R v Hammoud

Drug Misuse & Trafficking Act 1985 (Cth) LEGISLATION CITED: Evidence Act 1995 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999

R v Hammoud [2000] NSWCCA 540 R v GDR (1994) 35 NSWLR 376 R v Simpson (2001) 53 NSWLR 704 CASES CITED: R v Fidow [2004] NSWCCA 172 R v Cramp [2004] NSWCCA 264 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Hanslow [2004] NSWCCA 163

PARTIES: DANIEL ROBERT CANTARAKIS v. REGINA

COUNSEL: App: W. Baffsky Crown: J. Girdham

SOLICITORS: App: Tully & Co. Crown: S. Kavanagh

IN THE supreme COURT OF new south wales court of CRIMINAL APPEAL 2005/2450

McCLELLAN, CJ. at CL. HALL, J. LATHAM, J.

MONDAY 19 JUNE 2006 DANIEL ROBERT CANTARAKIS v REGINA Judgment

2 HALL, J: The applicant was sentenced in the District Court on 3 June 2005 in respect of two offences of supplying cannabis leaf.

3 On 5 August 2004, he appeared before the Downing Centre Local Court and was committed to the District Court on two counts of supply prohibited drug (cannabis) and one count of supply prohibited drug (pseudoephedrine).

4 The applicant was arrested on 17 July 2003 and charged in relation to the count on a s.166 certificate. He was released to bail and required to report three days per week from 21 July 2003. On 7 August 2003, the reporting conditions were deleted.

5 On 16 September 2003, the applicant was arrested and charged in relation to the two counts on the indictment and refused bail.

6 On 9 October 2003, he was released to bail. He remained on bail until 3 June 2005 when he entered into custody following sentencing.

7 On 27 August 2004, the applicant was arraigned in the Sydney District Court on a three count indictment, the particulars of which were as follows:- Count 1: Supply prohibited drug (cannabis) between 10 July 2003 and 11 September 2003 contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 (Cth). Maximum penalty: 10 years imprisonment and/or 2000 penalty units Count 2: Supply prohibited drug (cannabis) on 11 September 2003 contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 (Cth) . Section 166 Certificate : Possess prohibited drug (pseudoephedrine): s.10(1) Drug Misuse and Trafficking Act 1985 (Cth)

8 In relation to the charge of supply of pseudoephedrine there was a directed verdict of not guilty.

9 When arraigned on 27 August 2004, the applicant entered a plea of guilty to the two supply charges. On 18 March 2005, he entered a plea of guilty to the possess pseudoephedrine matter included on the s.166 certificate.

10 On 29 October 2004, Williams, DCJ. sentenced two co-offenders, Mr. Pogorilic and Mr. Selwood. Mr. Pogorilic also pleaded guilty to two counts of supplying a prohibited drug, one of them being the supply referable to 11 September 2003 in regard to 4.496 kilograms of cannabis.

11 On 20 May 2005, the applicant appeared before the District Court on the two supply prohibited drug (cannabis) offences. He was sentenced on 3 June 2005.

12 The applicant and the Crown agreed upon a statement of facts pursuant to s.191 of the Evidence Act 1995 (NSW). The following account is based upon that statement. Offence: supply prohibited drug (cannabis) between 10 July 2003 and 11 September 2003

13 By the lawful interception of mobile telephones utilised by the applicant, police obtained information in relation to dealings between the applicant and a person in South Australia referred to as "JJ". These dealings included transactions involving a quantity of cannabis other than the quantity the subject of the counts on the indictment in question.

14 The telephone intercepts reveal the following communications:- • On 4 August 2003, the applicant telephoned "JJ" and arranged for an unknown quantity of cannabis to be sent to Mr. Pogorilic in Sydney where the drugs would be held until the applicant arranged for them to be picked up. • On 20 August 2003, the applicant requested "JJ" to send more cannabis to Mr. Pogorilic. • On 25 August 2003, "JJ" told the applicant that he would be sending more cannabis to Sydney for him the following week. In both this and the previous telephone conversation there were discussions concerning money owed to "JJ" by the applicant. • Further telephone intercepts recorded conversations between the applicant and people other than "JJ" concerning the supply of prohibited drugs. This included a communication on 14 July 2003 in which an unknown male requested that the applicant supply him with cannabis to which the applicant said that he would get Mr. Selwood to give it to him. • On 8 September 2003, the applicant informed a man known as "Smurf" that he, the applicant, would have cannabis for him on Thursday.

15 Supplies or offers to supply on or about 14 July 2003, 4 August 2003, 20 August 2003 and 25 August 2003 were of an indeterminate amount of cannabis obtained from the South Australian contact. Offence: supply prohibited drug (cannabis) on 11 September 2003

16 The intercept material established the following events:- • On 3 September 2003, the applicant contacted "JJ" . The applicant stated that his mate was coming to see him early that day. • On 8 September 2003, the male person known as "Smurf" contacted the applicant. The applicant asked the male if he wanted to catch up that night. The male person said that that would be good. The applicant then asked "1 2 or 3?" . The male replied "3" . The applicant stated that he would call back later. • Later on 8 September 2003, the applicant telephoned "Smurf" to inform him that he had nothing left and the next one was due on Thursday (11 September 2003). • On 8 September 2003, the applicant contacted "JJ" . "JJ" asked if he was right for that week. The applicant relied "Yes, let's get this going" . "JJ" asked him to make sure the funds were there a day early. • On 10 September 2003, the applicant contacted Pogorilic who advised the applicant that he had been speaking to "JJ's" mate and he wanted to know if the applicant was right for this week. The applicant indicated that it would be and that he would send his little mate with the "paper" tonight. • On 10 September 2003, the applicant advised Pogorilic that "Clint (Selwood) was coming" . On 11 September 2003, police followed the co-offender, Clint Selwood, from Collaroy to Kogarah. Police subsequently stopped the co-offender in his vehicle and located a sealed box with the name "Dan" marked on it. It was opened and found to contain 10 heat sealed plastic packages containing 4,496 grams of cannabis leaf. Count 3: Possess prohibited drug

17 The facts in relation to the offence alleged to have occurred on 17 July 2003 were as follows. The applicant was the driver of a motor vehicle which police stopped at Heathcote. On searching the vehicle, a re-sealable Gladbag was located which contained a smaller plastic bag which in turn contained 20.3 grams of pseudoephedrine. The applicant was arrested and conveyed to Sutherland Police Station. THE SENTENCING REMARKS

18 The sentencing judge observed that, following the offence of 17 July 2003 (the applicant admitted that the pseudoephedrine was his), the applicant had received a very clear warning about his involvement with drugs and yet he had continued to offend.

19 The sentencing judge had regard to the objective circumstances of the offences, the subjective circumstances and the question of parity in respect of the applicant and Mr. Pogorilic.

20 The applicant was aged 30 years at the date of sentence and the sentencing judge noted that he had no criminal convictions and that the stated reason for the offending in regard to the cannabis was to provide funds for a gambling problem which he claimed he had as a result of his employment in the hospitality industry.

21 In relation to the pseudoephedrine count to which the applicant pleaded guilty, he had stated that he used it as a stimulant before playing rugby league football matches.

22 On the question of parity, the sentencing judge observed that to treat the applicant and Mr. Pogorilic differently would raise a significant question of fairness so far as Mr. Pogorilic was concerned. The latter had pleaded guilty to two counts of supplying a prohibited drug, one of them being the supply referable to 11 September 2003 in regard to 4.496 kilograms of cannabis. His Honour observed that Pogorilic had a criminal record which included two serious matters of armed robbery and firing a firearm in a public place, for which he was sentenced to four years and one and a half years imprisonment respectively. He served four years in custody.

23 In relation to the supply offence on 11 September 2003, Pogorilic was sentenced to 14 months imprisonment with a minimum period of nine months which was partially cumulated on the other offence of 18 months with a 14 month non-parole period.

24 In the remarks on sentence, the sentencing judge observed that the only significant difference between the applicant and Pogorilic was that the latter had a previous criminal record involving one very serious offence for which he spent a lengthy time in custody.

25 The applicant was described in the remarks on sentence as "the principal organiser behind the supplies …" (p.2). At p.3, it was observed that his involvement in the organisation of the cannabis supplies would probably have to be regarded as at a somewhat higher level than that of Mr. Pogorilic.

26 The sentencing judge stated that the applicant could not be dealt with as having offended at a similar level to Mr. Selwood:- "… what has occurred here is the supply of cannabis for a commercial purpose. There are no exceptional circumstances that would justify me in not imposing a full time custodial sentence. He is entitled to a discount for the plea of guilty and I am prepared to find special circumstances, having regard to his age, his prior good character, the prospects for rehabilitation and the fact that this will be a first time in custody."

27 The sentencing judge stated that the penalty had to reflect the serious nature of the offence and must equate with the sentence imposed on Mr. Pogorilic, otherwise the latter would have a justifiable sense of grievance. He considered the differences and the background of each man, but stated overall that the applicant's role would, in his view, cancel out the detriment suffered by Mr. Pogorilic in regard to his past criminal record:- "I cannot see any valid reason for imposing a differing penalty in respect of these matters, although there will be a partial cumulation." (p.5)

28 In sentencing the applicant in respect of Count 1, the sentencing judge stated that, but for the plea, the minimum period that should be spent in custody was one of 14 months imprisonment with a total term of two years which was reduced to one year and 18 months for the plea of guilty.

29 In respect of Count 2, the minimum non-parole period was stated to be 14 months, with the total term being two years but reduced for the plea of guilty to one year and six months.

30 Accordingly, the applicant was sentenced as follows:- In regard to Count 1, the sentence to date from 11 May 2005. The non-parole period to expire on 10 July 2006. The total term to expire on 10 January 2007. In regard to Count 2, the sentence to date from 11 September 2005. The non-parole period to expire on 10 November 2006. The total term to expire on 10 March 2007.

31 The effect of the sentences overall was that the applicant was required to serve an aggregate non-parole term of 18 months and an aggregate total sentence of 22 months. He, accordingly, will be eligible for parole on 10 November 2006.

32 Rather than sentence the applicant for the offence of possess prohibited drug, as required pursuant to s.168(3) of the Criminal Procedure Act 1986, his Honour imposed no separate penalty and used words appropriate to those employed when dealing with a Form 1. The Crown, in this respect, contends that the sentencing judge erred, albeit to the applicant's benefit.

33 The sentences imposed by Williams, DCJ. on 29 October 2004 on the applicant's co-offenders were as follows:- Selwood : sentenced on a single count of knowingly take part in the supply of cannabis leaf on 11 September 2003: s.9 bond for three years and his motor vehicle confiscated. Pogorilic : sentenced as follows:- Count 1: supply prohibited drug (cannabis) on 11 September 2003: 14 months imprisonment commencing 16 September 2004 and to expire 15 November 2005, non-parole period of nine months to expire 15 June 2005. Count 2: supply prohibited drug (cannabis) between 1 October 2003 and 17 December 2003: 18 months imprisonment commencing 16 December 2003 and to expire 15 June 2005, non-parole period of 14 months to expire 15 February 2006. Ground 1: His Honour erred in finding that the applicant was the principal organiser (supply on 11 September 2003) Ground 2: His Honour erred in finding that the applicant's involvement in the cannabis supplies was higher than the co-accused, Pogorilic

34 These two grounds are related and will be dealt with together.

35 In the applicant's written submissions, it is contended that the sentencing judge erred in finding that the applicant's involvement in the cannabis supplies was higher than the co-accused, Pogorilic. In particular, it was submitted that to characterise the applicant as "the principal organiser" behind the supplies was an incorrect characterisation, as that description implies an organisation and structure that did not exist.

36 The applicant also contended that the comparison of sentences imposed upon himself and the co-accused, Pogorilic, indicated error. Pogorilic, it was submitted, was working with the Adelaide man, "JJ", and appears to have been working on behalf of "JJ" when inquiring as to what the applicant needed and in receiving payments for the cannabis. It was further submitted that the Crown's concession as to the offence of 11 September 2003, namely, that Pogorilic was only "warehousing" the cannabis when it arrived from Adelaide was wrong. It was contended that it should not have made that concession as it was not supported by the evidence.

37 The Crown submits on the evidence that the finding made by the sentencing judge was open to him.

38 In the remarks on sentence in relation to the offender Pogorilic dated 29 October 2004, it was noted:- • There was delivered to Pogorilic at his premises four and a half kilograms of packaged cannabis leaf. • Pogorilic then delivered the same to Mr. Selwood, a co-offender. In relation to the Crown's acceptance that Pogorilic was acting as a warehouse for the drug sent from Adelaide, the agreed statement of facts did not suggest any larger involvement because, indeed, there was no evidence before the court of any larger involvement.

39 The Crown submitted that there was nothing in the agreed facts tendered in the applicant's case which contradicted that finding. I consider that submission to be well-founded.

40 In relation to the applicant's role generally, the agreed facts reveal matters that support the sentencing judge's characterisation as to his role. In particular, they establish:- • The applicant was the initiator of the drug supply through his contact with "JJ" . • The applicant made the arrangements for the supply of cannabis which included that they be sent to Pogorilic in Sydney. • The applicant arranged for the prohibited drugs to be picked up from Pogorilic by engaging the co-offender Selwood. • The inference that it was the applicant who paid "JJ" for the supply of cannabis.

41 I do not consider that there is any substance to Grounds 1 and 2 and that, accordingly, they should be dismissed.

Ground 3: His Honour erred in finding that to treat the applicant and Mr. Pogorilic differently was unfair to Mr. Pogorilic Ground 4: His Honour erred in finding that he needed to equate the applicant's sentence with Mr. Pogorilic

42 In relation to the submission that the sentencing judge underestimated Pogorilic's role in the 11 September 2003 offence, I have already outlined the basis upon which I would reject that submission.

43 The applicant's submissions then took issue with the extent of the applicant's involvement in the supply of cannabis between 10 July 2003 and 11 September 2003 (Count 1).

44 I agree with the Crown's submissions that the agreed facts were the basis upon which the applicant pleaded guilty and that those facts cannot be departed from. I do not accept the submission that the telephone intercepts of 20 August and 25 August do not appear to show that the applicant was supplying cannabis. The agreed facts, in my view, do establish that the applicant engaged in a supply or offer to supply on at least four occasions (4 August 2003, 20 August 2003, 25 August 2003 and 8 September 2003).

45 I do not consider that there was any error made in determining the roles of the applicant and Pogorilic.

46 I accordingly reject Grounds 3 and 4. Ground 5: His Honour erred in partially accumulating the sentences

47 It was submitted on behalf of the applicant that whilst the offences in Count 1 and 2 are different offences, "they are essentially the same course of conduct".

48 It was observed that, with respect to the offence of supplying cannabis between 10 July 2003 and 11 September 2003, the applicant did not receive the cannabis, whereas in respect of Count 2 (supply on 11 September 2003), the applicant actually supplied or offered to supply.

49 It was submitted that it was wrong to treat the offences as different in the relevant sense so as to attract accumulation where it was the same conduct both occurring during the period of Count 2.

50 Reliance was placed upon the observations of Simpson, J. in Regina v. Hammoud [2000] NSWCCA 540 at [7]. In that case, Simpson, J. (with whom Mason, P. agreed) disagreed with one point expressed in that matter by Dowd, J. However, examination of her Honour's comments does not, in my view, advance the point contended for by the applicant. Her Honour stated:- "… I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views, but neither view could be said to be wrong."

51 The fact in the present matter that the Count 2 offence occurred at the end of the period referable to the Count 1 offence, involves a partial connection as to time, but that of itself does not support the submission that the applicant was otherwise engaged in effectively the same conduct at the same time in both counts.

52 I accordingly would dismiss this ground of appeal.

Ground 6: His Honour erred in not applying the statutory ratio of 75% and 25% after the reduction for the early plea Ground 7: His Honour erred, in having found special circumstances, in not reflecting that in the sentence

53 In relation to the sentences imposed, I note the following:- • In respect of Count 1, the 14 month non-parole period is 70% of the term of 20 months. The parole period exceeds the statutory norm and thus gives effect to the finding of special circumstances. • With respect to Count 2, the 14 month non-parole period is 77.77% of the term of 18 months. Accordingly, the parole period is marginally less than25% of the head term.

54 The statutory ratio in accordance with s.44(2) of the Crimes (Sentencing Procedure) Act 1999 requires that the balance of the sentence must not exceed one third of the non-parole period unless the Court makes and records a finding of special circumstances. As the Crown submissions observe, the failure of a court to comply with subsection (2) does not invalidate the sentence: s.44(3).

55 The Crown also correctly observed that s.44 does not prohibit the balance of term from being less than one third of the non-parole period: Regina v. GDR (1994) 35 NSWLR 376.

56 It is also correct to say, as the Crown has submitted, that there is no obligation on a sentencing judge to vary the statutory ratio between the non-parole period and the balance of term of sentence simply because of special circumstances. In Regina v. Simpson (2001) 53 NSWLR 704 at [68], it was stated that it is necessary that the circumstances be sufficiently special to justify a variation. The Crown also drew attention to Regina v. Fidow [2004] NSWCCA 172 and Regina v. Cramp [2004] NSWCCA 264. In the latter case, this Court stated that, notwithstanding a finding of special circumstances, the Court is not required to reduce the non-parole period or may reduce it by only a small amount.

57 I do not consider that these grounds provide a basis for this Court to interfere with the sentence imposed. I accordingly would dismiss both grounds. Ground 8: His Honour erred in failing to give practical effect to the 25% discount for the early plea of guilty

58 The applicant's submission is that the sentencing judge failed to give practical effect to the 25% discount for an early plea of guilty. It is stated that his Honour referred to the fact that the total term should be two years but for the plea of guilty which was reduced to 18 months. This applied for both counts. It was submitted that the effect was that the applicant received no real practical benefit.

59 The Crown has submitted that the contention on behalf of the applicant converts a guideline (Regina v. Thomson & Houlton (2000) 49 NSWLR 383) into a rule. The discount, the Crown correctly emphasises, is a discretionary matter and a particular offender has no entitlement to any particular discount: Regina v. Hanslow [2004] NSWCCA 163 per Howie, J. at [24].

60 It is true to say in the present case, as the Crown submitted, that the pleas were not entered at the earliest opportunity. The sentencing judge did not quantify the discount for the plea of guilty. The Crown has submitted that mathematical reconstruction demonstrates that a discount of 25% on Count 2 and a discount of approximately 17% on Count 1 resulted.

61 I do not consider that it has been established in relation to this ground that error has been identified in the discretionary judgment required to be exercised by the sentencing judge.

62 I would accordingly make the following orders:- (a) Grant leave to the applicant to appeal. (b) The appeal be dismissed.

20/06/2006 - Name of the judgment incomplete - "Regina" omitted - Paragraph(s) .

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