R v Barri

LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0186; 02/41/0187 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

• 1 - IN THE COURT OF CRIMINAL APPEAL 060028/04

BEAZLEY J DOWD J GREG JAMES J

OMAR SHARIF BARRI v REGINA Judgment 1 BEAZLEY JA: I agree with Dowd J. 2 DOWD J: The applicant sought leave to appeal against severity of sentences imposed on him by JB Phelan DCJ on 13 June 2003, for two charges under s51A of the former Justices Act 1992; first, that he did Supply cocaine; and, secondly, that he did Supply ecstasy tablets. The applicant was also sentenced by his Honour after a plea of guilty on an indictment that he did take part in the Manufacture of methylamphetamine. Each of those offences carried a penalty of imprisonment for 15 years and/or a fine of $220,000. 3 The matter on indictment took into account, on a Form 1, offences of: Supplying amphetamine; Possessing a precursor to amphetamine; namely Sudafed tablets; Conducting Drug Premises at Mt St Thomas; and Possessing a Prohibited Drug, namely hydroxybutanoic acid. In relation to the first committal charge, the agreed facts were that the applicant supplied 8.7 g of cocaine to an individual. The second charge on that committal was for the supply to an individual of a total of 137 to 138 drug units of ecstasy. 4 The applicant was sentenced to imprisonment on counts 1 and 2 to fixed terms of three years to commence on 16 August 2001 and expire on 15 August 2004. On the matter on indictment, taking into account the matters on the Form 1, the applicant was imprisoned for four years, being cumulative, to commence on 16 August 2004 and expire on 15 August 2008. That latter offence carried a non-parole period of two years from 16 August 2004, expiring on 15 August 2006. The total of the fixed terms taken with the term of the non-parole period of two years, being cumulative, made a non-parole period of five years with an additional term of two years, amounting to a total sentence of seven years.

Facts 5 As a result of information that the applicant and other family members were involved in the supply and manufacture of prohibited drugs in the Illawarra area, a telecommunications warrant was issued for the applicant's mobile phone. As a result of that warrant, the police were able to identify that the applicant was involved in the supply of cocaine, ecstasy and amphetamines, and in particular, the supply of cocaine to a female, named Sergeant. Police obtained and executed a search warrant for the drug house premises, located at 62 Ocean St, Mount St Thomas. 6 Warrants were also obtained for premises at Fairymeadow occupied by a co-participant of the applicant, Ayoub, and Ayoub's de facto. 7 In relation to the first offence, the facts are as follows. The female, Sergeant, would designate quantities of cocaine she wished to acquire through use of the telephone mobile service. Discussions occurred as to quantities and prices. The contact was regular and frequent, involving in excess of 200 phone calls. On one of those calls the applicant told Sergeant, "I'll send Wazza down with it". The applicant's eighteen year old nephew, who was known as "Wazza" was seen to leave the applicant's home and talk to Sergeant, and was captured on a videorecording handing something to Sergeant. 8 When Sergeant's vehicle was stopped by police, a resealable bag was found which contained cocaine. After her release, Sergeant again used the applicant's phone, telling the applicant that she had swallowed the drug when stopped by police, her purpose being to ensure further supply. The drugs seized by Sergeant had a purity of cocaine of 24.5% and were mixed with glucose. 9 The applicant's nephew, who had the nickname "Wazza", was heard to answer the phone on other occasions. Another nephew was also used to deliver drugs. 10 As to the second offence, relating to the supply of ecstasy between March 2001 and August 2003, the applicant agreed to supply ecstasy to various recipients. Telephone calls were monitored of conversations in which references were made to numbers and oblique references were made to drugs, including references to "E's" and "pills", in particular. A quantity of drug units was supplied to a telephone caller by the name of Gilchrist, who attended the Mount St Thomas premises. Gilchrist's vehicle was on one occasion stopped and a female passenger was arrested and charged with possession of 100 ecstasy tablets, which were found to contain a purity of 39%. 11 After Gilchrist was arrested he telephoned the applicant and discussed his arrest, and warned the applicant about phone lines being traced. The applicant said that the phone was not in his name, and that he would change it. 12 A co-offender, Ayoub, was an active participant in supply along with the applicant, he using the applicant's mobile telephone service on occasions, carrying out negotiations on several occasions, and also dealing with the female, Sergeant. Ayoub was described by the applicant as "working" with him. The period of interception related to the actual supply to in excess of 30 different purchasers. During March 2001 to August 2001 a total of 8442 calls were intercepted. 13 When a search was made of the premises at 62 Ocean St, Mount St Thomas, various recipes for the manufacture of drugs including methylamphetamine were found, which had been obtained from the internet. These bore the applicant's fingerprints. In a bedroom within the premises occupied by another co-offender, one Lucisina, a number of blister packs of Sudafed Cold and Flu tablets were found in a drawer. The active ingredient in these tablets is pseudoephedrine, which is used in the manufacture of amphetamines. Traces of pseudoephedrine were found in a plastic container in a microwave oven at the house. 14 In relation to the Form 1 offences, on 21 June 2001 a call was received by the applicant from a person who asked for an "Eight-Ball", a name for 3.5g of amphetamine. The applicant agreed to supply this. Another call was intercepted in which and a female known as "Kimmy" requested $50 of "goey", a common name for amphetamine. There were, evidenced in the transcripts of the telephone intercepts, a number of instances of clear familiarity between these persons and the applicant. The offence of possession of the precursor is as described above. The offence of possession of hydroxybutanoic acid resulted from the finding of a vial containing a blue coloured liquid in the applicant's bedside table which was found to be 0.69g of hydroxybutanoic acid, known as "GBH".

The Hearing 15 At the hearing on sentencing an agreed statement of facts, and a number of witness statements in support of the facts contained in that agreed statement, were admitted into evidence. In addition, an extensive brief of material was tendered by the Crown, to which the solicitor for the applicant objected on the grounds of relevance. The learned sentencing judge said that he would have to read the material to decide on the relevance and thus the admissibility of the extra material. 16 The Crown submitted the material as evidence in support of the charge on indictment, and submitted that this material related to the search of the premises where the drugs were found. The Crown put that if there were to be some appeal, the Crown must have provided evidence to support the charges. The learned sentencing judge received the material for the purposes of deciding on relevance, His Honour making it clear in the hearing that the material was not tendered in support of the charges, but as part of the background factual material. It was submitted on behalf of the applicant before the Court and accepted that the two Supply charges were discreet and not representative charges. 17 Within the evidence tendered at the hearing, in addition to the agreed fact statement, was evidence relating to a record of interview from the female passenger arrested with Gilchrist, when Gilchrist's car was stopped by police while travelling towards Tumut, who was found to be in possession of 100 ecstasy tablets. She stated that the tablets had been provided to her by Gilchrist and that the packet she was given contained amphetamines, the packet having been thrown out of the car prior apprehension by police. Some time after the arrest, a telephone call was made by Gilchrist to the applicant in which a conversation took place referring to the 100 tablets. 18 The applicant at the hearing submitted that the evidence in relation to Gilchrist was not sufficient to meet the appropriate criminal standard to support the charge of Supply against the applicant

19 The first ground of appeal was that the learned sentencing judge failed to have sufficient regard to the precise particulars of the offences to which the applicant pleaded guilty, and wrongly took into account material which should not have been used in determining the sentences to be imposed upon the applicant. 20 The applicant submitted that the Crown tendered two large volumes of material gathered in the course of an extremely intensive investigating period. The tender was objected to as going beyond the agreed facts, but the admissibility of this material was something that had to be determined by the sentencing judge, and His Honour in his remarks on sentence in fact referred to that material. His Honour included references to: the number of phone calls intercepted; the fact that the applicant's premises was guarded by two German Shepherd dogs; that the amount of $29,140 was located in the premises; and that the applicant used his 18 and 14 year old nephews to deliver drugs. 21 It was put on behalf of the applicant that the charges were reasonably precise in their particulars and that agreed facts had been tendered. Objection had been taken to the two volumes of material, on the grounds of irrelevance and the inclusion in evidence of matters going beyond the agreed facts. 22 His Honour made reference to this material on several occasions during the hearing, the last reference making it clear that his Honour would consider the admission of the material only on the basis of it being background material, not as actual evidence of the offences. There was no subsequent objection raised to the course proposed by his Honour. 23 The only issue that his Honour was left to determine was the issue of relevance. In terms of the rules as to relevance, the material clearly was relevant to background, and particularly so in relation to determination of the facts relating to the indictable offence. 24 Except for the determination concerning the admission of the evidence relating to Gilchrist, the learned sentencing judge did not give a formal finding admitting the background evidence. It is, however, clear that the evidence was admissible and that his Honour did admit it on the basis indicated by his Honour at the hearing. 25 It was submitted by the applicant that his Honour inappropriately took into account matters relating to the 8,442 telephone calls, made principally on mobile phones operated by the offender. Reference is made to this number of telephone calls in the agreed fact sheet, with further details provided as to the break up of those calls. There is no error by his Honour in this regard. 26 His Honour, in his remarks on sentence, in referring to the subject premises being guarded by German Shepherd dogs, the amount of money located there, and the use by the applicant of his 18 and 14 year old nephews to deliver drugs, clearly considered this as material to be regarded as relevant to background. 27 In relation to the finding that his Honour had to make relating to the drug premises, it is clear that his Honour was entitled to take those matters into account as part of the surrounding circumstances of the offence. There is nothing to show that his Honour in fact made any finding of an aggravating nature adverse to the applicant in so doing. Consideration of matters giving context to the circumstances in which offences occur does not of itself constitute error and I can see no basis to show that his Honour erred in referring to that material admitted as contextual evidence. 28 At the end of the applicant's submissions concerning this ground and in oral submissions, it was submitted by the applicant that by accumulating the four year sentence on top of the two concurrent three year sentence, that a sentence of seven years with a non-parole period of five years is in all the circumstances excessive. 29 It was further put on behalf of the applicant that there was a failure on the part of the learned sentencing judge to deal with the issue of totality in his Honour's failure to make reference to totality as such, when considering the sentences to be imposed. 30 In relation to each particular sentence, I can see no evidence of any improper use by his Honour of the additional material received as background material. In a carefully constructed judgment, his Honour made it clear that he considered, in relation to the available penalty, each of the two committal offences and the indictable offence as being very serious matters. 31 Without specifically referring to totality, it is clear that his Honour, in sentencing the two s51A offences concurrently, and then accumulating the other sentence, was constructing a sentence which reflected the overall criminality of the three offences and the matters taken into account on the indicted charge. 32 The fact that two of the charges are sentenced concurrently is a concession in favour of the applicant, and that his Honour had reduced the non-parole period in the indictable offence to fifty per cent of the head sentence to take into account the special circumstances arising from the need to consider totality in accumulating the three sentences shows that his Honour addressed totality. 33 Taking into account the seriousness of each of the three offences, and that the indictable offence had some relatively minor matters taken into account, there is, in my view, no basis for the claim that the overall sentence imposed is excessive. There is no basis for the submission made on behalf of the applicant that the additional material taken into account in any way affected the proper sentences imposed in each of the three sentences to which the applicant pleaded guilty. They are clearly within the range appropriate for such offences. 34 The offences for which the applicant was sentenced were of considerable gravity and the objective circumstances of each of the offences required sentences of at least the extent of those that the sentencing judge passed. His Honour found special circumstances, in particular in the applicant's psychological condition that led the trial judge to conclude that there was a real prospect of avoiding further offences and achieving rehabilitation. In recognition of these matters, his Honour fixed a non-parole period for the indictable offence equivalent to fifty per cent of the head sentence on that count. The overall effect of his Honour having done so still allowed a shorter non-parole period than ordinarily would have been fixed in respect of the overall sentences albeit that the reduction is not great. These were all matters that turned upon his Honour's exercise of discretion. It is clear that in structuring the sentences as he did and fixing the non-parole period as he did, his Honour had regard to all necessary matters, including totality. There is no error in this approach.

35 The second ground of appeal is that the sentences imposed upon the applicant were excessive when regard is had to the sentences imposed upon the co-offenders, Ayoub and Lucisina. It was submitted on behalf of the applicant that Ayoub received a sentence of three years with a non-parole period of twenty-two months, having pleaded guilty to five offences together with another four matters taken into account on a Form 1, and thus the applicant's sentence by comparison is excessive. 36 It was submitted by the applicant that the offences to which Ayoub pleaded guilty were more serious than those involving the applicant, and that in the two offences which involved the supply of the drug crystalinemethylamphetamine, known as "ice", the drugs were at a "dangerous level of purity". The applicant had no charge relating to that drug brought against him, and it was put that the offences to which Ayoub pleaded guilty rendered comparatively the sentence imposed on the applicant, being more than double that imposed on Ayoub, as entitling the applicant to hold a justifiable sense of grievance.

37 The applicant also similarly relied, although not to the same extent, on the sentence imposed on the co-participant Lucisina and who is charged with three offences and having a further nine offences taken into account on a Form I on one of those offences. He had imposed upon him two cumulative periods of 250 hours of community service, and a suspended two year sentence. It was conceded on behalf of the applicant that the personal circumstances of Ayoub and Lucisina can be distinguished from those of the applicant, but it was put that the distinction does not yield such a stark contrast as the comparison between the respective sentences. 38 The authority primarily governing the question of a claim that a party has a justifiable sense of grievance in respect of other sentences imposed on the same offence is the High Court decision of Lowe v R (1984) 154 CLR 606, and in particular the judgment of Gibbs CJ at p 609. 39 That decision, however, relates to co-offenders in respect of the same offence, not in respect of different offences arising out of the same contemporaneous activity relating to various criminal offences. The issue for the Court to determine as held by Mason J at p 610 is as to whether the particular sense of grievance or of injustice is a legitimate one. Those decisions have been applied in particular in R v Watson (unreported) NSWCCA, 25 February 1992 (see R v Howard (1992) 29 NSWLR 242, which holds that where offences are not substantially the same, due discrimination between the offences would be expected). A matter to be taken into account is the role played by each offender in the commission of the offence, and a different role would be an appropriate basis for some discrimination between the sentences. This matter was also considered in R v Canino [2002] NSWCCA 76. 40 It is submitted on behalf of the respondent to this application that Ayoub had pleaded guilty in the Local Court to five charges of Supplying Prohibited Drugs, and four offences were taken into account on a Form 1. Three of the Form 1 matters were assessed by the learned sentencing judge for Ayoub as being lower in the scale of criminality and the offender had made admissions of possession on arrest, and had entered early pleas on the charges. The learned sentencing judge concluded that the criminal antecedents of Ayoub related to problems in his relationship with his de facto spouse. There were no prior drug matters. The learned sentencing judge had found that Ayoub was not a main supplier, and that he was an intermediate supplier with some drug problems, and the offences were found to be of an intermediate range of sentences. The learned sentencing judge also found genuine remorse. 41 It was submitted by the respondent that the applicant had been central to the organisation, and that sentences imposed on Ayoub were very lenient in view of the objective seriousness of the individual offences, but the respondent submits, and I accept this submission, that the period over which the offences were committed by Ayoub were substantially shorter than those involving the applicant. 42 The offences relating to Lucisina were of a significantly different nature, and were considerably lesser offences. The learned sentencing judge for Lucisina distinguished the role of Lucisina from that of Ayoub, and noted that there were considerably lesser amounts of drugs involved. There was considerable remorse demonstrated by Lucisina, and there was a smaller likelihood of reoffending. It was submitted on behalf of the respondent that Lucisina was considerably younger and considerably less involved. 43 The offences for each of Lucisina and Ayoub were quite disparate and different to the offences with which the applicant in totality was charged. 44 Obviously, offences of a different nature arising out of the same set of circumstances have to be considered in terms of a justifiable sense of grievance. However, there is sufficient difference between Ayoub and Lucisina and the applicant in terms of circumstances, role in the enterprise and the length of period involved, that I do not consider that a case has been made out in terms of Lowe (supra) for this ground of appeal to be made out. I would dismiss this ground.

45 The third ground of appeal is that although the learned sentencing judge made findings as to special circumstances justifying a reduction of the non-parole period in the case of the applicant, the sentence fails to adequately reflect that finding. 46 It is submitted on behalf of the applicant that there were several favourable features of the applicant's case, including problems of childhood violence and the fact that he had been introduced to prohibited drugs as recently as 1997, constituted special circumstances to reduce the period of non-parole custody. The applicant submitted that if a sentence had been structured so as to provide for a seventy five per cent period to be served in custody, and twenty five per cent eligible for release to parole, then the ultimate non-parole period would be five years and three months, and thus the reduction of the non-parole period is a relatively marginal adjustment. 47 The respondent submitted that the non-parole period of five years of the non-parole period was appropriate in the circumstances. 48 It must be remembered that the sentencing procedures for imprisonment are applied under the Crimes (Sentencing Procedure) Act 1999 (the "Act"), wherein a court is obliged to set a non-parole period and a balance of the term. Such sentencing must be in accordance with law. 49 There is a requirement that if the parole period exceeds one-third of the non-parole period for the sentence, then the court can only do so if the court finds that there are special circumstances for the parole period being more, and the court is obliged to record its reasons. 50 It is necessary for a court to look at the overall sentence and the non-parole period in determining what is an appropriate period of imprisonment for the offence. The fact that certain matters may be established as special circumstances then obliges the sentencing court to make appropriate adjustment to the non-parole period, it is not a matter of just finding special circumstances, but special circumstances for the parole period being more than one third of the non-parole period. A finding that there are special circumstances as such will oblige the court to take these into account and to reduce the non-parole period accordingly, but this is subject to the obligation of the court to determine an appropriate non-parole period for the offence. 51 Clearly, where the non-parole period in the indictable offence of four years reduces the non-parole period to one half of that sentence, the court has found that there are special circumstances based on totality for reducing the non-parole period. 52 The court is still obliged, nonetheless, when assessing the total criminality involved to look at the issue as to whether the total sentence is appropriate to ensure denunciation and condemnation of the offences, and also to ensure that the non-parole period is not reduced below an appropriate proportion of the head sentence. 53 In the circumstances of the very serious offences involved, I can see no basis to find error on the part of his Honour in the structure of the total sentence. Clearly, the reduction for the indictable offence to fifty per cent is an appropriate reduction for that offence, taking into account the principles of totality. Section 44 of the Act relates to a particular sentence and has no application to an accumulation of sentences. 54 In my view, there is no error demonstrated on the part of his Honour in establishing the totality of non-parole period and the total sentences imposed. 55 I would therefore make the following orders: i. That leave to appeal be granted; ii. That the appeal be dismissed. 56 GREG JAMES J: I agree with the orders proposed by Dowd J and with his reasons for those orders.

57 I add for myself, that the practice that was adopted in this case before the sentencing judge of tendering an agreed statement of facts by consent and the Crown then tendering volumes of miscellaneous statements and other material, which material on an analysis may well contain material additional to or contradictory of that in the agreed statement of facts, is likely to lead, as here, to challenges.

58 The practice is entirely inconvenient. It is not to be expected that a busy sentencing judge with a busy list will have any opportunity to read through that material and reconcile it with the agreed statement of facts, nor, as here and in many other cases, are submissions made on the volumes of material such as to assist the trial judge to detect and draw to the attention of the parties any conflict. If the material is not to be read and used to ascertain the facts, it should not be tendered. If it is, it should accord with the agreed facts or if not, the judge assisted with an explanation as to how the difference might be reconciled. This is not to say that the Crown should not responsibly agree to succinct statements of facts encompassing the matters that could have been proved in evidence illustrating the offender's criminality. But it is to say that the tender of volumes of primary material can operate to inconvenience a proper sentencing process, embarrass the result, or subvert appropriate admissions and a plea. It is to be hoped this practice will not be followed in future.

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