District Court New South Wales Medium Neutral Citation: R v Arab, R v Dib, R v Dib & R v Salma [2017] NSWDC 350 Hearing dates: 20th November 2017 Date of orders: 12 December 2017 Decision date: 12 December 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Omer Arab – impose an aggregate sentence of imprisonment consisting of a non-parole period of 3 years 4 months with a head sentence of 5 years 10 months. Khaled Dib – sentenced to imprisonment consisting of a non-parole period of 4 years and a head sentence of 7 years. Mohamed Dib – impose an aggregate sentence of imprisonment consisting of a non-parole period of 4 years 2 months with a head sentence of 7 years 3 months. Ihsan Salma – impose an aggregate sentence of imprisonment consisting of a non-parole period of 4 years and 3 months with a head sentence of 7 years and 6 months. Catchwords: CRIMINAL LAW – Sentence – Forms 1 – Drug supply – Drug version of Uber Eats – Sophisticated drug dealing network – Use of taxis to deliver drugs to customers – Commercial quantities supplied – Roles played by each offender – Proceeds of Crime Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Omer Arab Khaled Dib Mohamed Dib Ihsan Salma Representation: Counsel: Mr G James QC – Offenders Arab & Salma Mr E James Mr G Brady SC – Offender K Dib Mr I Lloyd QC – Offender M Dib Solicitors: Director of Public Prosecutions – Crown Allied Lawyers – Offenders Arab & Salma One Group Legal – Offender K Dib El Masri and Associates – Offender M Dib File Number(s): 2015/326584; 2015/326590; 2015/327147; 2015/327147 SENTENCE The business operated by the offenders 1. The four offenders appearing for sentence today operated a business which could be described as the drug version of Uber Eats. This was a sophisticated criminal operation which ran a drug dealing network along the lines of that legitimate business, using mobile phones for customers to place orders and, in most cases, taxis driven by an offender to satisfy those orders. 2. The syndicate was involved in the supply of cocaine in a wide geographic area from the Northern Beaches to Cronulla. On occasions they offered to deliver further afield, even to Gosford and Wollongong. 3. A customer would usually initiate an order by contacting Khaled Dib or Mohamed Dib. The recipient of the order would then allocate the job to a driver, or do the delivery themselves. There was much that would be familiar to the operator of a legitimate taxi business. This is not surprising as the majority of the offenders were taxi drivers, not that they performed that function when they were delivering drugs, telling customers who wanted to be taken from one place to another that they did not operate a taxi service. 4. Each offender concentrated on a particular area of Sydney. Khaled Dib covered the Eastern Suburbs and CBD, Mohamed Dib covered the North Shore, Northern Beaches and CBD, Ihsan Salma covered the CBD and Inner West and Omer Arab covered the Greater Sydney Metropolitan area. 5. Like all good business operators the offenders anticipated periods of increased demand such as Friday and Saturday nights and days around the running of the Melbourne Cup. 6. Before the offenders commenced their delivery operations each day they met at the home of Ihsan Salma. When police later arrested him they found him to be in possession of a significant sum of money which he admits was the proceeds of crime. He appears also to have been the main distributor of drugs to the others. 7. The four offenders would then drive around various parts of Sydney satisfying their customers' requests. In the Agreed Statement of Facts it is recorded that on an average Friday and Saturday, police would estimate that each driver would meet with up to 100 customers and, "police estimate they have a customer base of between 800 – 900 people". 8. It is apparent that the Agreed Statement of Facts refers to more significant criminality of the four offenders than that to which the offenders have individually admitted in total. For example in the Agreed Statement of Facts this appears: "investigators estimate that there have been a total of 3,900 separate supplies of cocaine by the syndicate" however the facts in relation to each individual offender refer to supplies totalling substantially fewer than 3,900, indeed substantially fewer than 1000. 9. I will sentence the offenders in accordance with the number of supplies specifically attributed to them in those Statements of Facts, it being a mystery to me as to who supplied the rest. The offences 1. Omer Arab, who did not use a taxi to conduct his deals, supplied at least 74 bags totalling 66 grams of cocaine. When he was arrested police located a number of other things, including a further 8 grams of cocaine. He has pleaded guilty to supplying 74 grams of cocaine in a number of separate transactions. Police also found an unregistered shotgun, a taser, an extendable baton and $17,825 in cash. 2. As a result the offender has pleaded guilty to 3 offences and when I sentence him for each of those he asks that I take into account a matter on a Form 1. * He has pleaded guilty to supplying cocaine. That carries a maximum penalty of 15 years imprisonment. When I sentence him for that matter he asks that I take into account an offence of knowingly dealing with the proceeds of crime, that relating to the cash found in his premises. * He has also pleaded guilty to possessing an unregistered firearm. That carries a maximum penalty of 5 years imprisonment. When I sentence him for that matter he asks that I take into account an offence of not keeping that same firearm safely. * He has also pleaded guilty to possessing a prohibited weapon namely the Taser. That carries a maximum penalty of 14 years with a standard non-parole period of five years. When I sentence him for that matter he asks me to take into account an offence of possessing a prohibited weapon, namely the extendable baton. 1. Khaled Dib supplied cocaine on 244 occasions. This encompassed a total of 472 bags of cocaine with a combined weight of 330.4 grams. There was 18.99 grams of cocaine found at his premises when he was arrested. Khaled Dib's plea of guilty thus relates to supplying 349.3 grams of cocaine. Upon his arrest $12,000 in cash was found in his possession. 2. He has now pleaded guilty to supplying a commercial quantity of cocaine. That offence has a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. When I sentence him for that matter he asks that I take into account an offence of knowingly dealing with the proceeds of crime, namely the money found upon his arrest. 3. Mohamed Dib supplied cocaine on 200 occasions. That involved 390 bags of cocaine weighing a total of 250 grams. Police found 12 grams of cocaine in his premises so he is to be sentenced for supplying a total of 262 grams of cocaine. When police searched his premises they found not only $25,200, but as well: a drug ledger; taxi uniforms; mobile phones; and an extendable baton. 4. He has thus pleaded guilty to supplying a commercial quantity of cocaine and possessing a prohibited weapon, namely the extendable baton. When I sentence him for the first of those matters he asks me to take into account an offence of knowingly dealing with the proceeds of crime, that relating to $25,200 found in his possession on arrest. 5. Finally, Ihsan Salma supplied cocaine on over 66 occasions totalling 46.92 grams. However there was a much larger quantity of drugs found in his premises upon arrest, namely 219.60 grams of the drug. That is consistent with his role in the enterprise, further evidence of which is to be found in the fact that upon his arrest he was found in possession of $337,870. 6. He has now pleaded guilty to 2 offences, namely supplying a commercial quantity of cocaine and knowingly dealing with the proceeds of crime. 7. At this stage I should explain how the plea of guilty to the latter offence came about. When the matter first came before me the proceeds of crime offence was on a Form 1 attached to the supply matter. I indicated that I did not consider it was appropriate that such a serious matter appear on a Form 1 pursuant to s 33(2)(b) of the Crimes (Sentencing Procedure) Act and informed the parties that I would not proceed in that manner. Accordingly, after a short discussion I was told that Mr Salma would plead guilty to a substantive offence of dealing with the proceeds of crime. He pleaded guilty to this charge on an indictment presented this morning. Discount for Pleading Guilty 1. The procedural history explains why I will allow a 25% discount to reflect the utilitarian value of all pleas by all offenders in this matter. I should also at this stage record that I have taken into account both the maximum penalties, and where appropriate the standard non-parole periods in formulating the appropriate sentences to impose. My reasons for not imposing the standard non-parole periods appear in these remarks on sentence. Parity 1. The principles of parity apply. No offender should have a justifiable sense of grievance when he compares the sentence imposed upon him with the sentences imposed on his co-offenders. Objective Gravity 1. In assessing the objective gravity of these offences I bear in mind a number of matters. Firstly, and perhaps most obviously, Mr Arab is to be sentenced for non-commercial drug supply unlike his co-offenders. Those co-offenders each performed the role of drug deliverer but also had other roles to play as well. Salma was what I inelegantly described in the course of submissions as "the bag man" a description that Mr Greg James QC, who appeared with Mr E James for Mr Salma did not argue with. He appears to have been the person who distributed drugs to others and collected the proceeds. Khaled Dib appears to have been the main contact for customers but on occasions Mohamed Dib performed that role. It appears to me that each of the 3 offenders who have pleaded guilty to commercial drug supply were involved, broadly speaking, in drug supply activities of the same objective gravity. Sure they each performed slightly different roles at times, but they were all working towards a common goal, just as in a legitimate business with someone taking orders, someone distributing goods to the deliverers, and someone being responsible for the receipt of the proceeds. Each of the three offenders involved in commercial drug supply had their own part to play in pursuit of the objective of being involved in a major drug supply operation. But that doesn't mean that I ignore the separate criminality involved in Mr Salma's offence of dealing with the proceeds of crime. 2. At one stage I considered whether I could find that Mr Salma was more deeply involved than Khaled and Mohamed Dib in the drug supply operation, but it is notorious that actual possession of drugs can be the result of being further down the drug supply chain than the Mr Bigs (or Mr Big-Enoughs) of the drug world. Accordingly I cannot find that Mr Salma's role as the bag man meant that he was objectively more culpable than the other commercial drug suppliers as far as the drug supply offences are concerned. But as I have just noted it remains the case that he must still be sentenced for the dealing with the proceeds of crime offence. So while his sentence before discounts is the same as Khaled and Mohamed Dib, his aggregate sentence will be longer to reflect this additional offence. 3. Each offender says that he was a heavy cocaine user who needed a lot of money to pay for his drugs as an explanation, or at least a partial explanation, for his decision to become involved in this serious drug supply operation. Each offender calls that circumstance in aid as a mitigating factor – they weren't in this to fund a luxurious lifestyle and no evidence of great wealth was put before me. 4. It is notorious that drug use often leads to the commission of serious crime as drug users seek to fund their drug habits, but while that does explain why these offenders did what they did, it is the same circumstance which demonstrates just how serious drug supply is. Who knows how many of their many customers would have committed crimes to fund their habits? Not all of their customers would have been high income earners able to pay for their cocaine use through legitimate sources, and each time a drug user commits an offence to fund his or her drug habit then the community and its members are harmed. Drug supply is far from a victimless crime - it's just that usually the victims of those crimes are somewhat remote from the actual drug supply itself. 5. It is the case that the offenders did not appear to have done anything to increase demand for the drugs they supplied, apart of course from providing an efficient and reliable service. In that sense they were responding to demand rather than creating it. 6. The offenders, Salma excluded, appear to have supplied at a street level. But they did so with such enthusiasm and regularity that their criminality far exceeds that of the usual street level supplier who might do a few supplies a night in the back streets of Sydney. 7. Subjective material, which I will turn to shortly, suggests that each of the offenders was hard working. Whilst that is usually a good thing on sentence, in this case their very industriousness has made their offences serious indeed. 8. In each case, including the case of Mr Arab, I find that objectively their drug supply offences were in the middle of the range of objective criminality applicable to the offence for which the offender is to be sentenced. 9. In coming to that finding I have taken into account the fact that they were all cocaine users at the time, the quantity of the drug involved, the relatively sophisticated nature of the operation in which multiple offenders were involved, the number of separate acts of supply, the wide geographic area in which the offenders dealt drugs, the obvious profitability of the enterprise, and the fact that the offenders only stopped what they were doing when the authorities intervened. 10. A significant part of the Crown's submissions concerning the objective gravity of these offences related to the circumstance that in three cases the offenders were taxi drivers and used their taxis to deliver drugs. Despite anxiously considering the Crown's submission I fail to see how the fact that three of the offenders were taxi drivers made their offences worse than if they had used their private cars to deliver the drugs. What does make this objectively more serious than would otherwise be the case is the circumstance that these four offenders were involved in a highly organised and, it has to be said, successful drug dealing business. The offenders were not the usual street level dealers operating as sole traders. These offenders combined their endeavours in a way to maximise the quantity of drugs they could supply and the amount of money they would receive in return. 11. I should briefly refer to the level of criminality that arises from the other offences apart from drug supply. In Mr Arab's case I note that he was apparently a licensed firearm owner and that the shot gun was not an otherwise illegal weapon. I assess the objective gravity of the possess unregistered firearm matter as being slightly below the middle of the range. 12. The possess prohibited weapon offence is in a different category. Many weapons covered by that offence are of a much more lethal character than a taser. Despite obvious suspicions I am not able to find beyond reasonable doubt that the taser was used as part of Mr Arab's drug dealing activities and so objectively that offence is towards the bottom of the range of objective gravity of offences of possessing a prohibited weapon. 13. A similar thing could be said, perhaps even more so, about the extendable baton the subject of Mohamed Dib's plea of guilty to the offence of possessing a prohibited weapon. 14. That brings me to Ihsan Salma's offence of dealing with the proceeds of crime which, it will be recalled, relates to a significant sum of money, $337,870. I find that this is an offence slightly below the middle of the range of objective gravity, and in any case arises largely from criminality encompassed within the other offence to which he has pleaded guilty. The offenders 1. Omer Arab has no previous convictions. He described his childhood as "normal" to a psychologist who prepared a report for the benefit of the Court. Apart from a couple of matters there is nothing in his background to explain why it was that he would become a drug dealer. Those two particular matters, which appear in a psychologist's report, refer to financial problems following the offender's various businesses failing and the circumstance that Mr Arab, who underwent gastric sleeve surgery to deal with excessive consumption of food, may have replaced one obsession, food, with another, cocaine. The psychologist notes; "it is not surprising that when Mr Arab was denied food used to manage distress as a form of self-soothing, and when introduced to cocaine, the drug was readily used as a form of self-medication against worsening severe distress, made worse as he was no longer able to self- sooth through food" 1. Mr Arab spent 28 days in custody bail refused. Since being released from custody he has been able to run a plumbing business with some success. Tendered during the proceedings were a number of sub-contract agreements between the offender's company and developers. Whilst it is conceded that a full time custodial sentence must necessarily be imposed upon him, Mr James refers to those contracts in the context of a submission that upon his release from custody, with the assistance of his family, the offender will once again be able to put his industriousness to good use. 2. I accept that, especially given the absence of prior convictions, Mr Arab's offending was "uncharacteristic". 3. There are clearly special circumstances in his case. Although Mr Arab claims to have given up drug use, the fact that his offending occurred in the context of a drug addiction, together with this being his first time in custody, suggests the need for an extended period of supervision on parole. 4. Turning now to the case for Khaled Dib, I begin by noting that there is material in the psychological report which I do not consider it appropriate, or necessary, to discuss in detail. Without wishing in any way to understate the impact upon Mr Khaled Dib, it is undeniable that as a child he was subject to a distressing series of events. The psychologist in Mr Dib's case has identified the impact of those events as being relevant to Khaled Dib's decision to self-medicate with drugs which led, ultimately, to Mr Dib facing sentence today. 5. The offender was born in Australia to parents of Lebanese background and is one of 11 children. The offender had some troubles at school but they too relate to the incidents I am not going to detail. So too was his decision to start using drugs, leading to a chronic drug dependency from the age of only 13. As the psychologist says "Mr Dib saw marijuana and drug use as a way forward to contain intrusive recollections…" 6. Whilst the psychologist recommends, for highly understandable reasons, that Mr Dib be given counselling, that has not occurred whilst he is in custody. When the psychologist interviewed Mr Dib on the 18th of October 2017 he found him describing symptoms of severe depression. He expressed guilt and remorse with regards to his actions, not only because he has hurt members of his family, including of course most importantly his wife and children, but also has apparently expressed an appreciation of the impact which drugs have on the wider community. 7. Although, in common with other cases, the Crown referred to the well-known principle that judges should look with circumspection at statements made to psychologists where there is no sworn evidence to establish such matters, in the present case there is plenty of supporting material to aid Mr Dib. In particular his presentation to the psychologist as he recounted the distressing events of his childhood and his wife's observance of his behaviour at around the time he was dealing drugs, cause me to have little hesitation in finding that the offender was telling the truth when he recounted his history to the psychologist. 8. Also tendered on Mr Dib's behalf were some documents concerning the effect of his incarceration upon his family. Appropriately, Mr Brady SC did not suggest that such hardship was exceptional, but those matters are clearly part of the general mix of subjective factors which I will take into account. In particular the evidence which suggests that Khaled Dib was a man who was devoted to his family suggests that he will spend a significant part of his time in custody aware that his illegal activities have harmed his family. 9. Up until now he has not been able to receive any assistance to deal with the issues which have arisen from his disclosure of what happened to him as a child, and the depression that he feels now goes well beyond what is to be expected when anyone is incarcerated. 10. Mr Brady makes the submission that when I assess the sentence to impose upon his client there should be little component of specific deterrence. Upon his release from custody the circumstance which ultimately led to him committing this serious offence can be addressed through counselling which, so Mr Brady says, makes it highly unlikely that he will be before the Courts again. While I accept Mr Brady's submission that I should be guardedly optimistic about the offender's chances of rehabilitation, I do not discount the need to specifically deter Khaled Dib from future offending. Guarded optimism about the offender's prospects falls a long way short of a finding that specific deterrence is not needed. 11. The offender will need an extended period of supervision on parole however, and so I will make a finding of special circumstances in his favour. 12. It is perhaps important to emphasise that a finding of special circumstances, whether made in the case of Khaled Dib or any-one else for that matter, is not done as a favour to the particular offender. It is the case that almost all offenders dealt with in the District Courts will be released from custody at some stage and it is important that the Courts do what they can to reduce the chances of such offenders committing offences in the future. 13. Some would say, and do say, that the best way of doing that is to impose such a harsh punishment on an offender that he or she will never again do anything which sees them return to custody. That may be the case in some instances but it is certainly not the case always and it is certainly not the case here. The best way of ensuring that Khaled Dib does not offend again, and the best way of thus ensuring that he does not harm anyone in the community in future through criminal behaviour, is to allow him an extended period of supervision on parole in which the issues raised in the psychologist's report can be addressed. 14. Unlike the other three offenders Mr Mohamed Dib is a single man with no dependents. He was born in Australia to a mother who cared for him but a father who was prone to violent outbursts. When he was 13 the family moved to Lebanon after which the offender's parents separated with his father preventing him from seeing his mother. Eventually he was able to return to Australia and re-unite with his mother. Although, as I mentioned, he is single with no children, he has extremely close emotional ties with his mother, sister, nieces and nephews. 15. Mohamed Dib's introduction to drug use was late in life, being introduced to cocaine when he was 36 years of age. It didn't take long however before he began using drugs on a daily basis. 16. A number of references were tendered on his behalf, as was a letter of apology written by him. In that letter he says "I have also had time to reflect on the people who purchased the drugs from me, and although many of them have been what appeared to me to be customers who had access to money I now realise that their families would no doubt be affected as a result of my criminal offending behaviour." 1. Sensibly, given Mr Dib's age at the time of offending (36 years old), Mr Lloyd QC resiled from a submission he made initially that I should take into account his "relative youth", but there are other matters of more substance in Mr Dib's favour. He has expressed his remorse. He has no prior convictions, which is probably a good indication, together with his late start as a drug user, of Mr Dib's underlying character. In such circumstances the references which speak highly of Mr Dib are likely to reflect the sort of person that Mr Dib usually is, that is the sort of person he is when he is not using drugs and supplying them. 2. A psychologist who saw him expressed the opinion, which I would have reached anyway, that "he did not present with entrenched anti-social attitudes or lack of empathy" 3. There are special circumstances in his case. The psychologist in his case notes that whilst he has resolved not to use illicit substances in the future "he has still failed to fully address the psychological factors that motivated his engagement in the first place". An extended period of supervision on parole will allow that to occur. 1. Finally we come to the position of Ihsan Salma. He had a positive childhood but when he was about 10 years of age his mother was diagnosed with cancer. She died in 1992 after the family moved to Lebanon so that his mother could receive treatment. He has been married for about 11 years and has 2 children. He was a taxi driver up until his arrest. 2. Mr Salma's drug use began in high school. By his mid- twenties he was using ice, cocaine and cannabis although he settled on cocaine abuse after a few months. 3. The offender explained to the psychologist who saw him that he was participating in these drug supply offences to finance his own drug use. As well as the problems of funding his drug habit the offender had other financial problems as well arising out of a fast food franchise business where he was effectively defrauded. That matter led to one of the offences on his criminal history. He received a bond after stalking and intimidating a person in connection with trying to get his money refunded. 4. We now come to another matter where I will have to be circumspect. There is evidence before me of assistance. That assistance was significant not only because of its direct consequences, but also because of what it indicates about Mr Salma and his attitude to the future. In order to reward the assistance itself I will discount his sentence by a further 10% on top of the 25% I have already allowed for his early pleas of guilty. Above that, such assistance is further evidence of the offender's remorse and his prospects of rehabilitation. 5. The offender has plans for the future. When he is released from gaol he plans to move to Melbourne and work as a labourer with other family members. 6. Mr James suggested that there were some "Bugmy considerations" to be found in the psychological report. If that is intended to suggest that there is material in the offender's background which may explain to some extent his decision to begin using drugs and then commit these offences then I accept what Mr James says. 7. The offender is married with two children. Fortunately he retains a good relationship with his wife and is motivated to stay out of trouble so that he can take his parental and familial responsibilities seriously. 8. There are special circumstances in his case as well. Like the others he will benefit, and so will the community, from an extended period of supervision on parole, that allowing him to re-adjust to life outside gaol with a reduced risk of further drug use and associated offending. Sentences 1. I impose sentences as follows. Omer Arab 1. I will impose an aggregate sentence. 2. Had I not done so I would have sentenced him to imprisonment for 5½ years on the supply prohibited drug matter, 3 months on the possess unregistered firearm matter and 3 months on the possess prohibited weapon matter. 3. I note that that last matter carries with it a standard non-parole period and ordinarily I would state the non-parole period I would have imposed as part of the indicative sentence for the possess prohibited weapon matter. However as the indicative sentence is less than 6 months I do not consider it appropriate to do that. 4. The aggregate sentence is one consisting of a non-parole period of 3 years 4 months with a head sentence of 5 years 10 months. That sentence is to have commenced 28 days before today, that is the 14th of November 2017. The result is that Mr Arab will be first eligible for parole on the 13th of March 2021. Kahled Dib 1. I sentence him to prison for a period consisting of a non-parole period of 4 years and a head sentence of 7 years to date from 6th of November 2015. This means his non-parole period will expire on the 5th of November 2019 on which day he is eligible to be released to parole. Mohamed Dib 1. I will impose an aggregate sentence of imprisonment. Had I not done so I would have imposed the following sentences. 2. For the offence of supplying not less than the commercial quantity of a prohibited drug, imprisonment consisting of a non-parole period of 4 years with a head sentence of 7 years. 3. For the offence of possessing a prohibited weapon, a term of imprisonment of 3 months. I will not specify the non-parole period I would have imposed for the reasons I have earlier indicated. 4. The aggregate sentence I impose upon the offender consists of a non-parole period of 4 years 2 months with a head sentence of 7 years 3 months. That sentence commenced from 6th of November 2015. This means the non-parole period will expire on the 5th of January 2020 on which day he is eligible to be released to parole. Ihsan Salma 1. I will impose an aggregate sentence of imprisonment. Were I not to have done so I would have imposed a sentence of imprisonment for supply not less than the commercial quantity of a prohibited drug consisting of a non-parole period of 3 years and 6 months with a head sentence of 6 years. That of course is different from the sentence imposed upon Khaled Dib and Mohamed Dib to reflect the circumstance that he is receiving an overall discount of 35% rather than 25% for the reasons I earlier indicated. 2. I would have imposed a sentence of imprisonment for dealing with the proceeds of crime of 3 years. 3. Instead I impose an aggregate sentence consisting of a non-parole period of 4 years and 3 months with a head sentence of 7 years 6 months. That sentence is to date from 6th of November 2015. This means his non-parole period will expire on the 5th of February 2020 on which date he is eligible to be released to parole. ********** 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: 12 December 2017