REGINA v DROUBI

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: The Queen v Wong and Leung [1999] NSWCCA 420 DECISION : Leave to appeal against sentence be granted; The appeal be allowed and the sentence in respect of the trial matter be quashed; In lieu thereof, and taking into account the matter on the Form 1, the applicant be sentenced to imprisonment for 5 years to commence on 23/01/01 and expire on 22/01/06, with a non-parole period of 3 years 3 months to expire on 22/04/04; The sentences in respect of the other offences be confirmed.

IN THE COURT OF CRIMINAL APPEAL 60315/01

DUNFORD J ADAMS J

TUESDAY 18 JUNE 2002 REGINA v RICHARD DROUBI Judgment

1 ADAMS J: The applicant, who was found guilty after trial of an offence committed on 16 June 1999 of supplying a prohibited drug, namely, cocaine, seeks leave to appeal from the sentence of six years with a non parole period of four years dating from 23 January 2001 that was imposed on him. 2 When arraigned on 18 May 2001, the applicant had pleaded also to and was convicted of further offences as follows -

1. that between 21 July 1999 and 16 August 1999 at Kyeemagh in the State of New South Wales, he knowingly took part in the supply of cocaine; and,

2. that between 21 July 1999 and 16 August 1999 at Kyeemagh in the State of New South Wales, he knowingly took part in the supply of methyl amphetamine. 3 Each of these three offences carries a maximum penalty of 15 years' imprisonment and a fine of $220,000. The learned sentencing judge also took into account, on the applicant's request, an offence that between 21 July 1999 and 16 August 1999 at Kyeemagh, he took part in the supply of cannabis, in dealing with the offence of which he had been convicted by the jury. 4 It is unnecessary for present purposes to detail the circumstances of the offences extensively. In respect of the offence for which he was convicted that on 16 June 1999 police intercepted a telephone call made between the applicant and one Ned Halil Hamoud in which, using code, the applicant agreed or offered to supply Hamoud with four ounces of cocaine at the price of $4,200 per ounce at a purity said by him to be "clean". During this conversation, the applicant asked Hamoud whether he would accept two ounces immediately and two ounces later. As a result of this Hamoud was put off and despite several follow-up telephone calls, the transaction never took place. This offence then is rightly characterised as an offer to supply cocaine. 5 So far as the other matters were concerned, in June 1999, the applicant and several associates were targeted by a police operation using lawfully obtained telephone intercepts and other surveillance. Between that time and August 1999, numerous telephone conversations, many of which were in code, took place between the applicant and his cousin Taher Dabaja and various people which related to the supply of cocaine and cannabis. 6 On 11 August one Nastoki was seen arriving at and shortly after leaving premises occupied by the applicant being a convenience store was stopped a short distance away by police and found to be in possession of 15 grams of amphetamine tablets. On the same day, police executed a search warrant at those premises and located two plastic bags containing close to 7 grams of cocaine, whilst a raid on other premises occupied or at least used by the applicant in Brighton-le-Sands, the police having executed a search warrant, found almost 440 grams of cannabis, a further 6 grams of amphetamine and something over a hundred grams of cocaine. 7 The amount of cocaine involved, whether considered separately or together is less than the commercial quantity of the drug as prescribed pursuant to the Drug Misuse and Trafficking Act 1985. 8 The applicant's record was slight, having one offence of possessing an unauthorised firearm not being a prohibited firearm and a driving matter of no consequence for the present sentencing exercise. The possession of the unauthorised firearm, as the sentencing judge said, is somewhat disturbing but, all in all, his Honour did not consider it as material to the seriousness of the offences which he was considering and I would not be disposed to hold that his Honour was wrong about that. 9 The applicant's subjective circumstances were that, as at the date of sentence, he was 29 years of age; he had a number of siblings; and, although his parents separated when he was about eight years of age, the applicant had a good relationship within the family, which has been supportive of him through the trial and the sentencing process, one of his brothers having also given evidence. The importance of this aspect is that once a family becomes aware of criminal behaviour and is, nevertheless, prepared to give support to the offender, if the offender is minded to reform and to rehabilitate, their support can be a very significant factor indeed in encouraging and hopefully effecting that rehabilitation. 10 The evidence showed that the applicant, starting his drug ingestion with what might (wrongly) be called recreational drugs, moved onto serious drug-taking his life at that time, as one frequently sees, taking a downward spiral so far as work and relationships were concerned. Since his arrest, the applicant, who was on bail for a very long period, has made serious efforts towards rehabilitation and found a support from religious beliefs as well as encouragement from his family. His Honour accepted, and if I may say so with respect, rightly, that there was a strong subjective case. His Honour found that the applicant had offered to supply an amount of four ounces and that the amount close to four ounces that was found in premises controlled by him some three months later indicated that he was engaged in the supply of drugs in a general sense and not purely as a one-off transaction. This finding was entirely justified by the evidence. The offender had been taking drugs for some years and, therefore, had access to drugs for his own use as well as for on-supply. His Honour found in respect of the offence for which he was convicted, that the applicant either had four ounces of cocaine immediately available to supply or was in a position to obtain that quantity if Mr Hamoud had wished to proceed with the transaction. 11 The learned sentencing judge concluded, in relation to the matter as a whole, that the offences were towards the upper end of the range of seriousness for a supply or agreement to supply of less than a commercial quantity. In this regard, there is no error. 12 In dealing with the objective seriousness of the offence, his Honour referred to the judgment in this court of The Queen v Wong and Leung [1999] NSWCCA 420 noting that appropriate sentences of offenders more or less in the same position as the applicant, though of course dealing with drugs which were imported, fell within a range somewhere between five and seven years imprisonment. It was suggested though, although in the end not strongly by Mr Byrne SC on the applicant's behalf, that his Honour's reference to Wong and Leung was mistaken. However, his Honour made it clear that he did not regard himself as being bound or fettered in the approach he should take in the present case and used it no more than as giving in a general sense some useful guidance as to "what might be thought to be a fair approach to the facts and circumstances with which I am now dealing." His Honour also said he was conscious that Wong & Leung was concerned with the Commonwealth sentencing regime rather than what operates in this State and with a different category of offence. I should point out also that in the Commonwealth area, the quantities are determined by reference to the amount of pure drug, which is not the case in this State. This is an additional differentiating factor, and this means that what is said in Wong and Leung must be used with great caution in regard to State offences bearing in mind also the decision of a High Court of Australia in relation to the focus of that decision on quantity as distinct from the other material sentencing factors. As I have said, however, I do not think that his Honour fell into error by referring to Wong and Leung, except for a matter to which I am about to come. 13 The statistics kept by the Judicial Commission of New South Wales show that the sentence imposed by his Honour was at the very top of the range of sentences hitherto imposed for crimes of this kind. It is unnecessary to dilate upon the care with which such statistics must be considered. It is obvious that they involve cases which may, and almost certainly did, vary very considerably from the circumstances of this case. At the same time, this matter was not unusual. It had no particularly aggravating features, although, as I have said, I accept his Honour's characterisation of the offence as being towards the upper end of the range of seriousness for dealing in drugs of less than a commercial quantity. 14 In characterising the objective seriousness of the offence, his Honour noted that the somewhat cognate offence considered in Wong and Leung suggested an appropriate sentence of between five and seven years. I think that his Honour was influenced by that range in determining the sentence that he applied in this case. 15 I have come to the view that the sentence was manifestly excessive, principally for the reason that in settling on a period of six years as a characterisation of the seriousness of the offence, his Honour did not take into account sufficiently the subjective circumstances in the case, and I believe this is demonstrated by the way ultimately in which his Honour's reasons for sentence proceed. 16 Of course, it has often been said that in cases of this kind, subjective circumstances cannot be given great weight, but this was a first offence, it was a low level offence and there were serious and obvious changes made by the applicant to his life directed towards rehabilitation. He frankly confronted the problems with which he was faced and he had a level of support from the family which gives a substantial basis for confidence in continuing rehabilitation. 17 I consider that the appropriate head sentence in this case is a term of five years imprisonment; a proportional reduction in the non-parole period would bring about a non-parole term of three years and three months, giving the applicant the benefit of a longer period under supervision than otherwise the statutory calculus would provide. 18 His Honour found special circumstances, and I think he was right to do so. I would date the sentence from 23 January 2001 expiring on 22 January 2006 with a non-parole period of three years and three months expiring on 22 April 2004. I would grant leave to appeal, quash the sentences appealed, substitute the sentence I have proposed and confirm the other sentences passed by his Honour. 19 In respect of the offence, the sentence for which I have varied, I would take into account the matter in the Form 1 Schedule. 20 DUNFORD J: I agree. The orders of the court will be as indicated by Justice Adams.

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