Solicitors:
Mr Danny Eid, Danny Eid Lawyers (applicant)
Mr Craig Hyland, Office of the Director of Public Prosecutions (respondent)
File Number(s): 2014/188908
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: Not published
Date of Decision: 4 September 2015
Before: M L Williams SC DCJ
File Number(s): 2014/188908
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Judgment
PRICE J: I agree with Fagan J.
BUTTON J: I agree with Fagan J.
FAGAN J: The applicant pleaded guilty in the District Court to the following charges which carried maximum penalties as indicated.
1. Ongoing supply of prohibited drugs contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) between 12 February 2014 and 13 March 2014. The particulars were supply of about 14 grams or half an ounce of cocaine on each of four separate dates in the charge period together with a smaller quantity, 3.3 grams, of another drug on one of the dates. The maximum penalty for this offence is 20 years imprisonment or 3,500 penalty units or both.
2. Supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act on 25 June 2014. The particulars of this offence were a supply of 12.6 grams of methylamphetamine. The maximum penalty is 15 years or 2,000 penalty units or both.
3. Possession of a prohibited weapon on 25 June 2014 contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW). The applicant had in his possession at his home two flick knives at the time of his arrest on the drug charges. The maximum penalty for this offence is 14 years imprisonment.
The applicant seeks leave to appeal against the severity of his sentence. On 4 September 2015, his Honour Judge Williams SC imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence of 2 years and 7 months non-parole period and 2 years and 2 months balance of term. As required by s 53A(2)(b) his Honour indicated that the individual sentences he would have imposed, if not applying the provisions for aggregation, would have been 4 years and 6 months for the ongoing supply, 2 years for the individual supply in June 2014 and 12 months for the possession of a prohibited weapon, comprising a non-parole period of 9 months and a balance of term of 3 months.
The grounds of appeal are:
1. The learned sentencing judge erred in failing to give proper reasons in finding that the evidence of the appellant was implausible.
2. The learned sentencing judge erred in failing to give any weight or effect to the evidence of the appellant as to the circumstances of his offending in determining the objective seriousness of the offences.
3. The sentence in all the circumstances was manifestly excessive as to be unreasonable and/or unjust.
The facts proved by the Crown and not contested were that in February and March 2014 the applicant was contacted by a female undercover operative working with police and he agreed to supply her with cocaine. Four transactions were carried out at intervals over the month from 12 February to 13 March 2014. In each case the undercover operative paid $3,500 in cash for between 13 and 14 grams of cocaine. Intercepted telephone conversations between the undercover operative and the applicant were open to the inference that he had one or more sources of the drugs he was supplying and that he was carrying on a regular distribution trade by way of these transactions for profit.
Other than in exceptional circumstances the supply of drugs in this way would call for a full-time custodial sentence. This has been held in this Court on numerous occasions, for example, R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep), Smaragdis v R [2010] NSWCCA 276 at [31] and it has been held specifically in relation to the offence under s 25A of ongoing supply in Fayd'Herbe v R [2007] NSWCCA 20 at [18]. The appellant's counsel conceded before the sentencing judge that this case was not exceptional and that full-time custody would, accordingly, have to be imposed.
Relevantly to ground 1 the applicant gave evidence in the sentence proceedings. He asserted that the selling of drugs was thrust upon him by a man named Garry Clifford. The applicant said that in 2013 he had been in possession of a motorcycle belonging to a third party and that he had performed mechanical work on it. At the request of either the third party or an intermediary he had put the motorcycle into the possession of Clifford for the purpose of having it certified in some manner from an engineering point of view and having it registered. He said that Clifford at that time ran a motorcycle shop at an unspecified location and that after having the motorcycle in his possession for some time Clifford told him it had been stolen.
The applicant said that by this stage Clifford had moved his business to Minchinbury and that Clifford said he would recover the bike, return it to the applicant and enable him to return it to its owner only if the applicant would take from Clifford a bag of drugs and scales and sell these drugs over time for payment to a person whom Clifford nominated as Jess. The applicant said that he had carried out these instructions reluctantly and on receiving payments he had placed amounts of $3,500 in cash at a time in a letterbox at Clifford's premises rather than putting the money into Clifford's hands and without ever obtaining confirmation in any manner from Clifford that he had received the proceeds.
The applicant was cross-examined on this version at length and it was challenged by the Crown Prosecutor as implausible. His Honour referred to some of the principal points of the cross-examination. The applicant had no sensible explanation for numerous improbabilities in his story, with which he had been pressed by the Crown Prosecutor during the cross-examination.
His Honour was not satisfied on the balance of probabilities that the applicant's explanation, as I have summarised it, was truthful. Therefore his Honour did not take it into account in the applicant's favour as mitigating the seriousness of the offending. At p 7 of the Remarks on Sentence his Honour referred to the explanation as "a most improbable scenario". His Honour noted there was no corroboration of the account from any source other than the applicant. Further his Honour considered that the circumstances as related by the applicant, even taken at face value, did not show that he had come under any real obligation or pressure to embark upon the drug supply. It was part of the applicant's evidence that he was himself during this period a user of drugs.
The Remarks adequately disclose his Honour's reasons for not having been persuaded of the exculpatory account. Essentially it was a case of inherent improbability. In giving reasons his Honour was not obliged to specify every particular of the story which he found improbable. There is ample authority about the limits upon the extent to which a judge who makes findings of fact at first instance is required to expound his or her reasons. A principal authority is the decision of the New South Wales Court of Criminal Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the course of considering the requirement of a fact-finding judge to give reasons Kirby P (as his Honour then was) said at 259:
"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues."
In the same decision Mahoney JA said at 271:
"[T]he law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion."
Further at 273 to 274 Mahoney JA said:
"The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says. The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things."
Mahoney JA went on to say that "in the particular case, [reasons] may partake as much of intuition based on experience as on formal and deductive reasoning". The last passage which I consider is useful to quote here, from Mahoney JA's decision at 274, is this:
"The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another."
Those observations apply with particular force to the process of his Honour Judge Williams SC assessing the plausibility of the most unusual account which the applicant gave in an endeavour to exculpate himself, at least with respect to the degree of seriousness of his offending, in these sentencing proceedings. The learned judge's remarks, according to the standards to which I have referred, were in my opinion entirely adequate. I would accordingly reject ground 1.
Ground 2, which is that his Honour failed to give weight to the appellant's evidence in determining the seriousness of the offending, falls with ground 1. There was no deficiency in the reasons upon which his Honour found the mitigating background story unproven on the balance of probabilities and therefore there was relevantly no credible evidence of the applicant to mitigate the circumstances of his offending, of which his Honour needed to take account. His Honour properly gave no weight to an explanation of surrounding circumstances which he had rejected as implausible. I would reject ground 2.
Ground 3, that the sentence was manifestly excessive, in my opinion also does not succeed. The aggregate sentence may be considered from the point of view of the indicative sentences from which it derived. A 25% discount for the applicant's pleas of guilty was allowed. That discount would have been applied by his Honour in arriving at the indicative terms by force of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. I have made allowance for that discount having been applied in considering the indicative terms which his Honour nominated against sentences that have been given in comparable cases. It does not appear that there was anything in the least excessive about the indicatives and they, of course, informed the aggregate.
There was nothing about the applicant's subjective circumstances, in terms of his personal history, which would attract special lenience. He was about 38 years old at the time of the offence. He had no prior record of any relevance and this entitled him to consideration. Benefit for that was given in particular under s 44 of the Crimes (Sentencing Procedure) Act in that his Honour found special circumstances and adjusted the ratio between the non-parole period and the balance of term favourably to the applicant.
On the other hand the drug dealing which was the subject of the charges was in substantial (half ounce) lots. It was recurrent over a month with another instance of selling a different drug in the middle of the year. The aggregate not only cannot be said to have been excessive by reference to the indicatives but it is also not shown to have been excessive by reference to comparable sentencing in other cases.
The applicant's counsel before his Honour particularly asked that account be taken of decisions of this Court in Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388 and Dang v R [2014] NSWCCA 47. Each of those cases was different from the present case in respects which his Honour noted and considered. When the aggregate sentence is compared against the sentencing outcomes in those cases, with appropriate adjustments being made for differences of circumstances, it cannot be seen to be manifestly excessive on the basis of giving rise to an inconsistency with the patterns of sentencing by the Court. The same applies when one looks more widely than the particular cases that the applicant's counsel cited to his Honour in the sentence proceedings.
For those reasons I would dismiss ground 3 as well. The orders that I would propose would be that leave to appeal be granted but that the appeal be dismissed.
PRICE J: The orders of the Court are:
1. Leave to appeal is granted.
2. The appeal is dismissed.
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Decision last updated: 25 October 2016