Dunshea v R

Facts

1. In February 2012, police began an investigation into the large scale supply of drugs by one David Boulghourjian. Telephone intercepts reveal that he was in regular contact with the applicant. An agreed statement of facts asserted that Boulghourjian was a principal in the enterprise, and that the applicant's contribution was to assist in the supply of ecstasy, in collecting drug debts owing to Boulghourjian, and to store drugs for him.
2. At some stage in April 2012, Boulghourjian supplied 5,000 tablets of nexus on credit to one Behrooz Ghasemi. Ghasemi did not pay for them and Boulghourjian wanted them returned. There were numerous intercepted calls between the two men and on 22 May Ghasemi returned about 2,861 tablets by delivering them to the applicant's home at Beecroft. In the meantime, on 17 May, the applicant, under the direction of Boulghourjian, bought a number of items commonly associated with drug dealing: a set of electronic scales, a home vacuum packaging system, rolls of vacuum bags, and a plastic roll storage holder and cutter.
3. On 24 May, police executed search warrants at the homes of the applicant and Boulghourjian. At the applicant's home they located, in all, 809.17 grams of nexus and 2,537.39 grams of ecstasy. The wholesale value of the nexus was estimated at $37,591, although its retail value would have been significantly higher, and the wholesale value of the ecstasy was estimated at $108,514. These were the subject of the first and second counts. Also found were 14.81 grams of methylamphetamine and a .45 calibre Ruger pistol, the Form 1 matters. It was accepted that the applicant had been minding that weapon for Boulghourjian. Paraphernalia associated with drug dealing was also located.
4. His Honour noted the acknowledgement in the agreed facts that the applicant was not a principal in the drug dealing operation, but he characterised him as a "knowing and willing participant" in a "very significant drug operation". He saw the applicant's role to have been "to warehouse the drugs and other items, including the gun, as requested by" Boulghourjian.

Subjective case

1. The applicant was 27 years old at the time of the offences, and is now 32. He had a minor criminal history for possession of prohibited drugs.
2. He is one of three children, and enjoyed the continuing support of his parents and siblings. He had been in a relationship with a young woman, who also remained supportive of him. He left school at year 10, but subsequently completed a diploma in business marketing. However, in the first few years after leaving school he did not work due to poor motivation because of his drug use. He then obtained work for some years until he went into a property development business with his brother. Unfortunately, that business failed.
3. In his early teens, he began a pattern of binge drinking and using cannabis, and in the years that followed his drug use increased and widened to include amphetamines and methamphetamine. He also used "crack" cocaine, and his abuse of that drug increased after the failure of the business. At the time of the offences he was using drugs heavily.
4. There were a number of distressing episodes in his life. It seems that he felt responsible for the collapse of the business, which left him and his brother in substantial debt, because the venture had been his idea. More importantly, he was affected by the death of a number of young friends over a period, including a former girlfriend who had committed suicide.
5. After coming into custody following his arrest for these offences he was treated for depression. He ceased his drug use, and had completed a drug and alcohol program. He had expressed his desire to undergo further drug and alcohol counselling and to take part in a further program. In the light of this, and the support offering to him by his family, the sentencing judge determined that he had good prospects of rehabilitation. There was also considerable evidence of his remorse for his offending, to which his Honour did not refer in his remarks on sentence. This is the subject of the first ground of appeal.

The application

1. Mr Game SC, who appeared with Mr Barrow for the applicant, argued two grounds of appeal: 1. that the sentencing Judge erred in failing to consider or take into account the applicant's remorse; 2. that the sentences imposed upon the co-offenders give rise to a justifiable sense of grievance on the part of the applicant.

Remorse

1. There was considerable evidence of remorse on the part of the applicant. In a letter to his Honour he expressed himself to be "deeply regretful and sorry for my actions, which I know have severely impacted my family, the community and myself, and have left the community with the burden of having to support me whilst in custody ….". In a psychological report which was in evidence he was said to have "expressed both regret and remorse for his offences," and to have stated that he "understands the seriousness of his offences….". He added that he had let his family and himself down, and reported that he "understands that drugs cost people their lives, the community money and devastate both the user and their families."
2. There were a number of testimonials to his character in evidence, including one from his older brother. His brother wrote that he had "learned the lesson of what drugs have inflicted upon not only his life but his family's as well", and that he "can now view the damage that some of the people that he was hanging around with have done to their own lives." His partner, Ms Sanchez, wrote that he "knows of the wrong he has done and accepts that he must be punished for this." A long standing friend, David Wilkins, who visited him in prison on numerous occasions, noticed that "his demeanour showed a genuine sense of remorse for the pain he has caused his family, his friends, and further the community at large." Mr Nathan Kachwalla, a youth worker who had known him for several years, observed him to be "a young man who was deeply remorseful for his actions and determined to live a positive life….". A hotel manager and friend of some years, Mr Arvind Pillay, wrote that he "seems to be showing a heavy remorse as well as a better level of understanding that what he did was wrong and what steps he can try and achieve to be a better person."
3. Remorse was one of the issues dealt with in written submissions on the applicant's behalf by counsel appearing for him in the District Court. In his remarks his Honour allowed a 25% reduction of sentence on account of the applicant's pleas of guilty, but did not refer to any of this material and, as I have said, did not address the issue of remorse at all.
4. The evidence clearly entitled the applicant to have his remorse taken into account in accordance with s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, which provides as a matter of mitigation: "(i) the remorse shown by the offender for the offence, but only if: 1. the offender has provided evidence that he or she has accepted responsibility for his or her actions, and 2. the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),"
5. Plainly enough, the applicant had provided evidence that he had accepted responsibility for his actions and acknowledged any injury, loss or damage caused by him. As to s 21A, all his Honour said in his remarks was that, while he had not referred to the section in detail, he had "taken those factors into account on sentence." It is, of course, well recognised that District Court judges, bearing a heavy daily burden of sentencing matters, are entitled to be concise in delivering remarks on sentence and are not expected to engage in lengthy analysis of the issues involved. Equally, it is well recognised that ex tempore remarks on sentence, as the remarks in the present case were, should be scrutinised with a degree of latitude.
6. The Crown prosecutor in this Court referred us to Church v R [2012] NSWCCA 149, in which one of the complaints was that a sentencing judge had failed to take into account adverse publicity about the applicant as a form of extra-curial punishment. This ground was dealt with by Button J, delivering the leading judgment, at [29] ff. The publicity had been referred to in a psychiatric report, and had been raised in oral submissions by the applicant's legal representative in the District Court. The sentencing judge had delivered his remarks on sentence ex tempore.
7. Button J said at [35] that he was not persuaded that the sentencing judge had failed to take into account the media attention and its effects on the applicant. He noted that the applicant had made oral submissions about the matter very shortly before sentence was passed, and thought it unlikely that the judge had forgotten or disregarded what the solicitor had said. He also noted that the judge had referred in general to the strong subjective case which had been advanced through a pre-sentence report and the psychiatric report: [35].
8. His Honour continued, in a passage relied upon by the Crown prosecutor in the present case, at [36]: "It is true that it is incumbent on a sentencing judge or magistrate to explain his or her findings and reasons in the remarks on sentence. But that does not mean that, wherever there is a failure to refer to any fact or topic in the remarks on sentence, one must infer that the matter was not taken into account, and error is thereby established. Remarks on sentence should not be unnecessarily lengthy, and on many occasions can be succinct, even in the District Court. Their purpose is to explain to the offender, the persons present in court, and the wider community, why the sentencing judge or magistrate is imposing the sentence that will immediately follow. Remarks on sentence should not have to recite laboriously all of the evidence given or tendered, the facts found, or the legal principles applied, for fear of committing an error by omission. The mere fact that a matter has not been mentioned in the remarks on sentence does not of itself found an appeal to this Court."
9. The Crown prosecutor also submitted that remorse was subsumed within the issue of rehabilitation, which his Honour clearly did address. He referred to Stojanovski v R [2013] NSWCCA 334, in which there was a complaint that the sentencing judge had failed to take into account remorse. There had been considerable evidence of rehabilitation in that case, which the sentencing judge had addressed in his remarks. There was also evidence of remorse to be found in the oral evidence of the applicant and a psychological report. Simpson J (as she then was), delivering the leading judgment, dealt with this ground at [39]-[41]. In rejecting the ground, her Honour said at [41]: "In my opinion, remorse is to be seen as a mitigating factor because it is a concomitant of rehabilitation, meaning that future offending is unlikely or less likely. Rehabilitation was treated by his Honour in some depth. Even if his Honour had expressly referred to, and accepted, the evidence of remorse as an independent factor, it could not have had any real bearing on the outcome."
10. The Crown prosecutor noted his Honour's reference to the applicant's favourable subjective case, the finding of his good prospects of rehabilitation and of special circumstances, warranting a departure from the statutory proportion between sentence and non-parole period, in recognition of his need for drug rehabilitation and psychological treatment to foster that rehabilitation. No doubt, the Crown prosecutor argued, the applicant's expressions of remorse were taken into account in assessing his prospects of rehabilitation, and the fact that his Honour did not expressly refer to them does not disclose error.
11. It is important to understand the observations of Button J in Church and Simpson J in Stojanovski in their context. In each case they were observations made in the light of the facts of the case at hand, and they should not be elevated into statements of principle having general application. In this matter the applicant's remorse was an important part of his case on sentence, deserving to be addressed in his Honour's reasons. Of course, there is a considerable degree of overlap between remorse and rehabilitation but they remain distinct factors bearing on sentence. So much is apparent from the scheme of s 21A(3), requiring a sentencing court to take into account rehabilitation: par (h) and remorse: (i).
12. Accordingly, this ground is made out. That being so, it is not strictly necessary to consider the next ground as this Court must resentence in its own discretion, taking into account the sentences passed upon the co-offenders. However, I consider it appropriate to deal with the ground.

Parity

1. After the applicant was sentenced, the co-offenders, Boulghourjian and Ghasemi, were sentenced by Hock DCJ. They were dealt with after being found guilty at trial of counts of supplying a large commercial quantity of nexus and ecstasy, related to the counts of knowingly taking part in supply of those drugs to which the applicant had pleaded guilty. (Boulghourjian was also found guilty of two further supply offences of a minor nature, which are of no significance for present purposes.)
2. The facts found by Hock DCJ for the purpose of sentence were broadly consistent with those in the applicant's case. Between the end of March and late May 2012, Boulghourjian supplied nexus and ecstasy on credit to Ghasemi for him to on-sell. When Ghasemi was unable to provide to Boulghourjian the money for drugs sold, or unable to sell the drugs within a time which Boulghourjian regarded as reasonable, Boulghourjian told Ghasemi to return the drugs to the applicant's home, described as a "safe house". Her Honour referred to the return of the nexus tablets on 22 May, and to the search of the applicant's home by police officers on 24 May. However, for reasons which are not clear, the evidence before her Honour was that the total weight of ecstasy found at the premises was 1,479.9 grams, considerably less than the amount asserted in the applicant's case, 2,537.39 grams.
3. Her Honour found each of the two men to have been engaged in trafficking to a significant degree over a period of about two months, Boulghourjian being at a "higher level in the distribution chain" than Ghasemi on the basis that he was providing drugs to Ghasemi to on-sell and also giving him instructions. Her Honour had regard to the sentence passed upon the applicant in the light of the facts in his case and the reduction of sentence he had earned for his pleas of guilty. She noted the higher amount of ecstasy involved and the offence of possession of a prohibited pistol on the Form 1. She considered him to be at "a slightly lower level" than Boulghourjian and Ghasemi, being characterised as "a storeman or warehouser ..."
4. Boulghourjian was sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 7 years. The indicative sentences were 9 years with a non-parole period of 6 years for the nexus offence, and 7 years with a non-parole period of 4 ½ years for the ecstasy offence. (Sentences of 6 months and 3 months respectively were indicated for the other two offences.)
5. Ghasemi was sentenced to an aggregate term of 8 years with a non-parole period of 5 ½ years. The indicative sentences were 7 years with a non-parole period of 4 ½ years for the nexus offence, and 6 years with a non-parole period of 4 years for the ecstasy offence.
6. There was no marked difference between the subjective cases of the three men, although the applicant's was the most favourable, given his pleas of guilty and his good prospects of rehabilitation. However, the question of disparity turns primarily upon the involvement of each of them in the offences.
7. The principles governing appellate intervention on the basis of disparity of sentence are well known. They were summarised helpfully by Garling J, with reference to authority, in Rees v R [2012] NSWCCA 47 at [50] and need not be repeated. The basal question is whether the more lenient sentences passed upon Boulghourjian and Ghasemi engender in the applicant a justifiable sense of grievance, so that it appears that justice has not been done.
8. The disparity between the applicant's aggregate sentence of 12 years with a non-parole period of 8 years and the sentences passed upon his co-offenders is certainly marked. Particularly is this so when one has regard to the 25% reduction of sentence he was afforded for his pleas of guilty. Judge Blackmore said that, but for those pleas, a "total sentence of at least 16 years imprisonment would have been applied." Equally, there is marked disparity between the applicant's indicative sentences, 11 years with a non-parole period of 7 years on the first count, and 8 years with a non-parole period of 5 years on the second count, and the sentences indicated for the co-offenders.
9. True it is, as Judge Hock observed and as was emphasised by the Crown prosecutor in this Court, the amount of ecstasy the subject of the charge in the applicant's case was considerably greater than that in the case of the co-offenders, and there was the additional offence of possession of a prohibited weapon taken into account in the applicant's sentence. Moreover, apart from his role as warehouseman, the applicant had also been Boulghourjian's debt collector. However, making due allowance for those differences, and while noting that the applicant's possession of the pistol was part of his warehousing task, I am satisfied that the disparity cannot be justified. Particularly is this so in relation to Ghasemi's sentence.
10. The applicant's aggregate sentence is 2 years longer than that imposed on Boulghourjian and 4 years longer than that imposed on Ghasemi. The applicant's non-parole period is 1 year longer than Boulghourjian's and 2 ½ years longer than Ghasemi's. As to the indicative sentences, for the nexus offence the applicant's head sentence exceeds Boulghourjian's by 2 years and Ghasemi's by 4 years, and the non-parole period exceeds Boulghourjian's by 1 year and Ghasemi's by 2 ½ years. As to the ecstasy offence, the applicant's indicated head sentence exceeds Boulghourjian's by 1 year and Ghasemi's by 2 years, and his non-parole period exceeds Boulghourjian's by 6 months and Ghasemi's by 2 years. These figures, I might add, are a comparison of the applicant's discounted sentences with the undiscounted sentences of the co-offenders.
11. I would uphold this ground.

Resentence

1. For the purpose of resentence, it is clear that the criminality of Boulghourjian, as a principal in the enterprise, stands above that of the applicant and Ghasemi. However, the Crown prosecutor submitted that the applicant's continuing role as warehouseman and debt collector is more proximate to that of Boulghourjian than Ghasemi who, he argued, appears to have been something of a failure as a drug supplier on credit. Nevertheless, I would accept Judge Hock's characterisation of Ghasemi as having been engaged in trafficking to a significant degree over the relevant period of about two months.
2. I am persuaded by the submissions of Mr Game that, while regard must be had to the additional quantity of ecstasy in the applicant's case and the matters on the Form 1, his lesser role than that of Boulghourjian, his early pleas of guilty, his remorse and favourable prospects of rehabilitation point to an aggregate sentence significantly less than Boulghourjian's and reasonably proximate to Ghasemi's.
3. I would grant leave to appeal, allow the appeal and quash the sentence passed in the District Court. I would resentence the applicant to an aggregate sentence of 9 years, comprising a non-parole period of 6 years and a balance of term of 3 years, commencing on 5 July 2012. The indicative sentences would be: 1. knowingly taking part in the supply of a large commercial quantity of nexus, taking into account the matters on the Form 1: 8 years with a non-parole period of 5 years; 2. knowingly taking part in the supply of a large commercial quantity of ecstasy: 6 years with a non-parole period of 4 years.

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: 14 November 2016