Elchiekh v R

Facts

1. The judge determined the facts relevant to sentencing the applicant that were consistent with the verdicts of the jury. His Honour found that upon executing a search warrant at the premises leased by the applicant, the police located the following items: 1. three resealable bags of methylamphetamine, totalling 294.28 grams (count 1); 2. 50 pale green and brown tablets, totalling 11.05 grams of MDMA (count 2); 3. a plastic bag containing white powder, analysed to be 409.7 grams of ketamine (count 3); 4. a plastic container and four bags of vegetable matter totalling 1689.1 grams of cannabis leaf (count 4); and 5. bundles of notes in various denominations, totalling $13,590.
2. During the search, police located in the applicant's bedroom a small book with a list of names and amounts and a small resealable bag containing nine SIM cards. His Honour noted that the Crown alleged that "this indicated it was the property of someone who was supplying drugs" (ROS 3-4). Plastic bags were found in the laundry sink, two of which were found to have the applicant's fingerprint. His Honour noted that the Crown alleged that these bags previously contained cannabis.
3. The applicant was not at the premises when police arrived to execute the warrant nor at any time during the search. The judge recounted that Wayne O'Farrell, who was sharing the premises with the applicant, had been called as a witness in the Crown case. He denied any knowledge of the drugs and had returned to the premises within two or three days of the execution of the search warrant to find the lock of the front door of the unit broken and the premises open. Mr O'Farrell gave evidence that he did not call the applicant when he returned to the premises but that the applicant's brother contacted him.
4. His Honour observed that the applicant was not located despite enquiries following the search of his premises and was ultimately arrested pursuant to the execution of a police warrant on 20 June 2012. His Honour recounted that "[a]t the time of his arrest [the applicant] was given the usual caution and then said "My name is Tom Elchiekh. I feel like I've been in gaol for the past seven years. I just want to get these charges over and done with" (ROS 4).

Subjective circumstances

1. During the proceedings on sentence, the applicant neither gave nor called evidence. In oral submissions, the applicant's counsel referred to the applicant's subjective circumstances.
2. His Honour recounted that the applicant was 38 years old and had, at the time of sentencing, been in custody for 304 days. He had no relevant criminal history, namely this was his first offending concerning drugs.
3. The judge said that the applicant left school at the age of 16 and commenced work in the panel beating industry. Some years prior to his arrest he operated his own panel beating business and had significant contracts with a number of motor dealers as well as work from the public. He employed a number of people and had always been in full employment.
4. His Honour noted a pre-sentence report was not tendered on sentence; however, the applicant submitted that he had used drugs recreationally in his youth but in the years prior to the offending had not used drugs at all, nor had he used them in the seven year period between the offending and his arrest.
5. The judge recounted that in 2003, the applicant entered into a relationship with a woman who became his de facto partner. Together they have a son who was aged six years at the time of sentencing. They separated amicably in 2010; however, the applicant continued to support his former partner by way of payment of her rent together with a weekly amount. There were no Family Court orders in place. In 2009, his former partner was diagnosed with leukaemia and her treatment was ongoing at the time of sentencing. His Honour noted that the applicant provided support to her by having contact with his son from Monday to Friday each week and at other times to provide her with respite. It was a flexible arrangement. The applicant also provided financial support to his parents from time to time.
6. Following his arrest, the applicant's business lease had been transferred and the court was informed that his contracts had been sold.

Further remarks on sentence

1. At the commencement of his Honour's remarks, he said (ROS 1): "In respect of count 1 the maximum penalty proscribed by s 25 of the Drug Misuse and Trafficking Act 1985, ("the Act") is 20 years imprisonment or 3,500 penalty unit fine or both. There is a prescribed standard non-parole period of 10 years in respect of this offence. In respect of counts 2, 3 and 4 the maximum penalty proscribed by s 25 is 15 years imprisonment or 2,000 penalty unit fine or both." [Emphasis added.]
2. Later on in his remarks, his Honour said (ROS 10-11): "In considering the appropriate sentence in respect of each of the offences, I have had regard to the maximum sentence proscribed in respect of count one of twenty five years and the standard non-parole period of ten years imprisonment together with the maximum sentence prescribed in relation to s 25 subs (1), counts two, three and four of ten years imprisonment. The maximum penalties and standard non-parole periods are guideposts which I have taken into account in considering all the circumstances of the offending." [Emphasis added.]
3. The judge accepted that general deterrence was an important matter to be taken into account in drug trafficking offences and that specific deterrence was relevant. His Honour said that he was persuaded beyond reasonable doubt that the applicant was involved in drug trafficking for profit. In making this finding, his Honour had regard to the large sum of cash, the notebook, the resealable plastic bags and the used plastic bags that had previously contained cannabis.
4. His Honour noted the applicant's submission that he had not used drugs for some years but said that this "merely underlies his involvement in disseminating a variety of prohibited drugs into the community" (ROS 11). His Honour observed that the quantities of each drug were well below the large commercial quantities prescribed in the DMT Act and took into account that there was little evidence of repackaging the drugs for sale to end users. The judge said that it was clear that the applicant was not at or near the top of any hierarchy in the distribution of drugs. His Honour went on to say (ROS 11-12): "…I find that the objective seriousness of the offending here falls below the mid-range of seriousness of offences pursuant to s 25 of the Act. However, it is not in the low range of seriousness of such offences given the quantities of drugs involved and therefore I find that it is just below the mid-range of seriousness for such offences."
5. On the question of delay, the judge said (ROS 11): "… I am not persuaded that the whole of the period of seven years delay can be attributed to the offender secreting himself from the authorities. It was conceded that there was no evidence to establish that he knew that a warrant had been issued for his arrest. At the time of his arrest, that warrant had been outstanding for a period of five years. There was scant evidence of the attempts that the police made to find him immediately following the execution of the search warrant which led to the charges and the evidence established that he owned a property outside Sydney and travelled to his place of work regularly. He was eventually arrested near his place of work. In those circumstances, the charges had been hanging over him for a substantial period of time which is reflected in which [sic] he said to the police upon his arrest as I have set out above. I am therefore prepared to take into account as delay relevant to his sentence half the period of seven years that expired between the date of the offence and his arrest."
6. The judge declined to find special circumstances, observing that there was no evidence upon which to base a finding that the applicant required assistance in his rehabilitation back into the community.
7. His Honour said that he had taken into account as a mitigating factor that the applicant did not have any significant record of previous convictions and that he did not offend during the seven year period between the offences and his arrest, together with the delay between the date of the offences and his sentencing.

Ground 1: In determining the appropriate sentence in respect of count 4, his Honour took into account the wrong maximum penalty

Submissions

1. The applicant pointed to the judge's incorrect recitation of the maximum penalty for count 4 as being imprisonment for 15 years. The maximum penalty was in fact 10 years imprisonment.
2. The applicant submitted that the judge must have proceeded on the basis that the maximum penalty was 15 years rather than 10 years imprisonment when one considered the sentence indication given in respect of count 4, which related to a quantity only marginally above the indictable quantity and well below the commercial quantity of 25 kilograms. The applicant argued that the judge's error pervaded his reasoning when one had regard to the facts found by his Honour and the characterisation of the applicant's role and function.
3. Whilst accepting that the judge incorrectly stated the maximum penalty at two points in his sentencing remarks, the Crown submitted that it was unclear from the indicative sentences and his Honour's reasons whether the indicative sentences were imposed on the basis of the maximum penalty of 15 years or 10 years imprisonment. The Crown conceded that in circumstances where the Crown had erroneously stated the maximum penalty, it was appropriate for this Court to proceed on the basis that the judge had in mind that a maximum penalty of 15 years imprisonment was applicable when indicating a sentence for count 4.
4. The Crown accepted that it was open for the Court to find that the judge's misstatement in the maximum penalty for count 4 led to error in the indicative sentence for this count. However, the applicant's appeal related to the aggregate sentence imposed upon him and not the judge's error in relation to the indicative sentence. It was submitted that error in the indicative sentence for count 4 could not have affected the aggregate sentence imposed and did not vitiate the exercise of the judge's discretion in respect of the aggregate sentence.

Consideration

1. Unfortunately, during the proceedings on sentence, the judge was inadvertently misled by the Crown who informed him that the maximum sentence for counts 2, 3 and 4 was 15 years imprisonment, which was correct for counts 2 and 3 but not for count 4. The maximum penalty for this count was imprisonment for 10 years. In the passage of the sentencing remarks quoted at [18] above, his Honour referred to the maximum penalties in accordance with the information provided by the Crown. The judge correctly referred to the maximum penalty for count 1 as 20 years imprisonment.
2. However, before considering the appropriate sentence to be imposed for each count, his Honour incorrectly referred, in the passage of the sentencing remarks quoted at [19] above, to the maximum sentence for counts 2, 3 and 4 as being 10 years whereas the maximum penalty for counts 2 and 3 was 15 years. His Honour incorrectly referred to the maximum penalty for count 1 as 25 years imprisonment.
3. True it is that indicative sentences are not themselves amenable to appeal, but that does not relieve a sentencing judge from paying proper regard to the applicable maximum penalties for each offence before imposing an aggregate sentence.
4. It is unclear whether his Honour had in mind the incorrect maximum sentence for count 4 or the incorrect maximum sentences for counts 2 and 3 at the time sentences for each count were indicated and the aggregate sentence imposed. The arguments advanced by the applicant and the Crown amount to no more than speculation.
5. The plain fact is that the maximum penalties stated by the judge were incorrect on two occasions. In my respectful opinion, this was a material error that may have infected his Honour's reasoning: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [41]-[42]; Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 per Kirby J at [60].
6. It follows that Ground 1 of the appeal is established. As it will be necessary for this Court to exercise the sentencing discretion afresh, the remaining grounds may be dealt with succinctly, but the submissions made remain relevant to resentence.

Ground 2: His Honour failed to give proper consideration to the seriousness of each offence

Submissions

1. The applicant's complaint was that in assessing the objective gravity of the offences, the judge failed to distinguish between the quantities of the prohibited drugs involved in each offence and described the objective seriousness collectively as just below the mid-range. Another complaint was that the judge indicated non-parole periods for counts 2, 3 and 4 which were not standard non-parole period offences. This approach was said to be unnecessary and capable of giving rise to confusion.
2. The Crown argued that the judge's findings were within the range submitted by the applicant's counsel during the sentencing proceedings. The submissions made on the applicant's behalf did not ask his Honour to give separate consideration to each count. The Crown pointed out that the quantity of the prohibited drug was not the only matter when the objective seriousness of the offences came to be assessed.

Consideration

1. During the proceedings on sentence, neither the Crown nor the applicant's counsel asked the judge to assess individually the objective seriousness of the offences. The following exchange took place between his Honour and the applicant's counsel (Tcpt, 25 October 2013, p 10(4-14)): "HIS HONOUR: Where do you say the objective seriousness lies? NEMATALLA: Well, your Honour, given the matters that I will again for the sake of just highlighting them briefly, the quantities that were found are acknowledged. Subject to your Honour's findings as to whether or not he was trafficking in a substantial degree is a matter for your Honour but assuming that your Honour is not satisfied and approaches the indicia cautiously, your Honour would find that the material was intercepted before it got out into the community and these were not actual supplies. It would fall somewhere, if not in the mid range [sic], certainly at the top end of that range between low and mid. So in the top end of that area."
2. It appears that the applicant's counsel submitted to the judge that the objective seriousness of the offences should be assessed as "fall[ing] somewhere, if not in the mid range [sic], certainly at the top end of that range between low and mid."
3. His Honour's finding that the offences fell just below the mid-range of seriousness was in accordance with that submission: see [21] above.
4. This Court has emphasised that appeals do not provide an occasion to revise or reformulate cases argued before a sentencing judge. Arguments that are raised on appeal that retract or contradict submissions made below will not be entertained unless it can be demonstrated that there has been a miscarriage of justice arising from the plea and sentence: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[83].
5. Putting aside for a moment the applicant's position in the District Court, the applicant's argument in this Court focused on the different quantities of the prohibited drugs in counts 2, 3 and 4. The applicant pointed out that count 2 involved an amount of ecstasy which was one eleventh of the commercial quantity for ecstasy, the ketamine involved in count 3 was approximately one third of the commercial quantity prescribed for ketamine and the cannabis involved in count 4 was only 6.7% of the commercial quantity prescribed for cannabis. The contention was that these significant differences were not recognised in the judge's assessment of the objective gravity of the offences.
6. Sentencing for drug offences is not dependent upon arithmetical calculations of how much more or less that the prohibited drug is than a particular prescribed quantity of that drug. The quantity of the drug is an important consideration which is reflected in an increase in the statutory penalty as the quantity of the drug involved comes to fall within the indictable, commercial or large commercial quantities. However, it is neither the only factor nor the most important factor in assessing the objective gravity of the offence. More important is the role of the offender and the level of his or her participation in the offence: R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 per Wood CJ (with whom Sully and Dowd JJ agreed) at [33].
7. Another factor to be considered is the purity of the prohibited drug: R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 at [56].
8. The purity of the drugs was not an issue before the judge nor is it an issue in this Court. The applicant's role was the subject of submissions before his Honour who found that he was not at or near the top of any hierarchy in the distribution of drugs. No criticism is made of that finding which applies to all counts.
9. In any event, it is evident from the differences in the indicative sentences that whilst his Honour expressed his findings of objective gravity for all of the offences as falling just below the mid-range, he gave separate consideration to each count. This is demonstrated by the following table which is extracted from the Crown's written submissions (CWS 9): " Drug located Trafficable quantity Indictable quantity Commercial quantity Ratio Indicative sentence 294.28 g Methylamphetamine (Count 1) 3 grams 5g 250 g 1.16 x commercial quantity 8 yrs (6 yrs npp) 11.05 g MDMA (Count 2) 0.75 g 1.25 g 125 g 8 x indictable quantity 3 ½ yrs (2 ½ yrs npp) 9% of commercial quantity 409.7 g Ketamine (Count 3) 7.5 g 12.5 g 1.25kg 32 x indictable quantity 4 yrs (3 yrs npp) 33% of commercial quantity 1,689.1 g Cannabis Leaf (Count 4) 300 g 1 kg 25 kg 1.6 x indictable quantity 3 years (2 yrs npp) 7% of the commercial quantity

"

1. In my view, the characterisation by the judge of objective seriousness for each count was reasonably open to his Honour. As counts 2, 3 and 4 were offences contrary to ss25(1) and 29 DMT Act, they did not attract a standard non-parole period. Accordingly, it was not necessary for his Honour to make a finding of where these offences lay on the hypothetical scale of objective seriousness but it was not an error that the judge did so: Nguyen v R [2011] NSWCCA 127 at [40]; Ballard v R [2011] NSWCCA 193 at [30].
2. There has not been a miscarriage of justice arising from the submissions made by the applicant's counsel before the judge.
3. Ground 2 is not made good.

Ground 3: In taking into account the delay prior to the applicant's arrest, his Honour erred in taking into account only half of the seven year period between the commission of the offence and the applicant's arrest

Submissions

1. The applicant argued that the judge erred in holding that only half of the period of seven years that expired between the date of the offence and his arrest should be taken into account on the issue of delay. The applicant complained that neither the facts nor evidence gave rise to any hiatus which could have led to a distinction between the anxiety experienced by the applicant during the first and second half of the period of time. At the very least, by failing to explain why only half of the period of time ought to be taken into account, the judge was said to have erred. The applicant disagreed with what was contended to be the judge's view that the applicant had secluded himself.
2. A further submission was that the fact that he had not been charged with any other offences during the seven year period was an important matter relevant to the assessment of his rehabilitation.
3. The Crown accepted that there was no "bright line" point in time by which the judge could differentiate the delay attributable to the applicant. However, it was submitted that in referring to half of seven years, the judge was not making a temporal distinction but rather conveying a finding that there was to be a partial attribution of responsibility for the delay by the judge to the applicant. The Crown argued that the applicant was clearly aware that the authorities sought to arrest him in respect of his connection with the drugs found in the search warrant in 2007 because of his statement to police at the time of his arrest. The Crown submitted that an attribution of partial responsibility for the delay was open to the judge.

Consideration

1. The evidence before the judge was that the prohibited drugs were found by police on the applicant's premises on 30 May 2005. The applicant was not present at the time and a warrant for his arrest was issued some two years later. It was accepted that the Crown did not have available to it evidence that the applicant was aware of an outstanding warrant for his arrest.
2. His Honour's findings of fact on sentence included the applicant's brother contacting Mr O'Farrell, and that the applicant was not located despite subsequent enquiries by police and was ultimately arrested pursuant to a warrant on 20 June 2012. The judge accepted that at the time of the arrest, the applicant said, "My name is Tom Elchiekh. I feel like I've been in gaol for the past seven years. I just want to get these charges over and done with": see [11] above.
3. It appears that the evidence did not disclose a reason for the delay of some two years in the issue of the warrant for the applicant's arrest after the drugs were found. The applicant was arrested just over seven years after the commission of the offences.
4. The applicant's complaint is that the judge erred in treating half of this seven year period as a mitigating factor.
5. Delay may be taken into account in favour of an offender: firstly, when it relates to the uncertain suspense in which a person may be left; secondly, when there is demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, because sentencing for a stale crime calls for a measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 ("Todd"); R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]. Where delay is relied upon as a mitigating factor, the onus is upon the offender on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47].
6. As the applicant neither called nor gave evidence during the sentencing proceedings, the evidence of uncertain suspense was confined to his statement to police upon arrest. It was open to the judge to conclude from this statement that the applicant had been aware for the past seven years that police had found prohibited drugs on his premises and had chosen to remain silent.
7. It is well settled that the Todd principle does not apply to a state of suspense or uncertainty experienced by an offender who remains silent and hopes that his offending will remain undetected: R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]; R v Spiers [2008] NSWCCA 107 at [37]-[38]. It makes little sense that an offender who could bring to an end any anxiety by contacting police but chooses to say or do nothing can benefit from inaction by a reduction in sentence. In R v Kay [2004] NSWCCA 130, McColl JA (with whom Levine and Hidden JJ agreed) said at [33]: "Rather, the applicant was content to remain silent, hoping, presumably, that his association with the October 2001 offence would not be detected. Having remained silent, he now argues that he ought, in effect, be rewarded for his successful concealment of his commission of the offence by a substantially reduced or even deferred sentence. The authorities make plain that the significance of the delay will turn on the circumstances of each case. In my view the circumstances of this case do not attract the Todd principle."
8. However, the judge said that he was not persuaded that the whole of the period of seven years delay could be attributed to the applicant secreting himself from the authorities: see [22] above. In these circumstances, it was open to his Honour to attribute equal responsibility for the delay between the police and the applicant. His Honour did not err in taking into account as a mitigating factor the applicant's state of suspense during half the period of seven years.
9. Furthermore, his Honour expressly took into account in mitigation the applicant's lack of offending during the seven year period between the offences and his arrest.
10. Ground 3 is not made good.

Ground 4: The sentence imposed was manifestly excessive

1. It is unnecessary to decide this ground of appeal.

Re-sentence?

1. In an affidavit affirmed on 10 April 2016, the applicant seeks to explain the delay in seeking leave to appeal. During oral submissions, the applicant's Queen's Counsel advanced further reasons which I consider are unnecessary to examine.
2. As I have found error in respect of Ground 1, I propose that leave to appeal out of time be granted. The function of this Court is then to exercise the sentencing discretion afresh. The applicant does not have to establish that the aggregate sentence imposed by the judge was manifestly excessive in order for the Court to exercise its discretion in his favour under s 6(3) Criminal Appeal Act 1912 (NSW).
3. The maximum penalty for an offence contrary to ss 25(2) and 29 DMT Act (count 1) is 20 years imprisonment with a standard non-parole period of 10 years. These two legislative guideposts are to be borne in mind when the appropriate penalty is considered, having regard to the objective circumstances of the offence and the subjective features of the applicant. The maximum penalty for counts 2 and 3 is 15 years imprisonment, whereas the maximum penalty for count 4 is 10 years imprisonment.
4. I am satisfied beyond reasonable doubt that the variety and quantity of the prohibited drugs found in the applicant's premises, together with the small book and cash totalling $13,590, disclose that the applicant was not a small time supplier whilst, as the judge found, he was not at or near the top of any hierarchy in the distribution of drugs. This was serious offending motivated by the desire for profit as he had not been a drug user for some years. The characterisation by his Honour that the objective seriousness of count 1 was just below the mid-range of seriousness was appropriate.
5. Consistent with his plea of not guilty, the applicant has not shown any remorse for his offending. His sentence is not to be increased for that; however, no allowance can be made for remorse.
6. The applicant does not have a relevant record of prior convictions, which entitles him to a measure of leniency. The intervening period of seven years between the commission of the offences and arrest without further offending supports a finding that he has reasonable prospects of rehabilitation.
7. I take into account as a matter in mitigation the uncertainty experienced by the applicant because of delay in accordance with the judge's findings of fact.
8. General deterrence remains an important consideration to discourage others who might be prepared to engage in drug supply. As his Honour said, specific deterrence is also a relevant consideration.
9. In considering the imposition of an aggregate sentence, I have assessed individually the criminality in each offence and have had regard to the requirements of Pearce v R (1998) 194 CLR 610; [1998] HCA 57.
10. Giving weight to all relevant factors, and in the exercise of my independent discretion, I am satisfied that the aggregate sentence imposed by the judge is the appropriate sentence. I conclude that no lesser sentence was warranted in law or should have been passed.
11. The orders I propose are: 1. Leave to appeal out of time granted. 2. Appeal dismissed. 3. In accordance with the agreement between the parties that the sentence should be backdated by a further 10 days, the applicant's sentence imposed by Mahony SC DCJ on 8 November 2013 is to be adjusted as follows: the non-parole period of 7 years 6 months is to commence on 29 December 2012 and to expire on 28 June 2020 and the balance of term of 2 years 6 months is to commence on 29 June 2020 and to expire on 28 December 2022.
12. The applicant will be eligible for release on parole on 28 June 2020.
13. BUTTON J: I agree with Price J.
14. FAGAN J: I agree with Price J.

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