Morrie Paul DOUMIT v R

Judgment 1HODGSON JA: I agree with Grove AJ. 2HOEBEN J: I agree with Grove AJ. 3GROVE AJ: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ at Sydney District Court. The applicant pleaded guilty to 3 counts on an indictment charging on count 1, supplying a prohibited drug on 5 occasions between 5 February and 21 February 2008 constituted by 4 supplies of cocaine and 1 supply of methylamphetamine ("ongoing supply"), on count 2 having in possession for supply on 28 February 2008 72.34grams of methylenedioxymethylamphetamine (MDMA or Ecstasy) and on count 3 having in his possession for supply on 28 February 2008 298.4grams of gamma butyrolactone (GBL). 4A Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 sought that there be taken into account on sentence 3 further charges. In executing a search warrant on 28 February 2008 at the applicant's home police located a bag containing $17,915 in cash, resealable plastic bags in 2 of which there was a combined total of 18.97grams of cocaine and another collection of plastic bags containing a total of 3.51grams of methylamphetamine. These findings led to charges of dealing with the proceedings of crime and (deemed) supply of the respective drugs. The Form 1 document relates to the applicant being "charged with the offence of supply prohibited drug on 28 February 2008". There was no identification of which of the (deemed) supplies on that date, the MDMA or the GBL, was the principal offence for the purpose of s 32. There is a further problem with how the Form 1 offences were dealt with to which I will return. 5On the charges in the indictment his Honour imposed sentences first on counts 2 and 3 and then on count 1. On count 2 the applicant was sentenced to imprisonment for a fixed term of 12 months commencing on 31 August 2009 and expiring on 30 August 2010, on count 3 to imprisonment for a fixed term of 12 months commencing on 28 February 2010 and expiring on 27 February 2011 and on count 1 (ongoing supply) to imprisonment consisting of a non parole period of 2 years commencing on 28 February 2011 and expiring on 27 February 2013 with a balance term of 22 months commencing on 28 February 2013 and expiring on 27 December 2014. 6The effective term of custody for the 3 offences consisted of a non parole period of 3 years 6 months and a balance term of 22 months, an overall total term of 5 years 4 months. These reflected a "discount" of 37% made up of 17% for the delayed plea of guilty and 20% for assistance to authority. Although conventionally allowance for the latter has designated elements for past and future assistance, the Crown acknowledged that the applicant did fulfil his undertaking and the proceedings in respect of which he gave it have been completed. Both the Crown and the applicant accepted that the combined discount of 37% was appropriate to the circumstances. Although his Honour did not nominate a "starting point" it would appear that, applying that discount to the overall term, a point can be calculated in the order of 8 to 9 years. 7The facts were not in dispute and were put before the Court in an agreed statement. In brief, the applicant conducted a hairdressing business from a shop in Sydney city. On three occasions a police undercover operative contacted the applicant and in exchange for $300 on each occasion the applicant supplied him with a little less than a gram of cocaine. On a fourth occasion, for the same amount of money, a similar quantity of cocaine was arranged to be collected from the shop being left for the operative in an envelope. Pursuant to an authorised telephone interception, police became aware of an arrangement between the applicant and a "customer" and surveyed the latter entering and leaving the shop. He was arrested and found to be in possession of about 1gram of methylamphetamine obtained from the applicant. These transactions constituted the ongoing supply charged in count 1. 8Counts 2 and 3 related to amounts of drugs found in the bag on the execution of the search warrant in addition to what has already been described in connection with the Form 1 charges. 9The applicant is now 48 years of age. He has been married and divorced. His former wife gave evidence about the changes to his life by what she now knows to have been connected with drug use. He was, unusually, aged about 35 when he commenced to use illicit drugs. He has a current partner and has a supportive family. The two children of the marriage are now adults. 10Evidence confirmed (by regular analysis) that he had ceased drug use since his arrest. There was a considerable assembly of testimonials establishing his long term generosity and involvement with charitable activity. Minor transgressions in the distant past were ignored by the learned sentencing Judge as irrelevant to the current sentencing task. 11The applicants Notice of Appeal specified 5 grounds namely: (1) The sentence is manifestly excessive. (2) The sentencing Judge erred in his approach to the matters on the Form 1. (3) The sentencing Judge erred in his application of the principles of totality. (4) The sentencing Judge erred in ordering that the sentence for count 1 be wholly cumulative upon the sentence for counts 2 and 3. (5) The sentencing Judge erred in his approach to the evidence establishing the applicant's remorse. 12Grounds 2 and 5 focus on discrete issues and it will be convenient to consider them first and then grounds 1, 3 and 4 can be dealt with together.