R v Farmani [2019] NSWDC 144

District Court New South Wales

Medium Neutral Citation: R v Farmani [2019] NSWDC 144 Hearing dates: 28 February 2019 Date of orders: 28 February 2019 Decision date: 28 February 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate term of imprisonment of 5 years, 6 months, with a non-parole period of 3 years: at [17]. Catchwords: SENTENCING – multiple offences – supply prohibited drug – methylamphetamine – guilty plea – expressions of remorse Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1995 Cases Cited: R v Daniali [2018] NSWDC 440 R v Markee [2018] NSWDC 429 R v Reddie; R v Linnen [2017] NSWDC 228 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Ali Farmani (Offender) Representation: Mr Paish (Crown)

Mr Allport (Offender) File Number(s): 2017/178027 Publication restriction: Nil

Judgment 1. In November 2018 I sentenced Georgia Markee ([2018] NSWDC 429) and Esmail Daniali ([2018] NSWDC 440) to sentences of imprisonment for their roles in the supply of drugs to an undercover operative in early 2017. The co-offender, Ali Farmani, born in August 1992 now appears for sentence today having pleaded guilty on the first day of a trial in December last year. It is common ground that any sentence should attract a discount of something in the order of five to ten percent. I will allow a discount of 10% for the utilitarian of those pleas at that stage. 2. He pleads guilty to one count of supply a prohibited drug being 1992 grams of methyl-amphetamine, under s 25(2) of the Drug Misuse and Trafficking Act 1995, which carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years, and one count of supplying 439 grams of methyl-amphetamine, also under s 25(2), which carries a maximum of 20 years imprisonment with a standard non-parole period of 10 years. He has been in custody since the date of his arrest on 14 June 2017. It is common ground that a term of imprisonment is required in this case and no alternatives need be considered, and the term of imprisonment will commence on that date. The role of the offender and the sentences imposed in the matters of Markee and Daniali can be found in the remarks on sentence which have been published and need not be repeated here. 3. The agreed facts for Farmani show that Daniali and Markee were married and police conducted undercover operations in relation to them and the offender. Between March and April 2017 Daniali supplied 524 grams of methyl-amphetamine for $68,000 to an undercover operative. Farmani was not involved in these transactions but Markee was. Under a controlled operation in May 2017 Daniali met the UCO at McDonald's at Rosehill and they discussed the supply of a large commercial amount of methyl-amphetamine with Daniali suggesting the cost of a kilogram would be $130,000. 4. The offences known as the Rydges Hotel offences, the principal offence being dealt with today, occurred on 14 June when Daniali arranged to supply 2 kilograms of methyl-amphetamine to the UCO for $250,000 and he was to meet him at the Rydges Hotel at Rosehill. Early that morning Daniali, Farmani and Markee went to the Meriton Apartments at Parramatta and checked into a room pre-booked under Markee's name. Farmani carried a large black‑coloured backpack. A couple of hours later Daniali and Farmani left the Meriton and went to Farmani's house. They collected his car and went to the Rydges Hotel, arriving about 12.30. Farmani stayed in the driver's seat of the car and Daniali went through the foyer into room 106. The UCO had booked that room earlier and inside the room Daniali was shown a green backpack containing $250,000 in cash. He then left room 106 and went back to Farmani and they drove to the Meriton, and parked in the underground car park. Daniali contacted the UCO and told him there were police officers throughout the lobby of the Rydges Hotel and he asked the UCO to come to his hotel room. Ultimately he agreed to go back to the Rydges and meet the UCO there. Daniali and Farmani then left the Meriton, Farmani again carrying the large coloured backpack. They went into the lobby of the Rydges at 1.05pm and met the UCO. Farmani walked across to the corner of the room where the UCO had put the green backpack containing the $250,000 cash and he looked into the backpack and saw the cash. Daniali then picked up another backpack and pulled out a teddy bear and tore it open and there was a kilogram of methyl-amphetamine inside it. He picked up another teddy bear, this one being pink in colour, tore it open and there was another kilogram of methyl-amphetamine inside it. Farmani remained standing next to the green backpack containing the $250,000 cash. Tactical officers then stormed the room and arrested them and they were found to contain 992 grams of 72% purity in relation to the first pack. The second pack was not tested. The officers searched the room and they found Meriton swipe cards. Police went to room 517 at the Meriton where they arrested Markee. Inside the room there was drug paraphernalia and also a dish containing 439 grams of 76% methyl-amphetamine. Although the facts do not indicate it, Mr Allport of counsel for the offender acknowledges that Mr Farmani was the bag carrier for that second consignment as well as for the first. 5. Farmani has no prior convictions. He gave evidence today adopting a history contained in a report from the psychologist, Chris North, following a recent consultation, which was taken through a Farsi interpreter. That probably explains any discrepancies between that history and the history contained in the sentencing report which does not indicate that it was obtained with the assistance of an interpreter. 6. In short, he has had a difficult childhood characterised by physical abuse and community violence in Iran as a result of his difficulties in adhering to religious laws over there. He came to Australia but became involved in gambling following drug use. In early 2017, his pregnant girlfriend had left Australia leading to an escalation in his drug use and gambling and significant problems in the six months prior to his arrest. He had been using heroin, opium and methyl-amphetamines, up to one to one and a half grams a day of methyl-amphetamines. He said he started dealing heroin for his co‑offender in exchange for drugs in February 2017 but of course, as Mr Allport notes, I am not to sentence him for that. 7. He grew up in an impoverished home in Teheran, went to high school, did a Diploma in Electrical Sciences and then came to Australia illegally. He said he had been working for some months in formwork shortly before his arrest. He showed me in court today the scars which he bears as a result of having been shot in the stomach by police at an early age of 16, apparently for not having a driver's licence. He describes a difficult period of incarceration in Iran when he was tortured by the authorities. He spent some time in refugee centres here and his refugee visa has been cancelled as a result of his arrest. He had been in a relationship for about five years with a Thai national. 8. While he has nothing on his record here, he acknowledged some legal difficulties in Iran, stating he had been arrested at age 15 for drinking and then driving unlicensed at age 16 and then as I have said imprisoned at the age of 17, but this was a case of mistaken identity. He has no serious matters against him. 9. He told the psychologist that at the time of his offending he was using drugs and had used them on the day and he felt like he was in a dream. The psychologist expressed hope that his prospects of re-offending were in the low to moderate range on the assumption that he could address his mental health and addiction issues through appropriate counselling and treatment. 10. There is not a lot in contest between the Crown Prosecutor's oral submissions and the very helpful and comprehensive submissions prepared by Mr Allport. As is clear, his involvement was restricted to 14 June, his primary addiction was to methyl-amphetamine, and he was involved in a very significant supply of drugs to the UCO, just under five times the large commercial quantity. 11. Of course I have to take account of the maximum penalties and the standard non-parole periods as yardsticks in the sentencing process and the purposes of the sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The quantity alone is not a determining factor but it is a significant matter to take into account. Mr Allport concedes there was a degree of planning and organisation as an aggravating factor. As to mitigating factors there is no challenge to the assertions that I should take account of his prior good character, his pleas of guilty and the fact that there was no transmission of drugs to the community so there was no injury, loss or damage to other parties, but as the authorities demonstrate the fact that drugs were not disseminated is not a matter of any great significance. 12. I accept his ultimate expressions of remorse through his guilty pleas and his expressions to the psychologist. There is no challenge to a finding of special circumstances on the basis that he does need an extended period of treatment on his release and that there will be a degree of accumulation in any sentencing process and it is his first time in custody. 13. I have regard to a quotation from Berman DCJ in R v Reddie; R v Linnen [2017] NSWDC 228. His Honour's observations are always pithy and accurate and they are in this case. Notwithstanding the existence of three disciplinary matters on his custodial record, there is evidence of a demonstrated improvement in his condition including his willingness to accept treatment for drug addiction and he has demonstrated insight which further supports a finding of special circumstances. It is conceded that general and specific deterrence must loom large in the sentencing process. 14. The ultimate characterisation by Mr Allport involves a number of factors, namely his involvement was confined to a single date in which both offences occurred; he was a low level bag carrier, or a mule; he took directions from Daniali; and he was acting in order to address his addiction rather than being motivated by commercial profit. Mr Allport ultimately submitted that there was no true parity to Markee but that this offender's overall objective criminality should be assessed somewhere between that of Markee and that of Daniali but closer to Markee, or not far above Markee. 15. The Crown acknowledged that despite the assertion that the offending was above the mid-range of objective seriousness there was no necessity to impose the standard non-parole period in the light of a number of factors to which I have referred. 16. One of the principal factors Mr Allport relied upon in his parity argument was the assertion that Markee was sufficiently trusted to retain possession of the drugs by herself whereas Farmani was such a low-level labourer that he never had exclusive access to the methyl-amphetamine supplied to the operative and that Farmani was therefore very low in the status of the organisation. I take that into account, but it is not a matter of overwhelming significance in the light of all the objective and subjective circumstances. Mr Allport's ultimate submission was that time served would be appropriate or something slightly beyond time served. That would be an unduly lenient sentence in my view. 17. The orders that I will make are: (1) The offender is convicted of the offence. (2) I impose an aggregate sentence of imprisonment of 5 years, 6 months, to commence on 14 June 2017 and expiring on 13 December 2022. (3) I impose a non-parole period of 3 years, expiring on 13 June 2020. The offender is eligible for release to parole on that date. (4) Indicative sentences: (a) Count 1 – 5 years, 2 months (b) Count 2 – 2 years, 5 months (5) I find special circumstances.