R v Barkho

V. Lydiard (Crown) COUNSEL: P. Boulten SC (Appellant)

S. Kavanagh (Crown) SOLICITORS: The Law Practice (Appellant)

IN THE COURT OF CRIMINAL APPEAL 2005/342

STUDDERT J HOWIE J LATHAM J

Thursday 9 June 2005 REGINA v JOSEPH BARKHO Judgment 1 STUDDERT J: On 2 June 2004 the applicant, Joseph Barkho, who had earlier pleaded guilty to one count of supplying a prohibited drug, namely methylamphetamine, in a quantity not less than the commercial quantity, was sentenced to six years imprisonment with a non parole period of four years. The applicant seeks leave to appeal against this sentence. 2 The offence is one in a category for which s 33(2) of the Drug Misuse and Trafficking Act provides for a maximum penalty of twenty years imprisonment or a fine of $350,000 or both. In addition to the offence charged in the indictment, the sentencing judge was asked to take into account a Form 1 offence of possession of cannabis. 3 The applicant was arrested on 15 May 2002 and was detained in custody until granted bail on 23 September 2002. He returned to custody on 26 March 2004. Hence there were 198 days spent in custody before the applicant was sentenced, and it was for this reason that the sentencing judge backdated the sentence he imposed on 2 June 2004 to commence on 17 November 2003. It is not contended that there was any error in this approach. 4 The objective facts relating to the offence charged were presented in summary form in a statement of facts, and the sentencing judge drew upon that statement in his outline set out in the remarks on sentence. I do not understand there to be any complaint made about the facts as summarised on pp 2-5 of the remarks on sentence, which I here incorporate: "I now turn to the facts of this offence. I refer to these facts in summary. They were agreed as part of exhibit A tendered on behalf of the Crown under tabulation 2 in that exhibit. On 11 April 2002 a warrant was granted for the interception of mobile phone calls to a co-offender, William Odisho. A number of calls involving Odisho were recorded, including reference to a supply of drugs. An undercover operative 'Wassim' made calls to Odisho and met him in a car park of the Wakeley Shopping Centre on 10 May 2002, purchasing from him amphetamines and arranging for additional supplies to be purchased at a later date. On 14 May 2002 Wassim called Odisho and spoke to him about purchasing drugs. On the same day telephone intercept material revealed that a message was left on the voicemail for Barkho's mobile phone, asking Joe to call Odisho urgently because 2,000 of the small ones were wanted. On 14 May 2002 Barkho returned Odisho's call and Odisho said that he wanted to sell 1,000 of the Star and 1,000 of the VW the following day, prices were discussed. Later on on 14 May Barkho called Odisho and they discussed the timing of delivery. On 15 May the undercover operative Wassim sent an SMS message to Odisho about meeting in the car park to purchase 2,000 tablets. Odisho agreed to bring these tablets. At about 12.54pm Barkho called Odisho and they discussed a press that was being made which would involve 2001 type. The police had Odisho's home under surveillance and at 1.30pm both Odisho and Barkho were at the house at 4 Esperance Crescent. Barkho's vehicle VVA-482 was parked outside [and so was a white Corona EV 262]. At 1.37pm Odisho called Wassim to tell him that there would be 2,000 but with a different stamp and a different colour. Shortly thereafter Barkho drove away from Esperance Crescent in his vehicle and then Odisho and another person walked from that address to the Wakeley Shopping Centre, where Odisho approached Wassim and spoke to him about the tablets that could be supplied. At this point it appears that Odisho used his mobile phone to call Barkho saying that Wassim wanted the VWs that he had tried. Odisho and Wassim had further conversations about types of tablets and Wassim agreed to buy 2,000. Odisho then walked back to 4 Esperance Crescent, where Barkho had just returned. Barkho then left again, at which stage he called Odisho and said Odisho's friend would have to wait for half an hour or an hour. At 3.38 Odisho called Wassim and asked if he could wait and confirm that he could get 2,000 tablets. Later on that afternoon Barkho called Odisho and said that he would have the tablets in 20 minutes and that Barkho himself would deliver them. Later on Wassim called Odisho, who arranged to meet him in 5 to 10 minutes. Odisho called Barkho and told him to go into the road near his place where there would be a white car. At 5.08 Barkho's vehicle arrived in Lamond Street and stopped opposite the Corona vehicle [EV 262]. Odisho got out of the car, walked to the driver's side of Barkho's vehicle and spoke to the driver. Odisho walked away from the car with his jacket zipper drawn below his chest, a brown item protruding and a bulge under the front of his jacket. He walked to the shopping centre car park, approached Wassim's vehicle, got into the front passenger seat holding a brown paper McDonald's bag containing pink tablets. At this point the police arrested Odisho. 1,899 tablets containing methylamphetamine were obtained, packaged into 9 plastic bags and weighing 623.5 grams. A further 3 tablets were later found. The police also moved on the Corona EV-262 parked in Lomond Street and arrested Barkho, who was sitting in the driver's seat with other persons Hall and Gonzales. Barkho was searched. In his right pocket was $266.55 in cash, which he said was his personal money. In his left pocket was $1,110 cash which Barkho said was paid to him by a friend called John for fixing Barkho's car. The police then searched Barkho's car. Inside the car was a mobile phone number 0415-575-113. Barkho's wallet and a number of bags containing cannabis with a total weight of 50.62 grams were also seized. Barkho claimed ownership of all of these items. He was arrested and taken to Fairfield police station where he participated in a record of interview. He told the police that he had known Odisho for about five years and that Odisho was a friend of Barkho's father. He said that that day he went to his father's house and then to Fairfield. Odisho called his mobile phone and told him to drive near Wakeley shops, where he would be in a white Corona. Barkho drove there he said and pulled up to where Odisho was parked in a white Corona with two other people. Odisho walked to the driver's window and spoke to him, then left saying that he would meet Barkho in an hour. Barkho then stayed in the Corona with the others. At first Barkho said to the police that he did not know if he gave Odisho a brown paper bag, then he said to the police that he did not give it to him, then he said that he did give him a bag which had been sitting on the seat beside him. He said that he did know what was in the bag but that it was a little bit heavy. He said that it had been sitting like rubbish in the front of the house on Bulls Road and he took it to see what was inside it. He said he felt the side of the bag and it felt like tablets. He thought it was drugs because of its heaviness but he did not open the bag to see what was inside. He admitted ownership of the cannabis found in the car and said that it was for his personal use. He was then charged." 5 The applicant was born on 16 May 1978, so that he was twenty-six years of age at the time he was sentenced. He had one prior conviction in 1997 for possession of a prohibited drug. Following conviction, he was dealt with by way of fine only. 6 There was evidence before the sentencing judge concerning the subjective features of the applicant's case. He was the youngest of five children born of Assyrian parents who migrated from Lebanon in 1976. His parents separated and his father remarried. The judge noted that the applicant lived with his father and stepmother for a period and that he had a good relationship with them. The father had become ill and the applicant performed some role in assisting his father to obtain medical treatment. 7 By way of employment background, the applicant, having left school prior to attaining the Higher School Certificate, found work as a general hand with a furniture manufacturer. He then worked at a bakery, but his Honour noted that after an aggregate period of six months in those two avenues of employment, the applicant had a lengthy period of unemployment. After he had been granted bail following his arrest for the subject offence, the applicant found work as a process worker and then later with a printing company as a general hand. These two positions gave the applicant employment for a period in excess of six months, but, as his Honour remarked, the applicant attributed his intermittent employment to a lack of motivation caused by heavy use of marijuana. 8 The report of the Probation and Parole Service placed before the sentencing judge was not particularly helpful to the applicant. There was, however, a hopeful note contained in the following section of the report, noted by the sentencing judge: "It is of concern that he has tried to avoid the responsibility for his offending by placing blame on the co-offender. However, he has demonstrated positive changes in response to incarceration subsequent to his release on bail by seeking paid employment, reducing the levels of drug consumption and assisting his father in his rehabilitation." 9 The sentencing judge referred to the content of a report of a psychologist, Ms Anita Duffy. Ms Duffy noted the applicant was traumatised by the time spent in prison prior to being granted bail and further noted that after obtaining bail the applicant had made an effort to help his father. Ms Duffy considered the applicant would respond well to counselling involving self-esteem building and stress management. 10 Because the applicant pleaded guilty before the District Court on 9 February 2004 after having been committed for trial from the Local Court, the judge allowed him a fifteen percent discount on the sentence he would otherwise have imposed. His Honour also found special circumstances for the purpose of s 44(2) of the Crimes (Sentencing Procedure) Act because the applicant was a young man and because of considerations concerning his rehabilitation and reintegration into the community when the applicant is eventually released. 11 I pass from this review of the objective and subjective features of the case to a consideration of the grounds upon which the applicant here seeks to challenge the sentence that was imposed. Four grounds have been expressed: "(i) his Honour erred in his finding that the applicant's criminality was greater than that of the co-offender, Windi Odisho;

(ii) his Honour erred by differentiating between the applicant and Windi Odisho because of "the explanation or lack of it that was given to the police" by the applicant;

(iii) his Honour erred by having insufficient regard to the applicant's insignificant criminal record and by considering his prior conviction as an aggravating circumstance;

(iv) his Honour's sentencing exercise miscarried because the applicant has been left with a justifiable grievance due to the disparity between his sentence and the sentence imposed on his co-offender, Windi Odisho." 12 The focus of the grounds expressed is on the claimed disparity between the sentence imposed upon the applicant and the sentence imposed earlier by the same sentencing judge upon the co-offender Odisho. Odisho was sentenced to five years three months imprisonment with a non parole period of three years six months. 13 His Honour expressed himself as being alert to the parity issue when he was sentencing the applicant and made specific reference to R v Lowe (1982-83) 154 CLR 606 and in particular to the remarks of Gibbs CJ at 609, namely: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence have to be taken into account." 14 The sentencing judge distinguished between the position of the applicant and Odisho on three grounds which he expressed:

(a) the extent of the applicant's involvement in the enterprise;

(c) the explanation or lack of explanation that he gave to the police. 15 The judge made these findings about the extent of the applicant's involvement (ROS 6): "In my opinion, the telephone taps reveal that he was involved as a middle order street seller. His attempts to suggest he did not know anything about the contents of the paper bag are inconsistent and in my opinion do not agree with what appeared in the telephone intercepts. I reject his explanation as being untruthful. I find that the facts of the offence with which he has been charged and to which he has pleaded guilty is at a level of criminality slightly below the middle range of offending. I find all of these facts beyond reasonable doubt, that Odisho contacted him to get drugs to supply and that he supplied them with a ready capacity to do so. I find that he was the next person up the chain from Odisho and I consider that his criminality is greater than that of Odisho. An argument for parity with Odisho should not be accepted." 16 It has been submitted here that the judge was in error in placing the applicant higher up in the chain of distribution than Odisho himself, particularly when the evidence indicated that the applicant was to receive a lesser profit from this illicit transaction than Odisho. (According to one of the intercepted discussions between the applicant and Odisho, the applicant was to receive a profit of $1 per tablet sold whilst Odisho was to receive $2.50 per tablet sold.) It was submitted that the circumstance that Odisho looked to the applicant to supply him did not lead to the conclusion that the applicant's objective culpability was greater than that of Odisho. Further, attention was drawn to the submissions made on behalf of the Crown before the sentencing judge which could be treated as conceding at one point at least, that it would be appropriate for the sentencing judge to regard the applicant's culpability as less than that of his co-offender. 17 Notwithstanding those submissions, it seems to me that it was open to the judge to make the finding that he did make as to the applicant's position in the chain. The text of the intercepted conversations supports his Honour's finding and the conclusion that Odisho was dependent upon the applicant to provide him with the drugs. 18 The explanation for the difference in the sentence imposed upon Odisho on the one hand and upon the applicant on the other hand appears essentially to have been in the timing of the pleas. The applicant pleaded guilty later than Odisho, who received the benefit of a twenty-five percent discount. Hence, it seems that the sentencing judge took the same starting point for both offenders, namely a sentence of seven years. Then, in the case of Odisho that was reduced by twenty-five percent, and in the case of the applicant the reduction was fifteen percent. 19 The only other point of distinction to which the judge referred was "the explanation or lack of explanation that he gave to the police" (see para 14(c) above). The judge did find that the applicant gave an untruthful explanation to the police, but when passing sentence on Odisho the judge made it clear that he rejected that offender's assertion that the offence for which he was being sentenced was the offender's only involvement in supplying illegal drugs. 20 When one considers what the judge said when sentencing Odisho, it is difficult to understand how the applicant's lack of frankness to the police could have been regarded as a point of distinction between the two offenders. On the contrary, this appears to have been a fault common to both of them. 21 A justifiable sense of grievance may, of course, arise even where as here the levels of involvement of co-offenders in the commission of the crime were not the same. A justifiable sense of grievance may arise where co-accused are sentenced on different factual bases which justify different sentences if the sentences are disproportionate to the difference: see Hauser (unreported, NSWCCA, 11 December 1997) and in particular the judgment of Dunford J. In considering the applicant's asserted grievance, it is necessary to weigh up all the matters to which Gibbs CJ referred in Lowe in the passage set out earlier (para 13 above). 22 There were two significant matters which required consideration in comparing the culpability of the applicant with that of Odisho, additional to those matters addressed by the judge, namely:

(ii) the Form 1 offences of each. 23 The applicant had but the one prior conviction for possession of a prohibited drug (see para 5 above). Odisho on the other hand had a criminal history going back to 1990: his offences included assault occasioning actual bodily harm, assault and malicious damage, and malicious wounding. He had also been imprisoned for a drug offence. Other offences included contravention of an apprehended violence order, break and enter a building to commit a felony, and assault occasioning actual bodily harm. 24 As to the Form 1 matters, in the applicant's case there was but one matter, namely possession of cannabis. In Odisho's case there were four matters taken into account on his Schedule. The first of these concerned drug dealing with the undercover operative on 10 May. The second matter concerned possession of a small quantity of methylamphetamine. The third matter concerned possession of a small amount of cannabis. The fourth matter concerned the ongoing supply of a prohibited drug. There were a number of intercepted conversations involving Odisho which referred to agreements to supply prohibited drugs, supporting the offence of the ongoing supply of prohibited drugs. Whilst consideration of the transcript of those intercepted conversations does seem to indicate that the applicant also was involved as a potential supplier in the transactions to which those conversations relate, no corresponding offence was alleged against the applicant and when one compares the criminality disclosed on each Form 1, that of Odisho is significantly greater than that of the applicant. 25 In my view, in failing to bring into account the comparative criminal histories and the content of the Form 1 matters, his Honour fell into error, and this failure disadvantaged the applicant. I consider that once those matters are taken into account, the applicant's claim to have been left with a justifiable grievance due to the disparity between his sentence and Odisho's sentence is made good. Hence I consider this appeal should succeed. It is unnecessary to say anything further about grounds (i) and (ii), but for the sake of completion I propose to deal shortly with ground (iii). 26 When considering aggravating factors for the purposes of s 21A of the Crimes (Sentencing Procedure) Act, his Honour said (ROS 15): "In relation to aggravating circumstances, it is suffice to say that the offender has previous convictions." 27 His Honour had correctly observed earlier (ROS 5): "In 1997 the offender was convicted of possessing a prohibited drug and was fined. Otherwise he has no criminal convictions." 28 And then (at ROS 14), addressing s 21A, his Honour recorded: "(e) he has a previous conviction to which I have referred." 29 Whilst there is an obvious error in the reference to "previous convictions", the position was correctly stated by his Honour twice previously. Hence I would not conclude that his Honour proceeded with his sentencing task upon the basis that the applicant had a criminal history other than that precisely recorded by his Honour at p 5 of the sentencing remarks. 30 Mr Boulten correctly submitted that this was not a case in which the applicant's previous history should have led to an aggravation of penalty. Had his Honour been influenced by the offence committed in 1997 to have increased the penalty he would otherwise have imposed, he would have erred in doing so. However, since I am of the opinion that this appeal should succeed in relation to ground (iv), there is no occasion to consider further whether he was so influenced. 31 In my opinion, the requirement to bring into account the lesser criminal history of the applicant and the more significant criminal offences of Odisho set out on his Form 1 warrants the intervention of this Court . 32 But for the greater discount to which Odisho became entitled for the timing of his plea, I would have been disposed to conclude that a less severe sentence should be imposed upon the applicant than that imposed upon Odisho. However, I would not disturb the discount of fifteen percent which the judge allowed in the applicant's case, and taking into account all the relevant matters reviewed, I would sentence the applicant to a term of imprisonment of five years three months. The finding of special circumstances in his case should stand, and hence I would fix a non parole period of three years six months. 33 Therefore, the formal orders I propose are these:

1. That leave to appeal be granted and that the appeal be allowed;

2. That the sentence imposed upon the applicant be quashed and that, bringing into account the Form 1 offence, the applicant be sentenced to a term of imprisonment of five years three months to commence on 17 November 2003 and to expire on 16 February 2009, with a non parole period of three years six months to commence on 17 November 2003 and to expire on 16 May 2007. 34 HOWIE J: I agree with Studdert J. 35 LATHAM J: I agree with Studdert J. **********

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