Malouf v R

The applicant's personal circumstances

1. The applicant was born in 1973 and was aged 43 at the time of the offending.
2. He has a criminal history that commenced in the Children's Court in 1987 and has regularly appeared before the courts since that time. His prior offences include matters of dishonesty (including break and enters), driving matters, drug possession, and influencing a witness. He has served time in prison. The sentencing judge said that the record "does not entitle him to any particular leniency". [4]
3. The influence witness offence occurred in August - September 2014. On 28 September 2015, he received a sentence of imprisonment for 10 months, back-dated to 10 December 2014, the day of his arrest for the present matters. Although the facts relating to the offence were before her, which made it clear that it was an entirely distinct matter, her Honour declined to order any period of accumulation upon that sentence. This was generous to the applicant as the offence was no minor matter.
4. The applicant's subjective case entailed the provision of reports by Ms Marlené Headington, forensic psychologist, and Ms Ann-Marie De Santa Brigida, counselling psychologist. Ms Headington's report was prepared for the purposes of sentencing in relation to the influence witness offence and was based upon her assessment of the applicant on 8 September 2015. Ms De Santa Brigida's report was based upon her assessment of the applicant on 27 February 2016. The applicant did not give evidence and so the history summarised below is derived from the reports.
5. The applicant was from a supportive family of Lebanese heritage. He left school when he was expelled in Year 9. He became a bricklayer's labourer and at the age of 18 became a bricklayer. He continued in that employment until the age of 32. For six years, he worked on a self-employed basis and had employed three tradesmen. He ceased that work in 2005 when he was injured after sustaining gunshot wounds. He later worked for himself doing scrap metal collection and rubbish removal, and he employed two staff until 2009. He then began breeding and selling dogs on his family's property at Kemps Creek and continued to do so until his arrest.
6. The gunshot wounds the applicant received in 2005 resulted in a perforated bowel and injuries to his left thigh and biceps. He was left with nerve damage, weakness, and residual pain to his left arm.
7. The applicant told Ms Headington that he started smoking cannabis at age 16, but he told Ms Santa de Brigida it was at age 22. He continued using cannabis until his arrest, aside for a period of abstinence around the time of the shooting in 2005.
8. The applicant told Ms Headington that he first smoked methylamphetamine (ice) in 2002, when he used it every other day for a period of six months. In 2013, he returned to using ice two to three days per week, every other week. He told Ms Santa de Brigida that he had commenced using ice at the age of 41 (2013).
9. Both of the psychologists administered psychometric tests but the results varied. Ms Headington's testing revealed an overall intelligence level of "below average", with his verbal subtest falling in the "lower extreme range" and his non-verbal subtest falling in the "average" range. For both subtests, Ms Santa de Brigida's testing scored the applicant overall in the "lower extreme" range, with the verbal subtest scoring slightly higher than the non-verbal subtest. She became aware of the test administered six months earlier by her colleague; such testing is not supposed to be repeated within a two year period because of a "practice effect". However, given the result was poorer rather than better, the practice effect did not have any apparent influence on the result.
10. The applicant told Ms Headington that as a child, he suffered from Attention Deficit Hyperactivity Disorder (ADHD) as well as Post-Traumatic Stress Disorder (PTSD). She found no support for such diagnoses; rather, there were indications to the contrary. The applicant also told her that he thought he may have dementia and needed a "head scan", but she saw nothing to support this. She did find indications of Bipolar Disorder, Drug Dependence, and Delusional Disorder.
11. Ms Santa de Brigida was of the view the applicant met the criteria for Conduct Disorder - Adolescent-onset type, and PTSD. In relation to the applicant's claim that he always believed that he had ADHD, she said that ADHD was a diagnosis that could only be made by a psychiatrist once an individual reaches adulthood.
12. Ms Headington's testing indicated a "high-moderate range of reoffending". Ms Santa de Brigida administered a test that revealed the applicant was "in the moderate category for overall risk / needs assessment".
13. When giving evidence before the sentencing judge, both psychologists were asked to contrast the intellectual functioning they assessed with the applicant's apparent capacity to run small businesses with employees in the past and the manner in which he conducted his drug supply operation. They both explained that it was more a reflection of his adaptive functioning abilities. [5] In relation to the two psychologists' conflicting opinions on the assessment of whether Mr Malouf had PTSD, Ms Santa de Brigida explained that it was "very much two separate psychologists interviewing the same individual on different days, some months apart". [6] She also said that she would normally administer a test regarded as the "gold standard in trauma testing", but the applicant "was spent by the time I got to that". [7]

Ground 2 - error in findings as to the objective seriousness of the offences

1. It is appropriate to commence by discussing Ground 2, as it provides a clear basis for the applicant to succeed and for the Court to turn to a fresh assessment of the sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
2. One of a number of asserted errors in relation to the assessment of the objective seriousness of the offences raised by the applicant in respect of this ground is that the judge sentenced on a false understanding of the difference between the quantities involved in commercial supply and large commercial supply of methylamphetamine. This was a reference to the following passage in the sentencing remarks: [8] "These charges are rolled up charges in terms of the quantities of amphetamines and methylamphetamine supplied. The trafficable quantity of amphetamine is 3 grams, the indictable quantity is 5 grams and the commercial quantity is 250 grams and a large commercial quantity is one kilogram. His dealings with this particular drug resulted in a total amount supplied and/or available for supply, as I have said, in the order of 300 grams. The applicable quantities for methylamphetamine are, trafficable 3 grams, indictable 5 grams, commercial 250 grams and large commercial 500 grams. The total amount of methylamphetamine in this case is 366 grams. Those quantities speak for themselves. These offences are, as I have said, contrary to the provisions of s 25(2) of the Drug (Misuse and Trafficking) Act and offences which attract maximum penalties of 20 years imprisonment and standard non-parole periods of 10 years. Having regard to his level of involvement, supplying not only to the undercover operative but to others as well, the quantities involved and the amount of money changing hands, I find they are offences which fall at the mid-range of objective seriousness as envisaged by the legislature. I find his sole motivation was a desire to profit from his crimes. I will, however, depart from imposing the standard non-parole periods. This is the first time he has committed really serious crimes of this nature, he is, I accept, someone of lower than normal intellect and he has entered pleas of guilty." (Emphasis added)
3. The prescribed "large commercial quantity" for methylamphetamine in Schedule 1 of the Drug Misuse and Trafficking Act at the time of the sentence proceedings was 500 grams. However, at the time of the offending, it was 1 kilogram. The prescribed quantity had been reduced to 500 grams by cl 3 of the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015, taking effect from 1 September 2015.
4. The applicant contended that the incorrect reference to the large commercial quantity for methylamphetamine misled the sentencing judge in her assessment of the relative seriousness of that offence. The actual amount involved, 366.54g, was accepted to be clearly in excess of the commercial quantity of 250g, but it was considerably below the quantity prescribed as a large commercial quantity. In short, her Honour made an assessment of the relative seriousness of the offence on the basis that it was much closer to the large commercial quantity threshold than it actually was.
5. The Crown submitted that the judge was not making any comparison between the quantity involved and the various quantities prescribed in Schedule 1 of the Drug Misuse and Trafficking Act. It was accepted that she misstated the large commercial quantity for methylamphetamine, but it was submitted that did not influence her; "her Honour merely recited the amount as part of a list". [9]
6. At the hearing of the application, the Crown accepted that the question was whether the error was one that bears upon the exercise of the sentencing discretion. If so, the Court was required to re-exercise the sentencing discretion and form its own view of the appropriate sentence: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [68] (Bathurst CJ). This is necessary to fulfil the Court's function of determining if, in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW), "some other sentence, whether more or less severe is warranted in law and should have been passed".
7. The answer to the question to which I have just adverted must be answered in the affirmative. The judge was clearly making a comparison of the amount of drug involved in the applicant's offence with the commercial and large commercial quantity thresholds. This was a relevant matter to consider in assessing the relative seriousness of the offence. But there is a significant difference between the supply of a commercial quantity of a drug in an amount that is approximately 73% of a 500g large commercial quantity threshold and an amount that is approximately 37% of a 1kg large commercial quantity threshold.

Other asserted errors in relation to Ground 2

1. There is another error in the judge's assessment of the general seriousness of the applicant's offences. A little earlier in the sentencing remarks, her Honour said: [10] "He had a variety of drugs in his possession for the purpose of supply on the day of his arrest, namely amphetamines, methylamphetamine, cannabis and methandienone."
2. The fact is that the applicant was found in possession of methylamphetamine and cannabis leaf in quantities that were subsumed within the "rolled-up" charges for the supply of those drugs. The methylamphetamine was found to contain amphetamine, but to regard that drug also to be in possession for the purpose of supply is to double-count adversely to the applicant.
3. The methandienone was the subject of a possession offence under s 10(1) of the Drug Misuse and Trafficking Act, not a supply offence under s 25. Further, there was no evidence the applicant was supplying that drug and the amount was 13.23g, considerably less than the 500g prescribed as the traffickable quantity for which possession may be deemed to be for the purpose of supply under s 29 of the Act.
4. None of the other assertions of error in relation to Ground 2 have any merit. With respect, they entailed a selective approach to certain portions of the sentencing remarks without reading them as a whole. There was also inadequate regard to various concessions implicitly made by the applicant in agreeing to the statement of facts that was before the judge as well as the submissions made by counsel then appearing before her Honour.

Ground 1 - error in relation to the Form 1 offences

1. There is no merit in Ground 1 asserting that the judge failed to indicate for which offence she was taking the additional offences on the Form 1 into account, or that she failed to indicate how she took them into account. These assertions are unsustainable in the light of explicit statements by the judge that the submissions overlooked.

Ground 3 - error in relation to the applicant's cognitive ability

1. It was submitted that the judge should have taken the applicant's low level of intellectual functioning into account by moderating the emphasis given to general and specific deterrence and by having regard to a likelihood that his custodial experience would be more onerous. It is evident that the judge was alive to these considerations and her conclusions were ones that were open to be made.

Ground 4 - parity

1. Ground 4 raised a question of parity in relation to the sentencing of Joseph Azzopardi. There was no criticism of the sentencing judge in this respect because Mr Azzopardi had not been sentenced at the time the applicant was sentenced.
2. Mr Azzopardi was sentenced by her Honour Judge Sweeney on 31 October 2018 to an aggregate term of 5 years with a non-parole period of 3 years. His application for leave to appeal against sentence was heard separately by the Court, as presently constituted, on the same day as the applicant's application.
3. Parity is not a matter for this Court to consider on re-sentencing. Mr Azzopardi was not a co-offender of the applicant. He was not engaged in the same criminal enterprise as him. Generally, see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 and the discussion of the relevant principles in Henderson v R [2012] NSWCCA 65, particularly at [57]-[61] and Why v R [2017] NSWCCA 101 at [47]-[52].
4. The facts in relation to the applicant simply indicate that Mr Azzopardi was the person to whom the applicant turned whenever he wished to purchase amphetamine to meet the requirements of his customers. There is no suggestion that Mr Azzopardi otherwise had any involvement, or interest, in the applicant's business.
5. In fact, the agreed facts indicate that the applicant's business was established before he made any contact with Mr Azzopardi. The applicant's first supply of amphetamine (and cannabis leaf) to the undercover operative was on 10 October 2014. He had the amphetamine on hand in a refrigerator in his caravan. Three days later, the undercover operative contacted the applicant and they discussed the next supply. That evening, the applicant rang Azzopardi and introduced himself as "Mick with the dogs … Mick Malouf with the dogs in Kemps Creek". He told Azzopardi he had been given Azzopardi's number from a person identified as "Alex". Azzopardi ultimately supplied the applicant with the two ounces of amphetamine that the undercover operative had requested. There is no suggestion that Azzopardi was aware of any details as to how much, or to whom, the applicant was to supply the two ounces.
6. In any event, there were so many disparities between the basis upon which Mr Azzopardi was to be sentenced that no grievance in relation to the applicant's sentence could be justified. For example, he was not sentenced for any commercial supply offence; he was of prior good character; he had a major depressive disorder; and he was found to have excellent prospects of rehabilitation and be of a low risk of reoffending.

Ground 5 - manifest excess

1. Ground 5 was an assertion of manifest excess. It was contended that a sentence of 9 years and 9 months for the Sequence 20 offence involving the supply of methylamphetamine was "generally outside the range" having regard to sentencing statistics and what were claimed to be comparative cases.
2. There were a number of flaws in the applicant's reliance upon a comparison with sentencing statistics. The statistics were not actually provided to the Court. Those quoted in the written submissions were not the latest iteration. More significantly, they sought to compare the reduced sentences imposed upon offenders who had pleaded guilty (the vast majority) with the assumed "starting point" of the applicant's longest sentence before the reduction for his plea.
3. No submissions were made about the purportedly "comparative cases". The written submissions simply annexed a very large selection of cases downloaded from the NSW Public Defenders' website with no indication as to which of the multitude of cases were said to be "comparable", or why.

Re-sentencing

1. No further evidence was tendered in this Court for re-sentencing purposes.

Objective seriousness of the offences

1. There is little to distinguish between the applicant's offending in relation to the methylamphetamine and amphetamine supply offences.
2. The methylamphetamine offence involved supplies to the undercover operative of 138.9g (15.5% purity) on 18 November 2014 and 82g (14% purity) on 3 December 2014. In addition, there was the 145.6g (2% purity) found at the applicant's home on 10 December 2014. Thus, over a period of about three weeks, the applicant supplied, or possessed for the purpose of supply, a total amount of 366.54g.
3. The amphetamine offence involved supplies to the undercover operative of 45.2g on 10 October 2014, 69g on 15 October 2014, 61.49g on 22 October 2014, 103g (76.9g at 11% purity and 26.1g at 4.5% purity) on 7 November 2014 and 27g (5% purity) on 3 December 2014. Thus, over a period of about 4 weeks and then on another day, the applicant supplied a total amount of 305.69g.
4. There was no evidence as to the usual range of purity of these drugs at either wholesale or retail level, but it may be assumed that these drugs were towards the lower end of the range.
5. In the court below, the applicant's counsel conceded that, "this was clearly for financial gain". [11] His submission that the applicant was not leading an extravagant lifestyle may be accepted. It can be inferred, however, that drug supplying at least assisted him in (a) paying off $40,000 in three months for his caravan, (b) acquiring expensive cars and motor cycles, (c) "propping up" his dog breeding business, [12] and (d) funding his own use of illicit substances.
6. My assessment of the objective seriousness of each of these supply offences is that they are just below the middle of the range.
7. Given the range of weapons that might be encountered in an offence against s 7(1) of the Weapons Prohibition Act, the possession of knuckle dusters offence is at the lower end of the range. The drug premises offence contrary to s 36Y(1)(a) of the Drug Misuse and Trafficking Act is also at the lower end of the range. Although somewhat sophisticated in that CCTV cameras were installed, the reality is that the drug premises in question was a caravan in which the applicant was living in a semi-rural, as opposed to urban, location.

Consideration of subjective matters

1. The applicant's subjective case is dominated by the issue of the conflicting assessments of the psychologists. It may be accepted that the applicant has the disadvantage of an intellectual capacity at the lower end of the range, but he has managed to adapt well during his adulthood as a functioning member of the community. It is notable that he not only managed to maintain consistent employment, but he was able to operate businesses and employ staff. His drug dealing activities described in the agreed facts demonstrate his resourcefulness and his capacity to plan and adapt as the circumstances required. It is little wonder that counsel said to the sentencing judge that he could not submit that the applicant's "level of intelligence really has had an effect on his decision making to do what he did". [13]
2. I have found it impossible to resolve the conflicting opinions as to whether the applicant should properly be diagnosed with the various conditions the experts discussed. Assuming it is correct that one or more of such conditions did apply, the evidence does not indicate that any of them had any particular bearing upon the applicant's offending behaviour, or on his prospects of rehabilitation. There is certainly no suggestion that the applicant was led or manipulated by others in relation to his offending. To the contrary, he appears to have been the master of his own enterprise and the agreed facts are to the effect that it was ongoing over a significant period. Put another way, this was no one-off aberration that might be attributable to some shortcoming in intellectual or mental capacity.
3. There was no real conflict between the psychologists as to whether the applicant's low level of intelligence might render his custodial experience more onerous. Ms Headington said in her evidence that such a person might be more open to exploitation or manipulation by other inmates, but on the other hand, such people often function well in an environment that is structured and rigid. [14] Ms Santa de Brigida said that such persons would have a more difficult time in the prison system and she agreed that such persons would be open to manipulation by other inmates. [15] These opinions were expressed in general terms, and neither Ms Headington nor Ms Santa de Brigida said to what extent this would apply to the applicant. His resourcefulness in the community would tend to suggest that he would not be appreciably disadvantaged in the prison environment. No evidence was tendered in the District Court, or this Court, to suggest that he has been.
4. There is no evidence of the applicant being remorseful for his offending. The bald statement in the report of Ms Santa de Brigida that "Mr Malouf expressed remorse for the offending behaviour" falls a long way short of satisfying the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act for this mitigating factor to be established on the balance of probabilities. It is unsurprising that the applicant's counsel made no such submission in the court below, and likewise it was not submitted in this Court that the sentencing judge erred by not finding that the applicant was remorseful.
5. Favourable findings for the applicant as to his prospects of rehabilitation and unlikelihood of reoffending are similarly not possible. [16] The psychologists suggest that he poses at least a moderate risk of re-offending. The sentencing judge declined to make a finding on these matters in the applicant's favour and there is no criticism of her for that.
6. The applicant's pleas of guilty, which were entered in the Local Court on 25 November 2015, had a utilitarian value that was rewarded with a 25% reduction of sentence in the court below. That should be maintained.

Important purposes of sentencing

1. General deterrence and the protection of the community are important aspects of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. They are particularly pertinent in relation to drug supply offences for the reasons explained in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [109]-[110]. Personal deterrence is also of some importance, given the less than completely favourable assessment of the psychologists as to the applicant's prospects of re-offending.

Taking into account the Form 1 offences

1. The applicant requested that three further offences be taken into account in the assessment of sentence for the Sequence 20 offence (methylamphetamine). Two of the offences are relatively minor but the offence of supplying a commercial quantity of cannabis leaf is certainly not. It calls for a significantly greater emphasis upon retribution and, to some extent, personal deterrence, in accordance with Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23] (Bathurst CJ). The sentence for Sequence 20 will be increased from what it otherwise might have been on that account.

Conclusion

1. I propose there be an aggregate sentence.
2. The appropriate individual sentences that should otherwise be imposed are: Sequence 20 (supply commercial quantity of methylamphetamine): 10 years, 6 months reduced by 25% to 7 years, 10 months. The non-parole period would be 5 years, 10 months. Sequence 17 (supply commercial quantity of amphetamine): 9 years reduced by 25% to 6 years, 9 months. The non-parole period would be 5 years. Sequence 15 (possess weapons): 4 months reduced by 25% to 3 months. Sequence 19 (conduct drug premises): 4 months reduced by 25% to 3 months.
3. In consideration of the principle of totality, it was submitted by the applicant's counsel in the court below that the offences were "one episode of criminality". The two supply offences were "closely wrapped" in that the undercover operative was asking for amphetamine and the applicant thought he was supplying amphetamine. Unbeknown to both of them, some of the supplies were of methylamphetamine.
4. The consequence of this is that the applicant was charged with separate offences. If all of the supplies had involved the drug he thought it was, he would have been facing a charge of supplying amphetamine over a two-month period in an aggregate amount of about 670 grams. On any view of it, this would have been significantly more serious than the two offences considered individually. Some measure of partial accumulation is appropriate to reflect the totality of criminality. The Sequence 15 and 19 offences pale in comparison and their sentences can be subsumed by the others.
5. The sentencing judge declined to find that there were special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period. I am of the same view. There is nothing sufficiently "special" about the matters relied upon in the District Court. They were not considerations over and above those factored into the assessment of the overall sentence: R v Fidow [2004] NSWCCA 172 at [18], [22] (Spigelman CJ). There will be a sufficient potential period of supervised parole under the sentence I propose.

Orders

1. I propose the following orders: 1. Extend the time for filing the Notice of Application for Leave to Appeal to 30 April 2019. 2. Grant leave to appeal and allow the appeal. 3. Quash the sentences imposed in the District Court on 19 August 2016 and, in lieu, impose an aggregate sentence of imprisonment for 8 years, 9 months with a non-parole period of 6 years, 6 months. The sentence is to date from 10 December 2014. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 9 June 2021.

Endnotes

1. Criminal Procedure Act, s 268 and Sch 1, Table 2, cl 8.
2. Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 3
3. Proceedings on sentence (POS), 20 May 2016, p 4(10).
4. Remarks on Sentence (ROS), 19 August 2016, p 43.
5. POS, p 10(39) (Ms Headington) and pp 14(32) and 17(41) (Ms Santa de Brigida).
6. POS, p 16(32).
7. POS, p 17(49).
8. ROS, pp 45-46.
9. Crown's written submissions, 17 October 2019, at pars 138, 141-143.
10. ROS, p 42.
11. POS, p 20(28).
12. As his former counsel put it: POS, p 20(39).
13. POS, p 22(22).
14. POS, p 12(21).
15. POS, p 16(11).
16. Crimes (Sentencing Procedure) Act, s 21A(3)(g) and (h). 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: 20 December 2019