R v Awad [2018] NSWDC 534

District Court New South Wales

Medium Neutral Citation: R v Awad [2018] NSWDC 534 Hearing dates: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Criminal Before: King SC DCJ Decision: Convicted. Sentenced to a Community Corrections Order for 2 years subject to the standard conditions - to be of good behaviour and to appear before court if called upon to do so during the term of the CCO. The back-up charge – SEQ 2 - is withdrawn and dismissed. Catchwords: CRIMINAL – Sentence - supply an indictable quantity of a prohibited drug – MDMA – selling drugs outside dance festival – deemed supply – subjective matters Legislation Cited: Drug Misuse and Trafficking Act 1985 Category: Sentence Parties: Regina Awad, Ahmed Representation: Counsel: Solicitors: Ms T Donovan Mr A Moutasallem File Number(s): 2017/00000018

Judgment 1. HIS HONOUR: In this matter, Ahmed Awad appears for sentence in respect of an offence of supplying an indictable quantity of a prohibited drug, the quantity being 2.15 grams of MDMA contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The penalty is 15 years and/or 2,000 penalty units and there is no standard non-parole period. 2. He was committed for trial on 22 June 2017 from the Downing Centre Local Court. When he came before the District Court on the second occasion in the call-over list on 6 March 2018 he then entered a plea of guilty and it was adjourned and has come before me today for sentence. 3. The facts are agreed and as follows: 4. On 31 December 2016 the offender attended the Project Zero New Year's Eve Dance Festival at the Hordern Pavilion, Moore Park. 5. At approximately 9.50pm police observed the offender standing near an entrance to the dance floor area. His brother, Adman Awad, was standing nearby. 6. The offender was wearing a satchel bag. Police observed an unknown male approach the offender and the offender then reach inside the satchel bag before handing an item to the male. The unknown male then walked away at a fast pace. 7. Police in the circumstances formed a belief that the offender may be in possession of prohibited drugs. 8. They approached the offender and his brother and showed their identification and asked him to put his hands together and follow them outside the venue to a processing area. 9. Once outside, the offender was asked whether he had anything and he informed the officers that he had some "caps". When asked how many he replied, "About ten". 10. He reached into his right side pocket of his shorts and removed a red Eclipse mint tin, handing it to them and telling them that the caps were inside. 11. He was arrested and cautioned. 12. The search of the offender's person and property continued and he then said, "There's more in there" and gestured towards his satchel bag. 13. 27 capsules were located in the offender's Eclipse mint tin and a further nine capsules inside the satchel bag. The 36 capsules contained a total of 2.15 grams of 3,4-Methylenedioxymethylamphetamine, or MDMA. 27 of the capsules were tested for purity and produced a result of 53.5%. 14. Also located in the offender's satchel bag were two mobile phones, a Nokia and an Apple. 15. He was conveyed to Surry Hills police station and entered into custody. Photographs were taken of his mobile phones along with his photographic identification card located inside his bag. 16. He participated in a very brief electronic record of interview in which he admitted that the Apple iPhone and the Nokia phones both belonged to him and agreed that he was in possession of 36 caps of MDMA. 17. The capsules were sent for analysis and as previously referred to confirmed to be 3,4-Methylenedioxymethylamphetamine with a total weight of 2.15 grams. 18. Clearly, the offender was not attending the festival with the intention of consuming of 36 capsules of MDMA himself, and the Crown has relied on s 29, frequently referred to as "the deeming provision" which deems quantities of more than a certain amount of particular drugs to be for the purpose of supply. I accept that the offender was in attendance for the purpose of supplying the capsules to others, even though there was no specific detection of him having supplied any capsules to anyone. 19. I accept in the circumstances that the offending falls towards the lower end of the scale of objective seriousness. 20. The offender was 23 years of age at the time and he is now 25 years of age. In view of the fact that he was committed for trial and entered a belated plea of guilty, he is not entitled to a 25% discount for the utility of the plea, but I accept the submissions made on behalf of the offender and by the Crown that 15% discount for utility alone would be appropriate in this matter. 21. Relevant to his subjective matters is his criminal history, which contains a number of offences in relation to the driving of motor vehicles while suspended, and other driving type offences. He clearly in the past has had little regard for the road regulations and the restrictions placed on him from time to time. 22. However, apart from the driving offences, there is only one other criminal offence. That is an offence committed on 22 February 2017; that is, less than two months after he had been detected in possession of the MDMA on New Year's Eve. It is a serious concern that having been detected and charged and released on bail in respect of the supply charge, that he so rapidly returned to at least being in possession of prohibited drugs. 23. I have been informed from the bar table and accept that the prohibited drug in February of 2017 was a small quantity of cocaine. The matter was dealt with in the Local Court and he received a $600 fine and a s 9 bond of 12 months. 24. While his criminal history is not blemish-free it is not of such a nature that it could adversely impact on the sentence to be imposed in this matter. Being 23 years of age at the time, he was not a young person in the sense of an immature person, and should well have had enough emotional maturity to have realised that supplying prohibited drugs at dance festivals is a significant offence, particularly in the light of the constant publication in the media of the fact that police are on patrol at such functions, and of the fact that there are frequently references in the media to people using prohibited drugs which caused them to die or to have other serious consequences for them at such festivals. 25. The offender has written a letter to the Court titled "Letter of Apology". As I previously indicated, I place little weight on such letters. It is particularly significant in this matter that although he is not being resentenced in respect of the cocaine possession charge that happened subsequently; in my view that charge operates to indicate that the frankness with which he informed the police officers as to what drugs he had on the occasion was simply for the reason that he realised they would be found in the circumstances. 26. In his letter he refers to "the consequences of my actions having been detrimental not only to my life but the lives of everyone around me...and I know that what I was doing was very dangerous, supplying MDMA to others can result in the hospitalisation and even the death of others, I am deeply sorry for my actions". 1. Although that is an expression of remorse and contrition, it is contained in a letter to the Court rather than as evidence given by the offender subject to cross-examination. Such claims of remorse and contrition have to be treated with a significant dose of salt, particularly in the circumstances where within two months he committed a further drug offence. 2. I accept that he is now in full-time employment and has been since April of 2018. There is no information before me as to what he did from the time that he had left school until April 2018, but I accept that he has at least been in permanent employment since then. His current employer, Mr Mohamad Hassun, has indicated that he will continue to employ the offender, and despite the offending behaviour holds him in good regard. 3. In addition, there is a letter from the offender's oldest sister, who has been married for some 15 years and has not actually resided in the family home for some 20 years. She indicates that she was shocked and surprised by his being charged with this offence, and she regards it as completely out of character. 4. It is frequently the case that offender's siblings have no idea as to what their siblings have been up to in relation to criminal offending, whether it be in respect of drugs or any other form of offending, and because they are unaware of it, hold their sibling in high regard because they only see them in circumstances where they are being part of a happy and caring family. I do not place great weight on Ms Abere Awad's reference but it is of some benefit to the offender. 5. In the circumstances of this matter I am of the view that as it falls at the lower end of the range of objective seriousness it does not cross the s 5 threshold and I propose to proceed by way of imposing a Community Corrections Order. 6. Mr Awad, would you please stand? You are convicted and you are sentenced to a Community Corrections Order of two years' durations. It will be subject to the standard conditions; that is, that you are not to commit any offences during the period of the order and you are to report to the Court if required to do so if in breach of the order. 7. In the circumstances, Madam Crown, I do not propose to impose any other conditions. 8. DONOVAN: No, your Honour, there's no objection. 9. HIS HONOUR: Part of the consideration I have given to the imposition of a Community Corrections Order, apart from the fact that I found that it did not pass the s 5 threshold, is that in my view the new provisions in relation to ICOs mean that an ICO has, in fact, been downgraded from what it used to be, a significant penalty, to nothing more than a bond which in most cases will not be supervised if the offender is assessed as being in the low to medium range. As to rehabilitation and the risk of reoffending for this offender, I would assess it as being in the low range, and I am sure if there had been a report, he would have been assessed as being in the low to medium range since it is a statistical assessment. All right. DONOVAN: Thank you, your Honour. HIS HONOUR: And there is a backup offence of possess drugs to be withdrawn? DONOVAN: Yes, your Honour. That's withdrawn by the Crown. HIS HONOUR: Yes all right, I note the backup offence of possess prohibited drug is withdrawn and dismissed.