Abdul-Hamid v R

Court of Criminal Appeal (NSW)|2016-05-18|Before: Basten JA, Schmidt J, Wilson J, Mr P

Judgment

BASTEN JA: I agree with Wilson J that the Court should refuse leave to appeal against the sentence imposed in the District Court on 5 June 2015.
SCHMIDT J: I agree with Wilson J.
WILSON J: On 5 February 2015 the applicant was arraigned before his Honour Judge Arnott SC, sitting without a jury, upon an indictment charging him with an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) that, between 17 and 18 July 2013 [1] at Narwee in this State, he knowingly took part in the supply of a prohibited drug, being methylamphetamine. Section 29 of that Act was relied upon by the Crown in proof of the charge.
The applicant entered a plea of not guilty. On 11 February 2015 at the conclusion of the trial, his Honour returned a verdict of guilty. The offence of which the applicant was found guilty carries a maximum penalty of 15 years imprisonment, a fine of 2000 penalty units, or both.
The applicant was convicted on 5 June 2015 and a sentence of imprisonment for 5 years was imposed upon him. The sentence commenced on 11 December 2014 and expires on 10 December 2019; a non-parole period of 3 years imprisonment was fixed, which expires on 10 December 2017.
The applicant seeks to appeal against that sentence. He advances a single ground: 1. "The learned sentencing judge erred in the assessment of objective gravity of the offence, in particular by finding that: 1. The applicant knew the quantity of drugs, which were to be purchased by Ibrahim; and 2. The applicant played a more significant role than Ibrahim."
There is no appeal against conviction.

Other Evidence before the Sentencing Judge

Since the focus of the proposed appeal is on the facts found by the sentencing judge and the assessment of the objective gravity of the offence, it is unnecessary to give more than brief details of other evidence considered by his Honour in imposing sentence upon the applicant.
The applicant was 31 years old at the time of the commission of the offence and 33 when he appeared for sentence.
His criminal history commenced in 2000 and contained entries for driving offences, drug offences and offences of dishonesty. Of particular relevance, in 2006 the applicant was sentenced for an offence of possess prohibited drug. In 2008 he was sentenced to a term of imprisonment for supplying a prohibited drug. There was another offence of possess prohibited drug, in respect of which the applicant was placed on a bond for 12 months on 30 July 2013. The applicant had been on bail for this offence at the time he committed the present offence.
A number of offences of receiving were dealt with in May 2014 in the District Court by way of suspended sentences of imprisonment and community service orders and, in August 2014 the applicant was sentenced to a further term of imprisonment for 20 months with a non-parole period of 8 months for a supply offence. He had served the non-parole period of that sentence when he appeared before his Honour in relation to this matter.
A pre-sentence report prepared for an earlier sentence matter (in August 2014) set out the applicant's personal circumstances, noting that the applicant grew up in a stable and supportive environment and had been married for some four years as at mid-2014. To the author of the pre-sentence report, the applicant presented as having little insight into his drug use or offending behaviour. He was assessed as having a medium level risk of re-offending. The applicant's dependency on illicit drugs was identified as his principal challenge.
Information as to the applicant's health and mental state was also before his Honour. That evidence indicated that the applicant suffered from sleep apnoea and diabetes, and had a substance abuse disorder with some depressive symptoms.
The co-offender was sentenced on 3 October 2013 having pleaded guilty to supplying a prohibited drug and another unrelated offence. For the offence in common with the applicant, he was sentenced to imprisonment for 28 months with a non-parole period of 14 months. Ibrahim was given the benefit of a 25% reduction on the sentence that would otherwise have been imposed in recognition of the utilitarian value of his early plea, and a finding of special circumstances.

The Application for Leave to Appeal

As noted, the applicant's complaint against the sentence imposed upon him is confined to asserting error by the sentencing judge in the fact finding exercise.
The proposed ground asserts that his Honour erred in finding that the applicant knew the quantity of drugs which were to be purchased by Ibrahim, and in concluding that the applicant played a more significant role than his co-offender.
The applicant's task in making good that complaint is a difficult one.
Firstly, as the applicant conceded in his written submissions to this Court, the assessment of the objective seriousness of an offence is a matter very much for the sentencing judge. In Mulato v R [2006] NSWCCA 282, Spigelman CJ said, at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."
Here, the sentencing judge had the significant advantage over this Court of having heard the applicant's trial. His Honour heard evidence called from witnesses including the applicant and the co-offender (who was cross-examined by the Crown with leave pursuant to s 38 of the Evidence Act 1995 (NSW)) and, of particular importance, the telephone intercepts that were played to the court at trial. His Honour was able to consider and assess the tone of voice and manner of speech used by the applicant and the co-offender during relevant calls, and it is apparent that those aspects of the evidence, opaque to this Court, significantly informed his Honour's factual findings.
In concluding that the applicant was aware of the quantity of drug to be collected by Ibrahim in Narwee, and in finding that the applicant's role was greater than that of his co-offender, his Honour drew inferences from the whole of the evidence before him and from the presentation before him of the applicant and Ibrahim in evidence as witnesses.
His Honour referred to the tone of authority and command used by the applicant in his telephone discussions with the co-offender, such as in the calls of 17 July 2013 when demanding that Ibrahim meet him immediately, and those of 18 July 2013, ("Oy, come to my house right now, bro").
The meeting of 17 July 2013 (of very brief duration) was held not at the home of either man but in a car, at a park. Having regard to all of the circumstances of the meeting, the sentencing judge concluded that the applicant was in control of the situation and the meeting was for the purpose of the applicant providing some or all of the funds to make the following day's purchase of methylamphetamine. Provision of funds for the purchase was a feature his Honour was entitled to rely upon to infer a greater role for the applicant.
After the drugs had been discarded on 18 July 2013 and thereafter hidden by the co-offender, the applicant referred to the discarded object in conversation with Ibrahim as "it" without need for explanation or clarification. He chastised Ibrahim that he had "fucked up" and reminded him that the "number one rule is to come straight home. Don't go driving around man."
The applicant's concern about using a different car to come to Narwee, his anxiety to retrieve the package without inquiry as to its contents or size, and his caution about the possibility of "getting done," all bespeak knowledge of the contents of the package, and it was open to his Honour to so find. The actual finding, "that the offender understood the amount of drug Ibrahim was purchasing" (Judgment, p 6), was not precise as to quantity.
That assessment was additionally informed by the evidence of the drug connected items - cash, digital scales, resealable plastic bags, likely tick lists - found at the applicant's home by police the following month, and by the evidence of the false subscriber details of the mobile telephone used by the applicant.
Having considered the evidence relied upon by the sentencing judge in reaching the factual findings he made, I consider that it was entirely open to his Honour to find that the applicant was aware of the quantity of the drug to be collected at Narwee, and that his role was greater than that of his co-offender, in that he supplied at least part of the purchase monies and was able to direct the co-offender.
That conclusion is supported by the second feature which adds to the applicant's task in persuading this Court otherwise, and that is the concession he appears to have made as to the facts during the sentence proceedings.
During the proceedings on sentence of 20 March 2015, the Crown sought to tender a summary of the facts it contended had been established at trial. Referring to that summary, counsel for the applicant (not the counsel who appeared in this Court) said: "I note that my friend has very helpfully prepared a summary of the facts in relation to the trial." (AB 80; T2:11)
It is apparent that the applicant through his counsel not only took no issue with the Crown's statement of facts, but embraced the document as helpful.
The statement of facts referred to the applicant using language of command when speaking with the applicant (pars [3] and [4] for example), and said explicitly that the package the co-offender was seen to put into his pants after meeting the applicant "contained a quantity of cash to be used for the purchase of prohibited drugs the following day" (at par [8]).
Control of the funds used to purchase prohibited drugs is a feature indicative of both knowledge of what was being purchased (its nature and quantity) and of a superior role to that of Ibrahim.
Having reached the conclusions he did as to these features of the facts, the sentencing judge referred to them and to the quantity and purity of the drugs, the planned nature of the offence, and its commercial nature, in determining that a sentence of 5 years imprisonment with a non-parole period of 3 years (special circumstances having been found) was required to adequately reflect the objective gravity of the applicant's crime.

Conclusion

In my view, it was well open to his Honour to find the facts as he did, and to assess the objective gravity of the applicant's offence having regard to the facts as he found them to be.
The applicant has failed to make good the proposed ground of appeal.
I would not grant leave to him to advance it.

Endnote

The indictment avers that the offence occurred between 17 July 2013 and 18 July 2013, a timeframe that does not exist. This appears to be an error. The Crown case was that the offence was committed over both of those dates, rather than between them. The point was not taken at trial, and nor was it raised by the parties before this Court. Nothing turns on the mis-statement as to date and, since time was not of the essence in proof of the offence, and the actual dates of the offence were clearly established on the evidence, the error does not vitiate the indictment or invalidate the conviction: see generally s 16(1) of the Criminal Procedure Act 1986 (NSW); R v Dossi (1918) 13 Cr App R 158; R v VHP (1997) 4 Crim LN 44; DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R 555. 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: 21 June 2016

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)

Cited By (1)