Fahs v Regina

Drug Misuse and Trafficking Act 1985 - ss 25(2), 25A LEGISLATION CITED: Criminal Procedure Act 1986 -s166 Crimes (Sentencing Procedure) Act 1999 - ss 21A(2), 21A(2)(d), 21A(2)(n), 54B(4)

R v Wickham [2004] NSWCCA 193 Elyard v R [2006] NSWCCA 43 CASES CITED: R v McNaughton [2006] NSWCCA 242 Nguyen v R [2007] NSWCCA 14 R v Israil [2002] NSWCCA 255

COUNSEL: V. Lydiard - Crown V. Terracini SC/G. Ikners - Applicant

SOLICITORS: S. Kavanagh - Crown P. C. Proctor - Solicitor

LOWER COURT FILE NUMBER(S): 05/21/0281; 05/21/0283

IN THE COURT OF CRIMINAL APPEAL 2006/2523

SIMPSON J HOWIE J BUDDIN J

WEDNESDAY 14 FEBRUARY 2007 Mario FAHS v REGINA Judgment 1 SIMPSON J: I agree with Howie J. 2 HOWIE J: The applicant pleaded guilty to four offences relating to the supply of prohibited drugs. There were two offences contrary to s 25A of the Drug Misuse and Trafficking Act of on-going supply, and two offences contrary to s 25(2) of that Act, one offence of supplying not less than a large commercial quantity and an offence of supplying not less than a commercial quantity. The offences under s 25A carried relevantly a maximum penalty of imprisonment for 20 years. The offence in respect of the large commercial quantity carried a maximum penalty of life imprisonment with a standard non-parole of 15 years and that in relation to a commercial quantity imprisonment for 20 years with a standard non-parole period of 10 years. There were also matters dealt with under s 166 of the Criminal Procedure Act including an offence of supply and five offences of drive while disqualified. 3 On 29 March 2006 Judge Sorby (the Judge) sentenced the applicant to an overall sentence of 9 years and 6 months with an overall non-parole period of 7 years to date from 21 April 2005. The applicant is eligible to be released to parole on 20 October 2014. The longest sentence was that imposed for the offence of supplying a large commercial quantity being a non-parole period of five years from 21 April 2007 with a balance of term of 2 years and 6 months. The other sentences were varying periods of imprisonment to be served by fixed terms. There was an accumulation between the sentences of 2 years resulting in the overall sentence indicated above. 4 The applicant relies upon the following grounds of appeal:

In all the circumstances of the case the sentence imposed is manifestly excessive.

In imposing the sentence that he did the sentencing Judge gave insufficient weight to the appellant's subjective circumstances.

The learned sentencing judge, while properly finding special circumstances, erred in law by failing to properly reflect that finding in the actual sentence imposed.

The learned sentencing judge erred in law when finding that "a level of planning in the offences on the part of the offender" was an aggravating circumstance.

The learned sentencing judge erred in law when finding that the appellant's prior record was an aggravating circumstance.

The learned sentencing judge erred in law in imposing an overall head sentence of 9.5 years with a non-parole period of 7 years. 5 The first offence of on-going supply related to a period between 23 December 2004 and 21 January 2005. During that period the applicant supplied various drugs including cocaine and amphetamine to an undercover police officer. On 24 December the officer and the applicant met and, although he could not supply the drugs sought, the applicant told the officer that he had some "caps" in which he had placed speed. He sold four for $100. The applicant told the officer that he "could get anything you want, Goey, Coke". The drug supplied on this occasion was 2.34 grams of Ketamine. This is the equivalent of a small quantity prescribed for that drug. 6 There was a further supply to the officer on 30 December when the officer was sold five pills (including one extra for the officer's inconvenience in having to wait for the drugs) and a quantity of what was said to be cocaine. The officer paid $200. The tablets had no prohibited drug in them and the powder was .18 grams of methylamphetamine. They met again on 10 January 2005 and the officer was supplied with a bag with four pills and some white powder for $200. The pills were said to be a gift. The tablets were .61 grams of ecstasy and the powder 0.42 grams of cocaine. On 12 January the officer bought three pills for $100 and was given an extra blue one for free. The three tablets amounted to .9 grams of ecstasy and the blue tablet contained no drug. 7 During their conversations the applicant told the officer that he could obtain various types of drugs and on one occasion said that he could get "anything you want as many as you want". 8 The second on-going supply offence took place over the period 3 March 2005 and 1 April 2005. Ketamine, ecstasy and cocaine were supplied to another undercover operative. On 11 March 2005 the applicant met the undercover officer to whom he had sold drugs in the first offence and was introduced to the second officer. He purchased five tablets for $150 and enquired as to the price for a thousand. The applicant said it would be "15, 16" but said that he had mates that bought them for $10,000. He said, "When I deliver 10,000 I get a few hundred free for myself". They discussed the supply of "ice" a sample of which was given to the officer. Of the five tablets, four were 1.03 grams of ecstasy and the fifth was Ketamine. There were no drugs present in the sample. 9 The officer met the applicant on 24 March and purchased 50 tablets for $1240 being 24.5 grams of ecstasy. They spoke on 30 March to discuss prices and quantities for imported pills. On 31 March they met and discussed the price of 2,000 pills, the applicant saying that he would need a couple of days to organise a bulk quantity. The officer then paid $3,000 and was supplied with 37.4 grams of ecstasy. It should be noted that a traffickable quantity of ecstasy is 1.25 grams. 10 The offence of supplying a large commercial quantity related to an attempt by the applicant to supply the second officer with ecstasy between 30 March 2005 and 13 April 2005. On 3 April the applicant contacted the officer and there was a discussion about the price for "1 triple 0" of ecstasy. The applicant said that his supplier was a cousin in Canberra. The officer said he wanted 3,000 pills. The applicant rang him on 6 April to say that he preferred to supply 1000 and then 2000 and they discussed how the money would be paid. On 8 April the applicant confirmed that the officer wanted 3,000 tablets as he did not want to get left with any. On 12 April there were unsuccessful attempts to organise the handover of the tablets and the applicant told the officer he should consider that the price had already dropped to $15.50 per tablet. On 14 April the applicant apologised that the sale could not proceed. There was further contact between the two culminating in the applicant arranging to meet the officer on 21 April. A large commercial quantity is 500 grams. 3,000 tablets would have weighed over 600 grams. 11 The offence of supplying not less than a commercial quantity related to a sale of 1002 tablets to the second officer on 21 April. The tablets contained 211.21 grams of ecstasy. A commercial quantity is 125 grams. The applicant was arrested after the supply took place. 12 The applicant was born on 19 May 1983 and hence was aged 22 at the time of sentence. He was born in Lebanon but came to Australia with his mother and siblings when aged 3 years. In 1999 he was the victim of a serious assault from which he sustained head and other injuries including a permanent brain injury resulting in impairment to his memory and concentration. He also suffers from anxiety and depression. He normally lives with his mother and would do so when released from custody. 13 He had a record of offences dating back to 2002. On 4 April 2002 he was placed on a two year bond for a charge of supply and other drugs offences. On 26 September 2002 he received a six month suspended sentence for offences of taking a conveyance and goods in custody. On 2 October 2003 he received a suspended sentence of six months for an offence of supply, for three charges of possession and a charge of driving while disqualified. 14 A pre-sentence report disclosed that the applicant had been under supervision in 2002 but was withdrawn from an alcohol and drug course because of his inability "to cope in a group environment" because of his brain injury. Apparently, also as a result of this condition, he missed appointments and otherwise failed to comply with the requirements of supervision so that he was relieved of those obligations. The principal issues to have been addressed by supervision was substance abuse. The officer preparing the report indicated that the applicant had received psychological counselling while in custody and appeared to be coping satisfactorily with imprisonment. At the time of sentencing he was awaiting surgery for a hernia. 15 The report states that, following the assault upon him, the applicant developed a dependency on illegal drugs including amphetamine and cocaine. He often took near fatal doses of amphetamine. He had participated in individual counselling sessions while in custody and completed a drug awareness programme. However, it was considered that he would require close supervision and support in order to maintain drug abstinence while in the community. There was also some material that suggested that the applicant had a gambling problem and some of the money he obtained from offending was used to discharge gambling debts. The applicant told the officer preparing the pre-sentence report that he sold drugs to support his own addiction. 16 There was in evidence a report from a psychiatrist, Dr Roberts. He diagnosed the applicant as suffering from a "substance abuse disorder" for which he would need psychiatric assistance and regular monitoring of his drug usage. After interviewing the applicant's sister, the psychiatrist formed the view that, based upon the applicant's history of substance abuse and his limited intelligence, "he would not be likely to have the capacity to be the principal in the organisation of a business". 17 One of the applicant's five siblings, a sister, gave evidence before the Judge. She told of a "dramatic change" that she had observed in the applicant since he had been placed in custody as a result of his abstinence from prohibited drugs. She thought that his attitude was more mature. He had expressed regrets for his offences. There was evidence that the applicant would have work available to him when released. 18 The Judge gave the applicant the benefit of a 25 per cent reduction in the sentences by reason of his pleas of guilty on the basis that they were given at the first reasonable opportunity. He said this about the seriousness of the offences and the application of the standard non-parole provisions:

In my opinion but for the offender's pleas to the section 25(2) charges the offences would be clearly within mid range, but because of the pleas they fall below it. The facts of these two offences reveal a person who held himself out as being able to access, at short notice, a substantial amount of drugs.

In relation to the second section 25(2) offence the amount of tablets supplied was 1002 containing 10.5 to 11 percent MDMA.

On the facts he was obviously dealing in drugs in a predetermined way for profit. It is noted that in relation to the offence of offer to supply there is less criminality than in actual supply although the penalty is the same for both. In this offence no drug was actually supplied. 19 Under a heading "Factors under s 21A" the Judge stated as follows:

I have already dealt with factors in mitigation including the prisoner's plea and his rehabilitation prospects and his remorse.

In aggravation there was a level of planning in the offences on the part of the offender and the offender has a record involving drug offences. 20 This passage gives rise to two grounds of appeal, grounds four and five, asserting that the Judge erred in taking into account two aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act being that there was "a level of planning in the offence", s 21A(2)(n), and that the applicant had a criminal record, s 21A(2)(d). 21 The aggravating factor under s 21A(2)(n) is that "the offence was part of a planned or organised criminal activity". The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a "level of planning in the offences" as found by the Judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In R v Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s 21A in accordance with the words of the provision. 22 Had the only relevant factor been the existence of planning in the commission of the offence, there might have been a valid argument that planning was an inherent characteristic of every offence involving on-going or commercial drug trafficking: see Elyard v R [2006] NSWCCA 43. But it is not an inherent characteristic of supplying drugs that it is "part of a planned or organized criminal activity" in the sense that those words convey. For example, I do not believe those words apply to the normal street dealer who purchases drugs from various sources simply to obtain the wherewithal to purchase drugs for his own use. Therefore, in an appropriate case this aggravating factor can be taken into account when sentencing for drug trafficking offences. In this case it would have been open to the Judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order. 23 As to the relevance of the applicant's criminal record, it was argued that it was not of such seriousness that it could give rise to the consideration discussed in R v McNaughton [2006] NSWCCA 242: that more emphasis should be placed on retribution, personal deterrence and the protection of the community. The Judge did not indicate how it was that the record amounted to an aggravating factor. But the applicant's record, consisting as it did of offences of supplying drugs for which the applicant was granted a bond on one occasion and a suspended sentence on another, did indicate that personal deterrence was at least relevant to the sentencing of the applicant. This was not simply a case where the record denied him leniency and so it seems to me that the Judge was entitled to take it into account as an aggravating factor. 24 The principal submission argued orally before this Court was that the Judge had not provided for the operation of special circumstances even though he had made a finding that they existed. It may well be the case that, having made some sentences cumulative, the Judge overlooked the effect of accumulation on the proportion between the overall non-parole period and the overall term of the sentence. The non-parole period is 74 per cent of the overall term. The argument was that, having found special circumstances, the Judge should have varied the statutory proportion, and, as he did not do so, this Court should put that finding into effect even if it resulted in a reduction in the non-parole by as little as 5 per cent. 25 In Nguyen v R [2007] NSWCCA 14 this Court refused to interfere to reduce a non-parole period notwithstanding an apparent error by the Judge in accumulating sentences in order to produce a result whereby, for an overall sentence of 12 years, an overall non-parole period of 10 years was specified notwithstanding a finding of special circumstances. The Court came to the view that so serious were the offences committed by the applicant that no lesser sentence than a minimum period of custody of 10 years would be adequate to reflect the objective seriousness of the totality of the applicant's offending and the other purposes of punishment. In order to give effect to the finding of special circumstances the Court would have been required to increase the parole period, a course it could not adopt on an offender's appeal. 26 In my opinion the same situation pertains here. An overall total non-parole period of 7 years barely reflects the total criminality involved in the offences for which the Judge was sentencing the applicant particularly having regard to the need for both specific and general deterrence. The second offence under s 25A was a serious example of its type having regard to the amount of drugs involved. The on-going supply to the undercover officer was an aspect of a commercial business for the distribution of drugs into the community. The offer of a large commercial amount of drug was also serious notwithstanding that the supply did not take place for reasons apparently unconnected with the desire of the applicant to commit the offence. The supply of the commercial quantity of drugs involved twice the commercial quantity prescribed for ecstasy. 27 The applicant's position in the organisation is evidenced by his ability to negotiate with the officer and to offer incentives and reductions to encourage the officer to deal with him. When problems occurred in the supply of the commercial quantity the applicant reduced the price of the drugs as compensation. It is clear that, despite the applicant's mental disabilities, he was quite capable of carrying out his role in the business of supplying drugs. The psychiatrist's view to the contrary was not borne out by the evidence. It may not have been the most sophisticated business but it was adequate to achieve its purpose. 28 With respect, some of the Judge's reasoning in determining the sentences he imposed do not bear scrutiny and to that extent favoured the applicant. For example, having found that the s 25(2) offences were of mid range in seriousness, the applicable standard non-parole periods were reduced from 10 years to 4 years and from 15 years to 5 years respectively apparently only because of the pleas of guilty. The Judge failed to comply with s 54B(4) of the Crimes (Sentencing Procedure) Act which states:

The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. 29 Although the Judge warned himself against paying mere lip service to the appropriate standard non-parole periods, it is difficult to see how he did not do so having regard to the very significant disparity between the sentences imposed and the standard non-parole periods prescribed. The Judge quoted a passage from a decision of this Court emphasising the need to give reasons for departing from the standard non-parole period notwithstanding a plea of guilty, yet no reasons were given for the departure other than the discount resulting from the plea. The Judge also gave no reasons for his findings that the offences were in the mid-range of seriousness. However, I would express my view that the fact that the large commercial quantity of the drug was not actually supplied to anybody would indicate that in this case the offence fell below the mid-range of seriousness. 30 It should be apparent that I do not believe that the sentences imposed were manifestly excessive notwithstanding the applicant's subjective circumstances as a result of his brain injury or otherwise. There was none of the sentencing considerations that can arise from an offender's mental disabilities present to a significant degree: there was little reason to moderate the need for general deterrence in this case given the conduct was a continuing involvement in serious drug trafficking; the brain injury did not reduce the applicant's moral culpability for his offending; and the evidence was that the applicant was adapting well to gaol life: cf R v Israil [2002] NSWCCA 255. Given the difficulties that the applicant had experienced in receiving counselling to address his drug problems while under the supervision of the probation and parole service, his rehabilitation was not a forgone conclusion. 31 Notwithstanding the apparent inconsistency in the finding of special circumstances, on the one hand, and the proportion between the overall non-parole period and the total sentence, on the other, in my view this Court should not interfere to reduce the non-parole period. 32 I propose that the application for leave to appeal be granted, but that the appeal be dismissed. 33 BUDDIN J: I agree with Howie J. **********

15/03/2007 - Edit error - Paragraph(s) Cover sheet, paras 20 and 28

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