Quzag v The Queen

[2016] ACTCA 27

Court of Appeal (ACT)|2016-07-22|Before: Refshauge, Burns and Wigney JJ

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Court

Court of Appeal (ACT)

Decision date

2016-07-22

Before

Refshauge, Burns and Wigney JJ

Catchwords

APPEAL – CRIMINAL LAW – Appeal against sentence –
cultivating a trafficable quantity of cannabis – manifest excess
–
comparable cases – consideration of sentences for more serious offences

Source

Original judgment source is linked above.

Catchwords

APPEAL – CRIMINAL LAW – Appeal against sentence –cultivating a trafficable quantity of cannabis – manifest excess–comparable cases – consideration of sentences for more serious offences– different subjective circumstances– parity – roles ofco-offenders differed – sentence contrary to law – combinationsentence – fulltime custody and periodic detention – periodicdetention more lenient than full time custody – re-sentencing

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Quzag v The Queen (No 4)

Citation: [2016] ACTCA 27

Hearing Date: 2 November 2015

Decision Date: 2 November 2015

Reasons Date: 22 July 2016

Before: Refshauge, Burns and Wigney JJ

Decision: 1. The appeal is allowed.

The sentence of 12 February 2015 is set aside.
Mohanad Quzag is sentenced to imprisonment for 22 months to commence on 28 September 2015, reduced from 24 months for his plea of guilty.
On 27 May 2016 the sentence is suspended.
Mohanad Quzag is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 2 years with a probation condition that he be under the supervision of the Director-General or her delegate for 2 years or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.

The applicant submitted, correctly, that the primary Judge referred to a number of comparable cases, all of which involved sentences, however, for the more serious offence of cultivating a commercial quantity of cannabis, which attracts a much more serious maximum penalty.
Her Honour did refer to that fact but it was not clear how these cases could, in the circumstances, be said to be comparable. The sentencing principles that might be gained from consideration of such decisions were not articulated.
There is no doubt that a careful consideration of the cited decisions leads to the conclusion that general deterrence plays a significant part in the sentence for offences of cultivating cannabis. The cases also stand clearly for the proposition that, nevertheless, there is a place for the amelioration of severity for the particular subjective circumstances of an offender where appropriate.
The difference in the maximum penalties is significant and due weight must therefore be given to the difference in seriousness between the two offences which must be reflected in the relative sentences to be imposed for offenders committing the different offences.
Mr Quzag was a significant participant in the cultivation; indeed, he was central to the operation. Her Honour, however, held that he was not one of the organisers. He was, however, to be rewarded with a benefit.
Mr Quzag was, nevertheless, a young man at the time of the offending. That he was not a minor is not necessarily to deprive him of the leniency that is accorded to young people, especially those who, as her Honour found he was, are still immature. As Hunt CJ at CJ said in Gordon (1994) 71 A Crim R 459 at 469, of a 19 year old, “his youth is not to be disregarded in the sentencing process”.
Mr Quzag had become addicted to cannabis when using it to address his pain and chemotherapy, which somewhat moderates the culpability of his use. He had also, her Honour found, made significant efforts at rehabilitation which appear to have been successful. [Redacted for legal reasons]
This is to be contrasted with sentences for the more serious offence of cultivating a commercial quantity of cannabis in R v Quan; R v Zhang [2014] ACTSC 385, where Mr Quan was a “resident caretaker”, the primary caretaker, but not an organiser, a rather similar role to that of Mr Quzag. In that case, there were 214 plants cultivated. Mr Quan was considerably older than Mr Quzag, being about 45 or 46 years old, but he had no prior convictions and came from a relatively impoverished background. He was sentenced to two years and three months imprisonment, reduced from 3 years for his early plea of guilty. It was a more serious offence than committed by Mr Quzag and Mr Quan had fewer mitigatory subjective circumstances.
In R v Li; R v Jin [2014] ACTSC 304, Mr Li rented a house in another name in which he established a cultivation of 371 cannabis plants, involving a growing arrangement of heaters, fans, timers and hosing. The primary Judge found, at [8], that Mr Li’s role in the operation “was not entirely clear” but that he was “undertaking the day-to-day cultivation and ... [was] the principal occupant of the premises”. He was described as playing a “substantial role”. Mr Li was 48 years old and her Honour inferred that the venture would be a source of income. The cultivation, her Honour found, had been conducted over 3 months.
Mr Li was sentenced to imprisonment for two years and seven months, reduced from three years and four months for his plea of guilty but the period of full-time custody was significantly reduced for Mr Li’s terminal health condition.
The offence was more serious than the one committed by Mr Quzag and the role Mr Li played somewhat more significant. Apart from his illness, Mr Li did not have the same mitigatory subjective circumstances as Mr Quzag.
In R v Nikro [2015] ACTSC 231, Mr Nikro was initially involved with two significant cannabis growing operations in two Canberra suburbs. In one, 105 cannabis plants were found and, in the other, there were 99 plants. Mr Nikro was to receive 10 percent of the proceeds from the first crop and 25 percent of the proceeds from the second crop.
Mr Nikro helped set up the hydroponic system in the first house and occasionally maintained it. Mr Nikro said that he “did more work on” the second crop.
Mr Nikro was 29 years old with a prior criminal history including being convicted of cultivating a traffickable quantity of cannabis, for which he was sentenced to 12 months imprisonment which was fully suspended. He graduated from the Solaris Therapeutic Community Program in the Alexander Maconochie Centre in 2014.
He was sentenced to 15 months imprisonment for the offence of cultivating a commercial quantity of cannabis and 15 months imprisonment, cumulative as to 8 months, for cultivating a traffickable quantity of cannabis. The sentences were reduced by 20 percent for the plea of guilty. The sentence was complicated because Mr Nikro was also sentenced for trafficking in cocaine.
It appears that, while Mr Nikro did not involve himself in the actual tending of the crops to the extent that Mr Quzag did, Mr Nikro did tend the crops and was an organiser of the operation who had a direct financial benefit in the outcome. He did not have the same mitigatory subjective circumstances as Mr Quzag.
Other cases were referred to in submissions which showed that significantly lesser sentences have been imposed for the offence of cultivating a traffickable quantity of cannabis and similar sentences for cultivating a commercial quantity of cannabis. As the High Court has observed in Wong v The Queen (2001) 207 CLR 584 at 605; [57], however, other sentences are not a precedent for any sentencer.
Nevertheless, current sentencing practice is mandated as a consideration to be taken into account under s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). In addition, in Barbaro v The Queen (2014) 253 CLR 58 at 74; [41], the plurality pointed out that “in seeking consistency, sentencing judges must have regard to what has been done in other cases”. Their Honours continued, “The history stands as a yardstick against which to examine a proposed sentence”.
In this case, there were significant subjective circumstances which, while not outweighing the objective seriousness of the offence, were required to be taken into account and which were properly mitigatory. The comparable cases confirm that such subjective circumstances are relevant and are mitigatory. The comparable cases also confirm that the objective seriousness does require consideration of a term of imprisonment to give effect to the need for general deterrence and to mark the seriousness of the offending.
In our view, having regard to the maximum penalty for the offence, the objective seriousness of the participation in the offence by Mr Quzag, his subjective circumstances and sentencing practice, the sentence was manifestly excessive.
In our view, the starting point should have been two years imprisonment, reduced to 22 months for his plea of guilty.

There were, in this case, three co-offenders, Yasin Al Naqib, Nabel Quzag (brother to Mr Quzag) and Mustapha Negro.
Mr Al Naqib was sentenced in the Magistrates Court for the same offence, namely cultivating a taffickable quantity of cannabis. He was sentenced to a Good Behaviour Order for 18 months with a community service work condition of 208 hours.
His role, however, was very limited. He attended the premises on three occasions. While at the premises, he moved equipment and tended the plants with water and fertiliser. His only reward was overnight accommodation. He was 25 years old with a minor criminal record. He entered an early plea of guilty.
Mr Negro was sentenced in the Supreme Court but for aiding and abetting Mr Quzag in the cultivation of the traffickable quantity of cannabis. He was sentenced to 10 months imprisonment reduced from 12 months for his early plea. The sentence was wholly suspended and a Good Behaviour Order made for 18 months.
Mr Negro also played a limited role in the enterprise. He did attend on 21 occasions and, on one occasion was there for some hours helping Mr Quzag move some 40 plants around. There was no evidence of any profit obtained from his activities. Mr Negro was also 21 years old at the time of the offending with a minor criminal record, but being sentenced for dishonestly obtaining property by deception to a Good Behaviour Order which he breached. He was a consumer of cannabis and, although offering to become abstinent, had not done so by the time he was sentenced.
Although the sentence imposed on Mr Negro was lenient, his involvement was much less than that of Mr Quzag and entitled him to a lesser sentence.
Mr Nabel Quzag appears to have played the most limited role of all participants. He attended the house on only 6 occasions and was also charged with aiding and abetting his brother, Mr Quzag. He only entered the house on 5 occasions. On two of the occasions when he entered the house, he appears only to have taken items to the garage. His involvement was equated generally to that of Mr Al Naqib by the primary Judge. He also entered an early plea of guilty.
He was 20 years old at the date of the offence with a minor criminal history. He was employed full-time in the building industry. He denies any substance abuse, though urinalysis did throw that denial into some doubt.
Having regard to these matters, parity with Mr Al Naqib, who had somewhat better subjective circumstances, meant that he was sentenced by making a Good Behaviour Order for 2 years with a condition to perform 220 hours of community service.
It is clear that, while the court cannot ignore the sentences imposed on the co-offenders, there is, in this case, no real issue of parity because of the significant differences, particularly in their participation in the criminality, their rewards from their involvement and in their differing subjective circumstances.
Her Honour, on sentencing Mr Quzag, noted this matter and expressly gave regard to the question of parity. Her Honour said at [16]:

In our view, having regard to the two grounds of appeal that have been upheld, we would re-sentence Mr Quzag to imprisonment for 22 months, the first 8 months of which are to be served by full-time custody and the balance suspended with a Good Behaviour Order for 2 years.
Given that Mr Quzag has already spent some time in custody before he was granted bail, the sentence should be directed to commence having regard to that period of custody.
In the meantime, Mr Quzag’s bail should be revoked and the orders take into account the period of custody consequent upon the revocation of bail.
In re-sentencing Mr Quzag, we have had regard to the purposes of sentencing in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence plays a prominent role, as does denunciation and punishment.
Given his abstinence from cannabis use and his commitment to the treatment for abuse of drugs that he has shown, specific deterrence does not need to play a large part in the sentence.
We have regard to the objective seriousness of the offences. Although the quantity of an illegal drug is not the chief factor in sentencing (Wong v The Queen at 609; [67]- [70]), it is not irrelevant (Bezan (2004) 147 A Crim R 430 at 438; [34]), and the high number of plants makes the offence, together with the sophisticated nature of the operation, the financial benefit from the operation for Mr Quzag makes the offence, objectively a serious one. His level of participation and responsibility also makes the offence a serious one.
I have regard to the matters required to be taken into account under s 33 of the Crimes (Sentencing) Act which, so far as we know them, are set out in these reasons. There are significant subjective factors that are mitigatory.
These include Mr Quzag’s youth and his achieved reform. He also pleaded guilty but it was a late plea which does not attract a significant discount but does show some remorse and the facilitation of the course of justice.
As Hall J pointed out in R v Godden [2005] NSWCCA 160 at [28], the cultivation of prohibited plants where there is a profit motive will require a term of imprisonment. That must apply in this case.
It was for these reasons that we joined in the decision of the Court to uphold the appeal and re-sentence Mr Quzag.

Mr Quzag appealed against a sentence imposed on him in respect of the offence of cultivating a trafficable quantity of cannabis plants contrary to s 616(5) of the Criminal Code 2002. The facts, procedural background, sentence imposed and grounds of appeal are outlined in the joint judgment of Refshauge and Burns JJ. On 2 November 2015, the Court upheld Mr Quzag’s appeal and resentenced him.
My reasons for upholding the appeal differ slightly from their Honours’ joint judgment. At the hearing of the appeal, the Crown conceded that Mr Quzag’s appeal must be upheld because the sentence imposed on him by the learned sentencing judge was contrary to s 29(1)(a) of the Crimes (Sentencing) Act 2005 because it included both full time detention and periodic detention within a combination sentence. That concession was properly made. There was no doubt that the sentence imposed was contrary to law. Accordingly, it was necessary for Mr Quzag to be resentenced.
Despite the Crown’s concession that the appeal must be allowed and that Mr Quzag must be resentenced, argument was heard in relation to Mr Quzag’s two other grounds of appeal: that the sentencing imposed was manifestly excessive and that the sentence infringed the parity principal.
There was no merit in the appeal ground relating to the parity principal for the reasons jointly given by Refshauge and Burns JJ.
Their Honours have found that the sentence imposed was manifestly excessive. I have, with respect, some doubts that it can be concluded that the sentence was manifestly excessive. The offence was objectively very serious. It carried a maximum penalty of ten years imprisonment. The role played by Mr Quzag in the criminal enterprise responsible for cultivating the cannabis plants was significant and crucial. The quantity of cannibals plants involved was towards the top end of the trafficable range. The need for general deterrence was a significant factor in sentencing for the offence.
It may be accepted that Mr Quzag’s personal circumstances warranted a degree of leniency in the sentence imposed. Some may consider that, in light of those circumstances, the sentence imposed on Mr Quzag by the sentencing judge was somewhat harsh. In my view, however, Mr Quzag’s personal circumstances do not compel a finding that the sentence imposed was unreasonable or plainly unjust.
Mr Quzag relied on sentences imposed in three supposedly comparable cases to demonstrate that the sentence imposed on him was manifestly excessive. Those sentences are referred to in the joint judgment of Refshauge and Burns JJ. Even accepting that there may be some similarities between the facts and circumstances of those cases and the facts and circumstances in Mr Quzag’s case, I doubt that the sentences imposed in that small selection of cases is capable of demonstrating that Mr Quzag’s sentence was manifestly excessive for the reasons given by the New South Wales Court of Criminal Appeal in Frahm v R [2014] NSWCCA 10 at [19] (Hoeben CJ at CL, Schmidt J and Barr AJ agreeing); referred to in Dalton v The Queen at [19].
It is apparent from the sentence imposed on Mr Quzag consequent upon the upholding of his appeal that the members of this Court would have imposed a different sentence on Mr Quzag to that imposed by the learned sentencing judge. It is well-established, however, that such a circumstance does not establish that the sentence imposed by the sentencing judge was manifestly excessive: Markarian v The Queen (2005) 228 CLR 357 at 371 [28].
I joined in the orders made on 2 November 2015 because the appeal ground based on s 29(1)(a) of the Crimes (Sentencing) Act had been made good and Mr Quzag had to be resentenced. For the reasons jointly given by Refshauge and Burns JJ, it was inappropriate to simply “adjust” the sentence in the mathematical manner advocated by the Crown. I also considered it preferable for this Court to resentence Mr Quzag rather than remit the matter to the sentencing judge to correct the error.
I agree, for the reasons given by their Honours that an appropriate sentence for Mr Quzag is a sentence of imprisonment for 22 months, the first eight months of which are to be served by full time custody and the balance suspended with a Good Behaviour Order for two years.

Quzag v The Queen

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