R v Chidiac

The Charges

1. The judge imposed an aggregate sentence for all of the offences pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 53A(2)(b) requires a judge to indicate the sentence that would have been imposed for each offence. Section 44(2C) provides that there is no need to indicate the non-parole period that would have been imposed for each offence, unless it is required by s 54B. The court is obliged by s 54B(4) to make a written record of the non-parole period it would have set, for an offence to which a standard non-parole period applies, if a separate sentence of imprisonment had been imposed for that offence. However, the failure of a court to comply with s 54B does not invalidate a sentence.
2. There was only one count on the indictment that carried a standard non-parole period, namely count 3, which was an offence of possession of an unauthorised firearm.
3. The four counts on the indictment and the indicative sentences imposed by the judge were as follows: Count 1: This was an offence of knowingly take part in the manufacture of a prohibited drug contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 15 years imprisonment. The offence involved the applicant allowing his premises to be used to manufacture methylamphetamine. In indicating a sentence for this offence, the judge took into account the matter on the Form 1, which was an offence of knowingly take part in the supply of 9.78 grams of 3,4-methylenedioxymethylamphetamine (ecstasy), contrary to s 25(1)/29 of the Drug Misuse and Trafficking Act. The sentence indicated by the judge was imprisonment for 4 years and 6 months. Count 2: This was an offence of knowingly taking part in the supply of a prohibited drug, namely methylamphetamine contrary to s 25(1)/29 of the Drug Misuse and Trafficking Act. The maximum penalty for this offence is 15 years imprisonment. The total amount of prohibited drugs that were seized on the applicant's premises was 175.51 grams of methylamphetamine and 9.78 grams of ecstasy. The applicant was sentenced on the basis "that he allowed those pills to be on his premises knowing they were to be supplied" (ROS 5). The judge indicated a sentence of imprisonment for 4 years that he said would have been served concurrently with the sentence for count 1. Count 3: This was an offence of the possession of an unauthorised firearm, namely a .22 calibre revolver contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is 14 years imprisonment with a standard non-parole period of 3 years imprisonment. The applicant was sentenced on the basis "that he knew the firearm was in his home and that he allowed it to remain [in] it" (ROS 5). The judge indicated a sentence of 3 years imprisonment that he said would have been partially accumulated with the sentences imposed in counts 1 and 3. The judge did not indicate a non-parole period. Count 4: This was an offence of doing an act with intent to persuade the applicant's former wife, a potential witness in the applicant's trial, not to attend as a witness contrary to s 323(a) of the Crimes Act 1900 (NSW). The applicant's offending behaviour concerned a series of text messages sent by the applicant to his former wife. The maximum penalty for this offence is 7 years imprisonment. The judge indicated a sentence of 3 years 6 months imprisonment, which he said would have been totally accumulated upon the sentences imposed for counts 1, 2 and 3.
4. In relation to the matters on the s 166 certificate, the indicative sentence was one month's imprisonment. The judge declined to impose a sentence for the offence of possession of ammunition.
5. The judge sentenced the applicant to an aggregate term of imprisonment of 8 years. After applying a discount of 10 per cent for the pleas of guilty, the sentence was 7 years 2 months with a non-parole period of 5 years 5 months commencing on 19 September 2013 and expiring on 18 February 2019. A balance of term of 1 year 9 months was set, which expires on 18 November 2020. His Honour declined to find special circumstances.

FACTS

1. A statement of agreed facts was put before the judge, which may be summarised as follows:
2. On 9 February 2012, officers from the Department of Immigration attended the applicant's premises to take his uncle into immigration custody as he had overstayed his visa. The immigration officers were accompanied by NSW police officers. Whilst immigration officials were speaking to the uncle in the lounge room, the police officers waited in the kitchen where they observed on the kitchen table a small bowl containing cannabis, two mobile phones, $90 in cash, a box containing a large number of plastic resealable bags, a set of digital scales, a plastic resealable bag containing brown tablets embossed with the word "Ecky" and a plastic resealable bag containing white tablets.
3. The police found under the kitchen table several containers containing substances, a large glass container with liquid in it and a portable glass cooker. When the police officers went into the laundry, they saw a large glass flask in the sink. This was a reaction flask with approximately a 20 litre capacity.
4. A detailed search of the premises by police, on 9 and 10 February 2012, found in the kitchen a plastic resealable bag containing 11 brown-coloured tablets stamped "Ecky" (later established to be 2.56 grams of ecstasy with 19 per cent purity), a set of digital scales, $90 in cash, numerous Sudafed, Tylenol and Telfast tablets, various containers containing liquid granulose substances or residue, a white box containing clear plastic resealable bags in which were white tablets also marked "Ecky" (later established to be 172.4 grams of methylamphetamine with a purity of 17 per cent) and a black bag containing a revolver.
5. Police found in the dining area a plastic container and several resealable plastic bags containing brown, beige and white tablets (later established to be 30 ecstasy tablets weighing 7.22 grams, the purity of which was not tested). Also found were eight beige tablets (later established to be 3.11 grams of methylamphetamine with a purity of 6.5 per cent).
6. Other items including filter papers, a respirator, facemask, glass coil condenser and a 200 litre drum of ethanol were found on the property.
7. A forensic chemist who attended the scene formed the opinion that pseudoephedrine was manufactured in the premises and consequently methylamphetamine was manufactured from the pseudoephedrine. The forensic chemist calculated the total quantity of the pure pseudoephedrine to be 35.7 grams. He opined that theoretically such a quantity of pseudoephedrine could potentially produce 32.2 grams of pure methylamphetamine, but realistically it would be somewhere between 16 and 26 grams of pure methylamphetamine.
8. The total amount of methylamphetamine seized was 175.57 grams and the total amount of ecstasy was 9.78 grams.
9. The revolver found on the premises was a .22 short-calibre seven-chamber revolver, which was in working order.
10. On 14 February 2012, the applicant was charged with the drug and firearm offences. A brief of evidence was served, which included a statement from his former wife, Mrs Chidiac. A trial date was fixed for 23 September 2013. Between 13 and 17 September, the applicant sent Mrs Chidiac a series of text messages. He asked her if she had been subpoenaed. When Mrs Chidiac confirmed that she had, the applicant sent her a series of abusive text messages. The judge found that the "clear purpose of which was to discourage the former wife from giving evidence at his trial" (ROS 6).

Subjective Circumstances

1. The applicant did not give evidence before the judge. His subjective circumstances were derived from the report of Anthony Diment, a psychologist, which was tendered by the applicant.
2. In referring to the psychologist's report, the judge said that the applicant was born in Lebanon and came to Australia when he was five years old. His parents were good and hard-working people who had contributed to Australia through that hard work.
3. The judge noted that the applicant had left school in year 10, had swiftly completed a tiling apprenticeship and had been "in useful employment constantly from that time" (ROS 7).
4. His Honour said that the applicant started using illegal drugs in his late teens. Initially the drug of choice was marihuana but in his early twenties he commenced using ecstasy. However, cannabis had been a constant drug of usage by the applicant.
5. The judge recounted that the applicant married in his late twenties and had a son who was seven years old. His Honour noted that the applicant was very upset by the break up of the marriage and at about the same time, he started increasing this use of ecstasy and to smoke ice. His Honour observed that the applicant apparently had some untreated long-term depression, but apart from that he had no mental health issues.
6. The applicant was born on 7 September 1979 and was 34 years old at the time of sentence. His prior criminal history disclosed two offences of possession of prohibited drugs (2001) for which he was convicted and fined. As to the applicant's criminal record, the judge said (ROS 7): "Somewhat surprisingly for a man who has had a long term drug habit he has no, relatively no prior convictions. He has two minor drug offences from 2001 for which he received fines and he is to be treated as if he, in effect, he were a relevant first offender and to obtain the leniency that goes with that."

Some findings by the judge

1. The judge regarded the two drug charges (counts 1 and 2) and the possess firearm charge (count 3) "to be below, but certainly not at the bottom of the range of objective seriousness" (ROS 6). As to count 4, the interference with the witness offence, his Honour regarded this offence "to be at the mid-range of objective seriousness" (ROS 6). His Honour said that the two matters on the s 166 certificate were towards the bottom of the range.
2. When sentencing the applicant for count 4, the judge observed that the applicant's trial was aborted because of the text messages. His Honour noted that the applicant was on bail at the time the text messages were sent which was "a serious aggravating factor" (ROS 6). His Honour said that Mrs Chidiac made a statement to police indicating that the text messages caused her fear and intimidation and that she no longer wanted to give evidence on behalf of the police.
3. The judge regarded the failure of the applicant to give sworn evidence of remorse to be significant. His Honour was not prepared to accept expressions of remorse through the psychologist's report. His Honour considered the applicant's prospects of rehabilitation to be "cautiously reasonable" having regard to his "long and good work career" and "strong family support" (ROS 8).
4. None of the judge's findings were challenged upon appeal.

Dealing with the Appeal Ground 2: His Honour erred in imposing an aggregate sentence that reflected a total accumulation of the sentence on count 4. Ground 4: The aggregate sentence imposed was manifestly excessive.

Argument

1. It is convenient to deal with these grounds together. The applicant recognised that Ground 2 was in reality a particular of the applicant's complaint that the sentence was manifestly excessive.
2. The applicant referred to the judge's findings of the objective seriousness of counts 1, 2 and 3 and submitted that it was difficult to see how the indicative sentences, particularly in relation to the two drug offences, reflected these findings. This was more so when the applicant was to be treated as a first offender and his prospects of rehabilitation could be regarded as cautiously reasonable.
3. In oral submissions, the applicant pointed to Judicial Commission sentencing statistics that were said to demonstrate, in respect to count 1, that only 12 of 24 people have been sentenced in the District Court to full-time imprisonment and only one offender has been sentenced to a longer term than the applicant's indicative sentence. In relation to count 2, the applicant said that less than 50 per cent of people are imprisoned for that offence. The applicant argued that the "the indicative sentences are plainly unjust, not reasonable" (T5, 8-17).
4. The applicant complained that it was difficult to see how the indicative sentence for count 4 reflected the judge's assessment that it was at the mid-range of objective seriousness with the applicant's subjective features. The applicant contended that there should have been some partial accumulation of the sentence for count 4 and not total accumulation.
5. The Crown submitted that there was a rational basis for his Honour's decision to totally accumulate count 4, as this offence involved a specific victim and completely different offending that had occurred more than 18 months later, whilst the applicant was on bail for the drugs and firearm offences. The Crown argued that the criminality of doing the act, with intent to persuade a witness not to attend, simply could not be encompassed in the criminality of the other offences. The Crown submitted that the decision to notionally accumulate count 4 was clearly open to the judge in the exercise of his discretion.
6. Another submission was that the indicative sentences for counts 1 and 2 were not in any way inconsistent with his Honour's findings of objective seriousness. The Court was reminded that the maximum sentence for these offences was 15 years imprisonment. The Crown contended that his Honour's indication that both the manufacture (count 1), and supply offences (count 2), were notionally entirely concurrent, was very favourable to the applicant as there was additional criminality represented by the applicant allowing the substantial quantity of methylamphetamine in the form of pressed pills, to be on his premises knowing that they were to be supplied.
7. In relation to the statistics relied upon by the applicant, the Crown contended in oral submissions that they are "of extremely limited utility… particularly given that there are no statistics kept in respect of aggregate sentences" (T10, 31-37). The Crown observed that even if the indicative sentences were assessed as being excessive, that did not necessarily mean that the aggregate sentence was. The Crown argued that the aggregate sentence had not been demonstrated to be unreasonable or plainly unjust.

Decision

1. The applicant must show that the aggregate sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]. In Beale v R [2015] NSWCCA 120, Beech-Jones J (with whom Hoeben CJ at CL and R A Hulme J agreed) observed at [78]: "As expressed this ground correctly recognises that it is the aggregate sentence that must answer the description of being manifestly excessive ("unreasonable or plainly unjust": Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). Merely because an indicative sentence for one of the offences might answer that description would not necessarily warrant that conclusion in relation to the aggregate sentence as a whole; the materiality of any error in the indicative sentence to the overall aggregate sentence still needs to be demonstrated (PD v R [2012] NSWCCA 242 at [44]; SHR v R [2014] NSWCCA 94 at [40])."
2. Intervention by this Court is not warranted simply because it might have exercised the sentencing discretion in a manner different to the judge: Markarian at [28]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [57].
3. One of the arguments advanced in oral submissions by the applicant was that the indicative sentences announced by the judge had been discounted by 10 per cent for the pleas of guilty. On this basis, the starting point for the indicative sentence for count 1 was said to be 5 years. This argument should be rejected as it does not stand happily with the judge sentencing the applicant to an aggregate term of imprisonment of 8 years and then after applying a 10 per cent discount reducing the head sentence to 7 years 2 months. It is evident that each of the indicated sentences was not discounted by the utilitarian value of a plea of guilty.
4. Little weight can be placed on the Judicial Commission sentencing statistics referred to by the applicant. In offences involving the manufacture and supply of amphetamines (less than the commercial quantity), there is a broad range of weight and purity of the drug that is not identified by the statistics. Furthermore, the role of offenders in the commission of such offences can vary greatly. The statistics do not identify whether other offences on a Form 1 were taken into account on sentence or whether there were aggravating features, such as being on conditional liberty at the time of the offending, that were factors in the sentencing exercise.
5. Where aggregate sentences are imposed, the limited use of sentencing statistics becomes more apparent. The indicative sentences are not the actual sentence that is imposed. Moreover, the Judicial Commission statistics do not extend to a number of different sentences that overlap or to an aggregate sentence: Knight v R [2015] NSWCCA 222 at [8] and [87].
6. I do not agree with the applicant's argument that the indicative sentences of 4 years 6 months for count 1, and 4 years for count 2, were inconsistent with his Honour's finding that these offences were below, but not at the bottom of the range of objective seriousness (see [26] above).
7. The maximum penalty for each of these offences was 15 years imprisonment. For count 1, the applicant was sentenced on the basis that he allowed his premises to be used to manufacture methylamphetamine, the amount of which the forensic chemist opined was realistically somewhere between 16 and 26 grams of pure methylamphetamine. These estimated amounts were between three times and slightly above five times the indictable quantity of the prohibited drug. Taking part in the manufacture of a prohibited drug has long been regarded as a serious crime. Although the applicant's role was confined to the provision of his suburban premises in which the methylamphetamine was to be made, this was a fundamental step in the commission of the offence. Moreover, the judge took into account the offence of supply of 9.78 grams of ecstasy that was on the Form 1.
8. As the Crown submitted, the offence for count 2, involved additional criminality as the applicant allowed a significant quantity of methylamphetamine in the form of pressed pills (175.51 grams) to be on his premises knowing they were to be supplied. Furthermore, the judge's indication that the sentences for counts 1 and 2 were notionally to be served concurrently was, in my opinion, generous to the applicant if that was what his Honour actually did.
9. The indicative sentence for the possession of an unauthorised firearm, namely a .22 calibre revolver was 3 years. The purpose of s 7(1) of the Firearms Act, which is reflected by a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years, is to deter and punish the possession of unauthorised firearms: R v Dusan Krstic [2005] NSWCCA 391 at [14]. The applicant knew that the firearm was in his home in circumstances where he had allowed the premises to be used for the manufacture of methylamphetamine and there was a significant amount of that prohibited drug for supply. The revolver was in working order.
10. Taking into account those personal circumstances that were favourable to the applicant, I consider that the sentences indicated for the first three counts on the indictment were within the proper exercise of the judge's sentencing discretion.
11. The applicant's complaint that the indicative sentence for count 4 did not reflect the judge's finding of mid-range objective seriousness is without substance. Interference with a potential Crown witness is a serious offence as it undermines the administration of justice. As has been previously said by this Court, general deterrence is paramount for such offences and the conduct should be denounced: Malicki v R; R v Malicki [2015] NSWCCA 162 at [60].
12. An aggravating factor the judge appropriately took into account was that, at the time the applicant tried to persuade his wife not to attend as a witness, he was on bail for the drug and firearm offences: s 21A(2)(j) Crimes (Sentencing Procedure) Act.
13. Another complaint was his Honour's indication that the sentence for count 4 would have been totally accumulated upon the sentences for counts 1, 2 and 3. The difficulty for the applicant in advancing such an argument is that the indicative sentences are not actually imposed, but merely indications of what the judge would have done if he had separately sentenced for each count: Cullen v R [2014] NSWCCA 162 at [26]. This is plainly demonstrated in the present case as the undiscounted head sentence would have been more than 8 years if the judge had partially accumulated the sentence for count 3 on the concurrent sentences for counts 1 and 2 and then totally accumulated the sentence for count 4.
14. In any event, I agree with the Crown's submission that it was open to the judge to totally accumulate the sentence for count 4 as it involved criminality which was distinct from the other offending, involved a specific victim and was committed 18 months later whilst the applicant was on bail. In my view, the judge was entitled to find that the criminality for count 4 could not be encompassed in the criminality of the other offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.
15. Whatever might be said about the indicative sentences, the real focus of the complaint of manifest excess must be upon the aggregate sentence actually imposed by his Honour. I am of the opinion that an aggregate sentence of 7 years 2 months, with a non-parole period of 5 years 5 months, properly reflects the totality of the applicant's offending. Such an aggregate sentence falls within the proper exercise of the judge's discretion. I am not persuaded that the aggregate sentence was manifestly excessive.
16. The orders I propose are:
17. Leave to appeal granted.
18. Appeal dismissed.
19. BEECH-JONES J: I agree with Price J.

Amendments 11 September 2015 - Corrected paragraph numbering and formatting. Added representation and all cases cited to coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2015