Ali Osman v R

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25A Crimes (Sentencing Procedure) Act 1999 - ss 32, 33

CASES CITED : R v Cheikh, R v Hoete [2004] NSWCCA 448 R v Christie [2000] NSWCCA 354

COUNSEL: D Arnott SC - Crown A Francis - Applicant

SOLICITORS: S Kavanagh - Crown Kiki Kyriacou - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/00004715

McCLELLAN CJ AT CL HIDDEN J HOWIE J

MONDAY 14 JULY 2008 ALI OSMAN v R Judgment 1 McCLELLAN CJ AT CL: I agree with Howie J. 2 HIDDEN J: I agree with the orders proposed by Howie J and, subject to two comments, with his Honour's reasons. 3 I find it unnecessary to determine whether the fact that the applicant's medical problems were present at the time of his offending is relevant to their bearing on sentence. It is sufficient to say that the learned sentencing judge took his medical condition into account appropriately. Nor do I find it necessary to comment upon the reasoning of Fitzgerald J A in Christie. The present case does not call for a re-examination of what his Honour had to say in that decision, and I express no view about it.

4 HOWIE J: This is an application for leave to appeal against sentences imposed by Judge Nield in the District Court after the applicant pleaded guilty to four offences of ongoing supply of a prohibited drug contrary to s 25A of the Drug Misuse and Trafficking Act. Each of the offences carries a maximum penalty of 20 years imprisonment. In addition the applicant asked the sentencing judge to take into account similar matters on a Form 1. As a result the applicant was sentenced to a total sentence of 15 years imprisonment with a non-parole period of 9 years. The sentences were imposed on 1 September 2005 but the applicant did not seek leave to appeal until 1 February 2008. 5 There was a procedural irregularity in the sentencing proceedings in that the Form 1 asked the sentencing judge to take into account the matters specified when sentencing for all of the offences on the indictment. The relevant provision of the Crimes (Sentencing Procedure) Act 1999 requires that the Form 1 specifies a "principal offence", the sentence for which the matters on the Form 1 are to be taken into account; see s 32. Section 33 provides that the court may take into account the additional offences when sentencing for the "principal offence". As it could not have been the intention of Parliament that the matters on the Form 1 could be taken into account in respect of all the offences for which the offender was to be sentenced, as that would give rise to double counting, it is necessary for the Form 1 to specify a specific offence in respect of which the matters set out are to be taken into account when sentencing for that offence. 6 The Judge sought to overcome this problem by taking individual Form 1 matters into account when sentencing for different offences on the indictment. For example the first matter on the Form 1 was taken into account on the first count and the second matter on the second count and so on. This had a tendency to minimise the impact of the Form 1 matters, especially where, as here, five of the Form 1 matters were of equal seriousness to the offences on the indictment. The sixth matter was also serious being the supply of cannabis over the same period covered by the ongoing supply offences. 7 Each of the offences on the indictment was an ongoing supply of methylamphetamine referable to a period of 30 days being, (count 1) October 2001, (count 2) December 2001, (count 3) February 2002 and (count 4) June 2002. The Form 1 matters represented the supply activity in the months intervening between the offences on the indictment. Therefore the offences before the court related to the on-going supply of methylamphetamine and cannabis over a period of 7 months. 8 The sentences imposed upon the applicant were as follows:

Count 1 and offence 1 on Form 1: Fixed term of 8 years from 11 March 2004 and expiring on 10 March 2012.

Count 2 and offence 2 on Form 1: Fixed term of 8 years from 11 March 2004 and expiring on 10 March 2012.

Count 3 and offence 3 on Form 1: Fixed term of 8 years from 11 March 2004 and expiring on 10 March 2012.

Count 4 and offences 4, 5, and 6 on Form 1: Non-parole period of 4 years and 2 months from 11 January 2009 and expiring on 10 March 2013. There was a balance of term of 6 years expiring on 10 March 2019. 9 There was a statement of facts placed before the sentencing Judge. Although not entitled "Agreed statement of facts", there was no objection taken to it or any part of it. In addition a number of statements from the prosecution brief were also tendered. A brief summary of the facts is as follows. 10 Police had become aware in October 2001 that a drug syndicate was involved in the supply of cannabis and methylamphetamine in the Bankstown and Hurstville areas. The investigating police lawfully intercepted thousands of phone calls made between the participants in the syndicate and others. It was estimated that between 100 and 200 calls were taken each day by the syndicate each of which resulted in the supply of drugs. This was the pattern of conduct occurring over the period of 218 days during which the calls were intercepted. Undercover officers infiltrated the syndicate's purchasers. 11 The statement of facts contained the following paragraphs:

"Analysis of over ten thousand telephone intercepts show Ali Osman as a manager of the syndicate, supplying the runners with drugs, paying them for their services and checking on their locations. The runners would also be contacted by Osman during the course of their shifts to ensure that they had sufficient drugs to supply. Osman's managerial role included arranging for the runners to work day or night shifts. The day shift commenced at approximately 10:30 a.m. and the evening shift commenced at 4:30 p.m. and ended at around 11 p.m. Numerous calls show Osman instructing the runners to change over their hire vehicles and checking the runners commencing their shifts at appropriate times.

Osman directs the runners to make enquiries with customers whether they are satisfied with their purchases when the numbers of sales are low. At times Osman gives the runners permission to finish early. Osman makes calls to the runners to ensure that the deliveries are timely and keeps checking as to the number of customers being kept waiting for their drug deliveries. Osman is intercepted having conversations regarding disciplinary action of runners"

The facts indicated that one of the runners was named Hoete and another manager was named Cheikh. 12 The statement of facts set out the content of a number of calls involving the applicant. The following are some examples (the applicant speaks first):

"Are you busy [Hoete]? Yeah . How much have you done? About 6. Have you sold any pills? Just two. Go to Hurstville, by Shell a guy wants 10 of them. Ten? Yeah. OK ."

"Listen? When the guy called at Liquorland what took you so long? I was out in the bush. It took you an hour. What bush? Earlwood . It takes an hour from Earlwood to Punchbowl? I was busy man, took that long to get everyone on the way . How busy? I've done 1400 . You call that busy."

"At 4.30, when you're changing over go pick up Frank from home, he's going to do it. Yeah alright . You know where he lives? Yeah . Don't keep too many people waiting while you're doing it, alright? Yeah. "

"Busy [Hoete]? Yeah a little bit yeah . Listen tell everyone that takes GO, that we've got some new stuff coming in, in a couple of hours. Yeah . Make sure you tell'em. Yeah right ."

"Where are you? What ? You at home? Yeah . Get $240 of yesterdays money and I'll call back and tell you who to give it to. 240? Yeah." 13 The applicant gave evidence at the sentencing hearing. It is obvious that he attempted to minimise his role in the syndicate. In effect his evidence was that he joined in October 2001 because he was in debt as a result of purchases of cannabis from the syndicate and was offered work to pay off the money he owed. He said that he was not supplying drugs but he was a "helper" in that he assisted in organising the runners. He said that he just helped Mr Cheikh "here and there". He denied that he was a manager. He said that every week he would be given cannabis and $500 or $600 cash. 14 In cross-examination it was pointed out to the applicant that he had told an officer from the Probation and Parole Service who prepared a Pre-sentence Report that he had "no addictions to support" and that he was talked into joining because there was some easy money to make. He had some difficulty explaining why he continued in the syndicate notwithstanding that he could have paid off his drug debt within the first couple of weeks and left. The Judge did not accept his evidence and found that he joined the syndicate to make easy money. His Honour also doubted that the applicant used cannabis. 15 The applicant was born on 4 April 1983, making him 18 when he commenced his activities with the syndicate and 22 at the date of sentencing. He is now aged 25. He has a relevant criminal record. On 21 January 2002 he appeared in the Childrens Court in relation to offences that occurred in February 2001. These offences included charges of possessing and supplying drugs. The facts of these charges, which were placed before the sentencing judge, indicate that the applicant was carrying on business as a drug dealer in methylamphetamine and cannabis. He was placed on good behaviour bonds. Of course he breached those bonds immediately when he continued participating in the drug syndicate, activity in which he was involved when he attended the Childrens Court to be sentenced. 16 There is little in the applicant's background of relevance. He was living with his parents at the time of his arrest and was unemployed. The applicant was obese and suffered from a serious eye disorder as a result of pressure to the optic nerve and a further complication called keratoconus. He had been treated for the problem since 2003 although the applicant gave evidence that he first became aware of the problem in 2001. He has severe visual impairment in both eyes. He had a corneal transplant in April 2004. While in custody he was assaulted to the head and as a result placed on protection because any such assault threatens the sight of his right eye. The applicant gave evidence that he spent about 23 hours a day in his cell and did not mix with other prisoners. This Court was not presented with any evidence as to his current position in relation to his eyesight or the nature of his prison environment. 17 The delay in the current matters being dealt with in the District Court is noteworthy. The applicant was arrested in June 2002 and committed for trial in December 2002 when he was released on bail. Yet he did not plead to the offences until March 2004 and was not sentenced until September 2005. He was in custody from April to May 2004 when charged with an unrelated matter for which he was sentenced in November 2005 to a term of imprisonment concurrent with the present offences. It appears that the problems with his eyesight delayed to some extent the resolution of the proceedings for these offences. 18 On 16 December 2004 this Court dealt with a Crown appeal brought against the sentences imposed upon the other manager in the syndicate, Cheikh, and the runner Hoete: see [2004] NSWCCA 448. In respect of Cheikh the Crown appeal was allowed and he was sentenced for the same four offences as the applicant, with five similar matters taken into account, to a total sentence of 15 years with a non-parole period of 11 years. The sentences imposed upon Cheikh by this Court were:

Count 1 and offence 1 on Form 1: Fixed term of 8 years from 19 September 2003 and expiring on 18 September 2011.

Count 2 and offence 2 on Form 1: Fixed term of 8 years from 19 March 2005 and expiring on 18 March 2013.

Count 3 and offence 3 on Form 1: Fixed term of 8 years from 19 September 2006 and expiring on 18 September 2014.

Count 4 and offences 4 and 5 on Form 1: Non-parole period of 5 years and 4 months from 19 July 2008 and expiring on 18 November 2013 with a parole period of 4 years 10 months. 19 It is to be observed that the applicant was sentenced to the same terms of imprisonment as Cheikh on the first three counts although in the applicant's case the sentences were made concurrent with each other. As against a head sentence of 15 years Cheikh is to serve a non-parole period of 11 years and the applicant a non-parole period of 9 years. It should be noted that this Court, after a Crown appeal, sentenced Hoete to 8 years imprisonment with a non-parole period of 5 years. 20 In considering the sentences imposed upon Cheikh, Giles JA who wrote the principal judgment of the Court, set out the following paragraph from the statement of facts tendered in the sentencing of Cheikh:

2. As a result of the investigation the police identified Hoete, Belvie, Waghorn, Khalil and Habib as operating as 'runners' for the syndicate. The telephone interceptions show Cheikh was the manager of the syndicate, supplying the runners with drugs, paying them for their services, checking on their locations and seeing if that [sic] had sufficient drugs to supply during their shifts."

In relation to the part played by Cheikh Giles JA stated:

54 It is convenient first to deal with these findings. It was submitted that it was incorrect to find that Cheikh and Osman "established" the business, and that the Crown case had not gone beyond their being managers. I do not see significance in the judge's use of the word. He sentenced Cheikh as "the manager of the business [who] … supplied [the drugs] to his employees so that they might supply them to users of them". It was submitted that it was incorrect to find that Cheikh provided each employee with a motor vehicle, because Osman rather than Cheikh might have done so and it was apparent that Hoete often used his own motor vehicle. Again I do not see significance in this. The judge in fact said that "Mr Cheikh and Mr Osman" provide the motor vehicles, and sentencing did not turn in any way on whether the conduct of the business under Cheikh's co-management involved each and every runner having a business vehicle. 21 There are two grounds of appeal. The first is that the applicant has a justified sense of grievance arising from the head sentence imposed upon Cheikh having regard to his, the applicant's, lesser involvement in the enterprise. The second ground of appeal is that the sentence is manifestly excessive. The second ground should technically be dealt with first, because the question of disparity only arises if the sentence imposed upon the applicant is otherwise unimpeachable. 22 During the course of his sentencing remarks, the sentencing judge made the following statement about the applicant's role:

"The offender claims that his role in the management of the syndicate was limited to "administration". However, the statement of facts, exhibit A, reveals that he was more involved, more hands-on, so to speak, then the administrator. His counsel submitted that his role was less important than that of Cheikh. I cannot see the distinction between Cheikh and the offender, they were the managers of the syndicate and, although they may have done different things, they were equals and management of the syndicate." 23 It was argued in this Court that there was a significant difference between the criminality of Cheikh and that of the applicant, not the least being because Cheikh set up the syndicate whereas the applicant joined an on-going operation. There was however no evidence that Cheikh had set up the syndicate, a point raised by Cheikh on the hearing of the Crown appeal against his sentence as seen in the passage quoted above from the judgment of Giles JA at [54]. 24 It was also argued that there was no evidence of any telephone calls involving the applicant in October 2001 and, therefore, his role must have been less than Cheikh in that month. It was stressed that, but for the plea of guilty, the Crown would have had difficulty proving the applicant's involvement in the syndicate in any capacity in that month. 25 Had the applicant been sentenced for his conduct in October and perhaps one or two months in addition, the argument might have had some validity. But the applicant was being sentenced for his involvement in the syndicate for a period of about 7 months during which period, overall, he was a manager of the syndicate. The fact that he may have taken a little time to develop that role so that he was not immediately controlling the runners when he entered the syndicate in October is of little significance. As Justice Giles indicated in the appeal in respect of Cheikh, there is little purpose to be served in identifying with exactitude what each of the applicant and Cheikh did in carrying out their particular managerial functions. They were both managers and generally speaking they were carrying out the same functions. The role attributed to Cheikh in the facts against him, that is "supplying the runners with drugs, paying them for their services, checking on their locations and seeing if that [sic] had sufficient drugs to supply during their shifts" was very much the same role that the applicant was fulfilling in the telephone calls set out in the statement of facts tendered against him. It might have been that he was not actually supplying the runners with drugs, but that does not seem to me to be particularly significant having regard to his active involvement in the management of the syndicate over a not insignificant period. 26 It should also be noted that the applicant had an additional matter on the Form 1 than did Cheikh. This was the supply of cannabis leaf over a period of 7 months. That fact needed to be reflected in the sentence imposed upon the applicant. 27 In my opinion there was no error in the judge treating the criminality of Cheikh and the applicant as generally the same for the purpose of sentencing them both. Insofar as there is a complaint that the sentence imposed upon the applicant and Cheikh for the first count was the same whereas in October the applicant's role was less than Cheikh's, this is a highly technical argument in light of the fact that that sentence was made concurrent with the sentences for the second and third counts in the applicant's case, whereas the sentences for those counts were partly cumulative in the case of Cheikh. If strict sentencing principles were to be followed, there should have been some cumulation of the sentences imposed upon the applicant for the first three offences on the indictment. Similarly a complaint that the applicant is to serve five years for the first three offences whereas Cheikh is to serve four years ten months for the same offences is with respect overly technical. There was a difference in the discounts for the plea of guilty in favour of Cheikh. In any event, if there is no error in the overall sentences imposed upon the two offenders, then the exercise of the discretion to address disparity does not require this Court to intervene on particular sentences where the difference in the sentences imposed is minimal. 28 There were some differences between the subjective circumstances of Cheikh and the applicant. Cheikh received a discount for the plea of guilty of 15 per cent when this Court resentenced him whereas the applicant received a discount of 10 per cent. The applicant was on a good behaviour bond for an offence of supplying a prohibited drug when he was involved in the syndicate after January 2002. He was on bail for the same offences when he joined the syndicate in October 2001. The fact that the applicant committed the offences, for which Judge Nield was sentencing him, while on conditional liberty for similar offending was a seriously aggravating factor. On the other hand Cheikh had no relevant criminal history. Cheikh was older than the applicant but had a wife and child. The applicant had medical problems, and would be required to spend his time in protection. The weight to be given to the presence of his medical problems was to be reduced somewhat because they were present at the time of the offending. 29 Much was made both before the sentencing judge and this Court that the applicant had been a young immature man who had been given no assistance even when placed upon bonds when sentenced in the Childrens Court. The difficulty with that submission is that the applicant denied the offences for which he was sentenced in the Childrens Court and hence supervision was seen as having little value and thus terminated. He was at that time living with his parents. The Pre-sentence Report placed before the District Court indicated that the Probation and Parole Service had little or nothing to offer the applicant by way of supervision or programmes. There was no evidence to indicate that the applicant was so immature that this was a factor to be given any significant weight in sentencing him for these serious offences. 30 It is difficult for this Court to compare in detail the factors favourable or unfavourable to each of the applicant and Cheikh. They were sentenced by the same judge, notwithstanding the intervention of the Court of Criminal Appeal in the case of Cheikh, and in such a case this Court must have regard to factual findings and impressions acted upon by the judge when determining the respective culpability and respective personal circumstances of each of the offenders. The judge here clearly favoured the subjective circumstances of Cheikh over those of the applicant and gave weight to those particular matters. For example he found there were prospects for rehabilitation arising from the fact that Cheikh was working while on bail. This Court has not had placed before it all the material relating to Cheikh that was placed before the sentencing judge and taken into account by the Court of Criminal Appeal. 31 On the other hand the judge was entitled to give significant weight to the aggravating factor that the applicant committed these offences while on bail or a bond for similar and serious criminality. This resulted in the judge commenting that the applicant was not immature when it came to supplying drugs. In my opinion this was a very substantial matter of aggravation and was not significantly diminished by the fact that the applicant was a young man. There is nothing to suggest that he did not appreciate the seriousness of the criminality of his conduct either in the offences for which he was before the Childrens Court or in these matters. 32 I am not persuaded that the applicant was subjectively in a more favourable position that Cheikh. To the contrary, putting to one side the applicant's medical condition and its impact upon the nature of his custody, it would have been open to the sentencing judge to impose a more severe sentence on the applicant because of the aggravating factor of his being on conditional liberty for the same type of offending and the additional matter on the Form 1. 33 One issue that arises in this case is the relevance of the fact that Cheikh's sentence was imposed after a Crown appeal. It is well established that this Court takes into account double jeopardy when resentencing on a successful Crown appeal. As a result the sentence imposed is usually at the very bottom of the available range and is frequently less than should have been imposed at first instance. In the case of Cheikh, Giles JA considered the minimum sentence that ought to have been imposed upon Cheikh for the purpose of resentencing him and noted (at [59]), "a greater period of imprisonment could have been imposed without error." 34 The Crown brought the Court's attention to the decision in R v Christie [2000] NSWCCA 354. That was a case in which the trial judge had sentenced a co-offender by way of a fine, a sentence that this Court held to be manifestly inadequate. This Court after a Crown appeal imposed a term of imprisonment but ordered that it be served by way of periodic detention, described by one of the judges in the majority as "the least possible sentence". The applicant had been sentenced to imprisonment for 5 years with a non-parole period of three years. The only issue was the question of parity with the sentence imposed upon the co-offender by this Court. 35 Fitzgerald JA gave the leading judgment of this Court. In relation to the sentence imposed upon the co-offender, his Honour stated:

15 It is immaterial for present purposes that because of the error made by the judge who initially sentenced [the co-offender] the sentence which this Court imposed upon her was inordinately low. Since the sentence which [the co-offender] received was imposed by this Court, it cannot be rejected as unsuitable as a basis for comparison with the applicant's sentence……………. 36 In determining that the sentence imposed upon the applicant was not unreasonably disparate, Fitzgerald JA held:

19 In this difficult area, the law yields logic to justice. An otherwise appropriate sentence imposed on an offender is reduced if that is necessary to ensure that he or she is not treated unjustly compared to a co-offender, even a co-offender to whom leniency has been extended, unless the co-offender's sentence is unsuitable as a basis for comparison because of manifest error. When comparison is legitimate, it is necessary for the Court to decide whether, after due allowance has been made for all material differences, the sentence of the offender seeking a reduction is so much more severe than the sentence imposed on the co-offender that the resulting disparity gives rise to a justifiable sense of grievance. 37 In that case there was no issue of parity arising because of the difference between the criminality of the applicant and the co-offender and the different subjective considerations, including a plea of guilty by the co-offender. It was held that, even taking into account that the co-offender was treated leniently because of the Crown appeal, there could be no justifiable sense of grievance held by the applicant in all of the circumstances of that case. 38 It is unnecessary in order to resolve this matter to consider the issue of parity in relation to a sentence imposed by this Court following a Crown appeal where that sentence was less than it might otherwise have been because of the effect of double jeopardy. For my part, and with respect to the members of the Court in Christie, I have some difficulty understanding why an offender should receive a reduced sentence because of the effect of double jeopardy on a co-offender. However, when sentencing the applicant Nield DCJ took the approach favoured by this Court in Christie. The judge stated:

51. As I consider that Cheikh and the offender were equals in the management of the syndicate, the overall sentence imposed upon Cheikh by the Court of Criminal Appeal, notwithstanding that that overall sentence was considered by the court to be less than Cheikh's offending merited, is an appropriate overall sentence to impose upon the offender unless there is a factor which warrants a greater or lesser overall sentence. There are differences between Cheikh and the offender. Cheikh is in good health whereas the offender is not. Cheikh has a dependent wife and child whereas the offender does not. Cheikh's criminal record was relatively minor whereas the offender's is not. The offender had been dealt with, albeit by a Children's Court, for offences of supplying and possessing prohibited drugs whereas Cheikh had not been dealt with for any such offence. The offender breached his bail or his bond by committing offences whereas Cheikh was not subject to bail or a bond. The offender's life in prison will be harsher than Cheikh's. Cheikh had the benefit of the double jeopardy principle whereas the offender will not, although he may feel a sense of grievance if he suffers a more severe overall sentence than Cheikh. 39 As a result of these considerations, the sentencing judge determined to impose the same head sentence on both the applicant and Cheikh. In effect he found that the differing subjective circumstances applying to the two offenders cancelled one another out. In the approach taken by his Honour the applicant received the benefit of the reduction in Cheikh's sentence because of double jeopardy. If that were an error, it was one that favoured the applicant. 40 In my opinion the applicant can have no complaint because he was sentenced to a total term of 15 years. It was not manifestly excessive but rather was within the lower range of the available sentence based upon the decision of this Court in sentencing Cheikh. Nor can there be any justifiable sense of grievance that he received the same sentence as Cheikh given that, but for his medical condition, he could have received a heavier sentence that Cheikh because of his breach of conditional liberty. 41 In regard to the non-parole period, this applicant received a sentence two-years less than that imposed upon Cheikh as a result of a finding of special circumstances based upon his medical condition and its impact upon the nature of his imprisonment. In my opinion the applicant has no cause to complain about the non-parole period he is to serve. It was not manifestly excessive. In fact there was a risk of double counting by taking into account as a mitigating factor when determining the head sentence, as his Honour did, the harsher custodial conditions resulting from his medical condition (which itself reduces the non-parole period even if the statutory formula were applied) and then to reduce the non-parole period further by using that same factor to find special circumstances. The non-parole period is 60 per cent of the head sentence, a significant reduction from the statutory relationship. It was the least sentence that could have been imposed upon the applicant. 42 I propose that leave to appeal be granted but that the appeal be dismissed.

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