25 April 2015 the offender supplied methylamphetamine to a customer at approximately 12pm behind a 7 Eleven shop. The offender received $150 for the drugs. 2. On 6 May 2015 the offender arranged for a driver to supply methylamphetamine for $200 to a customer called Jamie. The exchange took place at Punchbowl train station. 3. On 20 May 2015 the offender supplied methylamphetamine to a customer for $100 in Ryde. He also provided the customer with five Alprazolam tablets." 1. In regard to the additional information provided, it is evident from the amounts received that the individual quantities supplied must have been of a comparatively small nature that is likely to have been substantially less than one gram on each occasion. 2. In relation to the third matter referred to, the additional information that he also provided the customer with five Alprozolam tablets is irrelevant to the charge, being the ongoing supply of methylamphetamine. 3. In terms of the geographical area over which the offender was prepared to provide the prohibited drug methylamphetamine, he resided at Punchbowl, was prepared to deliver or have delivered to Punchbowl station and was also prepared to deliver or have delivered methylamphetamine to somewhere in Ryde. There is no further information as to the overall geographic area to which the offender was prepared to conduct a delivery service himself or by way of a driver. 4. There is no evidence as to whether there was only one other driver: that is whether the operation of distribution was any more significant than the offender and one other person who was prepared to drive a motor vehicle, nor is there any evidence other than the agreement that he distributed on more than three separate occasions. That would of course allow a conclusion that there must at least have been four implied by the Agreed Facts. 5. As to the 200 telephone calls and SMS text messages referred to, there is no evidence as to how many of the calls related to any of the individual itemised supplies. That is, there could have been approximately 66 phone calls or SMS messages per delivery or, if there were four supplies, 50 phone calls or SMS messages per delivery. The facts do not take the matter beyond that point. That there were 66 or 50 telephone calls or SMS messages per delivery is at the least highly improbable. 6. The Crown's submissions on sentence refer to 25.34 grams of methylamphetamine located in the offender's house as being included in the charge of ongoing supply: "This is included in the charge of ongoing supply. The offender had possession of this stock of drugs for the purpose of supplying it to future customers." 7. The facts disclosed that there were two quantities of methylamphetamine located in the house or underneath the house, being 25.31 grams of methylamphetamine located underneath the house in the white coffee stain remover container, and 10.84 grams of methylamphetamine located underneath the house in the crab chips container. The total of those two amounts is 36.15 grams. A charge of ongoing supply must relate to what are in fact supplies, of which the legislation requires at least three within the period. The possession of 36.15 grams of methylamphetamine located in the garage at his home, in my view, cannot be taken into account as relevant to a charge of ongoing supply. The offender is not charged in respect of the two quantities of methylamphetamine totalling 36.15 grams. 8. De Simoni [1981] 147 CLR 383 is authority for the proposition that a sentencer is entitled to consider all the conduct of the accused including that which would aggravate the offence but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. Although not directly on point in relation to this matter, where the facts disclose an entirely different offence, that is, possession of 36.15 grams which would no doubt qualify as a separate offence of supply, the point in De Simoni is however still relevant to this matter. I make this point to indicate that I will in no way take into account in sentencing Mr Afsari the fact that there was a total of 36.15 grams of methylamphetamine located underneath the house in which he resided and that I reject the submission made by the Crown that it can be regarded as being included in the ongoing supply offence as being his stock for the purpose of future supply. 9. The search of the offender's house located stashes of drugs in the bedroom, the garage, the garden shed, the letterbox and underneath the house. A number of items being indicia of supply, including resealable bags containing small quantities of various drugs, packets of resealable bags, larger bags containing bulkier quantities of drugs, disposable burn phones and two sets of electronic scales were also located. Underneath the house were two containers holding all of the necessary means to divide and distribute methylamphetamine and other prohibited drugs into smaller packages for supply. 10. The offender concealed the drugs in locations where they would be difficult to see, such as inside the wall in the garage and underneath the house. There is no explanation for why what I would take to be two approximately half gram deal bags of cocaine were located in the letterbox. They would, in those circumstances, be hardly hidden from any member of the family. Presumably they were there either because they had been delivered by someone to the offender's post-box or they had been placed in the offender's letterbox for the purpose of someone else collecting them. The MDMA underneath the house was of high purity, 76%, and was more than three times the indictable quantity for this type of drug, the indictable quantity being 1.25 grams. 11. The amphetamines were of low purity, 1.5%, although there was 10.06 grams. The indictable quantity in respect of amphetamine is five grams. The offender had in excess of two times the indictable quantity. 12. Located in the house was a USB stick containing instructions for the manufacture of cocaine and methamphetamine. While that demonstrates his general interest in prohibited drugs, there was nothing located that indicates that he had been or was intending to be involved in the manufacture of either of those substances. 13. He has pleaded guilty to supplying three different kinds of drugs, methylamphetamine, MDMA and amphetamine. The additional facts indicate at least a supply of several tablets of Alprazolam on one occasion, although he is not charged with such a supply, but only with the possession of some 19 Xanax tablets. He was also in possession of a variety of prohibited drugs, being cocaine, Stanzolol and cannabis leaf in addition to those already referred to. 14. It can be reasonably said that the offender had available to him a smorgasbord of prohibited or restricted drugs, and that he was operating a business of supplying at least the prohibited drug methylamphetamine in respect of which coded telephone and SMS messages were utilised to place orders and arrange delivery either by himself and/or at least one other. I accept the Crown's submission that this was a well organised drug supply operation in which the offender played the principal role. 15. Mr James QC, who appeared for the offender, accepted on the facts that the offender had a principal role and that the facts disclosed an organised and planned criminal activity. He also accepted that the activity was for financial gain, although he submitted that it was of a limited kind. As to the organised and planned criminal activity in respect of the offence of ongoing supply, that is of course essentially taken into account by the nature of the offence itself, but the presence of the other materials located by way of prohibited and restricted drugs and indicia of supply, including the amounts relevant to the two supply offences on the Form 1 and the proceeds of crime offence, confirm as a general proposition that the offender was conducting an organised criminal activity. 16. There is a long line of authority commencing with the case of R v Clark, (unreported, 15 March 1990, NSWCCA) which indicates where an individual offender can be seen to have been substantially involved in supply they must receive a full time custodial sentence unless there are exceptional circumstances. That line of authority includes such cases as Blanco, (unreported, 22 October 2987, NSWCCA) Thompson (unreported, 4 April 1994, NSWCCA) and the policy behind that line of authority has been held to be a rule to which sentencing judges must give serious consideration, Gu [2006] NSWCCA 104 Howie, J; Cacciola [1998] 104 A Crim R 178. 17. Senior counsel for the accused accepted that a term of imprisonment was the only appropriate penalty in respect of these matters. 18. The Court is required to assess the objective seriousness of the offences in relation to which it must sentence the offender. In this matter it would be artificial to assess the objective seriousness of the individual offences without taking into account the overall circumstances, even though those overall circumstances relate to individual and separate offences. In my view, the offending conduct of Mr Afsari falls within the midrange of objective seriousness. 19. The offender was committed for sentence on 9 December 2015 from the Burwood Local Court. I accept that the plea of guilty in relation to each of the matters was at the earliest opportunity and that he is entitled in respect of each sentence to be provided with a 25% discount for the utility of the plea alone. Such a discount will be provided. SUBJECTIVE MATTERS 1. The offender did not give evidence on sentence and subjective matters have been drawn from the following: 1. The offender's criminal history; 2. New South Wales Department of Corrective Services Conviction, Sentences and Appeals Report; 3. The pre-sentence report of Vincent Melton, Community Corrections Officer, dated 1 November 2016, 4. The report of Mr Borenstein, psychologist, dated 19 October 2016, 5. The report of Dr Stephen Allnutt dated 20 August 2014, prepared in relation to previous offending, 6. A letter to the court from Kiana Afsari dated 3 November 2016, being the mother of the offender. 1. The offender is a 28 year old with no dependants. He was born in Iran and came to Australia at the age of five with his family. He completed Year 11 at school but left because of difficulties arising in his parents' relationship. He is said to have left school to assist in looking after two younger siblings while his mother entered the workforce. He claims to have been above average at school and to have gotten on well with teachers and never having been expelled or suspended. 2. His parents separated for approximately a year. During his developmental years he was exposed to some domestic violence but no sexual or physical abuse. 3. In 2010/11 his parents lost the home in which they lived because they could not make repayments, and that was an underlying matter in relation to his parents' separation for a period. 4. He is said to have completed a Certificate IV in General Construction at TAFE and while in custody he is said to have sought work and training. He informed the pre-sentence officer that for a period of 12 months prior to his arrest he worked as a part time cleaner which was confirmed with a former employer. I note in that regard that the August 2014 report of Dr Stephen Allnutt referred, at several locations in the report, to him building his own cleaning company. The employer who confirmed his employment regarded him as a valued employee who worked hard and got on well with his colleagues. 5. His criminal history discloses that in 2006, 2007 and 2008 he had a number of offences in relation to the use of motor vehicles, such as driving while disqualified, or using a mobile phone and driving while suspended, negligent driving and not giving particulars to other driver, and a further offence of drive motor vehicle while suspended in 2013. Those offences are of no significant relevance to sentence in respect of these matters. However, of significance is that in October 2013 he was charged with three offences, being supply prohibited drug more than indictable quantity, knowingly deal with the proceeds of crime and supply of a prohibited drug. Those matters were dealt with on 28 November 2014 by Frearson SC DCJ. Tendered as part of the Crown material are the facts that were then before the Court as well as a copy of his Honour's reasons on sentence, to which I will refer shortly. 6. His Honour imposed three concurrent Intensive Correction Orders: in respect of the supply prohibited drug, a 12 month ICO, in respect of the knowingly deal with the proceeds of crime, a 20 month ICO and, in respect of the offence of supply a prohibited drug, an eight month ICO. Each of the orders commenced on 12 December 2014. 7. The facts and his Honour's reasons disclose that the offender was detected as a result of being observed to be driving a motor vehicle while using a mobile phone. He was stopped by police for that reason and, because the vehicle number plates indicated that the offender's driver's licence was suspended, he was asked, "Do you have anything inside the car that you should not have?" and he replied, "Yes, there is some cash, some phones and some drugs." "What types of drugs are there?" and he replied, "Methamphetamine and heroin." There were 7.73 grams of methylamphetamine and 1.26 grams of heroin. Located in the vehicle was some $13,165 in cash and, on a subsequent search of his then residence in Marrickville, a further $4,320 was located, giving a total of $17,485. 8. Some of the money in the vehicle, $875, was located in an envelope labelled "eargay money", "eargay" being pig Latin for "gear", in respect of which he said it was the proceeds from selling heroin, "gear" being a reference to heroin. I am, of course, not sentencing him for the offending involved on that occasion. That has already been dealt with by Frearson SC DCJ. However, what is of significance is that his offending on this occasion is not so different to the offending dealt with on 28 November 2014. 9. In addition, the significance of those matters is that his offending in late April to late May 2015 was offending while he was subject to three separate Intensive Correction Orders and to supervision in respect of those orders. The commission of offences while subject to any form of conditional liberty is an aggravating circumstance, although it does not aggravate the objective seriousness of the offences which constitute the breach of conditional liberty. 10. In R v Richards (1981) 2 NSWLR 464, Street CJ at 465, in referring to breaches of bail as being a serious aggravating factor, said that the protection of the community from those who abuse their liberty on bail to commit further offences calls for severely deterrent sentences which will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence to be passed, or passed for the original offence. 11. Although his Honour was dealing with offences committed while at liberty on bail, his comment is however still relevant to offences committed while the subject of an Intensive Correction Order, a different form of conditional liberty. Similar comments have been made in the past in relation to breaches of parole, another form of conditional liberty: "Parole is a privilege. An abuse of that privilege calls for a higher punishment." McVeety [2002] NSWCCA 344. Fernando [2002] NSWCCA 28 at 42: "Offences committed while on parole demonstrate that rehabilitation which parole is designed to assist has failed and the court cannot proceed on the same expectation of rehabilitation that is open in other circumstances." 1. Greg James J in Huynh [2003] NSWCCA 239 stated that: "...it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you have been liberated conditionally." 1. In Moffatt [1990] 20 NSWLR 114 it was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole. 2. While those matters deal with breaches of parole, the comments in each case that I have referred to are equally apposite to offending conduct where it is in breach of an Intensive Correction Order, as is the case here. That the offender, having received the benefit of three concurrent Intensive Correction Orders for serious similar offences, designed to assist him in rehabilitation, failed to abide by those orders within a period of approximately six months demonstrates a contempt for the criminal law and also a contempt for the beneficial sentences that were imposed. I note in respect of the previous offending, when sentencing, Judge Frearson said the following: [T4] "I do take into account the actual quantities were not high and quantities are relevant to the criminality but not decisive. But regardless of the quantities it was a blatant and determined breach of the law. I conclude it does involve, in all the circumstances, substantial drug dealing. In relation to the knowingly dealing in the proceeds charge, the offender is not charged with the supplies that produced the profit, he is charged with the dealing in proceeds of crime. The amount itself is substantial. It was the profit of an organised and planned activity, indeed, distribution of drugs. Another blatant breach of the law." 1. His Honour referred to the report of Dr Allnutt, although not in detail. His Honour said: [T6] "Is he remorseful? I accept that he is remorseful at this point. I consider he is now sorry for being involved in drug dealing. I do accept that he has got good prospects of rehabilitation. He is described to (sic) a low to moderate risk of reoffending. One would hope he would not reoffend, particularly in this way. I cannot conclude it is actually unlikely he will reoffend." 1. After imposing the Intensive Correction Orders that I have referred to, his Honour cautioned the offender in relation to the effect of any breach of the orders, including the following: [T8] "So you be very careful while you are doing that Intensive Corrections Order to abide by all conditions and not to get into any trouble, particularly in relation to drugs. If you do that you've basically had it." 2. Clearly, the offender failed to listen or, if listening, failed to have any regard to his Honour's comments. While his Honour had available the psychiatric report of Dr Allnutt, in respect of these matters, provided to the Court on behalf of the offender is a psychological report from Mr Borenstein. 3. There is no suggestion in either of Dr Allnutt's or Mr Borenstein's reports that the offender has any psychiatric disorder or is otherwise not cognitively intact. Mr Borenstein found that he had an adjustment disorder with depressed mood and substance dependency leading up to the offending, and that, at the time of consultation on 11 August 2016, he was in remission with regards to depression and substance dependency, the offender then being in custody. 4. Dr Allnutt, in his August 2014 report, made a number of references to what the offender had said to him: "With regard to his offending, he said, 'I took the easy way out…I wish I hadn't done it. It has caused me so much problems…I was making an income at the expense of others…It's illegal and it harms people, it destroys lives and affects the overall scheme for people.' He said he took responsibility for his offending…He said he intended to maintain abstinence…At the time that I saw your client he manifested remorse for his actions, he understood the deleterious effect that drugs have on society in general and was motivated to address his personal substance abuse." 1. It was perhaps thought unwise for the purpose of these proceedings to return to obtain a further report from Dr Allnutt, who had already had some exposure to the offender in the circumstances of the content of that report. There is no indication in the report of Mr Borenstein that he had been provided with the benefit of the report of Dr Allnutt. Mr Borenstein reported: "Mr Afsari impressed as highly motivated to ensure he does not repeat old behaviours. Mr Afsari volunteered, 'I tried to fill a void with cannabis and now it is filled with my family and their love.'" Earlier in the report: "The decision to supply drugs was motivated exclusively by Mr Afsari's need for a supply of cannabis which he used to self-medicate against symptoms of depression. Since coming into prison Mr Afsari appears to have made significant positive steps. He has cut off all ties from those of similar culture or shared drug history. Mr Afsari is gainfully employed in the prison environment. He intends to undertake more extensive drug rehabilitation upon release from gaol. I believe there is a direct connection between Mr Afsari's depressed symptoms, his return to cannabis as a form of self-medication and the offending behaviour which allowed Mr Afsari a free and constant supply of cannabis. The road to recovery with respect to drug dependency is often problematic and rarely successful at the first attempt." 1. There is a theme which runs through each of the two reports of Dr Allnutt and Mr Borenstein in respect of the offender turning to self-medication with cannabis as a result of personal stresses, that is, the past breakdown of a relationship and business arrangement with his partner's father, and debt relating to that business breakdown preceding the offending dealt with by Frearson DCJ and a subsequent return to the use, in particular, of cannabis as self-medication as a result of a breakdown of a further different short term relationship while the subject of the ICO, described by the offender as being a "rebound relationship" – it is said that as the result of the breakdown of the short four month relationship: "Mr Afsari returned to his default position. He commenced using cannabis as a form of self-medication. He returned to persons who supplied methamphetamine with whom Mr Afsari joined. He felt included and his involvement allowed for a supply of cannabis which he was smoking at roughly two grams per day in addition to 50 cigarettes per day." 1. The report of Mr Borenstein and its relevance to the progress towards rehabilitation of the offender and the issues of remorse and contrition must be considered in the light of the content of the earlier report of Dr Allnutt. In Qutami (2001) NSWCCA 353 at 58 it was said by Smart AJ, Spigelman CJ and Simpson J agreeing: "There is one further general observation. In this case, reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements…There has been a noticeable and disturbing tendency in more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements." 1. In the circumstances of this matter and the offender's recent past criminal history, little weight can be placed on the statements made by him to Mr Borenstein or to the assessment made by Mr Borenstein in the circumstances where he was deprived of the benefit of Dr Allnutt's report. 2. I note the letter from the offender's mother of 3 November 2016 which indicates her ongoing support for her son and her claims that: "I believe that my son has learnt the biggest lesson of his life. He has learnt his lesson the hard way. I can see in his eyes and his face that he is a completely changed man. He has been drug free and has promised me that he will never commit any offence again. He never wants to go on that road again." 1. I accept that Mrs Afsari is expressing her genuine observation and what the offender has said to her, but I note that what he has said to her in entirely inconsistent with his conduct in committing serious criminal offences while subject to three ICOs and while residing in the family home, littered as it was with a variety of prohibited and restricted drugs and the indicia of supply. No doubt, whatever the circumstances of the offender's conduct, Mrs Afsari will continue to support him, like most mothers. 2. The theme in Dr Allnut's and Mr Borenstein's report, as well as the Pre-Sentence Report, is that the offender was only committing the offences in order to fund himself to be able to supply his own addiction to marijuana or cannabis and, according to the Pre-Sentence Report but not referred to in Mr Borenstein's report, cocaine. 3. Considering the substantial quantities of prohibited and restricted drugs that the offender had and the significant quantity of cash money located, the subject of the proceeds of crime offence, it is in my view patently obvious that the offender was conducting a drug distribution business for financial benefit, that is, greed rather than need, although I accept that it is likely that he at least used some of the substances he possessed. He was assessed for the purposes of the Pre-Sentence Report as being a low-medium risk of reoffending, and under the heading of "Assessment" the report states: "Mr Afsari was cooperative, positive and forthcoming during the assessment process. He exhibited some limited insight, took responsibility for his offending and offered remorse for the impact that this has had on his family without offering the same to the community. Mr Afsari said that he regretted he had not appreciated the opportunity which the previous ICO had given him. Corrective Services records show that while in custody Mr Afsari has continued to receive positive reports regarding his attitude, work ethic and involvement in training opportunities." 1. A plea of guilty in itself does not necessarily represent remorse or contrition. In this matter, the Crown case in respect of each of the charges could reasonably be regarded as very strong. The offender has, in the past, expressed his determination to cease offending and rehabilitate himself. He had the benefit of three ICO orders to assist him in doing so. He is familiar with the process of sentencing. In the light of the contrast between the matters I have quoted from Dr Allnutt's report and his subsequent offending and in the absence of evidence from the offender that could have been tested by cross examination, I am unable to accept, despite the content of Mr Borenstein's report and the Pre-Sentence Report, that there is, in fact, any evidence of genuine remorse. 2. As to the prospect of his reoffending, referred to in the Pre-Sentence Report as being "low-medium", I will simply observe that such an assessment appears to be contrary to the offender's history. As to the prospect of rehabilitation, suffice it to say that in the circumstances it cannot be said that there is a good prospect of rehabilitation. 3. I note in respect of the offence of ongoing supply, as I have previously commented, that the only evidence placed before the Court is of three supplies of unspecified quantities for comparatively small sums of money, but I note that in respect of the offence of ongoing supply the purpose of the introduction of s 25A was to ensure, in effect, that low level dealers such as street dealers who were frequently arrested upon having supplied small quantities such as points of a gram, would be subject to more significant sentences than if they were dealt with for single offences, by providing for the offence of ongoing supply to ensure that street level dealers did not simply get away with a rap over the knuckles, as they had in the past. 4. Taken on their own, the small individual supplies in this matter would perhaps indicate an offence in the lower range because of that matter, but, as I have previously referred to, in the light of the surrounding circumstances these are simply three small supplies as part of a significant criminal distribution by the offender. The Court is required to take into account when sentencing for the ongoing supply the matters contained on the Form 1. In respect of the supply of 4.17 grams of 3,4 methylenedioxymethylamphetamine, or MDMA as it is popularly referred to, the quantity was more than three times the indictable quantity of 1.25 grams. In respect of the 10.06 grams of amphetamine, it was more than twice the indictable quantity of five grams. In addition, the proceeds of crime related to a not insubstantial sum of money, being $4,390. The offender, of course, had what was no doubt a substantial investment by way of the purchase of the various substances in his possession. 5. When dealing with the matters on the Form 1 I have regard to the Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146 in which Spigelman CJ said at (42): "The position, in my opinion, is that although a Court is sentencing for a particular offence, it takes into account the matters for which the guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material to the sentencing process. The first is the need for personal deterrence which, the commission of the other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused is engaged. 1. The second is the community's entitlement to extract retribution for serious offences…These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 2. Those statements of relevant principles are relevant to this matter. 3. Relevant to the matters contained on the s 166 certificate is that the 8.48 grams of Stanozolol, being 92 tablets, is substantially less than the small quantity which is 50 grams. As to the 0.96 grams of cocaine, it is only marginally less than the small quantity of one gram and, as to the 11.6 of cannabis leaf, it is approximately one third of the small quantity. Quantity alone is not the sole basis for determining an individual sentence as referred to in Smiroldo (2000) 112 A Crim R 47 at [14]. However, it is still relevant to any assessment of an appropriate sentence. 4. For the purposes of sentencing I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. The Court is required to take into account such aggravating and mitigating factors as outlined in s 21A(2) and (3), as are present, and any other relevant factor. Any sentence imposed must reflect the seriousness of the offence as well as the need for general deterrence and specific deterrence, as well as meeting the fundamental purpose of punishment, the protection of society. In respect of this matter, both general deterrence and specific deterrence are important matters to be kept in mind in the instinctive synthesis of establishing appropriate sentences. 5. I am satisfied, pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999, that there is no penalty other than imprisonment that is appropriate, as was conceded by Mr James QC on behalf of the offender. 6. As I intend to proceed by way of an aggregate sentence, I am required to provide an indicative sentence in respect of each of the matters in respect of which sentence must be imposed. In respect of the matters contained on the s 166 certificate the indicative sentence in respect of possess instructions for manufacture of prohibited drug is three months. In respect of the offence of possess restricted substance, being the 4.98 of Alprazolam, the indicative sentence is two months. In respect of the offence of possess prohibited drug, being 11.6 grams of cannabis leaf, the indicative sentence is six months. In respect of the possess prohibited drug, being 0.96 grams of cocaine, the indicative sentence is 12 months. In respect of the offence of possess prohibited drug, being 8.48 grams of Stanzolol, the indicative sentence is six months. 7. In respect of the offence of ongoing supply, taking into account in addition the offences of supply an indictable quantity of a prohibited drug, 4.17 grams of 3,4-methylenedioxymethamphetamine, and supply indictable quantity of prohibited drug, 10.06 grams of amphetamine, and knowingly deal with the proceeds of crime, to wit $4,390, the indicative sentence is three years' imprisonment. I repeat what I have previously said, that for the purpose of assessing that sentence I have not in any way taken into account the methylamphetamine located under the house that was not the subject of a charge. 8. Mr Afsari, would you please stand up. 9. In respect of each of the s 166 matters and the offence of supply prohibited drug on an ongoing basis, you are convicted. You are sentenced to an aggregate sentence of four years. As to the commencement date of the sentence, I take into account that as a result of the commission of these offences the ICO orders were revoked and a fixed sentence was imposed which commenced on 26 May 2015 and expired on 11 August 2016. I also take into account that there was a period between 22 May 2015 and 25 May 2015, that is, a period of four days, where the offender was in custody solely in respect of these matters, those four days have not been discernibly in any way taken into account in setting the fixed sentence on revocation of the ICOs. 10. I recognise that the sentencing discretion includes the ability to make the sentences imposed in this matter concurrent, partially concurrent with or wholly cumulative upon the sentence which the offender was serving as a consequence of the revocation of the ICO orders, for the reasons expressed by Simpson J in dealing with the revocation of parole in Callahan [2006] NSWCCA 58. I intend to make the sentence partly concurrent with the fixed term imposed in respect of the revoked ICOs. I am of the view that it is appropriate in relation to that matter to date the sentence to commence after the offender had served one year of the fixed sentence imposed, but to backdate it by a further four days. Accordingly, the appropriate commencement date for the sentence is 23 May 2016. 11. I note that means that taking into account the principle of totality and acknowledging that given the one year of the fixed sentence served and the starting point for the aggregate sentence of four years that I am imposing, the total time of the sentence is effectively five years, and it is the offender's first period of time in custody. I find special circumstances in view of the offender's obvious problems in respect of his abuse of prohibited drugs and the need for assistance to rehabilitate himself in that regard, despite his failure to do so while the subject of the ICOs, to warrant variation of the statutory relationship between the non-parole period and the balance of term. Accordingly, in order to provide for a balance of term of 18 months, the non-parole period has been reduced to two years and six months. 12. Accordingly, you are sentenced to a non-parole period of two years and six months commencing on 23 May 2016. You will first be eligible for parole on 22 November 2018. The balance of term is one year and six months and the term of four years will expire on 22 May 2020. 13. Mr Afsari, whether you are released on that date will depend largely on your conduct while in custody. It is not an automatic release date. If and when you are released you will, however, be subject to parole. It is similar to an Intensive Correction Order in that if you breach the parole you will find yourself, no doubt, back in custody again. It is all in your own hands, Mr Afsari. I am not going to repeat the warning that was given to you in unequivocal terms by Judge Frearson but you need to take heed of your position on this occasion rather than ignore it, as you did on the last occasion when you were before Judge Frearson. 14. Now, is there any matter that I have made a mistake in relation to or additional matter other than destruction of the drugs and confiscation of the proceeds? STUART: No matter other than those two, your Honour. HIS HONOUR: All right, well, I'll order the destruction of the drugs. I take there is no objection to the confiscation order Mr James? JAMES: No, your Honour. STUART: I hand that up for your Honour to sign. HIS HONOUR: Pursuant to s 18(1), cash in the sum of $4390 found on the person at the premises of the respondent on 22 May 2015 is forfeited to the State. Pursuant to s 18(1), the Nokia mobile, telephone number X0002147256, is forfeited to the State. Similarly, the Apple iPhone, number specified in the order, is forfeited to the State, as, in addition, the Blackberry mobile as specified in the order and SIM card is forfeited to the State and the further Nokia mobile telephone, as specified, is forfeited to the State. I give leave that pursuant to s 19(3)(a) the property forfeited by the orders that I have just made is to be disposed of forthwith and I order the destruction of the drugs and disposal of the utensils and indicia of supply. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2017