R v REFAI

DECISION : Leave to appeal granted; Appeal dismissed.

• 12 - IN THE COURT OF CRIMINAL APPEAL No: 60034/01 HULME J SMART AJ

JUDGMENT 1 HULME J : On 30 October 2000 the above named applicant pleaded guilty to a charge that between 9 February and 29 July 1994 he did knowingly take part in the supply of a prohibited drug, namely, cocaine. His plea was accepted in full discharge of the indictment which also contained a count that he had supplied the drug in the period mentioned. 2 On 24 January 2001 the applicant was sentenced by Flannery ADCJ to imprisonment for a period of eighteen months including a non parole period of nine months, both periods commencing on that day. A later application to his Honour to have the applicant's period of imprisonment served by way of home detention was considered but refused. 3 So far as they need to be recounted for present purposes, the circumstances of the applicant's offence are as follows. Between the dates mentioned, a business of selling cocaine was being conducted from the Budget Hotel at Kings Cross by a Mr Daher. The business included the purchase of the drug, its mixture with other products, and its division into capsules. For an extra payment, purchasers were provided with a capsule, a syringe, some water and the use of a room. 4 The statement of facts tendered before Flannery ADCJ and which was not the subject of dispute asserted that: "The prisoner was a close friend of Robert Daher and during the period in question provided assistance to Daher in relation to the business. He (amongst others) acted as a messenger between Daher and those directly involved in selling at the hotel and between Daher and his associates in the business. At times he provided personal security for Daher and for the hotel. On one occasion he helped prepared the cocaine capsules for sale. On a few occasions the prisoner was himself directly involved in selling cocaine at the hotel. He was paid for his services with money and cocaine."

5 The prisoner had a number of subjective matters operating in his favour. He was born on 24 January 1974 and was thus twenty at the time of the commission of the offence. He had some difficulties in his childhood. His father was abusive, he had no bond of affection with his children and his attitude created a deal of tension in the household. His Honour recorded that the applicant had pleaded guilty at the earliest opportunity to the charge for which he was sentenced. He has led a productive and constructive life style since his arrest. This includes the operation in partnership with his brother of a successful subcontracting business in the flooring industry. He no longer has any association with the peers he had at the time of his offending. Some favourable references were tendered on his behalf and he was adjudged suitable for community service and periodic detention. 6 His Honour seems to have accepted that the applicant is genuinely remorseful for his offending. On the other hand, the applicant admitted to a psychologist the occasional use of ecstasy and marijuana since 1994 and apparently he has something of a gambling problem. 7 The applicant's antecedents show two offences in 1993 of behaving in an offensive manner and having custody of an offensive implement, but these may be ignored. However, in February 1994 he was charged with possession of a prohibited drug and in due course convicted and in April 2000 he committed the offences of driving or riding whilst never having been licensed to do so and exceeding the speed limit by in excess of fifteen kilometres per hour. 8 Flannery ADCJ said that he took into account the delay which had occurred between the commission of the offence and the time of the sentence, observing in this regard that the applicant had had significant difficulty in obtaining Legal Aid. Because one of the grounds of appeal advanced is that his Honour failed to give adequate weight to delay, I should say a little more about it. The applicant was arrested on 29 July 1994. He declined to be interviewed by police. On 24 March 1995 he was committed for trial. On 5 May 1995 he was arraigned in the District Court when the matter was stood over to 31 August for trial. On that day the trial was vacated, the note in the chronology which was tendered, being in terms, "Awaiting outcome of co accused sentence indications". There followed a number of call overs until 27 March 1997 when the chronology records "indicated to court Legal Aid granted subject to contribution which he cannot make". 9 An appeal to the Legal Aid authorities was apparently refused by 26 March 1997 and on 25 September 1997 the matter was listed for trial on 14 September 1998. The chronology records beside that date: "Listed for trial for O'Connor and Refai, both accused unrepresented. Trial date vacated. Accused to seek permanent stay of proceedings. NOM (which I take to be Notice of Motion) to be filed by 2.10.98".

10 By January 1999 the applicant's Notice of Motion had still not been filed but the entry for 25 October 1999 indicates it was struck out of the list on that day. 11 The chronology shows that there were some thirty-two occasions when the matter was listed for one reason or another in the District Court, the last entry on the document being 1 September 2000 and recording that the trial date of 23 October was confirmed. While a limited number of the adjournments which occurred would seem to have been at the instigation of the applicant's legal advisers, the vast majority of entries contain no such notation. 12 I turn to the grounds of appeal. They are: 1. His Honour erred in the application of the principle of parity. 2. His Honour failed to give sufficient weight to the issues of delay, youth and demonstrated rehabilitation. 3. His Honour failed to give sufficient consideration to the issue of home detention.

13 It is convenient to deal with these grounds first.

14 In his remarks on sentence, Flannery ADCJ specifically directed attention to the topics of delay, youth and rehabilitation. As has been indicated, on a later occasion he specifically adverted to the possibility of home detention. 15 So far as delay is concerned, undoubtedly it was great. It is impossible to avoid the conclusion there was either a great deal of inefficiency or failure to give proper recognition to the need for persons charged to be tried with reasonable promptitude on the part of the members of the court before whom the matter came. Clearly the impact this delay must have had on the applicant and his life is a matter which, given the extent of the delay, argues strongly in his favour. 16 On the other hand, I think it must also be recognised that, as his plea showed, he was guilty of a serious offence. There is nothing in the material before the court to indicate that at any stage prior to October 2000 he indicated a willingness to admit his guilt to that offence. Of course, he was under no obligation to do so but it does seem to me that that fact somewhat mutes the weight to be given to the delay factor. 17 His youth is entitled to some weight but in accordance with authority, there must also be taken into account that his actions were deliberate, he must have known them to be wrong, they were pursued over a substantial period, they are such as an adult might pursue and most of them cannot be explained by any considerations of immaturity. 18 His rehabilitation also was significant but his occasional use of ecstasy and marijuana hardly indicates an acceptance of the need to obey community laws. The same comment is inspired by his recent traffic convictions. 19 Nothing has been pointed to in what his Honour has said which supports either of the grounds with which I am presently dealing other than the fact and duration of the sentence imposed. Whether that indicates error in the respects suggested, depends upon a judgment as to the available range of sentencing options available to his Honour. In my view, they extended no lower than the sentence which was in fact imposed. Indeed, but for the matters of delay and rehabilitation, and probably despite them, my view is that the sentence was manifestly inadequate for deliberate participation over a period of months in a significant commercial drug selling operation. 20 In light of the terms of the Drug (Misuse and Trafficking) Act, under which the applicant was charged, the courts have a duty to impose sentences which operate as a real deterrent on those who are disposed to deal in, or assist those who deal in, prescribed drugs. As has been said on other occasions, commercial operations such as that conducted by Mr Daher cannot operate without the assistance of minions such as the applicant and Mr Daher's other assistants. Accordingly, the sentences imposed on them must hurt and, other than in exceptional circumstances, involve full time custody. I do not regard the applicant's case as sufficiently exceptional for the matters on which he relies to outweigh the magnitude of his criminality in this regard.

GROUND 1 21 A consideration of this ground requires that I set out the circumstances against which it is advanced. Sometime prior to November 1996 Robert Daher was sentenced for his participation in the operation, the charge against him being that of supply not less than a large commercial quantity of cocaine. The sentence imposed was a total period of six years, a period which reflected a one year discount for co operation with the authorities in connection with the confiscation of Mr Daher's assets and a four year discount for co operation with the authorities in other respects, including the prosecution of others involved in this venture. 22 On 1 November 1996 the Court of Criminal Appeal, because of additional co-operation, reduced the sentence to one of five years including a minimum term of two years and eight months. 23 On 30 January 1996 Blanch J sentenced one Teisa Kurene after a sentence indication hearing to minimum and additional terms each of twelve months for her participation in the venture. She had been a receptionist at one of the premises used in the operation and in transporting drugs to other premises across the road and handling the proceeds of sale of the drugs. The charge against her was of supplying between 9 February and 1 May 1994 not less than a large commercial quantity of cocaine. Ms Kurene was paid a wage and provided with a room as her remuneration. Blanch J indicated that he accepted Ms Kurene, who was 26 at the time of her offending, was simply an employee but that her involvement in "an ongoing profit making, drug distributing racket, required the imposition of a custodial sentence". Blanch J indicated that he accepted that apart from her involvement in the operation, she was otherwise a worthwhile, hard working and respected member of the community. 24 On 9 February 1996 Blanch J sentenced Josephine Akari who had also been a participant in the operation, inter alia, in taking money from customers before they procured their drugs, to a minimum and additional term each of twelve months imprisonment in respect of a charge of supplying not less than the large commercial quantity of cocaine. His Honour took the view that although there were differences between the circumstances of Ms Akari and Ms Kurene, the differences tended to balance out and the sentences should be the same. His Honour observed that he had to be anxious to prevent an anomaly arising in the justice system where the principal and inventor of the whole scheme gets off leniently by comparison with his employees. 25 On 17 July 1997 Stewart ADCJ sentenced yet another person engaged in the operation, one Kamil Assaf, who had pleaded guilty to a charge of supplying a prohibited drug. His Honour found that Assaf had actively taken part in purchasing cocaine for, and supplying it to Daher, observing that the amount supplied was in the upper range of the indictable quantity and that Assaf had known some of it would be onsold to addicts and low level dealers and his involvement had extended to threatening others in the organisation. 26 Regarding himself as circumscribed by the sentences imposed on others connected with the enterprise, Stewart ADCJ sentenced Assaf to imprisonment for minimum and additional terms each of fifteen months. 27 On 26 September 1997 Stewart ADCJ sentenced yet another member of the operation, one Gehad Hussein, in respect of charges of supplying a large commercial quantity of the drug. Mr Hussein, who was barely nineteen at the time, was involved in selling the drugs and receiving the proceeds, arranged for Ms Akari to sell the drug on his behalf and participated in cutting and packaging the bulk drug into capsules. He was described as, whilst not the principal, playing a major role and an integral part of the organisation. The sentence imposed was one of three years consisting of minimum and additional terms each of eighteen months. 28 In his remarks on sentence, Flannery ADCJ expressed the view that the main question in the case was one of parity. His Honour took the view that the circumstances of Assaf and Hussein were sufficiently different for them to be put aside but did compare the applicant with Ms Kurene saying that he had to address the question of whether the applicant "should do better than Ms Kurene". As is apparent, the applicant did "do better" - eighteen months versus two years. 29 It was pointed out that Ms Kurene's offence of supplying not less than the large commercial quantity was more serious than the applicants of merely knowingly take part in the supply, the respective maximum penalties being life imprisonment and imprisonment for fifteen years. It was submitted that Ms Kurene's involvement was also substantially greater, albeit both of the persons involved were at the lower end of the supply chain. At the time Ms Kurene was aged 27 whereas the applicant was only 19. It was submitted also that in any comparison the applicant had the delay of over six years operating in his favour and that there was clear evidence of demonstrated rehabilitation, whereas Ms Kurene had only promise in that regard. 30 However, it is appropriate to record that Ms Kurene had no prior convictions, whereas the applicant did have some. Furthermore, his period of offending was about twice as long. Nor am I satisfied that the importance of his involvement was significantly less than hers. 31 It is unnecessary for the purposes of this case to embark upon a detailed analysis of the principal of parity. It is sufficient to observe that it is based upon the concept of equal justice and that as between co offenders there should not be a marked disparity in sentence which gives rise to "a justifiable sense of grievance", and that if the circumstances of co offenders do justify different sentences, there should be a due proportion between them - see Regina v Postiglioni (1996-1997) 189 CLR 295 at 301-2. It is also clear that the court has a discretion in the matter - see Regina v Doan [2000] NSWCCA 317, Regina v Steele (unreported CCA, 17 April 1997) and Regina v Reardon (1996) 89 A Crim R 180 at 192. 32 Furthermore, mere unjustifiable disparity is insufficient to attract the principle. The disparity must be "marked" -(See Regina v Lowe (1984) 154 CLR 606 at 610,611, and 616 or "manifestly excessive" 624,616). 33 In my view, any disparity in this case does not answer that description. But even if I thought there was such a disparity, I would not interfere. The nature and extent of the applicant's involvement in a commercial drug supply operation was such as to require the imposition of a custodial sentence not less than that imposed here. Furthermore, insofar as there may appear to be any unfairness when the sentence imposed on the applicant is compared with that imposed on Ms Kurene, it only arises because of what seems to me to be manifest and gross inadequacy in the sentence imposed upon her. As has been pointed out above, commercial operations such as that conducted by Mr Daher cannot operate without the assistance of minions such as the applicant and Mr Daher's other assistants. The sentences imposed on such persons must hurt sufficiently to operate as a real disincentive both to the offender being punished and to others who participate in operations such as those conducted by Mr Daher. They must also reflect to an appropriate degree retribution. In both of these respects, when compared with the statutory maximum of life imprisonment, it does not seem to me that the sentence imposed on Ms Kurene did so. While there may well be differences, the decision of this court in Regina v Wong (1999) 48 NSWLR 340 is a useful reference point when persons low in the hierarchy of drug supply come to be dealt with. 34 I cannot conclude these reasons without one further observation. It is apparent from what I have said that both Blanch J and Stewart ADCJ felt constrained in the sentences imposed by sentences imposed on other offenders. Flannery ADCJ seems to have taken the same view. On a proper understanding of the earlier sentences and the principles of parity as explained in the decisions in Regina v Doan, Regina v Steele and Reardon their Honours should not have felt so constrained. 35 I grant leave to the applicant to appeal against sentence but I dismiss the appeal. 36 SMART AJ : In some of the cases subsequent to the decision in this court in TR (1996) CCA 1 November 1996 unreported, it has been suggested that that decision should operate as a bench mark. In TR while assistance was given in relation to the supply of cocaine at two low cost hotels at street level, the assistance went far beyond that and to other matters of much importance. Thus the sentence in TR should not be used as a starting point when dealing with other offenders. 37 It frequently happens that a principal gives extensive assistance. That provides no sufficient reason for substantially reducing the sentence of co offenders who have not given assistance of consequence, albeit they may not be able to do so. 38 The sentence imposed in the present case was exceedingly lenient and indeed inadequate, and it was not open to the Judge to have imposed a lesser sentence. I also agree with the reasons of Hulme J and the order which he proposes. 39 HULME J : The order of the Court is leave to appeal is granted. The appeal is dismissed.

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