El Achkar v The Queen [2016] VSCA 209

1 The appellant was sentenced in the County Court on two charges of trafficking in methylamphetamine. In each case, the trafficking was constituted by a single transaction, involving a small quantity of the drug.

2 On one charge of trafficking (to which he had pleaded guilty), he was sentenced to 18 months' imprisonment. On the second charge (of which he was convicted after a trial), he was sentenced to two years' imprisonment. Eight months of the sentence imposed on the first charge was cumulated, producing a total effective sentence of two years and eight months' imprisonment. A non-parole period of 16 months was fixed.

3 Leave to appeal was granted on a parity ground. That is, it was contended that the sentence imposed on the appellant was far higher than could have been reasonably justified having regard to the sentences imposed on his co-offenders, whose trafficking activity was much more extensive and involved larger quantities. By leave, a further ground - of manifest excess - was added.

4 As will appear, the Crown ultimately conceded that the sentence imposed on the appellant was manifestly excessive, having regard to the limited nature of his trafficking and the unusually strong evidence of his rehabilitation. We concluded that the concession was appropriate and ordered that the appeal be allowed.

5 We resentenced the appellant to a combination sentence, comprising the approximately eight months' imprisonment already served and a Community Correction Order ('CCO') for a period of two years, with conditions requiring assessment and treatment for drug abuse or dependency. As will appear, our resentencing decision took account of the sentences imposed on the co-offenders. Our reasons for that decision follow.

6 We wish to acknowledge the scrupulously fair manner in which the Crown has approached this matter. On the leave hearing, the Crown first conceded that the parity ground was reasonably arguable. Then, having noted the strong evidence of the appellant's rehabilitation, counsel for the Crown suggested that an additional ground of manifest excess would enable the merits of the appellant's position to be considered separately from his position relative to the co-offenders. Subsequently, as we have said, the Crown conceded that the ground of manifest excess was made out.

7 As this Court has previously commented, the Director of Public Prosecutions has a responsibility - with this Court - for the maintenance of sentencing standards in Victoria. The discharge of that responsibility is exemplified by the bringing of a Director's appeal against a manifestly inadequate sentence. But it is equally exemplified by concessions of the kind made in the present case, which are in accordance with the highest traditions of the prosecutorial office.

8 The charge to which the appellant pleaded guilty involved the trafficking of 56 grams of impure methylamphetamine to the appellant's co-offender, Fadi Haddara.[1] Haddara was the head of an organised crime syndicate operating in the western suburbs of Melbourne. He used intermediaries and associates to conduct drug trafficking and other criminal activities.

9 The appellant was one of Haddara's associates, as was Khaled Kaddour. The charge to which the appellant pleaded not guilty involved the trafficking of 27.8 grams of impure methylamphetamine. Kaddour was a participant in that offence.

10 Haddara pleaded guilty to a single 'between dates' Giretti[2] charge, spanning a period of almost nine months from June 2013 to March 2014. The judge sentencing Haddara was satisfied that he had been conducting 'a continuing, commercial trafficking operation'. He was 'involved in an ongoing business of trafficking in methylamphetamine' over that nine month period. The evidence showed his 'active and repeated persistent involvement in the purchase, sale and distribution of methylamphetamine'.

11 Her Honour was satisfied that Haddara was correctly described as 'the head of the syndicate, responsible for the sale and distribution of methylamphetamine' supplied by others. She was not in a position, however, to make findings about the amounts trafficked or the level of the purity of the drugs sold. As set out in the attached table, Haddara was sentenced on the trafficking charge to 18 months' imprisonment, combined with a CCO for a period of three years.

12 Like Haddara, Kaddour pleaded guilty to a Giretti charge of trafficking in methylamphetamine. Over a period of more than two months, police had detected eight separate occasions on which Kaddour sold methylamphetamine to undercover operatives. The aggregate amount sold was 182.8 grams, varying in purity from 70 per cent to 90 per cent. One of those transactions - a sale of 27.8 grams - also involved the appellant. That was the offence the subject of the charge which the appellant contested at trial. Kaddour was sentenced on the trafficking charge to 12 months' imprisonment, combined with a three year CCO.

13 As noted earlier, the Crown's revised written case conceded the ground of manifest excess, that is, that it was not reasonably open to the sentencing judge to sentence the appellant as he did, if proper weight had been given to all relevant factors.[3] The Crown's submission pointed out that the appellant's offending in each case involved a single transaction on a particular day, and that the two offences were committed only seven days apart. As the submission noted, such charges are routinely heard in the Magistrates' Court.

14 The sentencing judge concluded that the objective seriousness of the appellant's offending was such that a sentence of imprisonment was the only appropriate option. His Honour noted that this conclusion accorded with the prosecutor's submission, which relied on what was said to be 'the serious and repetitive nature of the offending'. His Honour said:

Trafficking in a drug of dependence is a prevalent crime and cause for condign punishment. Methylamphetamine (or "ice") is a pernicious drug and its illicit use impacts markedly on the community. Trafficking on this scale, where you have committed successive instances of serious trafficking at a high level for the purposes of an organised network, means that principles of denunciation, general deterrence and the protection of the community become dominant sentencing considerations.

Those who which to peddle in this mind-altering poison need to be aware that serious penalties will apply.

Whilst your addiction to "ice" can be taken into account in some way in mitigation, it does not excuse your conduct in trafficking and especially at the level at which you did.[4]

15 The Crown's appeal submission was in these terms:

Whilst the offending was indeed serious, the gravity had to be assessed against the following backdrop - it involved single transactions confined to single days; the drugs transaction on 16 January was recorded by police (but no arrest was made) and the drugs sold on 23 January were recovered by investigating police; and the quantities involved did not approach the commercial quantity threshold of 100 grams (pure) or 500 grams (mixed). Thus, having regard to the gravity of these factors, the offending (of itself) did not demand a term of immediate imprisonment as the only available option.

It is apparent from the sentencing remarks that the judge regarded the drug "ice" as a particularly pernicious and impacting greatly on the community - in fact, the judge described the drug in question as "mind-altering poison". In this regard, it appears that the judge has impermissibly elevated the gravity of the offending by reference to the harmful nature of the drug in question.

16 In our view, these submissions were well-founded. As this Court has recently reaffirmed, while the harm caused by 'ice' is a matter of understandable public concern, Victoria's quantity-based sentencing regime does not permit judicial views about the relative (harm) caused by a drug to influence the sentence imposed.[5] In a case such as this, the key issues going to offence gravity were the quantity trafficked and the role played by the offender. Given the appellant's low level role and the small quantities involved, it was not correct to characterise his offending as involving 'successive instances of serious trafficking at a high level'.

17 It was, of course, a relevant factor that the appellant had committed these offences while on bail, pending an appeal to the County Court against a sentence of imprisonment imposed in the Magistrates' Court in September 2013. But, as the Crown's appeal submission pointed out, that appeal was subsequently upheld and the prison sentence set aside, after the County Court had heard evidence of the appellant's progress in rehabilitating himself.

18 The appellant had successfully undertaken a drug residential treatment program for a period of almost five months after being released from remand. He subsequently commenced - and was continuing at the time of sentence - a drug counselling course with an experienced drug and alcohol counsellor. Although it was no longer necessary for him to attend counselling on such a regular basis, he had chosen to do so. In the counsellor's opinion, this augured well for his future. The appellant had complied with strict bail conditions and had successfully completed the first of two CCOs. He had almost completed the second. The evidence of the drug counsellor was that further time in custody might impair the appellant's rehabilitation.

19 The Crown's appeal submission emphasised the public interest in the rehabilitation of offenders:

Trafficking in drugs (of any sort) is a serious crime - those who do so for profit or on a significant scale deserve a term of imprisonment. However, the community is also served when persons are removed from this wicked trade by undergoing intensive rehabilitation (particularly if addicted at the relevant time). Here the applicant had done all that he can to rehabilitate himself (the only matter telling against the applicant was his contesting of the second charge). Imprisonment is a sentence of "last resort" - the governing statute directs so. And importantly, before any sentence of imprisonment is imposed, a judge must perform the last step in the "instinctive synthesis" process which involves careful attention being paid to the possible enlivenment of mercy

The principle is best expressed in the well-known passage of King CJ in the South Australian decision of R v Osenkowski:

There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.

The above principle has been referred to with approval in all other Australian intermediate appellate courts and also by the High Court. Here the principle should have been invoked, particularly as a different sentencing order was available to satisfy the various sentencing purposes in play.

In short, the applicant was at the "crossroads" in terms of reform - notwithstanding his adverse record and the nature of the offences in question, leniency was warranted in light of the efforts made by the applicant to date. Even if a punitive approach to sentence was warranted given the contesting of the second charge, it is difficult to see why a combination order was not appropriate to reflect that particular consideration (such an order could have been structured to achieve just punishment).

20 Once again, in our view, these cogent submissions were entirely appropriate. We note that defence counsel had - quite properly - submitted to the sentencing judge that a combination sentence was appropriate. We agree with the Crown that that was an appropriate order in the circumstances, and it could have been structured to ensure just punishment.

21 In the light of the Crown's concession of sentencing error, arrangements had been made in advance for an officer of Community Corrections to attend court on the day of the hearing. The appellant was assessed in the course of the day and a report prepared, which informed the Court that he was regarded as suitable for a CCO. The report recommended that the Order have attached to it conditions requiring assessment and treatment for drug addiction, and attendance at offending behaviour programs, together with a supervision condition.

22 The Order made included all of those conditions. At the hearing, there was some discussion of whether just punishment required the imposition of a work condition as part of the CCO. In the end, as explained below, we concluded that the imposition of such a condition would be unjust in the circumstances.

23 As appears from the table attached to these reasons, Haddara was also sentenced on four firearms offences. Kaddour was also sentenced on a firearms offence.

24 In our respectful view, given the scale and duration of the trafficking activities of Haddara and Kaddour, and - in the case of Haddara - his role as the head of the syndicate, the sentences respectively imposed on each of them were remarkably lenient. Surprisingly, however, neither of those sentences was the subject of a Director's appeal.

25 Accordingly, the sentencing judge was obliged for reasons of parity to ensure that the sentence imposed on the appellant reflected the material differences between his offending and personal circumstances and those of the co-offenders. Had it been necessary for us to decide, we would also have upheld the appellant's parity ground. In our view, it was not reasonably open to the judge to impose on the appellant what amounted to a substantially heavier sentence for his trafficking offences than had been imposed on either of the co-offenders for theirs.

26 Relevantly for the purposes of our resentencing, we noted that neither of the CCOs imposed on Haddara and Kaddour had a work condition attached. For obvious reasons, it would not have been appropriate to add such a condition to the CCO imposed on the appellant.

[1] A commercial quantity of methylamphetamine when present in a mixture is 500 grams.

[2] R v Giretti (1986) 24 A Crim R 112.

[3] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[4] DPP v El Achkar [2016] VCC 34 [52]-[54] (emphasis added) ('Reasons').

[5] See Haddara v The Queen [2016] VSCA 168 [59].