R v Yaghi

• 11 -IN THE COURT OF CRIMINAL APPEAL 60846/00

WOOD CJ at CL SMART AJ

Wednesday 2 October 2002 Regina v Mohamed Yaghi Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of a sentence imposed upon him by his Honour Judge Woods QC in the District Court at Sydney on 15 December 2000, following his plea of guilty to 1 count of conspiracy to supply not less than a large commercial quantity of heroin. An offence of knowingly take part in the supply of a commercial quantity of cocaine was also taken into account on a Form 1. The sentence imposed was one of imprisonment for 10 years with a non parole period of 6 years and 6 months.

Facts 2 At the time of the offences, the applicant was a serving police officer whose activities became the subject of investigation by the Investigation Unit, Special Crime and Internal Affairs. In the course of that investigation, his involvement with 2 co-conspirators, Ned Hammoud and Frank Moussa, in negotiations to supply heroin to a person, "Brian", was discovered. These negotiations took place between 27 May 1999 and 16 June 1999. So far as the applicant was concerned, they involved an arrangement whereby 4 blocks of heroin, each weighing 350 grams, were ostensibly to be supplied for a price of $60,000 per block, or "Tile" as the blocks were described. The negotiations mainly took place by the use of various mobile phones, but there was also a trip to Melbourne on 13 June 1999 by the applicant and Hammoud, in the course of which there were meetings with Moussa and "Brian". 3 The police investigation into this offence, and into the cocaine offence next mentioned, involved physical surveillance as well as considerable monitoring of telephone calls, and of conversations picked up by a listening device placed in a motor vehicle used by the conspirators. In the course of his involvement in the conspiracy the applicant employed a false identity in relation to the Melbourne trip, used mobile phones obtained in false names, switched SIM cards, used public telephones, and at one stage employed his policing skills to pick up the fact that the motor vehicle carrying the conspirators was the subject of surveillance. 4 The details of the conduct of the co-conspirators in relation to both offences are comprehensively and carefully crystallised in the statements of facts prepared by Detective Sergeant Nicholas, dated 18 November 2000 which was placed before his Honour. 5 The applicant was sentenced upon the basis that, so far as the heroin was concerned, the exercise was a "rip off" or ruse in which those involved would provide "Brian" with a convincing representation of being in a position to supply the drugs, and would then steal the money which "Brian" brought to Sydney to complete the purchase of at least four blocks of heroin for about $240,000, and, if necessary, to do so by force. It was not irrelevant, in that regard, that when Hammoud was arrested, he was found to be in possession of a firearm and bullet proof vest. 6 Although there was in fact no intention to supply, it was accepted by the applicant that the offence was made out. His Honour described it as "having the character of a major drug crime". 7 The offence of being knowingly involved in the supply of cocaine did involve a genuine transaction, in so far as those involved intended to supply 16 ozs or 450 gms of this substance, to an unidentified customer of a man known as "Andreou", at a price of $4,200 per oz. Those involved in this offence included Hammoud, Andreou, and one Richard Droubi. The details of the negotiations for the supply were picked up by police through the interception of telephone conversations, in which code words were used. 8 As events turned out, no cocaine was actually supplied, but as I have observed, this was accepted as having been a real transaction. His Honour also characterised this offence as a "major drug matter", although "not as serious as the heroin matter" 9 His Honour appropriately observed that drug transactions of the kind here involved, require significant custodial penalties as a deterrent. That this is so is indicated by the maximum available penalties, prescribed for the two offences, which apart from the substantial fines, for which the relevant sections provide, include imprisonment for life and for 20 years respectively. 10 The applicant now submits that his Honour erred in characterising the heroin offence as a "major drug crime", and as one which was more serious than the cocaine offence; that the sentence was manifestly excessive; and that it lacks parity with that imposed upon Hammoud, who also pleaded guilty to both offences.

The proper characterisation of the heroin offence 11 In Regina v Kalpaxis (2001) 122 A Crim R 320, the Court was similarly concerned with an offender who offered to supply a large commercial quantity of cocaine to a purchaser, contrary to s 25 of the Drug Misuse and Trafficking 1985, without any means or intention of doing so. The case was described as "exceptional and extraordinary", since from beginning to end it involved nothing more than a ruse by a mentally disturbed offender, who was out of touch with reality, and who was seeking to obtain sufficient money to enable him to spend time in Greece with his family, and with his father who was dying of cancer. 12 In the course of the reasons given for dismissing the Crown appeal against a suspended sentence of imprisonment for 2 years, Stein JA observed (with the concurrence of Studdert J and myself) at 322: " In written submissions the appellant is critical of his Honour for describing the true character of the offence as more akin to obtaining money by a false pretence. It is submitted that his Honour made an erroneous classification of the offence and that this led him to impose a sentence which was far too short and to exercise his discretion to direct that the execution of the sentence be suspended. In my view, what his Honour said was no more than a comment which, with respect, was appropriate." 13 His Honour continued (at 323): " The offence itself must be seen as falling at the least serious end of the spectrum encompassed by the breadth of the provision and the definition of supply in s 3. It needs to be emphasised again that there was no actual supply nor any intention or ability to supply drugs. There is, it seems to me, an argument that offences of this nature, which apparently occur infrequently, ought to be dealt with by a separate section of the legislation which can have as its maximum penalty a different penalty than life imprisonment." 14 Kalpaxis was a very different case from the present in so far as the "transaction" there involved a single offender who was mentally disturbed, whose motivation was limited, and who had no realistic prospect of success in what was an extremely amateur venture. 15 The present case was far more serious since those involved behaved in an organised and systematic way, entirely consistent with that employed by those involved in high level drug dealing, as part of a plan to secure a substantial sum of money from another person, who was also involved in that trade. While this offence might also have had the flavour of an attempt or a conspiracy to obtain money by deception or by a false pretence, to so characterise it would, in my view, inappropriately minimise the criminality involved. 16 It is regrettably a fact of life, within the organised drug trade, that "rip offs" occur, and those who choose to cloak such an endeavour with the appearance of a genuine drug deal, must accept the consequences if their conduct happens to fall within the specific provisions of the Drug Misuse and Trafficking Act. That this is the case is indicated by the decisions of this Court in R v Dessdic and Mazzeo (1987) 34 A Crim R 40, R v Addison (1993) 70 A Crim R 213 and R v Salem NSWCCA 3 October 1997, each of which confirmed that the relevant mens rea was that relating to the agreement or conspiracy to make an offer to supply which would be regarded by the offeree as genuine, rather than an intention to perform it. 17 Part of the reason for that lies in the circumstance that, unlike most cases of fraud or false pretences, the victim of a drug rip off is unlikely to report the matter to police. As a result, subject to any act of violent retribution, which commonly follows such an event, the offender is likely to escape scot-free. 18 There is a significant community interest in not allowing the drug trade to be used as a vehicle for fraudulent activities of this kind, and also in deterring the kind of violent response which such conduct can very readily provoke. 19 It may be accepted that the criminality involved in such a case is somewhat less than that involved in a case where there was a genuine plan to supply drugs. It may also be accepted, as Kalpaxis suggests, that there would be merit in creating a specific offence with a lesser penalty than life imprisonment for conduct of the kind here involved. 20 However it does not follow, in my view, that conduct of the organised and elaborate kind seen in this case should be seen to involve an objective criminality comparable to that observed in a routine case of false pretences, or in one of obtaining money by deception, punishable by reference to the maximum penalty of 5 years imprisonment applicable, for example, to cases falling within ss 178BA, 178BB, and 179 Crimes Act 1900. Kalpaxis does not stand as authority for such a proposition, nor did it suggest an appropriate range of penalty for a case such as the present. 21 While it may not have been strictly appropriate to refer to the present heroin offence as a "drug offence", such a label is understandable if taken to be a shorthand way of referring to an offence which comes within the Drug Misuse and Trafficking Act by reason of the combined effect of ss 25 and 26 of the Act. Having regard to the agreed statement of facts and the terms of the intercepted conversations, it was, on any fair view, a particularly serious offence which could have secured a substantial sum of money. 22 I am not persuaded that his Honour, by the comments in question, led himself into error by overstating the objective criminality involved. Even if it did have that effect, such an error would not necessarily justify intervention by this Court since the success or otherwise of this appeal depends on the other grounds relied upon, and in particular, upon the question whether some sentence other than that imposed should have been passed for the offence.

Parity of sentence and excessiveness of sentence 23 These grounds overlap to a considerable degree. There is no obligation to follow the principle of parity, where that would result in a sentence which would be an affront to the proper administration of justice: R v Draper NSWCCA 12 December 1986, and R v Diamond NSWCCA 18 February 1993; and R v Hopper NSWCCA 19 November 1998; or where the differences between the offenders justifies the different result: R v Glasby [2000] NSWCCA 83 and R v Reid [2000] NSWCCA 166. 24 Otherwise, there are observations in Lowe v The Queen (1984) 154 CLR 606 (per Mason J) at 613-614 and per Dawson J (with whom Wilson J agreed at 623) which provide support for the proposition that the Court may have to intervene, where the disparity leads to a legitimate sense of grievance, even though it recognises that by doing so, the substituted sentence is less than that which it otherwise considers appropriate. The Court will not do so, however, where the sentence passed upon the co-offender is inadequate to the point where any sense of grievance engendered by it can no longer be regarded as a legitimate one. 25 Hammoud, it may be observed, was sentenced by Woods DCJ, on 15 December 1999 for the same offences, along with some unrelated offences, to imprisonment for 5 years for the heroin offence, divided equally between minimum and additional terms of 2 ½ years each, and to a concurrent fixed term of 2 years for the cocaine offence. 26 On 15 December 2000, the Court of Criminal Appeal (Regina v Hammoud [2000] NSWCCA 540) allowed a Crown appeal against the leniency of these sentences. As a consequence, Hammoud was sentenced to imprisonment for 4 years for the cocaine offence, and to imprisonment for 5 years for the heroin offence, the latter sentence being partially cumulative, so far as it was directed to commence 2 years after the commencement of the sentence for the cocaine offence. Against the overall sentence of 7 years, a non parole period was fixed of 4 ½ years. The judgment of the Court was available to his Honour Judge Woods when he came to sentence the present applicant, and it was expressly taken into account. 27 In relation to the cocaine offence, the co-offender Andreou was sentenced by his Honour Judge Dodd, on 16 March 2000, following his plea of guilty in the Local Court to an offence of conspiracy to supply, to imprisonment for 2 years with a minimum term of 12 months. The other offender Droubi, who was convicted after trial, in relation to his participation in the cocaine offence, was sentenced to imprisonment for 6 years with a non parole period of 4 years, which was reduced on appeal (R v Droubi [2002] NSWCCA 269) to imprisonment for 5 years with a non parole period of 3 years and 3 months. 28 It is accepted that there were relevant differences between Hammoud and the applicant which need to be taken into account when determining, whether viewed objectively, the applicant is entitled to assert that he is left with a "legitimate sense of grievance" as the relevant test has been enunciated by the High Court in Lowe v The Queen , Postiglione v The Queen (1997) 71 ALJR 875 and Regina v Ilbay [2000] NSWCCA 251. 29 Those factors operating in favour of the applicant were as follows: a) Hammoud had prior convictions, including a conviction for violence. The applicant had no prior convictions. b) Hammoud, who also pleaded guilty was sentenced upon the basis that there had been an intention to actually supply the heroin, whereas the applicant was sentenced upon the opposite basis. c) In Hammoud's case, the quantity involved was 15 blocks of heroin, whereas in the applicant's case, it was agreed to be 4 blocks. d) In Hammoud's case there was a significant mitigation of sentence involved as a result of his plea, the assistance which he had given to police both in terms of the supply of information and undertakings to give evidence against his co-accused, not only in relation to the present offences, but also in relation to other offences, including those of murder, 2 accessory after the fact charges, and the cocaine and heroin charges. In the applicant's case the plea came later, and while there was a belated supply of information, its value had not been ascertained by the time he appeared for sentence. Moreover, his plea came at a time when it was known that his co-conspirators were prepared to give evidence against him. e) The cocaine offence was preferred as a separate count in the case of Hammoud, whereas it was taken into account on a Form 1 in the applicant's case. f) In Hammoud's case there was no suggestion of the existence of any mental state which may have explained or minimised his criminality. In the applicant's case there was evidence of him having suffered from some upheavals in his personal and professional life, which had left him significantly depressed and psychologically fragile. g) Hammoud was on bail at the time of the offences. h) Hammoud was in possession of an unlicensed firearm. 30 Those factors operating adversely to the applicant in relation to parity, in summary, were as follows: a) Hammoud was a civilian, whereas the applicant was a police officer who had betrayed his sworn duty, in crossing the line into a serious area of criminality, and who had deliberately taken advantage of the special training which he had received in undercover activities, to avoid detection. b) His plea of guilty was offered on 24 July 2000, the date fixed for trial, some 4 months after Hammoud had been sentenced. c) The information which the applicant had provided to police had been provided only shortly before appearing for sentence, and as a consequence it had not then, and seemingly has not now, been evaluated. d) So far as the sentences imposed by the Court of Criminal Appeal upon Hammoud are to be regarded as providing some indication of an appropriate range for the objective criminality involved (after adjustment for the subjective considerations), it needs to be appreciated that they were significantly less than those properly imposed at first instance, because of the principle of double jeopardy - a circumstance made specifically clear by Mason P in his reasons for judgment. 31 As between Andreou and the applicant there were also material differences, in that: a) Andreou was a civilian, whereas the applicant was a serving police officer, b) Andreou was given a substantial discount for assistance and for his undertaking to give evidence against the co-accused, as well as in relation to unassociated matters, and additionally, for deferring his application for bail in order to assist the prosecution in its application to have the present applicant's bail revoked, as a result of which the sentence, otherwise regarded as appropriate, of imprisonment for 4 years, was reduced by 50%. c) Andreou's plea was offered in the Local Court at the first available opportunity. d) Andreou's objective criminality was assessed as being of a minor character, in a drug supply operation, which his Honour found was conducted by the present applicant. e) When sentencing Andreou, Dodd DCJ had regard, for parity purposes, to the sentence originally imposed by Woods DCJ on Hammoud, the Crown appeal not having come on for hearing at that stage. f) Andreou had a drug habit and engaged in the enterprise, in part, for the purpose of feeding that habit, whereas the applicant's motivation was purely financial. g) Andreou was found to have had significantly favourable subjective circumstances and to have demonstrated good prospects for rehabilitation. 32 In relation to the Droubi sentence, there were also significant differences in that:

a) Again, Droubi was a civilian, b) His involvement in relation to the cocaine offence concerned only 4 ozs, that is, a quantity less than the commercial quantity which was involved in the applicant's offence, and he was accordingly being sentenced for an offence carrying a maximum penalty of 15 years, c) He was sentenced for the cocaine offence after trial, having earlier pleaded guilty to 2 minor supply offences, and having also asked for a Form 1 offence to be taken into account. d) The sentence imposed was reduced on appeal by reason of the very favourable subjective circumstances which were found to exist. 33 The subjective circumstances of the applicant, as found by his Honour, require a little more amplification since they are relevant to the issue of parity, and to the issue whether the sentence as a whole is excessive. The applicant, who was of Lebanese descent and aged 30 years at the time of the offence, had been a police officer for about 10 years. While serving as a uniformed constable at Bankstown, he had been the subject of a degree of racial harassment from fellow police, as well as abuse and death threats from sections of the Lebanese community, whom, he had cause to deal with in the course of his work. In 1993, he had been involved in shooting an offender in self defence, and he had also been required to respond to some other incidents where he had to deal with violent confrontations. 34 He became the subject of internal police investigations following complaints from various citizens, and from a fellow officer who suggested that she had been intimidated by him. Most of these complaints came to nothing, but the investigation was prolonged and the applicant came to feel disillusioned by the job and by what he regarded as a lack of support. 35 In about 1997 his marriage fell apart, and in about 1999 a new relationship similarly terminated when his partner became dissatisfied at being herself caught up in the investigation of a complaint made against him for the alleged inappropriate use of travel benefits. 36 Although he came from a large and supportive family, there was evidence that by 1998 he had been demonstrating a change in mood and personality, to the point where his mental and physical health were compromised, and where he was unable to properly communicate with his parents or siblings. As a result he was off work on sick leave or annual leave between 23 February 1999 until the time of his arrest, after which he was suspended from duty. In October 2000 his resignation from the Police Service was accepted. 37 The emergence of some of the manifestations of his depression and mental fragility, it was found, coincided with his involvement with the criminal associates whom he joined in the present offences. That fact, his Honour found, had not been revealed to Dr Wilcox, the psychiatrist whose reports were tendered in the sentencing proceedings. 38 While his Honour accepted that this circumstance reduced the mitigating impact which his mental state had, it did not entirely destroy it. Nevertheless, he found, and it is difficult to see how such a finding could be questioned, that his mental state did not provide a full explanation for the misconduct and for which he had to take responsibility. 39 As a police officer sworn to observe and enforce the law, he could not properly rely on mental pressures to excuse his election to cross to the other side of the road and become a criminal. Particularly is that so when it is appreciated that medical help was provided to him, in the form of consultations and supportive counselling commencing in March 1999 which was arranged by the New South Wales Police Service Health and Workplace Services for a condition, which was initially diagnosed as an adjustment disorder with mixed anxiety and depressed mood, as well as psychiatric consultation with Dr Wilcox, to whom he was first referred by his General Practitioner in June 1999. 40 So far as the psychologist and psychiatrist were concerned, his problems were all service related, particularly arising out of the various internal investigations. It appears from Dr Wilcox's report of 27 July 1999, that those investigations had by then been resolved and that he was free thereafter to return to duty, although subject to work appraisal for 12 months. 41 Dr Wilcox's report of 8 March 2000 suggests that there had been a significant deterioration in his mental state after he had been taken into custody. By the time of her review in October 2000, however, his condition had improved substantially. It was Dr Wilcox's assessment at this time, although that was not entirely supported by a report from a consulting psychologist prepared at the same time, that he had recovered from his depression, and due to having developed a stronger connection with his faith he was a lot calmer. 42 I am not persuaded, having regard to the significant differences between the applicant and both Andreou and Droubi mentioned, and having regard to the fact that the cocaine offence was dealt with in the applicant' case on a Form 1, that any real assistance is gained by reference to the sentence in either of those matters. 43 It may be accepted that it was proper for his Honour to reflect the significant criminality involved in the cocaine offence by some addition to the sentence imposed for the heroin offence. The fact of such addition should have been apparent, in order to reflect the totality of the criminality involved, although in accordance with principle any additional punishment imposed should have been less than that which would have been imposed had that offence been separately charged: Regina v Lemene (1999) 118 A Crim R 131 and Regina v Harris [2001] NSWCCA 332. 44 Upon that basis, the partial accumulation of sentence, as a result of the appeal in Hammoud's case, has some relevance, as do the circumstances that Hammoud was dealt with upon the basis of a genuine intention to supply the heroin, that the quantity involved so far as he was concerned was greater, that he had criminal antecedents of some significance, that he had been on bail at the time of the offence, that he was not suffering from any mental condition which may have reduced his criminality, and that he would not necessarily face the same difficulties in custody as the applicant would, by reason of his former occupation. 45 The question for determination, so far as parity is concerned, turns essentially upon whether or not the circumstances that Hammoud's plea was early, that he provided very considerable assistance, and that the applicant's offence involved a deliberate and substantial betrayal of trust, sufficiently account for the difference in sentencing outcomes of 10 years with a non parole period of 6 ½ years in the applicants case, and of 7 years with a non parole period of 4 ½ years in Hammoud's case, to the point where, viewed objectively, no sense of grievance could legitimately be entertained. 46 Otherwise, the question which arises is whether, viewed as a whole, and taking into account the applicant's subjective circumstances and prior good character, which cannot be entirely ignored for the reasons outlined in Ryan v The Queen (2001) 75 ALJR, the sentence imposed upon the applicant was manifestly excessive and, as such, was not one which was just and appropriate for the case. 47 The matters for determination are very much a matter of impression. The simple fact of differences in outcome between the two sentences is of itself insufficient to establish that degree of a sense of grievance, as will enliven the Court's discretion to intervene: Regina v Diamond NSWCCA 18 February 1993. Moreover the applicant's case is somewhat unusual so far as his participation in the heroin offence was dealt with upon a different factual basis, and in circumstances where no comparable case has been identified, from which a benchmark can be usefully drawn. 48 Of greatest concern is the circumstance that the applicant was a serving police officer who, despite his earlier good character and apparent devotion to duty, had lent himself to very serious criminal activities, the potential consequences of which should have been starkly obvious to him. Moreover, he not only used, but shared with his associates, the specialist skills which he had acquired in an undercover officers course, in an attempt to avoid detection. As such, the case was one calling for a very significant element of general and personal deterrence, particularly as experience regrettably shows, the potential for police to behave corruptly in relation to drug dealing activities and drug law enforcement, is significant. 49 While some mitigation can be extended for the applicant's mental state, in accordance with the principle noted in Regina v Letteri NSWCCA 18 March 1992, and Regina v Scognamiglio (1991) 56 A Crim R 81, the extent of such mitigation is lessened by the circumstance that, at least in part, the stresses and depression which he experienced were attributable to his own misconduct. 50 In my view, a weighing of the various factors outlined does lead to the conclusion that there was a degree of disparity, and some excessiveness of sentence to the point, where this Court should intervene, although not to the full extent suggested by Mr Odgers SC for the applicant, whose submission, in substance, was that for the "heroin offences" standing alone, an appropriate head sentence would have been one in the order of imprisonment for 4 years, which might fairly be increased by 2 years to allow for the Form 1 matter. 51 It was the initial Crown submission that the range for the kind of offence committed by the applicant, involving a substantial and well executed "rip off", within the context of persons engaged actively in the drug trade, should be in the order of 10 to 12 years for the head sentence, before reference to the subjective circumstances. In the case of a police officer who had abused his trust, and who had turned the special skills acquired through his training and service to his advantage, the Crown submitted, it should be somewhat higher. These submissions were later withdrawn, when further research revealed no cases with sufficiently comparable factual circumstances, or any discernible sentencing pattern. 52 Those cases with the greatest similarity were Dendic & Mazzeo, Addison, and Salem. In Dendic the sentences of 3 years were said to be modest in relation to circumstances considerably less serious than those in the present case. 53 The withdrawal of that submission was, in my view, both fair and appropriate, having regard to the Judicial Commission statistics which would suggest that head sentences of 12 years for all offenders as well as for those who plead guilty, in relation to offences of supplying and knowingly being involved in the supply of a large commercial quantity of heroin would be at the top of the range, although well within range for offences of conspiracy to supply such a quantity of heroin. There is a significant and, on first impression, surprising difference in relation to the latter offence (both for all offenders and for those who pleaded guilty) since the statistics show that 72% of the offenders received head sentences in excess of 12 years. That is, however, almost certainly due to the small population of cases encompassed, and to the wide divergence in objective and subjective circumstances which bare statistics can conceal. 54 In lieu of the original submission the Crown submitted that, by reason of the objective seriousness of the applicant's criminality, particularly when regard was had to the offence on the Form 1, the sentence had not been shown to have been manifestly excessive. 55 In my view, the head sentence in a case involving an elaborate and well planned rip off of the kind here involved, carried out within the context of persons actually involved in the drug trade, and involving a significant quantity of drugs, would be in the order of 5 to 6 years. However, in the particular facts of this case, where there was a serious drug offence taken into account on a Form 1, and where the offender had seriously abused his position as a police officer, the appropriate head sentence should, in my view, have been somewhat higher. 56 After proper allowance for the degree of disparity and excessiveness which I find to have existed, and taking into account the subjective circumstances I would propose the following orders:

1. Leave to appeal granted;
2. Sentence below quashed, and in lieu thereof, taking into account the Form 1 offence and the plea of guilty, the applicant be sentenced to imprisonment for 7 years and 6 months to date from 15 December 1999 and to expire on 14 June 2007.
3. Non parole period of 5 years be set, to commence from 15 December 1999 and to expire on 14 December 2004. 57 I would not be minded to depart from the finding of special circumstances even though it appears that the applicant elected, as from 15 April 2002, to go off protection and is now detained at Cooma Correctional Centre in a way which is no different from that of the general inmate population. That may prove to be a temporary situation, since as a former Police Officer, he will always be potentially vulnerable while in custody and may well face problems at another centre. Otherwise, I am satisfied that there is a need for long term supervision on parole after his release, so as to deal with any residual mental state associated with his imprisonment and the loss of an otherwise worthwhile career, and so as to foster his rehabilitation. These matters constitute special circumstances within the meaning of the Act. 58 SMART AJ: I agree.

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