Quzag v R [2015] ACTCA 9

Court of Appeal (ACT)|2015-03-18|Before: Refshauge J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Mohanad Quzag be granted bail on the following conditions:

a) That an acceptable person pays the sum of $5,000 to the Registrar of the ACT Supreme Court for payment to the Territory if Mr Quzag does not appear in accordance with his bail undertaking;

b) That he subject himself to the supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him;

c) That he reside at [address redacted] during the remand period;

d) That he report to Belconnen Police Station each day between the hours of 8:00am and 8:00pm;

f) That he submit himself to urinalysis when reasonably required by the person supervising him;

h) That he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City upon his release by no later than 4:00pm on 19 March 2015.

CRIMINAL LAW - JURSIDICTION, PRACTICE AND PROCEDURE - Application for bail - Appeal pending - Cultivating a traffickable quantity of cannabis - Special and exceptional circumstances - Custodial portion of sentence will have been fully or substantially served before the appeal is heard - Prospects of success on the appeal - Combination sentence - Parity - Sentences of co-offenders - Manifest excess

Bui v The Queen [2015] ACTCA 5

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v Hallocoglu (1992) 29 NSWLR 67

R v Quzag [2015] ACTSC 52

Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290

Citation: [2015] ACTSC 52

1. On 12 February 2015, the Appellant, Mohanad Quzag, was convicted on his plea of guilty of an offence of cultivating, on 10 November 2012, a traffickable quantity of cannabis plants with the intention of selling them and sentenced to a term of imprisonment of 28 months, with the first six months to be served by full-time custody, the next eight months by periodic detention and the remaining 14 months to be suspended and a good behaviour order was then made.

2. On 6 March 2015, Mr Quzag appealed against the sentence on two grounds: that the sentence was manifestly excessive and that it failed to accord adequate - I assume what is meant really is 'appropriate' - parity with the sentences imposed on his co-offenders.

3. The offence arose out of the cultivation of 98 plants in a substantial residence in Macgregor. Police had maintained surveillance of the premises and the cannabis plants were discovered when police searched the premises under the authority of a search warrant. In all, five persons were charged as a result of the police investigation. All, save one, have now pleaded guilty and have been sentenced. It is the sentences of the other three offenders that have given rise to the issue of parity which has been raised on the appeal.

4. Mr Quzag has now applied for bail pending the hearing of his appeal. In Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290, I held that this Court had power to grant bail to appellants in special or exceptional circumstances pending an appeal. I also held that it was a special or exceptional circumstance that the custodial portion of a sentence will have been fully or substantially served before the appeal is heard ([47]). In this case, the next appeal sittings are in May.

5. I was informed by the Acting Registrar that the May sittings appear to be full. However, even if they were not, Mr Quzag would have served half of the full-time custodial portion of the sentence by the time the appeal was heard and, if the Court were to reserve its decision, perhaps up to two or three months after the appeal was determined, then a very substantial portion, if not the whole of the full-time custodial portion, of the sentence would have been served.

6. It seems to me more likely that the appeal will be heard in the August sittings of the Court, by which time Mr Quzag would have served all but a few days of the full-time custodial portion of the sentence. In my view, this is a special and exceptional circumstance.

7. While this full-time portion is not the whole sentence, it is clearly the most restrictive portion and the relevant period for this circumstance. After all, as Hunt CJ said in R v Hallocoglu (1992) 29 NSWLR 67 at 73, periodic detention has a strong degree of leniency built into it. It also allows the offender to be at liberty for five of the seven days per week.

8. While special and exceptional circumstances are a necessary pre-condition to the grant of bail pending an appeal, it is not necessarily sufficient and other matters must also be considered before bail can be granted. While the Bail Act 1992 (ACT) does not directly apply in these circumstances, the matters set out in ss 22 and 23A of the Act may provide a helpful guide to some of the matters to be considered.

9. I noted also in Sherd v The Queen that the prospects of success on the appeal will be an important matter to be considered, in particular, where it can be shown that the prospects of success are weak or negligible, it would be inappropriate to grant bail. In this case, it is clear to me that the sentence imposed by the learned sentencing judge was prohibited by the Crimes (Sentencing) Act 2005 (ACT) and, thus, contrary to law.

10. The sentence is what is known as a combination sentence under s 29(1) of the Sentencing Act, comprising, as it did, of a period of full-time custody, periodic detention, a suspended sentence and a good behaviour order. Since 5 December 2014, however, the Sentencing Act has, by amendment to s 29(1)(a), expressly prohibited a combination of a term of imprisonment to be served by full-time detention and periodic detention, as in this case. This error would be amenable to being regularised under s 61 of the Sentencing Act, but neither party, nor counsel, apparently drew the learned sentencing judge's attention at the time of sentencing to the error, nor have they taken any steps to have it resolved under that section.

11. It is, of course, amenable to rectification on appeal and would enliven the sentencing discretion of the appellate court, though the Appeal Court could require the period of periodic detention to be served by full-time custody.

12. As to the prospects of success on the grounds pleaded in the notice of appeal, I turn first to the issue of parity. While consistency in punishment is a fundamental element of any rational and fair system of criminal justice, as pointed out by Mason J in Low v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610-611, mere disparity is not sufficient for appellate intervention. The disparity must be unjustified or manifest.

13. In this case, there were significant differences between the co-offenders, thus the evidence showed that Mr Quzag had a significantly greater involvement in the illegal enterprise of cultivating cannabis than the other offenders. Her Honour found (R v Quzag [2015] ACTSC 52 at [15]):

The role of the offender is very relevant to the objective seriousness of the offence. The offender attended the premises on an almost daily basis in his role as caretaker of the crop. There was no evidence that the offender was an organiser of the sophisticated operation or that he would himself sell the crop. Nor was there any evidence of the extent of any financial benefit that would flow to the offender. Nevertheless, the role of the caretaker is crucial to such an operation. The offender said that he committed the crime in part because he had incurred drug debts. I infer that the offender was to gain a benefit that was at least significant to him, either a financial benefit or a benefit by way of receiving cannabis or some other benefit in kind. The offender's role was different from that of co-offenders.

14. He also entered his plea very late, unlike the other offenders. While these may not ultimately be sufficient differences to justify the precise disparity between the sentences imposed on the co-offenders, as compared to that imposed on Mr Quzag, it does not strike me immediately as justifying a sense of grievance that Mr Quzag has been dealt with inconsistently.

15. Accordingly, I do not find that there are reasonable prospects of success on the issue of parity, although, of course, when the appeal is argued, that may change because of more detailed submissions that I would expect to be put.

16. As to manifest excess, the position is different. Her Honour, in considering comparable decisions (Barbaro v R [2014] HCA 2; (2014) 88 ALJR 372 at 379; [40]-[41]), referred to cases all involving the cultivation of a commercial quantity of the plants, rather than a traffickable quantity. While obviously the number of plants is mathematically on a continuum, that is by no means the end of the matter. The penalties for the two offences are markedly different. Cultivation of a traffickable quantity of cannabis plants attracts a maximum penalty of 1000 penalty units (that is, a fine of $140,000, at the time) and imprisonment for ten years (s 603(5) of the Criminal Code 2002 (ACT)), whereas cultivating a commercial quantity of the plants attracts a maximum penalty of 2500 penalty units (a fine of $350,000) and imprisonment for 25 years (s 603(3) of the Criminal Code).

17. The penalties for the two offences are very different and, as the High Court has made plain in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]-[31], the maximum penalty is a very important consideration by sentencing judges in determining the seriousness of the offence. Further, while the quantity of a drug remains a relevant factor, the quantity is not the chief consideration when sentence is to be determined (see Bui v The Queen [2015] ACTCA 5 at [41]).

18. Despite her Honour's finding of the role that Mr Quzag played, the number of the plants and the subjective circumstances involving him, it seems to me that there is a reasonably arguable case to say that, for a young man of 21 years, the sentence was a severe one for a person not the principal of the operation, especially in the light of the sentences imposed for much more serious offences.

19. Thus, it seems to me that there is a reasonably arguable case that the sentence was infected by error and is manifestly excessive. Of course, my finding is only of an arguable case and does in no way suggest that the appeal, when fully heard, will ultimately be upheld.

20. The question then is whether bail should be granted. Mr Quzag has lived with his mother prior to his imprisonment and was employed. His employer is prepared to have him back. His employer described him as "hard working and reliable." He went on to say:

We wish to re-employ Mr Quzag as soon as possible as his contribution to each project in which he participated in (sic) was of great assistance.

21. No question has been raised of flight, though the fact that his incarceration may be confirmed on appeal is always a powerful factor to flee. I am, however, satisfied that, with appropriate bail conditions, it is unlikely.

22. In the circumstances, I am prepared to grant him bail on the following conditions:

a) That an acceptable person pays the sum of $5,000 to the Registrar of the ACT Supreme Court, for payment to the Territory if Mr Quzag does not appear in accordance with his bail undertaking;

b) That he subject himself to the supervision of the Director-General, or her delegate, and obey all reasonable directions of the person supervising him;

c) That he reside at [address redacted] during the remand period;

d) That he report to Belconnen Police Station each day between the hours of 8:00am and 8:00pm;

f) That he submit himself to urinalysis when reasonably required by the person supervising him;

h) That he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City upon his release by no later than 4:00pm on 19 March 2015.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

(Sentencing) Act 2005

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