Maroun Younes v R

Court of Criminal Appeal (NSW)|2012-09-26|Before: McClellan CJ, Hidden J, Adamson J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2HIDDEN J: I agree with Adamson J. The principal complaint was what was said to be the failure of the sentencing judge adequately to reflect the finding of special circumstances in the aggregate sentence. It would have been open to his Honour to have preserved the proportion of 65% between total sentence and effective non-parole period, which would have extended the period of parole eligibility by a few months. However, it cannot be said that his Honour fell into error in declining to do so. It is clear enough that the proportion at which he arrived was what he intended, and that the effect of accumulation was not overlooked. 3ADAMSON J:

The proceedings 4This is an application for leave to appeal the sentence imposed upon Maron Younes, the applicant, by Colefax DCJ in the District Court of NSW. The applicant pleaded guilty to two offences of supplying a prohibited drug on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. 5Between 3 September 2009 and 27 October 2009 the applicant supplied cocaine for financial reward on 58 occasions. The total amount supplied was 26.1 grams and the median weight on each occasion was 0.45 grams. In addition, his Honour certified a Form 1 in connection with the first supply offence. The Form 1 contained two admitted offences: one of possessing a restricted substance (30 Xanax tablets) and the second of supplying a prohibited drug (6.24 grams of cocaine). 6In the period 2 September 2009 to 3 October 2009, the applicant supplied methamphetamine on six occasions. The total amount involved was 3 grams and the median weight on each occasion was 0.5 grams. 7The offender was on parole in respect of four offences of possession of firearms when he was arrested on 29 October 2009 for the index offences. Parole was revoked on 27 November 2009 and he remained in custody thereafter. His Honour was informed at the sentence hearing that the term of imprisonment for the previous offences in respect of which he had been on parole expired on 29 September 2010. Apparently this was erroneous since the term actually expired on 19 October 2010. However, nothing turns on this. 8The sentences for both offences were structured as follows, with the individual sentences being accumulated by 6 months. Offence Sentence Period Supplying methylamphetamine September-October 2009 Term 30 Sept 2010- 13 November 2011 1 year, 1 month, 15 days Non-parole period 30 Sept 2010- 1 June 2011 8 months, 3 days Supplying cocaine Term 30 March 2011-29 March 2014 September-October 2009 3 years Non-parole period 30 March 2011-16 January 2013 1 year, 8 months, 18 days Cumulative Term 30 September 2010- 29 March 2014 3 years, 5 months, 29 days Non-parole period 30 September 2010- 16 January 2013 2 years, 3 months, 17 days

9When one has regard to the index offences, the proportion between the non-parole period and the total term is in the order of 65%. 10However, when one takes account of the fact that the applicant was on parole when arrested for the index offences, following which his parole was revoked, the proportion between the effective non-parole period and the total term becomes 73%, since the applicant was in fact incarcerated from 29 October 2009, rather than from 30 September 2010. The applicant submitted that this circumstance effectively added 11 months and one day to the custodial portion of his sentence for the index offences. 11On 16 August 2011, the applicant applied for leave to appeal against the sentence on the basis that the sentencing judge had failed properly to consider the issue of special circumstances in the context of the breach of parole which had led to his incarceration following his arrest until the time at which the sentences were taken to have commenced.

Applicant's submissions on sentence before the sentencing judge 12The applicant submitted to the sentencing judge that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (the Act) such as would warrant the balance of the term of the sentence exceeding one-third of the non-parole period. 13At the time the sentencing judge imposed the sentence, s 44(1) - s 44(3) of the Act provided: "(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (3) The failure of a court to comply with subsection (2) does not invalidate the sentence." 14The applicant submitted to the sentencing judge that a finding of special circumstances was warranted. The sentencing judge referred to the applicant's submission, which he accepted, in the following passage in the Remarks on Sentence: "The offender submits that it is appropriate that special circumstances be found, notwithstanding that this is not a first offence, nor that he is a relatively young person, nor even because it will not be his first time in prison, but rather because the prospects for rehabilitation would be significantly enhanced by a longer period on parole. In the circumstances I have set out, I accept that submission, and find special circumstances."

Remarks on sentence 15In the remarks on sentence, the sentencing judge referred to the following matters which indicated his awareness of the period of incarceration: (1)The applicant was arrested on 29 October 2009; (2)The applicant had been in custody since that time; (3)The applicant had been on parole for a firearms offence, but that the parole had been revoked upon his arrest for the index offences; (4)The term of imprisonment in relation to the firearms offence expired on 29 September 2010; (5)The applicant had been in custody solely in relation to the index offences since 30 September 2010. 16Furthermore the sentencing judge addressed the applicant's prospects of rehabilitation and considered them to be reasonable, notwithstanding that the index offences had been committed while he was on parole. His Honour also accepted the applicant's expressions of remorse.

The appeal 17The applicant sought leave to appeal on two grounds, which will be considered in turn.

Ground 1: the accumulation of sentences does not give practical effect to his Honour's finding of special circumstances 18The applicant argued that it ought be assumed that the sentencing judge intended to give some meaningful effect to his finding of special circumstances. He argued that it ought be inferred that the sentencing judge inadvertently disregarded the effect of the revocation of parole on the period of custody when imposing the sentence. 19In the instant case, the sentencing judge decreased the ratio to 65%, if attention is confined to the sentence for the index offences, which commenced on 30 September 2010, when the term of the prior offence, in respect of which parole was revoked, expired. 20However, if one adds to the non-parole period for the index offences the period of 11 months and one day spent in custody following the applicant's arrest, the ratio between the total period in custody and the total term increases to 73%. The applicant submitted that a reduction from 75% to 73% was an indication of error since it deprived the finding of special circumstances of any real practical effect. He contended that the sentencing judge ought to have regard to the whole period of incarceration and that the margin between 73% and 75% is such as to suggest that the sentencing judge did not have sufficiently in mind the period of incarceration prior to 30 September 2010, which, though related to an earlier offence, was consequent upon his arrest for the commission of the index offences. 21Where special circumstances are found, as they were in the instant case, the sentencing judge may decrease the ratio between the non-parole period and the total term below 75%. Indeed this is the only purpose of a finding of special circumstances. 22The sentencing judge was undoubtedly aware of the period of incarceration prior to the commencement of the sentence which his Honour imposed, and the reasons for it. His Honour was entitled to consider that the applicant's return to custody upon breach of parole for a previous and unrelated offence was not a matter that need necessarily affect the determination of appropriate sentences for the index offences. 23Indeed, at the sentence hearing the applicant specifically drew the sentencing judge's attention to Callaghan v R [2006] NSWCCA 111 in support of the proposition that, where parole in respect of an earlier offence is revoked, the sentencing judge has a discretion whether to backdate the sentence to take into account the period spent in custody following arrest or revocation of parole. The applicant urged upon the sentencing judge that the sentence ought be backdated to the time of his arrest for the index offences. 24It is apparent from the Remarks on Sentence that the sentencing judge rejected the applicant's submission since his Honour determined that the sentence for the index offences ought commence from the date at which the term for the previous offences expired. This determination is not only consistent with an appreciation of the prior period of custody, but also indicates that the sentencing judge considered it appropriate that the sentence for the index offences be separate from, and unaffected by, the sentence for the firearm offences. No criticism could, in my view, reasonably be made of the sentencing judge's exercise of discretion. 25Once it is accepted that the sentencing judge considered it appropriate that the sentence for the index offences stand alone from the sentence for the previous firearm offences, there is no error in the sentencing judge's assessment that the ratio between the non-parole period and the total term of the sentence for the index offences ought be reduced from 75% to 65% to take into account his Honour's finding of special circumstances. 26Furthermore no inference can be drawn from the fact that the sentencing judge did not perform a calculation to ascertain what proportion the sum of the non-parole period and the period spent in custody following his arrest bore to the total term of the sentence, taking into account the time in custody following his arrest. Such a calculation would be irrelevant, once the sentencing judge had decided to let the sentence for the previous offences expire before commencing the sentence for the index offences. Nor is such a calculation required by s 44(2) of the Act. 27It is also, in my view, noteworthy that no submissions were made by the applicant at the sentence hearing of the consequences of not backdating the sentence to the time of the arrest in terms of the ratio referred to above. It is not appropriate to approach the sentence hearing upon the basis that, if the sentencing judge does not backdate the sentence for the index offence to the time of the arrest, the applicant can argue for the first time in this Court that the sentencing judge failed to have regard to the numerical consequence of a calculation that he did not suggest ought to have been performed at the sentence hearing: Edwards v R [2009] NSWCCA 199 at [10]-[13], per Johnson J, Allsop P and Kirby J agreeing. 28For these reasons, the applicant fails on this ground.

Ground 2: the sentencing judge was required to exercise the principle of totality in considering the degree of accumulation, if any, to be served upon the applicant's balance of parole. The exercise necessarily miscarried on account of his Honour not having before him the facts of the earlier offence 29The applicant did not apply, on the hearing before the sentencing judge, for the facts of the four firearms offences to be tendered as part of the Crown case or that they be provided for inclusion in the defence case. Nor did the applicant make any submission that the sentencing judge could not properly sentence the applicant in the absence of such material. 30The nature of the offences of possession of firearms appeared, however, from the criminal antecedent report form that was tendered in the Crown case at the sentencing hearing. The applicant did not identify any matter germane to the firearms offences that was omitted from the criminal antecedent report form that ought to have been tendered before the sentencing judge. 31Furthermore, no error has been shown in the sentencing judge's finding that, notwithstanding that the index offences were committed while the applicant was on parole for the firearms offences, "his prospects for rehabilitation are reasonable". 32The sentencing judge did not find that the commission of the index offences was an aggravating factor. His Honour did not increase the sentence for the index offences by reference to the firearms offences. Rather, the sentencing judge chose not to backdate the sentence for the index offences until the sentence for the firearms offences had expired. By this method, the sentencing judge kept the previous sentence intact and did not subject the applicant to "double punishment" for the firearms offences. 33For these reasons, the applicant fails on this ground.

Orders 34I would make the following orders: (1)Leave to appeal granted. (2)Appeal dismissed. (3)Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, direct the release of the applicant to parole on the expiration of the non-parole period on 16 January 2013.

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: 05 December 2012

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