Al Janabe v The Queen [2021] VSCA 252

1 On 11 April 2019, the applicant pleaded guilty in the County Court to one charge of trafficking not less than a large commercial quantity of a drug of dependence[1] (methylamphetamine) and one charge of conspiracy to commit a common law assault.[2] He also pleaded guilty to six related summary charges, including one charge of possession of a controlled weapon,[3] one charge of committing an indictable offence whilst on bail,[4] and four charges of failure to provide access to data.[5]

2 Following a plea hearing on 23 May 2019, the judge sentenced the applicant on 16 August 2019 to a total effective sentence of 11 years and 10 months' imprisonment, with a non-parole period of eight years, in accordance with the following table:

Trafficking not less than a large commercial quantity of a drug of dependence

Trafficking, 13 years' imprisonment; conspiracy, 16 months[6]

3 The applicant now seeks leave to appeal against sentence on three grounds as follows:

1 The learned sentencing judge erred in sentencing the applicant on the basis that:

1. there was an intention to cause injury to the proposed victim; and

2. the scope of the agreement could be clearly assessed by reference to an intercepted phone call in which - as a result of the 'serious assault' that was planned - the proposed victim would not be able to hold scissors anymore.

2 The learned sentencing judge erred in fixing the non-parole period, in that his Honour:

1. erroneously stated that the 'standard non-parole period' for the offence of trafficking in a drug of dependence in a commercial quantity was 9.6 years; and

2. failed to give effect to his stated intention that the mandated non-parole period not apply, by reason that it would be inappropriate and unjust in the circumstances.

3 The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the applicant's early guilty pleas, deprived background, and assistance to the authorities.

4 As I will explain, both the first and third ground must succeed. It will therefore be necessary to: grant the application for leave to appeal against sentence; allow the appeal; and resentence the applicant in the manner set out below. Given my conclusions on grounds 1 and 3, it is unnecessary to consider ground 2.

5 The applicant's offending may be summarised briefly.

6 On 1 March 2018, the applicant provided nine vacuum-sealed packages containing 8.916 kilograms of methylamphetamine (6.93 kilograms pure) to a co-offender, Nicholas Fabris. Fabris carried the packages in his luggage on a commercial Jetstar flight from Melbourne to Perth on 2 March 2018, but was arrested upon arrival in Perth.

7 At the relevant time, a large commercial quantity of methylamphetamine was 500 grams of pure substance, or 750 grams in a mixture.[7]

8 A little over a week later, on 9 March 2018, the applicant sold two ounces of methylamphetamine to two associates. Subsequently, he supplied them with a further eight ounces of methylamphetamine; and, on 6 April 2018, agreed to supply them with another eight ounces of methylamphetamine.

9 The applicant was arrested and interviewed on 13 June 2018. He denied involvement in the offending and was released.

10 Testing of the internal packaging of the drugs found in Fabris' possession on 2 March 2018 revealed the presence of the applicant's DNA. As a result, the applicant was once more arrested at his home on 23 July 2018. He was found in possession of various accoutrements of trafficking, including a vacuum sealer, and four mobile telephones. A silver baton was also found. When requested to do so, the applicant refused to provide investigators with the passwords for the four phones.

11 The applicant was involved in packaging, sealing and transporting the illicit drugs, and he was responsible for recruiting Fabris. In order to keep his activities hidden, he used various aliases and communicated with others via encrypted messages. He was on bail when he offended.

12 This ground - which must succeed - may be briefly disposed of.

13 Shadi Farah, a co-offender, the owner of a fruit shop in Toorak Road, Toorak, had a dispute with a nearby barber, Nadar Kajajo. On 30 April 2018, Farah recruited the applicant to assault Mr Kajajo. There were discussions by telephone that were intercepted by police investigating the applicant's drug activities. On 3 June 2018, Farah contacted the applicant and they discussed what was to happen. The applicant stated that Mr Kajajo 'won't be able to hold scissors in his hand anymore'.

14 Counsel for the respondent fairly conceded that the sentencing judge made the same error as in Farah's case.[8] That concession was properly made, since the judge's sentencing remarks reveal that he fell into specific error by effectively sentencing the applicant for a different and more serious offence than that with which he was charged, involving (at the least) a conspiracy to intentionally cause injury to Mr Kajajo, rather than to merely assault him.

15 As a result of the error, the application for leave, and the appeal, against sentence on the conspiracy charge must, as I have said, succeed, and the sentencing discretion be reopened.

16 In the circumstances, I would set aside the sentence on the conspiracy charge first imposed, and in lieu sentence the applicant to six months' imprisonment. Self-evidently, it will also be necessary to revisit the order for cumulation.

17 I agree with the applicant's contention that the individual sentences on the related summary charges of possessing a controlled weapon and failing to provide access to data are manifestly excessive.

18 There was no justification for imposing a sentence of six months' imprisonment - 50 per cent of the available maximum - for possession of the baton. The weapon possessed was not among the more dangerous controlled weapons, and - despite the prosecution suggestion that it was an 'accoutrement of trafficking' - there was no evidence that it had been used as a weapon, let alone in connection with trafficking. Indeed, the judge provided no justification in his sentencing remarks for imposing a sentence equating to 50 per cent of the maximum following a plea of guilty, making no mention at all of the baton.

19 The sentence for possessing a controlled weapon is manifestly excessive and must be set aside. In all the circumstances, a fine of $500 should be substituted.

20 It is also difficult to see any justification for imposing sentences of 12 months' imprisonment - once more, 50 per cent of the available maximum - on each charge of failing to provide access to data, and ordering two months' cumulation of the sentences on each of those charges, in circumstances where the applicant had pleaded guilty and the offending could not be characterised as a particularly serious example of the offence. Although four telephones were involved - resulting in the laying of four separate charges - the failure to provide access to data was essentially a single piece of conduct.

21 The individual sentences imposed on the four charges of failing to provide access to data do not give adequate recognition to the pleas of guilty. They are manifestly excessive and must also be set aside. In all the circumstances, an aggregate sentence of six months' imprisonment should be substituted.[9] Once more, it will be necessary to revisit the question of cumulation of the substituted sentence.

22 I am not persuaded, however, that the sentence imposed on the applicant for trafficking in a large commercial quantity of methylamphetamine is manifestly excessive.

23 As a starting point, the seriousness with which the legislature gauges the offence may be gleaned from both the maximum prescribed penalty of life imprisonment, and the 16 year standard sentence.[10]

24 In this case, the trafficking charge embraced a number of individual instances of trafficking on several occasions over a period of months, during which the total amount trafficked was in excess of nine kilograms of methylamphetamine. The most significant of those instances was Fabris' transportation of 8.916 kilograms from Victoria to Western Australia. In pure substances, that amount was more than 12 times the prescribed large commercial quantity.

25 So far as his personal circumstances are concerned, the applicant, now aged 45 years,[11] was born in Iraq and grew up under the Saddam Hussein regime. In 1988, when he was aged 12, the war between Iraq and Iran commenced. The war between Iraq and Kuwait commenced two years later. He told psychiatrist Dr Natalie Krapivensky that as a result he did not have a childhood or adolescence. The applicant fled Iraq and arrived in Australia as a refugee in 1998, at the age of 22 years, and spent a period in immigration detention. He became an Australian citizen in 2001. The applicant's brother, who remained in Iraq, was killed during the American invasion in 2004. In 1998, the applicant married his wife on the Iraq-Jordan border. They came to Australia in early 2004, and have two daughters (born in 2003 and 2006). In Australia, the applicant experienced difficulties due to his lack of proficiency in English and lack of a meaningful education, and consequently had difficulties finding gainful employment. The applicant's wife left him in 2016. He told a psychiatrist he started using methylamphetamine a month after his wife left him. Urine screens showed that he had not been using drugs in custody.

26 The applicant's criminal record is relatively limited. He has convictions for riotous assembly, recklessly causing injury, assault with a weapon and intentionally damaging property (1999); theft and handling stolen goods (2004); and attempting to obtain property by deception (2006), but no prior convictions for drug offences. The applicant was also subsequently imprisoned for 41 days (which represented time served) in October 2018 for offending which included being in possession of a loaded pistol.[12]

27 Counsel for the applicant on the plea placed considerable reliance on the applicant's assistance to authorities. Hence, the applicant was one of two eyewitnesses to a 'drive-by shooting' and had identified both the alleged shooter and driver of the vehicle from which the shots were fired; he was assaulted and threatened with a knife approximately one month after the shooting, related to his assistance to the authorities; and the applicant's assistance to prosecuting authorities placed him in danger on multiple occasions, including whilst on remand, where the applicant has spent a significant period in protective custody due to a knifing threat made by family members of those alleged to have been involved in the shooting. The applicant had provided, and had given an undertaking to continue to provide, significant assistance in the prosecution of an attempted murder.

28 In his sentencing remarks, the judge said of the applicant's assistance:

... I note that he gave evidence in the trial in the Supreme Court in April of this year and that he is to give evidence, subsequent to this hearing, at the adjourned hearing in the Supreme Court. ... I do indeed, intend to give him an appropriate discount for the facilitation of justice which that represents, and the difficulties in gaol that he will suffer and has suffered by offering such assistance and the future burden upon him of such in serving a sentence.

29 Relying on Johnston,[13] Cottee[14] and Cooper,[15] counsel for the applicant contended in this Court that, despite his statement that he would give the applicant 'an appropriate discount for the facilitation of justice which that [assistance] represents', it is clear from the sentence imposed that any discount afforded to the applicant was not nearly enough.

31 In Haamid, the Court usefully summarised the principles derived from the authorities which govern the 'discount' on sentence for an offender who cooperates with authorities.[16] Among other things, the cases recognise that the discount to be provided to a 'true informer' may be as high as 66 per cent,[17] there being a number of cases in which a discount of 50 per cent has been provided. There is, however, no set 'tariff' or standard discount provided for cooperation, the extent of any discount being determined by a range of factors.

32 Had it not been for the applicant's assistance to authorities, I would have expected the individual sentence for trafficking a large commercial quantity of methylamphetamine to be at least a third higher (if not more). Thus, so it appears to me, the judge must notionally have awarded the applicant a 'discount' on the otherwise appropriate sentence of at least a third.[18]

33 Bearing steadily in mind that every case must be determined on its own facts, and acknowledging the limitations of resort to comparable sentencing cases (so-called),[19] an example of the kind of sentence that might be expected to have been imposed on the applicant but for his cooperation is provided by Quah.[20] In that case, an individual sentence of 15 years' imprisonment was imposed for trafficking in a quantity of methylamphetamine which was the equivalent of four times the large commercial quantity (the quantity that the present applicant trafficked being more than 12 times the commercial quantity). The Court described that sentence as 'unremarkable'.[21]

34 In my view, the sentence of 10 years' imprisonment imposed on the trafficking charge is very lenient. That leniency can only be explained by the sentencing judge having given the applicant's assistance to authorities significant weight. Thus, the contention that the sentence is manifestly excessive - that is, altogether outside the range of sentences open in the sound exercise of discretion - cannot be accepted.

35 In light of the foregoing, it is plain that the application for leave to appeal against sentence must be granted and the appeal must be allowed.

36 As I have said, the sentences on the conspiracy charge and for five of the summary offences must be set aside, but the sentence on the trafficking charge should remain undisturbed. I would resentence the appellant in accordance with the following table:

Trafficking not less than a large commercial quantity of a drug of dependence

37 All other orders of the County Court should be confirmed.

38 I agree with Priest JA, whose reasons I have had the benefit of reading in draft.

[1] Drugs, Poisons and Controlled Substances Act 1981, s 71(1). The maximum penalty is life imprisonment. By virtue of s 71(2), the standard sentence is 16 years' imprisonment.

[2] Crimes Act 1958, s 321. The maximum sentence is five years' imprisonment.

[3] Control of Weapons Act 1990, s 6(1). The maximum sentence is one year's imprisonment or 120 penalty units.

[4] Bail Act 1977, s 30B. The maximum sentence is three months' imprisonment or 30 penalty units.

[5] Crimes Act 1958, s 465AAA. The maximum sentence is two years' imprisonment.

[6] The sentencing judge failed to make a declaration in relation to the related summary offences, the total effective sentence of imprisonment, or the non-parole period, as was required by s 6AAA(2) of the Sentencing Act 1991.

[7] Drugs, Poisons and Controlled Substances Act 1981, Columns 1A and 1B, Part 3, Schedule 11.

[8] Farah v The Queen [2019] VSCA 300, [33]-[42], [52]-[54] and [60]-[70] (Priest and Weinberg JJA).

[9] See Sentencing Act 1991, s 9(1).

[10] See Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464-5 [4], 465 [7] and 479 [56] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[11] His date of birth is 3 April 1976.

[12] The applicant was placed on bail on 18 November 2017 for what ultimately became these subsequent convictions.

[13] R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345.

[14] Cottee v The Queen [2010] VSCA 285.

[15] DPP v Cooper [2018] VSCA 21.

[16] Safi Haamid (a pseudonym) v The Queen [2018] VSCA 330, [24].

[17] The example of a 'true informer' given is a person who is a member of an organised crime syndicate who provides information against other members of the syndicate in circumstances where his or her personal safety, and that of members of his or her family, is placed at grave risk.

[18] By virtue of s 5(2AB) of the Sentencing Act 1991, if a sentencing judge imposes a less severe sentence than he or she would otherwise have imposed because of an undertaking given to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the judge must announce that he or she is doing so and cause that to be noted in the records of the court. Section 5(2AC) provides, however, that the judge is not required to state the sentence that would have been imposed but for the undertaking.

[19] See Lytras v The Queen [2020] VSCA 150, [49]-[58] (Priest and Weinberg JJA).

[20] Quah v The Queen [2020] VSCA 164.