Hurmz v R

Court of Criminal Appeal (NSW)|2017-09-08|Before: Macfarlan JA, Beech-Jones J, Wilson J, MacFarlan JA, Jones J

Judgment

MACFARLAN JA: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by her Honour Judge Payne DCJ on 20 August 2015 for an offence of supply a commercial quantity of a prohibited drug, namely, cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the "drug supply offence" and the "DMTA" respectively). The amount of the drug supplied was 2.4kg which exceeded the large commercial quantity of cocaine prescribed by the DMTA, namely, one kilogram. The maximum penalty for the offence was life imprisonment, a fine of 5000 penalty units, or both (DMTA; s 33(3)(a)). Her Honour sentenced the applicant to imprisonment for 9 years and 9 months commencing 30 May 2014 and expiring 29 February 2024. Her Honour fixed a non-parole period of 7 years and 3 months expiring on 29 August 2021.
The applicant also seeks leave to appeal from a sentence imposed by His Honour Judge Williams DCJ on 27 May 2016 for the offence of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900. For this offence, the applicant was sentenced to 6 years' imprisonment with a non-parole period of 3 years and 6 months. This sentence was fixed to commence on 29 February 2019 and was thus only partially cumulative on the sentence on the drug supply offence. The only basis put forward by the applicant for interfering with this sentence is that its commencement date should be varied in the event that the applicant is re-sentenced for the drug supply offence.
For the reasons that follow, I propose that leave to appeal be granted in respect of both sentences but that each appeal be dismissed.

The Drug Supply Offence

On 30 May 2014, the applicant was arrested and charged with the drug supply offence as well as an offence of knowingly direct the activities of a criminal group contrary to s 93T(4A) of the Crimes Act. The applicant pleaded guilty to both offences. For the offence under s 93T(4A), the applicant received a custodial sentence that ran concurrently with his sentence for the drug supply offence. It has now expired and is not the subject of this application.
There was placed before the sentencing judge a statement of facts comprising 141 paragraphs and 90 pages of extracts from telephone intercepts. Except in one respect, which I will identify, the statement of facts was ultimately agreed. The statement of facts identified the quantity of drug supplied as 2.4kg. The opening paragraphs of the statement of facts stated: "Strike Force MARSTAN is a State Crime Command Middle Eastern Organised Crime Squad investigation into the organised criminal activities of the Assyrian criminal group 'DLASTHR' (pronounced 'The Last Hour'). 1. This group includes the principal leader Danny HURMZ … senior member Phelmon SHEMOON … and criminal associates. Police were specifically investigating their involvement in the ongoing large commercial supply of prohibited drugs and their involvement in actively directing the organised criminal activities of a known criminal group 'DLASTHR'. The criminal group was supplying prohibited drugs to a 1,200 plus customer base in and around the Sydney CBD and eastern suburbs. 2. The group operates under an informal hierarchical structure. Investigations identified that certain members of the group undertake individual roles. The co-accused Hurmz['s] role in the syndicate is to arrange delivery and receive bulk quantities of prohibited drugs which include collection and payment from large commercial drug suppliers, processing the prohibited drug to increase volume and subsequent profit margins, weighing and packing the drug into smaller on-supply quantities and arranging the payment of DLASTHR members. 3. The accused SHEMOON'S role in the group is to attend meetings with street dealers, co-ordinate the street level supply of prohibited drugs which includes but is not limited to, supplying street dealers, collecting payments and restocking dealers when supply amounts deplete." (emphasis added)
The balance of the statement of facts outlined the roles played by the applicant and his co-offender in the business of supplying cocaine for the six-month period between 28 December 2013 and 30 May 2014. It described specific instances that gave effect to the arrangement noted in the above paragraphs.
Thus, the statement of facts indicated that the street level supplies were initially conducted by a "runner", Agassi Shimon, who was then replaced by Joseph Lazar. A warehouse was used by the applicant and his co-offenders as a "'safe house' to receive, process, package and store prohibited drugs". The instances of drug dealing identified in the statement of facts included an occasion when the applicant and Shemoon received delivery of 140g of cocaine on 16 February 2014 for which they paid $35,000. On 18 February 2014, they increased its volume by adding additional ingredients and packaging it into 275 individual units. Between 31 January 2014 and 7 March 2014 Shimon supplied at least 337g of cocaine in street level deals with an estimated yield of $117,600.
The statement of facts also reveals that on 6 May 2014 the applicant and Shemoon obtained a 1kg block of cocaine and discussed arrangements to divide it into 40 separate packages of approximately one ounce each. On 27 May 2014, a search warrant was executed at the warehouse and a 998g block of cocaine was seized which was packaged in two clear heat-sealed bags. Located on the bag were fingerprint impressions matching the applicant and Shemoon. This cocaine was tested and found to have a purity of 85%.
The one dispute about the statement of facts concerned the description of the applicant as the "principal leader" in the extract set out in [6] above. Her Honour was not prepared to accept that this term properly described the applicant's role. Instead, her Honour found that the applicant and Shemoon "had entered and were continuing in the business … of supplying illegal drugs into the community" which was "very much their business". Nevertheless, her Honour found that, compared to Shemoon, the applicant's role was "slightly elevated".

The Sentencing Judgment

In the sentencing judgment, her Honour noted the maximum penalty for the drug supply offence and that the offence carried a standard non-parole period of 15 years. Her Honour summarised the agreed statement of facts and made the finding just noted about the applicant's role. Otherwise, I note the following six points about the sentencing judgment.
First, her Honour determined that the applicant and Shemoon should each receive a reduction in their sentences of 25 per cent for their guilty plea for "utilitarian considerations only".
Second, her Honour was not satisfied that either the applicant or Shemoon were "remorseful for their offending behaviour" (cf Crime (Sentencing Procedure) Act 1999; the "Sentencing Act"; s 21A(3)(i)).
Third, her Honour assessed the "criminality" of the drug supply offence as "well into the middle range". Her Honour explained the basis for this finding as follows: "In this case, as in Collier v R [2012] NSWCCA 213 at [12], "the criminality involved in all this was deliberate and persistent."… the amount of the drug involved, the period of time of the offending - in the order of six months, the degree of organisation - the use of a warehouse, telephones, the scale of the operation, two others were employed and Mr Shemoon was part of the joint enterprise. Further, the second kilogram that was found when the search warrant was executed was tested and had a purity of 85 per cent. Further, … there is a clear inference that at least most of this drug [ie the 1.4kg that was supplied but not seized] found its way into the community with the consequential damage to those who take the drug and also the families of those who take the drug."
In making the finding of objective seriousness her Honour referred to the fact that "this was [drug] dealing for financial gain".
Fourth, her Honour addressed the criminal and custodial history of the applicant. At the time the drug supply offence was committed the applicant was 33 years of age. He had a substantial criminal history that included drug, driving and dishonesty offences. In September 2006, he commenced serving a sentence of 2 years' imprisonment with a non-parole period of 12 months for supplying prohibited drugs on an ongoing basis. Upon the expiry of that non-parole period he served a further period of imprisonment of 12 months for an offence of hindering the apprehension of a person who had committed a serious offence. Further, on 23 September 2013, he was arrested on the charge of inflicting grievous bodily harm with intent to cause grievous bodily harm referred to at [3]. He was on bail for that offence when he committed the drug supply offence. In January 2014 the applicant was charged with possession of methylamphetamine. On 12 February 2014, he received a bond under s 9 of the Sentencing Act for that offence. Her Honour noted that despite this sentence, he "promptly returned to continue with his drug dealing activities". Her Honour concluded that the drug supply offence was an "escalation" of his previous drug dealing behaviour.
Fifth, her Honour found that the applicant's prospects for rehabilitation were "extremely guarded".
Sixth, her Honour addressed the balance of the applicant's subjective case. Her Honour noted that the applicant's wife was pregnant, that he is now the father of twins and he was very anxious because he had not been present for the birth of his children and could not support his wife. Her Honour also noted that the applicant's mother suffered from a serious illness and that the applicant was the subject of a favourable work testimonial. Nevertheless, having regard to the findings made in relation to the applicant's prospects of rehabilitation, her Honour was not satisfied that "special circumstances" were established for the purposes of s 44(2) of the Sentencing Act.

Manifest Excess

The sole ground of appeal is that the sentence for the drug supply offence was manifestly excessive. There was no dispute as the principles to be applied in determining such a ground. In Vaisu v R [2017] NSWCCA 71 at [28], R A Hulme J summarised the relevant principles by reference to High Court authority as follows: "(1) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (2) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (3) It is not to the point that this Court might have exercised the sentencing discretion differently. (4) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (5) It is for the applicant to establish that the sentence was unreasonable or plainly unjust." (See Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]).
In support of the contention that the sentence for the drug supply offence was manifestly excessive the applicant's written submissions contend that the applicant was "unfairly disadvantaged" by her Honour's assessment that the drug supply offence was "well into the middle range" of objective seriousness (see [14]). Such complaints should be the subject of a separate ground of appeal and must establish one of the errors specified in House v The King [1936] HCA 40; 55 CLR 499 (Mulato v R [2006] NSWCCA 282). Nevertheless, as the issues raised are relevant to the determination of the balance of this ground, this complaint will be addressed. It had three components.
The first aspect of the challenge to her Honour's finding that the drug supply offence was "well into the middle range" is that in making that assessment her Honour referred to the applicant's "dealing for financial gain" (see [15]). The applicant contended that this is an "inherent feature" of all charges involving the supply of a large commercial quantity of prohibited drugs and it should not have been given any weight. However, the correct position is that it is a matter of degree in that if "the financial gain or the planning is significant, that is more than might be expected in the lowest level of offending for this type of offence" then it can be considered (Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing); Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388 at [62]; (Campbell J, RA Hulme J agreeing); Wat v R [2017] NSWCCA 62 at [44] (Price J, Bathurst CJ and Walton J agreeing)). The applicant's drug dealing business met that standard.
The second aspect of the complaint about her Honour's finding of objective seriousness concerned her Honour's description of the applicant's conduct as "deliberate and persistent". It was submitted that almost all supplies of a large commercial quantity can be described in that way. Again, this overlooks the circumstance that the duration and sophistication of even large scale drug dealing can vary, as can the extent of an individual's involvement in a drug transaction. Her Honour's reference to the applicant's conduct as "deliberate and persistent" merely reflected the commercial sophistication of the applicant's drug dealing business and the six-month period in which he conducted it. Those matters were clearly relevant to an assessment of the objective seriousness of the applicant's offending. The applicant also complained that her Honour's reference to there being two employees was misleading. This complaint has no substance. There were two employed runners although they did not work at the same time.
The submissions also complained about her Honour's alleged acceptance of the Crown's submission that the applicant and Shemoon used a "call centre phone method of operating with customers" whereas it is said that the applicant's drug dealing only involved "a mobile phone being used by customers seeking to source cocaine". This submission is baseless. Her Honour only "note[d]" the Crown submission to that effect. The reference to the "call centre" in the Crown's submissions was to a defined term in the agreed facts that referred to the system by which customers contacted a mobile phone service and provided an address and the quantity sought. The service advised the customer they would be contacted soon and Shemoon would follow up by confirming the delivery details with the customer. In the critical passage in the sentencing judgment set out in [14], her Honour simply referred to the "use of … telephones" as one matter reflecting the "degree of organisation" involved. Her Honour was entitled to do so.
The third aspect of the complaint about Her Honour's finding on objective seriousness is that it was submitted that her Honour's placement of the offence "well into the middle range" for an offence involving a supply of 2.4kg "leaves little room for differentiation of other significantly higher quantities". This contention repeats a theme of the applicant's submissions which mistakenly focuses on the amount of drug suppled to the virtual exclusion of all other factors. The correct approach was stated by McCallum J in Pham v R [2013] NSWCCA 217 at [27] as follows: "The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said ... the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act …."
The considerations that led her Honour to conclude that the drug supply offence was "well into the middle range" of objective seriousness are set out in [14] to [15]. Her Honour's assessment has not been shown to be erroneous.
The balance of the applicant's submissions relies on analysis of comparable cases and statistics to support his contention that the sentence was manifestly excessive.
With the former, the applicant provided a table of 26 cases concerning sentences for the supply of a large commercial quantity of prohibited drugs, 25 of which were decisions of this Court since 2004. The table divides the cases into two groups. The first group consisted of 12 cases which involved the supply of significantly larger amounts of prohibited drugs relative to the large commercial quantity than the amount supplied by the applicant. The second group consisted of 14 cases involving the supply of between one and three times the large commercial quantity of prohibited drugs. The respondent identified an additional case in which this Court considered a sentence for the supply of a large commercial quantity of cocaine (YY v R [2016] NSWCCA 124; "YY").
From the first group of cases, Senior Counsel for the applicant, Mr Walker SC, referred in oral argument to R v Li [2014] NSWCCA 327 ("Li"). In Li, this Court allowed a Crown appeal and re-sentenced an offender who supplied 24.97kg of methylamphetamine to a term of imprisonment of 10 years with a non-parole period of 7 years and 6 months. The offender had no prior convictions and received a 15 per cent discount for his plea of guilty. The undiscounted head sentence imposed in Li was 11 years and 9 months which is less than the applicant's undiscounted head sentence of 13 years' imprisonment. However, the sentences are nevertheless consistent given this applicant's very poor subjective case, his commission of the drug supply charge while on bail and the difference between this applicant's role and that of the offender in Li. The offender in Li was sentenced on the basis that he was a "courier" (Li at [56]) who had decided to "withdraw from the criminal syndicate before he was arrested" (Li at [57]).
With one possible exception, a review of the other judgments listed in the first group in the applicant's table does not take the matter any further. Most of those cases either involved an offender with a better subjective case than the applicant (eg, Deakin v R [2014] NSWCCA 121; "Deakin"; R v Emanuel [2004] NSWCCA 267 at [8]; Ayik v R [2013] NSWCCA 119; "Ayik"; DAB v R; NJB v R [2010] NSWCCA 275), an offender who did not commit offences on conditional liberty, an offender with a far lesser role than the applicant (eg, R v Stankovic [2006] NSWCCA 229; Ayik) or a combination of those factors. Thus, in Coetzee v R [2007] NSWCCA 12 ("Coetzee"), this Court found, inter alia, that a sentence of 9 years and 3 months with a non-parole period of 6 years and 9 months for the supply of just over 24kg of cocaine was not manifestly excessive. The offender received a discount of 15 per cent on account of his plea of guilty. His undiscounted head sentence was 10 years and 10 months. The offender in Coetzee had no prior criminal record. The sentencing judge found that it was "impossible to accurately categorise" the offender's "status in the hierarchy of the criminal activity" but concluded "he was not some minor functionary in an insignificant position" but instead his "participation was central and vital to the success of the scheme" (Coetzee at [9]). Even so, the applicant's role in this case was clearly more significant, and his subjective case was far worse, than those of the offender in Coetzee.
The one possible exception adverted to above is the decision in Minh Tan Pham v R [2009] NSWCCA 25; 193 A Crim R 190 ("Pham"), although on closer analysis it does not assist the applicant. In Pham, the offender was sentenced after a trial to imprisonment for 10 years with a non-parole period of 7 years and 6 months for the supply of 300kg of pseudoephedrine (60 times the large commercial quantity). The offender had one dishonesty conviction (Pham at [11]) and was sentenced on the basis that his role was "significant to the enterprise" but less than other offenders (Pham at [26]). This Court rejected a complaint of a lack of parity with a sentence imposed on a co-offender (at [45]) and an alleged failure of the sentencing judge to consider the hardship caused to the offender by his imprisonment (at [51]). A complaint that the sentence was manifestly excessive was also rejected (at [27]). Latham J described the sentence as "lenient" (at [26]). Thus the decision in Pham does not provide any support for a conclusion that the applicant's sentence was manifestly excessive.
The applicant's case is also not advanced by considering the second group of 14 cases noted above; ie those involving the supply of between one and three times the large commercial quantity of the relevant prohibited drug. Thus, in R v Jihad Mahmud [2010] NSWCCA 219, this Court allowed a Crown appeal and resentenced the offender to a non-parole period of 6 years and 6 months with a balance of term of 2 years and 6 months for supplying 1.78kg of methylamphetamine. The starting point for the head sentence prior to allowing a discount for a plea of guilty was 11 years imprisonment (at [86]). The prohibited drug was found at the offender's home along with firearms and indicia of supply including a large quantity of cash (at [9] to [17]). The offender had previously served sentences for firearms offences. When regard is had to the more sophisticated nature of this applicant's drug dealing business, his commission of an offence while on bail and his prior imprisonment for drug dealing, it can be seen that the undiscounted sentence of 11 years imposed in Mahmud is generally consistent with the undiscounted head sentence of 13 years imposed in this case.
Another case in the second group identified by the applicant is Sevastopoulos v R [2011] NSWCCA 201, in which this Court allowed an appeal by an offender because the non-parole period imposed by the sentencing judge did not reflect the trial judge's finding of "special circumstances" (at [84] to [86]) grounds. The offender supplied a total of 2.25kg of cocaine over approximately a month. The offender was described as an "intermediary … to find potential buyers for the cocaine and facilitate their sale" (at [35]). The offender had previous convictions for drug offences and he had served two prior periods of imprisonment in 1976 and 1996 (at [18]). The offender was resentenced to a non-parole period of 8 years and 6 months with an additional term of 4 years. The undiscounted head sentence was in excess of 14 years. Given the duration of this applicant's offending and his role in his drug dealing business, his sentence compares favourably to that imposed upon the offender in Sevastopoulos.
As stated, the Crown also referred the Court to YY. In YY, the Court allowed an appeal on the basis that an error of the kind identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 had been established. The offender committed two offences of supply of cocaine and one offence of supplying a large commercial quantity of cocaine. The amount of the large commercial quantity supplied was just under 6kg. The cocaine the subject of that charge was seized at the offender's premises in a form "awaiting division into smaller quantities for sale" (YY at [36]) along with a substantial amount of cash (YY at [39]). The offender had a "minor criminal record" and had "demonstrated remorse" (YY at [18]). After a discount of 45 per cent for his plea and assistance to authorities (YY at [64]), the offender was sentenced to a total term of imprisonment of 11 years with a non-parole period of 8 years and 3 months. The undiscounted head sentence was 20 years. Even allowing for the larger amount of cocaine supplied by the offender in YY, the applicant's sentence in this case compares favourably to the sentence imposed upon the offender in that case.
Overall, the sentences imposed or considered by this Court for offences of supply a large commercial quantity of a prohibited drug including cocaine are not markedly different to the sentence imposed on the applicant. They provide no support for the contention that the applicant's sentence was the result of the misapplication of principle so as to warrant a conclusion that it was manifestly unreasonable or plainly unjust.
As noted, the applicant also relies on sentencing statistics. His written submissions accepted the significant limitations on their utility, namely that "bare statistics" state "very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were": (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59]; Hili v The Queen; Jones v The Queen at [55]). Nevertheless, it is submitted that they provide "general guidance as well as a reference point and support for the contention that the applicant's sentence is manifestly excessive" citing Spongberg v R [2017] NSWCCA 120 at [45] (per Macfarlan JA).
However the statistics relied on do not provide that support. The graph provided indicates the head sentences imposed on 28 offenders sentenced for supplying a large commercial quantity of cocaine between October 2009 and September 2016. Of the 28 offenders, 21 received lesser sentences than the applicant and 6 cases received higher head sentences of between 11 and 14 years. One obvious limitation flows from the circumstance that some offenders in this category would have received discounts on their sentence that are greater than 25 per cent because of the combination of a plea of guilty and the provision of assistance to authorities (eg R v Kazzi [2008] NSWCCA 77). Such cases may have starting points for their sentence well in excess of that imposed on the applicant but after the discount is applied may have received a lesser sentence. Another limitation of these figures is that they only related to the supply of cocaine and thus the attempt to establish a "range" from such a limited cohort is difficult. In any event, in light of her Honour's finding as to the objective seriousness of the drug supply offence and his poor subjective case, the figures do not provide any support for the applicant's argument.
I am not satisfied that the applicant's sentence was unreasonable or plainly unjust.

Disposition

Two further matters should be noted.
First, as noted, the applicant also sought leave to appeal from the sentence imposed by Williams DCJ on 27 May 2016 but only on the basis that, if the sentence for the drug supply offence was varied, then the commencement date for his Honour's sentence would have to be adjusted. It follows that, on the view I take, there is no basis for interfering with that sentence.
Second, at the hearing of the application the applicant tendered various testimonials and a psychologist's report concerning the applicant on the so called "usual basis" referred to in Betts v The Queen [2016] HCA 25; 258 CLR 420 at [46]. The respondent objected to this material on the basis that it did not relate to the period after the applicant was sentenced but was instead material that was available when the applicant was sentenced and thus appeared to be directed towards a re-agitation of the sentencing judge's findings of fact (Betts at [59]). The Court received this material on the basis that, if it proceeded to resentence, the Crown would be given a further opportunity to respond to it. It follows that, on the view I take, it is not necessary to give the Crown that opportunity.
Accordingly, the orders that I propose are: (1) Leave to appeal against the sentence imposed on the applicant by Payne DCJ on 20 August 2015 for the offence of supplying a commercial quantity of a prohibited drug be granted; (2) Appeal dismissed; (3) Leave to appeal against the sentence imposed on the applicant by Williams DCJ on 27 May 2016 for the offence of causing grievous bodily harm with intent to cause grievous bodily harm be granted; (4) Appeal dismissed.
WILSON J: I agree with Beech-Jones J.

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