District Court New South Wales Medium Neutral Citation: R v Micah [2019] NSWDC 626 Hearing dates: 2 August 2019, 5 August 2019 Decision date: 08 August 2019 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Taking into account the matter on a Form 1; sentenced to a term of imprisonment of 1 year 10 months to be served by way of an Intensive Correction Order. Catchwords: CRIME – Sentence - supply prohibited drug –methylenedioxymethamphetamine – not less than commercial quantity – issue of parity – sentencing in relation to co-offenders – equal justice – street level supplier – messenger– aggravating factor – financial reward, but not in possession of substantial sums of cash, drugs or drug related paraphernalia – provided assistance to police - CRIME – participate in criminal group, contribute to criminal activity and knowingly deal with proceeds crime Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s54A(2), s54B(2), s3A, s21A, Pt 4 Div 1A, s98(3), s 7(1), Drug Misuse and Trafficking Act 1985, 25(2) Cases Cited: DPP(Cth) v Gow [2015] NSWCCA 208 Hili and Jones v R [2010] HCA 45 Jimmy v R [2010] NSWCCA 60 Postiglione v R (1997) 198 CLR 395 R v Mostapha Ali [2016] NSWDC 173 R v Olbrich [1999] HCA 54 Category: Sentence Parties: Regina (Crown) Billy Ndegway Micah (offender) Representation: Counsel: Mr C Taylor (Crown) Solicitors: Mr Singh (Defendant) File Number(s): 2018/00112324 Publication restriction: No Judgment 1. This is a very evenly balanced matter. I have paid very close heed to what the learned Crown has said and what counsel has said. I have ultimately determined that I should impose a term of imprisonment that can be served by way of an Intensive Correction Order and I propose to make that order. 2. The term of imprisonment will be one year, ten months, this is in the context of the matters I am required to consider. A rounding down of the starting figure for the term of imprisonment for you was two and half years and I will give my reasons for coming to that decision now. 3. The prisoner, Mr Micah, appears today for sentence in relation to an offence for which he was committed for sentence to the District Court. That charge was that he between 1 December 2017 and 2 February 2018 at Surry Hills in the State of New South Wales did supply an amount of a prohibited drug, to wit 3,4 methylenedioxymethamphetamine of a weight of 194.08 grams being an amount that was not less than the commercial quantity applicable to that prohibited drug. This is an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985, it carries a maximum penalty of 20 years' imprisonment and/or 3,500 penalty units. It has a standard non-parole period of ten years' imprisonment. 4. I am required to take into account on a Form 1 the offence described as the sequence 2 offence relating to this prisoner. That is an offence, that the prisoner, between 1 December 2017 and 2 February 2018, at Surry Hills, did participate in a criminal group with Walter William Watchou, Mourad Hannachi, a male person known only as Medhi, Nicholas Coulaud, and Florian Chamon, and contribute to criminal activity, to wit supply of prohibited drugs and knowingly deal with proceeds of crime. 5. Before I deal with the particular facts relating to this particular prisoner, I have already sentenced Mr Chamon and Mr Hannachi some weeks ago; they are directly related to this prisoner. Earlier this week, I sentenced another offender, Mr Bianchi, who was related to this prisoner through the same criminal "group" but not directly concerned with the offending with which the prisoner is to be sentenced. 6. In the sentencing of this particular prisoner and the specific conduct of which I can be satisfied of beyond reasonable doubt, in the context of the principles laid down by the High Court in the decision of R v Olbrich [1999], I am required to have close regard to the sentences I imposed on Mourad Hannachi. 7. By way of background - and I will come back to the detail of the statement of agreed facts in a moment as it relates to this prisoner - there was a criminal group involved in the supply of various drugs, as I would understand, in the City and the Eastern Suburbs, over a period of some months in November, December, February, and March 2017/2018. Mr Chamon and Mr Hannachi were respectively arrested in April 2018 when the very thorough police investigation came to a conclusion. 8. However, as was apparent from the agreed facts and also the separate facts prepared in relation to Mr Bianchi, various people participated in the criminal group in various ways, to various extents. One of the features of the group as I divine it - bearing in mind I have seen the facts in the material presented on behalf of all the prisoners thus far except for Mr Watchou, who is yet to be sentenced by me in September - revealed that the dominating figures in this criminal group were French. 9. Mr Hannachi had been in Australia for a few years before the criminal activity with which we are currently concerned; Mr Chamon had arrived in Australia about a year before the criminal activity with which I am concerned. 10. The other gentleman, Mr Coulaud, who is a bit of a mystery figure but certainly a very important figure as the facts suggest, has never been arrested. He escaped the country before the police operation came to an end. The agreed facts show him having a very important role in directing the relevant activities. Likewise, Mr Hannachi. 11. In respect of the particular offence for which this prisoner appears today for sentence, that same offence relating to Mr Hannachi - because it was an offence concerned with him - was sequence 5 in his charges where he pleaded guilty to taking part in the supply of a prohibited drug, to wit not less than a commercial quantity of MDMA. That offence, of course, carries the same maximum penalty as the offence with which I am concerned with this prisoner and is concerned with, in part, the particular supply in which this prisoner was involved. 12. However, as the facts made clear in relation to Mr Hannachi when I sentenced him and what I say now about this prisoner which has to be seen in the context of my remarks on sentence in relation to Mr Hannachi, there are two features of the matter relating to Mr Hannachi of considerable significance. Mr Hannachi was a director of this group and was the person, as I understood it, principally concerned with sourcing the relevant drugs and directing the conduct of various "runners" and other people serving the purposes of the criminal group, which the prisoner admits to doing from time to time within a two‑month period, but clearly not every day. 13. Thus, in considering the appropriate sentence for this prisoner, I have regard to the fact that in the instance of Mr Hannachi when I sentenced him in respect of the sequence 5 offence, I sentenced him - bearing in mind he also received a discount for the utilitarian benefit of the plea of guilty - to four years' imprisonment with a non-parole period of two years, five months. 14. However, in relation to the sequence 5 offence, I was required to take into account matters on a Form 1, that is, an offence of knowingly direct the activities of a criminal group, and also supply an indictable quantity of MDMA in the quantity of 64.17 grams. This offence, sequence 5, relating to Mr Hannachi had to be seen in the context of the prisoner Hannachi being involved in a separate commercial supply of MDMA of 141 grams at a different time, which was dealt with as a separate offence, and also other offences relating to dealing with the proceeds of crime and supplying an indictable quantity of another prohibited drug. 15. Thus, in sentencing this particular prisoner, the issue of "parity" of sentencing clearly arises for very close consideration. I should point out that in the case of Mr Hannachi, he was in breach of conditional liberty. He did have a minor criminal history, a relevant matter to the appropriate penalties I passed upon him. When I say appropriate penalties, I mean in the sense of the penalties I have determined for him. 16. Of course, parity of sentencing requires the Court to have regard to the sentences imposed in relation to "co‑offenders" in respect of related offending. 17. Sometimes the related offending takes the form of different charges. Here, however, I have a clear case of a co-offender with a much greater role in the organisation of the supply of drugs, with a worse record than this prisoner, with a lengthier and more consistent involvement in the supply of drugs at the time of the offending than this prisoner, who I have previously sentenced. I need only cite what was said by Dawson and Gaudron JJ in Postiglione v R (1997) 198 CLR 395 particularly at 301. 18. In a more recent case of the Court of Criminal Appeal of Jimmy from 2010, Campbell JA and Rothman and Howie JJ individually considered issues relating to the appropriate approach to issues of parity of sentencing in the context of the observations, for example, of the judges I referred to from Postiglione. Rothman J expressed it to my mind, pithily, when his Honour, noting that the "equality" principle or "equal justice" principle, to which reference was made in Postiglione, was a reflection of the Aristotelian principle of equality, was that alike should be treated alike to the extent of their alikeness, and the unalike treated unalike to the extent of their unalikeness on rational and reasonable bases. Thus, the sentence I imposed on Mr Hannachi is of significance in the context of the facts that are available in relation to this prisoner. 19. The agreed statement of facts prepared in relation to this prisoner included the facts in relation to Mr Chamon, Mr Watchou and Mr Hannachi. The learned Crown Prosecutor, who very skilfully represented the Director's interests, or his instructing solicitor, helpfully prepared a colour-coded document to distinguish the roles of different people. One of the striking matters about the colour coding was the way in which, in the context of a 13‑page statement of facts, different people come and go from the relevant chronological events in varying ways. 20. One of the matters I noted in respect of the co-accused, Mr Chamon, who is not directly related to this prisoner, but was part of the same criminal group, is that in reality his involvement in criminal conduct did not occur until after early February 2018. I thought this was unusual in the context of the introductory paragraphs talking about a criminal group conducting drug supplies from November 2017, and particularly the detail, in a general sense, of para 6 of the agreed facts where the person Chamon and Hannachi were described as persons providing drugs to "runners" or street-level supplier over a period of time. 21. It emerged in the case that was conducted on behalf of Mr Chamon, a matter not picked up in the various submissions even by the very learned Senior Counsel who appeared for Mr Chamon that Mr Chamon was actually out of the country in December and January. No suggestion was made that he was directing the drug supply from overseas. The point I am simply making is that when one is determining facts for the purposes of sentencing, upon which people's futures depend, or futures will be cast by any order that I make, one must be very careful at jumping to conclusions simply on the basis of general assertions that may be generally accurate but do not necessarily reflect the detail of the specific facts in relation to a particular accused, when there are multiple accused involved in related criminal activity. 22. This brings me to Mr Micah. Whilst he is referred to as being engaged in street supply he is only charged with one supply. Admittedly it is a supply of not less than a commercial quantity of prohibited drugs. The detail of that is, in the context of other facts I have already referred to in relation to Hannachi, that Hannachi and Watchou were "holidaying" on the Gold Coast, having a break it seems from their systematic drug supply, and their presence in the Gold Coast did not prevent them from organising and sourcing seven ounces of 3.4‑methylenedioxymethamphetamine or MDMA for supply. The supply was arranged by a person, obviously known to the police, by contacting Watchou. Text messages were intercepted between Watchou and Mr Micah on a mobile phone number connected to him. 23. The facts state that Watchou, as I said arranging these matters with Hannachi on the Gold Coast, "confirmed that Micah should collect the seven ounces of MDMA from an address in the city connected with the group, supplying it to the known person at a different location. The prisoner was provided with that person's phone number and Micah then contacted the known person using a phone used by the group to arrange details of the supply." 24. The prisoner, unbeknown to him, was monitored by police. He went to a particular address, met with Coulaud, obviously Coulaud being the source of the drugs, and the Micah and Coulaud travelled to Crown Street, Surry Hills, in a black BMW under the control of Coulaud. Micah met with the known person outside 361 Crown Street, Surry Hills, and supplied 194 grams of 3.4‑methylenedioxymethamphetamine for $12,950. 25. The drug itself was seized by police, because the drug had been supplied to someone who was assisting with the investigation, and it was analysed to be 77% pure, which is a high level of purity. Coulaud acted as a lookout while Micah handed the drugs over to the known person. 26. During the course of the supply to the known person on this date, Micah said to the known person that he had been told by a person known as "Jacob" (who was Hannachi), to bring the drugs to that person. Hannachi at the time was on the Gold Coast with Watchou, and the cash was received by the prisoner. He says he gave it to Coulaud and I accept it to be true that evidence from the prisoner in the context of what I know of the wider facts. 27. This is the only actual supply of which the Crown has direct evidence. Admittedly it is a serious matter, having regard to the maximum penalty and the standard non-parole period. But that fact, as I have outlined it, needs to be considered when one considers some evidence the prisoner gave in relation to his participation in the criminal group. 28. The facts in relation to that matter on the Form 1 are that he participated in the criminal group, knowing that it was a criminal group and knowing that his participation in that group contributed to the occurrence of criminal activity. It is said that telephone intercepts show that Micah was a street-level supplier of prohibited drugs over a period of two months, without providing me with any specific dates or details. Then reference is made at para 20 of the facts to text messages that were identified as being sent by Micah to Watchou, extracted from Watchou's phone, as I understood it from the questions of the learned Crown Prosecutor of the prisoner some weeks ago, over the period of 28 and 30 December 2017, which is the date also provided in the Statement of Facts. 29. I have had regard to the detail of those matters as evidencing the prisoner's involvement in the group and I bear in mind it evidences direct involvement by the prisoner in the group over a two to three day period. In my view consistent with the evidence of the prisoner encompasses the activity with which I am concerned. Now it is to be fairly said when considering this matter that the Crown has particularised the prisoner's participation in the group over two months and the prisoner in his evidence before me agreed that he did have an involvement with the group over two months. As he said in his evidence to me, it was only on three occasions or three days that he was involved in the actual supply of drugs. In the evidence in his affidavit and his oral evidence before me, it would appear that his contact with the group came about through his social interaction with the group in the period of time covered by the particulars. I bear in mind, in relation to the supply charge, that too is particularised as being a supply of not less than a commercial quantity of drugs over a period of time in the Court Attendance Notice, between 1 December 2017 and 2 February 2018. But as the Agreed Statement of Facts makes clear, it was in fact a supply that occurred on 28 December 2017 in the manner in which I have just outlined. 30. With regard to the prisoner's evidence I have had regard of course to his affidavit in this respect and the oral evidence that he gave. His affidavit evidence and his oral evidence reflect upon his contact with the group through his social connection with the people involved in the group. 31. There is no doubt that he was attracted to the group by the character of their social activities, given the circumstances in which he came to Australia. He said that what had attracted him to provide assistance to the group was the realisation, having come to Australia to study from Kenya, that he was unable to meet the costs of his education and unable to thus continue his studies, having travelled this far for that purpose. He was closely questioned by the Crown Prosecutor about the extent of his involvement with the criminal group. I have a transcript of that evidence and I paid particular attention to it. 32. He was particularly cross-examined about the significance of the text messages appearing at para 20 of the agreed statement of facts. He agreed that the messages could be seen as providing "regular updates" to Watchou in relation to the supply of drugs, but he indicated that the messages included a reference to the transaction of 28 December, which he has admitted by is plea of guilty. He said the messages were confined only to that period between 28 December and 30 December and related to transactions occurring on 28 and 27 December. He was not shifted from that. There was some misunderstanding between him and the Crown in some respects but one might have expected that from a person giving evidence in English when English is the second language. 33. He reiterated that he did not deliver drugs on a daily basis, he agreed that he was performing the role of "customer contact" and "delivery" and that on the occasions that he did receive drugs he received on average about $300 a day but was only directly involved in the supply of drugs for three days, although no doubt, given his attendance upon Mr Coulaud's residence and his contact with Watchou and the like, bearing in mind he knew Hannachi he was no doubt well aware of the wider activities in which they were involved. Although there is some ambiguity in his evidence, as there is in respect of the general history that he gave to psychologists, although part of that may have been a misinterpretation by the psychologist of the detail of the matter. I am still captive to the facts as they are presented to me. I noted the Crown's last question in cross-examination of the prisoner, in an effort to get the prisoner to agree that by reason of his participation in the group over the pleaded period he was an active participant over a lengthy period of time, which would be a significant matter if found on sentence. He was asked the question "Regarding drug supplies, there were more phone contacts than these three examples were there?" The prisoner said "No". 34. I am not informed as to how the agreed facts came into existence and certainly have not been provided at any stage of the source material upon which the agreed facts are based. But I would have thought with the greatest of respect to the character of the questions that were put by the Crown, some of which I asked him to withdraw on the basis of, I could not understand how he could suggest things in an ethical basis unless there was material to the contrary, why, if in fact there was material that contradicted the evidence of the prisoner, it was not put to him directly or produced in the Crown case in reply. 35. These comments I make I should hasten to say are absolutely no criticism of the professionalism of the Crown Prosecutor. The Prosecutor may well have been privy to information that has been denied to me. I would have thought even if there is an Agreed Statement of Facts once a prisoner gets into the witness box and gives evidence a matter to the extent that it is thought by the Crown to be at odds with material available to the Crown, it would be open to the Crown to produced material, either in cross-examination of the witness or in reply to the Crown case, contradicting the particular evidence given by the prisoner. I note, notwithstanding the very detailed and exhaustive character of the investigation, that in relation to other accused there are considerable details of particular supplies undertaken by the people involved in the criminal group. These are, it would seem to me, largely based upon the sale of drugs to persons known to the police rather than the sale of drugs to persons not known to the police but in this particular case as I said we have ultimately for sentence the one individual case which I have already referred to. 36. The prisoner has no criminal convictions. The prisoner is from Kenya as I have said. There was prepared in relation to him a Community Corrections report. He came to Australia in 2016 on a student visa, although I understand his student visa has been cancelled and he is subject to a restraining visa known as a "Justice" stay or visa. The Community Corrections report notes his connections with Kenya and his family being there. He resides in what is described as a "pro social" and supportive environment. He has embraced his religion after his arrest. Unlike the other offenders I note he has only had two days in custody after his arrest and was granted bail. Other offenders have either remained in custody up until the time of sentencing or, for example in the case of Mr Bianchi, were in custody for a period of over three months before being granted bail in the Supreme Court. I hasten to say the sentence I imposed on Mr Bianchi there is no parity relationship with this prisoner because whilst he was part of the same group he pleaded to separate offending. In respect of the matters set out in the Sentencing Assessment Report the prisoner, as I said, prepared an affidavit in respect of which he gave some. He has produced evidentiary material in the sense of references from family in Kenya, as I understand it his father and mother and a reference from a member of his church attesting to the prisoner's embrace of his religious beliefs and the steps taken by the prisoner to address his rehabilitation under the tutelage of his religious peers. 37. The Community Corrections Officer noted that the prisoner was currently employed, that his attitude to the offending reflected remorse and a lack of consequential thinking at the time. He has ceased contact with the co‑accused since his arrest. It notes that at the time of the offending Mr Micah was "clubbing" regularly and engaging in "illicit behaviour with antisocial peers." He was a user of cannabis and cocaine which he ceased to do at the time of the offending on a regular basis and he noted the financial stresses upon him of living in Sydney which is an expensive city. I hasten to say of course I am not for one moment condoning the commission of illegal activity to meet living expenses or to pay for University fees. But I note a combination of the social environment in which the prisoner was moving well above his head I would have thought and other pressures upon him as contributing to what the Community Corrections Officer identifies as "a lack of consequential thinking." 38. He understood the impact of his conduct. He appreciated the wrongness of his actions and was willing to undertake such supervision that was required of him by Community Corrections. I have noted part of the evidence of the prisoner in relation to the offending and aspects of his background. He is a relatively young man. He was born in 1996. At the time of the offending, he was in fact 21 years of age, about to turn 22. 39. He had been working as a shift worker but not getting regular work but lost that employment in September 2017, before he was offending. He was undertaking a course of study in a Bachelor's Degree at the University of Sydney but the cost for him of the relevant Semester, was $26,000. He was able to pay until $24,000 of those fees but was still in arrears to the extent of $2,060 and thus was unable to continue his studies, a matter confirmed by an email attached to his affidavit. 40. After his arrest and release from bail, he started working as a labourer where he earns between $700 and $900 per week and he works four to five days in a casual position. His plan has always been to complete his studies in science at university, to enrol in a degree in "Aeronautics and Aerospace", and then return to Kenya, to seek employment for an African airline. But he ceased his university studies, pending the court proceedings. He adopted the detail of what was in the psychological report prepared by Mr Borenstein. As he said to the Community Corrections officer, he has been drug‑free since his arrest. He said in his affidavit: "Every day I think about how much I regret my behaviour, working, attending church and my education and career goals of mine, has helped me to stay focussed on the right path in life now. I look forward to the day that I can put all this behind me and provide a positive contribution to the community through my chosen path." 1. I do not wish to dwell upon the material provided from his mother and father. It would appear both his mother and father are successful business people in Kenya, living in Nairobi, as I understand it, the capital of Kenya. They speak about his positive qualities, their concern about his welfare. They appear to be religious people and have an understanding that he has resumed what his mother describes as his "Bible" routine. They reflect upon his success at school, he attended a boarding school and did well academically, hence his ability to come to Australia and study. He was a loyal, honest son and his family continue to have contact with him whilst he is in Australia and pray for his case to be dealt with mercifully. 2. I have a reference from a person who runs a business involved in the church that he attends. He observes the prisoner's reconnection with his religion since a short time after he was arrested. The referee notes that the prisoner has: "Now reached the point where he has changed his life for the better and has qualified to be baptised as one of Jehovah's Witnesses at our upcoming assembly that we hold twice a year in our assembly hall at Raby. He has only reached this point because he has wanted to make changes based upon what he has learnt from the Bible in his studies. The idea of a Bible study is to help someone learn what Jehovah God requires of them, and then they decide whether or not to follow what it says. Billy has made the choice to do this and it has benefited him greatly." 1. The referee notes that the prisoner has shared with others what he has learnt from his experience and tried to help other people from his experiences. He had developed a "generous attitude towards people" and has made many great friends within the religious community in which he now mixes. That religious community, as I understand it, being the community from which he comes in Kenya. 2. I have a reference also from two uncles of the prisoner reflecting upon the quality of his parents' activities in Kenya, the shock to the family of the prisoner's arrest, the disappointment of the family at his behaviour and the belief that he has the personal qualities to reform. 3. There is another reference from another member of his religious community which I have taken into account. It makes many of the same observations, however in fairness in different words that were made from the reference that I earlier quoted. This referee reflects upon the prisoner's involvement in his congregation as a "valuable member" and a person who is working hard to rehabilitate himself. I have taken all of that material into account. 4. It seems to me, based upon the totality of the evidence, that the prisoner has taken a sharp turn for the better since his arrest. It has been a salutary experience for him and that he relevantly has excellent prospects of rehabilitation. 5. With regard to the submissions that were made by the parties, if I could just deal with them in this matter. I have taken into account all of the submissions, and it would be clear from the findings of fact that I have made to this point, and certain observations I will make about the law in its application to this case, that I have taken into account those matters raised, plus others of course that I am required to address. Ultimately, it is conceded by his counsel that the "s 5 threshold" has been passed and that is self-evidently so, having regard to the quantity of the drug, the character of the charge, its maximum penalty and the existence of a standard non‑parole period. 6. However, it is put to the Court there are a number of reasons for not imposing a term of imprisonment that involved full-time custody. The parties agree that I might afford the prisoner a discount of 25% for the utilitarian benefit of the plea of guilty, which I have indicated I will do. 7. Counsel for the prisoner observed, in the context of the facts available, that the prisoner's involvement with the group ultimately involved isolated offending, which I accept. He pointed to a number of mitigating factors that arise under s 21(3) Crimes (Sentencing Procedure) Act 1999. The plea of guilty, which is correct, that the prisoner has good prospects of rehabilitation, a mitigating factor under the subsection, that he was a person of good character without criminal convictions, which I accept, and that he is unlikely to reoffend, which the evidence available to me establishes on balance. 8. Further, it is submitted as a mitigating factor under s 21(3) the prisoner has relevantly expressed contrition as required under subs (i). It notes in the context of those various mitigating factors the reality that the prisoner is leading a positive lifestyle, he has been on bail now for an extended period of time, and shown excellent behaviour and excellent attitude both towards his offending and towards his future. 9. Counsel for the prisoner relied upon the psychological report that was prepared by Mr Borenstein, to which I made earlier reference. I have not dwelt upon that in this respect. But ultimately the psychological report does not point to any psychological condition that could relevantly explain the prisoner's offending. The offending is to be seen in less prosaic terms. He has no evidence of depression or any other psychological or psychiatric "diagnosis". 10. The psychologist opined that a contributing factor to the prisoner's offending in the context of him being from Africa was that he was effectively alone in this country, cut off from this cultural ties and his family and somewhat "directionless", and was attracted into what I no doubt accept to be the somewhat exotic lifestyle of those other offenders who were the architects of the criminal group. The prisoner does have an uncle who lives in Melbourne, but otherwise he is without specific ties in Australia. 11. The material of course provided to the psychologist is largely from the prisoner himself. But as the prisoner gave evidence and adopted the essence of what was in the report by way of background information, it was open to the Crown to challenge him in that regard. The Crown did challenge him of course in the context of a particular part of the report where the prisoner reflected upon his involvement. He told the psychologist that he was involved in "consumer contact and delivery" and that there was "no fixed percentage", and that he was paid depending upon how much was supplied. The prisoner told me that he received $900 for the specific supply in which he was involved. 12. The truth of the matter is, by reference to the consideration of the objective facts of the matter, that the supply that I am sentencing him for involves a quantity of the relevant drug substantially above, of course, the minimum quantity required to establish a commercial quantity of MDMA, which is 125 grams. However the prisoner was not the source for the drugs, he was essentially a messenger boy under the supervision of one of the architects of the criminal group. 13. He passed the drug to the other person. He was exposed obviously in those circumstances and clearly, one would have thought unbeknownst to the prisoner perhaps, that the reason he was exposed was because the architects of the group were concerned to distance themselves from the actual supply of the drug lest they be arrested or identified actually handing over the drug. 14. It is not without some significance, in my view, that Mr Coulaud waited in the car while the prisoner went about negotiating the transaction without physically involving himself in that task. The prisoner received a substantial sum of cash but he clearly, in my view, passed that cash to Coulaud to receive his wages. It can be seen thus that, whilst his involvement in the offence was for "financial reward", the financial reward to him in those circumstances was modest. 15. Counsel for the prisoner drew my attention to a case that was said to provide some comparative sentencing assistance. It is a decision of my brother Judge Mahony SC, delivered on 27 May 2016. The reference is R v Mostapha Ali [2016] NSWDC 173. Mr Ali pleaded guilty to supplying not less than a commercial quantity of MDMA, being 215 grams, and also pleaded guilty to a separate offence of supplying an indictable quantity, 155 grams of methylamphetamine. It is to be borne in mind, of course, that the commercial quantity of methylamphetamine is 250 grams, considerably higher than that for MDMA. There was a matter taken into account on a Form 1. That was for the supply of a very small quantity of methylamphetamine which set in motion the prisoner's contact with the persons who he supplied the larger quantities of the drug to. In relation to that particular offender I note whilst there was a much greater amount of drug involved that offender had some period of pre‑sentence custody, although he had come to sentence from a rehabilitation programme. He was 19 years of age at the time of the offending and had a lengthy history of drug use with a minor criminal history. 16. With regard to that case, and general authorities in relation to sentencing, his Honour took into account, as I do the purity of the drug in determining where an offence fits within the range of offending contemplated. I am mindful of the obligations upon me cast by s 54A(2) of the Act as well as 54B(2) of the Act. In s 54A for the purposes of sentencing an offender, where there is a standard non-parole period, the standard non-parole period represents the non-parole period for an offence in the Table to this Division taking into account only the objective factors affecting the relative seriousness of that offence that is in the middle of the range of seriousness. 17. I have concluded, in circumstances where the prisoner was a messenger, passing the drug for no direct profit other than a fee, where the sourcing of the drugs, and the provision of the drugs, and the receipt of the funds fell to others, as being below the middle range of objective seriousness by a substantial margin, although certainly not at the lowest level of offending of this type. 18. The prisoner's reward, as I have said, was modest. But the modesty of a reward does not necessarily dictate the assessment of the objective seriousness of the offending. It is principally by reference to the quantity and the purity of the drug, and the role of the prisoner as a conduit. He was an active participant in this offence. I accept that to be true. But these matters have to be seen in the wider context of the evidence he gave about his involvement with the group. 19. That judgment of Ali led his Honour to conclude that he would impose a term of imprisonment with an order that it be served by way of intensive correction order. I have noted what his Honour did in that case. But there are too many differences between the two cases to really provide assistance for comparative sentencing purposes. In that regard, whilst comparative cases are of assistance to a sentencing judge, there are limitations to this as the High Court recognised in Hili and Jones in 2011. There is of course the judgment of Basten JA in Gow from 2015 in which his Honour discusses issues relating to the limitations of comparative cases. 20. With regard to the Crown's submissions, the Crown essentially said that I should impose a term of full-time custody and I have had very serious consideration of that submission. It is a matter where, if I had concluded that the facts were capable of establishing what in my view the Crown had to establish beyond reasonable doubt as the Crown contended, I would have been obliged to impose a full time custodial sentence and a somewhat greater sentence than the sentence I will impose. Particularly, having regard of course to the parity issues that arise out of the sentencing of Mr Hannachi. But ultimately, in the context of the Crown's factual analysis which is most helpful, I have not concluded that I should agree with everything that was put although I was initially very attracted to the view that he submitted to me. 21. With regard to the sentencing of the prisoner of course I am required to have regard to the purposes of sentencing under s 3A. There are a range of considerations, practically all of the purposes have some role to play, general and personal deterrence, making the prisoner accountable for his actions and denouncing his conduct, recognising the potential harm that could have been done to the community. Although I note the drugs were not disseminated to the community because of the police involvement in the relevant transactions, and to ensure that the prisoner is, in all the circumstances, adequately punished. But I am also required to promote his rehabilitation on the understanding, of course, that he remains in Australia. Whether he will remain in Australia once he has served the sentence I impose is a moot question. 22. With regard to the aggravating factors that arise under s 21A the facts of the matter I have already dealt with as they may invoke relevant issues that arise under s 21A(1). I have noted that the particular aggravating factor here was the financial reward. But on the other hand very few people are involved in the supply of prohibited drugs for altruistic reasons. It is very much the character of the offending hence the maximum penalties that there is financial reward in such activity. 23. One matter that I have not specifically addressed by reference to the facts as they were prepared is that, unlike practically all the other offenders who are said to be co-accused, the prisoner Mr Micah, when arrested by the police, was not in the possession of substantial sums of cash, nor in the possession of other drugs, nor in the possession of the indicia of drug supply, such as electronic scales, as was the case in Hannachi, resealable bags, log books or ledger books and the like. The prisoner, when he was arrested, provided some information as to the addresses of the people with whom he was connected, particularly Mr Watchou, who was the person who had the most direct contact with the prisoner as I understand it from the Agreed Statement of Facts and the prisoner's evidence. 24. With regard to the Crown's written submissions, I have noted what the Crown has put at para 13, which directly relates to Mr Micah and Mr Watchou. The written submissions of the Crown, in fairness to the learned Crown, are concerned with all the offenders, who have a range of culpability, both moral and legal, and are charged with a range of offences. 25. The way in which the learned Crown Prosecutor sought to characterise Mr Micah was to identify him and Mr Watchou as performing the role of "trusted intermediaries", indicating that they "performed a critical role". I could not, on the Agreed Statement of Facts, conclude in any way that Mr Micah was on anywhere near the same level as Mr Watchou. I would categorise that particular offender, without having heard all that is to be said for Mr Watchou, based upon my reading of the agreed facts, as something of a lieutenant to Hannachi. Whereas this prisoner was nowhere near a "lieutenant". Without stretching analogies too far, he might be seen more as a private rather than anybody of significance within the relevant organisation. 26. The Crown uses the words "critical" and "significant" and "essential" to the broader drug supply operation. I would not categorise this prisoner in that way. I could, in due course, categorise Mr Watchou in that way, having regard to the extensive way in which he is referred to in the facts. 27. The matters arising under s 21A I have dealt with. I note by reference to s 54B(2) of course that in considering the appropriate sentence and in the circumstances of the case, the standard non-parole period for an offence or matter to be taken into account in determining the appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. 28. I am also very mindful of the fact that the scheme of Pt 4 Div 1A of the Act reflects upon the reality that, where a standard non-parole period is available, particularly in the context of a maximum penalty of 20 years' imprisonment, the imposition of a non-custodial sentencing reality would be unusual. Section 54C reflects upon the need for reasons for a non‑custodial sentence being imposed. 29. Of course every judge nowadays, unlike 40 years ago, gives extensive reasons, as there is an obligation for us to do so by reference to legislative authority and decisions of the Court of Criminal Appeal. 30. In the context of what I am proposing, I bear in mind these matters; that I am imposing a sentence of imprisonment which could be activated by the failure of the prisoner to comply with the conditions. I appreciate that there is an inherent leniency in the approach that I take in relation to this matter. But I also appreciate, without citing authority, that it has been said by the Court of Criminal Appeal that the imposition of a sentence of imprisonment to be served by way of an Intensive Correction Order is a more onerous obligation upon the prisoner than an order that could formerly have been made under s 12 of the Act, that is, a term of imprisonment involving suspension of the term of imprisonment. 31. Of course, one of the features of an Intensive Correction Order is that the enforcement of it is now beyond my control and properly so. Whereas in the past, s 12 bonds were referred back usually to the sentencing Judge, although the sentencing Judge had to have regard to s 98(3) of the Act, which is now repealed. There was some area of discretion that might now not be required of the Commissioner of Corrective Services or the Parole Authority in enforcing a relevant order. 32. As I said, this matter has caused me some anguish. It is surprising how matters that are not apparently as serious as other matters that one deals with on a daily basis can cause one to cogitate for longer and more deeply as to the appropriate order. Sometimes the appropriate order will be self-evident with particular types of offending. But here, as I have said, the matter was finely balanced. 33. I did consider, as a matter of being a human being, having to deal with another human being, the situation of the prisoner being in Australia, some distance from his home, essentially without family support. The prisoner made some comment as to his experience in custody being a salutary one, even though he was only there for two days. Of course when Australians hear of their citizens in foreign countries being arrested and charged with criminal offences, there is always a deep concern that our citizens, whatever they have done, will be treated fairly and with mercy, where mercy is available to be given. There are many notable cases where there has been deep concern as to the fact that perhaps Australian citizens have not been treated in the way in which the standards of Australian justice might otherwise dictate. 34. I know nothing of the standards of Kenya. I appreciate it is a sophisticated, civilised African nation with a strong history of independence and the like, inheriting some British traditions. But at the end of the matter it is a question of doing the right thing to the best of one's ability for not only the community and the prosecuting authority, but also for the prisoner, with the understanding of course that those who are deserving of condign punishment, wherever they may come from, shall receive that condign punishment to meet community expectations. In this particular matter, ultimately I have concluded, the wider context of the community expectation might permit the inherent leniency in the order that I have foreshadowed. 35. Could you stand up, please, Mr Micah? 36. Mr Micah, taking into account the matter on the Form 1, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of one year ten months. I have rounded that period down by two weeks. 37. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today, 8 August 2019. You must report to the Community Corrections Office at Mount Druitt on Friday, 9 August 2019, at 10am. The standard conditions apply: 1. you must not commit any offence; 2. you must submit to supervision by a Community Corrections officer. The following additional condition applies: 1. You are to perform 200 hours of community service during the course of the order. 2. If you fail to comply with the conditions of this order, sanctions may be imposed upon you by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions or it may involve revocation of this order. If the order is revoked you will be required to go into custody and serve all or some of the period of your sentence in full-time custody. 3. You are now directed to attend the court registry where a copy of this order will be explained and given to you. 1. HIS HONOUR: Madam Crown, any technical matters? 2. ARUL: I just came into this matter, your Honour, so I just listened what your Honour said about the amount, the evidence he gave about the amount and how much he received. But I have been asked to make an application for drug proceed order in relation to 12,000 - that amount-- 3. HIS HONOUR: No, I can't make that order because the agreed facts do not indicate that he received the money for himself. 4. ARUL: That's right. 5. HIS HONOUR: I understand the reason that you're asking and I think we'd be better to ask for that cash from Mr Coulaud or Mr Hannachi, I would have thought. I don't propose to make an order which would not accord with the facts. I see the point that you make. We don't know what happened to the cash. I'd be prepared to make an order that he pay $900 if that's what he received from the transaction, but that's not precisely what you're seeking of course. 6. ARUL: Yes, your Honour. In that case can we amend the amount and your Honour can sign the order? 7. HIS HONOUR: Well, I don't know, have you spoken to-- 8. SINGH: I'll consent to that, your Honour, $900. I consent. 9. HIS HONOUR: I wouldn't make an order in the sum of $12,000 because I'm certainly not satisfied that he received that cash for himself. There is no doubt that he didn't, in my humble opinion, but I'm happy to make it $900 in the context of the evidence that he gave and the admission he made about that. 10. Your solicitor will explain this to you, it's in the form of a civil debt in effect. You'll owe the State government $900. How that's enforced is a matter for the State government. 11. You've got a motion here, Madam Crown, that's unsigned. You handed up a motion, it's unsigned. What I've got is a statement of facts and circumstances, I don't actually need that really but I'm happy to sign it. But there is a motion unsigned. There is a consent order attached, a short minute of consent order. You don't need a motion, Madam Crown, I'll give you back - the motion is unsigned in any event but I don't need the motion. You don't object to it proceeding without a motion, Mr Singh, do you? 12. SINGH: No, your Honour. 13. ARUL: One other matter I am a bit concerned because he's on a criminal justice visa-- 14. HIS HONOUR: It's not a matter for me, I'm just a humble Judge of the District Court of New South Wales. I am mindful of that background. Anyway I'm mindful of that. The law is that we accept people who are in our country on the basis that they're amenable to justice, that's why we fix non-parole periods. For example, for Chinese drugs smugglers who will never live in Australia, will be deported back to their country of origin once their sentence is finished. We'll put one copy on the file, if we could, just note on the orders perhaps a consent order, forfeit of $900 as proceeds of crime. We'll put one copy on the file and give one copy back to the Crown. Mr Singh, the Crown only gave me one copy for the file and one copy back to the Crown, you'll have to get a copy off the Crown. 15. SINGH: I will, your Honour. 16. HIS HONOUR: Can you leave the dock, Mr Micah. You'll have to go up to level 3 and enter the order up there. Your solicitor will look after you until the order is ready to be signed. ********** 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: 06 November 2019