R v Derbas

Court of Criminal Appeal (NSW)|2004-04-19|Before: Wood CJ, Simpson J, Bell J, Mr P

CITATION : R v Derbas [2004] NSWCCA 174 HEARING DATE(S) : 19 April 2004 JUDGMENT DATE : 4 June 2004

JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Bell J at 45 DECISION : Leave to appeal granted, appeal dismissed.

CATCHWORDS : application for leave to appeal against sentence - plea of guilty - supply of prohibited drug (cannabis) - Form 1 offence - goods in custody - level of involvement in organised commercial enterprise - utilitarian value of plea of guilty - sentence not manifestly excessive - parity - witness assistance to police having pleaded guilty in unrelated matters - limit Local Court jurisdiction - whether applicant's sentence could properly be increased by reason of summary offence on Form 1 Crimes Act 1900, s527C LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s47, s58(1) Criminal Procedure Act 1986, s6(1) PARTIES : Crown - Respondent Fadi Derbas - Applicant FILE NUMBER(S) : CCA 60491/03 COUNSEL : Ms E Wilkins - Crown Mr P Byrne SC - Applicant SOLICITORS : S Kavanagh - Crown J Bettens - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0320 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60491/03

WOOD CJ at CL SIMPSON J BELL J

Friday 4 June 2004 REGINA v Fadi DERBAS Judgment 1 WOOD CJ at CL: I have read in draft for the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour. 2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him by Hosking DCJ in the District Court 30 May 2003 following his plea of guilty to an indictment containing a single count of supply of a prohibited drug (cannabis). In sentencing the applicant Judge Hosking also took into account, on a Form 1, pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999, a further offence of having in custody goods that might reasonably be suspected of having been stolen or otherwise unlawfully obtained. 3 Judge Hosking sentenced the applicant to imprisonment for five years and six months with a non-parole period of three years and four months, commencing on 9 February 2003. The statutory maximum penalty applicable to the offence to which the applicant pleaded guilty is imprisonment for ten years.

the sentencing proceedings 4 The charge on the indictment specified a period as commencing on 1 January 2000 and ending on 25 July 2001 as the period over which the offence was committed. 5 The prosecution evidence was put before the sentencing judge in the form of what was described as "a three folder brief". This consisted of statements of witnesses, recordings and transcripts of recordings of telephone intercepts, surveillance records and statements, including videotapes, and photographs. Put shortly, the Crown case was that, at 9 Telopea Street Punchbowl, over the period identified in the indictment, an organised commercial enterprise involving the sale and supply of cannabis was carried on, and that the applicant had a central role in its operation. Although the applicant pleaded guilty to the charge of supply, there was, nevertheless, a significant dispute as to the role he played. Accordingly, a number of witnesses were called to give oral evidence. The sentencing judge watched, and was taken through, a body of videotape evidence, in some of which the applicant was depicted. Evidence was also called on behalf of the applicant. In all, the evidence was given over five days in May 2003. 6 Having heard and seen the evidence, the sentencing judge made findings of fact concerning the applicant's involvement in the enterprise. Those findings were in the following terms: "The Crown alleges that the offender controlled this operation and was the principal in it. Whether that was so in an overall sense, that is to say taking into account the indictment period and the period before that, I am unable to say beyond reasonable doubt. The profits generated from this business must have been very significant. What happened to them I have simply no idea. However, I am able to conclude beyond reasonable doubt that during the indictment period, the offender had the day to day control of the business. He was often physically present at number 9 even if he did not live there. If he did not live there, he certainly spent a lot of time there. The business was conducted, not simply from the garage at number 9 Telopea Street and the driveway, but also from inside the house as well. In addition to sometimes selling cannabis himself, the offender was directing the runners who sold it in shifts from about 9.00 am each day until 10.30 or 1.00 o'clock at night. What the offender did, I find, was highly organised and very commercial. It was also systematic, protracted and a flagrant breach of the criminal law. It involved thousands of sales of cannabis. It involved the employment of juveniles to sell cannabis. It involved the accepting, in a significant number of cases, of stolen goods to pay for cannabis which, in my view, accounts, at least in a large part, for the long list of stolen goods in the schedule to the Form 1. The business was conducted week in and week out, month in and month out. It may be that Shadi Derbas, in fact, started the business. It may be that during the indictment period, Iyman Derbas, in gaol, did have some proprietorial interest in the business, however, I do not need to make exact findings about that matter. … What is clear beyond doubt, in my view, is that the offender played a high level part in the operation of this business during the indictment period." 7 Shadi Derbas is the applicant's brother. Iyman Derbas is his cousin. 8 The applicant challenges these findings of fact. The grounds of appeal as filed are pleaded as follows: "Ground 1: His Honour erred in concluding that during the indictment period the applicant had the day to day control of sale of cannabis from 9 Telopea Street, Punchbowl. Ground 2: The overall sentence is manifestly excessive having regard to the relevant issues in the case for the purposes of sentence." 9 At the hearing of the application an additional matter was raised concerning the manner in which the sentencing judge dealt with the Form 1 offence. In that regard, his Honour said: "Having regard to the gravity of this offence and making a small allowance for the goods in custody matter, bearing in mind that that matter only carries a maximum sentence of six months, in my view, the appropriate starting point for this sentence, having a maximum penalty of ten years, is seven years' imprisonment." 10 This gave rise to a further challenge with which I will deal below.

ground 1: the applicant's level of involvement 11 The first aspect of the challenge to the finding of fact can be disposed of quickly. Senior counsel who appeared for the applicant drew a contrast between two of the findings contained in the passage extracted above, arguing that these were inconsistent with one another. The first of these was that passage in which his Honour found himself unable to conclude beyond reasonable doubt that the applicant controlled the operation and was the principal in it, and two passages which followed shortly after in which he held that the applicant had the day to day control of the business and played a high level part in its operation. 12 I would reject the proposition that these are inconsistent. There is a difference between controlling an entire operation and being its principal, and having its day-to-day management. The sentencing judge was satisfied beyond reasonable doubt that the applicant was involved in the latter way, but was not so satisfied as to the former. I see no contradiction or inconsistency and would reject this submission. 13 Senior counsel for the applicant then argued that the findings adverse to the applicant were not open on the whole of the evidence. It is therefore necessary to say a little more about the voluminous documentary evidence, and extensive oral evidence, which was before the sentencing judge. There was evidence that during April and May of 2000 the applicant made four actual sales and another two in August and November of that year. On two occasions, also in August and November, he supplied cannabis to a Jin Huang Jun, not for money. On about fifteen occasions between January and October 2000 requests for credit were referred to him, and he was present on a number of occasions when sales of cannabis were made by "runners". The applicant was seen coming and going from the premises at various times. He was, in fact, a joint registered proprietor of the premises. 14 The surveillance evidence alone is sufficient to support the finding made by the judge of the applicant's high level of day to day involvement. In addition, oral evidence was given by two witnesses who had been customers of the enterprise. These were Jin Huang Jun and Amber Docherty. Both of these witnesses had been charged with offences to which they had pleaded guilty. Both had received the benefit of a reduction in the sentences imposed (in unrelated matters) as a result of their assistance to police and agreement to give evidence against the applicant. Jun had in fact been involved in a heroin and cocaine supply operation a few doors away in the same street and had on occasions referred customers who requested cannabis to 9 Telopea Street. He had observed customers of 9 Telopea Street requesting credit of individuals employed as "runners" and said that when such a request was made it was referred to the applicant. He had observed the applicant providing food for the "runners". 15 Jun had also observed the applicant's cousin Iyman Derbas at or in the vicinity of 9 Telopea Street, although there was a period of time (between 2 August 2000 and 18 October 2000) when Iyman Derbas was in custody. Iyman Derbas was an exceptionally heavy consumer of cannabis. Jun also claimed, in cross-examination, that the applicant had supplied another person ("Boofsie") with cannabis to supply to prisoners. He had himself, on a couple of occasions, received cannabis from the applicant for the same purpose. 16 Amber Docherty knew the applicant as "Tony". She also observed one of the employees of the business refer requests for credit to the applicant. She had not ever purchased cannabis directly from the applicant. 17 The applicant himself gave evidence. He claimed that he lived with his family at number 8 Telopea Street. He denied having been involved in the business conducted from 9 Telopea Street and denied being a proprietor of the business. He denied living at number 9, although he said he had stayed there on three or four occasions. 18 Iyman Derbas also gave evidence in the applicant's case. In 2002 he entered a plea of guilty to a charge of supplying cannabis and was sentenced to imprisonment for four years with a non-parole period of two and a half years. At the time he gave evidence an application for leave to appeal against the severity of that sentence was pending. He claimed that Shadi Derbas had commenced the business. He claimed that the applicant had no authority to give credit. He said that in 1999 Shadi Derbas was in gaol for three or four months and when released wanted nothing more to do with the business, so he himself took control. This did not involve any discussion or negotiation with the applicant. The applicant, he said, was not involved with him in taking over the business. He said that after his own release from custody, in October 2000, he had resumed control of the business. The applicant was not involved in its management. Iyman Derbas claimed that the applicant's involvement was limited to occasionally handing the cannabis to customers when he was busy or too lazy to do it himself. The effect of Iyman Derbas' evidence was that he attended at 9 Telopea Street at about 8.30 am and directed the operations from a garage that formed part of the premises. This evidence sat uncomfortably with the videotape of a lengthy surveillance operation. Police had eight hundred hours of videotaped evidence, taken between April and October 2000. None of this showed Iyman Derbas as having been present at 9 Telopea Street during the mornings. 19 The challenge was made to Iyman Derbas' credit, inter alia, on the basis that he had, at the time he gave evidence, been charged with murder, a charge that had not been finalised. The inference sought to be drawn was that his evidence was fabricated, and he was prepared to accept responsibility for the management of the cannabis operation since, in the circumstances, he had nothing to lose. When cross-examined along these lines he maintained his innocence of the murder charge and expressed his belief that he would be released from custody about a year later. 20 It was not, of course, obligatory upon his Honour to accept the evidence of Iyman Derbas inculpating himself to a greater extent than the applicant. Considerable emphasis was, in this respect, placed upon his pending application for leave to appeal against the sentence imposed upon him, and he was repeatedly advised that he need not answer questions the answers to which might incriminate him, and that he should consider his position in relation to the pending application. There is another matter in this context which needs to be mentioned. The sentencing judge described as "important to understand" that Iyman Derbas had been in custody during the indictment period other than for a period of about two and a half months, from August to October 2000. In fact, it was during that period of two and a half months that Iyman Derbas was in custody, and his Honour was incorrect in basing a finding excluding Iyman Derbas from management of the business on this misstatement of fact. 21 However, the absence of any sign of Iyman Derbas on the video surveillance tapes during the mornings over a lengthy period, and the inconsistency of that fact with his own testimony, provide an alternative basis for the finding. 22 In my opinion the conclusion of the sentencing judge as to the managerial role played by the applicant was amply justified on the evidence. The first ground of the application should fail.

ground 2: sentence manifestly excessive 23 The maximum penalty applicable to the offence to which the applicant pleaded guilty is imprisonment for ten years. The sentencing judge determined that the appropriate starting point, having regard to all the circumstances (including the Form 1 offence) was a head sentence of seven years. He concluded that the applicant was entitled to a significant discount for his plea of guilty, although it was entered as late as the first day fixed for trial. Notwithstanding that, his Honour considered that the plea of guilty had considerable utilitarian value. This is undoubtedly correct. A trial would have been lengthy and would have involved the calling of a large number of the police witnesses who had been involved in the surveillance operation over a period of more than eighteen months. A great deal of court time, as well as police time, was saved by the applicant's plea. That was, to a very small extent, diminished by the protracted issue of the degree of the applicant's involvement, but the Crown did not suggest that the finding that the plea had considerable utilitarian value was anything other than fully justified. The discount allowed to the applicant in respect of the plea of guilty was twenty per cent. 24 Senior counsel for the applicant contended that the starting point of seven years was excessive, against a maximum penalty of ten years. He pointed out that the applicant had no relevant prior convictions and argued that he was entitled to be treated as a first offender. He further argued that there was no precise evidence about the quantity of cannabis leaf involved and no evidence to identify the quantities involved on those occasions when the applicant was shown actually to have supplied the drug. 25 I would reject each of these contentions. In particular, I would reject the argument that the applicant should have received a lesser sentence by reason of his lack of prior convictions. The applicant was shown to have been involved in this enterprise continuously over a period of eighteen months. His claim that his sentence should have been mitigated to a greater extent by reason of the absence of a prior criminal record needs to be assessed in this light. The very scale of the operation shows, in my opinion, that the starting point of seven years was well within the range available to the sentencing judge. 26 Senior counsel also relied on statistics maintained by the Judicial Commission of NSW, contending that those statistics demonstrate that only one previous sentence has exceeded that imposed upon the applicant. That may be so, but it is not, in my opinion, useful merely to compare sentences without having some regard to the circumstances of the offences. No information concerning the one greater sentence was forthcoming. What distinguishes the present case from those more commonly seen in this Court is the sheer scale of the operation in which the applicant was involved, and the period of time over which it extended. I am quite satisfied that the starting point of seven years was an appropriate one given the circumstances of the case. 27 A subsidiary argument was advanced based upon the sentence imposed upon Iyman Derbas on 20 December 2002 by Judge Goldring. Iyman Derbas was sentenced, as indicated above, to imprisonment for four years with a non-parole period of two years. The most significant factor going towards explaining the discrepancy between the two sentences arises from the relevant findings of fact about the participation of the two offenders. In sentencing Iyman Derbas Judge Goldring concluded that: "While Mr Iyman Derbas was not a directing force, nor was he merely a runner. He was employed in a supervisory capacity … "

That is sufficient, in my opinion, to distinguish the two offenders. Clearly, once the applicant had been found to have the managerial role he did, he had to be sentenced more severely than Iyman Derbas. 28 I would reject this ground of appeal.

supplementary matter 29 The last matter raised was never formulated as a ground of the application for leave to appeal. It concerns the manner in which the judge dealt with the Form 1 offence. As extracted above, his Honour expressed himself as making a small allowance for the offence of goods in custody on the Form 1, noting that that offence carries a maximum sentence of six months. Senior counsel argued that the sentencing judge was not entitled even to make a small allowance for that matter. That is for this reason. 30 The offence of which the applicant admitted his guilt was an offence against s527C(1) of the Crimes Act 1900. That sub-section relevantly provides: "(1) Any person who: (a) has any thing in his or her custody; … which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before a Local Court: (a) … (b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both." 31 S527C appears in Part 14A of the Crimes Act. That Part is headed "Summary Offences". By s6(1) of the Criminal Procedure Act 1986 three categories of offences which must be dealt with summarily are identified. These are:

(a) offences required to be dealt with summarily; (b) offences described by statute as summary offences; and (c) offences (other than those required to be dealt with on indictment) for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than two years. 32 Offences against s527C fall into each of these categories. Such an offence must therefore be dealt with summarily. 33 S58(1) of the Crimes (Sentencing Procedure) Act 1999 relevantly provides as follows: "(1) A Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. (2) … (3) This section does not apply if: (a) the new sentence relates to: (i) an offence involving an escape from lawful custody, or (ii) an offence involving an assault or other offence against the person, being an offence committed (while the offender was a convicted inmate) against a correctional officer or (while the offender was a person subject to control) against a juvenile justice officer, and (b) either: (i) the existing sentence (or, if more than one, any of them) was imposed by a court other than a Local Court or the Children's Court, or (ii) the existing sentence (or, if more than one, each of them) was imposed by a Local Court or the Children's Court and the date on which the new sentence would end is not more than 5 years and 6 months after the date on which the existing sentence (or, if more than one, the first of them) began. (4) In this section: "existing sentence" means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively). "sentence of imprisonment" includes …" 34 The effect of the statutory provisions which I have extracted or referred to is that (absent the use of the Form 1 procedure) a charge under s527C may only be dealt with in the Local Court; and the Local Court is precluded from imposing a sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence where the new sentence would expire more than five years after the commencement date of the existing sentence. 35 If, therefore, the argument ran, the applicant's s527C charge had been dealt with in the Local Court, the Local Court would have been deprived of the jurisdiction to impose any consecutive or partly consecutive sentence upon the applicant. That is because the sentence on the cannabis charge (the "existing sentence") was of five and a half years and any additional (wholly consecutive) sentence would necessarily expire more than five years after the date of the commencement of the cannabis (existing) sentence. If the Local Court would have been deprived of jurisdiction, then fairness would prevent any increase, by a District Court, of a sentence by reference to a Form 1 offence that, if charged separately in the Local Court, could not have resulted in any sentence additional to that already being served. 36 The provisions of s47 of the Crimes (Sentencing Procedure) Act are also material. S47(2)(b) provides: "(2) A court may direct that a sentence of imprisonment: (a) … (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment." 37 Sub-s(4) provides: "(4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject." 38 A Local Court imposing sentence on the goods in custody charge would, by reason of s47(4), be obliged to specify a commencement date of the sentence no later than the date of the expiration of the applicant's non-parole period. That was a period of three years and four months. The maximum sentence applicable to a s527C offence being six months, it could not end more than five years after the date on which the existing sentence began. S58, in the terms in which it was referred to this Court, would not, therefore, preclude a Local Court Magistrate imposing even the maximum term of six months. In those circumstances, and on the facts of the present case, there would be no reason why the sentencing judge could not take the course that Hosking DCJ did, and make a "small allowance" for the Form 1 offence. It is possible that in some other cases the argument might succeed but not on the facts of the present case. 39 S47(4) would be a complete answer to the applicant's argument, except for one thing. S58 was amended with effect from 14 February 2004. The applicant was sentenced on 30 May 2003. While our attention was drawn to s58 in its current form, as it existed at the time the applicant was sentenced, the period of time specified in sub-s(1) was three years. The applicant's non-parole period being one of three years and four months, the original argument revives. It must be considered in the light of the section as it applied at the time of sentencing. At the time the applicant was sentenced, a magistrate would not have had jurisdiction to impose any sentence that would have extended the non-parole period for the present offence. A magistrate would not have had that jurisdiction until 14 February 2004. 40 I would, nevertheless, reject the argument. The applicant, on advice, elected to have the goods in custody offence dealt with on a Form 1. He could not have been compelled to do so. In doing so, he escaped having a further conviction on his record. 41 True it is, s58 may, in some cases, operate as a disincentive to the use of the Form 1 procedure. That is a matter for offenders and their legal advisers. 42 In my opinion, his Honour was entitled to treat the Form 1 offence as he did. 43 I am satisfied that this (unformulated) ground of appeal should be rejected. 44 I would grant leave to appeal but dismiss the appeal. 45 BELL J: I agree with Simpson J.

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