El-Ahmad v R

Facts

1. There was a statement of agreed facts tendered at the sentence hearing and I draw the following from it.
2. A police investigation identified the applicant and Alan ("Alex") Chew as being persons of interest in the supply of prohibited drugs.
3. On 23 April 2012, after a number of discussions involving undercover police officers, the applicant and another person called either Sam Awood or Zackaria Gomrawi, the applicant supplied the officers with 64.9 grams of nexus in return for payment of $1600. It appears from the facts that the applicant was the initial contact point for the officers; she took them to Awood who discussed quantities and price with them; and she later delivered the drugs and received payment. She is recorded as having said things to the officer that conveyed that Awood was a regular source of drugs.
4. The prescribed commercial quantity for this drug is 25 grams (the large commercial quantity is 100 grams). According to the statement of facts, nexus is commonly purported to be ecstasy but it has a stronger hallucinogenic effect, whereas ecstasy provides a stimulant effect.
5. On 30 May 2012, the applicant met with the officers and supplied them with 2.27 grams of methylamphetamine ("ice") with a purity of 38 per cent in exchange for $800. In her recorded conversation on this occasion she spoke of "bagging up" yesterday when she "threw" half a gram on the floor; that she was looking at "eleven hundred for an eight ball"; and generally conveyed the impression that this was not a one-off transaction for her.
6. On 4 June, one of the officers met up with the applicant at Granville. She made a telephone call to a co-offender, Alex Chew. After she spoke with him she put one of the officers on the phone and he spoke with Chew. At Chew's direction the applicant and the officer went to a location in St Marys where they met Chew and an unknown male. Chew supplied the officer with 6.9 grams of ice with a purity of 59.5% for a price of $2000.
7. On 12 June, the applicant facilitated a supply of 6.84 grams of ice (71% purity) by Chew to the officer. She did so via communications with each of them. She was not present at the transaction but Chew mentioned to the officer that he would "fix up" the applicant for her share in the deal.
8. The applicant was arrested on 14 June 2012. For some reason she was not interviewed until 24 July 2012. She told police that she and Chew had an agreement whereby she introduced customers to him for drug supply in exchange for which he would reduce the amount of a debt she owed him and occasionally receive a gram of ice for her personal use.

The applicant's personal circumstances

1. The applicant was 35 years old at the time of the offences. She had a lengthy criminal history commencing in 2001 but involving mainly dishonesty and driving offences from 2009 onwards. At the time of the present offences she was subject to multiple suspended Drug Court sentences, a recognizance under the Crimes Act 1914 (Cth) and a s 9 good behaviour bond. The suspension of the Drug Court sentences was revoked and she was called up in respect of the recognizance and the bond and resentenced. By the time she came before Bennett DCJ she was subject to an overall term of imprisonment of 3 years 4 months dating from 9 October 2011 with the non-parole component of 2 years having expired on 8 October 2013.
2. The offences the subject of the suspended Drug Court sentences were: goods in custody (committed 29.4.09); driving whilst disqualified (12.9.10); obtain money by deception (2 counts with 7 more taken into account) (20-28.11.09); use false instrument with intent (20.11.09); driving whilst suspended (10.11.09); goods in custody (7.12.09); obtaining money by deception (15.12.09); goods in custody (2 counts) (20.7.11); driving whilst disqualified (20.7.11); and publish false or misleading material to obtain property (5.2.11).
3. The applicant did not give evidence in the sentence proceedings but tendered on her behalf were reports by Dr Antonella Ventura, psychiatrist; Clara Fritchley, psychologist; Justice Health medical records; certificates attesting to the completion of courses; and a handwritten letter by the applicant.
4. Dr Ventura's report included that the applicant was a single woman with three children who had been removed from her care. Her partner had been imprisoned for drug and firearm offences and she had been staying with a friend of his, Sam, who was a drug dealer (Sam Awood or Zakaria Gomrawi). Sam instructed her to transport some pills to a customer and to collect the purchase money. She felt she had to do this as she had nowhere to go. She also claimed generally that she was selling drugs to get drugs for herself; she had been abusing drugs, particularly ice, for about 18 years.
5. The applicant gave Dr Ventura a history of experiencing drug-induced psychosis on a number of occasions in the past and there was support for this in the medical records. She also had a history of severe Crohn's disease and significant iron deficiency anaemia. Medical records indicated that she had undergone bowel resection surgery. She also suffered from seizures. Dr Ventura was unable to verify a claim of having bowel cancer.
6. The applicant told Dr Ventura that she commenced using drugs following an arranged marriage when she was sent to Lebanon at the age of 13. Both of her parents died not long after. Her husband physically abused her and supplied her with drugs. She left him and entered into relationships with other abusive men. She attributed most of her criminal offending to substance abuse. She candidly told Dr Ventura that she had used drugs since coming into custody. She was not willing to go on a methadone program.
7. Dr Ventura made the diagnosis of "stimulant use disorder in sustained remission in a controlled environment". She considered that this contributed to her offending: she needed to obtain drugs no matter the detrimental consequences; her drug abuse placed her at risk of entering abusive relationships or being homeless; she relied on a man who was a drug dealer; and she was strongly driven to comply by the dealer's request. (It seems that Dr Ventura was only aware of the commercial supply offence.)
8. The applicant expressed a motivation to stop abusing drugs but Dr Ventura considered that, in the light of her history, her potential for recidivism was high. She considered the applicant needed extensive drug rehabilitation treatment.
9. The report of Ms Fritchley set out the applicant's history in somewhat more detail. It included circumstances of her upbringing which was marred by physical abuse by her brothers and being sexually assaulted at a young age, a subject she was not willing to expand upon. Her schooling ended prior to high school because of her going to Lebanon at the age of 13 and marrying her cousin. She had her first child at the age of 19 and returned to Australia at that time. She separated from her husband when she was 28. The children had been removed and placed in foster care but ran away. Her former husband sent the eldest two to Lebanon to prevent them being again removed but she maintained contact with them. Her youngest daughter lived with her niece in Sydney and she had occasional contact with her.
10. Ms Fritchley also considered that the applicant needed a structured long term drug rehabilitation program which would also have a focus on her "fragile mental health".

The sentencing judgment

1. At an early stage of his sentencing remarks the judge referred to the applicant having pleaded guilty on the day her trial was listed to commence in the District Court. He also said that the Crown had accepted that in those circumstances a discount of 25 per cent could be allowed, and his Honour cited R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1. The Crown's concession was clearly wrong and it is surprising that his Honour accepted it. R v Borkowski at [31] (Howie J) is authority for the proposition that it will be an exceptional case in which a discount of 25 per cent would be allowed for a plea entered following committal to the District Court.
2. The judge then indicated that the applicant had been held in custody and so the sentence would be backdated to the date of her arrest, 14 June 2012. (His Honour had been informed that she was serving a sentence for other matters as indicated in the criminal history before him and he indicated a number of times during the proceedings on sentence that there should be some measure of accumulation.)
3. The judge recited the facts of the offences at some length before turning to the applicant's personal circumstances. He rejected the claim to Dr Ventura that she committed the commercial supply offence because she had nowhere else to go. He did, however, accept that supplying drugs gave her the means to acquire drugs for her own use. The judge referred to other aspects of the report, and the Justice Health records, including the history of drug-induced psychosis; severe Crohn's disease and anaemia; extensive history of drug abuse; and her family and relationship history.
4. His Honour noted the time lapse between reports of Ms Fritchley (28 July 2012) and Dr Ventura (3 April 2014) and considered that the apparent improvement in the applicant's presentation as described by the two authors may be attributable to progress she had made since being in custody and largely away from the influence of drugs.
5. Reference was made to the applicant's experience with Crohn's disease, including having to undergo bowel surgery. His Honour accepted that she required ongoing care and monitoring and that it would "impact upon the burden she suffers whilst in custody".
6. In relation to the offences themselves, the judge considered that in relation to the ongoing supply offence the applicant was "a significant participant facilitating the purposes of those with whom she was engaged".
7. The judge considered that the applicant's record and the fact the offences were committed whilst she was on conditional liberty were aggravating factors.
8. The principle of totality of criminality was referred to with the judge indicating that there would have to be some accumulation between the sentences.
9. Special circumstances were found to exist (by reason of the Crohn's disease) justifying a reduction of the proportion of the sentence represented by the non-parole period: s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
10. The judge said he was not prepared to find that the applicant was remorseful, or that there were prospects of rehabilitation "in light of the history she has exhibited so far". He confirmed, however, that he had taken into account the applicant's unfortunate background and her history of illness and drug abuse.
11. His Honour then referred to the sentencing of Alan Chew and Sam Awood. This is relevant to one of the grounds of appeal and more will be said about it later.
12. After announcing the aggregate sentence and the indicative sentences, the judge indicated that he had found the commercial supply offence "below the mid-range of objective seriousness".

Ground 1 - The learned judge erred in his assessment of the objective seriousness of the offending

1. The focus of this ground was the following passage in the sentencing judgment (page 25): "The Crown concedes that the offender was a facilitator in the enterprise in which she participated. The Crown correctly submits these are serious offences; she reminds me of the commercial quantity specified for these offences as 100 grams; she concedes that the offence, in each instance, fall below mid-range; she acknowledges that the man Awood was involved in greater criminality but only to a marginal extent. With regard to the ongoing supply the offender had control of and responsibility for the delivery of the drugs and in that role she was what might be seen to be a significant participant facilitating the purposes of those with whom she was engaged." (Emphasis added)
2. Counsel for the applicant contended that this revealed errors in the judge's assessment of the objective seriousness of the offending.
3. The judge misstated that the Crown Prosecutor had said the commercial quantity "for these offences" was 100 grams. In fact, the Crown Prosecutor had said (correctly) in relation to nexus that the "total weight of those pills your Honour was 64.9 grams which is more than double the commercial quantity, the commercial quantity being 25 grams. The large commercial quantity is 100 grams." (POS 25.26) (The commercial quantity for methylamphetamine is 250 grams.)
4. It was also incorrect to say that the applicant "had control of and responsibility for the delivery of the drugs" in the ongoing supply offence. That could only be said in relation to the first transaction; it was Chew who physically supplied the drugs in the other transactions and the applicant was not even present at the last.
5. Counsel for the applicant also submitted that another error was a failure to have regard to six features pointing towards a lower level of seriousness of the ongoing supply offence. He also contended that there was error in giving undue weight to the fact that the offences were committed for financial reward (modest in relation to the commercial supply offence and an element of the ongoing supply offence).
6. The Crown's response was to point to the fact that the judge made no assessment of where within the range of objective seriousness the ongoing supply offence fell and in relation to the commercial supply offence he merely indicated that it was below the mid-range. It was submitted that the findings made by the judge were open to him and that no House error (House v The King [1936] HCA 40; 55 CLR 499) was evident.
7. In the passage extracted from the sentencing remarks above, the judge was speaking of matters that were relevant to an assessment of the objective seriousness of the offences. He was clearly mistaken in relation to at least the two matters referred to above (at [38]-[39]). Nothing appears to turn on the mistake about the commercial quantity of methylamphetamine.
8. His Honour explicitly stated a finding that the commercial supply offence was below the mid-range and it may be inferred that he accepted the Crown's concession that the ongoing supply offence was as well. But he did not say anything to indicate the extent to which he found them to be below that level of seriousness. In these circumstances, it cannot be said that the errors were insignificant in his Honour's assessment of objective seriousness.
9. These errors are sufficient to uphold this ground. It is unnecessary to deal with the other errors asserted.

Ground 2 - The learned judge erred in his assessment of the subjective features of the applicant

1. The judge expressed some circumspection about certain aspects of the applicant's subjective case but the applicant's counsel acknowledged that "he did appear to accept that the applicant's subjective features were unfortunate". It was submitted that, nevertheless, "it appears that very little weight was given to these subjective features on sentence". This was said to be because he gave undue weight to the failure of the applicant to give evidence. It was also submitted that his Honour gave disproportionate weight to the applicant's criminal history on the basis that reference to it occupied four pages of the transcript of his Honour's sentencing remarks.
2. The judge did not explicitly say how much "weight" he gave to the applicant's subjective features (as is to be expected). It is implicit in the submissions that he gave some weight to them. How much, and whether it was appropriate and open to his Honour, can only be measured by examining the sentence itself. Error having been identified under Ground 1, that exercise has become otiose.
3. As to the complaint about reference to the applicant's criminal history, the short answer is that the weight given to a particular matter in a judgment usually cannot be measured by the number of words a judge chooses or needs to use in referring to it. Some matters require lengthy exposition but ultimately have little weight whilst others can be stated quite pithily but have substantial weight. For example, it did not take the judge very long to refer to the applicant's plea of guilty but it brought about a 25 per cent reduction in her sentence. There is no merit in this complaint.

Ground 3 - The learned sentencing judge erred in failing to give appropriate weight to the finding of special circumstances

1. Special circumstances were found but the sentence entailed a non-parole period that is 73 per cent of the head sentence. Put another way, the finding of special circumstances resulted in a reduction of the non-parole period by about 6 weeks from what it otherwise would have been.
2. The Crown points to the judge having said that the non-parole period was "the least to which I believe she should be exposed in the circumstances" and that the parole period was "adequate to assist in her rehabilitation and re-socialisation back into the community". But that is to ignore that his Honour found special circumstances expressly and solely "by reason of the Crohn's disease" and that he had earlier referred to how debilitating that disease is and how it would render the applicant's custodial conditions more onerous.
3. Gleeson JA recently collected authorities relevant to a ground such as this in MD v R [2015] NSWCCA 37 at [38]-[43] and it is unnecessary to restate them. As the Crown submits, a finding of special circumstances is discretionary and this Court will be slow to intervene in relation to such judgments made at first instance. However, it rather makes a mockery (to adopt the expression of Howie J in R v Sutton [2004] NSWCCA 225 at [30]) of finding special circumstances to reduce the non-parole period of a total term of 5 years 6 months by only 6 weeks. In my view, the discretion has miscarried.
4. Error is established under this ground.

Ground 4 - The applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon her and her co-offender Gomrawi (Awood)

1. Zackaria Gomrawi (also known as Sam Awood) was sentenced for an offence of knowingly taking part in the supply of a commercial quantity (64.9 grams) of nexus. This corresponded with the applicant's commercial supply offence (nothing turns on the fact that his offence was one of "knowingly taking part"). His Honour Judge Hanley SC imposed a sentence of imprisonment for 4 years with a non-parole period of 3 years. His Honour's sentencing judgment was before Bennett DCJ. It is to be recalled that the indicative sentence for the applicant was one of 5 years.
2. Hanley DCJ was satisfied that Gomrawi was "a middleman or facilitator for the ultimate supply to the UCO" and that he "held a more important position [than] the co-offender El Ahmad in that it is clear he could negotiate price and quantity of the drug to be supplied". But he also found that Gomrawi did not exercise control over the drugs that had to come from someone else. In addition, his Honour took into account that Gomrawi was not going to receive any financial benefit himself; his motivation was to raise money to pay for legal expenses for the applicant's partner, his friend, who was facing drug charges.
3. Gomrawi was not found to be motivated by his own drug use. He was 36 years old. He had experienced a "reasonably unsettled and at times tragic life". He had been married and had a daughter as well as a son who died shortly after birth. He was diagnosed with depression in the aftermath of that event. He was on antidepressant medication in custody having been diagnosed with a "major depressive episode".
4. Gomrawi was described as having a lengthy criminal record which included a prior conviction for drug supply. There was the aggravating feature that the offence was committed whilst on bail (his record suggests this was for another drug supply offence). A plea of guilty had been entered in the District Court and the judge allowed a 15 per cent discount. Remorse was not found; nor was an unlikelihood of further offending or good prospects of rehabilitation.
5. Bennett DCJ referred in summary form to these matters but did not give any indication of how he thought the applicant's case compared with that of Gomrawi. In the proceedings on sentence he indicated that if the Crown's concession that Gomrawi's criminality was at a greater level than the applicant was accepted, the applicant should receive "a slightly lesser sentence to ensure parity".
6. In this Court, counsel for the applicant identified some comparative features of the two cases that, he submitted, pointed to his client receiving a more favourable sentencing outcome than Gomrawi. I conclude that "a reasonable mind looking overall at what has happened would see that the [applicant's] grievance is justified": R v Pan [2005] NSWCCA 114 at [34] (Johnson J).
7. This ground should be upheld.

Ground 5 - The sentencing judge erred in assessing the co-offender Chew's sentence as relevant to the applicant in terms of parity

1. Alan Chew was sentenced by Madgwick ADCJ on 11 March 2014 for supplying a commercial quantity of a prohibited drug (sentenced to 6 years with a non-parole period of 3 years) and three offences of supplying a prohibited drug (concurrent fixed terms of 1 year). He was a man in his mid-20s with no prior criminal convictions (aside from two minor driving offences).
2. Two of the offences of supplying a (non-commercial quantity of a) prohibited drug related to two of the transactions in the applicant's ongoing supply offence.
3. Bennett DCJ referred, again in summary form, to the sentencing of Chew and, as with Gomrawi, did not give any indication of how he considered it to be relevant. The applicant's counsel placed some store in the fact that his Honour's reference included the commercial supply offence which had no bearing upon the applicant's offences. It was submitted that this "must have placed upward pressure" on the sentence imposed upon the applicant.
4. The applicant's submissions cannot be accepted given the judge gave no indication that he took the sentencing of Chew into account in any fashion. In fact, why he referred to it in some detail when it was only of passing interest and had nothing to do with parity is hard to understand.
5. This ground should be rejected.

Ground 6 - The sentence was manifestly excessive

1. It is unnecessary to deal with this ground. The submissions made in support of it make reference to matters that should be taken into account in exercising the s 6(3) sentencing discretion.

Section 6(3) of the Criminal Appeal Act

1. Having found error, it is necessary to consider whether in the exercise of this Court's own sentencing discretion, some other sentence whether more or less severe was warranted and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW) and Kentwell v The Queen [2014] HCA 37. This includes consideration of events since sentencing as set out in affidavits affirmed by the applicant and her solicitor.
2. The applicant's affidavit describes her experience in custody. She has experienced difficulties with her Crohn's disease as Bennett DCJ anticipated. These difficulties were greater in a higher security environment, but now the applicant is housed in an "Independent Living Unit" outside the main gaol. She lives with eight other women and has her own bedroom. She describes the concerns she has about her three daughters who are now aged 13, 17 and 19. The youngest is in refuge and the Department of Community Services has forbidden the applicant calling her. The applicant has occupied her time working and completing courses, including a drug and alcohol rehabilitation program. She has hopes of living with a sister when she is released; obtaining employment; and establishing a stable environment so she can have her youngest daughter live with her.
3. The affidavit affirmed by the applicant's solicitor annexes a variety of documents and certificates which serve to confirm what the applicant says about her participation in employment and courses.
4. Submissions by the applicant's counsel placed some emphasis upon the quantities of drug involved in each of the offences but in my assessment the quantities are unremarkable. I accept that the commercial supply offence involved a quantity that was "well short of the large commercial quantity" but it was also well in excess of the minimum to qualify as a commercial quantity. The quantity involved in the ongoing supply offence was about 16 grams but relatively small quantities are often encountered in relation to this offence. The objective gravity of an offence of ongoing supply in s 25A is not measured by the quantity of drug alone; "the section is directed [at] those who are indulging in a practice or business of supplying prohibited drugs": R v Giang [2005] NSWCCA 387 at [18]. (Hulme J).
5. The applicant's role was subsidiary to Gomrawi in relation to the commercial supply offence and Chew in relation to the ongoing supply offence but Bennett DCJ was correct to characterise her as a "significant participant" nonetheless.
6. The starting point adopted by Bennett DCJ for the commercial supply offence before allowance for the plea of guilty must have been 6 years 8 months. The starting point for Gomrawi's sentence for that offence must have been 4 years 8 months. There is no justification for the applicant's sentence to have been assessed at such a significantly higher level.
7. The written submissions for the applicant cited three "comparable cases" involving the supply of nexus. It is questionable whether a case needs to concern the precise same drug in order to be "comparable". In any event, the more significant guideposts, in my view, are the maximum penalty and the standard non-parole period.
8. Sentencing statistics were relied upon in support of the applicant's contention that the ongoing supply offence was manifestly excessive. The current iteration indicates that the 3 year indicative sentence was the median for the 78 per cent of offenders who received a sentence of full-time imprisonment (all of whom had pleaded guilty).
9. The applicant has a number of features of her subjective case that demanded some amelioration of her sentence. Counsel pointed to her "really parlous start to life", undergoing an arranged marriage at the age of 13 to a close relative who was physically and verbally abusive and introduced her to drugs. Although her drug addiction cannot be regarded in any way as an excuse for her crimes the fact that it had its origins in such circumstances in her teenage years is of some significance: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 273 (Wood CJ at CL). True it is that she eschewed the opportunity for rehabilitation under the Drug Court program and that it is an aggravating feature that her offences were committed whilst she was on that and other forms of conditional liberty. But it my view the overall subjective case for the applicant is one that justifies a measure of leniency that could not ordinarily be extended in a case involving flagrant and serious involvement in drug supply.
10. In my view, appropriate starting points are 4 years for the commercial supply offence and 3 years for the ongoing supply offence.
11. An allowance must be made for the utilitarian value of the pleas of guilty. Given the pleas were entered on the day the applicant's trial was due to commence, albeit with notice having been given to the Crown a month before, a discount of no more than 15 per cent can be allowed. That would yield indicative sentences (with rounding) of 3 years 4 months and 2 years 6 months respectively.
12. The commencement date of the sentence must be assessed with the principle of totality in mind. As previously observed, the applicant was subject to an existing sentence of 3 years 4 months with a non-parole period of 2 years dating from 9 October 2011. The non-parole period expired on 8 October 2013. In my respectful view, the degree to which Bennett DCJ partially accumulated the sentence upon the existing sentence was inadequate. It had the effect of substantially obliterating punishment for a significant number and variety of offences committed by the applicant over a period of more than two years. Significant, but not complete, accumulation upon the non-parole period of the existing sentence is appropriate.
13. Accumulation of the indicative sentences so as to arrive at an aggregate sentence is also guided by the principle of totality. Bennett DCJ adopted a notional level of accumulation of 6 months. In my view, given the separate criminality in each offence, the accumulation should be somewhat greater. The Court should impose an aggregate sentence of 4 years.
14. A non-parole period which gives effect to the finding of special circumstances (which should also take into account the partial accumulation upon the existing sentence should be maintained) should be 2 years 2 months.

Orders

1. I propose the following orders: (1) Leave to appeal against sentence granted and appeal allowed. (2) Sentence imposed in the District Court on 2 May 2014 quashed. (3) Sentence the applicant to an aggregate term of imprisonment comprising a non-parole period of 2 years 2 months and a balance of the term of the sentence of 1 year 10 months. The sentence is to date from 9 April 2013. The non-parole period will expire on 8 June 2015 and the total term will expire on 8 April 2017.
2. ADAMSON J: I agree with R A Hulme J.

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: 16 April 2015