The applicant was aged between 20 and 21 at the time that the offences took place and was aged 22 at the time of sentence. He had one previous criminal conviction for driving under the influence of alcohol, which the sentencing judge correctly said could have no adverse impact on the sentence.
The applicant was born in Sydney and was the younger brother of two boys. The sentencing judge stated that he was "exposed to some domestic violence when his parents were separating when he was ten years of age". The applicant remained living with his mother and brother on the Central Coast until a time shortly before his arrest, at which point he moved to reside with his grandmother and brother at Mosman. The sentencing judge noted that the applicant's father had "rejected his attempts at contact, subsequent to his parents' separation".
The difficulties suffered by the applicant in his earlier years as a result of his relationship with his father were elaborated on in an affidavit sworn by the applicant's mother, Ms Bronwyn Louise Hamilton, on which she was not cross-examined. In her affidavit, Ms Hamilton said that she separated from her husband when she was pregnant with the applicant. She explained that the applicant's father "came in and out of [his and his brother's lives] from time to time, took very little interest in them", and as the years went on, became "more and more physically violent and emotionally abusive". She stated that, "at the age of two years, [the applicant] suffered [from] a behavioural disorder, which caused him to hold his breath when he felt very distressed and became unconscious on several occasions". She stated that he "grew out" of this behaviour by the age of four years.
Ms Hamilton also said that, between the ages of 5 and 10, the applicant's father "would visit him randomly wanting to take him out for a couple of hours", and "on rare occasions, would have [the applicant] stay overnight with him".
Ms Hamilton stated that her husband became "more and more volatile" as time went on and, in 2000, she was forced to take out an AVO. She said that the applicant witnessed his father's "increasing violence" to her, including, but not limited to, the smashing of windows in the home, pushing her up against the wall, trying to strike her on several occasions and verbally threatening to kill her. She stated that the applicant "did not have any positive male role models in his life".
Abdul v R [2019] NSWCCA 18 | Case summary | Zoe
Ms Hamilton also stated that the applicant had tried to re-establish contact with his father when he was 18 years old but was unsuccessful. In that context, the applicant's aunt gave evidence of the effect that the lack of "a positive male role model" had on him and which led to him being "disillusioned" in his young adulthood.
Outside his family life, the applicant attended school on the Central Coast, but ceased his education in Year 10, at which time he commenced a carpentry apprenticeship and went to Hornsby TAFE. However, after five years, at the time of sentencing, he had still not completed the course. At the age of 20, he gained employment installing blinds. He commenced employment with a firm called "Master Quality Shades" on 1 January 2016 and continued in that occupation until his arrest on 25 May 2016.
The sentencing judge noted that, in his "mid to late teens", the applicant had commenced using alcohol, cannabis, MDMA and cocaine. The applicant told a psychologist, Ms Emma Hubner, that, by the time he was 20 years old, he had developed a dependency on cocaine and had incurred over $50,000 worth of debt for drugs. He told Ms Hubner that, at the time of the offences, he was using 3 grams of cocaine daily and MDMA every weekend. Ms Hubner suggested that this description of substance misuse suggested that he was a "poly-stimulant abuser with Cocaine Use Disorder (dependence) 305.60 and Methylenedioxy-methamphetamine (MDMA) Use Disorder (abuse) 304.40".
The sentencing judge noted that Ms Hubner interpreted his personality characteristics to "suggest risk[s] that he may continue to suppress negative emotional experience, externalize maladaptive cognitions and minimize problematic behaviours" which could be targeted by psychological intervention.
Ms Hubner suggested that the applicant be considered for the "Real Understanding of Self Help" (RUSH) program, which was a "skill-based group treatment program" addressing "anti-social attitudes/beliefs; poor self-control; impulsivity; difficulties with self-management". She suggested that his risk of reoffending could be addressed by an interim drug and alcohol treatment program.
The sentencing judge noted that there was "nothing in Ms Hubner's report that indicates remorse, contrition, or even acknowledgement of the potential harm of prohibited drugs to the community". He stated that only in the applicant's letter to the Court did he "take responsibility for his conduct and acknowledge the harm to his family, friends and, more importantly, the community". The sentencing judge noted that, in that letter, he "indicates a desire to turn his life around and make appropriate law-abiding choices in his future life", but also noted that he was not prepared to give evidence, so that the sentencing judge was not able to judge for himself the genuineness of any expression of remorse.
However, it should be noted that the applicant's mother stated in her affidavit that she believed that the applicant knew that he had done the wrong thing and regretted his decision to pursue that direction. She stated that she had visited him in detention a number of times and had seen how regretful he was for making such a bad decision. The sentencing judge noted this evidence in his remarks on sentence.
[2]
The remarks on sentence
The sentencing judge summarised the facts and the applicant's subjective circumstances in the manner I have referred to at [12]-[23] above. He noted that the applicant's employers spoke "highly of [the applicant's] work ethic and character". He stated, however, that neither employer appeared to be aware that the applicant "was using cocaine at least on a regular basis". In particular, he noted that one of the employers, Mr Mark Jeffery, did not appear to even be aware that "for the majority of time he employed [the applicant], [the applicant] was in fact conducting a substantial and sophisticated organised criminal distribution network involving substantial quantities of prohibited drugs provided for substantial payment in cash". In those circumstances, he described the employers' opinions as "substantially uninformed".
In respect of the objective seriousness of the offences, the sentencing judge noted that each of the supplies to the undercover officer (UCO) took place over "a period of approximately three months, during which there were eight separate supplies negotiated by the offender of a variety of drugs delivered by or at the direction of [the applicant]. He noted that the quantity of MDMA supplied was "almost twelve and a half times the large commercial quantity threshold", the quantity of MDA was "more than two times the large commercial quantity threshold", and that the quantity of cocaine was "less than two times the commercial quantity threshold". He also noted that, with the exception of 0.2 grams of MDA provided as part of Deployment 6, and the 27.4 grams of amphetamine provided as part of Deployment 8, "all individual supplies were of significant quantities … for substantial sums of money".
The sentencing judge noted that the applicant provided the UCO with an encoded Blackberry device for use in making their arrangements to avoid interception. He noted that there was "no evidence of anyone more senior or in control of the arrangements than [the applicant]". He described the applicant as the person who "acts as the entrepreneurial spruiker who negotiates prices, quantities, offers discounts for bulk or set[s] weekly order commitments". He noted that the applicant tried to "expand the enterprise by offering drugs not even requested by the UCO", extolling the quantity of what could be supplied, and guaranteeing to replace, and in fact replacing, fake cocaine which had been supplied, as well as indicating that he was able to supply "whatever quantity might be requested".
The sentencing judge stated that, in those circumstances, the offences were "all objectively very serious, even acknowledging that quantity alone is not the touchstone". He stated that the applicant's plea of guilty to the offence of knowingly directing the activities of a criminal group was "an acknowledgement of his senior controlling role".
The sentencing judge stated that he accepted that the applicant had expressed remorse and contrition to his mother. He also acknowledged that it was "commonly held that just because a male turns 18 he does not necessarily become an adult, and that it is widely believed that many males are not fully mature until their early 20s". However, he stated that, in the present matter, the applicant was "clearly operating as an adult".
The sentencing judge noted that the applicant had no relevant previous criminal history and accepted, in the circumstances, particularly due to his age, that there was "a reasonable prospect of rehabilitation and a low prospect of re-offending, but that is only if [the applicant] ceases to use prohibited drugs".
The sentencing judge stated that, in sentencing, the sentence "must reflect the objective seriousness of the offence, and a sentencing judge must fix a sentence that reflects all of the circumstances of the offence including the need for general deterrence and specific deterrence, and meet the fundamental purpose of punishment, the protection of society".
The sentencing judge stated he had found special circumstances "as indicated both by the indicative sentences and the actual term of imprisonment imposed as an aggregate sentence", having regard to the age of the applicant and his drug problems. He stated that he had "reduced the non-parole period of the actual sentence to provide for a longer period of parole". In that context, he noted that the balance of term was 6 months more than was "provided for by the regulations for supervision on parole". He said that he had nonetheless provided "a small reduction in respect of his non-parole period in the order of four months and 15 days".
On that basis, the sentencing judge imposed the indicative sentences and the aggregate sentence to which I have referred at [7]-[8] above.
[3]
The submissions
Counsel for the applicant referred to the fact that the offending occurred in a three month period, "just before [the applicant] turned 21 and just after he turned 21". He accepted that the agreed facts made it clear that the applicant was involved at "a very significant level", selling a mobile phone to the UCO as referred to in the judgment of Hoeben CJ at CL in Assam at [10], negotiating drug sales with him, and encouraging "bigger and further sales". He also accepted that the applicant directed his co-offenders, Mr Matu and Mr Purdie, as to what they were to do in the context of the operation.
Counsel for the applicant referred to the fact that the applicant had been in regular employment from 2012 to 2016, first as an apprentice carpenter and then with Master Quality Shades, as I have set out at [18] above.
Counsel for the applicant referred to the evidence of the applicant's mother and his aunt, to which I have referred at [14]-[17] above. He also referred to the evidence of Ms Hubner, to which I have referred at [19]-[21] above.
Counsel for the applicant accepted the fact that the sentencing judge referred to the applicant's youth and to the fact that he had reasonable prospects of rehabilitation, but submitted that he only gave effect to it in a "very limited way", when he effectively stated at the end of his remarks that "I'm going to moderate the sentences by way of a finding of special circumstances".
Counsel for the applicant placed particular reliance on the decisions of this Court in BP v The Queen [2010] NSWCCA 159 (BP) and Bullock v The Queen [2016] NSWCCA 131 (Bullock). In the first of those cases, Hodgson JA made the following remarks:
"[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33]-[36].
[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987. In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.
[6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
In Bullock at [69], Rothman J emphasised that the "principle that a Court shall treat a youth more like an adult, where the youth conducts himself in the way an adult might and commits a crime of considerable gravity, does not mean that every crime of considerable gravity is one in which the youth has conducted himself in the way an adult might". His Honour cited with approval at [70] the remarks of Hodgson JA in BP which I have extracted at [37] above.
Accepting the force of these remarks, the fact remains that, in the present case, the applicant, in knowingly directing the activities of a criminal group in the commission of serious criminal offences, two of which carried a maximum penalty of life imprisonment, was acting as an adult. There was nothing impulsive or immature about his behaviour.
Counsel for the applicant accepted that it was not a case of impulsive behaviour, but submitted that regard should be had to the youth of the applicant where "it could be thought he lacked full awareness of … the seriousness of the conduct in terms of its damage caused to other people". He stated that his submission was not that the applicant was not "deserving of significant punishment", but that the sentencing judge "gave this aspect of this applicant's circumstances no regard".
Counsel for the applicant also placed reliance on the decision of the Victorian Court of Appeal in Azzopardi v The Queen (2011) 219 A Crim R 369; [2011] VSCA 372 (Azzopardi) at [34]-[39], where Redlich JA discussed the principles involved in sentencing young offenders. He referred to his Honour's statement at [34] that young offenders are "more prone to ill-considered or rash decisions" and that they "may lack the degree of insight, judgment and self-control that is possessed by an adult". He also referred to his Honour's statement at [35] that "courts 'recognize the potential for young offenders to be redeemed and rehabilitated'" as they are at "a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour". Counsel for the applicant placed particular reliance on the following passage of the judgment at [44]:
"[44] The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished."
Counsel for the applicant submitted that, consistent with Azzopardi, the present case was one where "rehabilitation had work to do" and the sentencing exercise had to take into account "[the applicant's] youth … evidence of his naivety, and inferentially, his immaturity in becoming involved in such serious conduct at such a young age" where he had not previously offended. He submitted that the sentencing judge erred in failing to take account of the applicant's youth and the importance of rehabilitation. He also submitted that the reduction of the non-parole period of four and a half months from the statutory ratio was "not meaningful", although he accepted it was not a result of an oversight.
The Crown pointed to what it described as the "pivotal role" the applicant played in "a sophisticated drug supply syndicate". It was submitted that, contrary to the applicant's assertion in his written submissions, "the mere length of the term [of imprisonment] is not demonstrative of a complete failure to take the applicant's youth into account". It was suggested that it was "not unusual for young adults to receive lengthy sentences for offences carrying a maximum penalty of life imprisonment".
The Crown submitted that the applicant's youth was taken into account. He referred to the remarks made by the sentencing judge, to which I have referred at [31] above. It was submitted that this finding was open and that it was "not a case in which rehabilitation was given no weight", even though no reference was made to it by the sentencing judge when referring to the purposes of sentencing. So far as the question of special circumstances was concerned, in its written submissions, the Crown submitted that the extent of the adjustment was "essentially a matter within the discretion of the sentencing judge".
[4]
Consideration
The difficulty for the applicant is essentially that the offences committed by him were not impulsive or spontaneous, nor could they be said to have been the product of immaturity. It was not disputed by him that he played a "pivotal role" in an organisation distributing commercial quantities of a number of prohibited drugs. The finding by the sentencing judge to this effect is consistent with the applicant's plea of guilty to the offence of knowingly directing the activities of a criminal group. The sentencing judge correctly described his role as "the entrepreneurial force and prospective empire builder utilising the services of others to make deliveries". In that context, it is well-established that the applicant's youth and comparative immaturity has a lesser role to play in the sentencing process than in sentencing young persons for offences that can, at least in part, be seen to be contributed to by their immaturity or impulsive responses.
Thus, in KT v The Queen [2008] NSWCCA 51 at [25], McClellan CJ at CL pointed out that "the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity". His Honour also said that "in determining whether a young offender has engaged in 'adult behaviour', the court will look to various matters including … the nature and circumstances of the offence", which may mean "the need for rehabilitation of the offender may be diminished by the need to protect society": see also R v Lachlan [2015] NSWCCA 178 at [80]-[83]; PC v The Queen [2016] NSWCCA 137 at [77]-[78]; IS v The Queen [2017] NSWCCA 116 at [60]. Nothing which was said in those cases is, in my opinion, in any way inconsistent with the passage from the judgment of Redlich JA in Azzopardi at [44], which I have cited at [41] above.
It is correct, as Hodgson JA pointed out in BP at [6], that a court should not be "over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult". His Honour gave examples of cases not involving "significant planning or reflection, or any other indicia of mature decision-making". However, for the reasons I have given, the present case cannot be said to fall within these categories.
In these circumstances, the sentencing judge was correct in noting that, while it was "commonly held" that many males are not fully matured until their early 20s, in the present case, the applicant was clearly "operating as an adult". He also took into account that, having regard to the applicant's age, there was "a reasonable prospect of rehabilitation". I have set out these statements at [28]-[29] above. There was no error in this approach.
Further, neither the indicative sentences nor the aggregate sentence would suggest of themselves that the sentencing judge failed to take into account the applicant's youth. It seems clear from the remarks to which I have referred at [31] above that the sentence was arrived at taking the applicant's youth into account. The offences in question were serious examples of offences, two of which had maximum terms of life imprisonment. It was not suggested, nor could it be, that either the aggregate sentence or the indicative sentences were manifestly excessive.
So far as the adjustment to the statutory non-parole period was concerned, the sentencing judge gave consideration to the appropriate adjustment in the circumstances of the case. The appropriate adjustment for special circumstances is "a matter within the discretion of the sentencing judge" and is a matter in respect of which an appellate court should be slow to intervene: Simkhada v The Queen [2010] NSWCCA 284 at [44]. No error of discretion has been demonstrated in the present case.
In these circumstances, the ground of appeal has not been made out. In submissions filed subsequent to the hearing, the applicant requested that, if that was the conclusion reached by the Court, then, rather than granting leave and dismissing the appeal, leave to appeal should be refused so as to preserve the applicant's right to seek leave to appeal on parity grounds if the sentence of one of his co-offenders, Mr Eden Sardi, gave rise to a justifiable sense of grievance. This course should be adopted.
[5]
Conclusion
In the result, the application for leave to appeal should be dismissed.
HOEBEN CJ at CL: I agree with the Chief Justice and the orders he proposes
PRICE J: I agree with the reasons and orders proposed by the Chief Justice.
[6]
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Decision last updated: 15 February 2019
[This headnote is not to be read as part of the judgment]
Mr Azhar Abdul (the applicant) was charged with four counts of knowingly taking part in the supply of prohibited drugs, including cocaine, amphetamine, MDMA and MDA, and one count of knowingly directing the activities of a criminal group. At the time of the offences, the applicant was between 20 and 21 years old and was himself a regular user of prohibited drugs. There were other men who were charged with the applicant as co-offenders. The applicant pleaded guilty to each charge.
The sentencing judge found that there was "no evidence of anyone more senior or in control of the arrangements" than the applicant. He also found that it was the applicant who acted "as the entrepreneurial spruiker who negotiates prices, quantities, offers discounts for bulk or set[s] weekly order commitments" and that he was the "entrepreneurial force and prospective empire builder utilising the services of others to make deliveries". In these circumstances, the sentencing judge found that the applicant was "clearly operating as an adult" despite his youth, but that he had "a reasonable prospect of rehabilitation and a low prospect of re-offending" if he ceased to use prohibited drugs.
The applicant sought leave to appeal from his sentence. There were two main issues on appeal:
1 Whether the sentencing judge had erred in failing to take into account the applicant's youth in determining an appropriate sentence;
2 Whether the sentencing judge had erred in failing to take into account the importance of rehabilitation in determining an appropriate sentence; and
3 Whether the sentencing judge had erred in determining the appropriate adjustment to be made for special circumstances in determining the non-parole period.
Whether youth not taken into account
(i) While the youth of an offender could be taken into account in cases not involving significant planning or reflection, or any other indicia of mature decision-making, the circumstances of the offences in this case did not fall into any of those categories. The sentencing judge had found, and the applicant did not dispute, that he played a "senior controlling role" in an organisation distributing prohibited drugs. Therefore, the sentencing judge did not err in finding that the applicant was "clearly operating as an adult": [45]-[48] (Bathurst CJ); [53] (Hoeben CJ at CL); [546] (Price J).
KT v The Queen [2008] NSWCCA 51; BP v The Queen [2010] NSWCCA 159, considered.
Azzopardi v The Queen (2011) 219 A Crim R 369; [2011] VSCA 372, referred to.
Whether importance of rehabilitation not taken into account
(ii) The sentencing judge did not fail to take the importance of rehabilitation into account. The sentencing judge expressly identified that the applicant had "a reasonable prospect of rehabilitation" in the remarks on sentence: [48] (Bathurst CJ); [53] (Hoeben CJ at CL); [54] (Price J).
Whether appropriate adjustment for special circumstances
(iii) The appropriate adjustment for special circumstances is a matter within the discretion of the sentencing judge and is a matter in respect of which an appellate court should be slow to intervene. It had not been demonstrated that there was any error in how the sentencing judge had taken into account the applicant's youth or his prospects for rehabilitation. Therefore, the sentencing judge did not err in making an appropriate adjustment for special circumstances: [50] (Bathurst CJ); [53] (Hoeben CJ at CL); [54] (Price J).
Simkhada v The Queen [2010] NSWCCA 284, referred to.
Factual background
The factual background is set out in the judgment of Hoeben CJ at CL in Assam v The Queen [2019] NSWCCA 12 (Assam) and it is unnecessary to reproduce what his Honour said in that judgment.
However, it should be noted that the prohibited drugs which were the subject of Counts 1, 2, 3 and 4 for the applicant correspond to the prohibited drugs identified in the separate "Deployments" outlined in that judgment in the following manner:
The amphetamine which was the subject of Count 1 is that referred to in Deployment 8;
The MDMA which was the subject of Count 2 comprised quantities of that drug referred to in Deployments 1, 2, 3, 5, 7 and 8. The balance was found on a search of the applicant's premises;
The cocaine which was the subject of Count 3 comprised quantities of that drug referred to in Deployments 4, 5, 7 and 8. The balance was found on a search of the applicant's premises; and
The MDA which was the subject of Count 4 comprised quantities of that drug referred to in Deployments 6, 7 and 8. The balance was found on a search of the applicant's premises.