Hussein v R [2020] NSWCCA 342 | Case summary

Court of Criminal Appeal (NSW)|2020-11-25|Before: Hoeben CJ, Bellew J, Wright J

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
BELLEW J:

INTRODUCTION

Ali Hussein (the applicant) pleaded guilty in the Local Court to the following offences: 1. supplying a large commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 1); and 2. participating in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW) (count 2).
The applicant adhered to those pleas when he appeared for sentence before the District Court.
The maximum custodial penalty for the offending in count 1 is life imprisonment and a standard non-parole period of 15 years' imprisonment is prescribed. The maximum penalty for the offending in count 2 is 5 years' imprisonment. There is no standard non-parole period applicable to that offence.
On 1 September 2017 the sentencing judge imposed the following sentences: 1. count 1 - imprisonment for 9 years with a non-parole period of 6 years, both to commence on 31 March 2016; and 2. count 2 - a fixed term of imprisonment of 1 year and 10 months commencing on 31 March 2016.
The applicant now seeks an extension of time in which to file a notice seeking leave to appeal against that sentence. In support of that application he relied upon his affidavit of 12 August 2020, and that of his solicitor, Moustafa Kheir, of 11 August 2020, both of which were read without objection.

The criminal group

The applicant, along with four other persons referred to by the sentencing judge as Banat, Pose, Ahmad and Youseff, were members of a criminal group which had been formed for the purposes of supplying methylamphetamine. Each member performed different roles within the group, but all participated in a joint criminal enterprise to supply methylamphetamine. [1]
Banat, as the leader of the group, was responsible for directing it, and the applicant was the contact point for the Undercover Operative (UCO) to whom the methylamphetamine was supplied. Pose, Ahmad and Youseff were also present on various occasions at the time of such supply. The sentencing judge found that Ahmad's presence was to ensure the security of the drug transactions, a circumstance which his Honour found was indicative of the willingness of the members of the group to use force to further their illegal activities. [2]
The sentencing judge also found that although the applicant was a central figure in the supply of methylamphetamine to the UCO, he remained subordinate to Banat, and that the five accused operated as an organised group over an extended period of time. [3] That said, and as set out below, all of the individual supplies of methylamphetamine which were the subject of count 1 were organised by the applicant.

8 December 2015

Shortly after 7.00pm on 8 December 2015, the applicant, Pose and Ahmad attended the car park of the Revesby Workers' Club and supplied the UCO with 167.45gms of methylamphetamine for a sum of $36,000.00. [4]

17 December 2015

Shortly after 6:30pm on 17 December 2015 the applicant and Ahmad attended Padstow Park and supplied 278.73g of methylamphetamine to the UCO for $60,000.00. [5]

29 December 2015

Shortly after 2.00pm on 29 December 2015 the applicant, having spoken to Banat, attended Padstow Park and supplied 277.24g of methylamphetamine to the UCO for $60,000.00. [6]

6 January 2016

At 4.26 pm on 6 January 2016 the applicant met with Sarah Butler in a car park in Greenacre. Shortly after 5:00pm, Butler's car was stopped by police. She was the only person in the car and told police that there was methylamphetamine in her backpack. Police located 44.7g of methylamphetamine along with a piece of paper with the words "Hillcrest Avenue Mimosa Road Sydney" written on it. Another piece of paper found in the backpack had the number of the applicant's mobile phone. Also located in the backpack were a set of electronic scales and a knife. [7]

13 January 2016

Shortly before midday on 13 January 2016 the applicant and Pose went to the rear of commercial premises in Bankstown and supplied 275.46g of methylamphetamine to the UCO for $60,000.00. [8] At the time of that supply, the applicant offered to supply 1kg of methylamphetamine to the UCO. Shortly after that, the applicant called Mustapha Bayrouti and had a conversation with him, which the sentencing judge found demonstrated that the applicant was forwarding money from the supplies to Banat. [9]

22 January 2016

At 12:17pm on 13 January 2016, the applicant called Banat and the following conversation took place: Applicant: I'll give him 2, is that enough or should I give him more? Banat: That's enough. Applicant: I'll talk to you tonight, you'll be happy, huh? Banat: I'll be happy. Applicant: Don't worry, you'll be happy believe me.
The sentencing judge found that this conversation confirmed that the applicant was subordinate to Banat regarding the money derived from the supplies, and that Banat maintained oversight of the proposed supply of the 1kg of methamphetamine by the applicant to the UCO. [10]
At 8:00pm on 15 January 2016 the applicant contacted the UCO to organise the supply of 1kg of methylamphetamine which had been previously discussed. In the course of that conversation the applicant said: My mate goes, if you can come back as soon as possible we will do it for a bit cheaper, probably 10, probably 10 to 15.
The sentencing judge found that this conversation was consistent with the applicant having discussed the supply of 1kg of methylamphetamine with Banat who had approved the discounted price. His Honour regarded this as a further demonstration of his (i.e. Banat's) role in directing the activities of the group. [11]
At 10:29pm on 18 January 2016 Banat called the applicant and the following conversation took place: Banat: What happened with you, any good with your mate? Applicant: No, wallah not yet. Banat: Come on man.
The sentencing judge found that this conversation demonstrated that Banat was monitoring the progress of the upcoming supply, and confirmed his role as being the director of the group's activities. [12]
On 21 January 2016 the applicant made arrangements to see the UCO the following day. On 22 January 2016 the applicant, Pose and Youseff drove to the rear of commercial premises in Bankstown. Youseff took a shopping bag and was in the process of supplying 1kg [13] of a crystalline substance to the UCO when he was arrested by police. A fingerprint matching that of the applicant was located on the plastic bag which had been handed to the UCO. Although the agreement which had been reached between the applicant and the UCO was to supply 1kg of methylamphetamine, the substance supplied was found not to be a prohibited drug when it was later analysed. [14]
Police then executed a search warrant at premises which had been used by the group. They located 565.82gms of methylamphetamine, along with 413.7gms of a cutting agent, dimethyl sulfone, which is a crystalline substance similar in appearance to methylamphetamine. [15] The sentencing judge found that the applicant knew that drugs were stored in these premises, although there was no evidence that he had specific knowledge as to the entirety of the drugs which were found. [16]

His Honour erred in conCLUDING that the offending was aggravated because it was committed for financial gain

The sentence proceedings

In the court below, the Crown made lengthy submissions to the sentencing judge about the objective seriousness of the offending. [17] At no stage during the course of those submissions did the Crown suggest that such objective seriousness was aggravated by the fact that the offending was committed for financial gain. In the course of an exchange between the Crown and the sentencing judge concerning the effect of the offending on the community, the following was said: [18] CROWN: My concern with your reasoning, your Honour, in relation to how that affects the objective seriousness is that part of the criminality in the supply of drugs isn't just the harm a drug does to the community. It's also about the fact that there is a person out there who is making large quantities of money out of the sale of drugs. HIS HONOUR: Yes, but isn't that the fact that you've just made the point? You just said, 'it's not just the fact'. Isn't it your own submission saying, 'it's part of the component of it'? CROWN: It is but what I'm saying is-- HIS HONOUR: That is an assessment of objective gravity, by saying that it's part of the system, part of the process.
In addressing the issue of objective seriousness, counsel then appearing for the applicant said: [19] The fourth component in terms of the question of the objective criminality is the question of financial reward and there's nothing in the facts that indicates that Mr Hussein profited at any significant degree. In fact, he appears from the way in which the facts had been referred to, as to be a conduit of the money back to the people higher in the criminal organisation or the criminal group, as opposed to a person who was profiting from the various transactions to a material degree …..
In reply, the following further exchange took place between the Crown and the sentencing judge: [20] HIS HONOUR: What do you say about the money issue? CROWN: In terms of the money issue, your Honour, the only evidence in relation to the money is about the transfer of parts of those payments. I think you need to be very careful in how much money someone makes out of a drug deal as to-- HIS HONOUR: That's the difficulty. It's not suggested - the Crown doesn't suggest the money went to-- CROWN: No. No, your Honour. HIS HONOUR: In its totality, it went to Mr Hussein. That can't be the case. CROWN: No. It's not the case, the Crown case, your Honour. The money - very much in the direction of this group was Mr Banner [sic].

The findings of the sentencing judge

Having set out the facts, and in the course of addressing the objective seriousness of the offending, the sentencing judge said: [21] The offence was committed over a six week period involving a reasonable degree of planning and was committed as part of an organised criminal group. Although I recognise he is to be separately sentenced for being part of a criminal group, I would assess the objective gravity of the offending behaviour as slightly below the mid-range of objective seriousness for offences of this type. The offences were committed whilst the Offender was on parole for the offence of reckless wounding. The fact that he was on conditional liberty is an aggravating factor to be taken into account. The offences were also committed for financial gain (emphasis added).
It is the last italicised statement which is the focus of the proposed ground of appeal.

Submissions of the applicant

Counsel for the applicant submitted that because financial gain is an inherent characteristic of any significant offence of drug supply, it is rendered an aggravating factor only if such gain is more significant than might normally be expected from an offence of that kind. It was submitted that in the present case, the financial gain derived by the applicant from his involvement in the offending was limited, particularly in light of the evidence which pointed to the role played by Banat, and which supported the conclusion of the sentencing judge that it was Banat who received the bulk of the proceeds of supply. Counsel for the applicant also pointed to the fact that the Crown had not submitted to the sentencing judge that the applicant's financial gain had been so significant as to take the offending beyond the level inherently contemplated by the elements of the offence itself.
To the extent that there was any suggestion of ambiguity in the findings of the sentencing judge (which counsel for the applicant did not concede), it was submitted that if parties find themselves in a position where they are left to speculate about what matters a sentencing judge did or did not take into account, such circumstances will point to a failure on the part of the sentencing judge to sufficiently expose the reasons for sentence, such that the sentencing discretion will have miscarried.

Submissions of the Crown

The Crown submitted that on a proper reading of the reasons of the sentencing judge, no error had been established. The Crown emphasised that the sentencing judge had not said, at any stage, that the offending was aggravated by financial gain. The Crown submitted that had his Honour intended to adopt that approach, he would have clearly indicated that he was doing so.
It was further submitted that such a conclusion was supported by his Honour's specific reference, immediately preceding the impugned statement, to the fact that conditional liberty was an aggravating factor. The Crown submitted that this unambiguously demonstrated that his Honour did not treat the aspect of financial gain, which was dealt with immediately following that, as an aggravating factor.
Finally, the Crown submitted that these conclusions were entirely consistent with the manner in which the sentence proceedings had been conducted. In this regard the Crown pointed, in particular, to the fact that neither party had submitted that the sentencing judge should find that the offending was aggravated because it had been committed for financial gain.

CONSIDERATION

There is no doubt that financial gain is an inherent characteristic of any significant offence of drug supply. Accordingly, it can only be treated as an aggravating factor if the extent of the gain is more significant than might normally be expected for offending of such a kind. [22]
The issue in the present case is whether, on a fair reading of the reasons of the sentencing judge, his Honour erroneously concluded that the offending was aggravated by financial gain. In determining that issue, I accept that any ambiguity in sentencing remarks has the capacity to support a conclusion that the sentencing discretion has miscarried. [23] However, for the reasons that follow, I am not satisfied that his Honour did err, nor am I satisfied that there is any ambiguity in his Honour's reasons.
Firstly, and fundamentally, the impugned statement in the reasons of the sentencing judge does not carry with it any express indication that his Honour erred in the manner for which the applicant contents. In referring to the fact that the offending was committed for financial gain, his Honour did not use the term "aggravating factor", or anything like it.
The applicant appeared to rely on his Honour's use of the word "also" in the impugned statement as being indicative of the error for which he contended. In my view, to infer error from that circumstance is to engage in an unwarranted and unjustified parsing of his Honour's reasons. Further, and in any event, immediately before the impugned statement his Honour had noted the fact that the offending was aggravated by the fact that the applicant was on conditional liberty. In my view, it can be readily concluded that had his Honour similarly intended to treat financial gain as an aggravating factor he would have expressly said so. The fact that he did not do so simply fortifies the conclusion that no error has been established.
Such a conclusion is further fortified by the manner in which the sentence proceedings were conducted. Whilst I accept that exchanges in the course of submissions do not normally provide a source for detecting errors of principle, it remains the case that there are occasions on which they can assist in elucidating abbreviated statements which appear in a sentencing judge's reasons. [24] In my view, the present is such a case. Neither party suggested to the sentencing judge that the offending was aggravated by financial gain. On the contrary, the Crown went to some lengths to emphasise the need to be "careful" when considering "how much money someone makes out of a drug deal". In my view, the passages of the transcript I have set out above tend wholly against a conclusion that his Honour erred by concluding that the offending was aggravated by financial gain.
Finally, the cases to which the Court was referred where errors of this general kind have been made out are immediately distinguishable from the present. For example, in Farkas this Court found that the sentencing judge had made six separate references to the fact that financial gain was an aggravating factor, leading to a conclusion that it was a matter central to his Honour's approach to determining the appropriate sentence. [25] In the present case, his Honour made no reference to financial gain being an aggravating factor at all. In Huang v R, [26] this Court found error in circumstances where the sentencing judge had specifically and repeatedly referred to financial gain in the context of considering aggravating circumstances. In the present case the sentencing judge did no such thing.
For all of these reasons, the proposed ground of appeal has not been made out. In those circumstances, an extension of time should be refused.

ORDERS

I propose the following orders: 1. An extension of time in which to file an application for leave to appeal against sentence is refused. 2. The appeal is dismissed.
WRIGHT J: I agree with Bellew J.

Endnotes

AB8.
AB9.
AB9.
AB11.
AB11.
AB12.
AB12-13.
AB13.
AB13-14.
AB14.
AB14.
AB14.
The reasons of the sentencing judge at AB15 make reference to an amount of 1.4kg but it was argued that this was an error, and that the correct amount is 1kg.
AB15.
AB15-16.
AB16.
Commencing at AB71.21.
AB 81.11-AB81.24.
AB85.38-AB85.47.
AB89.49-AB90.14.
AB19.
Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141 at [62].
Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 at [39].
Hughes v R [2000] NSWCCA 48 at [33] citing R v Van Hong Pham [2005] NSWCCA 94 and Daniels v R [2007] NSWCCA 372.
At [54].
[2017] NSWCCA 312 at [61]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020

Hussein v R

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