Kneifati v The Queen; Taha v The Queen [2012] VSCA 124

CRIMINAL LAW - Appeal - Sentence - Trafficking commercial quantity of MDMA -Parity with co-offenders - Whether 'somewhat lesser role' adequately reflected in sentence - Extremely serious offence - Differentiation reasonably open to sentencing judge - Appeal dismissed

WORDS AND PHRASES - 'Shorter than usual' non-parole period - Unhelpful and apt to mislead.

1 Walid Kneifati and Youssef Taha are cousins. They are both aged 37. Together with more than a dozen other people, including Tan Arslan, they were involved in a substantial drug trafficking operation.

2 The three pleaded guilty to various offences and were sentenced by the same judge - on different dates[1] and after separate pleas in mitigation - as summarised in the following table:

3 Kneifati's appeal concerns his non-parole period of 5 years and 9 months. Taha's application for leave to appeal raises the question of parity as between himself, Kneifati and Arslan.

4 In July 2007 a police investigation identified a syndicate involved in the trafficking of large quantities of MDMA (ecstasy), cocaine, methylamphetamine and cannabis. Intercepted telephone calls revealed that Arslan was purchasing cocaine and MDMA from Kneifati, and that Taha was involved with Kneifati in supplying MDMA to Arslan.

5 As to Kneifati's offending, the cocaine trafficking covered the period from 5 December 2007 to 10 April 2008. In a series of transactions over that period, Kneifati delivered to Arslan a total of approximately 420 grams of cocaine, which was not far below the commercial quantity of 500 grams.

6 As to the trafficking of a large commercial quantity of MDMA, the counts against Kneifati and Taha (on different presentments) were framed differently. The count against Kneifati covered the period from 5 March to 10 April 2008. That period comprehended a successful transaction on 25 March, an unsuccessful transaction on 10 April, and Kneifati's efforts to source the MDMA in a period of some three weeks before the 25 March transaction. As to Taha, the count covered the period from 25 March to 10 April 2008. That was, in effect, the successful transaction on 25 March and the unsuccessful transaction on 10 April.

7 As will appear, all three co-offenders were actively involved in both the 25 March and 10 April dealings. The count against Arslan of trafficking a large commercial quantity of MDMA included two other components, neither of which involved either Taha or Kneifati.

8 On 5 March 2008, Arslan asked Kneifati to get a price for ecstasy tablets, indicating that he wanted between 10,000 and 30,000 tablets. Kneifati quoted $11.50 per tablet. Arslan said that was too expensive and he would go elsewhere. On 12 March, a police informer and two undercover police ordered ecstasy tablets from Arslan. Arslan contacted Kneifati again and ultimately ordered 5,000 tablets from Kneifati. The deal fell through, however, as Kneifati's supplier could not deliver the tablets. Shortly after, Kneifati told Arslan that there were 7,000 to 8,000 tablets available in Canberra. Arslan told Kneifati to get them.

9 At this point, Taha became involved. Kneifati and Taha contacted their sources in Canberra. On 25 March 2008 two men from Canberra drove to Taha's house with 7,000 ecstasy tablets. Taha and the two men then went to meet the police informer, the two undercover police, and Arslan. Arslan exchanged a bucket of 7,006 tablets for $94,500 in cash. Kneifati and Taha had dinner with the Canberra suppliers, during which Arslan met with Kneifati to pay cash for the tablets. Kneifati later paid Taha, before Taha drove the Canberra suppliers back to his house. The tablets in the 25 March transaction were found to weigh 2,088.6 grams and contained MDMA of 35 per cent purity. That was just over two times the weight which constitutes a large commercial quantity of MDMA.

10 On 4 April the police informer told Arslan that the undercover police officers wanted 10,000 ecstasy tablets. Arslan placed an order with Kneifati. Kneifati then phoned Taha and placed an order for 10,000 tablets. Kneifati and Taha ultimately drove to Canberra together to source the tablets, but were unable to obtain them. Further discussions ensued between Kneifati and Arslan as to how to source the tablets, and Kneifati made contact with another party who indicated that he could supply the tablets. Kneifati told Arslan, who in turn told the police informer, that the initial supply would be 5,000 tablets with the remainder later.

11 On 10 April, Arslan arranged to meet the police informer and Kneifati separately. Kneifati and Taha ultimately went to meet with Arslan and some other men. Arslan then met with the police informer and one of the undercover officers, telling them that 5,000 tablets were available. The deal fell through, however, because the undercover officer was not prepared to hand over money without seeing the tablets and Arslan became suspicious that police were involved. Shortly after, Kneifati, Taha and Arslan were arrested. At Kneifati's house, police located eight MDMA tablets (2.2 grams in total), 0.8 grams of cocaine, and a total of 0.9 grams of methylamphetamine. The latter was the basis of the third count against Kneifati, namely, possession of methylamphetamine, which the judge accepted was for personal use.

12 As noted earlier, one count was common to all three co-offenders, that of trafficking a large commercial quantity of MDMA. Whereas the counts against Kneifati and Taha were limited to relatively short periods in March - April 2008, the count against Arslan covered an eight-and-a-half month period, between July 2007 and April 2008. In addition to the 25 March and 10 April dealings, there were two other 'components', described by the sentencing judge as follows.

13 The first component involved Ahmad Niazi, a person with whom Arslan dealt in drugs. Arslan and Niazi purchased a large quantity of what they believed were ecstasy tablets from Sydney, and attempted to sell them. They soon recognised that they were 'low quality' tablets, but they did manage to sell some. Five thousand tablets were sold for $5 each.

14 When Niazi was arrested on 10 April 2008, police located about 21,000 tablets in his laundry. When analysed, however, the tablets were found not to contain any MDMA or any other drug of dependence. Instead, they contained benzylpiperauzine, which is listed as a Schedule 9 poison in the Drugs, Poisons and Controlled Substances Act 1981. It was alleged that Arslan, together with Niazi, had offered the tablets for sale as ecstasy tablets.

15 The second component concerned Arslan's having provided to his brother some yellow powder to be used in the production of ecstasy tablets. On 15 February 2008, he enquired when the tablets would be ready and told his brother that he had a customer ready to buy them. Police quickly arrested those who were helping with the production. They were found to be in possession of a large quantity of yellow powder. It contained some MDMA but its purity was not determined.

16 As the judge noted, the third component - which included both the 25 March and 10 April dealings - concerned trafficking in ecstasy tablets 'of a much higher level of purity'.

17 Kneifati was granted leave to appeal against sentence on the grounds that the sentencing judge erred:

(a) in failing to give effect to his intention of fixing a non-parole period that was shorter than usual; and

(b) in fixing a non-parole period that was disproportionately high and manifestly excessive in view of the factors in mitigation, including the findings as to the appellant's efforts at and prospects of rehabilitation, the effects of delay, his lack of prior convictions, his early pleas of guilty and his remorse.

18 As to the first part of the ground, counsel referred to a discussion on the second day of the plea hearing, where the judge had suggested to the prosecutor that Kneifati's 'proven rehabilitation over an extended period ... would normally justify a longer than usual period of potential supervision pursuant to parole'. It was submitted that, while the prosecutor agreed with the judge's comment, he led the judge astray by suggesting that a non-parole period set at two-thirds of the total effective sentence was at the lower end. It was further submitted that this impression was not corrected by defence counsel on the plea.

19 Counsel submitted, in essence, that the judge imposed a non-parole period of 67.6 per cent of the total effective sentence because he mistakenly believed that a 'shorter than usual' non-parole period was of that order. Accepting that there was no single correct non-parole period, counsel submitted that in the present case a 'shorter than usual' non-parole period ought to have been less than 60 per cent of the head sentence, thus equating to a non-parole period substantially less than that imposed.

20 As to the second part of the ground, counsel submitted that the non-parole period was manifestly excessive, having regard to the numerous mitigating factors, all of which were accepted by the judge, as follows:

(a) the guilty plea at the earliest opportunity;

(b) genuine remorse;

(c) no prior convictions;

(d) the fact that the delay of two and a half years (because of the complexity of the investigation) caused Kneifati anxiety and depression in the sense that the prospect of a prison sentence hung over him for that period;

(e) Kneifati's solid work history since his release on bail;

(f) Kneifati remained drug free, as evidenced by urine screens over a two and a half year period;

(g) positive findings as to rehabilitation prospects; and

(h) Kneifati's inability to continue as carer for his parents would weigh heavily on him in prison.

21 The starting-point is that the judge's intention is to be found in the sentencing remarks, rather than in statements he made during the plea.[2] The judge observed during the plea that Kneifati's 'proven rehabilitation over an extended period ... would normally justify a longer than usual period of potential supervision pursuant to parole'. In his sentencing remarks, however, the judge referred merely to tailoring the sentence to allow for 'an extended period' on parole, rather than a 'longer than usual period'.

22 The identification of that period lay in the judge's discretion as part of the sentencing process. In our view, it cannot be said that the non-parole period fixed, which provides for a period of up to 2 years and 9 months on parole, fails to give effect to the judge's stated intention of allowing for an extended period on parole, let alone that that period was not open to be fixed.

23 Further, even if it be accepted that the judge intended to impose a 'longer than usual' period on parole, it does not follow that the non-parole period fixed failed to reflect such an intention. The inherent vice in the appellant's argument is that it assumes that there is a 'usual' or 'normal' ratio between a non-parole period and a head sentence, such that a non-parole period not falling within the 'normal range' bespeaks error.

24 As this Court has repeatedly stated, there is no 'usual' or 'normal' ratio between the non-parole period and the head sentence.[3] Apart from the requirement that a non-parole period be at least six months less than the head sentence,[4] the length of a non-parole period lies within the judge's discretion, having regard to all relevant matters. The issue to be considered on appeal is whether, in all the circumstances, the non-parole period is capable of reasonable explanation.[5]

The non-parole period is the period which justice requires that a prisoner must serve having regard to all the circumstances of his offence before there can be mitigation of punishment in favour of his rehabilitation through conditional freedom. No mechanistic or formulaic approach is, in my view, to be taken to the fixing or reviewing of a non-parole period.

26 More recently, in Hili v The Queen[7] the High Court said:[8]

... there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order.

...

It is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge should determine the length of sentence to be served before a recognisance release order takes effect by reference to, and application of, the principles identified by this Court in Power v The Queen,[9] Deakin v The Queen[10] and Bugmy v The Queen.[11]

27 Much of the difficulty arises from the use of phrases such as 'shorter than usual' and 'longer than usual'. As there is no 'normal' or 'usual' non-parole period, each case turning on its own facts, such phrases are at best unhelpful and at worst apt to mislead. In our view, sentencing judges and counsel should avoid using such phrases. By contrast, there is no difficulty in stating that a non-parole period is or should be 'shorter than it otherwise might have been', for example, because of the offender's rehabilitation prospects and any other relevant matters informing the fixing of the minimum term of imprisonment which justice requires in the circumstances.[12]

28 Further, we reject the submission that the prosecutor misled the judge into thinking that the non-parole period should be at least two-thirds of the head sentence. As the transcript shows, the prosecutor specifically referred the judge to cases where a non-parole period much shorter than two-thirds had been imposed.

29 In our view, there is no reason to suppose that the judge was unaware of the correct position, namely, that the length of the non-parole period was a matter lying within his discretion, giving appropriate weight to all relevant factors including the particular emphasis on rehabilitation, but also recognising the need for the minimum term to properly reflect other considerations such as general deterrence and just punishment. It is to be noted that the non-parole period imposed was below the figure of 6 to 8 years suggested by the Crown on the plea, whereas the head sentence fell within the Crown range of 8 to 11 years. In that sense, it appears that his Honour did moderate the non-parole period on account of the various mitigating factors.

30 As to the complaint of manifest excess, the judge's sentencing remarks indicate that he had regard to all relevant matters and balanced them in an appropriate way. The judge was plainly impressed with the appellant's rehabilitation prospects, early plea, remorse and lack of priors, the effect of the delay, and the other mitigating factors to which he referred. As against that, however, his Honour correctly recognised that the objective gravity of the offending was substantial. The judge specifically rejected defence counsel's submission that Kneifati played a comparatively minimal role as a messenger, instead finding that Kneifati was a 'trusted lieutenant working hand in glove with Arslan'. That finding was well open on the evidence. Regarding all relevant matters, in our view the non-parole period imposed was well within the range of a sound discretionary judgment.

32 Taha seeks leave to appeal on the ground that the individual terms of imprisonment respectively imposed upon Taha, Kneifati, and Arslan on the count of trafficking in a large commercial quantity of MDMA:

(a) disclose insufficient disparity; and

(b) are such as to engender in Taha a justifiable sense of grievance.

33 Counsel submitted, in essence, that Taha had a significantly lesser role in the trafficking of MDMA than either Kneifati or Arslan, yet that lesser role was not sufficiently reflected in his sentence of 6 years and 8 months as compared to the sentence of 7 years imposed on each of Kneifati and Arslan on their respective MDMA counts. Counsel emphasised the following two factors as significantly diminishing Taha's criminality:

(a) the duration of the offending - Taha's offending comprised only one completed transaction (25 March) and one incomplete transaction (10 April). In comparison, Kneifati had offended for three weeks before Taha became involved. As against Arslan, the position was even more stark, as Arslan had offended over a period of more than eight months between July 2007 and April 2008; and

(b) Taha's sole count represented the entirety of his offending, whereas both Kneifati and Arslan pleaded guilty to other serious drug offences which extended over many months.

34 Counsel submitted that, in the light of each co-offender's respective role and degree of criminality and his relevant personal matters, Taha's sentence offended the parity principle.

35 The parity principle has recently been described as giving expression to the notion of equal justice.[13] In Wong v The Queen[14] Gaudron, Gummow and Hayne JJ said:

Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. [15]

36 In Green v The Queen[16] it was observed that 'the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.'[17] Indeed, the Court will not intervene where disparity in the sentences is justified by relevant differences between the offenders and their roles.[18] If it was reasonably open to the sentencing judge, on the material before the Court, to differentiate - or fail to differentiate - between the co-offenders in the way he/she did, there is no warrant for appellate intervention.[19] In assessing this ground, therefore, it is necessary to 'have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders'.[20]

37 As to the question of parity as between Taha and Kneifati, the judge accepted Taha's submission on the plea that he had a lesser role than Kneifati. The judge found that, in respect of the sale on 25 March, Kneifati and Arslan had discussed the proposed deal and independently tried to source large quantities of ecstasy tablets before Taha became involved. Indeed, by his plea, Kneifati admitted trafficking ecstasy from 5 March. The judge concluded that, as the transaction was 'well under way' before Taha became involved, Taha's sentence must reflect his 'somewhat lesser role'.

38 The fact remains, however, that once Taha became involved he played an important part in the 25 March transaction. In those circumstances, any moderation on account of Taha's lesser involvement would necessarily be limited. As to the 10 April transaction, the judge made a finding that there was less basis to distinguish the roles of Kneifati and Taha. In our view, this finding was open on the evidence. Both drove to Canberra to source the ecstasy and, while it was Kneifati who communicated directly with Arslan, Taha was an energetic and active co-participant.

39 Further, whereas Kneifati indicated his intention to plead guilty at the earliest opportunity, Taha only did so on the eve of his trial. That was a matter of significant weight in Kneifati's favour. As to the other matters relevant to sentence, on balance the judge made findings equally positive as to both Kneifati and Taha.

40 In our view, having regard to all the matters referred to above, the sentencing relativities between Taha and Kneifati were within the range reasonably open to the judge.

41 We have reached the same conclusion in relation to the sentencing relativities between Taha and Arslan. That is, when all relevant matters are considered, we are not persuaded that the proper exercise of the sentencing discretion required that there be a greater differential between them.

42 The offence in question - traffick a large commercial quantity of a drug of dependence - is an extremely serious one. So much is apparent from the fact that Parliament has fixed a maximum penalty of life imprisonment. In a quantity-based sentencing regime, as this is,[21] the quantity trafficked will ordinarily be of much greater significance than the period over which it is trafficked or the number of transactions which constitute the trafficking.

43 Although Arslan's trafficking of MDMA included additional 'components' which did not involve Taha, by far the most serious component was that in which all three were involved, namely, the 25 March and 10 April dealings. As noted earlier, the tablets in the 25 March transaction weighed more than 2 kilograms, that is, more than twice the weight which constitutes a large commercial quantity of MDMA. They contained MDMA of 35 per cent purity.

44 The additional components - involving tablets which contained no MDMA at all, and a powder which contained some MDMA of unknown purity - were insignificant by comparison. Given the objective gravity of the offending represented by the common count, it was open to the judge to view the respective offending of Taha and Arslan as more closely comparable than Arslan's longer period of offending and additional 'components' might otherwise have indicated.

45 Like Kneifati, and unlike Taha, Arslan had indicated his intention to plead guilty at the earliest opportunity. Quite rightly, the judge viewed this as a 'powerful' mitigatory factor, given that the pleas had 'considerable utilitarian benefits' and were reflective of remorse. Like Taha and Kneifati, Arslan was a first offender and had good prospects of rehabilitation.

46 We would refuse Taha's application for leave to appeal.

[1] Kneifati on 8 September 2010, Arslan on 10 December 2010, and Taha on 30 May 2011.

[2] Rogan v The Queen [2011] VSCA 66, [9] (Bongiorno JA). See also Johnson v The Queen [2011] VSCA 360, [23] (Warren CJ); British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283, 305 [44]-[45] (French CJ); AJH Lawyers Pty Ltd v Careri [2011] VSCA 425, [33]-[34] and [44] (Warren CJ).

[3] R v DeMarco [1999] VSCA 69, [36]; R v Ng [2009] VSCA 218, [28]; Green v The Queen [2011] VSCA 236, [17]; Felicite v The Queen [2011] VSCA 274, [38]-[40]; Wallace v The Queen [2012} VSCA 114, [2].

[4] Sentencing Act 1991 (Vic), s 11.

[5] The Queen v Merritt [2008] VSCA 238, [24]; The Queen v Sotto [2009] VSCA 70, [27]-[28].

[6] [1998] VSCA 32; (1998) 7 VR 693, 700 [22].

[7] [2010] HCA 45; (2010) 242 CLR 520.

[9] [1974] HCA 26; (1974) 131 CLR 623.

[10] [1984] HCA 31; (1984) 58 ALJR 367.

[11] [1990] HCA 18; (1990) 169 CLR 525.

[12] See also Wallace v The Queen [2012] VSCA 114, [16].

[13] Green v The Queen [2011] HCA 49; (2011) 283 ALR 1, 10 [28] (French CJ, Crennan and Kiefel JJ).

[14] [2001] HCA 64; (2001) 207 CLR 584.

[16] [2011] HCA 49; (2011) 283 ALR 1.

[19] Teng v The Queen [2009] VSCA 148; (2009) 22 VR 706, 710 [17].

[20] Green v The Queen [2011] HCA 49; (2011) 283 ALR 1, 11 [32].

[21] R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269.