R v Hejazi

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3380 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

• 9 - IN THE COURT OF CRIMINAL APPEAL 60339/03

WOOD CJ at CL SMART AJ

Wednesday 12 December 2003 Regina v Michael Mohammed Hejazi Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal from the sentences imposed upon him by her Honour Hock DCJ, in the District Court, on 14 February 2003, following pleas of guilty which had been entered in the Local Court to one count of supplying not less than the commercial quantity of the prohibited drug methylamphetamine (count 1), and to one count of supplying not less than the large commercial quantity of methylamphetamine (count 2). Five offences of supplying a prohibited drug, and one count of supplying not less the commercial quantity of a prohibited drug, were taken into account on a Form 1, when the applicant was sentenced on count 2. 2 The sentence imposed in relation to count 1 was one of imprisonment for a fixed term of four years, while that imposed, in relation to count 2, was one of imprisonment for nine years with a non-parole period of six years. The sentences were directed to be served concurrently with one another.

Facts 3 The facts are fully set out in her Honour's reasons for judgment, and no issue is taken in relation to her analysis of the circumstances that gave rise to the pleas. 4 In brief summary, the applicant became the subject of an undercover police operation, in the course of which he supplied drugs to two undercover officers, and was detected, via telephone intercepts, in arranging sales to other customers. 5 The first three of the matters on the Form 1 relate to sales of small quantities of methylamphetamine, totalling 73.3 grams, which were made by the applicant to undercover operatives on 22 May 2000, 23 May 2000 and 7 June 2000, after they met at the McDonalds car park at Revesby, for a total sum of $8300. On one such occasion the applicant, when asked about the possibility of obtaining some "goey", and the amounts which he could provide, replied, "as much as you want". 6 The offence giving rise to count 1 occurred following a number of conversations, over the ensuing days, when on 13 June 2000, the applicant met one of the officers in the car park of a McDonalds outlet at Woodbine. On this occasion the applicant handed the officer ten large re-sealable bags of methylamphetamine weighing 274.9 grams, in exchange for $11,000. When the undercover officer indicated that he wanted a lot more during the following week, the applicant replied, "No worries". 7 The remaining matters on the Form 1 were detected via the telephone intercepts, which were placed on the two mobile phones that the applicant was known to use, between 9 June 2000 and 28 June 2000. The tapes revealed that the applicant was engaged in the business of supplying heroin and methylamphetamine. The fourth matter related to supplies, over a three week period, of various quantities of heroin being not less than fifteen grams and probably considerably more. The precise quantity involved is not capable of precise definition, however I believe the matter can properly be approached on the basis that at least fifteen grams were involved. 8 The fifth matter involved an agreement for the sale of a commercial quantity of 2000 methylamphetamine tablets for $34,000. 9 The sixth matter involved an agreement for the sale of five ounces of pure methylamphetamine. 10 There was no evidence as to whether the sales of the drugs, the subject of items 5 and 6, proceeded. The applicant suggests that they did not. Whether that is correct or not, it is evident that the applicant had at least engaged in conduct that amounted to a deemed supply. 11 The count 2 offence related to the supply, on 28 June 2000, of 1347.6 grams of methylamphetamine by the applicant to one of the undercover officers, again at the Woodbine McDonald car park, for $28,000. On this occasion the applicant was accompanied by some associates, including Jason O'Brien, who had been detected on the intercepts as having been a co-supplier. They were arrested and the undercover operation came to an end. 12 The applicant was sentenced on the following basis:

(a) at the time of the offences, he had been a heroin addict, and the profits from the sale of the drugs went to support that habit rather than an extravagant lifestyle;

(b) at the time of the offences he had been a willing participant in the drug trade, and had been involved in the business of drug supply;

(c) at the date of the offence he was aged thirty-two. He had left school halfway through year nine, had married at the age of twenty-one, and after the marriage had broken down, he had become depressed and turned to drugs, including heroin; (d) he had been involved in a serious motor bike accident in 1997 which left him with a damaged hand and leg;

(e) he had been assaulted by other inmates following his arrest and as a result he was likely to remain in protection, a circumstance rendering his imprisonment more onerous;

(f) his prospects of rehabilitation were reasonable; (g) special circumstances were found to exist in relation for the need for him to serve the sentence on protection and to have a larger than usual period of supervision to foster his rehabilitation.

13 The co-offender O'Brien was charged with the same offences as those which gave rise to counts 1 and 2, so far as the applicant was concerned. However, there were no offences dealt with on a Form 1 in his case. 14 He was sentenced by his Honour Coleman DCJ in the District Court, on 27 May 2002, in relation to count 1 to a fixed term of imprisonment for three years. On count 2 he was sentenced to imprisonment for six years with a non-parole period of three and a half years.

15 He was sentenced on the following basis: (a) he was 25 years old; (b) he had a criminal record; (c) he came from a deprived and disadvantaged background which included domestic violence; (d) he had been a drug user from an early age and his drug use had escalated in the two years prior to the offences; (e) he had supplied the drugs, the subject of these counts, to the applicant, who had on-sold them to the undercover operatives; (f) he had become involved in the supply of drugs to take advantage of what he perceived to be an easy, willing and pliant customer to the applicant; (g) prior to the supplies, the subject of the two charges, he had not been involved in the supply of drugs to others; (h) he had been a willing and enthusiastic participant in the supply, although he had not been part of a manufacturing drug ring; (i) he had been willing to use his access to methylamphetamine in bulk to cut it and satisfy large block orders; (j) he had been an essential link in the chain of supply who had been able to obtain the necessary methylamphetamine to produce the mixtures required on little notice.

16 The sole ground of appeal relates to an alleged disparity in the overall sentence between that imposed upon the applicant, effectively of nine years with a non-parole period of six years, and that imposed on O'Brien of six years with a non-parole period of three and a half years. 17 It was the case that her Honour proceeded to sentence upon the assumption that the criminality of the two offenders in relation to the two counts was equal. However, she found it appropriate to differentiate between them for the reasons that the applicant:

(a) had a lengthy criminal history; (b) was on a bond and on parole at the time of the offences; (c) had a number of Form 1 offences to be taken into account; and (d) had entered a plea of guilty at a later point in time than O'Brien.

18 The applicant accepts that the sentencing Judge was properly entitled to impose a lengthier sentence upon the applicant, by reason of these matters, and additionally concedes that no express error in principle emerges on the face of the reasons. However, it is submitted that the difference in sentence was so disproportionate to the respective positions of the two offenders, as to suggest latent error of the kind referred to in House v The King (1936) 55 CLR 499. 19 I am not persuaded that there is any substance in this submission. Disparity justifying appellate intervention is not made out by reason of a simple difference in sentence; nor is made out by the fact that an offender entertains a personal sense of grievance as a result of receiving a sentence which is heavier than that received by a co-offender. 20 The test enunciated in Lowe v The Queen (1984) 154 CLR 606, Postiglione v The Queen (1996) 189 CLR 295 and Regina v Koklas [2003] NSWCCA 302, depends upon the sense of grievance being one that is justifiably entertained. That only arises where the apparent different in sentence cannot be explained by reference to a relevant difference in the criminality of the two offenders, or in their subjective circumstances, or in the proper application of sentencing principle. 21 I am satisfied that the differences between the two offenders in this case are such that the applicant cannot satisfy the Lowe test. Those differences may be shortly summarised:

(a) the applicant had six serious offences involving the supply of drugs taken into account on a Form 1, which had to be reflected by a suitable addition to the sentence for count 2, for the reasons outlined in Regina v AEM [2002] NSWCCA 58, and Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 57 NSWLR 146.

(b) the applicant's criminal record was considerably worse than that of O'Brien, having spanned not only a longer period (13 years compared with six years) but also having included more convictions. (i) As a result, he had been sentenced to, and had served, more prison time than O'Brien; and he had paid, at best, lip services to the non-custodial alternatives which had been extended, including community service orders and bonds to be of good behaviour. In this regard, her Honour's assessment of his attitude as having involved "a blatant disregard" for the opportunities provided through conditional liberty, was well justified. While neither had prior convictions for drug supply offences, the applicant's record included offences of use offensive language, resist arrest, assault police, escape lawful custody, malicious damage, cruelty to animals, possess prohibited drugs, receiving, stealing, larceny, as well as multiple serious offences concerning the unlawful use of motor vehicles and driving while cancelled or disqualified. He also had convictions for failure to appear, as well as for acts of dishonesty concerned with the provision of false particulars, the use of plates calculated to deceive, and obtaining benefits by deception. (ii) O'Brien's record also involved some offences of dishonesty in relation to the theft and use of motor vehicles, as well as some drug-related offences, and Coleman DCJ also noted that he had demonstrated a "continued attitude of disobedience to the law". However, he had less items on his record and he had only received relatively short sentences, on one occasion following revocation of a sentence of periodic detention. (c) at the time of the present offences, the applicant had been on parole and was subject to a three year bond to be of good behaviour, circumstances which had to be regarded as serious aggravating factors: R v Richards [1981] 2 NSWLR 464 and R v Readman (1990) 47 A Crim R 181: (i) He had only been out of prison for three months when he committed the first offence on the Form 1, and thereafter he conducted what was obviously an active business of supplying drugs from which he stood to earn a significant profit, as well as being able to feed any addiction he may have had. (ii) O'Brien had not been subject to conditional liberty at the time of his offences and there was no evidence to show that he had been engaged in drug dealing on a commercial basis, to the same extent as the applicant. He had been found by Coleman DCJ to have been a user, but not a dealer, at the time of his first offence and he was not regarded as being part of any supply distribution network at the time that the applicant's offences had begun. (iii) Additionally, the applicant's offences on the Form 1 extended to heroin and to "shaboo", or drugs of higher purity than that involved in the offences for which O'Brien was sentenced.

(d) the applicant's subjective circumstances were less favourable since he had not held regular employment for the four years before his arrest, and had been involved in the heavy use of cannabis over the preceding two months. O'Brien, on the other hand, had obtained employment while on bail. Coleman DCJ had been impressed by the evidence which suggested that he had become a changed person who had grown up, who had been trying to stop his brother from repeating his mistakes, and who had been a reliable and hard-working young man.

(e) the applicant's plea of guilty had been entered on a much later dated (4 September 2002) than O'Brien (25 January 2002), a circumstance which became reflected by the twenty-five per cent discount given to O'Brien compared with the fifteen per cent discount given to the applicant. Her Honour did, however, recognise the need for some accommodation in relation to this factor since the delay in sentencing had not been occasioned by the applicant. 22 The differences identified are real, and the two cases do not stand on an equal footing, either objectively or subjectively. The sentences imposed by her Honour were, in my view, well within the proper exercise of sentencing discretion for offences that called for significant punishment and in respect of which the elements of personal and general deterrence loomed large. 23 I would grant leave to appeal but I would dismiss the appeal. 24 SMART AJ: I agree. 25 WOOD CJ AT CL: The order of the court will be as I proposed.

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