El-Sayed v R

Grounds of appeal

1. The applicant seeks leave to appeal against the sentences imposed for the drug supply offences on the following grounds: (1) In considering the objective seriousness of the offences, his Honour erred in: a) taking into account the drug 'Amphetamine'; b) failing to separately consider the objective seriousness of each offence; and/or c) his assessment of the objective seriousness of each offence. (2) The sentences imposed were manifestly excessive.

The offences

1. According to a statement of agreed facts, in the early afternoon of 12 May 2014 the applicant attracted the attention of police by his manner of driving in Kings Cross. He was stopped and spoken to and his demeanour raised suspicion. He consented to being searched which police said would be for drugs. He said (untruthfully), "I don't use anymore".
2. Police found the following on the applicant and in the car: * Cash in the sum of $1920 (Form 1: Deal with suspected proceeds of crime). * Bank cards in other people's names (Form 1: Possess unlawfully obtained goods). * A laptop computer (Form 1: Possess unlawfully obtained goods). * A plastic bottle containing clear liquid with a crystal substance (Count 1: Supply 1171.7 grams of 1,4 Butanediol).
3. The search of the applicant's car continued at the police station when the following items were found: * Plastic bags containing methylamphetamine (Form 1: Supply 31.16 grams of methylamphetamine). * Numerous mobile phones. A Samsung brand phone which the applicant said was his (Form 1: Possess unlawfully obtained goods) was receiving text messages which police believed related to drug transactions.
4. A search warrant was executed at the applicant's home at Mount Pritchard the following day. Police seized various items including more bottles containing liquid (Count 2: Supply 1981.1 grams of 1,4 Butanediol), a set of small silver scales and four mobile phones.
5. The applicant gave explanations to police for his possession of some of these items which were evasive or untrue. Given that he subsequently acknowledged his guilt it is unnecessary to dwell upon them.
6. The judge assessed each of the 1,4 Butanediol supply offences as being in the middle of the range of objective seriousness.

Prior drug supply offences

1. The applicant was sentenced by his Honour Judge Solomon in 2003 for supplying methylamphetamine (and for stealing a motor vehicle). Drawing from his Honour's sentencing remarks, the supply offence concerned 9.3 grams of methylamphetamine that was contained in 27 tablets the applicant had in his possession in a Darlinghurst nightclub. He was on bail in respect of earlier supply and other offences that were taken into account. His Honour accepted that the applicant had some of the drugs for supply and some for personal use.
2. The applicant's history at that point included that he had commenced taking drugs after the break-up of a relationship with his then fiancé. He had previously been in employment and had purchased a home but after the break-up he had been forced to sell the home and had frittered away the substantial profit on drugs and gambling. Dr Nielssen, forensic psychiatrist, diagnosed adjustment disorder, pathological gambling, substance abuse disorder and amphetamine induced psychosis. His Honour found there was less need for deterrence in light of the offender suffering the last of those conditions at the time of the offences.
3. Solomon DCJ referred to the applicant having no prior drug offences on his criminal record. He noted the applicant's early pleas of guilty and found him to be contrite. There was a reference from a counsellor confirming the applicant's regular attendance upon her since his arrest. The applicant was in a new relationship and a child was expected. The judge found there were good prospects of rehabilitation. He considered that the criminality was "an aberration".
4. The applicant was sentenced to imprisonment to be served by way of periodic detention for 3 years. For the unrelated offence of stealing a motor vehicle he received a suspended sentence of imprisonment for 12 months. Further offences were taken into account in respect of both.
5. The applicant's custodial history shows that the periodic detention order was revoked by the State Parole Authority and the applicant was required to serve the remainder of the sentence (about 18 months with a non-parole component of almost 6 months) from 10 July 2007. The reason for the revocation is not indicated.
6. A statement of facts was tendered in relation to a further drug supply offence for which the applicant was sentenced in 2008; an offence of ongoing supply of methylamphetamine. On four occasions in Kings Cross between 20 June and 10 July 2007 he supplied an undercover police officer with what was represented to be 0.3 grams of cocaine costing $150 on each occasion. The drug was, in fact, methylamphetamine, in quantities ranging from 0.15-0.38 grams.
7. For this offence the applicant was sentenced to imprisonment for 3 years 6 months with a non-parole period of 1 year 10 months. He became eligible for release on parole on 28 October 2009.

The applicant's personal circumstances

1. The applicant did not give evidence in the sentence proceedings. His case comprised the tender of reports by Mr Sam Borenstein, psychologist, and character references from his partner, father, brother, and Narcotics Anonymous sponsor. A Pre-Sentence Report ("PSR") was tendered in the Crown case, although it was dated some 12 months before the sentence hearing which was on 17 June 2016.
2. The applicant was aged 35 at the time of the offences. He was born in Sydney to parents of Lebanese background.
3. The PSR included that the applicant had a close and supportive family. He obtained employment when on parole in 2011 which he had maintained and he had also been the owner/operator of a commercial cleaning company with four employees.
4. The applicant told the author of the PSR that he had been using illicit drugs recreationally; it was a component of a risqué lifestyle. He said that he was using prescribed and un-prescribed pain relief drugs coupled with libido enhancing medication, methylamphetamine and GHB. He said that he had been taking drugs excessively from 2012 until his arrest in 2014 but had remained abstinent since. He also gave a history of a substantial gambling problem which had resurfaced in 2012. The offences were attributed to his dependence on illicit substances and the applicant's greed to support his lifestyle coupled with his gambling addiction.
5. The PSR includes an assessment that the applicant had a "low/medium risk of re-offending".
6. In a report dated 13 October 2015, Mr Borenstein opined that the applicant had symptoms going back to childhood that were indicative of Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder. The report sets out further detail of his addictions to drugs and gambling in his adult years. He had commenced using ecstasy and cocaine at about the age of 18 and was introduced to "ice" which became his preferred drug in 2001 (at about age 23). The applicant said that he had been abstinent and had been attending Narcotics Anonymous and Gamblers Anonymous meetings since his release on bail. Subsequent to the preparation of the PSR he had lost his employment but continued with his cleaning business.
7. The applicant told Mr Borenstein that he had been in a relationship for some 10 years which had ended when he was arrested in 2014. He had a 7 year old daughter to whom he was devoted.
8. Mr Borenstein administered psychometric tests which, amongst other things, indicated symptoms of depression, anxiety and stress. The extent to which this related to his outstanding criminal charges is not apparent.
9. Mr Borenstein further assessed the applicant and provided a report of 30 April 2016. The applicant's bail had been revoked for breach of a reporting condition and he returned to custody on 28 January 2016. Up until then he had been continuing with NA and GA meetings. His account to Mr Borenstein was to the effect that he was motivated to further his rehabilitation while in custody but was frustrated by the lack of programs. Testing indicated that symptoms of depression, anxiety and stress persisted.
10. The history in this report includes an account of a rather extraordinarily high level of drug usage at the time of the offending: "upwards of 40mls of GHB per day and upwards of one ounce of methamphetamine per day".
11. The references that were tendered confirmed various positive attributes of the applicant including his commitment to his daughter, perceived remorse and progress towards rehabilitation and generally confirmed the support he has in the community.

The sentence judgment

1. The judge indicated that the applicant's two prior drug supply episodes meant that the criminal history "plays significantly upon the sentences to be imposed here, particularly given that there seems to be an acceleration of the relative seriousness of the dealing involved albeit that I note this is a deemed supply".
2. His Honour noted that there were no aggravating factors in relation to either of the two offences. The need to take into account the Form 1 offences, particularly the one for supplying an ounce of methylamphetamine, meant that there would be an increase in the sentence that would otherwise have been imposed for Count 2.
3. In recounting features of the applicant's personal history the judge made specific mention of his abstention from drugs whilst in prison and on bail which indicated that it was "wholly within his ability to abstain from drug taking". He took into account Mr Borenstein's opinion that the applicant suffers from adult attention deficit disorder. Although his Honour did not accept this had any role in the commission of the offences, he was prepared to take it into account "as Muldrock demands I should". The judge made findings that the applicant had "relatively good prospects of rehabilitation" and "fair to reasonable prospects of rehabilitation with assistance" and for that reason found there were special circumstances justifying a reduction in the non-parole proportion of the sentences.

Ground 1 - error in considering objective seriousness

1. The judge's assessment that each of the offences were in the middle of the range of objective seriousness was impugned on the three bases particularised in the statement of the ground. It is unnecessary to discuss them in any detail because of the view I have come to in relation to Ground 2. Suffice to say, I consider that they do not have merit.
2. The first basis sought to characterise four words in the sentence judgment as erroneous but that was by ignoring the context in which they appeared. The second basis was also based upon a mischaracterisation of what the judge said by focusing upon his occasional use of the singular tense (e.g. "this offence") and disregarding his otherwise use of the plural tense (e.g. "the quantities are significant"). The third basis involved an overall challenge to his Honour's assessment of objective seriousness - a type of finding in respect of which this Court is generally reluctant to intervene (see, for example, Mulato v R [2006] NSWCCA 282 at [37], [46]). While I do not agree with it, I am not prepared to say that the finding was one that was not open to his Honour.

Ground 2 - manifest excess

1. In written submissions, counsel for the applicant referred to the following findings made by the primary judge: a) 25 per cent discount for early pleas of guilty; b) there was "one course of criminal conduct"; c) the applicant's prior criminal history "plays significantly upon the sentence to be imposed here"; d) there were no aggravating factors; e) the applicant suffered adult attention deficit disorder; f) the applicant had "relatively good" prospects of rehabilitation; and g) a finding of special circumstances was appropriate.
2. It was then submitted that the sentences were manifestly excessive.
3. In oral submissions, emphasis was placed upon the judge having determined to impose concurrent sentences. Counsel accepted that this was a matter about which "minds may differ" and submitted that if the Court was moved to resentence and consider a degree of accumulation it would be "very modest" (T6.14). He also accepted that the effect given by the primary judge to the finding of special circumstances (imposing a non-parole period that was 50% of the overall sentence) was "as good as it gets" (T6.24).
4. To make good a ground asserting that a sentence is manifestly excessive it is necessary for the applicant to persuade the Court that the sentence is unreasonable or plainly unjust. It is not to the point that this Court might consider that some other sentence should have been imposed. It must be shown that the sentence is one that was simply not open to the judge to impose in the exercise of his sentencing discretion. It is also necessary to bear in mind that there is no single correct sentence. Sentencing judges are allowed as much flexibility as is consonant with consistency of approach and application of principle. (References in judgments of this Court to these well-established principles are legion; see, for example, Obeid v R [2017] NSWCCA 221; (2017) 350 ALR 103 at [443].)
5. The maximum penalty for the offences is 20 years. Before deducting 25 per cent for the applicant's early pleas of guilty, the judge must have started with an assessment of sentence of about 10 years 8 months for Count 1 and 13 years 4 months for Count 2. This was in the context of a finding of middle range objective seriousness and there being some features of the applicant's subjective case that were in his favour (although not a lot). In my view, it is abundantly clear that the starting point for each sentence is erroneously excessive.
6. The explanation for the error might lie in the fact that the judge said he would not "set out the arithmetic" in relation to the 25% deduction "within these reasons". If he had, it might have alerted him to the fact that the undiscounted starting points for the sentences he was imposing were completely out of keeping with his findings.

Resentencing

1. An affidavit affirmed by the applicant's solicitor, Mr Christopher Cole, was read at the hearing for the Court to take into account in the event of resentencing. Mr Cole had reviewed records of Corrective Services NSW and was able to say that the applicant has been in employment whilst he has been in custody; his attitude has been described as "polite"; he has engaged in educational programs including in Food Safety and General Education (Mathematics). There is also a record of the applicant having been transferred to Long Bay Hospital on 22 July 2018 following an assault by an inmate. He advised that he sustained a broken jaw but there is nothing about that in the records.
2. I would revise the finding of the primary judge as to the objective seriousness of the offences. This assessment is made difficult, as senior counsel for the applicant conceded in the District Court, by the fact that there was so little information about the drug in question. Nevertheless, I have regard to the following: * The quantities were in the lower third of the commercial quantity range for this particular drug. Another perspective is that Count 1 involved just above the commercial threshold whereas Count 2 involved almost twice that amount. * The drug was described as "dangerous" by the applicant's counsel. How or why that is so was not elucidated. It may be assumed she had instructions from her client about the nature of the drug. * Counsel conceded that the applicant intended to sell it (as opposed to, for example, sharing it with friends or giving it away). How much he would sell it for was also something that was not elucidated. Indeed, there was no evidence at all as to monetary value. * This was not isolated drug supply activity; the applicant's conduct was not an aberration.
3. The reason for my disagreement with the primary judge's assessment of "middle of the range" objective seriousness is because of the lack of information about matters such as the potency of the drug; whether it could be diluted to make even greater quantities; its value; and the potential financial gain from selling it. With other more commonly encountered drugs there is a broad knowledge about how much a user might consume and what it would cost but there was no evidence at all about such matters in this case about this drug. Quantity alone is not a reliable guide to seriousness aside from the fact that Parliament has determined that a particular quantity will be classed as a commercial quantity et cetera. Without information beyond what is summarised in the bullet point list above, I can only conclude that these offences were below the middle of the range, with Count 1 slightly more so than Count 2 because of the different quantities.
4. The applicant should retain the benefit of the 25% reduction for his early pleas of guilty.
5. The judge made no finding in relation to remorse and none could be made on the evidence before this Court.
6. The applicant's rehabilitation prospects are no more than reasonable. In this regard, much depends upon him maintaining his resolve to deal with his entrenched issues concerning drugs and gambling. He has fluctuated in this respect in the past.
7. There must be some accumulation of the sentences. The sentence for one offence cannot fully reflect the criminality inherent in the other: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]-[28]. However, given the offences are so closely connected the level of accumulation should be modest.
8. The additional offences listed on the Form 1 document are to be taken into account in assessing the sentence for Count 2. The methylamphetamine supply offence is of particular significance and the increase in the sentence imposed for Count 2 should reflect that fact.
9. The finding of special circumstances was not opposed by the Crown in the Court below. Counsel for the applicant accepted that the extent to which it was given effect by the primary judge was "as good as it gets". In other words it was very generous; in my view, overly so. The ultimate constraint in setting a non-parole period is the need to appropriately reflect the criminality involved in the offence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 718 [63].
10. An aggregate sentence may be imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act.
11. The following are the sentences assessed for the individual offences following a reduction of each by 25 per cent for the pleas of guilty (with some rounding for practical purposes): Count 1: 5 years 3 months with a non-parole period of 3 years 2 months. Count 2: 6 years 9 months with a non-parole period of 4 years.

Orders

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. Quash the sentences imposed in the District Court on 17 June 2016 for the two offences of supplying a prohibited drug in not less than a commercial quantity. 4. In lieu, sentence the offender to an aggregate term of imprisonment for 7 years and 6 months with a non-parole period of 4 years 6 months. The sentence is to date from 1 December 2015. The non-parole period will expire on 30 May 2020 whereupon the offender will become eligible for release on parole.
2. HAMILL J: I agree with the orders proposed by R A Hulme J and with his Honour's reasons for deciding that ground 2 must be upheld. Ultimately, I also agree that ground 1 cannot be sustained. However, I would add the following observation in relation to ground 1.
3. When appeal counsel is confronted with a sentence that is manifestly excessive (or inadequate), it is inevitable that they will examine the judgment or remarks on sentence carefully to determine whether there is any patent error disclosed in the primary Judge's reasons for arriving at a sentence that is too high. A finding that a sentence is manifestly excessive (or inadequate) is a conclusion: cf Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). It is a matter upon which appellate judges might take different views. In Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 the respondent (who succeeded in the Court of Criminal Appeal on a ground asserting manifest inadequacy) was criticised by the full High Court (implicitly at least) for failing to articulate the specific ground of appeal, or patent legal error, upon which it relied: for example, at [9]. The High Court upheld the appeal on the basis that the Court of Criminal Appeal decided the case on a specific ground that was not raised in the notice of appeal. While the primary focus of the appeal, and the only ground of appeal, was that the sentence was manifestly inadequate, the Crown also sought to challenge the primary Judge's assessment of the objective criminality involved in the offence.
4. In the present case, the appellant argued that the sentence was manifestly excessive. This was ground 2 in the notice of appeal. In ground 1, the appellant contended that the sentencing Judge erred in considering the objective seriousness of the offences. While I agree with the conclusion that ground 1 is not established, I am unable to accept that it does "not have merit."
5. The sentencing Judge referred to the drug subject of the two counts as "an amphetamine". This seemed to reflect a throw-away line uttered by the prosecutor who said at the beginning of the sentencing hearing "it is a kind of amphetamine I think". There was no evidence that the drug was "an amphetamine" or an analogue of that drug. There was no evidence that it had a similar chemical structure or comparable effects or side-effects on the consumer. Based on the quantities specified in Schedule 1 of the Drug Misuse and Trafficking Act, it seems the legislature considers amphetamine to be a more dangerous substance. There was almost no evidence as to the nature, qualities and effects of the drug subject to the charges. Having correctly noted that "there is no evidence in fact before me as to either its chemistry or the consequences of consumption", the sentencing Judge said: "What I do have before me is that it is a drug that is within the schedules of the Drug Misuse and Trafficking Act and accordingly that is the guiding principle that I will apply in this case, it is an amphetamine."
6. It seems clear enough that the "guiding principle" to which his Honour was referring was the fact that the drug was proscribed by the relevant legislation. I do not accept the appellant's contention that the "guiding principle" related to the words that followed: "it is an amphetamine". However, the introduction of the term amphetamine was unfortunate, if not erroneous.
7. Even so, I agree with R A Hulme J that the context in which his Honour made the observation in the course of extemporaneous remarks on sentence does not support the proposition that his Honour erred in assessing the objective criminality of the offences. Like R A Hulme J, I do not agree with the sentencing Judge's conclusion that the offence fell in the mid-range of objective seriousness but I agree it was a conclusion that was open to his Honour.

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: 09 November 2018