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:
- Leave to appeal granted;
- 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.
- 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.