District Court New South Wales Medium Neutral Citation: R v Khaddam [2019] NSWDC 732 Hearing dates: 5 September 2019 Date of orders: 05 September 2019 Decision date: 05 September 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 4 years, 2 months with a non-parole period of 2 years, 1 month: at [44]. Catchwords: SENTENCING — Penalties — Imprisonment SENTENCING — Aggravating factors — Financial gain SENTENCING — Relevant factors on sentence — Character of offence — Establishing relevant matters — Deterrence — General deterrence SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Rehabilitation — Unlikely to re-offend SENTENCING — Subjective considerations on sentence — Special circumstances — Age of offender — Drug addiction Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Imbornone v R [2017] NSWCCA 144 Lopatinsky v The Queen [2017] NSWCCA 227 R v Achurch (2011) 216 A Crim R 152 R v Qi [2019] NSWCCA 73 R v Qutami (2001) 127 A Crim R 369 R v Taouk (1992) 65 A Crim R 387 R v Thompson [2000] NSWCCA 294 R v Thompson [2000] NSWCCA 294 Refaieh v R [2018] NSWCCA 27 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Mouhamad Khaddam (Offender) Representation: Mr M Reville (Crown) Mr A Djemal (Counsel for Offender) File Number(s): 2018/204984 Judgment 1. Mouhamad Khaddam is a 24 year old man with no previous criminal record who appears for sentence facing a maximum penalty of life imprisonment with a standard non-parole period of 15 years for supplying a large commercial quantity of cocaine under s 25(s) of the Drug Misuse and Trafficking Act 1985. 2. He pleaded guilty at an early opportunity and it is common ground that there should be a 25% discount on the term of imprisonment for the utilitarian value of that plea. 3. It is conceded that a term of imprisonment is mandated here and it is unnecessary for me to consider any alternatives. The sentence of course has to be carried out mindful of the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999. The offender has been in custody since his arrest on 3 July 2018 and it is agreed that the sentence should commence on that date. 4. Although he pleaded guilty to supply, there was no actual supply of cocaine but rather supply of an inert substance as a result of a police operation. By virtue of the extended definition of supply, his attempt or intention to supply cocaine is the basis of his culpability. 5. The detailed facts prepared by the Crown extend over some eight pages of 51 paragraphs and can be summarised as involving a New South Wales controlled operation using an undercover operative known as "Natasha" in June 2018 engaged to supply an inert substance which purported to be cocaine. At the time the offender was 23 years of age and he lived with his family in Marrickville. 6. The operation was conducted jointly with the Australian Criminal Intelligence Commission. A covert operative known as "Marcelo" was also engaged. Marcelo communicated in Spanish via Wickr with a woman using the username "paicitalinda22" who also used Hong Kong mobile phone numbers and the Spanish word "cuadro" which means painting as a code for 1 kilogram of cocaine in the conversations. 7. She proposed that she would arrange someone to purchase a kilogram of cocaine for someone arranged by Marcelo. If that first kilogram was satisfactory, then a further purchase would be made. She proposed that they would exchange photos of the serial numbers of a cash note and then their agents would exchange the cash notes. Marcelo replied that he had 10 kilos available and he would sell all of it to "paicitalinda22" and accept a deposit payment until it had been inspected. 8. Marcelo's role was to engage "paicitalinda22" to purchase cocaine via her intermediaries and agents. Marcelo initially proposed a meeting occurring on 27 June in Tempe and on that day there would be an exchange of photos showing the newspaper from that day and the drugs and money. There was a further negotiation about whether 1 kilogram or 10 kilograms would be provided. It was agreed that 10 kilograms would be provided and a 20% deposit or $200,000 would be paid at that time and the remainder would be paid after the cocaine had been inspected. 9. "paicitalinda22" indicated she would be co-ordinating her agents during the inspection of the cocaine prior to the payment of the remainder. Marcelo sent her a photo of 25 of the one kilogram blocks o inert substance masquerading as cocaine, wrapped in clear packaging with a bull logo. He provided her with Natasha's name. The transaction was agreed to occur on 29 June at the Ikea store at Tempe and she provided the number plate of the white ute that her agent would be driving. 10. On 29 June the ute was parked in the driveway of Mr Khaddam's home. He came out and got in the ute at about 8.27am. At 9.16am Marcelo advised "paicitalinda22" that he was boarding a flight and h would be out of contact for 20 hours. At 10am Natasha entered the café inside the Ikea shop. Shortly after Mr Khaddam drove the ute into the Ikea underground carpark. Further messages were exchanged between Natasha and "paicitalinda22" and Khaddam then drove the ute into the open air carpark. 11. Khaddam went into the café which was the prearranged meeting place. He had not brought the prearranged token with him so he returned to his car and came back and showed her the $5 note with the serial number that Natasha had been given by Marcelo. Natasha showed Khaddam a $5 note with the serial number on it that Marcelo had provided. Khaddam said during a recorded conversation "I've never done this before". 12. He said he knows nothing about what is going on but he said he was able to get in contact with someone who does and he is able to get them there. He went back to his car. There was a dispute because Khaddam had not given Natasha a photo of the money. He then drove out of the carpark and a white Audi joined the ute and in convoy they travelled to Marrickville. Khaddam then drove back to Tempe and parked in another carpark. There was a dispute between Natasha and "paicitalinda22" and at about 11.50am Khaddam left the carpark and went back home to Marrickville. 13. At about 1.30pm a male was seen driving away in the white Audi and Khaddam's ute was parked in the driveway. He was seen leaving shortly afterwards. On the next day Marcelo began exchanging messages with "paicitalinda22" again. On 3 July Mr Khaddam left his home at Marrickville and drove his ute out and stopped it beside the white Audi. A man got out of the Audi and got an item from the rear seat and he put that item on the front seat of Khaddam's ute. 14. They drove in convoy for about ten minutes, arriving at Ikea. Khaddam went into the underground carpark and the other man kept driving. Khaddam then went into the Ikea store wearing a black backpack. The other man stopped in a position where he could see the entrances and exits to the carpark. Natasha drove into the Ikea carpark. She had a suitcase in the boot which contained a towel on top of ten blocks of white substance which was the inert substance but looked like cocaine. 15. She went into the Ikea store and she saw Khaddam and they both left the store and walked towards the ute. She said "What are you picking up today" and he said "I don't know what I'm picking up". She said "So you have no idea" and he said "I have no idea what I'm picking up, I've told you that a million times". As they were walking along, she handed him the same $5 note she had shown him on the last occasion and he compared the $5 note to an item on his phone and then he handed her the same $5 note. 16. He started his ute, reached around and picked up a dark bag and withdrew a white plastic bag from that and put it on the passenger seat. She walked over and saw multiple bundles of hundred dollar notes inside the bag.The total amount of the money in the bag was $195,000. Khaddam drove his ute out and stopped beside her car. She took the suitcase out of the boot and he said "Show me, show me, open it, just open the thing, I can't see nothing". She said "You'll have to get out and come and have a look". 17. She said "So you reckon you don't even know what you're looking for" and he said "No". So she moved the towel on the suitcase aside so that you could see some of the blocks containing the white powder. He said "All right sweet". She put the suitcase on the floor of her car and took the bag containing the money and drove away. The transaction was completed about 10.28am. 18. Natasha then received a message from "paicitalinda22" saying 'good morning, you met the boy'. 19. Khaddam drove away from Ikea and the man in the Audi joined his vehicle in convoy. They drove to Marrickville, and stopped for about a minute in Maud Lane About ten minutes later both vehicles stopped in Charlotte Avenue in Marrickville and Khaddam discarded the suitcase with the ten blocks still in his possession, and that suitcase was later recovered by police. 20. He then went back to Brereton Avenue. Inside the house he took the black backpack and five of the blocks inside with him. He opened one of the blocks and sent photos of the substance to "paicitalinda22" and she sent them on to Marcelo to complain about the quality. 21. About 11am the man in the white Audi was stopped by police in Marrickville and taken away. He declined to answer any questions. A Samsung phone was seized from the front of the Audi. 22. At 12:10pm Khaddam left his home carrying a black backpack. The police car activated its warning lights. Khaddam fled, running off into a neighbouring property. They found him in the bedroom of [ADDRESS REDACTED FOR PUBLICATION] and arrested him. A Samsung phone located on him. He was led outside the residence where his father was at the front door and he called out to his father "sorry, Dad, I fucked up". 23. He had a conversation with the police and they said, "Where are the blocks, what did you do with the bag?" He said, "I don't know I panicked and I threw them, I don't know where." 24. It was put to him that he was involved in the supply of an illicit substance purporting to be cocaine. He said, "I wouldn't have a clue what the substance was. I don't know nothing. No comment." 25. Later on he asked police to repeat the allegation. The interviewer said "I said 10 kilos of a substance". He said, "Yeah I didn't know it was 10 substance, I didn't know that." The officer said, "What did you think it was?" He said, "I don't know" and he otherwise declined to answer questions. 26. The Samsungs from the Audi and Khaddam were identical. They contained identical SIM cards from overseas. They were encrypted and could not be analysed. The black backpack was in the ute and contained five of the blocks supplied by Natasha. One of the bocks had been cut open and placed inside another bag. Another backpack was located in Khaddam's ute which contained another bag with five of the blocks provided by Natasha, and the five dollar note was found inside Khaddam's home. 27. Marcelo and "paicitalinda22" continued to have discussions in the days following the arrests. In one message she said "the boy (meaning the man in the white Audi), gave the money to a boy (Khaddam) who told the girl (Natasha)". Mr Djemal, for the offender, says that that shows that Khaddam was not in direct contact with "paicitalinda22". 28. The history and subjective matters are set out in the Sentence Assessment Report, a lengthy report of Dr Pusey, a psychologist, and references from a number of family members. Although the history is untested and unchallenged are not adopted in evidence and is therefore treated with caution as suggested by cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 369, the history is relevantly consistent with other material and appears to be a reasonable basis upon which to proceed. 29. The Corrective Services Record was tendered and note a number of institutional misconduct charges while he has been in custody, including possess prohibited drug, fail prescribed drug test and fail to attend muster. There are notes on 30 August and 2 September which purports to be an explanation by the offender of the reason for his involvement in the offending but given the unusual circumstances in which those histories are recorded I do not attach any significant weight to them and certainly do not make any adverse findings on the basis of those histories. 30. He told the author of the Sentence Assessment Report that he needed to support his substance dependence and that was why he was involved in the offending, but he took full responsibility for his actions. He said that he was using cocaine on a daily basis and he was dependent on it, withdrawing, and experiencing withdrawal symptoms. He said his drug suppler organised for him to commit the offence in return for an amount of cocaine. The report looks favourably to the future and assesses him as being at a low to medium risk of reoffending and provides the academic assessment in these circumstances, that he would suitable for community service work. 31. I take account of the references from his two sisters and his brother which set out the family history and the difficulties that Khaddam experienced following two traumatic events, namely, the passing of his young brother in Syria in August 2010 and a serious car accident in 2013 leading to continued disability, however they do notice a very positive change in him on their visits and in his daily calls from custody. He certainly has strong family support. 32. Dr Pusey opines that continued engagement in substance use in response to his untreated mood, anxiety and trauma pathology provides the most likely explanation for his offending behaviour, and a possible contributing diagnosis was substance use disorder, noting a number of specific symptoms consistent with that hypothesis leading, in my view, to a modest reduction in moral culpability as submitted by Mr Djemal. Dr Pusey also looks favourably on the question of rehabilitation and risk of recidivism. 33. Ultimately, I accept the Crown submission that the objective seriousness of the offending falls between the low and the mid-range, perhaps more towards the low range for the reasons that will be identified. 34. The Crown acknowledges that it cannot establish that he knew that an arrangement had been made for the purchase of 10 kilograms of cocaine but there is certainly sufficient evidence to establish that he knew that he was purchasing well above a kilogram. Similarly, the Crown acknowledges that it cannot prove that he knew he was providing $195,000 for the purchase of cocaine, but there was enough to show that he was providing a large amount of money because the money was visible inside the plastic bag. 35. As to the conduct of the offender and the role of the offender, key aspects identified by the Crown are that the substance was contained in clear packaging; he saw more than one of the 1 kilo blocks; a suitcase was required to carry all the blocks; he took the cocaine to his house and opened one of them and sent a photo of the contents to "paicitalinda22", adding weight to the inference that he was instructed prior to the transaction. As the Crown notes, he admitted to Dr Pusey that he had regularly obtained cocaine and other prohibited drugs throughout his life, and he was not a naïve participant in the transaction. The Crown accepts that he was acting on the direction of others throughout the transactions. There is an inherent level of planning involved in supplying a large commercial quantity and the Crown does not put that this is an aggravating factor, other than to a very modest extent. 36. There is a debate in the helpful written submissions as to the conduct of law enforcement authorities, in the light of cases such as R v Thompson [2000] NSWCCA 294 and R v Taouk (1992) 65 A Crim R 387. As the Crown points out, the evidence shows that by the time Khaddam met Natasha, he had already determined to participate in the purchase of well over a kilogram of cocaine and the conduct of the authorities was the trigger for an existing criminal network, that the offender being willing to involve himself in this network. The Crown points to R v Thompson [2000] NSWCCA 294 and distinguishes it. Although Mr Djemal points to what was said by Badgery‑Parker J, at 404, in R v Taouk (1992) 65 A Crim R 387, that it is not necessary for the offender to satisfy, the but for test, but rather "whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would have not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability." 1. This is a difficult situation which does not bear any precise analogy to R v Thompson [2000] NSWCCA 294 or R v Taouk (1992) 65 A Crim R 387 It is more between the two, but there is continued involvement of the police operatives and a limited basis for reduction of moral culpability on the basis of those authorities. 2. As Mr Djemal points out, and as the Crown acknowledged, the offender was acting on the direction of others and could not be said to be trusted by others higher up in the hierarchy as the white Audi appeared to be travelling in convoy with the offender throughout his involvement. In a simplistic way, Mr Djemal's description of the totality of his involvement as being to attend a location with money in exchange for drugs, so that his involvement was for a short time under the direction of others who monitored his conduct from a distance, is a shorthand description of the facts to which I have referred. One cannot take that shorthand description as the final word on his involvement in this serious offence. 3. A number of mitigating factors identified by counsel for the offender are not the subject of challenge from the Crown. 4. As to whether loss or harm, or damage, was substantial, the authorities including R v Achurch (2011) 216 A Crim R 152, demonstrate that the fact that there was no possibility of real drugs being disseminated into the community was not a matter to be given any great weight. 5. His record of lack of previous convictions is, of course, taken into account. His prospects of rehabilitation and his prospects of re‑offending are favourable. He has demonstrated remorse and pleaded guilty. It is clear that the offender at least expected to be paid by way of receiving prohibited drugs. 6. His good character does not, as the authorities indicate, abrogate the need for a significant element of public deterrence, involved in the sentencing process. There is no challenge to the finding of special circumstances, due to his young age, his need for long term supervision and counselling, and treatment for drug addiction, and the fact that this is his first time in custody, so that he would benefit from an extended period of supervision. 7. The Crown has pointed to a broad range of statistics which are of some assistance even though they are often described as a blunt tool, and in particular, taken me to Lopatinsky v The Queen [2017] NSWCCA 227 and Refaieh v R [2018] NSWCCA 27, and Mr Djemal took me to R v Qi [2019] NSWCCA 73 a recent Crown appeal, and I have considered the circumstances and the outcomes in each of those matters. 8. The orders that I make are: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 4 years 2 months, to commence on 3 July 2018. 3. I impose a non-parole period of 2 years 1 month, expiring on 2 August 2020. The offender is eligible for release to parole on that date. 4. I find special circumstances. Note – These extempore remarks were revised without access to the court file ********** 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: 05 December 2019