Mezher v R

Court of Criminal Appeal (NSW)|2019-02-20|Before: Hoeben CJ, Price J, Adamson J

Judgment

HOEBEN CJ AT CL: I agree with the analysis of Price J and the orders which he proposes. I particularly endorse his Honour's observations on Assam v R [2019] NSWCCA 12 at [113]. Assam v R gave rise to complex parity issues which determined the result of the appeal. As a result, the decision has limited application beyond its own particular facts.
PRICE J: Tony Mezher ("the applicant") seeks leave to appeal against an aggregate sentence imposed upon him by Neilson DCJ ("the judge") in the District Court at Sydney on 11 May 2018.
The applicant pleaded guilty in the District Court to the following counts on an indictment. "Count 1: Between 30 August 2013 and 27 September 2013 did supply a prohibited drug, namely 3,4 methylenedioxyamphetamine ["MDA"] in an amount not less than the large commercial quantity for that drug contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW). Count 2: Between 2 September 2013 and 27 September 2013 did supply a prohibited drug, namely 4-bromo-2,5 dimethoxy-phenethylamine ["bromo"] in an amount not less than the large commercial quantity for that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Count 3: Between 11 September 2013 and 27 September 2013 did supply a prohibited drug, namely cocaine, in an amount not less than the commercial quantity for that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ["DMT Act"]. Count 4: On 9 January 2014, did an act, namely produce a fabricated document to a court in support of a bail application, with intent thereby to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW)."

Grounds of appeal

The Notice of Appeal identifies three grounds: "Ground 1 - The learned sentencing judge erred in having regard to an incorrect quantity as the large commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine. Ground 2 - The learned sentencing judge erred in assessing the objective seriousness of the offence by impermissibly having regard to uncharged drug trafficking activity. Ground 3 - The learned sentencing judge erred in finding that the applicant was making a profit."

Facts

A lengthy statement of agreed facts was tendered before the judge which his Honour summarised as follows: [1] The parties have agreed to a number of facts. In reciting the facts, I shall do my best to abbreviate them and to exclude unnecessary matter. In early 2011, [the applicant] met the man code-named Alpha at Randwick. Subsequently [the applicant] and Alpha entered into an arrangement whereby [the applicant] supplied Alpha with amounts of cocaine initially for cash. That arrangement continued throughout 2011 and 2012. At some point [the applicant] and Alpha agreed, as part of their arrangement, for [the applicant] to supply larger quantities of cocaine but less frequently on credit. The amount that Alpha owed [the applicant] varied from week to week. The debt increased when further drugs were supplied and decreased when payments were made by Alpha to [the applicant]. [The applicant] continued to supply Alpha with cocaine throughout 2012 and 2013, the supply occurring at meetings between the two men. Each meeting was similar in fashion and generally occurred initially at Malabar at [the applicant's] mother's home and later outside premises in Beauchamp Road, Matraville where the co-offender Delta lived. Those meetings were generally on Mondays and Fridays. The first recorded supply is the first matter on the Form 1. Over a one week period in December 2012 and January 2013, [the applicant] supplied Alpha with approximately 14 ounces of ecstasy powder, 396.89 grams, for a price of $4,500 per ounce, totalling $63,000. The powder was purple in colour and crystalline in form. The bulk of the drugs were supplied in a car park at Waterloo. The police commenced an investigation in June 2013. That investigation was into the activities of Alpha and Delta. Detectives were granted a number of telecommunications interception warrants relating to telephone services used by those two offenders. Other surveillance device warrants were obtained. During that investigation, detectives became aware of the arrangement between Alpha and [the applicant] whereby this offender would send Alpha a text message when he had drugs to supply to him and Alpha would send a text message to [the applicant] when he had further money to pay to him. The following facts relate to count 1 in the indictment. At 1.18pm on 21 August 2013, [the applicant] entered Delta's car in Beauchamp Road, Matraville. Alpha paid [the applicant] $20,000. Conversation took place regarding the quality of the ecstasy that was thought to be involved in the drug deal. The conversation also extended to the quantity of the drug to be supplied. Alpha made reference to the purple coloured ecstasy previously supplied to him by [the applicant], being the first matter on the Form 1 which I have already described. Alpha admitted collecting money to pay for the previous supply. Later in the conversation, the current offender said: "I've seen somebody yesterday but it's MDA, not MDMA yeah, so I don't want it." After some discussion [the applicant] and Alpha agreed that [the applicant] would supply Alpha with one kilogram of ecstasy. [The applicant] said: "I'll just get us one to get us by." And later: "I think I'll get one and then I'll cut it in half...I'll get someone else to take another half." The reference being obvious. At 10.44am on 23 August 2013 there was an exchange of text messages setting up a meeting. Again at 12.29pm on that day [the applicant] entered Alpha's car in Beauchamp Road, Matraville. Alpha paid [the applicant] $10,000. The conversation between the two indicated that the outstanding debt as a result of that payment was reduced from $170,000 to $160,000. At 9.45am on 27 August 2013 there was another exchange of text messages setting up another meeting. The meeting again took place in Alpha's car in Beauchamp Road, Matraville outside Delta's residence. On this occasion Alpha paid $20,000 to [the applicant], lessening Alpha's debt to [the applicant] to $140,000. On 30 August 2013 similar arrangements occurred and a further $10,000 was paid by Alpha to [the applicant], reducing Alpha's indebtedness to $130,000. On 31 August 2013 further text messages were exchanged and another meeting was arranged. At 3.20pm [the applicant] entered Alpha's motor car in Beauchamp Road, Matraville and paid [the applicant] $15,000, reducing his indebtedness to $115,000. [The applicant] then supplied to Alpha 18 ounces of powder, weighing 510.29 kilograms [sic] [grams], which both [the applicant] and Alpha believed was MDMA but was in fact MDA. The price of that transaction was $3,800 per ounce, making a total purchase price of $68,400, increasing Alpha's indebtedness to [the applicant] to $183,400. On 9 September 2013, in another meeting in Alpha's car in Beauchamp Road, Matraville, there was a conversation between [the applicant] and Alpha. [The applicant] asked Alpha whether those to whom he was supplying the drug had tried it yet. That clearly indicates that [the applicant] knew that Alpha was himself supplying the drug to other persons in the community. On this occasion Alpha paid [the applicant] $20,000. During this meeting [the applicant] supplied Alpha with approximately 18 ounces or 510.29 grams of powder, which they both believed was MDMA but which was in fact MDA. The total price of that transaction was $68,400. As a result of that transaction Alpha's indebtedness to [the applicant] increased to $218,400. I turn now to count 2 in the indictment, supplying a large commercial quantity of the prohibited drug known as bromo. On 3 September 2013, after a further exchange of text messages, [the applicant] met with Alpha outside the Beauchamp Road, Matraville premises of Delta. [The applicant] gave Alpha approximately 1,000 tablets, which both [the applicant] and Alpha believed was MDMA, but which was in fact bromo. The agreed price was $13 per tablet, indicating a total transaction value of $13,000. On this occasion Alpha paid [the applicant] $13,400, but Alpha's debt to [the applicant] remained $183,000. On 6 September 2013 Alpha and [the applicant] again agreed to meet after exchanging text messages. On this occasion [the applicant], after the exchange of text messages, contacted Delta and spoke to him. On this occasion Delta entered Alpha's car in the usual place in Beauchamp Road, Matraville, and Alpha handed to Delta $13,000 for the outstanding debt, reducing it to $170,000. I now turn to count 3. After an exchange of text messages on 12 September 2013 Alpha and [the applicant] met at the usual place in Matraville, and [the applicant] supplied Alpha with 18 ounces of cocaine at a price of $9,000 per ounce, totalling $162,000. That increased Alpha's debt to [the applicant] to $380,400. The metric amount of the supply of cocaine was 510.29 grams. On the following day there was again a meeting arranged in the usual fashion and Alpha paid [the applicant] $13,400, reducing his outstanding debt to $367,000. In a conversation recorded by the police Alpha admitted that he owed [the applicant] a third of a million dollars. There was a further meeting arranged on 16 September 2013 at which Alpha paid [the applicant] $27,000. During that meeting Alpha and [the applicant] discussed the quality of the MDA, which they both believed to be MDMA, that had previously been supplied, the subject of count 1 in the indictment, albeit that the agreed facts refer to it as being the subject of count 2 in the indictment. A further meeting was set up on 20 September 2013. On that occasion Alpha paid [the applicant] $15,000 reducing his debt to $325,000. [The applicant] discussed going to the Lebanon and told Alpha to deal with Delta who [the applicant] referred to as "his mate" and who was known to Alpha as "Darren". In other words, [the applicant] told Alpha to deal with Delta as his agent while [the applicant] was away in the Lebanon. [The applicant] told Alpha that he would send Delta's telephone number to him. On 26 September 2013 another meeting was arranged and on that occasion Alpha paid [the applicant] $10,000. On that occasion police observed [the applicant] opening and showing the contents of a Myer plastic bag to Alpha. The bag contained what was said by [the applicant] to be 10 ounces of cocaine, although in fact it was slightly less than that amount of that drug. This was given to Alpha. The total price of the cocaine supplied was $90,000, increasing Alpha's debt to [the applicant] to $405,000. [The applicant] then left Alpha's vehicle. Alpha then drove his car away but remained under police surveillance. He was stopped by the police a short time later. A search of the vehicle located the Myer plastic bag containing the cocaine. Alpha was arrested and the vehicle seized. Subsequent forensic analysis identified the fingerprints of [the applicant] on the front passenger side door of Alpha's vehicle. The police then obtained a search warrant which was executed at Alpha's home at Bondi Junction. The police found a large amount of cocaine, a large amount of MDA and a large amount of bromo. Subsequent forensic analysis identified the fingerprints of [the applicant] on the exterior lid of a Versace box which contained 14 resealable bags of MDA weighing a total of 12.9 grams. All of the drugs found at Alpha's home had been supplied to Alpha by [the applicant], with the exception of 4 ounces of cocaine which Alpha admitted had been supplied to him by a man known to him merely as "Rusty". Alpha remained in custody after 26 September 2013. Nevertheless, [the applicant] sought to communicate with him by text message. On 14 November 2013 [the applicant] attended Parklea Correctional Centre to visit Alpha. [The applicant] spoke to Alpha enquiring about his arrest and the seizure of drugs during the execution of the search warrant. [The applicant] offered to organise a solicitor for Alpha and offered to assist Alpha's family. On 16 November 2013 [the applicant] made an international call to a male in the Lebanon. That telephone call was intercepted by the police. In it [the applicant] and the unidentified male discussed the arrest of Alpha and the seizure of drugs at his residence. [The applicant] made reference to a contention that when Alpha was ultimately released from custody he could repay [the applicant], clearly a reference to the outstanding drug debt. In December 2013 Alpha provided two induced statements to the NSW police concerning the drug transactions which are identified in the agreed facts. At 11.55am on Wednesday 8 January 2014 [the applicant] was arrested and cautioned in relation to the supply made on 26 September 2013. A search of [the applicant] located $3,440 in Australian currency along with a white Apple iPhone the subject of police electronic surveillance. A search warrant was later executed at [the applicant's] residence at Malabar. In that search police found numerous items of clothing that matched clothing worn by [the applicant] at his meetings with Alpha that had been the subject of police surveillance. The police also found approximately $5,000 in Australian cash, $US1,581, 2,860 Thai baht and 69,000 Lebanese pounds. The value of the Thai and Lebanese currency was not great. It was submitted by Mr James QC on behalf of [the applicant] that it amounted to approximately $10,000 Australian and I have no hesitation in accepting that assessment. Police examination of [the applicant's] white Apple iPhone located a drug ledger outlining moneys owed by Alpha to [the applicant]. Next to [the applicant's] name was recorded "410", being the amount of thousands of dollars that Alpha owed [the applicant]. The second matter in the Form 1, participating in a criminal group, is the joint activity of [the applicant], Alpha and Delta. I turn now to count 4 in the indictment. As I have earlier mentioned, on 9 January 2014 [the applicant] appeared before the Local Court at Waverley to make an application for bail. Part of that application was based on [the applicant's] needing bail due to his being employed. In support of that contention, [the applicant] tendered, through his legal representative, a letter from H2 Limousines outlining his purported employment with that business. The Local Court granted bail. Evidence obtained through telephone interception and electronic surveillance revealed that the letter was fabricated, its contents were untrue and its being obtained was instigated by [the applicant]. The principal of the H2 Limousines, after obtaining legal advice, declined to assist the police but evidence was eventually obtained that [the applicant] did not work for H2 Limousines. [The applicant], by his plea, admits that he presented to the Court a fabricated document in order to obtain the grant of bail.

Alpha's sentence

Alpha was sentenced by Arnott SC DCJ on 22 May 2015 for two offences. For his early plea of guilty and assistance to authorities he received a discount of 55%.
For the first offence of supplying a large commercial quantity of MDA (932 grams), with a Form 1 taking into account the supply of a commercial quantity of cocaine; an indictable quantity of methorphan; and knowingly deal with the proceeds of crime ($13,670), he was sentenced to 3 years 7 months imprisonment with a non-parole period of 2 years 4 months. For the second offence of supplying a large commercial quantity of bromo (221 grams), he received a fixed term of imprisonment of 2 years and 1 month.
An overall head sentence of 5 years with a non-parole period of 3 years and 9 months was imposed.

A Factual Dispute

A disputed issue in the sentencing proceedings was the applicant's dealing with Alpha.
The applicant gave evidence before the judge and documentary material was tendered in his case which included two reports from Professor Woods, a consultant psychologist.
Shortly stated, Professor Woods reported that the applicant told him the way in which he had become involved in the drug dealing was that he had met Alpha at a brothel and had agreed to provide him with a short term loan which Alpha was going to repay with interest, at a rate higher than bank interest. When Alpha was unable to repay the loan, Alpha suggested to the applicant that he access and provide Alpha with small amounts of drugs which would be "on-sold" at a profit thereby enabling the loan provided by the applicant to be repaid. The applicant told Professor Woods that the money received from Alpha was regular but not sufficient to cover his debt personally incurred and he began to receive threats from the "supplier". When challenged by Professor Woods as to "why" he persisted in providing Alpha with drugs and in doing so fell further in debt, the applicant stated: "I was too far into it… they are putting interest on me… seeing this account every week and he is giving me some sort of money back."
The applicant's evidence before the judge included that he started supplying drugs to Alpha in lieu of Joe. He lent Alpha $100,000 because he believed that Alpha was an accountant and was smart with money. Although no interest rate was discussed, he believed he would get a return on his investment but he was never repaid. The applicant said he saw Alpha as an authority figure, and that he only became involved in drug dealing so he could get his money back. The applicant said he made no profit, and denied that his two trips to Thailand and a trip to Lebanon came from drug money. It was his evidence that he used his salary as a security guard to pay for the Thailand trips and relatives paid for the Lebanon trip. He denied that his Mercedes came from drug money and said that his Mercedes was worth $40,000 and not $180,000.

Evidence from the Crown

A statement from Alpha was tendered in which he stated that he had never received any form of loan from the applicant; that the applicant only gave him credit on drugs; and there was never any interest on a loan. He stated that their continued relationship was for the applicant to supply him with drugs.
During his evidence in the sentencing proceedings, Alpha adhered to his statement. As to the initial meeting with the applicant, Alpha said that there had been a pre-arranged meeting with his then drug supplier "Joe", but instead of Joe turning up at that meeting, the applicant did and he then took over as Alpha's drug supplier. Alpha agreed that he gave evidence to obtain a discount on sentence and when sentenced by Arnott SC DCJ, Alpha had received a 55% discount for his early plea and for past and future assistance.
In cross-examination, Alpha agreed that he owed the applicant $405,000. He agreed that the applicant would have paid out or run up a debt of about $200,000 in order to supply him with about $405,000 worth of drugs.

Subjective circumstances

In addition to the reports from Professor Woods, a letter from the applicant to the judge, a number of reference letters and certificates were tendered.
The applicant was born in Lebanon on 17 December 1982 and was 35 years old when sentenced. He was born into a Maronite Catholic family who migrated to Australia in the mid to late 1990s.
In his sentencing remarks, the judge detailed the applicant's report of his background to Professor Woods and his evidence of his personal circumstances which included his father's alcoholism, verbal abuse and abandonment of his family after coming to Australia; the kidnapping and murder of his father's brother and mother in Beirut, the destruction and carnage the applicant experienced as a boy in that city; and his history of drug abuse.
In his letter to the judge, the applicant wrote that he now realised the harm that drugs could do to others; that he was very sorry for what he had done and would not engage in such conduct again.
The tendered references included a letter from the Parish Priest of St Maroun's Cathedral who referred to the applicant's repentance and commitment to transforming his life and a letter from the Managing Director of Payless Rubbish Removals, a previous employer, who stated that the applicant displayed "a unique ability to identify and solve problems" and could count on re-employment with the company.
The applicant's prior criminal history reveals convictions for assault, larceny, damage to property, contravention of an apprehended domestic violence order (2003), obtaining money by deception (2004) and possession of a prescribed restricted substance (2008). For these offences, he was placed on bonds or fined.

Evidence from psychologists

In a report dated 14 November 2015, Professor Woods opined that the applicant was suffering from the following mental conditions:

Post-traumatic Stress Disorder (DSM-5 309.81) primarily war but also domestic violence related, Chronic, Moderate to Severe;
Persistent Depressive Disorder (DSM-5 300.4) (formerly known as Dysthymia), Chronic; punctuated by Recurrent Major Depressive episodes of variable severity;
(Poly) Substance (primarily Stimulants) Drug Use (Misuse) Disorder, previously Moderate to Severe, in remission since entering into a controlled environment;
Alcohol Use (Misuse) Disorder, previously Moderate to Severe, (DSM-5 303.90); in remission since entering into a controlled environment.

Professor Woods reported that a provisional diagnosis of a "slowly emerging" psychotic illness was applicable. Risk analysis had revealed that the applicant, due to his continuing high level of fear arising from threats made to his life as well as the lives of his sister, mother and fiancée, was unlikely to "willingly" resume any form of contact with a Middle Eastern Muslim criminal syndicate and was unlikely to reoffend.
Professor Woods noted that the applicant's Personality Assessment Inventory (PAI) clinical profile "is conspicuous in that inconsistencies across many of his responses are noted". Professor Woods had regard to the applicant's clinical presentation and was of the view "…that the many inconsistencies in [the applicant's] responses was a function of his level of intelligence, apparent level of psychological distress and thus negative impact on his ability to maintain concentration when completing what is a length Inventory".
The Crown tendered a report from Dr Susan Pulman, a psychologist. Dr Pulman reported that there was nothing in the Justice Health records that indicated the presence of any mental health condition. Dr Pulman was of the opinion that the scores on the self-reported PAI and the Paulhus Deception Scale suggested "…the results of the personality and mental health instruments are likely to be invalid and caution must be used in their interpretation".
Dr Pulman observed that the PAI was not restricted to above average intellectual ability and offenders with an intellectual ability "at the lower end of the normal/average would have the capacity to respond to the items in an appropriate manner". Dr Pulman reported that the Justice Health notes suggested "an individual who is alert, co-operative, easy to engage with a presentation consistent with self-report mental health screening of nil mental health concerns".
In a report dated 2 February 2018, Professor Woods considered the points made by Dr Pulman and remained of the view that the applicant satisfied the diagnostic criteria of the comorbid mental health conditions referred to in his earlier report.

Some findings by the judge

The judge found the applicant's evidence on how he came to deal in drugs with Alpha to be "unbelievable". [2] He did not accept that the applicant was "a fool, or naïve or completely unworldly-wise". He rejected the applicant's evidence and preferred the evidence given by Alpha.
The judge noted the Crown's submission that in relation to Counts 1 - 3, the following aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied: "a. (2)(m) the offence involved a series of criminal acts b. (2)(n) the offence was part of a planned or organised criminal activity".
The judge said that he was unable to accede to the Crown's submission as a large commercial supply of a prohibited drug more frequently involves a large number of transactions and is generally part of a planned and organised criminal activity. The present offences had "as part of their essence, of their very nature, the aggravating factors referred to". [3]
The judge said at [51]: "…There was a prolonged period of drug trafficking according to the agreed facts from early 2011 to early 2014, a period of some three years. It is common ground that when [the applicant] and Alpha first met there was a drug supply. Three years is a long time."
His Honour observed that the drug supply would have continued had Alpha and the applicant not been arrested; the amount of drugs was large as was the number of dealings involved; and the transactions could not be described as unsophisticated as the applicant avoided detection for the best part of three years.
His Honour noted that the applicant left the street dealing of the drugs to Alpha and was higher in the drug hierarchy than Alpha.
The judge said at [56]: "The sixth point to note is that [the applicant's] involvement may originally have been to fund his own drug habit, but the large sums of money involved objectively indicate that [the applicant] must have been making a profit. The making of a profit is an inherent feature of the offence of supplying a large commercial quantity of a drug, and indeed of supplying a commercial quantity of drug. Both are designed for the making of a profit. [The applicant] said in his evidence that he made no profit at all. That I find extremely hard to swallow, and again, bearing in mind my finding that [the applicant's] evidence about his involvement with Alpha cannot be accepted, I am unable to accept his evidence that he did not make any profit."
His Honour referred to the cross-examination of the applicant concerning his driving of a motor cycle, use of a Mercedes motor car, using a wristwatch which appeared to have been expensive, and overseas holidays and said "objectively that is consistent with the making of a profit". [4]
Another finding that his Honour made was that the applicant knew where to obtain large amounts of drugs which he could on-supply to Alpha.
His Honour assessed the applicant's objective culpability for the offences as being "just below the mid-range of objective seriousness because of the amounts involved". [5] In referring to the quantities of the prohibited drugs, his Honour's remarks at [59] included: "…The commercial quantity of bromo is 12.5 grams. The large commercial quantity is 50 grams. [The applicant] supplied 212.24 grams of bromo, which was four times the large commercial quantity..."
As to Count 4, the judge accepted the Crown's concession that the offence was below the mid-range of objective seriousness but said that "…any offence which strikes at the administration of justice is serious and must be punished accordingly". [6]
The judge considered the reports of Professor Woods and Dr Pulman. His Honour referred to the inconsistent responses within the PAI assessments forming part of Professor Woods' report. His Honour found that Professor Woods' reports suffered from the "defect of partisanship", [7] and was not satisfied that the opinions of Professor Woods were valid.
His Honour accepted the applicant's evidence of his childhood and teenage experiences in Lebanon, the distress caused by his father's attitude and abandonment, his upset and depression caused by the suicide of his former girlfriend and the use of drugs having an impact on his psychological condition. However, his Honour was not persuaded that the applicant's psychological condition and any anxiety or depression suffered by the applicant was a "material ingredient in the causation of the offences". [8] His Honour considered that the applicant's depressive illness may make his incarceration onerous and "perhaps is contributing to his isolation from other prisoners". [9]
His Honour did not find any evidence of "any real remorse" [10] however found that the prospects for not re-offending and for rehabilitation were fair.
The judge noted that the applicant had offered some assistance to the authorities. However, this assistance was limited as the police found it difficult to assess the "truthfulness, reliability and completeness of the information" [11] offered by the applicant. His Honour found that only a "very slight discount" [12] could be provided to the applicant.
The judge allowed a 12% discount for the "very late" guilty pleas and for the limited assistance that had been provided to the police.
His Honour addressed the parity issue in respect of Alpha and noted that the 55% discount applied to Alpha was obtained based on a plea of guilty entered at the earliest opportunity and a further substantial discount for "turning Queen's evidence" (giving evidence for the prosecution). [13]
In finding special circumstances his Honour referred to the applicant's depressive illness, a diagnosed low back condition and the accumulation of sentence.

Ground 1: The learned sentencing judge erred in having regard to an incorrect quantity as the large commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine.

The Crown concedes that this ground of appeal has been established.
It is evident from the judge's sentencing remarks that his Honour carefully considered all of the matters that had been placed before him. Unfortunately, the Crown Prosecutor had informed the judge that the large commercial quantity of bromo was 50 grams whereas the large commercial quantity of that prohibited drug was 0.1 kilograms. His Honour referred to that incorrect quantity in assessing the objective seriousness of Count 2. As the judge had acted on a "wrong principle", his sentencing discretion miscarried. [14]
This case illustrates the necessity for Crown Prosecutors and Counsel appearing for offenders to understand that they have an obligation to ensure that the information provided to judges is accurate.
By reason of this error, it is necessary for this Court to re-sentence the applicant. [15] Although the Court is not obliged to consider the remaining grounds of appeal, it is useful to consider the issues raised in these grounds before re-exercising the sentencing discretion afresh.

Ground 2: The learned sentencing judge erred in assessing the objective seriousness of the offence by impermissibly having regard to uncharged drug trafficking activity.

The applicant contended that the judge took into account uncharged offending conduct when he referred in the passage quoted at [39] above to a "prolonged period of drug trafficking … from early 2011 to early 2014" and to three years being "a long time". The applicant pointed out that the offences for which he was sentenced occurred over a range of dates, the earliest being 30 August 2013 (Count 1), the last being 9 January 2014 (Count 2).
The applicant submitted that although he was not entitled to leniency that might be extended to an offender who engaged in one-off criminal activity, he was not to be sentenced for conduct beyond that charged. Uncharged criminal conduct could neither result in a higher sentence than would be merited by the charged conduct nor did it have any bearing on the objective seriousness of the charged offences.
In oral argument Mr H Dhanji SC, the applicant's counsel, accepted that the uncharged conduct could be relevant to considerations such as a lack of spontaneity and prospects of rehabilitation, as distinct from the objective gravity of the charged offences.
The applicant contended that the references his Honour made under the heading "Seriousness" to "three years being a 'long time'" and the applicant being "able to avoid detection for the best part of three years" indicated that a distinction between charged and uncharged conduct was not preserved. The applicant submitted that his Honour impermissibly took into account the uncharged conduct, producing a higher sentence than would have been warranted by the conduct for which the applicant was charged.
It was also submitted that the judge erroneously increased the objective seriousness by taking into account the applicant's involuntary cessation of offending activity, by making the finding that the "supply would have continued had Alpha not been arrested, and had [the applicant] not been arrested".
The Crown submitted that it was permissible for the judge to take account of the uncharged conduct to inform the seriousness of the offence for which the applicant was to be sentenced. Whilst the penalty could not be increased, there was no error in taking account of surrounding circumstances to determine, for example, that the offending was not isolated.
The Crown further contended that the surrounding conduct taken into account by the judge was relevant to an assessment of the offending including sophistication, planning and assertions as to profit. The Crown referred to the length and nature of the applicant's relationship with Alpha as being a material consideration in assessing the applicant's role in the offences.

Consideration

In Kelly v R, [16] Hidden AJ in referring to sentencing principles that apply to uncharged criminal conduct said at [38]-[39]: "The applicant stood for sentence for the offence of supplying methylamphetamine on 15 July 2016. However, it was common ground that his Honour was entitled to have regard to uncharged conduct of a similar nature casting light on the context of the offence, so as to demonstrate that the applicant was not entitled to the leniency which he might otherwise have been afforded if the offence were an isolated incident. The uncharged conduct may not be taken into account so as to lead to the imposition of a higher sentence than would be merited for the offence charged. So much has been well established in child sexual assault cases where the offences charged are frequently part of a wider pattern of abuse: see, for example, Holyoak v R (1995) 82 A Crim R 502 at [510]-[511]. That line of authority was examined at some length by Spigelman CJ in R v JCW [2000] NSWCCA 209; (2002) 112 A Crim R 466, and his Honour affirmed it at [52]. The principle has been applied in a number of subsequent decisions in this Court and is not in doubt. As to an admission by the applicant in JCW that the particular counts with respect to his daughter with which he was charged were 'representative', the Chief Justice said that an admission of that character could be taken into account 'for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence', but not as a circumstance of aggravation."
In Lago v R, [17] Gleeson JA (with whom Button and Fagan JJ agreed) considered that it is permissible to take into account uncharged conduct to inform the seriousness of the offence for which the offender is to be sentenced. Gleeson JA said at [49]: "…There is no breach of the De Simoni principle when the uncharged conduct is used to inform the seriousness of an offence for which the offender is to be sentenced. As Basten JA explained (Hulme and Latham JJ agreeing) in Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [146]: A course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed."
The agreed facts (see [13] above) recounted that the applicant supplied cocaine to Alpha in 2011, 2012 and 2013. The first count to which the applicant pleaded guilty related to the supply of MDA between 30 August 2013 and 27 September 2013 whereas Counts 2 and 3 related to the supply of bromo and cocaine in September 2013. The Form 1 offence of supply of MDMA related to the period between December 2012 and January 2013.
The applicant's uncharged conduct of supplying cocaine in the three years prior to the offences to which he stood to be sentenced could not be taken into account by the judge so as to lead to a higher sentence than these offences merited.
The applicant's argument that his Honour took the uncharged conduct into account in assessing the objective seriousness of the offences gains some force as the passage quoted at [39] above appears under "Seriousness" and follows shortly after the sentence: "I am required to consider the objective seriousness of the offences for which [the applicant] stands for sentence..."
However, I am not persuaded that his Honour took into account the uncharged conduct in assessing the objective gravity of the applicant's offending as the focus of that assessment was on the amount of drugs involved in the offences for which the applicant stood to be sentenced. His Honour said: "In my assessment, [the applicant's] objective culpability is just below the mid-range of objective seriousness because of the amounts involved." (Emphasis added.)
As well as providing context to the relationship between the applicant and Alpha, his Honour was entitled to take into account the uncharged conduct as informing him of the seriousness of the charged offences of drug supply.
Furthermore, I reject the applicant's argument that the judge increased the objective seriousness of the offences by finding that the drug supply would have continued but for Alpha's arrest.
I would dismiss this ground of appeal.

Ground 3: The learned sentencing judge erred in finding that the applicant was making a profit.

The applicant accepted that it was open to the judge to reject the applicant's evidence that he "did not make any profit" on the basis that it was not proven on the balance of probabilities. However, in assessing objective seriousness, it was submitted that the judge erred in making positive findings as to profit. It was submitted that to make a positive finding adverse to the applicant, it needed to be established beyond reasonable doubt.
The applicant contended that the paucity of evidence in respect of profit was not sufficient to make a positive finding. It was submitted that his Honour erred by conflating the two standards of proof in order to conclude that the rejection of the applicant's evidence allowed for a positive and adverse finding to be made.
In oral argument, Mr Dhanji did not dispute that it was the applicant's intention to make a profit, but said that it was "not at all clear that he did so". [18] Senior Counsel submitted that the applicant was conducting a business that was doomed to fail and he was not operating a sophisticated operation.
The Crown argued that it was open to the judge to reject the claim that the applicant made no profit. It was submitted that the judge approached the question of profit consistently with principle, where his Honour found that the evidence, namely large sums of money, expensive items and overseas travel, was objectively consistent with making a profit.
The Crown submitted that the judge did not rely upon his finding that the applicant has made a profit as a circumstance of aggravation and that his Honour approached the issue with authority and without error.

Consideration

It is common ground that it was open to the judge to reject the applicant's evidence that he did not make a profit and his explanations as to the overseas trips, the Mercedes motor vehicle and the wristwatch. The applicant does not dispute that he was motived by profit. However, the applicant complains that the judge could not find beyond reasonable doubt that he made a profit.
The agreed facts and oral evidence disclosed an ongoing arrangement between the applicant and Alpha for the supply of prohibited drugs on credit, which had an inbuilt measure of profit for the applicant. The cross-examination of Alpha by the applicant's senior counsel included the following: Q. You and he had running accounts backwards and forwards, correct? A. I don't know about the backwards part, but yes. Q. Well sometimes they were up, sometimes they were reduced a bit, sometimes they were further up, is that right? A. That's correct, that's correct, yes. Q. And indeed you owed him a debt overall at about the time of everybody being arrested of about $450,000? A. Four hundred and five thousand. Q. Four hundred and five or - I mean you'd be more precise with things than I would, but well over $400,000? A. Well 5,000 isn't well over 400,000, but 405,000 was the amount. Q. All right. And that was the various agreed amount backwards and forwards was it not on a running account? A. Yes. Q. Okay? A. Yes. Q. And of that you expected that [the applicant] would have had to have obtained drugs to that value, to enable you to have obtained from him on credit drugs to that value? A. Well he was making a reasonable mark-up, but yes he would have been-- Q. Of course he's got a mark-up but you would have expected-- A. -- obtaining them. Q. Let's expect that he had a mark-up of about 50%? A. Right. Q. Let's expect that he had a mark-up of about 50%? A. Right. Q. That's not an unusual sort of figure in this milieu is it? A. Oh okay. Q. So we could assume that he would have had to have paid out, or run up a debt of about $200,000 in order to supply you with about $405,000 worth of drugs? A. Yes. [19] (Emphasis added.)
The agreed facts reveal that Alpha made twelve payments totalling $186,800 to the applicant between 21 August 2013 and 26 September 2013, a period of just over five weeks. Viewed in combination with the overseas holidays, wristwatch and motor vehicle, the size and regularity of payments and the applicant's mark-up lead to the inevitable conclusion beyond reasonable doubt that the applicant was profiting from this ongoing arrangement with Alpha, notwithstanding Alpha's indebtedness of $405,000 when he was arrested. I do not accept the applicant's argument that he was operating a business that was doomed to fail.
The Crown did not submit that an aggravating factor was the commission of the offences for financial gain pursuant to s 21A(2)(o) of the Crimes (Sentencing Procedure) Act, nor did his Honour make such a finding.
I would dismiss this ground of appeal
Specific error having been identified, it is this Court's duty to re-sentence, "unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed": Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] ("Kentwell"). This Court is obliged to take into account "all relevant matters, including evidence of events that have occurred since the sentence hearing": Kentwell at [43].

Additional material admitted on resentence

In an affidavit sworn 21 January 2019, Rabia Sabbagh, the applicant's solicitor, annexes various documents which include a copy of the applicant's custodial history; a letter from Reverend Muss, the Anglican Chaplain at Lithgow Correctional Centre; a completion of the Born to Win course from Emmaus Correspondence School with a letter from that School; and a Medication Risk Assessment Tool.
The applicant's custodial history discloses that he has been employed as a sweeper, is a "very good worker", is polite and well mannered.
Reverend Muss's comments include the applicant's engagement in spiritual and religious matters, his courtesy, compliance and respect, the applicant's work roles in custody and his exemplary conduct.

Submissions on re-sentence

The applicant submitted that a lesser sentence is warranted in law. Whilst accepting that the offending was serious, the applicant's subjective case including his prospects of rehabilitation, plea of guilty and lack of relevant history were said to warrant a less severe sentence.
The applicant contended that the quantities involved in the large commercial supplies "were far from the upper reaches seen in such offences". [20] The applicant pointed to his traumatic upbringing in Lebanon, his mental health issues at the time of the offence, his progression in custody, including employment as a sweeper, his good prospects of rehabilitation and demonstrated remorseful insight into his offending.
In oral submissions, Mr Dhanji referred to the lesser sentence imposed by this Court in Assam v R [21] and to the need for some amelioration of general deterrence in the applicant's case.
Mr Dhanji submitted that it was unnecessary for this Court to have regard to the sentence imposed on Alpha on re-sentence, particularly as no issue as to parity had been raised by the applicant on appeal. Mr Dhanji emphasised that Alpha's sentence could not be used in justifying an increase in the applicant's sentence.
The Crown argued that this Court would proceed on the basis of the judge's findings, that the evidence of the applicant's mental health did not justify the need for specific or general deterrence to be ameliorated and that his mental health was confined to making his incarceration more difficult.
The Crown argued that the judge's assessment of Count 2 as being just below mid-range was well open to this Court despite his Honour's error, having regard to the applicant's role and the amount of the drug involved.
In referring to Alpha's sentence, the Crown submitted that Alpha was sentenced for the equivalent of the applicant's sentences for Counts 1 and 2 although Alpha had a lesser role.
The Crown contended that it was open to this Court to conclude that no lesser sentence was warranted in law.

Re-sentence

The maximum penalty for Counts 1 and 2 is life imprisonment with a standard non-parole period of 15 years imprisonment. The maximum penalty for Count 3 is 20 years imprisonment with a standard non-parole period of 10 years imprisonment. The maximum penalty for Count 4 is 14 years imprisonment. These legislative guideposts are to be borne in mind when considering the appropriate sentences, having regard to the objective circumstances of each offence and the applicant's subjective case.
In Count 1, the applicant obtained and supplied Alpha with 926.4 grams of MDA for the total price of $136,800 (believing it was MDMA). The amount supplied was almost twice the large commercial quantity of that prohibited drug (0.5 kilograms). In Count 3, the applicant obtained and supplied Alpha with 763.32 grams of cocaine for the total price of $252,000. The amount supplied was more than three times the commercial quantity of that prohibited drug (250 grams).
For the purpose of re-sentencing, I will adopt the judge's assessment of the objective seriousness of these offences as being "just below the mid-range" (see [45] above), as that assessment was not challenged on appeal.
However, it is necessary to assess the objective seriousness of Count 2 as Ground 1 has been established. Relevant considerations in assessing the objective seriousness of an offence under s 25(2) of the DMT Act include the applicant's role, the level of criminality involved, the quantity of the drug supplied and the reward to be received. [22]
In Count 2, the applicant obtained and supplied Alpha with 212.24 grams of bromo for $13,000 (believing it was MDMA). The amount supplied was just over two times the large commercial quantity of the prohibited drug (0.1 kilograms). Having regard to all relevant considerations, my assessment of the objective seriousness of this offence is below the mid-range.
In Count 4, the applicant tendered a fabricated employment letter in a bail application before the Local Court at Waverley. Although his Honour's assessment of this offence as "falling towards the bottom of the range" was not strictly necessary as an offence contrary to s 319 of the Crimes Act is not a standard non-parole period offence, it was not disputed on appeal. I propose to adopt that assessment and his Honour's remarks: "…any offence which strikes at the administration of justice is serious and must be punished accordingly".
Counts 1, 2 and 3 are serious offences. The applicant was able to obtain and supply the prohibited drugs for Alpha between 30 August 2013 and 26 September 2013 for a total price of $401,800 which included the applicant's mark-up. As stated at [81] above, Alpha made twelve payments totalling $186,800. I am satisfied beyond reasonable doubt that the applicant was profiting from his ongoing arrangement with Alpha, notwithstanding Alpha's indebtedness of $405,000 when he was arrested.
The applicant's offending in the Form 1 offences reveals significant criminality. I take into account the additional need for deterrence and retribution when sentencing the applicant for Count 1.
I take into account the applicant's uncharged conduct in finding that the charged offences were not isolated and the lack of prior convictions for drug supply do not entitle him to leniency on sentence.
The discount of 12% for the pleas of guilty and limited assistance has not been in dispute. Accordingly, a discount of 12% will be allowed on re-sentence.
The judge's findings as to the applicant's subjective case have not been challenged; however, additional material has been admitted on re-sentence. The applicant's work ethic, continuing good behaviour and positive steps taken whilst in custody, encourage a more optimistic view of his prospects of rehabilitation and likelihood of re-offending than his Honour's conclusion that they were "fair".
I give modest weight to the need for specific deterrence.
His Honour's conclusions that the applicant's psychological condition and anxiety and depression were not a material ingredient in the causation of the offences have not been disputed. However, it is well recognised that it is not necessary for mental health problems to be a cause of a crime to have some impact on the need for general deterrence. [23]
The principles applicable to mental illness that were re-stated in De La Rosa by McClellan CJ at CL at [177] included: "…It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]."
As Simpson J observed in Aslan v R [2014] NSWCCA 114, none of the principles stated in De La Rosa are absolute. Her Honour said at [34]: "It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."
In his sentencing remarks, his Honour does not appear to have expressly given consideration to this issue. However, his Honour did say that although he could accept that the depressive illness would encourage the use of drugs and inhibit the desire to avoid taking drugs, there are many drug addicts who do not traffic drugs and "do not get to the stage of trafficking commercial quantities, let alone large commercial quantities of drugs". [24] I respectfully agree with these observations. The importance of general deterrence for offences involving the supply of prohibited drugs has been emphasised by this Court. [25] I am not satisfied on the balance of probabilities that the applicant's depressive illness renders the applicant to be an inappropriate vehicle for general deterrence.
Furthermore, I take into account the need to protect the community. The grave consequences that follow to our society from the supply of prohibited drugs have often been stated. [26]
In oral argument, Mr Dhanji raised the aggregate sentence imposed in Assam of 9 years with a non-parole period of 6 years 9 months. Assam's sentence was reduced because of marked disparity with the sentence imposed on another offender. The sentence imposed in that case is of no assistance in the present sentencing exercise. The limitations on relying on individual sentencing decisions have frequently been emphasised.
Whilst this Court must have regard to the sentence imposed on Alpha to ensure consistency in sentencing, Alpha's sentence cannot be used to increase the applicant's sentence beyond what is proportionate to the applicant's offending.
The judge saw the applicant's depressive illness as making his incarceration onerous and contributing to his isolation from other prisoners which was taken into account with the applicant's back condition in a finding of special circumstances as was the accumulation on sentence. No complaint was made concerning the finding of special circumstances or his Honour's consequential variation of the statutory ratio between the head sentence and the balance of term, which will be retained on re-sentence.
In accordance with s 53A of the Crimes (Sentencing Procedure) Act, I will impose an aggregate sentence with respect to Counts 1, 2 and 3. In assessing the indicative sentence for each of these offences and the overall sentence I have considered questions of accumulation or concurrence and totality. No change has been made to the indicative sentences for Counts 1 and 3 passed by the judge.
I consider that an appropriate starting point for Count 2 is 6 years 6 months. After the discount of 12% is applied, the indicative sentence is 5 years 8 months (round figures) with a non-parole period of 3 years 9 months.
In the independent exercise of my sentencing discretion, I would impose an aggregate term of imprisonment of 11 years 4 months with a non-parole period of 7 years 6 months.
I make no change to the sentence imposed by the judge of a fixed term of imprisonment of 1 year for Count 4 and to the commencement date of that sentence.

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed in the District Court of New South Wales on 11 May 2018 for Counts 1, 2 and 3 is quashed. 4. For Counts 1, 2 and 3, the applicant is sentenced to a term of imprisonment of 11 years 4 months commencing 26 January 2017 and expiring on 25 May 2028 with a non-parole period of 7 years 6 months expiring on 25 July 2024. 5. The earliest date the applicant will be eligible to be released on parole is 25 July 2024.
ADAMSON J: I agree with the orders proposed by Price J and with his Honour's reasons.

Endnotes

R v Mezher [2018] NSWDC 212 at [9]-[30] ("Mezher").
Mezher [2018] NSWDC 212 at [49].
Mezher [2018] NSWDC 212 at [50].
Mezher [2018] NSWDC 212 at [57].
Mezher [2018] NSWDC 212 at [59].
Mezher [2018] NSWDC 212 at [60].
Mezher [2018] NSWDC 212 at [85].
Mezher [2018] NSWDC 212 at [88].
Mezher [2018] NSWDC 212 at [88].
Mezher [2018] NSWDC 212 at [90].
Mezher [2018] NSWDC 212 at [93].
Mezher [2018] NSWDC 212 at [93].
Mezher [2018] NSWDC 212 at [95].
Greentree v R [2018] NSWCCA 227 at [45].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
[2018] NSWCCA 44.
[2015] NSWCCA 296.
Tcpt, 20 February 2019, 5(26).
Tcpt, 16 February 2018, 33-34.
Applicant's Written Submissions, 10.
[2019] NSWCCA 12.
See for example: Pham v R [2013] NSWCCA 217; Melikian v R [2008] NSWCCA 156 at [42].
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [36] ("De La Rosa").
Mezher at [80].
See for example: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; Murray v R [2017] NSWCCA 262 at [74]; Jaafar v R [2017] NSWCCA 223 at [115].
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [110]. 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 April 2019

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Judgment (19 paragraphs)

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