Hamieh v R

Jones v The Queen (1993) 67 ALJR 376 Lozanovski v R [2006] NSWCCA 143 McKenna v Regina [2007] NSWCCA 113 CASES CITED: Postiglione v The Queen (1997) 189 CLR 295 R v Liang, unreported, NSWCCA, 2 June 1995 R v Tiddy [1969] SASR 575 Ryan v The Queen (2001) 206 CLR 267

PARTIES: Andrew Pierre Hamieh (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2005/4520 (formerly 2006/2161)

COUNSEL: I. Barker QC (Applicant) D. Woodburne (Crown)

SOLICITORS: C. V. Jeffreys (LAC) S. Kavanagh (ODPP)

IN THE COURT OF CRIMINAL APPEAL 2005/4520 (formerly 2006/2161)

JAMES J ROTHMAN J HARRISON J

21 SEPTEMBER 2007 Andrew Pierre Hamieh v Regina Judgment 1 JAMES J: I agree with Rothman J. 2 ROTHMAN J: Andrew Pierre Hamieh supplied just over 2kg of methylamphetamine. He supplied the drugs to his co-offender, David Hood. Mr Hamieh was charged and convicted, after having pleaded guilty to the charge. Mr Hamieh was sentenced in the District Court to a non-parole period of 7 years' imprisonment and a balance, being the remainder of term, of a further 4 years. Mr Hood, his co-offender, was sentenced by another judge to a non-parole period of 5 years' imprisonment with a balance of term of a further 2 years and 9 months. 3 Mr Hamieh has applied for leave to appeal, feeling, he submits, a justifiable sense of grievance with his sentence, compared to the sentence imposed on his co-offender. He also raises issues of error in the remarks of the sentencing judge. In order to determine the questions of leave to appeal and, if leave be granted, the appeal, it is necessary to restate briefly the principles to be applied in relation to alleged disparity in sentence, the circumstances of the offence, the appropriate comparison of the culpability of the offenders and their subjective circumstances and whether, if the sentences be properly described as disparate, a lower sentence is appropriate. It is also appropriate to deal with the other alleged errors. The Parity Principle 4 The principles applied by sentencing courts (and on appeal therefrom) in relation to parity are well established. The parity principle is a manifestation of the application of the principles of equal justice. It requires that like should be treated alike and, where there are relevant differences, due allowance should be made for such differences: Postiglione v The Queen (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ; R v Tiddy [1969] SASR 575 at 577. 5 Discrepancy, of itself, is not sufficient to warrant intervention by an appellate court. The discrepancy, viewed objectively, must be unjustifiable, the difference in sentence being unjustifiable on the objective and/or subjective differences in the co-offenders. Even when such unjustifiable differences occur, an appellate court will not intervene if the result of intervention would be to reduce the sentence of an offender to a level which would be inappropriate for the offence in question: McKenna v Regina [2007] NSWCCA 113 at [48]-[55]. Circumstances of Offence 6 As a result of a police strike force named Bindupi, police intercepted numerous telephone calls between Mr Hamieh and his co-accused Mr Hood. There were also telephone calls between each of Mr Hamieh and Mr Hood and other persons. Those phone calls related to the supply of a large commercial quantity of methylamphetamine. At the time of those phone calls, Mr Hood, the co-accused, was residing in South Australia.

7 On Saturday 1 March 2003, police intercepted a particular telephone conversation between Mr Hamieh and Mr Hood. During this conversation Mr Hamieh said: "But ah, all's I wanted to see if your comin' down for the, for the elbows." Mr Hood replied: "Mate, I'm just absolutely, I fucking can't get them. They're payin' thirty five for them here and I'm, I just can't pay that." It is accepted that the above conversation refers to a price of a pound of pure amphetamine as being $35,000 at his location. 8 On Saturday 22 March 2003, the police intercepted a further telephone conversation between Mr Hamieh and Mr Hood. In that conversation Mr Hood said: "I'm only coming for the um, ah, you know, the wet one." Mr Hamieh replied: "Yeah. But the wet one, I've tried my hardest mate. I tried, honestly, all right. I can only manage fifty for two, Bro. So it's like, it's a hundred and twenty five all up, Bro. . . Because I've got, I've got a lot of cost. I'm incurring, I've gotta get a delivery guy. I've gotta someone to deliver it to us. . . Yeah, 'cause I'm only out, out of the whole, I'm, I'm putting um, it's costin' me for two I'm getting it for forty seven.

Yeah? So just say that's four, that's I'm making six. Nah. Say, say I'm makin' around seven, eight grand, ya know? And then after all I put all my costs involved, that's three grand. I come out with maybe five thousand on it. I think that's reasonable. You reckon? You reckon?

And the co-accused Hood says "Ah, yeah, Monday. Now I'll give ya a ring um, when I'm sort of you know, close, close by, sort of thing."

The accused says "The best thing to do is just we'll do, we'll do it next to my house, ya know. My actual house." Detective Sergeant Smith is of the opinion that the conversation is in code and means that the wet one is pure amphetamine and they were discussing Hood purchasing 2 kilograms of pure amphetamine for $50,000 per kilogram. The accused was also discussing his profit from the transaction. The reference to "… it's a hundred and twenty five all up …" is a reference to the sum of $125,000. 9 As a result of this conversation, police commenced surveillance of the premises of Mr Hamieh. On Monday 24 March 2003, Mr Hood informed Mr Hamieh that he was expected from South Australia in Sydney about 3pm. In a later conversation on that day, Mr Hood informed Mr Hamieh that he was on the Hume Highway coming onto the freeway. Informed of that, Mr Hamieh told Mr Hood to come directly to his place, giving him directions for that purpose. 10 Mr Hamieh's brother, Nabil Jazzini, was sent to collect Mr Hood and bring him to Mr Hamieh's house. Both Mr Hood and Mr Hamieh arrived at Mr Hamieh's house at about the same time, 5pm 24 March 2003. 11 Shortly thereafter the drug transaction occurred between Mr Hamieh and Mr Hood. Mr Hamieh discussed in a telephone conversation that Mr Jazzini would be paid $500 for each delivery. In a further telephone conversation, Mr Hamieh said that he had the money and the transaction was completed. 12 Mr Hood and Mr Jazzini left the house in separate vehicles. Mr Hood followed Mr Jazzini to the address of Mr Hamieh's (and Mr Jazzini's) parents in Auburn. Mr Jazzini entered the premises. Police could not see him and Mr Hood for about 10 minutes. Each of them left the area and travelled to the Chester Hill area at which time they were stopped by police and arrested. Mr Jazzini was in possession of a mobile phone in a false name; Mr Hood was in the possession of two mobile phones, each registered in his name. Each denied any involvement in the offence. 13 Having obtained a search warrant for the premises at Auburn, police searched the premises finding documents identifying Mr Jazzini in a black briefcase containing five packages totalling 2.1kg of methylamphetamine with the purity of 12%. Also in the briefcase were documents in the name of Mr Hood. In the wardrobe in which the briefcase was found, police found a plastic shopping bag containing $105,020 in cash. 14 Police arrested Mr Hamieh at his home at Lane Cove at which time, a search warrant having been obtained, police searched the premises and found numerous mobile phones and SIM cards. They also found $9,625 in cash; electronic scales; and an open box of Glucodin powder. Mr Hamieh was taken to the police station, he declined an interview and he was charged with the current offence. 15 The potential street value in March 2003 of the drugs found was between $450,000 and $610,000 (assuming a 5% purity). On 8 February 2005, Mr Hamieh first notified the Crown that he would plead guilty. The plea of guilty was entered before the court on 21 February 2005, adhered to on 22 April 2005, with submissions on sentencing being made on 22 April and 2 June 2005. Mr Hamieh was sentenced on 10 June 2005. 16 Mr Hood pleaded guilty on 23 February 2005 and was sentenced on 7 October 2005. The facts before the sentencing court for each of them were identical. Further, the Crown admitted that Mr Hamieh was not the principal in the transaction to which he was party. Mr Hood was regarded, at least if one were to refer to both sentencing proceedings, as a most senior figure in the distribution network in South Australia. 17 At the time of the commission of the offence, Mr Hamieh was on a bond arising from a previous offence. A Form 1 offence was included and taken into account by the sentencing judge. Alleged Errors in Sentencing 18 The first alleged error to which reference should be made concerns the categorisation of the role of Mr Hamieh. The sentencing judge came to the conclusion that Mr Hamieh "was supplying on his own behalf", which would classify him as a principal in the supply chain. The Crown (with the possible exception of a comment in supplementary submissions) expressly conceded that Mr Hamieh was not a principal and submitted that there was "someone further up in the hierarchy who supplied those drugs to him". 19 The finding that Mr Hamieh was supplying on his own behalf undermines the basis of the sentencing submissions on his behalf and gives rise to a factual context with which counsel for Mr Hamieh would have been required to deal, were he to have known of it. 20 On appeal, Mr Hamieh submits that the finding amounted to a denial of natural justice or procedural fairness. It cannot be stressed enough that it is for the prosecution alone to determine the charge that is preferred. It is for the defendant alone to determine the plea to that charge. And it is for the judge alone to determine the sentence to be imposed and to make findings of fact for that purpose. Nevertheless, where agreed facts are tendered to the court, and one or other party acts to its prejudice on the basis of those facts and/or a concession made in relation to them, it is procedurally unfair for a sentencing judge to act on any other basis without appropriate notice to the parties. 21 The Crown submits, correctly, that it was open to his Honour to find that Mr Hamieh was more than a "mere commission agent of his supplier". An analysis of the evidence displays a role for Mr Hamieh in negotiating price, obtaining supply, and calculating profit. However, while it is true that Mr Hamieh's role was not minor and he did not act merely as a commission agent, it is also true that Mr Hamieh was not supplying drugs on his own behalf, as found by his Honour, which if that were the finding would mean that he was supplying on behalf of another and, therefore, was not a principal. 22 The second major error to which Mr Hamieh points on this appeal is the failure, it is alleged, of his Honour to make a finding as to the objective seriousness of the offence in question. There are statements by the sentencing judge that deal with the issue, but no express finding on that question. His Honour concluded that the offence was not one that fell into the most serious category of offences of this type, and was correct so to do. 23 However, his Honour did not determine where, below the most serious category of offences, this offence fell. It seems, given the material before his Honour and the comments of his Honour, that his Honour concluded (or operated on the conclusion) the offence fell within the mid-range of objective seriousness. If that were the case, his Honour would have been correct. It is necessary for a sentencing judge to determine the objective seriousness of the offence and to make that conclusion known either expressly or by words of necessary intendment. 24 In the present situation the words used are not sufficiently express, but it does not seem that his Honour erred in his approach to the offence, even if he may have erred in not sufficiently expressing it. 25 The third aspect of the alleged errors of his Honour, in sentencing, apart from the parity issue, relate to the subjective aspects that, it is said, were not properly considered by his Honour. Those subjective aspects of Mr Hamieh were: the fact that he suffers from a dissociative disorder; the failure to find otherwise good character; the comments on lack of remorse; and the relative age of Mr Hamieh compared to Mr Hood (24 years of age compared to 53 respectively). To the extent that it is necessary to deal with each of these issues, they are best dealt with after I deal with the parity issue. Parity 26 It may be that the finding of his Honour that Mr Hamieh was a principal (or supplied on his own behalf) caused the sentencing judge to treat Mr Hamieh more harshly than might otherwise be the case. It may also be that the second sentencing judge treated Mr Hood less severely than Mr Hamieh on the basis of that finding. There is certainly no material upon which one could discern a relevant distinction in culpability between Mr Hamieh and Mr Hood that would be unfavourable to Mr Hamieh. 27 Mr Hamieh was sentenced first in time. Of itself, that timing does not preclude considerations of parity nor the correction of an unjustifiably disparate sentence: Jones v The Queen (1993) 67 ALJR 376. 28 A comparison of the subjective elements between Mr Hamieh and Mr Hood obviously points to differences. No two offenders are identical. Because of the Form 1 offence, his Honour declined to take into account Mr Hamieh's otherwise good character. It is impermissible to determine good character on the basis of the offences before the court: Lozanovski v R [2006] NSWCCA 143; Ryan v The Queen (2001) 206 CLR 267 at 275. Nevertheless, good character may or may not have a significant role to play. Much will depend on the nature of the offences and on the criminal history of the offender. 29 Mr Hamieh submits that a true comparison would take account of the addiction of Mr Hood as showing past lack of good character. The Crown submits that Mr Hood's addiction must be seen in the light of the well-known categories of persons who are involved in the drug trade. It has been said (R v Liang, unreported, NSWCCA, 2 June 1995) that broadly speaking there are three categories of persons involved in the drug trade: those that use but do not sell; those who use and sell; and those who sell but do not use. The Crown submits that the addiction of Mr Hood shows him to be a person in the second category, namely, one who uses and sells. However, there is no suggestion that Mr Hood uses the same or similar kinds of drugs that he sells and the position of Mr Hood in the hierarchy of the drug supply chain in South Australia takes him well outside such a category. 30 A comparison of subjective elements must have regard to two most salient facts: the Form 1 offence in the case of Mr Hamieh; and that the offence for which Mr Hamieh was sentenced was committed whilst on conditional liberty. The latter aspect is one that the Court treats most seriously. 31 Against those issues one must bear in mind that Mr Hamieh is only 24 years of age. While that age does not allow Mr Hamieh to be treated as a juvenile he is, compared at least to Mr Hood, entitled to have afforded to his benefit a higher regard to the prospects of his rehabilitation and his lack of maturity. 32 Further, the sentencing judge had the benefit of a report from Dr Westmore, Clinical Psychiatrist. Dr Westmore opines that Mr Hamieh suffers from clinical depression and has done so for some period. He was involved in self-harm episodes and concludes that Mr Hamieh, at least arguably, came in contact with the criminal justice system as a result of his depression. Dr Westmore and Dr Stephenson each refer to his repeated episodes of dissociative disorder, sometimes associated with self-injury. 33 Dr Stephenson suggests that his dissociative state may account for his driving offences and his criminal conduct because he "does not know what he is doing". At the time of that report Mr Hamieh was denying the charge of drug dealing. 34 Ms Robilliard, Psychologist, also reported on Mr Hamieh. She described his test results as that which would generally be described as being indicative of "a cry for help". She concludes, "[s]uch individuals are seldom able to be realistic about their problems at the point of testing, and while entrenched personality pathology is implicit, diagnostic categories cannot be selected out as the test instrument is overloaded." Her opinion is that Mr Hamieh is "deeply psychologically and emotionally troubled" and "entrenched personality pathology is implicit". She concludes that Mr Hamieh "has a repertoire of well-entrenched pathological patterns of behaviour. At this point he appears to have no self-insight."

35 These subjective elements have been given insufficient consideration by the sentencing judge. Different subjective elements relate to Mr Hood but do not account for the disparity. Conclusion 36 The submission on behalf of Mr Hamieh on the question of parity seeks to portray Mr Hamieh's role as significantly less than that of Mr Hood. I do not accept that there was error in likening the criminal culpability of each. However, the subjective elements that apply to Mr Hamieh counterbalance the aggravating aspects relating to the Form 1 offence and the factor associated with the commission of the offence whilst on conditional liberty. 37 Sentencing is not a mathematical exercise. In the circumstances of the relative culpability of Mr Hamieh and Mr Hood, and the differing subjective elements relating to each, which differing elements seem to weigh evenly in the balance, there is a justifiable, objectively ascertained, sense of grievance that might be held by Mr Hamieh in the disparity in sentence imposed on him as against that imposed on his co-offender. 38 Whatever be the effect of the subjective elements to which Mr Hamieh refers in this appeal, a sentence lower than that imposed on Mr Hood would be inappropriate. I propose a sentence very slightly above that imposed on Mr Hood. Those subjective elements also give rise to special circumstances. 39 I propose the following orders:

(ii) The sentence imposed on Andrew Pierre Hamieh on 10 June 2005 be quashed and in lieu thereof he be sentenced, taking into account the offence on the Form 1, to a non-parole period of five years and two months commencing 21 January 2005 and expiring on 20 March 2010 with the remainder of term of two years and seven months expiring on 20 December 2012. 40 HARRISON J: I agree with Rothman J. ********** ADDENDUM 41 JAMES J: I agree with Rothman J. 42 ROTHMAN J: It has been pointed out that an error exists in the terms of the order issued on 21 September 2007 in this matter: Hamieh v R [2007] NSWCCA 277. 43 The remainder of the term, after the non-parole period, is expressed as "two years and seven months expiring on 20 December 2012." 44 As is clear from the reasons for judgment (see [38] thereof), the judgment was intended to impose a sentence slightly above Mr Hamieh's co-offender. 45 The original intention was that the remainder of sentence be two years and nine months (not two years and seven months) expiring on 20 December 2012. There may be circumstances where application of principles akin to double jeopardy may result in the correction not being made, and effect being given to the lower of the two possible expiry dates. This is not a case that calls for consideration of such an issue and the original intention ought to be given effect. 46 The Court will make the following correction to the order issued on 21 September 2007:

(i) Delete from Order (ii) the words "two years and seven months" and insert in lieu thereof "two years and nine months".

23/12/2008 - Addendum added. - Paragraph(s) After paragraph [40].

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