Regina v Bassam Turkmani [2002] NSWCCA 388 | Case summary

MONDAY 23 SEPTEMBER 2002 REGINA v BASSAM TURKMANI Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court following his pleas of guilty to two separate offences on 21 March 2001. In respect of each matter he pleaded guilty to "knowingly take part in the manufacture of a prohibited drug" contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985. On each occasion the prohibited drug was methylenedioxymethylamphetamine (MDMA). The maximum penalty for that offence is imprisonment for fifteen years and/or a fine of 2000 penalty units. The first offence occurred in 1996 at Brookvale and will be henceforth referred to as the "Brookvale matter." The plea in that matter was entered after a trial had been in progress for a number of weeks. The Crown had originally charged the applicant with the much more serious offence of taking part in the manufacture of a large commercial quantity of that drug and in the alternative with an amount being not less than the commercial quantity of the drug. The plea was accepted in full satisfaction of the indictment. The second offence occurred in 1998 and will be henceforth referred to as the "Dural matter." Again the plea entered in that matter followed an indication from the Crown that it would accept it in full satisfaction of an indictment which had originally charged the more serious offences. 2 In respect of the Brookvale matter, the sentencing judge imposed a sentence of four years' imprisonment with an associated non-parole period of two and a half years to commence on 5 September 1999. It was common ground that there were substantial periods of pre-trial custody which had not however been served continuously. It was for that reason that the sentences were ordered to commence on the date to which I have just referred. 3 In respect of the Dural matter, the applicant was sentenced to a term of seven years' imprisonment with an associated non-parole period of four and a half years. Those sentences were ordered to commence on 5 September 2000 and thus were partly cumulative upon the sentences imposed for the Brookvale matter. The effective overall sentence was thus one of eight years' imprisonment with a non-parole period of five and a half years which is due to expire on 4 March 2005. 4 In addition to the two matters to which the applicant pleaded guilty he asked that further offences be taken into account. In respect of the Brookvale matter that included an offence of maliciously damaging the floor of the premises at 42 Chard Street Brookvale which was the property of Helen and John Humel. A further offence of harbouring an escaped person, namely Attila Koller, between 2 April 1996 and 25 August 1996, an offence contrary to s 36 of the Corrections Act 1952, was also taken into account. In relation to the Dural matter there was also a Form 1 document which included two charges laid pursuant to s 7(1) of the Firearms Act 1996. These charges related to the possession of two weapons which were found at the Dural premises, being .45 calibre self-loading pistols. There was also a charge of possession of 4.8236 grams of 4 - bromo 2, 5 dioxyoxyamphetamine (which is known as BDMA). 5 The primary submission advanced on behalf of the applicant is that the sentences which were imposed were manifestly excessive. That submission was further particularised to suggest that in a number of respects the sentencing judge had overemphasised the objective seriousness of the offences and the applicant's role in them and that his Honour had also failed to give sufficient weight to various matters in mitigation. The applicant accepts that the sentencing judge correctly applied the principles in Pearce v The Queen (1998) 194 CLR 610. Moreover there is no complaint about the fact that there was a partial accumulation of the sentences. Rather what is put is that "in their individual terms, and their totality, [the sentences] are manifestly above the range." 6 In support of that submission, the applicant referred the Court to a considerable number of cases most of which involved the manufacture of commercial or large commercial quantities of amphetamines. By then seeking to draw points of distinction between those cases and the present, it was submitted that the sentences now under consideration must be seen to be manifestly excessive particularly when it is borne in mind that the applicant only stood for sentence in respect of offences of manufacture simpliciter. The effective thrust of the submission was that there were a number of instances of cases dealt with by this Court (albeit often only when dismissing an appeal against severity of sentence) in which far greater criminality than that exhibited by the applicant has been met with less severe punishment. 7 Although it is legitimate to point to what may be said to be somewhat comparable cases for the purpose of ascertaining whether a particular sentence or sentences falls within the appropriate range, there are nevertheless clear limits to the utility of such an exercise. In R v Morgan (1993) 70 A Crim R 368 at 371, Hunt CJ at CL said that "it is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes." What is critical is an assessment of all the factors which are relevant to the particular case at hand. It is accordingly necessary to look a little more closely at some of the significant features of the present case and in particular to say something about the factual background to each of the offences. 8 Police began investigating the Brookvale matter in February or March of 1996 as a result of being informed that a person by the name of Bhanji had purchased methylamine aqueous solution, which is a precursor chemical for the manufacture of MDMA. 9 At about the time the police investigation was taking place, Atilla Koller who was then a prisoner serving a sentence for the manufacture of a prohibited drug, was permitted to attend a course at Meadowbank Technical and Further Education College. Mr Koller took the opportunity to escape from prison. He originally stayed at the premises of Khalid Kaddour (a co-offender of the applicant who is also his uncle). From there he moved and stayed in a room at the Willoughby Hotel which was rented by the applicant. 10 Bhanji then rented a unit at Chard Road, Brookvale in relation to which he signed a lease for two years commencing on 1 June 1996. The premises were said to have been rented for storage purposes and to enable minor repairs to, and maintenance of racing cars, to be made. Mr Koller moved into these premises and Kaddour apparently stayed there on occasions as well. 11 On 19 August 1996 police installed a video camera which showed the front of the Chard Road premises. On 24 August 1996 two detectives commenced surveillance of the premises. Police witnessed a number of persons coming and going from the premises. They also detected a chemical smell emanating from the premises. At about 3.40 am on 25 August 1996 various people were seen to leave the premises in a white Holden Commodore. About half an hour later there was an explosion in the premises followed by smoke coming from the roof as well as an even stronger chemical odour. 12 An inspection of the premises revealed that a laboratory had been set up in a room situated under some stairs. The floor in the shower recess had been cut away and there was construction in progress underneath (this gave rise to the "malicious damage" charge.) There was also a sleeping area. Also located in the premises were a car, a bike and various parts thereof. It is quite clear from a video taken at the time that the premises had been set up as a laboratory for the purpose of manufacturing MDMA. 13 The man Bhanji was acquitted by the jury whilst Kaddour was convicted of exactly the same offence as that to which the applicant had earlier pleaded guilty. 14 As to the part played by the applicant, his Honour made the following findings of fact: The offender Turkmani played not an insignificant role in the Brookvale exercise. He arranged to have Koller kept at the Willoughby Hotel, which I find to be by way of preparation for the drug laboratory being established. He was in and about the Chard Road premises from time to time, as the video evidence shows, and most particularly as his fingerprints show on a document called "Ecstasy and the MDMA story", an item of chemical literature which no doubt Mr Koller had had with him. There is no suggestion that Turkmani is a person with any chemical knowledge, but certainly his involvement in the Brookvale enterprise is clear. At that stage he was aged eighteen. Khalid Kaddour was his uncle. Although not in fact much older, Kaddour was sufficiently older for there to be in my view a clear demarcation between their culpabilities for this offence. As I see on the evidence before me on this point, Koller and Khalid Kaddour were the principals in this exercise, and Turkmani played a lesser role. He hired a jack hammer and other equipment; his fingerprints were found at least on one of the chemical books; he arranged for Koller to be put up at the Willloughby hotel. As I say, nonetheless his role was significantly less in this exercise than was that of Khalid Kaddour. The Brookvale exercise was substantial. There was found in the premises a variety of items of chemical equipment, clearly at the direction of Koller, as I read the evidence and saw and heard the witnesses. There was a rotary evaporator, there were a variety of drugs consistent with MDMA production, there were flasks, beakers, bottles, there was methylamine aqueous solution (which was a precursor chemical), there were various funnels, drums, pressure vessels, water condensers, plastic bottles and so on. While the precise quantity of prohibited drug could not be established, there is no doubt that it was an elaborately arranged exercise, the purpose of which was to manufacture (if it were possible) as much of the drug as they could, for the purpose of making as much money as they could. It was a very serious offence. 15 Although the issue of the quantity of the prohibited drug was left for the sentencing judge to determine, his Honour was not able to come to a concluded view in respect of that matter because of the way in which the search of the premises had been conducted by investigators. 16 So far as the Dural matter was concerned, the following passages appear in the Remarks on Sentence: The facts of the Dural case are that a two-storey house in Dural was set up as a clandestine laboratory. The premises had been leased on 25 September 1998 by Mrs Bettina Hautle, who was Bassam Turkmani's girlfriend. She was living there. She had roller doors fitted to three open garages under the house shortly after taking up the lease. Some days prior to 9 December 1998, police were covertly watching the premises and the offender, Bassam Turkmani, and Khalid Kaddour, were seen at the house. On 9 December 1998 at 7.35 am Bassam Turkmani was seen in the garage. Police noticed a strong toxic odour coming from the premises. The offender Turkmani was seen to drive a car from the house at 1.35 pm, returning later at 4.54 pm carrying a 20 litre gold coloured drum from the boot of the car into the house. Shortly after he carried two 10 litre clean containers into the house. He was seen to drive from the property at 5.50 pm and was arrested soon afterwards. Turkmani was asked by police whether there was anyone else in the house. He said "there's a girl in there and she's got nothing to do with anything you'll find in there". By 7 o'clock there were three police officers hidden keeping the house under total surveillance. At 7.15 pm a further group of police approached the entrance to the house to execute a search warrant. Mrs Hautle was seen upstairs and was told to leave which she apparently did. Police then heard the sound of breaking glass within the house and could smell an offensive odour. One officer opened the front door and Miss Haulte, who still had been there, walked out. The sound of smashing glass continued. Police entered the garage area and saw Colin Kaddour holding a container standing amongst a number of fires on the floor. Police say he was seen to smash the container on to the ground and he was then taken into custody. Police, because of developing fires and fumes, left the premises. Next day the police, with the assistance of a chemist, searched the fire damaged house. They located chemicals in the garage and elsewhere. There was laboratory equipment and electronic equipment such as would be used in the manufacture of prohibited drugs. These documents were finger printed. Fingerprints of both the offender Turkmani and of Khalid Kaddour were found on the literature. I repeat that Mr Kaddour has pleaded not guilty and will be dealt with at trial later this year. For the present purposes the significant thing is that the fingerprints of Turkmani were found on the chemistry documents. Somewhat less than 3,000 grams of prohibited substance, BDMA, was located in the garage and slightly less than 5 grams of MDMA was found in an upstairs bedroom. The chemist took the view and I accept that the necessary chemicals and equipment for the production of the prohibited drug referred to in the indictment were on the premises, and were either being made or about to be made prior to the fire. Two .45 calibre pistols were found in the kitchen. Several hundred grams of ammunition were found with the pistols and in another bedroom. The fingerprints of Bassam Turkmani were located on a .22 slide found with the pistols. Ms Hautle's vehicle was searched and the police located lease documents in her name relating to a Kennard's Storage unit at Hornsby. A search warrant was executed on this unit on 15 December 1998, entry being gained using a key taken from Bassam Turkmani at the time of his arrest. The storage unit was found to contain chemicals and equipment for use in the manufacture of prohibited drugs... So far as the Dural matter is concerned, I regard the culpability of Turkmani as being significantly greater than it was in relation to the Brookvale matter. In my view the conduct of the offender in relation to the Dural matter is such that his culpability falls somewhat above the middle of the range. Although it is true that no illegal product appears actually to have been distributed, or even possibly created, the conduct involved in the Dural matter was far from inchoate. The premises were in place. A back up safe house was in place. Chemicals necessary to the production of the illegal drugs had been acquired. Glassware and other chemical equipment had been acquired as was revealed when police raided the premises. I infer that planning and arrangements so elaborate as appear in the evidence before me were intended to be a basis for the production of large, and putatively profitable, quantities of illegal drugs. This offender, Mr Turkmani, was not in the Dural matter an eighteen year old tyro. His role in the Dural matter was that of a co-principal. 17 The applicant submits that the sentencing judge ascribed to him a greater role in relation to each matter than the evidence would properly permit. It was submitted on his behalf that his role in the Brookvale matter was a marginal one and that he performed nothing but purely menial tasks for which he was not rewarded. Support for these submissions was said to have emerged from the cross-examination at trial of the man Koller who gave evidence on behalf of the Crown. Whilst that might well be the case, it is important to recall that the courts have repeatedly said that because even "minor participants" are essential for the successful implementation of enterprises designed, such as this one, to produce illicit drugs, it is necessary that appropriately salutary penalties be imposed upon them. See R v Le Cerf (1975) 13 SASR 237 at 239-40. That authority has been approved and applied on many occasions in this Court. See, for example, R v Laurentiu and Becheru (1992) 63 A Crim R 402 at 417; R v Fabian (1992) 64 A Crim R 365 at 376. 18 In respect of the Dural matter, the applicant submits that the sentencing judge erred in characterising his role as being that of a "co-principal." It may be accepted that there is an inherent ambiguity in the use of such labels. It is also important to remember that that form of characterisation should not obscure a proper assessment of what a particular offender has actually done. See R v Olbrich (1999) 199 CLR 270 and R v Solomons (2000) 114 A Crim R 89. Nevertheless on any view of it, his Honour was entitled to take the view that the applicant's role, however far it extended, was considerably more significant in relation to the Dural matter than it was in relation to the Brookvale matter. 19 The sentencing judge properly took into account the fact that the Dural matter was committed whilst the applicant was on bail for the Brookvale matter. As his Honour said, the applicant "abused the privilege of bail knowing as he must have done with perfect clarity, that manufacturing of illegal drugs was a major criminal offence." The applicant accepts that the commission of the Dural offence whilst he was on conditional liberty was an important feature of the case and a matter that considerably aggravated the latter offence. See R v Readman (1990) 47 A Crim R 181. 20 Allied to the submission that the sentences were manifestly excessive, was a submission that the sentencing judge had contravened the principles enunciated in The Queen v De Simoni (1981) 147 CLR 383 insofar as that case is authority for the proposition that a court is prohibited from punishing an offender for an offence in respect of which he or she has not been convicted. The court's attention was directed to several passages in the Remarks on Sentence. Particular emphasis was placed upon the following passage: The Courts have repeatedly said that for offences involving the manufacture of illicit drugs, sentences of imprisonment are generally appropriate, and certainly that is the case here where in both instances the behaviour was planned, elaborate and clearly intended to produce large quantities of illicit drugs , were if (sic) possible to do so. (emphasis added in submissions) 21 In my view neither in the passages to which the Court was specifically referred, nor upon a reading of the Remarks on Sentence in their totality, can it be reasonably inferred that the sentencing judge was infringing the principles in De Simoni. Indeed at the outset of his Remarks on Sentence, the sentencing judge set out the history of the matter. That passage makes it abundantly clear that his Honour was well aware that he was sentencing the applicant for offences contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 and not for the more serious offences with which he had been originally charged. Furthermore it was necessary for the sentencing judge to refer to the relevant background material in order to provide the context in which he was sentencing the applicant. 22 It was also submitted that the sentencing judge had fallen into error in the way in which he approached the question of the possession of the two handguns. As to that matter his Honour said: There is the further factor of aggravation that he chose to equip himself in the context of the Dural offence with two .45 calibre hand guns. These were discovered on the property where the illicit drug laboratory was set up, a property, as I have said, leased by the offender's lady friend. True it is that the weapons were not discharged, and certainly I would have regarded it as worse if they had been discharged or found on the offender's person or in his car. Nonetheless, the fact that he possessed them in the premises where the illicit laboratory was set up is sinister and disturbing. I regard it as a significant factor of aggravation. 23 Notwithstanding the fact that it was contended that his Honour erred in treating these matters as a "significant factor of aggravation", I can detect no error in the sentencing judge's approach to this issue. Clearly his Honour was required to increase the sentence that was otherwise to be imposed for the principal offence by reason of the commission of these offences. Although it is difficult to imagine what innocuous purpose the presence of the guns may have been serving, the sentencing judge nevertheless pointed to a number of matters which may have aggravated these offences had they been found to exist. Nor do I accept, upon a fair reading of his Honour's overall remarks, that this feature of the offence was "counted twice." 24 His Honour observed that the applicant "had some minor prior history of criminality but nothing to suggest substantial criminality of the kind reflected in these charges." In 1996 and 1997 the applicant appeared before Hornsby Local Court on three occasions. He was fined for assault occasioning actual bodily harm, hinder police, resist police and offensive behaviour. In 1999 he was before the Local Court on two further occasions for assaulting an officer in the execution of his duty for which he received a term of periodic detention and also for goods in custody for which he was placed on a recognisance as well as being fined. 25 There were a number of matters of a subjective nature upon which the applicant understandably placed considerable reliance. It was submitted that they entitled him to a significant degree of mitigation of the otherwise appropriate penalty. The first matter was the fact that for two separate reasons the circumstances of his incarceration were decidedly more onerous than would otherwise have been the case. Because these were most unusual features of the case, the sentencing judge dealt with them at some length. His Honour said:

There is another consideration as well on the question of special circumstances. There is evidence before me that while in custody at an earlier point in various periods of broken custody relating to these offences, the accused was the subject of excessive force in custody by prison officers. I refer to exhibits TSB, TSC, TSJ and TSK and some other evidence to which I will refer. As I said, in the course of argument and the presentation of evidence in relation to sentencing, I do not want to be distracted from the central issue in this case which is the sentences to be imposed upon the offender for serious criminal offences. The Courts have repeatedly said that for offences involving the manufacture of illicit drugs, sentences of imprisonment are generally appropriate, and certainly that is the case here where in both instances the behaviour was planned, elaborate and clearly intended to produce large quantities of illicit drugs, were if (sic) possible to do so. In both instances, it would seem, diligent police work and criminal incompetence interfered with this purpose. Nonetheless, without being distracted from the overall matter of imposing a sentences (sic) for serious criminal offences, the alleged use of excessive force against Turkmani in prison on the first of February 1999 cannot be ignored. The learned Crown who appears for the Director of Public Prosecutions has objected to the evidence on this subject and that is an understandable position for the Crown to take, but I do not accept it to be the law that a sentencing court in New South Wales contemplating the imposition of a sentence of imprisonment should ignore the conditions of imprisonment which an offender has suffered or is likely to suffer during the period of incarceration which will be imposed. Applied as an inflexible rule such a doctrine would be inhumane, and it does not represent the law. There is clear authority of (sic) the actual conditions of imprisonment which an offender has suffered or will suffer in custody may in some circumstances be relevant in sentencing. For example, it is well established that a sentence likely to be served in protective custody thereby imposing greater hardship on the offender, may justify the reduction of a sentence - Regina v Gilchrist , NSW CCA 23 August 1991, and other cases. On the other hand, sentencing courts cannot purport to control or regulate the prison system. No such generalised administrative role can practically be imposed upon or carried out by sentencing courts. Here there is some evidence that on the first of February 1999 the offender Turkmani and his then co-accused Khalid Kaddour were assaulted by one or more prison officers. Turkmani has not given evidence, and I do not know to what extent provocation or other misbehaviour might have been involved in that situation. Nonetheless, there is before me in exhibit TSK an internal Department of Corrective Services report summarising statements by various prison officers who either came forward or had been interrogated about the alleged incident. This exhibit was edited in a form such as to provide protection under the Protected Disclosure Act 1994; (the "Whistle Blowers Act" popularly so known). As well, I have the benefit of a number of coloured photographs of Turkmani taken apparently on 04 February 1999 (see exhibits TSJ and TSC), and I also have the advantage of the medical reports, exhibit TSB. In general, I find this material disturbing. It is unhappily reminiscent of material which was put before His Honour Mr Justice Nagle in the Prisons Royal Commission reported in 1978. In the present proceedings, I cannot and do not make any findings against particular prison officers. I am not engaged in a Royal Commission. Nonetheless, the material before me is, as I have said, disturbing. It is coupled with evidence that both Turkmani and Kaddour have been classified as "Extreme High Risk" inmates (see exhibits TSD and KA/TSH). These exhibits make it plain that such a classification entails a markedly onerous prison regime for the offender who falls within it: Visits are restricted, telephone access is limited and such prisoners are regularly moved. This inhibits educational opportunities which is of significance for the offender Bassam Turkmani. I accept that the solicitors for Turkmani and Kaddour have written several times to the High Risk Inmates Management Committee seeking termination of the high risk classification. Nothing before me indicates that the offender or his solicitors have been told these reasons. Normally the Court would not concern itself with the internal classification of an offender within the prison system. However, in the present case we have good reason for doing so. Firstly, on the limited evidence before me I think it likely that the offenders Turkmani and Kaddour were the subject of excessive force while in custody in early February 1999. As I say, while there is no evidence from Turkmani himself on the subject, it seems that several prison officers who were present were concerned at what happened and, in the vernacular, "blew the whistle", thus provoking the internal inquiries which has generated the documentation before me. The medical evidence (reports of Dr Burns, Exhibit TSB and photographs, exhibits TSJ and TSC) corroborate this. Whether there is any link between the classification of Turkmani and Kaddour in the extreme high risk category and the allegations of excessive force I cannot positively say. Relevant to my present task, however, is the fact that the offender Turkmani has been classified to a situation within the prison which is distinctly more burdensome for him than ordinary incarceration is expected to be. There is no evidence before me that this onerous classification is the fault of the offender and will not continue. Accordingly, I take these circumstances into account (just as I take into account the youth of the offender) in reaching the conclusion that there are special circumstances making it appropriate to vary the proportion between the head sentence and the non-parole period. Taking these matters into account (as I said, youth and especially onerous prison conditions), I find that special circumstances relevantly apply to the non-parole period. 26 Secondly, as the sentencing judge observed, the applicant was only 18 at the time of the commission of the Brookvale offence and "was probably under the influence of his uncle Khalid Kaddour" at the time. He was still only 20 at the time of the Dural offence. It is apparent that it was the combination of his youth, together with the unduly onerous conditions which he had experienced in prison, that led his Honour to make a finding of "special circumstances". 27 The third matter of significance were the applicant's pleas of guilty. The sentencing judge approached this aspect of the matter, so far as the Dural matter was concerned, in the following fashion. His Honour said that: An appropriate sentence for the Dural matter would be, in the circumstances I have set out, eight years imprisonment. I then have to take note of mitigating factors. The first of these is the plea of guilty. This plea was not entered at the earliest possible time in the entire process of arrest and prosecution, but it was entered at the beginning of the trial. The plea facilitates the administration of justice and I accept that it reflects some measure of contrition, although, the depth of that (in the absence of evidence) I find it difficult to identify. Nonetheless, the plea itself, unassisted by further evidence, is some evidence of contrition. The facilitation of the justice factor I regard as the more important of these considerations.

Regina v Bassam Turkmani

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Judgment (12 paragraphs)

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