Kassis v R [2013] NSWCCA 298 | Case summary

Court of Criminal Appeal (NSW)|2013-11-26|Before: Hoeben CJ, Blanch J, Price J

JUDGMENT

HOEBEN CJ at CL: I agree with Blanch J and the order which he proposes.
BLANCH J: The applicant seeks leave to appeal against sentences imposed in the District Court on 8 February 2013. On 1 February 2013 he confirmed his pleas of guilty made in the Local Court to two counts: Count 1: Supply prohibited drug (24.6 grams of cocaine) on 15 March 2012 contrary to s 25(1) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment. Count 2: Supply large commercial quantity of prohibited drug (997.5 grams of ecstasy) on 15 March 2012 contrary to s 25(2) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of life and a standard non-parole period of 15 years.
When being sentenced on Count 2 he asked for two matters to be taken into account on the Form 1. The first was Dealing with suspected proceeds of crime ($32,000 in cash) between 15 March 2012 and 20 March 2012 contrary to s 193C(2) Crimes Act 1900 which carries a maximum penalty of two years imprisonment. The second offence was Possess prohibited restricted substance (22 tablets of Theophylline) on 15 March 2012 contrary to s 16(1) Poisons and Therapeutic Goods Act 1966 which carries a maximum penalty of 6 months imprisonment.
On Count 1 he was sentenced to a fixed term of 15 months imprisonment to commence on 20 March 2012 and expiring on 15 June 2013.
On Count 2 he was sentenced to 8 years 6 months commencing 20 September 2012 and expiring on 19 March 2021. A non-parole period was specified of 5 years from 20 September 2012 and expiring on 19 September 2017.
The total sentence was thus one of 9 years imprisonment from 20 March 2012 with a non-parole period of 5 years and 6 months.
The ground of appeal argued is "Her Honour erred by failing to properly take into account the applicant's plea of guilty."

FACTS

On 24 February 2012 the applicant and his partner, the co-offender in the first offence, Ms Goff leased a one bedroom unit located at 1/522 Military Road, Mosman. Lawfully intercepted telephone calls alerted police to suspect activities relating to drugs. On 15 March investigators executed a covert search warrant at the unit when the occupants were absent. In a bedside drawer they found three plastic bags containing powder believed to be drugs and another bag with two ecstasy tablets in it. They also found $8,000 in cash and they seized these items. In a hallway cupboard they found a gift bag and inside it was a vacuum sealed plastic bag which contained 995 grams of ecstasy with a drug purity of 82.5 per cent. They also seized this property.
When the applicant came home he noticed property was missing and there were intercepted telephone calls between him and Ms Goff. There was also a telephone call to Mr Cretan relating to the missing drugs. On 20 March 2012 investigators went to the home of Mr Cretan and located two pill presses commonly used to manufacture ecstasy, 12 stamps also used in that process and a quantity of precursor chemicals used to make ecstasy. A search of the applicant's home at Caringbah located $24,000 in cash concealed in a tissue box and a plastic bag containing traces of cocaine. They also found 22 tablets of Theophylline in a motor vehicle used by the applicant. He was arrested during the search. At the Mosman unit investigators seized scales and a small plastic resealable bag containing 19 grams of methylamphetamine.
The evidence was that the ecstasy powder seized could make approximately 4 kilograms of pills at 20 per cent purity. This equates to a wholesale value of between $88,000 and $143,000 and at street level a value of between $222,000 and $440,000.
The sentencing judge concluded "On these facts it is not possible to determine the precise role of the offender in these two offences, other than to describe him as being the person who stored the drugs, which ... were to be made into ecstasy tablets."

THE APPLICANT'S SUBMISSION

The applicant submits the sentencing judge did not say she had taken the plea of guilty into consideration when passing sentence. That is an accurate assessment of her Honour's remarks on sentence although she began her remarks by stating "The offender, David Michael Kassis, pleaded guilty in the Local Court and maintained those pleas in this Court to two charges." Counsel on behalf of the applicant refers to the case of R v Thomson and Houlton(2000) 49 NSWLR 383 at [160] where Spigelman CJ said: "A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight."
It is accepted on behalf of the applicant that failure to quantify the discount or sometimes to mention the discount at all (see for example R v Lawrence[2005] NSWCCA 91) does not by itself establish error. The argument advanced here is that the sentence itself demonstrates that her Honour did not discount the sentence.

DETERMINATION

It is clear that the question of a discount was raised in the sentencing proceedings. The Crown stated in the sentencing proceedings: "I should note, your Honour, that the Crown accepts in relation to both matters we accept there is a 25% utilitarian discount on the plea of guilty."
In those circumstances it is difficult to conclude that a very experienced judge would have overlooked the significance of the plea of guilty and ignored the concession made by the Crown. Particularly is that so when it is accepted the sentence is within the broad range of an appropriate sentence for these offences.
In order to determine whether the discount, accepted to be 25 per cent, has been overlooked it is necessary to review the sentences imposed. The total sentence is one of 9 years, which might indicate a starting point of 12 years reduced by a 25 per cent discount. That 12 years has to be considered against a possible maximum penalty of life imprisonment for the second offence and a standard non-parole period of 15 years and also a maximum penalty of 15 years for the first offence. As between the two offences, there has been only a slight accumulation of 6 months.
Subjectively at the time of sentence he was 29 with no prior criminal history. He was educated to year 12 and then did a 4 year electrical trade apprenticeship and in each year was nominated for Australian Apprentice of the Year. He was a talented footballer who played for Australia in the under 21 team when aged 16. When he was 25 he was to be married but the wedding was called off when he discovered his partner was being unfaithful. At that stage he began using drugs and his life deteriorated. This might explain why he became involved in the drug traffic. On the other hand, the psychologist report and the Probation and Parole report were positive and indicated he understood the need to avoid drugs.
The facts of the case clearly indicate the offences relate to a significant amount of drugs worth a significant amount of money. It is clear the applicant was involved in the process of distributing the drugs into the community and he was in possession of a significant amount of money which he acknowledged was suspected proceeds of crime. There is a need for general deterrence to be reflected in the sentence for this criminality even in the case of a person aged 29 years of age with no prior criminal history. It is important that drug dealers understand there is a real price to pay if they are convicted. In view of the amount of drug involved in this case, I am not of the view that a starting point of 12 years as a total sentence was wrong. Accordingly, I believe the sentencing judge did in fact apply a 25 per cent discount to arrive at a total sentence of 9 years.
Another way of testing the proposition is to assume the judge forgot to apply a 25 per cent discount. The sentence would then become a head sentence of 9 years reduced to one of 6 years and 10 months with a non-parole period at a similar ratio as applied by the judge of just over 4 years. Such a sentence in my view would be manifestly inadequate for this offence. That also clearly indicates the judge did not neglect to discount the sentence for the plea in an appropriate manner.
At the end of the day no other less severe sentence than that imposed is warranted in law - see s 6(3) Criminal Appeal Act 1912.
I would grant leave to appeal but dismiss the appeal.
PRICE J: I agree with Blanch J.

Amendments 16 February 2016 - Publication restriction removed - judgment published 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: 16 February 2016

Kassis v R

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