District Court New South Wales Medium Neutral Citation: R v El Sage; R v Khoury [2019] NSWDC 826 Hearing dates: 13 September 2019 Decision date: 20 September 2019 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: El Sage – Total sentence 4 years 9 months imprisonment; total non-parole period 2 years 9 months. Confiscation of proceeds of crime in the sum of $3250 No action on breaches Khoury – Total sentence 4 years 3 months imprisonment; total non-parole period 2 years. Confiscation of proceeds crime in the sum of $3250 Drivers licence disqualification 6 months Catchwords: CRIME – Sentence – supply prohibited drug – cocaine – breaches of conditional liberty – undercover police operation – agreement for offenders to supply undercover operative with large commercial quantity of cocaine – arrested upon delivery – substance later analysed and no prohibited drugs were identified – both offenders have extensive criminal histories –– not organised network – joint criminal enterprise – offended for financial gain – totality of criminality – special circumstances - both need professional assistance with rehabilitation. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985. Cases Cited: Casella v R [2019] NSWCCA 201 De La Rosa v R [2010] NSWCCA 194 Inbornone v R [2017] NSWCCA 114 Kearsley v R [2017] NSW CCA 28 Kijurina v R [2017] NSWCCA 117 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v R (1988)166 CLR 59 Muldrock v R [2011] 244 CLR 120 Parente v R [2017] NSWCCA 284, Postiglione v R (1997) 189 CLR 295 Qutami v R [2001] NSWCCA 353 R v Bugmy [2013] HCA 37, R v Engert (1995) 84 ACrimR 67, R v Israil [2002] NSW CCA 255 R v Jimmy (2010) 77 NSWLR 540 R v Kalpaxis [2001] 122 ACrim R 320 Vu v R [2006] NSWCCA 188 Category: Sentence Parties: Regina (Crown) Mohammed El Sage (offender) Anthony Khoury (offender) Representation: Counsel: Ms Ghabriel (offender El Sage) Mr E James (offender Khoury) Solicitors: Ms D Mansour (DPP) File Number(s): 2012/00270265; 2018/002139332016/00218418; 2018/00213942 Publication restriction: No Judgment 1. The two prisoners appear today before me for sentence in relation, effectively, to two common charges, although there are some, if I could call them, "peripheral matters" that I am required to take into account. Both offenders appear before me in relation to a charge of supplying a prohibited drug, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 which offence was committed on 9 July 2018 at Lilyfield involving 27.9 grams of cocaine. The maximum penalty for that offence is 15 years imprisonment and/or a fine of 2,000 penalty units. If dealt with in the Local Court, as these matters can be nowadays, the maximum penalty is two years imprisonment. 2. The second principal count for which they are to be sentenced is an allegation that they each of them, between 8 July 2018 and 13 July 2018, at Lilyfield, did agree to supply an amount of a prohibited drug, namely cocaine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. This is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. It carries a maximum penalty of life imprisonment and/or a fine of 5,000 penalty units. This offence, as opposed to the other offence, has a standard non-parole period of 15 years imprisonment. 3. In the case of Mr El Sage, I am required to deal with breaches of bonds that were ordered in the Local Court. I will come back to those matters shortly. I indicate from the outset that in respect of Mr El Sage, while there are clear breaches established, the offences for sentence come within the period of time covered by the s 9 bonds. I propose to direct no action on those bonds, primarily because I have taken into account that breach of conditional liberty in fixing the appropriate sentence for him. 4. In relation to Mr Khoury, there is an offence on a s 166 certificate of driving a motor vehicle whilst his licence was suspended. This is a matter that has a penalty of six months imprisonment and/or a fine of 30 penalty units with a mandatory licence disqualification of six months or a minimum period of three months disqualification. In respect of that matter, it is so minor in the scheme of things, in my view, I should impose a term of imprisonment commencing today of three months and I fix a period of disqualification for six months, which will presumably start running when the prisoner is released on parole. 5. In relation to both offenders, they were in breach of conditional liberty at the time of the commission of their offences. Mr El Sage, as I said, was in breach of s 9 bonds that were ordered for a period of 18 months at the Parramatta Local Court on 29 March 2017. I have read the papers in relation to those matters. They are not inconsequential matters but, as I said, for reasons associated with the relevance of the breach of conditional liberty to the sentencing exercise, there is no further penalty to be imposed in relation to those matters. 6. Mr Khoury was on parole at the time of the commission of the offences with which I am concerned. His parole was revoked and he had to serve a balance of parole of one month, 29 days. That commenced from the date of his arrest on 11 July 2018, the same date as the arrest of Mr El Sage. He was also in breach of bonds for minor matters. 7. I propose to start the relevant sentences I impose upon Mr Khoury from8 August 2018. I have taken into account the breach of parole as an aggravating factor in the sentencing exercise, as I must. The balance of parole that the prisoner was required to serve is fairly marginal but I believe I should not date the effective sentence from the expiry of that balance of parole, in accordance with many cases that have discussed the desirability of not double dipping on that matter. Likewise the breach of bonds is an aggravating factor. 8. So far as Mr El Sage is concerned, the sentence that I impose will commence from the date he came into custody, 11 July 2018. 9. I point out, as it might be relevant in the scheme of things that Mr Khoury was born in 1982. Mr El Sage was born in 1980. The difference is age of approximately two years and a month and a half is of no significance in the matter, given the fact that at the relevant time of the offending both offenders were men in their mid-thirties. 10. The facts in relation to the men are essentially common. There is a statement of agreed facts. However, in the bundle relating to Mr Khoury there was a transcript included of the recorded conversation between the two men and the undercover operative that led to their arrest. I will come back to discussing that transcript in the context of some things that were said by Mr El Sage's counsel at the heel of the hunt last Friday when the matter was before me. 11. In July 2018 police were conducting an investigation in relation to Mr El Sage and his associates. As part of that investigation, an undercover operative by the name of "Tom" was communicating with Mr El Sage via text message. The man Tom and Mr El Sage made arrangements between 6 and 8 July to meet on Monday 9 July. On 9 July the person Tom, spoke with Mr Khoury and Mr El Sage in relation to where and when to meet. He, the undercover operative, drove to Mary Street, Lilyfield and was sitting in a carpark outside Leichhardt Oval when the two prisoners arrived in another car. Both went over to talk to the undercover operative. Mr El Sage got in the front seat of Tom's car. He removed a plastic freezer bag from his pocket containing cocaine and gave it to Tom. Tom placed it in a container and then he and Mr El Sage got out of the vehicle where they were joined by Mr Khoury. 12. Tom retrieved $6,500 from the car, which was in a container, which was opened to show to the two offenders. Mr Khoury took the money whilst a conversation was occurring in relation to that and the men separated. The cocaine was later analysed. It weighed 27.9 grams with a purity of 79.5 per cent which is, self-evidently, a very high percentage of purity. 13. The second offence, the offence that carries life imprisonment as a maximum penalty and a standard non-parole period of 15 years, was an agreement to supply a large commercial quantity of cocaine. The two men, 14. Mr El Sage and Mr Khoury, were involved in discussions to Tom. They agreed to supply him with 2 kilograms of cocaine. They negotiated a price of $200,000 per kilogram. That was potentially a sum of $400,000 required to fulfil the agreement. 15. As I said, I have read the transcript which is an annexure to the facts in relation to Mr Khoury, but not tendered in the bundle relating to Mr El Sage. I will come back to the detail of that transcript when I distinguish between the two men. 16. There was an agreement to meet up and the facts set out the circumstances of communications between Tom and the two prisoners. Ultimately, the two prisoners, unknown to them of course, were under surveillance by the police and they were followed in the Punchbowl area. They wound up in a motor vehicle being driven by a relative of Mr El Sage, who was charged in relation to this matter but ultimately was not prosecuted. 17. Tom drove to the carpark at Leichhardt Oval or near Leichhardt Oval on 11 July. There was a conversation with the two prisoners and Tom which was recorded. Mr El Sage indicated to Tom that the cocaine was in the second car. Mr Khoury retrieved a green enviro bag from his vehicle, whilst Tom went back to his vehicle. Mr Khoury placed the green bag on the passenger's seat of Tom's car. There were in the bag, two vacuum sealed bags containing rectangular blocks of powder, being the purported cocaine. 18. The rectangular blocks were later analysed and determined to weigh a total of 2.376 kilograms but no prohibited drugs were identified. However, I would imagine the fact that they are a third of a kilogram over the 2 kilograms agreed might have set off an alarm signal that there might be something wrong with the package, given the price for 1 kilogram of cocaine. 19. Be that as it may, shortly after Mr Khoury placed the bag inside Tom's car police approached all three people and placed them all under arrest. All the conversations between the prisoners and Tom had been recorded by way of audio surveillance. When Mr Khoury was conveyed to the police station he admitted to meeting with a male person on 9 July, along with Mr El Sage. He also agreed that he had met up with the same person on 11 July, along with Mr El Sage, but he declined to comment in relation to the allegations of supplying drugs. He identified himself from surveillance photographs and claimed that he did not know that he was suspended from driving. As I said, the 18 year old youth was allowed ultimately to go after initially being charged. 20. With regard to Mr El Sage, that prisoner when arrested had in his possession a small amount of methylamphetamine. This weighed 6.02 grams with a purity of 74.5 per cent. He denied previously supplying any cocaine on 9 July. He said that he "couldn't remember" and his mind had gone blank. When it was suggested that he had agreed to supply 2 kilograms of cocaine on 11 July, he said, "I didn't supply nothing." "You're telling me that that's cocaine, is it?" 21. With regard to the methylamphetamine, he admitted to being a methylamphetamine user. He said he "put his hand up for that one" and said the methylamphetamine was for personal use. He said his relative had nothing at all to do with what had happened. 22. Both men, as is obvious from what I have said about their breaches of conditional liberty, have criminal histories. Mr El Sage's criminal history is considerably longer and more extensive than Mr Khoury's, although 23. Mr El Sage's criminal history does include many driving matters, not that driving whilst disqualified is not a serious offence, particularly if one repeatedly does. As I understand it, Mr El Sage is disqualified as a result of orders made by courts over a number of years until the 2030's. 24. I do not propose to go in detail necessarily through his criminal history. It is presented to me, as these criminal histories are, in a non-chronological form. I despair what judges are expected to do with material that is dumped on them in such an unintelligible fashion. But Mr El Sage, whose criminal history says he was born in 1981 although the Crown coversheet says 1980, has appearances in the Children's Court going back to 1997 and regular appearances largely, to be reasonable about this, in the Local Court over the years since he has turned 18. 25. In relation to offences of driving whilst disqualified, he has been sentenced to periodic detention, he has been given bonds, he has been sentenced to terms of imprisonment that were suspended and terms of imprisonment with non-parole periods. He has other convictions in relation to possession of prohibited drugs and the use of prohibited drugs, which are consistent with the history he has given the psychiatrist. He has convictions additionally for stalking and intimidating. The offences that were the subject of bonds at the time of the offending with which I am concerned involved a reasonably serious example of intimidation. 26. I have not counted up all of his drive whilst disqualified matters. But to give some measure to those offences I bear in mind, albeit that he appeared at the Parramatta Drug Court in 2011, that for a driving whilst disqualified matter in 2007 he was sentenced to 20 months imprisonment with a non-parole period of three months. I note in that regard, as it be relevant to the assessment of his prospects of rehabilitation, that he has been through the Drug Court process in accordance with the material available to me. 27. The prisoner has convictions in Western Australia. In fact, one of the interesting things about the Sentence Assessment Report is that he sought to explain away a gap in his offending as reflecting something favourable when, in fact, the reason for it was he was in prison in Western Australia. He was dealt with on 29 April 2014 for offences, as I understand it, that were committed in late 2012 through 2013. Those offences being respectively aggravated burglary, two attempts to pervert the course of justice and possession of a prohibited drug with intent to sell/supply that drug, the drug being methylamphetamine. 28. I bear in mind the quantity of that methylamphetamine was actually less than the quantity of the cocaine with which I am concerned in Count 1 and had a purity of 4 per cent. It was really "street amphetamine", nothing of great significance. 29. However, the prisoner was sentenced to four years imprisonment to date from the date he came into custody, on 18 November 2012 and he was given a 10 month sentence in relation to the drug offence. He was given a 20 month sentence in relation to the aggravated burglary and related offending. In respect of the two attempts to pervert the course of justice he was sentenced to 18 months imprisonment. 30. The remarks on sentence in that matter were supplied to me overnight by the Crown. I have read the facts in the matter. I note in Western Australia the Crown Prosecutor gets up and reads the facts to the judge. It would take us forever to get through sentence matters in New South Wales, if that was done here but at least we would have them before us in circumstances where we did not have to absorb the facts in our own time. 31. The judge's assessment of the seriousness of the various offending is entirely a matter for him and I make no comment about that. I have already referred to the facts of the drug offence. His Honour seemed to take a stronger view in relation to the attempts to pervert the course of justice than the home invasion matter. The home invasion matter had something of a background, albeit that the prisoner was, at the time of breaking into the house, looking for a firearm that apparently belonged to another person. 32. What I found of some importance in this sentencing exercise was the finding of the sentencing judge on the evidence before him based upon medical evidence available at that sentencing exercise that the prisoner was a person who suffered from what was diagnosed by "Dr Hall" to be a "post-traumatic stress disorder". I will come back to the psychiatrist's report that was tendered in these sentencing proceedings. But, if it stood alone I would have been inclined not to be able to accept the diagnosis. Not that I doubt the diagnosis was available on the symptoms claimed by the prisoner. Depending only upon the prisoner's account of his symptoms to my mind would not be sufficient for the court to be satisfied of the existence of the condition. But, having read the passages from the reports that were tendered before the Judge, I have reappraised the psychiatric material that is available to me. 33. With regard to Mr Khoury's criminal history, it is not as extensive, as I have said. He, however, was on parole at the time of the offending. His first conviction was in 2006, a firearms conviction for which he was fined. He was charged in 2006 for possessing a loaded firearm in a public place for which he was ordered to serve community service. If that offence was committed in 2019, one would expect a term of imprisonment would be imposed. Although it was dealt with in the Local Court and it was his first offence. 34. Relevant to the matters with which I am concerned he was convicted in February 2017 of "supplying a prohibited drug". That was dealt with in the Local Court and he was given a s 9 bond for two years and he was also convicted and placed on the same length of bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 for "dealing with property suspected to be the proceeds of crime". 35. He was dealt with at the District Court at Parramatta on 15 August 2017 with demanding property in company with menaces. This was an offence committed in November 2016. He was convicted. He was sentenced to one year and 10 months imprisonment to commence on 9 November 2016 with a non-parole period of 11 months, expiring thus on 8 October 2017. He also has a conviction for possessing prohibited drugs at Bankstown Local Court in 2015 and again in 2016, which is consistent with the history he gave of being a drug user. 36. One other matter that is worthy of note in relation to both of the prisoners is that the prisoner Mr El Sage has what appears to be a lengthy number of findings against him whilst in custody for breaches of prison discipline or rules. However, ultimately, they are matters I cannot hold against him, so to speak, in the context of the different standards of justice that apply in relation to those matters that apply in the courts. In relation to Mr Khoury, I have been provided with the facts in respect of past offending and I have taken them into account. 37. To turn again back to Mr El Sage, in the material tendered in this Court I have the details of the matters involving the offences of intimidation. 38. So far as he is concerned, as I said earlier, I have a Sentencing Assessment Report. It is not a particularly favourable report. His prison history of "institutional misconduct" is noted. He gave some details of his background, of family abuse and hardship. He referred to the support of his mother, although his mother is a "banned visitor" due to the introduction of contraband to the offender in May 2019. 39. He referred to his relationships and his children. He and his current partner, according to the report, have no dependants, although he has three children to other partners. He told the Community Corrections officer that he planned to return to live with his mother and younger sisters in the Parramatta area on his release, which is somewhat at odds with the statement made by his partner. 40. He has had limited education. He struggled at school. He recalled a record of poor behaviour and subsequent expulsions. He has enrolled in spray painting training but did not complete that training. He has had some employment but it has been sporadic. He hoped to secure employment with a family member upon release and one day hoped to operate his own excavating business. 41. So far as factors relating to offending, I bear in mind the report refers to a history of "anti-social behaviour", his lengthy history of traffic offending, particularly his failure to comply with orders that disqualify him from driving. He has other convictions for dishonesty and drug use and drug supply. He failed to disclose, as I said, his interstate convictions. They had to be found through other means. He tried to explain away a "gap" in his offending as representing some change in his attitude. He recorded "non-compliance with most of his past penalties" and poor co-operation with institutional authorities. 42. He claimed that he was not "thinking straight" at the time of the offences. He said that he had lapsed into daily drug taking following an incident where his mother lost her fingers while cleaning a mincer in February 2018 and her sad injury is confirmed in other material. He said this was a significantly traumatic event for him. But he also talked about heavy gambling at the casino, losing a significant amount of money and being approached by "an associate" at the casino who asked him to supply drugs as an opportunity to solve his financial problems. One of the difficulties with that account, let us assume for the moment that it is true, is that the circumstances of him supplying drugs to "Tom" occurs on the facts available to me through the contact between he and Tom, not as a result of a direction given by a third party. 43. He noted his associations in the past have led to previous offending. He noted his history of drug use and relapses. He had interventions, including the Drug Court and a residential rehabilitation program, but these have been unsuccessful. He has been found in possession of drugs, albeit not quite prohibited drugs, whilst in custody. 44. His financial circumstances are difficult, both as a result of being unemployed and with problematic gambling. He claimed that for a few months prior to his arrest he gambled close to $300,000, having heavily borrowed money from his mother, wife and criminal friends. 45. The diagnosis of the psychiatrist, which I will come to in a moment, is noted. He claimed that he used drugs to stabilise his "mental health" but also recalled no prior history of mental health "assessment or treatment". 46. He noted the effect of upon his family of his behaviour. He is recorded as being unable to see through past commitments and having a lack of success in co-operating with the Community Corrections Services. His behaviour when subject to Community Service Orders was recorded as being "unreasonable", with breach action being taken. He has, effectively in relation to supervision, a pattern of non-compliance under these various orders that have been made. One could, if one wished, decline to make a finding of "special circumstances", on the basis that he is unlikely to benefit from any extended supervision. But I have been prepared to make that finding, which I will come to in a moment. 47. Whilst subject to parole supervision in New South Wales, he committed the offences in Western Australia and there was an execution of a Parole Authority warrant on his return from Western Australia. In 2017 he was assessed as being at "medium risk" of reoffending and there is a supervision plan proposed including a large range of matters to be addressed, including drug and alcohol counselling, gambling, counselling, attempts to address if it can be addressed, the effects of post-traumatic stress disorder and other issues. He certainly has profound issues that require addressing. 48. With regard to Mr Khoury's situation, I have the breach reports relating to his breach of parole, which is self-evident. His parole was revoked. His response however, to supervision before the commission of these offences, had been described as "satisfactory", which I have taken into account in his favour. The Parole Authority would have no option, in the circumstances, other than to revoke his parole and did so and he is required to serve that period I outlined. 49. Mr Khoury was interviewed, apparently at the Long Bay hospital. The reasons for that are not particularly made clear to me. He had some history of stable employment, which his criminal history somewhat supports. However, he was on Centrelink benefits at the time of his offending. He is described as having a "limited history of anti-social behaviour" and his conduct in the past bringing him before the courts is related to problematic drug use. 50. Mr Khoury maintained that his co-offender was the primary instigator of the offences and that his role was to effectively, "drive the vehicle" and "be the muscle". Of course, when the second offence was committed he was not driving any vehicles. I hasten to say, in a legal and practical sense, his claim of being the "muscle", can only be taken into account in relation to him. It cannot be taken into account in relation to Mr El Sage, because it is admission against interest not made in the presence of Mr El Sage. 51. The prisoner's problematic substance abuse over many years is reflected. He had a chaotic period on his release to parole in 2017, confirmed in a reference from his partner. He was homeless for a period of time. She says in her reference to the court, confirming this, that for a period of time he was living in her car, with no home of his own. Bearing in mind that there are aspects of his upbringing which might explain that situation, he showed a willingness to be subject to supervision, undertake community service work if required and he is assessed at medium risk of reoffending. He claimed that he had been involved in the offence, due to promises of payment. It goes without saying, had the deal gone down, subject of course, to the person being ripped off not being a policeman and not being armed and not shooting the two prisoners if they found out it was not cocaine, both men stood to share in $400,000 if they had got away with the crime. 52. I will come to their respective subjective cases, if I can call them that, separately. One of the difficulties with a sentencing exercise of two men is that it takes longer. I appreciate that. One man is not interested in the circumstances of the other. But all the relevant material needs to be addressed. 53. Firstly, in relation to Mr El Sage, I have the psychiatric report from a Dr Dayalan. As I said, it sets out details of the prisoner's personal history, history of physical abuse and his experience of domestic violence and his upbringing. It deals with his life growing up in Sydney. He has an older brother, an older sister and three younger sisters. As I understand it, the younger sisters have substantial developmental or cognitive disabilities. 54. The assessment of the matter included a consideration of the prisoner's partner's medical history, which is set out in considerable detail in an affidavit from her and annexures to that affidavit. It also is reported, as confirmed by medical evidence, that the prisoner's mother suffered a horrendous injury to her fingers, which I will come to shortly. 55. The opinion of the psychiatrist was, having regard to the symptoms claimed by the prisoner, that the prisoner in his history and presentation, suffered from "post-traumatic stress disorder", as per the criteria in the "DSM 5" publication. He has not received any treatment for this condition. It is of some importance however, to note that this was a condition diagnosed at the time of his sentencing in Western Australia and it is the case that nothing has been done by the prisoner to address the matter. He must have been aware of the diagnosis. He would have been sitting in court when the judge there read from the relevant report. It is said that his early life and his emotional distress have, "predisposed him to developing cannabis and stimulant use disorder". He also has a problem of gambling behaviour. He had a number of stressors at the time of the offence; his mother's injury, which was some months before, the relationship with his partner and the strain of his gambling behaviour. It was submitted through the opinion of the psychiatrist that it was 'very likely', that Mr El Sage's cognitive function at the time of the offences, was impaired by his post-traumatic stress disorder, with depressive symptoms and substance abuse disorder. This analysis by the psychiatrist is very difficult to accept. You only have to read the transcript of his conversations and the circumstances of the offending to doubt that cognitive function was so profoundly affected. It is noted that his condition may be exacerbated whilst in custody. The prisoner expressed some regret for his conduct. It was not immediate or timely. In fact when he was interviewed by police, although he was not bound to make any admissions, he would appear to me to be defiant, claiming that he knew nothing about the supply of cocaine. The psychiatrist indicated that the prisoner would be prepared to undertake drug and alcohol rehabilitation programs. However I note in relation to that aspect that the prisoner has already undertaken those programs and been through the Drug Court, apparently not with any success or any long term success. 56. I have an affidavit from his partner. She gives an address in Western Australia. She is a mature woman. She has no prior criminal convictions. She has chronic congenital heart disease and I accept that to be so from the material that is annexed to her affidavit. She married the prisoner on November 2016. He did attend upon appointments she has with her cardiologists. It was suggested at one stage that she should have a heart/lung transplant, but that has not been possible. She moved to live with the prisoner in Sydney. It was, as I understand it from the evidence, in early 2018 the prisoner's mother had that terrible accident which required a hospitalisation. The prisoner has a close relationship with his mother, which I respect and it is a matter that has affected him. She claimed that the prisoner began "spiralling and using drugs regularly" after that event. It must be fairly said, this is not a unique circumstance for the prisoner as his criminal history and his appearance in Western Australia and his Drug Court history reflects. She saw what she said was some deterioration in him, prior to going into custody. She says that whilst in custody he has reassured her that he has stopped using drugs and he is expressing to her a wish to try and assist his mother. So far as the younger sisters are concerned, the mother has struggles in caring for them. She asserts that the prisoner had "largely carried the heavy burden of the care of his younger sisters" for his mother. That assertion is difficult to accept in the context of his various incarcerations over a number of years and his behaviour that has caused him to go into custody. I note her health issues are severe and chronic. The prisoner is concerned about her welfare and I understand that to be so. It must be a very distressing matter for him and I accept that she is prepared to support him on his release. There is very extensive medical evidence provided by her in relation to that matter. 57. The other material I have is an affidavit from the solicitor of the prisoner. That affidavit tells me the prisoner, because of an escape from police custody in the early 2000s, is a category E1 or category E2 inmate and that, as a consequence of being such a category of inmate, he is restricted in his classifications, his access to programs and the like. He believes that Mr El Sage is currently under an E1 classification and I note the appended material setting out the restrictions and circumstances of such classification. I also note the chronology that the prisoner's solicitor has provided to me. 58. With regard to the prisoner's mother, apart from her hand injury, she has other significant health problems, diabetes and high blood pressure, and congenital heart disease. Difficulties for her in caring for her children who have congenital disabilities are obviously no doubt profound. The prisoner has other siblings. He is not the only surviving sibling able to assist and as I said earlier, it can be fairly said that the circumstances of his sisters, sad as they have been and must be for everybody, have not prevented him from offending and finding himself in custody from time to time. 59. With regard to Mr Khoury's case, the material relating to him comprises a psychologist's report and the reference from his partner. The psychologist is Mr Awit. He sets out the history of a prisoner, in general terms, I am prepared to accept. In that regard, of course, I note, as all judges note or they should note in these circumstances, bearing in mind this prisoner did not give evidence before me, as with Mr El Sage, the circumspection one must exercise in considering hearsay representations coming from persons those hearsay representations are not being tested. In that regard I particularly note the decision of Qutami [2001] NSWCCA 353 and also a more recent decision of Inbornone v The Queen [2017] NSWCCA 114, particularly [57]. You only have to sit here and do hundreds of sentence matters to see, in the vast majority of cases, reports tendered to you solely based on the representations of the prisoner, with no supporting evidence, no contemporaneous observations, no past history of medical treatment or analysis, to understand the circumspection one is required to exercise in taking as acceptable diagnoses that appear to come "out of the blue". 60. That having been said, in relation to this prisoner, he has had a very sad upbringing. I do not propose to go through the details of it. I do not wish to embarrass anybody that is appearing for sentence. But he lost his mother when he was eight and he had a very complicated relationship with his father, who died when he was 20. He has had a great deal of difficulty being settled and had little family support. He left school, as did Mr El Sage, at an early stage in year 8. He did undertake, or commence, a carpentry apprenticeship. But it would seem, in the absence of family support, that he was unable to continue that although he has had a degree of employment. He has had other issues. A broken relationship on his release from custody on the last occasion. 61. The psychologist undertook an examination of the clinical condition of the prisoner and he applied some limited psychometric testing. He concluded, based upon his clinical examination and the limited psychological testing, that the prisoner, at the time of testing, was reflecting very severe symptoms of depression, anxiety and stress. Part of that of course, would have been reactive to his circumstances. The psychologist concludes the context of the material upon which he bases is examination that the prisoner is suffering from an underlying depressive and anxiety condition. There were significant, it would seem to me, psychosocial issues in his background which could explain his current circumstances. But I bear in mind that the psychologist's assessment is based upon a clinical examination while the prisoner is in custody, facing or awaiting sentence for serious charges. 62. The psychologist opines what he calls a relationship between the clinical examination of the prisoner and the offending. He claims a nexus of "impaired decision making ability at the time". It is difficult to see how he, as with the psychiatrist for Mr El Sage, would reach these conclusions with any confidence. Certainly the court could not reach that conclusion with any confidence in the context of other material relating to the background and character of the offenders. 63. It is submitted through the report of the psychologist that the prisoner Mr Khoury should receive psychological treatment to reduce the risk of reoffending. I have no issue with that. A treatment plan is set out including cognitive behaviour therapy and receiving some education in relation to coping mechanisms, undertaking a 'Narcotics Anonymous' program and other issues relating to problem solving. 64. I have already referred in part to the reference of his partner. It is an impressive reference. His partner apparently is a respectable person. She has a sister who is a medical practitioner. A sister who she says is a civil engineer. They had been friends actually since primary school, but had little relationship until she ran into the prisoner at Parramatta Westfield, as these things happen, and struck up a friendship with him and tried to support him. She confirms what I said earlier about his homelessness and his insecurity of living prior to the offending. He has diabetes, she says. He had poor circulation. His condition has gotten worse in custody. He does seek medical assistance. But I have received no independent medical material, which deals with these issues. She would seek, on his release, to provide him with assistance, provide him with suitable accommodation and ensure that he undertakes medical treatment and tries to engage in employment. II am prepared to accept that she is prepared to support him. 65. She notes that he has expressed some insight in relation to his offending behaviour. He has expressed regret to her and has also done so in a letter that he has addressed to the court, apologising for his conduct, reflecting upon what he says is the danger of the use of prohibited drugs. He says it has been very difficult in custody but he is working hard to try and address the difficulties and he makes a "promise", that he will seek help from his partner and use that help to his advantage. He says this time in custody has been more difficult than the previous term of imprisonment and he wishes to make good on any harm or hurt that he has done. 66. I bear in mind, coming back to the objective gravity of the offending, those features that are self-evident. In relation to the first offence, of course, the drugs in question were not distributed to the community. They went to an undercover officer, not through any desire on the part of the two prisoners. That is the reality of the situation. And, of course, they did not have the cocaine to provide the two kilograms to the undercover officer. In that sense, of course, as is acknowledged by the Crown, and I will come back to this matter in a moment, the offending thus, although it might otherwise be close to the middle range or within the middle range of objective seriousness, is below, and I would suggest substantially below, the middle range of objective seriousness of offending as charged. That having been said, of course, it also is relevant to the sentencing exercise to take into account the fact that the character of the conduct of the prisoners in negotiating an arrangement, which was an essentially meant to be a fraud upon the man Tom, who they did not know was an undercover officer, is a matter that the courts have, on a number of occasions, expressed concern about because of the risks to the community by that form of conduct. 67. There is a decision of Kijurina [2017] NSWCCA 117, particularly at [99] - [106], where it is acknowledged that "drug rip offs" purporting to be actual drug deals may be less serious than a genuine plan to supply drugs but are still "objectively serious", bearing in mind they attract the maximum penalties that the offence attracts on this occasion. Unlike most fraud or false pretences matters, the victim of such a drug rip off is unlikely to report the matter to police. Then again, it should be pointed out, if you rip off the wrong person they are likely to take matters into their own hands with devastating and fatal results. 68. As a result, subject to any violent retribution, the prisoner in question is likely to escape without punishment. The courts have said, to paraphrase what is said more eloquently in the judgment of Kijurina, that there is significant "community interest" in not allowing the drug trade to be used as a vehicle for fraudulent activities and also endeavouring to deter the kind of violence response with such conduct and provoked. It is of upmost importance that courts impose sentences of sufficient severity to ensure others who may be attempted to engage in "drug rip offs" be dissuaded from so doing. It is only in exceptional cases that a non-custodial sentence will be appropriate, as was pointed out [103] of that judgment. 69. I note in relation to this matter by reference to some of the criteria that relate to such circumstances, there is no evidence that either prisoner was capable of fulfilling the offer or the order made by Tom. Even though they supplied a much smaller quantity of very high quality cocaine a few days before, the facts of the matter are that I cannot be satisfied beyond reasonable doubt that they had access to anything like the quantity they agreed to supply. I note the decision of Kalpaxis [2001] 122 ACrim R 320. I think Mr Kalpaxis was a man I went to school with. He offered to supply a commercial quantity of cocaine but the offer was not "genuine". There was no supply that took place and he had absolutely no capacity to supply the drug. That was an "exceptional and extraordinary" case. 70. This brings me, if I may I will come back to some of the legal principles I am required to apply arising from the very helpful written submissions of counsel for the prisoner Mr El Sage, and the very helpful oral submissions of Mr James on behalf of his client, as well as the helpful submissions of the Crown. I must pay tribute to the written submissions of counsel for the prisoner El Sage. They are extremely detailed and I do not have the time, unfortunately, to do justice to the scholarship that has gone into them. It might be said, in general terms, that most of the matters identified within the written submissions are matters that are not in dispute. 71. Most of the decisions I am referred to I have taken into account. Most of the propositions put as a general statement, are quite acceptable. For example, the observations made in relation to the operation of s 54A and 54B in the submissions are to be accepted. I point out of course I am required to fix a non-parole period for an offence that carries a standard non-parole period. For the purposes of sentencing a prisoner 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 range of objective seriousness. 72. I pause for a moment to point out this provision reflects, in its amended form, what was held by the High Court in Muldrock v R [2011] 244 CLR 120. I also note of course that Spigelman CJ in the decision of Way from 2004, which was swept away by the High Court in Muldrock, noted that the middle range of objective seriousness was "not necessarily a narrow band". It is not just a line that runs through the range of objective seriousness of offending. I think that statement still stands. But even then, as I have earlier indicated, having regard to the features of this case, self-evident from the facts and the other observations I have made, the offending is well below the range of objective seriousness. But certainly it is not at the lowest end of objective seriousness, notwithstanding the absence of any cocaine. 73. S 54B(2) provides that, without limiting the matters that are otherwise required or permitted to be taken into account, the standard non-parole period is one such matter in determining the appropriate sentence for an offender. Of course other matters include any aggravating factors that arise under s 21A(2) relevant features of case that are incorporated by consideration of s 21A(1) of the Act and relevant mitigating factors arising pursuant to s 21A(3) of the Act. 74. Counsel for the prisoner El Sage took my attention particularly to the decision of Vu [2006] NSWCCA 188 and particularly the observations of Hall J, a very wise and learned Judge of the Supreme Court at [78] - [82]. All those matters are taken into account including issues relating to the weight and the like. 75. With regard to the submissions made about the mental state of the prisoner, I accept as a general proposition that in the appropriate case, the mental condition of an offender, particularly a mental illness or a mental disability, that is causally connected to the offending may be relevant in reducing the weigh to be given to general deterrence, reducing the prisoner's moral culpability. It may be relevant to the consideration of specific or personal deterrence. It may be relevant to take into consideration the circumstances in custody of the offender if the mental condition would cause hardship to the offender, beyond the normal hardship of being in custody. 76. In that regard there are many authorities. But particularly I cite the decision of De La Rosa [2010] NSWCCA 194, particularly at [177] - [178]. I am mindful of the decision of Kearsley from two years ago, the medical specialist who sexually assaulted a colleague, where it was held I think by Harrison J, that the mental condition may not necessarily be causally connected to the offending to make it relevant to the sentencing exercise. I accept that that may be so. 77. Although one might have thought in the scheme of things, generally speaking, that a direct causal connection would be a highly significant matter in assessing both moral culpability and the weight to be given to general deterrence. Learned counsel for the prisoner El Sage goes through a great many authorities on that general issue. 78. She cites the decision, for example, of Engert (1995) 84 ACrimR 67, particularly at 68, where the Chief Justice of the day, Gleeson CJ, said that "Every case required the making of a discretionary decision in light of the circumstances of the individual case and in the light of the purposes to be served by the sentencing exercise." It might be further pointed out from that judgment, picked up by other judges, Spigelman CJ in Israil, and McClellan J in De La Rosa, that although a particular mental condition might require lesser weight to be given to general deterrence, the character of the condition, if it suggests the risk of the offender committing further offences, may require greater weight being given to specific and personal deterrence. That is a matter never to be lost sight of. 79. She has made a number of submissions in relation to his prospects of rehabilitation and his likelihood of re-offending and I have taken the detail of those submissions into account. She has cited Bugmy ([2013] HCA 37), as being relevant in this matter, as does counsel for Mr Khoury. 80. Bugmy's case, of course, reflected upon the case of an Aboriginal man with very significant community and personal disadvantage and dysfunction. Dysfunction and disadvantage way beyond that of these two prisoners. But I accept that, in general terms, a disadvantaged background would be relevant in the sentencing exercise in a range of ways and dysfunction and disadvantage arising out of upbringing may be burdens that will persist for particular offenders throughout their lives and are not diminished with time. Mr Bugmy's case was a very clear and cogent example of that. Anyone who has been to Wilcannia and knows the community in which Mr Bugmy grew up in, would have some understanding of the extreme disadvantage people in that community have compared to people living in Sydney, for example. 81. I have taken into account also the hardship to third parties and the authorities there cited. It is noted the significance of a finding of "exceptional circumstances". Even if not exceptional, the circumstances of the prisoner's family would be relevant to the fixing of the non-parole period and a finding of "special circumstances" and there are many decisions that are cited and I need not repeat them in the submissions that reflect upon that matter. Here the circumstances are not exceptional for reasons that I have already given. But they are still relevant to this exercise. 82. I have concluded that I should make a finding of "special circumstances", taking into account aspects of the prisoner's family background. 83. There is the issue of the "purposes of sentencing" which were the subject of extensive written submissions. These submissions, I hasten to say, have been submissions which could equally apply, of course, in part, to Mr James' client. 84. I know that he takes up his own burden in that regard and I will reflect upon his submissions in a moment, but many of the authorities and propositions put by learned counsel for Mr El Sage could be said to have potential application to the co-accused. 85. I am required, in regard to both prisoners, to note the terms of s 3A of the Act and "the purposes of sentencing" therein. Of course, each of the purposes of sentencing, except for the issue of perhaps harm done to a victim, apply in relation to this matter. There is a need for adequate punishment, a need for general and personal deterrence, protection of the community from the prisoners, promotion of their rehabilitation, making them accountable for their actions, denouncing their conduct and recognising the harm or the potential harm to the community of this sort of conduct. Those matters go without saying in relation to both offenders. 86. There are submissions made about the s 5 'threshold'. There is no doubt in both the instances and in respect of both offences the s 5 threshold has been passed. There could be no query about that. 87. There were some extensive written submissions and oral submissions made about the potential of considering an Intensive Correction Order for Mr El Sage. An Intensive Correction Order for the totality of the criminality is not realistic for either offender. It is not even remotely realistic, bearing in mind one offender is in breach of parole, both in breach of s 9 bonds, having a very extensive criminal history. 88. I was particularly taken to a recent decision of the Court of Criminal Appeal of Casella [2019] NSWCCA 201. I have taken that judgment into account but it raises no particular issue that is required to be considered here. As I said, all of the submissions on behalf of Mr El Sage have been taken into account. With regard to Counsel's oral submissions for Mr El Sage, she directly raises a matter that is not dwelt upon in her written submissions. That is the issue of parity. Parity is a significant matter to take into account. I am required to fix sentences for both offenders that do not give rise to a "justifiable sense of grievance". I am required to have regard to the principles that arise out of particularly the High Court in Postiglione v R (1997) 189 CLR 295, particularly at 301, the judgment of Dawson and Gaudron JJ where they reflected upon parity of sentencing being an artefact of "equal justice". In the 2010 decision of Jimmy (2010) 77 NSWLR 540, each of the three judges giving judgment in that lengthy judgment reflected upon "totality of criminality" and parity of sentencing. 89. In specific terms, Rothman J said, of parity of sentencing, that it was an aspect of 'equal justice' or the Aristotelian principle of equal justice. That is, to paraphrase his more learned words, alike shall be treated alike and the unalike shall be treated unalike, all to the extent of their likeness and unlikeness, on reasonable and rational grounds. That is what I have tried to do in this particular matter. 90. Totality of criminality is a relevant matter to take into account. In that regard, bearing in mind the two principal offences are separate in time, they have some connection but separate in time, I have determined there should be some partial accumulation of the greater sentence upon the lesser sentence, however, I have determined there should not be a need in the circumstances for an aggregate sentence. 91. Counsel for Mr El Sage noted matters I should take into account in relation to his role and also the hardship to his family and the circumstances of him being an 'E classified prisoner'. I appreciate there are difficulties for him being an 'E classified prisoner' but I am not responsible for the creation of that classification and it seems to me, with respect, that the fact that a person has that classification on their release to the community might consider whether they would wish to make a conscious decision to return to custody knowing that that classification awaits them. 92. Mr James notes a number of issues in relation to the objective facts. He, with Ms Ghabrial and the Crown agree that there should be a 25 per cent discount for the utilitarian benefits of the pleas, and I should have acknowledged that from the outset. 93. He claims that there is a point of difference; that his client is objectively below the level of criminality of the co-offender, noting the terms of the transcript of the conversations between the co-offender and Tom. He notes his client's disadvantage, addictions, mental state and the like, which I have taken into account. He claims that the prisoner's role is that at the "lowest end". He notes the breach of conditional liberty. He submits that I should find favourable to the prisoner that he is remorseful and has good prospects of rehabilitation and he does have in a note that such future prospects are to be considered as guarded. 94. The Crown prepared written submissions in relation to both offenders, reflecting upon the maximum penalty, the principles of sentencing in relation to drug supply. I particularly note the decision of Parente cited by the Crown, [2017] NSWCCA 284, particularly at [107]-[114]. The Crown agrees that the objective seriousness of the offending is beneath the middle range of objective seriousness. For the reasons ultimately that I have concluded, the quantity of the 'purported drugs' is not the sole determinative of that issue. The substantive supply offence, where real drugs were supplied, were the subject of specific submissions and I have ultimately agreed in relation to that offending that it crosses the s 5 threshold. 95. The Crown submitted ultimately that fulltime imprisonment was the only penalty to be imposed in relation to both offenders; that the court should not find that there has been real remorse expressed; neither offender has good prospects of rehabilitation; that general and specific deterrence have their role to play. 96. The Crown concedes that the two prisoners were not within an organised drug network. The Crown submitted orally that I should be cautious about accepting hearsay representations. It notes the hardship, particularly to Mr El Sage, of his family circumstances but it also noted, in its submissions, that a number of those hardships, particularly the condition of his three younger sisters, were existing at the time that the prisoner was imprisoned in Western Australia. 97. With regard to Mr Khoury, it is noted by the Crown, as with Mr El Sage, that on the basis of what the prisoners had agreed to do with Tom, if they had received the $400,000 that there was no person they had to pay for the drugs because what they had packaged up were not drugs. I have taken into account all of those submissions, detailed, learned and of great assistance as they are to the court. 98. With regard to totality of criminality of course I apply the principles set out in decisions such as Mill v R from 1988, a decision of the High Court, which reflected upon D A Thomas' learned and landmark textbook on sentencing, and its adoption of what Chief Justice Street said in the case of Holder from 1983. Those general principles have been adopted time and time again. 99. With regard to the ultimate sentencing of the two prisoners, dealing with the principal offences, the real issue is to distinguish, if possible, between the differences between the men. It is not possible, on my view on the facts, to distinguish between the two prisoners in relation to the objective seriousness of the first supply. The available detail is too scant beyond the fact that the two men were involved in a joint criminal enterprise. The offender Mr El Sage may have led the negotiations but the extent to which the two men were going to share in the profit of the enterprise is not revealed. The prisoners have not given evidence. Any hearsay representations they make about that are not of great value. 100. It is an offence of substantive supply, suggesting a connection with a system of drug trafficking and, having regard to the purity of the drug supplied and the quantity and the sum negotiated, is an offence seen through the prism of the prisoners' criminal histories and other matters that ordinarily, standing alone, would require a term of fulltime imprisonment. Even though the sentence imposed is less than two years. 101. There is, however, a basis for distinguishing slightly the objective culpability of the two prisoners in relation to the second supply offence, noting particularly the transcript of the conversation between the undercover operative and Mr El Sage. The Crown itself submits that Mr El Sage is more culpable than Mr Khoury and this was submitted on behalf of Mr Khoury. 102. The transcript that was tendered in this regard was tendered only in the bundle relating to Mr Khoury. It was not in the bundle tendered in relation to the accused Mr El Sage. But it was not objected to by counsel for the prisoner at the time of its tender in the case of Mr Khoury, bearing in mind this is a joint sentencing exercise. 103. If, for example, Mr Khoury had got in the witness box and given evidence in relation to the matter, that would have been generally available in relation to the sentence proceedings, both in relation to him and, in so far as it implicated Mr El Sage. Mr El Sage's counsel would have had the opportunity to cross-examine him. 104. When I referred to this matter in submissions, that the transcript was relevant to the assessment of the objective culpability of both prisoners, there was a somewhat belated objection to relying upon it in this respect made on behalf of the accused El Sage. 105. There is a difficulty with that position and particularly with the objection. The material relied upon is not in the character of an admission only admissible against Mr Khoury as, for example, his claim that he was "only the muscle". That claim by him is not admissible against Mr El Sage, being an entirely self-serving statement. It cannot be used adversely to Mr El Sage. 106. But the transcript, bearing in mind it is an aide memoire and I did not ask for the recording, is original evidence of the conversation between the two prisoners and the undercover agent. It involves direct admissions made by Mr El Sage. It is relied upon by Mr Khoury to define his role, vis-à-vis Mr El Sage and it is thus admissible and relevant to that assessment. By definition and by logic, it is admissible against Mr El Sage. Even if it had been objected to when tendered, there would be no proper basis for excluding it as not being admissible in relation to Mr El Sage, even in the exercise of a discretion. 107. That transcript shows most of the negotiations, or a relevant period of negotiation between Mr El Sage and Tom. Mr Khoury's involvement in the discussion is almost entirely non-consequential and is certainly minimal compared to that of Mr El Sage. Hence, I would assume the sensitivity to its admission by counsel for Mr El Sage. Of course, I appreciate it is not conclusive on the issue of how the proceeds were to be split. I made that point in relation to Count 1. There is no direct evidence of this, other than some very untrustworthy hearsay representations of what was to happen to the money. 108. I also bear in mind that Mr El Sage may be the more vociferous and vocal of the two men. It might have been an agreement between the two men that he should do the talking on behalf of Mr Khoury. But the contemporaneous representations support that self-serving statement made by Mr Khoury about the matter. 109. I also bear in mind that the two men were involved in a joint criminal enterprise which did not involve having to source cocaine at all. I involved a joint agreement to supply ultimately, between themselves, not with Tom, a false substance and making up a package to make it look like cocaine. I appreciate Mr El Sage had a relative of his transport him and Mr Khoury, but that ultimately is not a matter of great moment. 110. If real cocaine was involved in this transaction, then leadership in the scheme would involve actually sourcing the cocaine. But making up a false or deceptive package that looked like cocaine required little guile or criminal expertise or leadership by either person. It is in these circumstances, that whilst it is true Mr El Sage took a leading role in the negotiations, it was a matter of some substance, but not a significant matter, in the absence of any direct evidence from either prisoner as to what was to happen to the money. They were both jointly culpable. Even if it was true that Mr Khoury was "the muscle", he was playing his role to get access to the money. 111. What are the other distinguishing features in the scheme of the matter, having regard to the material I have taken into account? Mr El Sage has clearly a more extensive criminal history and a more significant criminal history than Mr Khoury. But, of course, Mr Khoury's record does not entitle him to any specific leniency. The benefit of Mr Khoury over Mr El Sage in this respect is not minimal but relatively marginal. Neither man could claim to be of good character. In my view, I am not persuaded either man has good prospects of rehabilitation or either man is likely not to re-offend. 112. Of course, Mr El Sage's family circumstances are matters relevant but they have not stopped him offending up to this point. 113. Mr Khoury committed the offences, as I said, whilst on parole and this is a more significant aggravation of conditional liberty than a breach of a good behaviour bond, which is still a substantial matter to take into account. This is a difference that makes up, to some extent but not all of, the difference between the men because of Mr El Sage's more extensive criminal history. 114. In my view, Mr El Sage has more significant mental health issues than Mr Khoury. Certainly the diagnosis in his case is stronger than that for Mr Khoury and more reliable, given the material from Western Australia. But, in my view, there is no direct causal connection between these conditions in both men and the offending. There is an indirect one; that both men may be more susceptible because of these conditions to drug usage. It may explain also their connection with the "drug trade". But it does not explain their respective offending at all. In fact, Mr El Sage's account is that he became involved in the first supply because he met someone at the casino arising out of his gambling issues. 115. Clearly, in both cases, the offending, particularly in relation to Count 2, was for significant financial gain. I do not regard that as an aggravating factor in relation to Count 1 because it is modest financial gain given that payment has to be made for the cocaine that is supplied. But, in Count 2, it was potentially a very significant financial gain, with no outlay on the part of either prisoner. Thus, it arises as an aggravating factor under s 21A(2). To use a colloquialism, it was all "cop" for the two men if they got their hands on the money. I appreciate financial reward is very much an aspect of drug dealing. In this case, of course, there were no drugs to supply. 116. Although the mental health issues for Mr El Sage are more profound, it could not be said that they might warrant a great deal of lesser weight being given to general deterrence or particularly more significant lesser weight being given to general deterrence in his case than Mr Khoury. However, what concerns me particularly in respect of Mr El Sage, is that the character of the condition, given the concurrent criminal history, reflects a greater weight to be given, in his case to specific deterrence, or personal deterrence. I have noted the reference to the diagnoses in Western Australia, the failure of the prisoner to take any steps to address those matters in the past that Mr El Sage, I regret to say, continues to offend in a range of ways despite this condition. 117. Ultimately, if there is a causal connection in his case to the offending it is a matter where, as I said, it could be reflective of him being a greater danger to the community. Because he continues to offend regularly, either because of, or despite, his condition. In my view, thus, in respect of both men, the effect upon moral culpability is minimal. 118. I have noted the difficulties in both men's backgrounds but I perceive that Mr Khoury's background is more significantly dysfunctional. Mr El Sage has the love of his mother and his love for his mother which is to be respected. Mr Khoury has had to grow up without the benefit of his mother's support since the age of eight. I have already reflected upon the issues that arise out of Bugmy v R to which I have earlier referred. 119. It is to be fairly said neither man has had the best of upbringings. However, at the end of the day, they have had support, for example, which was not available to Mr Bugmy within their communities and individually. Ultimately, their disadvantages and their upbringing are much the same and it is not a matter upon which one could substantially differentiate between the two matters. 120. The most significant difference between the two men, in my view, is the family situation of Mr El Sage. I have already commented upon the circumstances of his mother and sisters. These are significant matters. However, as I have already pointed out, they are not matters that have prevented the prisoner from committing offences. His wife's condition is a matter of considerable concern to the court and no doubt to Mr El Sage, but that condition has been existing in their relationship over three years and again it has not stopped the prisoner from offending. 121. The mother's loss of fingers is a more recent development, as I have pointed out, but again pre-dates the offending with which I am concerned. Whilst I take those matters into account as being relevant, they are not matters that ultimately can be described as "exceptional circumstances" such as to significantly affect the sentence to be imposed. But in my mind, as was submitted by counsel for Mr El Sage, they are matters relevant to the fixing of the non-parole period. Thus, it might be said that if otherwise it might be thought that Mr El Sage's non-parole period could be longer than that of Mr Khoury, I have reduced his non-parole period to be the same, reflecting that significant difference between the two men. The crafting of the non-parole period involving a discretionary exercise requires consideration of a range of issues. I note, amongst other things, the two men are of the same age, as I have said before. 122. Ultimately, in the spirit of what is required of me by the High Court in cases such as Markarian v R from 2005, I have determined that the total sentence for Mr El Sage should be slightly higher than that of Mr Khoury, but the effective non-parole period in relation to both men should be the same. 123. In reaching that decision, I have noted that there are "special circumstances" pursuant to s 44 of the Act. There is a requirement for special circumstances to be recognised in the partial accumulation of sentences. In my view, Mr El Sage needs a slightly longer period of supervision to assist him to adjust to community living and to re-establish his relationship with his family and do his best to assist his family and to address his mental health issues. Mr Khoury should be assisted in that regard too. 124. They should both have the benefit of a finding of special circumstances, as I said, because professional assistance will hopefully assist them to address the factors that have contributed to their offending behaviour, both on this occasion and in the past. I have thus adjusted the relationship of the non-parole period to the balance of sentence. 125. I am sorry, Mr El Sage and Mr Khoury, it does take some time. In two years' time or a year's time, the Parole Authority will be looking at your case and they will be looking at my remarks and they will want to know exactly why I have determined the sentence that I have and hopefully what I have determined in relation to the matter might provide some assistance in you being granted parole when your non-parole periods expire. 126. Mr El Sage, in relation to the first count of supplying a prohibited drug, you are convicted. You are sentenced to a term of one year, six months imprisonment to date from 11 July 2018, expiring on 10 January 2020. 127. In relation to the supply of a large commercial quantity of a prohibited drug, you are convicted. You are sentenced to a term of imprisonment of two years by way of non-parole period, commencing on 11 April 2019 and expiring on 10 April 2021. I fix a balance of sentence of two years to expire on 10 April 2023, in your case. 128. Pursuant to s 29(1) Confiscation of Proceeds of Crime Act 1989, I order the prisoner to pay a drug proceeds order in the sum of $3,250. 129. In relation to the call up matters, the breaches of the s 9 bonds are established, pursuant to s 98 now repealed of the Act. I direct no action on those breaches. 130. Mr Khoury, in relation to the supply prohibited drug matter, likewise you are sentenced to one year, six months imprisonment, to commence on 8 August 2018, expiring on 7 February 2020. 131. In relation to the offence of supplying not less than the commercial quantity of a prohibited drug, you are convicted. You are sentenced to a term of imprisonment of two years by way of a non-parole period to commence on 8 May 2019 and to expire on 7 May 2021. 132. I fix a balance of sentence of one year and six months to expire on 7 November 2022. 133. In relation to the drive whilst licence suspended, you are convicted and sentenced to three months imprisonment to commence on 13 September 2019 and expiring on 12 December 2019. 134. I fix a period of disqualification from holding a motor vehicle driver's licence for a period of six months. 135. Pursuant to s 29(1) Confiscation of Proceeds of Crime Act 1989, I order you to pay a drug proceeds order in the sum of $3,250. 136. Any other matters, Mr Crown? 137. HAZLITT: No, your Honour. 138. HIS HONOUR: Any matters from you, Mr James? Mr Sant? 139. JAMES: No, your Honour. 140. SANT: No, your Honour. 141. HIS HONOUR: Thank you very much, gentlemen. Do you understand the sentences I have imposed? You understand your release dates and the non-parole periods? It will be a matter for the Parole Authority whether you are released to parole, but I would hope you would be, given the opportunity to go into the community. ********** 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: 27 February 2020