_R v Slivo_

Judgment (39 paragraphs)

[1]

Commonwealth Director of Public Prosecutions for the respondent

[2]

[1] McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Holmes JA.

[3]

[2] HOLMES JA: The applicant seeks leave to appeal against a sentence of 13 years imprisonment imposed on him on one count of trafficking in heroin, methylamphetamine, cocaine and 3,4-methylenedioxymethamphetamine between 1 November 2003 and 13 April 2004. He had pleaded guilty to that charge, and also to six counts on an earlier indictment, which resulted in lesser, concurrent sentences. He makes no complaint in respect of those, but he contends that his sentence on the trafficking count was manifestly excessive, on two bases: that insufficient weight was given to his plea of guilty, which ought to have attracted a greater discount; and that his having received the same sentence as that imposed on a co-accused, Omer-Noori, gives rise to a "justifiable sense of grievance".

[4]

[3] The earlier indictment included four counts of supplying methylamphetamine to an undercover police officer, over a period of about a month in 2002. In those transactions, 21.988 grams of powder, containing 2.392 grams of methamphetamine, changed hands for $3010. The remaining counts were one count of possessing things used in connection with supplying dangerous drugs (scales and two mobile phones) and one count of possessing methamphetamine (27.98 grams of powder, 1.07 grams methamphetamine pure) and cannabis sativa (a clip-seal bag of leaf).

[5]

[4] In relation to the trafficking count, the applicant was under electronic surveillance between 10 November 2003 and 13 April 2004. The earliest of the particulars of trafficking concerns a recorded conversation between the applicant and Omer-Noori, about the price of heroin; in the course of it, the applicant said that he cut his heroin "one by three" and had at that time 3 ounces left. Over the next few months, the applicant was recorded discussing these matters:

[6]

• obtaining 4 ounces of an unspecified drug for sale;

[7]

• indicating that he had between 1,000 and 1,500 ecstasy tablets, with the prospect of another 3,000 coming;

[8]

• buying 12 and a half ounces of heroin for $50,000 in a joint purchase with another man, with some bartering to reduce the price from $8,000 an ounce to $3,000 an ounce;

[9]

• selling two ounces of heroin to Omer-Noori at $6,800 each;

[10]

• negotiating for the purchase of between one and one and a half kilograms of methamphetamine for $100,000;

[11]

• undertaking to sell as many ounces of heroin as a Sydney associate could bring with him, at $8,500 per ounce, with the possibility of two or three ounces of cocaine as well;

[12]

• offering to get the same associate six or twelve ounces of heroin at $5,800 an ounce, while informing him that he had at that time 5 ounces available;

[13]

• ordering methylamphetamine and cocaine from another associate;

[14]

• selling twelve and a half ounces of heroin to Omer-Noori, seven and a quarter ounces of which was ultimately returned because of its poor quality, which had made users ill;

[15]

• offering to sell a kilogram of methylamphetamine which Omer-Noori hoped to acquire;

[16]

• obtaining 500 ecstasy tablets for supply to a Chinese associate who, according to their conversation, owed him $16,000; and

[17]

• negotiating to buy 1.5 kilograms of methylamphetamine for $130,000 from a Sydney supplier.

[18]

The last transaction did not proceed because the applicant was arrested.

[19]

[5] Those transactions were interspersed with seven occasions on which the applicant supplied to smaller customers, often sending one of two employees to make the delivery. In addition to those dealings, the applicant was involved in an attempt at importing some 273 grams (147.6 grams pure) of cocaine from Lebanon. The applicant is described in the Crown's particulars as a financier of that operation but whether he did in fact contribute is not clear. He did, however, make attempts to establish what had happened to the courier, who failed to arrive; as it turned out, she had become ill on the flight, was apprehended and ultimately admitted that she was carrying narcotics internally.

[20]

[6] Late in the period of surveillance, possibly because of the presentation of the indictment for the 2002 offences, the applicant discussed with a Sydney contact the prospect of the latter's taking over his business while he was in gaol. When he was arrested on 28 February 2004, the applicant was in possession of the seven and a quarter ounces of impure heroin which Omer-Noori had returned to him. On 13 April 2004, his residence was searched; police found 1.621 grams of methylamphetamine, 43 lysergide tablets and $2,435 in cash.

[21]

[7] The applicant was 27 years of age. He had a criminal history. In July 2001 he was placed on two years' probation in respect of a conviction of dangerous operation of a motor vehicle; all of the 2002 offences had taken place during that period of probation. He had a number of convictions of minor offences, including possession of a dangerous drug, dealt with in the Magistrates Court, and a 2005 fraud conviction in respect of which he was sentenced in the District Court to three years imprisonment suspended after 12 months.

[22]

[8] The learned sentencing judge noted that the applicant was on probation at the time of the 2002 offences, and on bail for those matters at the time of the trafficking offence. The trafficking was not undertaken to support a drug habit. It involved large amounts of money and drugs and the only factor limiting the extent of the business seemed, from some conversations, to have been the inability to get all he could sell. The applicant had made arrangements for the business to be carried on while he was in prison. The plea of guilty to trafficking was a late one, advised only a matter of weeks before the matter was to proceed to trial. His Honour noted that the sentencing judge in the Omer-Noori case[1] had said that a head sentence of 15 years was appropriate but for the plea of guilty; in this case, his Honour said, 16 years would also be within the range. He gave some credit to the plea of guilty as indicating a willingness to co-operate in the administration of justice, although he saw it as no indication of remorse.

[23]

[9] What his Honour said about the range of the head sentence, without allowance for the guilty plea, was accurate. In R v Omer-Noori[2], comparing Omer-Noori's activities with those in four cases identified as comparable, R v George[3]; R v Bradforth[4]; R v Raciti[5] and R v Matasaru[6], I observed that his was -

[24]

"a much more substantial, broadly-based enterprise with far more entrepreneurial activity (exemplified by the investment in the proposed importation); and there was no element of supporting a habit."[7]

[25]

All of that is equally true here. Given the variety and scale of drugs trafficked, together with the earlier supply charges, his Honour was justified in starting from the premise that a 15 or 16 year sentence was appropriate. He was also justified in concluding that remorse did not loom large, particularly given the evidence of the applicant's arrangements for his business while he was incarcerated, so that this was purely a matter of assessing what allowance should be made for co-operation in the administration of justice. That assessment can never be an exercise in mathematical precision, but a significant allowance, of two to three years, was properly made.

[26]

[10] The complaint was really as to parity: that the appellant ought to have got a lighter sentence than Omer-Noori. It was argued that the latter had trafficked for three months longer and was shown to own some property, a house and four wheel drive vehicle, while no assets of the applicant were identified. And, it was said, the learned sentencing judge had erred in regarding Omer-Noori's antecedents as not differing "in any significant way" from the applicant's. The applicant's counsel at sentence had put to the sentencing judge that his client had a traumatic background: he had been brought up in Iraq, his father had died when he was 13, and he had come to Australia as a refugee at 15. Omer-Noori was seven years older and had, unlike the applicant, no history of drug use. The latter had used cannabis and methylamphetamine from time to time, although it was emphasised that he was drug free throughout the period of trafficking. (That emphasis was perhaps attributable to the claim of abstinence that the applicant had made in an affidavit for bail purposes.)

[27]

[11] By way of further distinguishing features, the applicant's counsel here pointed out, the applicant had a three year old child from a failed relationship (his mother had the care of the child), whereas Omer-Noori was childless. The applicant had taken steps towards rehabilitation, for which he had not been given sufficient credit; that was demonstrated by a letter commending him on his progress with literacy and numeracy studies while in custody. The final point of distinction was that he had pleaded guilty without contesting any part of the Crown case on sentence, whereas Omer-Noori's sentence was contested and extended over three days.

[28]

[12] An examination of the details of Omer-Noori's offending, set out at paras [4]-[7] of the judgment in that case, shows Omer-Noori and this applicant to have been operating at remarkably similar levels, as well as actually co-operating in many of their activities, including the proposed importation from Lebanon. Omer-Noori commenced his trafficking earlier, in August 2003, but there was nothing in the evidence to suggest that he had been active after 28 February 2004, the day on which the applicant was arrested. In contrast, some six weeks later the applicant was arrested again in possession of methylamphetamine, lysergide tablets and cash.

[29]

[13] The Crown did not succeed in locating any assets in the applicant's name, but it was able to identify $120,000 in unexplained income contributed to his mother's equity in her house and another $30,000 paid in legal fees. Consequently, as it seems to me, there was no marked difference between the positions of Omer-Noori and the applicant in regard to criminal gains. In any event, both were recorded discussing large amounts of money, and those conversations are likely to be a far better guide to criminality than identified assets. If any distinction is to be drawn between the levels of criminal activity of the two, it is not to the advantage of the applicant. As well as on-selling large quantities of drugs, he had an additional tier to his organisation, in the form of two employees who undertook street level dealing.

[30]

[14] The applicant's past history of drug use had no bearing at all on the trafficking offence, and the fact that Omer-Noori had no such history was similarly beside the point. In general terms, Omer-Noori and the applicant had similar backgrounds of displacement, both having come to Australia from Iraq. The applicant might have had a more traumatic early youth, but that was of very little significance in the context of his being dealt with in his late twenties for a commercial, broadly-based drug enterprise. Similarly, the fact that Omer-Noori was some seven years older was largely irrelevant, given that the applicant was well and truly an adult at the time of his offending. Omer-Noori did not have, as the applicant did, a small child, but he was married and was parted from his wife by his incarceration. Since he had not been in custody, he had not manifested signs of rehabilitation by successfully completing courses; on the other hand, he did not have the negative indicium of offending while on probation, and he had not been recorded making arrangements to hand on his business during his prison sentence. In short, there were things to be said for and against each of them.

[31]

[15] The credit to which Omer-Noori was entitled for co-operation was reduced by the fact that his sentence was contested. The applicant, who engaged in no such contest, had his sentence discounted only to a similar extent; but he also received the distinct benefit of a concurrent sentence in respect of the earlier supply offences. The learned sentencing judge's remarks make it clear that he undertook the exercise of balancing these and the many other competing factors. The result, the imposing of a sentence on the applicant identical to that imposed on Omer-Noori, cannot be regarded as a matter of legitimate grievance for either.

[32]

[16] I would dismiss the application for leave to appeal against sentence.

[33]

[17] MACKENZIE J: I agree, for the reasons given by Holmes JA, that the application for leave to appeal against sentence should be dismissed.

[34]

[1] Byrne J, Indictment Nos 326 of 2003, 104 of 2004, 346 of 2005, 347 of 2005, 2 February 2006.

[35]

[2] [2006] QCA 311.

[36]

[3] [2001] QCA 135.

[37]

[4] [2003] QCA 183.