R v El - Hassan [2018] NSWDC 436

District Court New South Wales

Medium Neutral Citation: R v El - Hassan [2018] NSWDC 436 Hearing dates: 16 November 2018 Date of orders: 16 November 2018 Decision date: 16 November 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: 1 For the offence of drive whilst disqualified on 27 April 2017 and the earlier offence of drive whilst disqualified, the offender is sentenced to imprisonment for two months. 2 For the offence of ongoing supply, the offender is sentenced to imprisonment. I set a non-parole period of 18 months and a head sentence of three years. 3 Dismiss the back-up offences on the s 166 certificate and make the forfeiture order by consent. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Ongoing drug supply – MDMA - Drive while disqualified – Breach of bonds - Proceeds of crime – Totality – Long standing drug use – Post traumatic stress disorder Cases Cited: Butler v The Queen [2010] NSWCCA 264 Fong v R [2002] NSWCCA 320 Category: Sentence Parties: The Crown Mohammed El - Hassan Representation: Counsel: B Murray – The offender Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2017/357114

SENTENCE 1. HIS HONOUR: One important thing to note about offences of ongoing drug supply is that the maximum penalty that parliament has provided is the same as for offences of commercial drug supply. This reflects the concern that parliament has a concern shared by the courts, at the harm which street level dealers such as the offender cause through repeated ongoing supplies for financial gain. 2. The offender has pleaded guilty to an offence of ongoing drug supply. He asks that when I sentence him for that matter that I take into account a matter on a Form 1, that relating to $700 found in his possession which reflects the proceeds of crime. Given the nature of the primary offence, ongoing drug supply for financial gain, the Form 1 adds absolutely nothing to the criminality of Mr El-Hassan. The presence of the Form 1 matter affects the sentence that I will ultimately impose upon Mr El-Hassan not one bit. The presence of such Form 1 matters is a recent development. I have my doubts about its appropriateness in circumstances such as this as it can often lead judges into error. 3. Mr El-Hassan was a drug dealer, able to supply MDMA and on one occasion cocaine. He supplied on five separate occasions, the total quantity supplied being 3.21 grams of MDMA which reflects 44 pills plus some powder as well as .27 grams of cocaine. These supplies were to undercover officers. It is notable that on occasion the offender approached someone he believed to be interested in buying drugs for their personal use rather than the other way around. It is fortunate that the drugs were not actually used by anyone, having been sold to undercover officers, but of course the offender was not to know this. 4. He supplied drugs on 29 October - 11 capsules for $250, on 3 November -11 further capsules this time for $300, on 4 November 2017 - 12 capsules for $300, on 10 November 2017 - 10 capsules for $300 and on 24 November .93 grams of MDMA powder and a bag of cocaine for $700, the $700 being reflected in the Form 1 matter. Given the number of supplies, the number of pills supplied, and the circumstance that the offender was to some extent creating demand, not just responding to it, this offence is more serious than many offences of this type which come before this Court. 5. The offender, consistent with what he told police on his arrest, pleaded guilty at the earliest opportunity. The sentence I impose upon him will thus be 25% less than it would otherwise have been. 6. The offender's background was far from ideal. He has experienced trauma over the years from his time living in Lebanon as a child in 2006 where he felt that his life was under threat, to his home life where his father who was an alcoholic was a violent man. Mr El-Hassan was bullied at school and started avoiding school. His parents divorced which left his mother homeless. It was in those circumstances that Mr El-Hassan told a psychiatrist that he started committing offences. His drug use commenced relatively early, he was still in his early teens when he first began smoking cannabis and starting use crystal meth from the age of 15 years of age, abusing MDMA since the age of 18 and cocaine since the age of 20. He has thus a long standing history of drug use which does mean, as the Crown submitted, that his prospects for rehabilitation are guarded. Mr El-Hassan's drug use increased, he told the psychiatrist, following the deaths of a number of friends in various ways. He then began selling drugs to support his own habit. 7. Mr El-Hassan will do his time in custody harder than would otherwise be the case. He has experienced one psychotic episode whilst in custody. Although this apparently has not happened again he does have a number of psychiatric matters, in particular anxiety and depression which will affect his experience in custody. He, according to the psychiatrist, provided a history which "would be indicative of a diagnosis of post-traumatic stress disorder" based on his background, in particular his experiences in Lebanon. This too will affect the way he serves his sentence in custody and on top of that, there is the circumstance that he has come into conflict with other prisoners. 8. More than most, Mr El-Hassan will experience hardship whilst in custody. On the other hand, it has to be said that personal deterrence seems to be important in the present case. He has a history of criminal behaviour beginning in the Children's Court including offences of armed robbery and drug supply. Indeed, part of his presentence custody relates to events of drug supply committed in 2017. 9. The offence for which I must sentence him represented the breach of two bonds for driving whilst disqualified. One was initially dealt with as a s 10 bond, the other a s 9 bond. Clearly, the offender's breach of those bonds has to be reflected in the sentence I impose upon him. On the other hand, it is important not to double count. I will impose sentences of imprisonment which are to be served partially accumulatively on the sentence for the ongoing drug supply matter. 10. Although the s 10 bond was thought by the magistrate to be a relatively minor matter deserving of the possibility of the offender even escaping conviction should he comply with the terms and the conditions of the bond, he clearly did not meet her Honour's expectations in that regard. I am satisfied that in both drive whilst disqualified matters, the threshold for the imposition of a custodial sentence he has met, albeit for relatively short periods in each case. 11. The offender has expressed his remorse to me and I am satisfied he has a genuine desire to rehabilitate himself. He plans to live with his mother upon release from custody and he retains her support. She is in Court at the moment. 12. There are clearly special circumstances in this case. They relate to Mr El-Hassan's long term drug use. There are no suggestions on his custodial history that he has been using drugs whilst in prison, but as the Crown accurately points out, what will happen when Mr El-Hassan is released from custody is difficult to know. Certainly he will be assisted by a longer period on parole than would be reflected by the statutory ratio. I make a finding of special circumstances in his favour. The main reason for that finding is that if he is able, with an extended period of supervision and assistance, to put his drug using ways behind him, then the community will benefit. 13. Mr Murray relied on a decision of the Court of Criminal Appeal, the case of Butler v The Queen [2010] NSWCCA 264. In that case an offender received a sentence of imprisonment consisting of a non-parole period of 12 months and a balance of 21 months. As I read the decision of Butler, it is more a case about procedural fairness than any case that can establish any sort of sentencing range. Perhaps more fundamentally, as the Court of Criminal Appeal said in Fong v R [2002] NSWCCA 320, the use of a single case to establish a range is a submission which is "fatally flawed". 14. I should mention that the principal of totality clearly applies. What I have to do is look at the matters for which Mr El‑Hassan served periods of imprisonment during his presentence custody and the matters which initially were dealt with by way of bonds and the ongoing supply offence and impose a sentence appropriate to totality of that offending. For those reasons I impose the sentence as follows. 15. For the offence of drive whilst disqualified on 27 April 2017 and the earlier offence of drive whilst disqualified, the offender is sentenced to imprisonment for two months to date from 24 February 2018 which is three months after the offender's arrest. For the offence of ongoing supply, the offender is sentenced to imprisonment. I set a non-parole period of 18 months and a head sentence of three years to date from 24 March 2018 which means that his non-parole period will expire on 23 September 2019 which is the first day on which the offender is eligible to be released to parole. 16. I will dismiss the back-up offences on the s 166 certificate and make the forfeiture order by consent.