R v Kitchener

R v Kitchener [2003] NSWCCA 134 R v Kaiva (CCA, unreported 9 November 1998) CASES CITED: Callaghan v R [2006] NSWCCA 58 R v Gale (CCA, unreported 20 April 1993) R v Zamagias [2002] NSWCCA 17

PARTIES: MOHAMMED ALI KDOUH v. REGINA

COUNSEL: Crown: Dr. P. Power, SC. App: Mr. C. Smith

SOLICITORS: Crown: S. Kavanagh App: S. O'Connor

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL No. 2006/241

McCLELLAN, CJ. AT CL. JAMES, J. HALL, J.

THURSDAY 27 APRIL 2006 MOHAMMED ALI KDOUH v. REGINA Judgment

1 HALL J: The applicant seeks leave to appeal against sentences imposed by the District Court (his Honour Judge Woods, QC.) on 2 September 2005.

2 The applicant appeared for trial on 12 July 2005 on a charge of ongoing supply of a prohibited drug (heroin) for financial or material reward pursuant to s.25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty prescribed for an offence under that provision is 20 years imprisonment. The trial concluded on 21 July 2005.

3 In relation to the charge under s.25A(1), the Crown relied upon three transactions which were alleged to have occurred between 25 August and 23 September 2004. They were:- (a) Supply of heroin (0.1 gram) at Kings Cross on 22 September 2004 to an undercover operative. (b) Supply of heroin (0.5 grams) at Kings Cross on 23 September 2004 to an undercover operative.

(c) Supply of heroin (0.3 grams) at Kings Cross on 23 September 2004 to an undercover operative.

4 The applicant admitted the first and third transactions, but denied the second. On 21 July 2005, the jury returned a verdict of not guilty on the charge under s.25A(1) but guilty of an offence under s.25(1), namely, supply offences with respect to the first and the third transactions to which I have referred (the statutory alternative under s.25A(4) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty prescribed is 15 years imprisonment).

5 The applicant was sentenced in respect of each of the offences to concurrent terms of three years imprisonment to commence on 12 November 2004 and to expire on 11 November 2007, with non-parole periods of two years to expire on 11 November 2006.

6 In the grounds of appeal that are dated 18 January 2006, the applicant gave notice that he intended to rely upon two grounds namely:- (a) That the sentences imposed contain an element of double punishment.

Ground 1: The sentences imposed contain an element of double punishment

7 As to the first ground, Mr. Smith, on behalf of the applicant, relied upon his written submissions but did not supplement them by any oral submissions. The remarks on sentence of his Honour set out observations and in the second paragraph on page 3 the following passage appears:- "At the time of the present offences, when he was selling balloons of heroin as a runner for some higher up in the drug chain on the streets of Kings Cross, he was still on parole for an offence of enter dwelling with intent, a sentence imposed on 11 November 2002. He has already, in respect to that, been, as the vernacular is, 'breached' and the Parole Board has ordered the service of the balance of parole. In respect to that, it is appropriate for me to set the commencement date for the current sentence as at 12 November 2004. He will not get any benefit in the present matter, although theoretically it might be open to me to allow it, for time spent on the balance of his previous parole."

8 In the applicant's written submissions, it is contended that there was an error when the sentencing judge, in effect, took into account as an aggravating feature the fact that the relevant offences were committed whilst the applicant was on parole but his Honour declined to backdate the sentence so that it commenced on the date after the offender was taken into custody.

9 It was submitted that it was inappropriate and an error for the sentencing judge in the present matter to commence the sentence on 12 November 2004 because to do so would result in double punishment for the applicant.

10 The Crown's submissions set out the history in relation to an earlier offence and the sentence that was imposed in respect of it, and the following history is based upon the Crown's summary of the relevant facts in relation to it.

11 On 1 November 2002, the applicant was sentenced in the Sydney District Court in relation to, amongst other matters, an offence of entering dwelling with intent. The sentence imposed was two years and six months imprisonment to commence on 3 March 2002 and to expire on 2 September 2004, with a non-parole period of 18 months to expire on 2 September 2003. The applicant was released on 2 September 2003 but was returned to custody on 25 November 2003 for breach of parole. The Parole Board revoked parole in order that he serve the balance of parole of 10 months and 26 days to commence on 24 November 2003 and to expire on 19 October 2004.

12 Prior to the expiration of that term, the applicant was again granted parole. He was released on 10 June 2004, some three months prior to the commission of the offences in question. The applicant was arrested for the present offences on 8 October 2004 and by order dated 21 October 2004 the parole order of 10 June 2004 was revoked and the Parole Board ordered that the applicant serve the balance of parole of one month and five days to commence on 8 October 2004 and to expire on 12 November 2004.

13 In support of Ground 1, the applicant contended that the sentence should have commenced on 8 October 2004 and in support of that submission, reliance was placed upon the judgments of this Court in Regina v. Kitchener [2003] NSWCCA 134 and Regina v. Kaiva (CCA, unreported, 9 November 1998). The argument on behalf of the applicant in this respect is conveniently summarised in the Crown submissions (paragraph [7]) in the following terms:- "… The argument is that, parole having been revoked, to fail to backdate the sentence to the time of arrest is to punish the applicant twice for breaching his parole (constituted by the commission of the offences): first, by the act of revocation and, secondly, by treating the breach of parole as an aggravating feature of the present offences."

14 The Crown, in response, has submitted that, since those cases, to which I have referred, it has been made clear by this Court in Callaghan v. Regina [2006] NSWCCA 58, that a sentencing judge need not always backdate a sentence to the commencement of custody. In this respect, the observations of Simpson, J. in Callaghan are relied upon and the observations in particular are those set out in paragraphs [21] to [25] of Simpson J's judgment. Those paragraphs are in the following terms:- "21. That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly , the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22. I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23. It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24. However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences. 25. Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period."

15 It is clear, accordingly, that there is no rigid rule to be applied in relation to the question of backdating a sentence to the date of arrest and, secondly, that a discretion exists on the question of backdating where parole has been revoked by reason of the offence for which the offender is to be sentenced.

16 I also observe that the Crown relied upon dicta of Hunt, CJ. at CL. (with whom Gleeson, CJ. and McInerney, J. agreed) in Regina v. Gale (CCA, unreported 20 April 1993) whose observations were similar in effect to those of Simpson, J. in Callaghan.

17 In relation to the exercise of the discretion, the following matters relied upon by the Crown are relevant thereto:- (a) The period in dispute is relatively brief, amounting to approximately one month and five days.

(b) This was the second time that the applicant had breached his parole and had his parole revoked for the offence of enter dwelling with intent.

(c) To backdate the sentence to the commencement of custody would have effectively allowed the applicant to go unpunished for this second breach of parole.

18 I have concluded that the first ground of appeal must fail. Not only was the discretion available to the sentencing judge, but the matters I have just referred to in the preceding paragraph do indicate plainly, in my view, that no error has been demonstrated. Accordingly, this ground of appeal should be dismissed.

19 The second ground, which was the principal ground argued, is that the sentence is said to have been manifestly excessive.

20 The objective circumstances of the offence are in the remarks of the sentencing judge and the particularly relevant aspect of the facts concerning the offence are to be found in paragraph three on page two of the remarks on sentence:- "The facts are fairly straightforward and unremarkable. The offender is a relatively young man who was living rough on the streets of Kings Cross with his girlfriend, a woman who is now in custody awaiting sentence on various charges of violence, both were addicted to heroin … At the time of these present offences, when he was selling balloons of heroin as a runner for some higher up in the drug chain on the streets of Kings Cross … … the damage caused by the offence was not substantial in the sense that the quantum involved was minor. Of the two offences of selling heroin in the balloon to the undercover police officer, in the first instance, only .1 of a gram was involved of a substance which was held out to be heroin, and in the other case, .3 of a gram was involved. These are not very grave offences in terms of quantity."

21 In the applicant's submissions, it is contended that this was a user/supplier case of the supply of a very small amount of heroin on one occasion and the supply of what was held out to be heroin on another occasion.

22 The applicant's submissions identify both the objective and subjective circumstances, and I will deal with each. Firstly, in relation to the subjective circumstances, reliance is placed on the following:- • That the applicant was 28 years of age at the time of the commission of the offences and 30 at the time of sentence, his date of birth being 11 October 1974.

• That the applicant gave evidence at the sentencing hearing along with his mother.

• The sentencing judge was of the view that, although there had been a trial, the jury found the applicant guilty of two matters to which he had, in effect, pleaded guilty. • The applicant had a significant criminal history including previous convictions for the supply of drugs, including an offence of ongoing supply of ecstasy in respect of which he was sentenced to 12 months gaol.

23 In addition to those matters, the sentencing judge took into account that the applicant was, as I have already stated, on parole at the time of the offences and his Honour also noted that there were good prospects in this case of rehabilitation.

24 The applicant's written submissions contend that the sentence imposed was manifestly excessive and in that respect relied upon the following:- (a) Objectively, the two supplies were of very small quantities and one of them was not an actual supply of heroin.

(b) That there was insufficient weight given to the subjective circumstances of the applicant.

(c) That the sentencing judge failed to apply the principles of totality in an appropriate manner in the circumstances of the case.

25 The last mentioned matter was not raised or pressed in the oral submissions. The oral submissions, succinctly and ably presented by Mr. Smith of counsel in relation to Ground 2, were that there were a combination of factors, which, he said, led to the conclusion that the sentences imposed were manifestly excessive.

26 Whilst conceding that this was a case in which a custodial sentence was appropriate, the complaint essentially was that the sentence of three years with a non-parole period of two years, served concurrently at the expiration of the applicant's parole revocation, was too long.

27 The combination of factors Mr. Smith in oral submissions identified were, firstly, objective circumstances, in particular, the amount of drugs which he submitted were at the very lowest end of the spectrum of matters of this nature. Secondly, when seen in the context of the circumstances, there was effectively a plea entered at the earliest opportunity and, thirdly, that the acquittal of the charge under s 25A(1) is significant in that in effect the two offences on which the applicant was convicted would have otherwise been capable of being dealt with in the Local Court where, he submitted, the effective maximum for each charge would have been two years.

28 In addition to those objective circumstances, Mr. Smith relied upon, what he termed, the relatively impressive subjective factors, emphasising the age of the applicant and additionally relied upon sentencing statistics in relation to offences of a more serious type under s 25A which were presented to the Court on this application.

29 As to the term of sentences for such offences, Mr. Smith relied upon the fact that the median point shown in the statistics being, he submitted, a large sample of 264 cases, was 36 months and that the non-parole period statistics in respect of 247 cases indicate the median sentence was 18 months as shown by the statistics and sought to contrast that to the non-parole period which was set in the present matter.

30 It was also submitted that the subsequent events reveal that urine testing in gaol confirms that he has not been taking drugs whilst in custody but, in relation to that matter, there was presented on this application information from the NSW Department of Corrective Services which would indicate that there was a failed urine test in February of this year. That said, there was also presented a certificate of completion by the applicant dated 7 March 2006 of what is termed a Relapse Prevention course.

31 The Crown, in its submissions, observed that the sentencing judge did give the applicant the benefit of a 25% discount, having indicated that, but for the plea offer with respect to the first and third transactions, a sentence of four years imprisonment would have been imposed. It is said that this was despite the fact that, although the applicant was entitled to some discount, the plea offer was not made at the earliest opportunity.

32 The Crown also pointed to the applicant's poor record and prior convictions for drug offences, including the 2002 conviction for ongoing supply of ecstasy. The Crown contends that the record reveals a continuing attitude of disobedience of the law and is one that enhances the applicant's moral culpability for the present offences.

33 Each offence carried a maximum term of imprisonment, as I have already referred, of 15 years and that, as I said, is to be taken as reflecting the seriousness of the relevant type of conduct involved in offences of that kind. Reliance is placed upon Regina v. Zamagias [2002] NSWCCA 17 per Howie, J.

34 The fact that the offences were aggravated by reason of the applicant being on parole at the time the offences were committed is also relied upon by the Crown as a matter of significance in sentencing in this case. It is a matter that the sentencing judge was required to take into account as an aggravating factor pursuant to the provisions of s.21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.

35 The other relevant aspect which, in a sense, benefited the applicant was that the sentences imposed were concurrent sentences.

36 Having regard to all the factual circumstances and, in particular, the matters raised in the submissions on behalf of the applicant and on behalf of the Crown, I am of the opinion that the sentences imposed, namely, a term of imprisonment of three years and a non-parole period of two years to be served concurrently, was a sentence that was well within the range open to the sentencing judge. I do not consider that there is any basis upon which this Court could or should intervene.

37 Accordingly, I am of the opinion that the sentences were not manifestly excessive and no lesser sentences, in my opinion, are warranted in law.

38 I accordingly would propose that the application for leave to appeal be granted but that the appeal be dismissed.

39 McCLELLAN, CJ. at CL: I agree with Justice Hall.

41 McCLELLAN, CJ. at CL: Accordingly, the orders of the Court are as Justice Hall has indicated.

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