Jawosh v R

Court of Criminal Appeal (NSW)|2018-07-13|Before: Payne JA, Hulme J, Button J

Solicitors: NC Defence Lawyers Solicitor for Public Prosecutions File Number(s): 2016/162673 Decision under appeal Court or tribunal: District Court Date of Decision: 04 July 2017 Before: Colefax SC DCJ File Number(s): 2016/162673

Judgment

PAYNE JA: I agree with R A Hulme J.
R A HULME J: Shahab Jawosh ("the applicant") seeks leave to appeal against an aggregate sentence of imprisonment imposed upon him by his Honour Judge Colefax SC in the District Court at Parramatta on 4 July 2017.
The sentence - 8 years with a non-parole period of 4 years - was imposed in respect of eight offences which were contrary to the Drug Misuse and Trafficking Act 1985 (NSW), the Weapons Prohibition Act 1998 (NSW), and the Crimes Act 1900 (NSW). The applicant had pleaded guilty in the Local Court and had been committed to the District Court in respect of five of these offences. The other three were related summary offences that were referred to the District Court by being listed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

It is noted that in relation to the sentences indicated for Sequences 7 and 11 the starting point before reduction of 25% for the plea of guilty is at the highest level possible (2 years being the maximum penalty for Sequence 7 and the jurisdictional limit for Sequence 11). Further, the actual sentence indicated for Sequence 12 exceeded the maximum penalty prescribed for the offence.

Grounds of appeal

The applicant's grounds of appeal are: 1 His Honour Judge Colefax erred by finding that "the only rational inference" was that the offender's possession of two electronic shock devices "was connected with his dealing in drugs", and: (i) His Honour erred by failing to give reasons for that finding. (ii) His Honour erred by failing to give reasons as to how that finding operated upon the sentencing exercise. 2 The aggregate sentence imposed by his Honour is manifestly excessive.

The offences

The following is drawn from a statement of "agreed facts" tendered without objection at the sentencing hearing.
The applicant lived at a home in Westmead where police executed a search warrant on the evening of 26 May 2016 and found: ● A total of 286.01 grams of opium found in four bags in the laundry and another in the rear bedroom. ● A total of 30.86 grams of methylamphetamine ("ice") in two bags in the laundry. ● 0.44 grams of ecstasy (MDMA) in one of the bags in the laundry. ● Two "hand held electronic shock devices (tasers)" in a cupboard in the hallway. ● A slingshot in the rear bedroom. ● 173.2 grams of cannabis.
Also found within the premises were 139 Suboxone films containing Buprenorphine; 7 Durogesic patches containing Fentanyl; 260 tablets called Targin, Oxycodone, Oxycontin or Endone containing Oxycodone; 4 Methadone vials; and 4.63 grams of Alprazolam. There was also $1,140.55 which was believed to be the proceeds derived from the sale of prohibited drugs.
In the laundry were found documents in the applicant's name; a number of passport photographs of him; several electronic scales; and notebooks with handwritten names and amounts, being ledgers relating to the sale of prohibited drugs.
The judge said that each of the drug supply offences was "slightly below the midrange" of objective seriousness. The electronic shock device offences were "somewhere equidistant between the middle of the range and the bottom of the range" and the slingshot offence was "at the bottom of the range".

The applicant's personal circumstances

The applicant's subjective case was presented in a way that the sentencing judge described as "most unsatisfactory" in that the applicant did not give evidence but provided a psychologist's report setting out his subjective circumstances.
The applicant was born in Iraq. He and his family were refugees in Iran when he was 4 years old. He came to Australia in 1999. The Crown accepted that the applicant's life in the Middle East was "highly confronting" and "dysfunctional". The judge said it was unsurprising that the psychologist diagnosed the applicant as having post-traumatic stress disorder.
The applicant was 43 years old at the time of the offences. He and his wife lived with their two young sons at the home at Westmead. He also had a daughter from a previous marriage who was living overseas.
The applicant sustained an injury in the year after his arrival in Australia as a consequence of which he received a disability support pension. He had since abused prescription medication and, the judge said, "to a degree, that may well explain his possession of the various drugs specified in the Form 1 offences".
Notwithstanding the applicant's reliance upon the disability support pension, part of the history set out in the psychologist's report was that in 2008 the applicant received a tax bill from the Australia Taxation Office ("ATO") for $750,000 and in 2015 he received another bill for $250,000. His Honour Judge Colefax described this as "an extraordinary state of affairs" for which there was no explanation.
The applicant's account to the psychologist also included that he had abused not only prescription medication but also opium in order to ease his physical pain and to address his psychological distress caused by the PTSD, the physical injuries, and the harassment by the ATO.
The judge pointed out that the alternative explanation for the applicant's possession of the opium was "to make money". He continued: "There is no connection in the psychologist's report at all between any of the subjective circumstances of the offender and his possession of a very considerable quantity of methylamphetamine. There is no explanation at all for his possession of the two Tasers. The only rational inference in the circumstances is that the Tasers were a part of the paraphernalia made up of the scales and the ledgers - in other words, their possession was connected with his dealing in drugs. The Court is unable to say, on the material before it, what proportion of the opium and the ice was for sale and what was for the use of the offender. Only one person could tell the Court that - and he chose not to. On the other hand, there is no evidence of extravagant living, there are no luxury goods, there is no expensive car - or, at least, no evidence of these things. I am, in the circumstances, of the view that I can do no more than conclude that some of these drugs was for personal use, and some of these drugs was for sale - in what proportion I can be no more specific." (Emphasis added)
The judge noted the applicant's limited criminal history but added that it meant he could not rely upon prior good character. He also noted that the offences were aggravated "to an extent" by the fact that the applicant was on two good behaviour bonds at the time (one for assault and the other for having a knife in a public place).
The judge was sceptical about the applicant's expressions of remorse, particularly given that he did not give evidence. He concluded, however, that his prospects of rehabilitation were "reasonable". That finding was based upon there having been no disciplinary infractions during the time the applicant had been in custody since his arrest (there was in fact a matter of possessing a drug in August 2016); a rather glowing letter from a prison chaplain; and a certificate indicating the applicant had completed a "Health Survival Tips Program".
The judge was not persuaded that the applicant's prospects of rehabilitation would be enhanced by a longer period on parole but he made a finding of special circumstances nonetheless because the Crown had conceded the point and because of the applicant's "physical injuries, and … psychological condition". I note that if the judge had not made this finding he would have set the non-parole period at 6 years, three-quarters of the total term of the sentence. Notwithstanding his initial reluctance to make the finding of special circumstances, his Honour was quite generous in giving effect to it by reducing the non-parole period to 4 years; half the total term.
At the end of his sentencing remarks the judge spoke of the importance of general deterrence in relation to sentencing for drug supply offences. He also considered that personal deterrence was "of considerable importance" because of the applicant's lack of remorse and the unexplained circumstances of the offending.

Ground 1 - finding in relation to the possession of the electronic shock device weapons

This ground is based upon his Honour having said that the only rational inference is that the "Tasers" were part of the paraphernalia connected with the applicant's dealing in drugs. Counsel for the applicant submitted that error attends this finding because: (a) the finding was not open; (b) it was not supported by reasons; and, (c) no explanation was given as to the effect the finding had upon the sentencing exercise.

(a) Finding not open

It was submitted that there was no evidence to support this finding being made, particularly where the standard of proof for such a finding was beyond reasonable doubt, citing Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 at [27].
Counsel made reference to a number of aspects of the evidence. First, reference was made to the tasers having been found in a cupboard in the hallway where no other relevant items were located. Secondly, there was no evidence as to the location where the applicant may have engaged in drug supply activity; in other words, inside the home or elsewhere. Thirdly, his Honour did not say why he differentiated between the tasers and the slingshot in making the impugned finding in relation to the former but not the latter. Fourthly, there was no information as to the functionality of the tasers; the judge noted that there is nothing to indicate they were other than operative but it was submitted that the converse was also true. Finally, counsel asserted that there was some uncertainty in correlating the device described in the agreed facts with items prescribed as "prohibited weapons" in Sch 1 of the Weapons Prohibition Act.
Another submission was that an alternative rational hypothesis for the applicant's possession of these weapons was hyper-vigilance associated with the diagnosis of PTSD. In other words, the applicant may have thought it necessary to possess the weapons for self-defence purposes.

In relation to the third potential cause of error, it was submitted that at face value the finding would either: 1. aggravate the drug supply offences pursuant to s 21A(2)(c) of the Crimes (Sentencing Procedure) Act which provides that it is an aggravating factor if there is the "actual or threatened use of a weapon"; and/or, 2. increase the objective seriousness of the weapons offence because possession of a weapon in connection with the supply of drugs represents "significant additional criminality": Luu v R [2008] NSWCCA 285 at [32]; Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [89].
It was submitted that there was a lack of clarity as to whether the judge adopted one approach or the other, or whether he applied a correct approach at all. (These submissions in relation to particular (c) are understood to apply to particular (b) as well.)

Consideration

The Crown advanced a number of arguments in support of the proposition that the finding of the sentencing judge was one that was well open to him. I am satisfied that it was but for three reasons I do not consider that the competing submissions should be subjected to any fine analysis.
First, the arguments advanced in this Court are not reflective of the issues as they were raised in the court below. An appeal to this Court is not an opportunity to present a reformulated plea in mitigation.
Secondly, the applicant's argument is directed towards how seriously the primary judge should have regarded his possession of the two electronic shock devices but the applicant does not challenge the judge's ultimate finding as to the objective seriousness of these two offences (see above at [12]).
Thirdly, assuming that error was established, at best the result would be that somewhat lesser indicative sentences should have been assessed for these two offences. If there was any impact upon the assessment of the totality of the applicant's criminality and the appropriate aggregate sentence to impose for it, such impact would be quite minimal.
This ground is rejected.

Ground 2 - manifestly excessive sentence

The applicant contended that the aggregate sentence is manifestly excessive (that is, unreasonable or plainly unjust) and this could be attributed to the indicative sentences, particularly those for the drug offences, being unreasonable.
In relation to the methylamphetamine supply offence, it was contended that the amount involved (30.86 grams) did not justify a finding that the objective seriousness was "slightly below the mid-range" where the indictable quantity for the drug is 5 grams and the commercial quantity is 250 grams. It was argued that sentencing statistics indicated that the sentence assessed by the judge for this offence (4 years 10 months) was in the most severe 1% of sentences imposed.
A similar argument was raised in respect of the opium supply offence where the amount involved (286.01 grams) had to be seen in the context of a range between indictable and commercial quantities of 50 grams to 1000 grams, yet his Honour made a finding of objective seriousness of "slightly below the mid-range".
Moreover, the submissions noted that the starting point before reduction on account of the plea of guilty (8 years) exceeded half of the available maximum penalty. It was submitted that the need to take into account the offences on the Form 1 could not explain this as they were offences which were unlikely to have led to custodial sentences in their own right.
It was also contended that the indicative sentence for the opium supply offence was excessive when regard was had to the fact that the applicant was a "user/dealer" whose addiction to opioids arose out of his use of medication prescribed in relation to an injury. Further, the judge accepted that the applicant's possession of the various drugs specified in the Form 1 offences reflected a history of abusing prescribed medication. It was submitted that a starting point of 8 years was consistent with a less favourable subjective case: e.g. a recidivist offender; someone who had not acquired an opioid addiction by virtue of prescribed medication; or a person who dealt in commercial quantities of this drug. It was also contended that sentencing statistics supported the proposition that the indicative sentence for this offence was erroneously excessive.

Consideration

The Crown submissions provided a number of reasons why this ground should not be upheld but I think that it should be for the following reasons.
The assessment by the primary judge of the objective seriousness of the offences was that they were at various levels but all below the middle of the range. A starting point for the indicative sentence for the opium supply offence of 8 years, against a maximum penalty of 15 years, even taking into account the nine summary offences is very high.
The starting point of the sentence of 6.5 years for the methylamphetamine supply is also quite high.
There are also the obviously excessive indicative sentences specified for the offences referred to as Sequences 7, 11 and 12 (see above at [6]). They must have had a bearing upon the assessment of the aggregate sentence.
The overall criminality of the applicant may be described as follows. He was being sentenced for the first time as a supplier of prohibited drugs and for associated offences. He was not a supplier of substantial quantities but they were not insignificant quantities either. Police found in the applicant's house the accoutrements of an established drug supply enterprise: several electronic scales; ledgers recording sale transactions; prohibited weapons available in close proximity; and $1140.55 which was believed to be the cash proceeds of past sales.
The judge accepted that the applicant came from a dysfunctional background and had been diagnosed with post-traumatic stress disorder. He also accepted that the applicant's abuse of prescription medication derived from the back injury he sustained soon after his arrival in Australia and that, "to a degree", this may explain his possession of the drugs specified in the Form 1 offences. The judge also appears to have accepted that the applicant was using opium to ease his physical pain and to address psychological distress (there was no such excuse in relation to the methylamphetamine). However, his Honour was satisfied that the applicant was in possession of the opium also for the purpose of making money. What proportion of the drugs was for supply as opposed to personal use was not possible for his Honour to determine.
The offences (all of them) were aggravated by the fact that they were committed while the applicant was subject to a good behaviour bond for an offence of assault and another such bond for an offence of having custody of a knife in a public place. The criminal history generally disentitled the applicant to a finding of prior good character.
The judge was sceptical about the applicant's expressions of remorse but found his prospects of rehabilitation were "reasonable".
The judge was correct (with respect) to say that "specific deterrence is of considerable importance and general deterrence is obviously a substantial consideration". His Honour had some things to say about the scourge of the drug "ice" and the responsibility of courts "to effect proper punishment on those who deal in significant quantities of this destructive and wicked drug". There was no argument about that.
The Crown frankly acknowledged during the course of the hearing of the application that the starting point of 8 years for the indicative sentence for the opium supply offence was "stern" and the aggregate head sentence was "undoubtedly stern". For an offence assessed as falling "slightly below the midrange" of objective seriousness it was too high, even allowing for the need to take into account the Form 1 offences.
The judge indicated (with there being no requirement that he do so) that all of the sentences except that for the opium supply offence would have been concurrent. He said that "Sequence 5 would have been partially accumulated with the other sequences". It may be deduced that the aggregate sentence of 8 years is made up of 6 years for the opium supply offence and 2 years for all of the other offences. My first reaction to the sentence was that it was inordinately high; this would tend to explain why that is so.
An aggregate sentence of imprisonment for 8 years was, in all of the circumstances, an unreasonable outcome. I am satisfied that it is a sentence that is manifestly excessive.

Resentencing

The applicant should retain the benefit of a 25 per cent reduction of sentence on account of his early pleas of guilty. This will be applied to each of the indicative sentences. Other findings made by the primary judge should also be maintained as they were not challenged and they accord with my own assessment - that is, findings as to relative objective seriousness; the relevance of the applicant's dysfunctional background in his country of birth, the injury he sustained after arriving in Australia and his abuse of prescription medication; and the applicant's "reasonable" prospects of rehabilitation.
As to the latter, I note that an affidavit read by the Crown in the event of resentencing discloses that the applicant has been dealt with for a number of disciplinary infractions since he was sentenced. This would tend to indicate that the applicant's rehabilitation prospects have not improved.
I would also maintain the finding of special circumstances but would not give it such a generous reflection in the aggregate sentence to be imposed. I am in full agreement with the Crown's submission that four years is the appropriate period of custody to reflect all of the relevant sentencing factors, particularly the applicant's overall criminality.
The individual sentences I would assess are as follows: Sequence number Offence Indicative sentence 5 Supply 286.01 grams opium (taking into account offences on Form 1) 4 years 6 months 6 Supply 30.86 grams methylamphetamine 4 years 6 months 8 Possess prohibited weapon (electronic shock device) without permit 1 year 6 months 9 Possess prohibited weapon (electronic shock device) without permit 1 year 6 months 10 Possess prohibited weapon (slingshot) without permit 6 months 7 Possess 173.2 grams cannabis 1 month 11 Deal with $1140.55 suspected to be the proceeds of crime 9 months 12 Occupier knowingly allow premises to be used as drug premises 6 months

The aggregate sentence should be one of 6 years 6 months and the non-parole period should be maintained as one of 4 years.

Orders

I propose the following orders: (1) Leave to appeal against sentence granted. (2) Appeal allowed. (3) Quash the sentence imposed in the District Court on 4 July 2017. (4) Sentence the applicant to an aggregate term of imprisonment for 6 years and 6 months with a non-parole period of 4 years. The sentence is to date from 27 May 2016. The non-parole period will expire on 26 May 2020 whereupon the applicant will become eligible for release on parole.
BUTTON J: I agree with R A Hulme J.

Amendments 10 August 2018 - Coversheet & 57 - typo 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: 10 August 2018

(NSW), the Weapons Prohibition Act 1998(NSW)

Crimes Act 1900(NSW)s 193C

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