R v Kairouz [2005] NSWCCA 247 | Case summary

R v Kairouz [2005] NSWCCA 247 | Case summary | Zoe

[16]

FACTS 2 The Applicants were sentenced upon the basis of their involvement in a syndicate which engaged in the supply of methylamphetamine and cannabis. That syndicate was based at the premises 72 Arthur Street Ashfield, where they lived. Six other persons who were associated in the supply activities, namely Anthony Kairouz, Saad Nasr, David Nasr, David Culbert, Roger Elias, and Stephanie Kipic have also been sentenced for the offences to which they pleaded guilty. 3 Judge Phegan sentenced Anthony Kairouz, Saad Nasr and David Nasr, as well as the present applicants. The other offenders Culbert, Elias and Kipic were sentenced by his Honour Judge Nicholson SC. 4 The statement of facts upon which Judge Phegan relied is to the following effect (omitting the several annexures): "During the period from February 2002 to November 2002, Police Strike Force Tolve investigated the supply of methylamphetamine and cannabis by persons living at premises 72 Arthur St, Ashfield and associates of those persons. In that period the Kairouz family resided at the premises including the brothers John, Anthony and Charbel. Charbel resided in a granny flat attached to the premises. In February 2002, police lawfully intercepted mobile telephone number 0405 346 556 and established that such number was being used for the purpose of the supply of methylamphetamine or cannabis. As a result of investigations police became aware of two other mobile telephone numbers, being 0405 644 633 and 0415 308 188, which police then lawfully intercepted. The investigation revealed that both of the telephones were also being used for the purpose of the supply of methylamphetamine or cannabis. The supply of drugs took place in defined territories of Ashfield and Campsie and generally a particular telephone would be associated with either Ashfield or Campsie. The three telephones were in false names and addresses. Each of the telephones received a substantial number of calls almost on a daily basis. Examples of the number of calls on a day to these telephones are set out in annexure "A". A call requesting the supply of a drug would usually be short and would involve the purchaser requesting a small quantity of a drug, either methylamphetamine or cannabis, and arrange a place and time to meet for the supply to take place. The supply would then usually take place anywhere from around 15 minutes to an hour after the call. Police also intercepted some personal telephone services of some of the offenders including the landline to the granny flat at 72 Arthur St, Ashfield. To further the investigation, police conducted thirty three controlled buys in which undercover police officers purchased small amounts of methylamphetamine in either tablet or powder form from persons involved in the syndicate. On occasions the undercover officers were offered and shown cannabis by such persons but the offers were declined. The controlled buys in conjunction with the telephone intercepts established that a system was in operation where a purchaser would make a call to one of the mobile numbers and order an amount of either methylamphetamine in powder or tablet form or cannabis. Methylamphetamine tablets were sold for between $30 to $50 per tablet and, on the basis of what was supplied to police, the average weight of a tablet was about 0.3g. Methylamphetamine powder was sold in small bags and, on the basis of what was supplied to police, the drug in each bag weighed approximately 0.51 g. From the investigation it appears that cannabis supplied was divided into bags which would be either $20 or $50 deals.

[22]

In relation to Charbel Kairouz the intercepted telephone calls establish his involvement throughout the period of the offences. For the on going supply offence period between 24 March and 25 April 2002, Charbel Kairouz was involved in a joint criminal enterprise with others in the supplies by Saad Nasr to undercover officers and the supplies by Saad Nasr and David Nasr as evidenced by the telephone intercepts. The evidence establishes his knowledge of all facets of the operation and he was in a position of exerting control of it with other members. A summary of some significant calls are set out in annexure marked "F". Charbel Kairouz resided in the granny flat attached to 72 Arthur St Ashfield. Police searched 72 Arthur St Ashfield including the granny flat on 8 August 2002. At the premises police located approximately one kilogram of cannabis hidden throughout the property, including cannabis divided into 69 small "street deal" bags. On searching the granny flat police located a large amount of cannabis residue on the bench, also in a garbage bin in the flat was a large amount of cannabis stalks and other unusable cannabis leaf. This evidence is consistent with the bench being used to cut up and package cannabis. Ion scans also indicated the presence of amphetamine in the granny flat. During the investigation police became aware of the likelihood that the syndicate were obtaining some items to assist with supply of drugs from a Tobacconist known as "555" at Beamish St, Campsie. On a number of occasions, on intercepted telephone calls, Charbel directed-other members of the syndicate to attend at those premises. A summary of calls relating to the Tobacconist are set out in annexure marked "G". On 25 June 2002 Charbel and David Nasr were stopped by police immediately after attending the "555" Tobacconist. On searching the vehicle police located approximately 600 small plastic resealable bags of the type the syndicate used to supply both methylamphetamine and cannabis. The intercepted calls indicate that Charbel was responsible for the preparation of drugs to be supplied and an involvement in secreting the drugs on the premises. Charbel's knowledge as to where the drugs were located is demonstrated by calls from "runners" in which he advises them where the drug is located.

[25]

In relation to David Nasr , he supplied methylamphetamine to undercover officers on four occasions between 28 April and 3 May 2002. In relation to the on going supply charge against David Nasr it is dated between 24 March to 25 April 2002. During that period police commenced intercepting the telephone service referred to as drug line 2 in annexure "B". Telephone intercepts from drug line 2 establish that David Nasr was actively involved in the -supply of methylamphetamine-: and cannabis from 15 April until the 25 April on almost a daily basis. On the 8 May David Nasr was in a vehicle with Roger Elias when Elias supplied an undercover officer with methylamphetamine. On 3 June David Nasr was in a vehicle with David Culbert and Stephanie Kipic when a meeting took place with an undercover officer who had made contact to purchase methylamphetamine. At that meeting David Nasr questioned the officer as to how she got the telephone number and, on being satisfied that she was a genuine buyer, he took part in making the arrangements for that supply which took place shortly after the meeting. On 25 June 2002 David Nasr was with Charbel Kairouz when they were stopped by police after visiting "555" Tobacconist. On searching their vehicle police located approximately 600 plastic bags to be used in drug supplies. Further telephone intercepts throughout the period to August provide evidence of David Nasr discussing matters involving the supply of drugs with other members of the syndicate and his being in the granny flat at various times during the period. The evidence establishes that David Nasr was aware of all facets of the operation. COUNT 1 - Ongoing Supply On the 27 February and 21 March 2002, Saad Nasr supplied methylamphetamine to undercover officers confirming the existence of the drug syndicate. As a result a further 14 supplies of methylamphetamine took place between Saad Nasr and undercover officers during the 30 day period of 24 March 2002 and 25 April 2002. In addition the telephone intercepts establishes that a large number of drug transactions involving methylamphetamine took place on almost a daily basis during the 30 day period ("see annexure "B"). The evidence is that each supply was for financial reward. As each Offender was a party to the joint criminal enterprise all are criminally liable for the supplies which took place during the 30 day period. The count of on going supply for Anthony Kairouz is dated between 11 May 2002 and 11 June 2002 as it is a period that clearly demonstrates his involvement. The evidence establishes that Anthony Kairouz was involved in the joint criminal enterprise before 11 June 2002. COUNT-2 After the offence period for the on going supply charges, the telephone intercepts and other evidence establishes that the offenders continued on in the supply of methylamphetamine until it was disrupted by police making arrests in August 2002. COUNT-3 The telephone intercepts and other evidence establishes that during the period of 14/2/02 and 20/8/02 the offenders were involved in a joint criminal enterprise of supplying cannabis." 5 His Honour found that "it was the turnover of the operation rather than the size of the individual transactions which ultimately marked it as one of very considerable dimensions", and that it was one which involved "a very careful level of planning". Some of the devices used such as the number of different telephones in false names were found to have indicated "a degree of organisation that went well beyond any spasmodic or amateurish undertaking". As a result, his Honour was satisfied that "this was a case of a systematic enterprise for the purpose of profit and that the scale of the operation and the nature of the means used was sufficient to put it on a level of seriousness and systematic sale of the drugs concerned".

[27]

7 The Applicant contends, that when sentencing Charbel Kairouz, and in making the finding in question, it is at least possible that his Honour inappropriately took into account the report of the psychologist, Karleen Ryder, which was tendered in the case of Anthony Kairouz, and which stated that he had been influenced in relation to committing the offences by his older brothers. There was some rather tenuous evidence from Anthony Cleary, the Executive Director of the Confraternity of Christian Doctrine who had come to know the Kairouz brothers either through their family or when they were students at St Charbels College, to the effect that, in his opinion, Anthony Kairouz had been a follower of his elder brothers. This evidence was led after counsel for Charbel Kairouz, who had initially called Cleary in his case, had been excused from further participation in the sentencing proceedings. As a result he was unaware that there was any possibility of his client being found to have been the dominant partner in the syndicate. 8 The Ryder report was obviously not part of the material which was available in relation to the sentencing of Charbel Kairouz, although it would be relevant for this Court when considering parity of sentence, in so far as it might explain why Anthony Kairouz received a lesser sentence. 9 The Crown however contends that there was other material which supported the finding that Charbel Kairouz occupied a position of influence over his brothers, arising from the intercepted telephone conversations in which the Applicant can be heard giving Anthony instructions as to what he was to do, and checking on his whereabouts; and from the greater education that he had acquired. 10 It is to be observed that while the submission concerning the telephone conversations related to Anthony, and does justify treating him as having been under the influence of his elder brother, it does not show that Charbel was in a position of influence over John. 11 Next, the mere fact that one offender has a more extensive education, or higher academic achievements, than another, does not necessarily mean that the first is in a position to influence the other, and still less that he has done so. 12 While there was a proper basis to show that each of John and Charbel had a more central role in the syndicate than the others, and were in a position of influence over Anthony, the same cannot be said in relation to the position of Charbel qua John. 13 The offenders were properly to be sentenced according to the positions which they occupied, as disclosed by the agreed statement of facts and attached records. There is nothing which springs to notice in those documents, and in the evidence, which was led, to suggest a proper basis for differentiating between John and Charbel, in terms of their influence, or control over the other offenders or of the operations of the syndicate. 14 So far as the record shows, the Applicant was not given any indication that he was at risk of being considered to have adopted a more dominant role than John Kairouz in the syndicate, or of being heard in opposition thereto, as would have been appropriate: R v Tocknell NSWCCA 28 May 1998 and Chow v DPP (1992) 28 NSWLR 593 at 606. 15 Although his Honour made it clear that he did not consider this aspect of this case required " a significant differentiation" between Charbel and John, the evidence did not, in my opinion, justify any differentiation between them based upon an assessment of the extent to which they could influence others. The only finding available on the agreed facts was that they occupied identical roles as principals in the management of the syndicate and were liable for their individual transactions, as well as for the transactions which were carried out by others pursuant to a joint criminal enterprise. Factual error has been established but whether, of itself, it justifies any reduction in the sentences, falls to be determined in the light of the remaining grounds.

[28]

Ground 2 - That the sentencing Judge erred in taking into account as an aggravating factor the educational attainments of the Applicant thereby increasing the sentence on this basis. 16 This ground arises from the circumstance that his Honour observed in the reasons for sentence that he had a level of education "which regrettably counts against him"; and that he was a person who "one would hope, would have both the judgment and the insight to avoid involvement in criminal activities of the kind to which he has now pleaded guilty". As previously noted his Honour had also taken his greater level of education into account in relation to the question of influence. 17 It was submitted that whilst it is permissible for a sentencing court to take into account an offender's lack of education as a mitigating factor (see R v Peckham [2003] NSWCCA 293 at [26] to [28] per Hulme J), the converse does not apply as a matter which can be taken into account as an aggravating factor. 18 The passages cited do have to be read in the full context, which show that they were more concerned with the Applicant's prospects of rehabilitation than with an aggravation of his objective criminality. His Honour said in this regard, immediately following the observation cited above: "One of the features, in the subjective sense, of this Offender that troubles me and which I have certainly attempted to give proper weight to in the sentence is that despite his level of education and obvious intelligence he is a person who has been very slow to both recognise and identify the implications of his criminal activity or to even understand, it seems from some of his evidence, the nature of the offences which he has committed. That is very difficult to reconcile with a young man who has risen to the level of education which he has reached and it does raise some very real concerns, not about his subjective commitment to rehabilitation, but his capacity to successfully undertake it. I here refer to a particular matter on which the Crown relied in its case on the question of sentence, namely the fact that he was charged with supplying a prohibited drug in November of the year 2000, a charge which finally came before the Burwood Local Court on 28 May 2002 at which time he was convicted and ordered to perform 250 hours of community service. It was specifically submitted that this conviction is an aggravating factor under s 21A (2) d of the Crimes (Sentencing Procedure) Act of 1999, in particular the fact that the present offences to which he has pleaded guilty were committed while he was on bail on the earlier offence and perhaps more significantly were resumed after he had been convicted and sentenced. In other words, notwithstanding his intelligence and educational background he seems to have failed comprehensively to understand either the seriousness of the offence which he committed at that stage and certainly the warning which it should have provided once he was convicted of it to desist from the activities which bear on the matters before me. As the Crown submitted it does also, notwithstanding other evidence to the contrary, raise serious doubts about his genuine commitment to rehabilitation. A commitment which he admitted, to his credit, he made at the time of his conviction in the Local Court, and yet notwithstanding his commitment to rehabilitation which he explicitly made to the Court at that time, he apparently saw no difficulty in continuing for some months after in the activities involved in these proceedings." 19 There was some evidence from the Applicant to the effect that a reason for committing the offences was his inability to obtain employment in his chosen field, that is, a position which was commensurate with his tertiary qualifications. That was not a matter which justified his descent into criminality, and so far as it was offered as an excuse or as a matter of mitigation, it is totally without merit. 20 Notwithstanding, I am unable to accept that educational achievement operates as a circumstance of aggravation. It is not a factor referred to in s 21A(1) of the Crimes (Sentencing Procedure) Act, and it is not a matter that has had that character at common law. 21 Were it the case that his Honour found it to have been an aggravating factor, error would have been shown. I am not, however, persuaded that this was the way in which it was used. In my view it was properly available as a matter that went to the Applicant's prospects of rehabilitation, in so far as he had the education and intelligence to realise, and to understand, the consequences of reoffending, yet he chose to continue on a course of serious criminality. It was in that respect also a matter that was relevant for the considerations identified in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 417, in so far as the Applicant had demonstrated a deliberate and continuing disobedience of the law, even though his educational qualifications had equipped him with the ability to fully comprehend what he was doing and what were the likely consequences. I am accordingly not persuaded that error has been shown on this account.

[32]

Maximum Sentence 23 It was submitted that the sentencing Judge erred when sentencing each Applicant in relation to Count 1, in so far as he was mistaken as to the maximum sentence that was available. 24 It is the case that his Honour did make the error referred to in Ground 5 in that he noted, at page 2 of the reasons, that the maximum sentence for this offence was imprisonment for 25 years whereas it was in fact 20 years. It does not follow that the head sentence and non-parole period should each be reduced, as the Applicants contended, by 25% (or more correctly by 20%), so as to correct this error. Sentencing does not occur in such a linear or mathematical environment. What was important was that the sentence reflect an appropriate penalty in the light of the overall sentencing pattern for the offence in question, and in the light of the objective and subjective circumstances of the particular case. Whether it did so or not depends on the remaining grounds, although it is to be accepted that the patent error which was identified is sufficient to justify the granting of leave to appeal. 25 Before parting from this ground, it is to be observed that it is confined to Count 1, and does not automatically carry over to the sentence for Count 2 which was set in identical terms. 26 However it is to be noted that in pronouncing sentence, in relation to John Kairouz, his Honour said: "The sentence which I have already imposed I impose on the first of the three charges which is regarded for understandable reasons by the legislature as the more serious and which in my view on the evidence in this case should be treated accordingly. However, because of the extent of the continuation of the enterprise I see no reason why the sentence imposed for the supply of methylamphetamine should in the end be any different, and therefore the sentence imposed with regard to that charge is the same as that imposed on the first." 27 When sentencing Charbel Kairouz his Honour took up the same theme, observing: "I now then for the same reasons as I have just given impose the sentence which I have imposed on you with regard to the first of the three offences to which you have pleaded guilty, namely the ongoing supply of the drug, that I impose an identical sentence with regard to the second of the two offences, namely the supply of methylamphetamine for again (sic)." 28 Having set a sentence for Count 1 against the maximum, as his Honour understood it, the inference is irresistible that he simply imposed the same sentence for Count 2, upon the basis that it reflected a continuation of the conduct charged in the first count. It would follow that, if there were error in relation to the first count, then it was perpetuated in relation to the second count, for which, in any event, the maximum sentence was one of only 15 years imprisonment. In circumstances where there were differences in the available maximum sentences, and where his Honour found that the first offence was the more serious of the two, it is difficult to understand why the same sentences should have been imposed for both Count 1 and Count 2, that is unless this was intended as a means of reflecting the total criminality involved.

[70]

(v) He was aware and involved in all facets of the operation and was in a position to exercise some control of it with other members. 37 Subjectively, as I have previously observed, his Honour, relying upon the evidence of Karleen Ryder and of Mr Cleary, found that this Offender had been a follower of his elder brothers and that "his involvement [in the offences] was at least in part a consequence of the influence which [they] had over him". He noted his history of childhood illness and of physical injuries, the most recent of which arose from a serious car accident in either 2000 or 2001, and that he had a lengthy history of drug abuse from his mid teenage years, which had escalated to polydrug abuse after the accident as a way of coping with his physical restrictions. 38 His Honour noted, and it would seem accepted, his assertion that his role in the syndicate was confined to selling, that he was not in charge of any purchasing of drugs, and that his "job was essentially at the distribution level". He similarly accepted that he had taken advantage of rehabilitation courses, that he had a goal of returning to work, that he was committed to future abstinence from drugs, and that he had responded well in custody to the point of receiving a favourable report from Brother Patrick Lynch of the Parklea Chaplaincy Service. 39 No submission was advanced on behalf of Charbel Kairouz, or for that matter by John Kairouz, in relation to the difference of 6 months in the head sentences which they received for Counts 1 and 2. In this regard, counsel for Charbel Kairouz accepted that the fact that he had received a prior conviction for a drug offence which led to a community service order, and had been on bail at the time of the present offences, justified the imposition upon him of a greater sentence than that which was imposed on John Kairouz. 40 It was however submitted that appellable disparity was evident once comparison was made with the sentences received by Anthony Kairouz since those imposed on Charbel and John were either double, or nearly double, those that were passed for Anthony. 41 It was further submitted that the disparity was even more marked when comparison was made with the sentences imposed in respect of David Culbert, which unlike those imposed on Kipic and Elias, had not been the subject of Crown appeals. In that regard it was pointed out that Culbert's premises were found to contain drugs, scales, plastic bags and mobile phones; that he had been involved in the weighing packing and storage of drugs and in their trafficking for reward. He was found to have minimised the seriousness of his actions, and his contrition was described as muted. 42 Disparity of sentence is not itself a ground for appellate intervention. Rather it is a matter to be weighed when considering whether there is sentencing error: R v Kai Kong Li [2005] NSWCCA 154 at [44] per Barr J with whom the remainder of the five judge bench other than Hidden J agreed. As Barr J earlier observed: "43. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality: Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at 302." 43 As Gibbs CJ observed in Lowe v The Queen (1984) 154 CLR 606 at 609: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." 44 To similar effect were the observations of Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301: "The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

[71]

45 The Court of Criminal Appeal in this state has reserved a discretion not to intervene, or to intervene to only a limited degree, where it is apparent that the sentence under comparison was unjustifiably lenient, and that to reduce the sentence under appeal, so as to provide an equality of outcome, would result in a sentence that would amount to a repetition of error and an affront to the administration of justice: R v Ismunandar and Siregor [2002] NSWCCA 477 at [31] to [32] and see also R v Diamond NSWCCA 18 February 1993, R v Hopper NSWCCA 19 November 1998, R v Tisalandis [1982] 2 NSWLR 430, and R v Li. 46 In the present case there were proper grounds available, in accordance with his Honour's factual findings, for him to have imposed sentences upon the Appellant and John Kairouz which were longer than those which he imposed on Anthony Kairouz. 47 His Honour found that Charbel and John Kairouz were each principals who had been engaged in the operation from the outset until it was wound up, that they had knowledge of all of its facets and were in a position of exercising control. Although Anthony Kairouz was also found to have been aware and involved in all facets of the operation, the level of actual control which he exercised was found to be less than that of Charbel and John Kairouz - a distinction which was to be found in the agreed facts in so far as Anthony was said to have been in a position to exercise "some control", a qualification which his Honour expressly noted did not apply in relation his level of actual control (or similarly that of Saad Nasr). His control was accordingly found to be significantly less than that of his brothers, and his criminality was said to have been "of a much less serious level". Additionally his Honour found that his involvement "was at least in part a consequence of [his] inclination to follow his older brothers". 48 The time frame for two of the charges preferred against Anthony Kairouz also differed from that for the charges preferred against Charbel and John Kairouz as follows:

[73]

Count 2 - supply methylamphetamine - 11 June 2002 to 20 August 2002, compared with 25 April 2002 to 20 August 2002. 49 The time frame for Count 3 - supply cannabis of 14 February 2002 and 20 August 2002 was common for all three offenders. 50 It is evident from his Honour's remarks on sentence, particularly in so far as they were based on the evidence of Mr Cleary, which he noted had been "implicitly guarded" in relation to Charbel and John Kairouz, that he had more confidence in Anthony Kairouz's prospects of rehabilitation than he had in relation to the elder brothers. 51 Finally of relevance for the difference in the sentences imposed on Charbel and John Kairouz, on the one hand, and on Anthony Kairouz on the other hand, is that while his Honour accepted that each saw the enterprise as "an easy way first of all supplying and of subsequently financing their [drug] habit", he also made the following observation: "However, I have to say that the extent of the enterprise is such that it is impossible to accept that the level of activity which is supported by the evidence can be entirely explained away on the basis of providing support for the drug habits of each of the offenders, and that is particularly so in the case of John and Charbel Kairouz. First of all the evidence does not suggest that their level of involvement in drugs was anything above a recreational nature and that it would be impossible to accept that the level of income from this enterprise would have been no more than necessary for that particular purpose." 52 There is in this passage a further recognition of the difference in criminality which affected Anthony Kairouz compared with that attaching to his elder brothers. 53 It follows, in my view, that not all things were equal, and although there is a considerable gulf between the sentences which were imposed, it is not such as to give rise to a justifiable sense of grievance. 54 Little was said in support of the parity ground in relation to the sentences imposed on Saad Nasr and David Nasr who were charged in identical terms to those charged against Charbel and John Kairouz, nor in my view could any sustainable argument have been developed in this respect. 55 In the case of Saad Nasr, the facts found were as follows:

[85]

(vii) His role was the least influential of the five members of the syndicate (with whom his Honour dealt), being "largely receptive", that is, one of taking directions not amounting to involvement in the organisation or direction of the enterprise. 59 Subjectively his Honour noted that he had a history of recreational drug use and that he claimed to have joined the syndicate to furnish his drug habit. He also noted that this Offender had indicated that his arrest had led him to be motivated to undertake changes in his behaviour that would result in a more stable drug free lifestyle. He noted that the pre-sentence report had been "very positive"; and said that there was further supportive evidence from another brother, who was not involved in the syndicate's activities, which was "particularly persuasive", and which provided an insight into his decline into criminality following a drive-by shooting at his home which had left him "particularly traumatised" and which had led to "quite conspicuous changes in his behaviour". The evidence, his Honour said, additionally confirmed his current commitment to rehabilitation, as was evidenced by his return to his family, both in a physical sense and as a bread winner, by the fact that he was holding down night and day jobs, and by the fact that he was not using drugs. 60 In summary his Honour said of him: "From the point of view from his personal history and in particular his history since his release from custody he has shown himself in a very convincing way a person who having fallen into a drug habit and ultimately into the supply of drugs as a consequence of circumstances over which he does not appear to have entirely had control, has made a very positive and promising commitment to total rehabilitation." 61 It is evident that, in sentencing David Nasr, his Honour took into account the fact that he had already been held in custody for four months, that he had demonstrated rehabilitation, in a more positive way while on bail than the other offenders who appeared for sentence, and that returning him to full time custody risked seriously undermining the process of his rehabilitation. 62 In allowing the Crown appeal this Court said: "31 An inescapable consideration to emerge from the agreed facts and his Honour's findings in relation to the respondent is that over a significant period of time the respondent was actively engaged in a business which involved the serious and systematic sale of drugs for profit. He was aware of all facets of the operation. The fact that he did not have the opportunity or capacity or exert any control over the operation impacts upon his level of culpability by comparison with his co-offenders. It does not take his case out of that category in relation to which this Court has consistently said a custodial sentence is mandatory unless exceptional circumstances can be established. Exceptional circumstances were not established. 32 In factual situations of this kind this Court has consistently held that considerations of general deterrence and denunciation have to be emphasised in the sentencing process. Despite the positive progress on a subjective basis which the respondent has made towards successful rehabilitation, I am of the opinion that the sentences imposed by his Honour were manifestly inadequate. Although his Honour referred to it in his recitation of the facts, it also seems that his Honour failed to have regard to the fact that the respondent was on conditional liberty during the period when these offences occurred." 63 It is evident from the reasons of this Court that the sentences which it ultimately substituted in his case were at the lower end of the available range, and that the Court had taken into account not only the discretion reserved for Crown appeals, but also the lengthy delay between arrest and sentence, much of which was unexplained, as well as the demonstrated rehabilitation, and the harshness involved in resentencing an Offender to full time imprisonment in circumstances where there had been a three month period of uncertainty between sentence and the hearing of the appeal. Those circumstances do not apply for the present applicants, and they also assist to explain away any question of disparity. 64 Comparison of the sentences imposed with those passed on Elias also provides no assistance. He was found by his Honour Judge Nicholson to have not been involved before 5 May 2002, and thereafter only as a "runner" or "gopher" who received calls from interested buyers, collected drugs from other members of the operation, delivered them and returned with the proceeds of sale which he gave to the principals. His role was found to be less than that of Kipic and Culbert. His Honour noted that there was no evidence of him recruiting innocents into drug abuse, or of contributing to the design of the supply system, or of being the architect of the anti detection measures, or of having any role in the packing, cutting or production of the drugs. Subjectively his Honour found that he had been homeless and unemployed at the time of the offences and that he had been led into participating with the co offenders by reason of his use of drugs to cope with depression. He was found to have ceased the use of drugs while awaiting sentence, to have embarked in a positive way on his rehabilitation through TAFE courses, and to have been reconciled with his father who had provided him with a home and employment. 65 His sentence was reset, after a successful Crown appeal, which meant that the sentence imposed was at the lesser end of the available range. It took into account, inter alia, the fact that the appeal had the effect of returning him to custody after an unusually lengthy period of remand for 22 months, upsetting what could only be described as having been the very lenient sentences which his Honour had directed were to be served by way of home detention. In fact this Court at [35] described the sentences imposed at first instance as having been "extraordinarily lenient". In the absence of "exceptional circumstances" of the kind referred to in R v Clark NSWCCA 15 March 1990, and in combination with his Honour's failure to comply with the guidance given in R v Zamagias [2002] NSWCCA 17 and in R v Jurisic (1998) 45 NSWLR 209, in relation to home detention, there was found to have been appellable error. 66 Similar considerations apply in the case of Kipic, whose involvement in the ongoing supply offence concerned three sales made within a 24 to 36 hour period, in which her role had been that of driving the person who handed over the drugs. Her involvement in the supply offence was found to have concerned a series of small supplies on request to users, which were effected after she received phone calls and made solo deliveries, when Culbert was unavailable. 67 His Honour rejected the Crown submission that, together with Culbert and Saad Nasr, she had taken over the run and had been party to its continuation in the same fashion as that which had been conducted from the Ashfield premises of the Kairouz brothers. She was found not to have been involved in the design of the syndicate's operations, although she was found to have been actively engaged for reward. 68 Similarly to Elias, the sentence which was substituted on appeal is to be considered as having been at the lower end of the available range, and to have brought to an end after 22 months on remand, the earlier sentences which were to be served by way of home detention. 69 This Offender was found to have been introduced to the syndicate by Culbert with whom she has been in a relationship, to have come from a deprived, disruptive and dysfunctional family background, as well as to have been involved, in her late teens, in a violent and abusive relationship which led to depression and a nervous breakdown. Her involvement in the offences was found to have come about by "a confluence of factors including her drug use, her low sense of self esteem, her desire to impress Culbert, and his encouragement to her". 70 His Honour accepted that she had ceased the use of drugs after her arrest, had returned to gainful employment, had recognised the wrongfulness of her acts, had become caring and supportive of her younger brother, and had demonstrated good behaviour while on bail. These circumstances were found to be positive indicators of rehabilitation, albeit subject to some warning signs which his Honour identified, and which, in his view, called for a lengthy period of potential supervision in the community. 71 In the case of each of these offenders the Court of Criminal Appeal made it clear that the extent of its intervention was "qualified by a need to avoid a heavy handed upsetting of what [they] have thus far respectively achieved in connection with their rehabilitation, and to take into account "the length of time for which the shadow of possible imprisonment has hung over them; and to give fair credit for compliance to date with the orders made by Judge Nicholson." 72 It is always appropriate to take into account, for parity purposes, sentences imposed upon co offenders on appeal. However, where there are personal considerations present affecting the length of those sentences such as demonstrated substantial post offence rehabilitation, delay, or the harsh consequences of returning an offender who has been at large to prison, they are relevant in determining whether a justifiable sense of grievance could be entertained by another offender, who received a longer sentence and who did not share those factors. 73 This is in fact the case, for the reasons explained in relation to Kipic, Elias and also David Nasr. Apart from the other matters mentioned it eliminates any such sense of grievance in relation to the sentences which they ultimately receive after the Crown appeals. 74 The position in relation to Culbert is one of some importance. In relation to the ongoing supply offence, it is to be noted that it was confined to five discrete supplies between 14 May and 5 June 2002, and that his participation was as driver for Anthony Kairouz. The quantity of the drug involved was about 3.8 gms of 1.5% purity, the total value of which was $250. 75 The remaining counts spanned the period between 6 June and 19 August 2002, and between 14 May and 19 August 2002, and involved at least 5 gms of methylamphetamine and 1 Kg of cannabis. The quantity of cannabis found by police at his premises was 225 gms, that is, an amount less than the trafficable quantity. Plastic bags, scales and some Nokia phones and associated equipment were also found. 76 As a result, his role was found by his Honour Judge Nicholson to have been more substantial than that of Kipic and Elias, and to have included work which went beyond that of a "runner", such as weighing, packing and storing drugs. His premises were found to have been a place where Saad Nasr was able to collect drugs for on sale, and he was held to have been trafficking for reward. His criminality was accordingly serious. 77 Subjectively, he was found to have come from a close knit and supportive family, and although unemployed at the time of the offences, his Honour noted that he had earlier performed well while studying as an apprentice, and that he had been in regular employment since being granted bail. His involvement was not found to have been attributable to any problem with drug abuse, but rather to an inability or refusal to acknowledge the wrong doing associated with the supply of prohibited substances. 78 His Honour was unimpressed with his attempts to minimise his involvement. His failure to accept the full extent of his dealing was regarded as a matter which denied to him full credit for his contrition or for the assessment of his rehabilitation prospects. His failure to understand the harm caused by the use of drugs was similarly regarded as a matter demonstrating an absence of insight into this area of criminality. His psychological profile was also found to give rise to concern, in so far as it suggested a lack of preparedness to be frank, a "high tolerance to socially non-conforming attitudes, values and behaviours" and in so far as it revealed significant scores on the drug dependence scales, as well as a self focussed personality and immaturity in thinking. 79 Otherwise it was accepted that he had been of good behaviour while on bail during the period of 22 months on remand, and had not been using drugs. Generally, however, his Honour found that while Culbert had made some progress towards rehabilitation it was "not as impressive" as that of Kipic and Elias. 80 The differences between the subjective circumstances of Elias and Kipic on the one hand and Culbert on the other, and the findings as to their respective prospects of rehabilitation were no doubt behind the decision of his Honour to order that Elias' and Kipic's sentences be served by way of home detention, and to direct that the Culbert sentences be served by way of full time custody. It was almost certainly that difference which motivated the Crown appeal in the case of those two offenders, but not in the case of Culbert. 81 The sentences imposed upon Culbert, were surprisingly lenient and were, in my view, outside the lowest level of a permissible sentencing range, but I am not however satisfied that they give rise to a legitimate sense of grievance, for the following reasons:

[89]

Legitimate Sentencing Range 85 The final ground, which again is common to both applicants, is that the sentences were outside the legitimate sentencing range. That is to be considered in a context where each offender was given a 25% discount for the pleas; where non-parole periods equivalent to 66% of the head sentences were set; and where there was no accumulation of sentence for what amounted to ongoing, although separate, offences of considerable criminality. 86 In R v Khaled [2001] NSWCCA 169, I made the following observation of relevance for Count 1: "18 It is precisely to the dealers who engage in this kind of conduct, that s 25A is directed, since it is those persons who keep the pernicious trade in heroin rolling. It may well be that an important part of the policy behind this legislation was to impose significant penalties which exist for those offenders who see it as profitable or prudent to immunise themselves from the significant penalties which exist for dealing in single large quantities, and in particular, by selling small enough deals from a stock warehoused elsewhere. I am unable, however, to accept that the section is to be confined to them. It applies equally to dealers such as the present applicant, who engage in an ongoing trade within the meaning of the section. 19 An appropriate differentiation can be drawn between the various classes of offenders to whom the section applies, by reflecting that in sentences towards the upper end of range within the available maximum of twenty years, for the bigger and more organised dealers, and by imposing lesser sentences for those who are at the bottom of the distribution chain. What is important is to give full effect to the legislative policy that this section operate so as to provide strong deterrent to those who may be tempted to engage in an ongoing trade in heroin and, in particular, to deter those who are minded to stand in their shoes once they are apprehended and sentenced to imprisonment. This is necessary to combat the unfortunate reality that there seems to have been an almost endless supply of street sellers willing to move in once others of their ilk are taken off the streets." 87 Although those observations were made in a decision where the subject drug was heroin, the same considerations apply to other prohibited drugs, particularly methylamphetamine. 88 The quantity of the drugs supplied in the case of such an offence is not the only relevant consideration, since as Hulme J pointed out in R v Smiroldo [2000] NSWCCA 120 at [15] the section is aimed at the business of supplying prohibited drugs, and it is the magnitude of that operation, rather than the individual supplies which is of importance. 89 Similarly in R v Hoon and Pouoa [2000] NSWCCA 137 Dunford J said:

[90]

"39 The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply." 90 The seriousness of the offence of supplying drugs on an ongoing basis has also been confirmed in other decisions of this Court, for example, R v Shi [2004] NSWCCA 135, and more recently R v Le [2005] NSWCCA 162 and in R v Preston [2005] NSWCCA 177. In the present context the further acts of supply which followed those that gave rise to Count 1, which were a continuation of the highly organised and active operation, which the syndicate had established, and of which the Applicants were principals from the outset, were also very serious objectively. In these circumstances heavily deterrent sentences were called for, as appears from the decision of this Court in R v Cheikh and Hoete [2004] NSWCCA 448, a case with some similarities in so far as it involved persons well entrenched in an organised distribution network (at least in relation to Cheikh). 91 In the case of Charbel Kairouz the continuation of his involvement while subject to a community service order for a drug supply offence, and while on bail for that offence, was a matter of considerable aggravation: R v Fernando [2002] NSWCCA 28 at [41] and R v Cicekdag [2004] NSWCCA 357 per Grove J at [7] to [8] and per Hoeben J at [48] to [54]. 92 Taking into account the sustained and serious criminality involved, and giving full credit for the subjective circumstances of each Applicant, including the matters which I will mention in a little more detail when I come to the first ground in the appeal of John Kairouz, I am not persuaded that any sentences other than those imposed were warranted in law and should have been passed: s 6(1) Criminal Appeal Act. 93 I reach that conclusion with a full appreciation of his Honour's mistaken reference to the maximum available penalty for Count 1 and the factual error identified in Ground 1. Whether the sentences imposed are to be set against a 20 year or 25 year maximum, being so far short of either figure, such an error, or slip of the tongue if it be that, was of no moment. More important and relevant is to consider the offending against the range of a legitimate sentencing discretion, in the light of the decided cases, some of which are elsewhere cited in these reasons, and in particular were noted by Giles JA in R v Cheikh and Hoete. 94 Additionally the case was one where the sentencing order needed to reflect the totality of the criminality involved. While his Honour may not have accorded strictly with the decision in Pearce v The Queen in relation to Count 2 in particular, the effective overall sentencing order seems to me to have achieved that result. 95 I am not persuaded that any of the grounds have been made good. 96 In the case of Charbel Kairouz I therefore propose the following orders:

[92]

Ground 1 - the sentencing Judge failed to give sufficient weight to the subjective features of the Applicant particularly before and after the offence. 98 It was submitted in substance that this Applicant's motivation to become a party to the enterprise arose in circumstances where he was a victim of the vicious cycle of use and supply and was not a trafficker for greed, thereby placing him at the lower level of criminality: R v Tulloh NSWCCA 16 September 1993. That proposition was specifically rejected by his Honour in the passage earlier cited, and while his drug use may have helped explain the reasons for his joinder of the enterprise it did not, in any way, excuse it for the reasons which I identified in R v Henry (1999) 46 NSWLR 346 at [236] to [259]. Moreover the decision in Tulloh does not provide a basis for a proposition stated in the bald terms submitted, as appears from the judgment of Hunt CJ at CL in so far as his Honour noted that each case depends on its own circumstances, and that a custodial sentence is normal in the case of trafficking to any substantial degree, whether or not a profit has been obtained. 99 Next, it was submitted that the evidence of rehabilitation, remorse and contrition was of the highest order, and that the present case fell into the category in which the Court might rhetorically ask "what more could the Applicant do?" citing R v Klein (2001) 121 A Crim R 90. That question was asked, in that case, in relation the offender's provision of assistance, which police had been unable to take up for operational reasons. It is not authority for the proposition that some special allowance must be given above that which otherwise would have attached to the Applicant's plea, contrition, remorse and progress toward rehabilitation. 100 As I read his Honour's reasons, full credit was given for these matters, both in setting the sentence and in fixing a very favourable non-parole period outside the legislative direction contained in s 44(2) of the Crimes (Sentencing Procedure) Act. 101 I am unpersuaded that error has been demonstrated in this respect.

R v Kairouz

At a glance

Court

Decision date

Before

Source

Judgment (97 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (23)