Regina v Fakhreddine Regina v Doudar [2004] NSWCCA 354 | Case summary

1 SPIGELMAN CJ: I agree with Grove J. 2 GROVE J: Hassan Fakhreddine (Fakhreddine) and Ahmad Doudar (Doudar) were sentenced on 10 November 2003 by Woods DCJ following pleas of guilty to offences of supplying not less than the commercial quantity of prohibited drug (heroin) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The prescribed maximum penalty for such offence is twenty years imprisonment and/or a fine of $385,000. Doudar was also sentenced on a charge of maliciously inflicting grievous bodily harm. That offence did not relate to drug dealing activities. 3 Fakhreddine was sentenced to imprisonment for twelve years with a non parole period of eight years and seeks leave to appeal against the severity of that sentence. Doudar was sentenced to imprisonment for nine years nine months with a non parole period of six years six months on the charge of supplying heroin. On the charge of malicious wounding he was sentenced to three years nine months imprisonment with a non parole period of four months commencing at the expiry of the non parole period set in respect of the previous matter. Doudar seeks leave to appeal against the severity of the sentence in respect of the charge of supplying heroin but not in respect of the malicious wounding sentence. 4 It has been convenient to hear the appeals together as the offences in respect of which challenge to sentence is made involve the activity of the appellants in the same criminal enterprise. 5 In March 2002 a police operation was established to investigate the distribution of drugs in the St George area. Inquiry revealed the distribution of heroin in the suburbs of Bexley, Kogarah, Arncliffe, Rockdale, Carlton and Hurstville. Warrants were obtained and telephone services used in connection with that activity were intercepted. In excess of nine thousand calls were monitored, the vast majority of which disclosed conversation in relation to drug transactions. Controlled operations using undercover police were instituted. Some eight "runners" (street dealers) were identified. 6 Fakhreddine and Doudar were involved in purchasing the drugs and packaging and supplying saleable quantities via the runners. 7 They were the managers and controllers of the "drug syndicate". A statement of facts was tendered without objection and included: "These two defendants are heard over the monitored phone lines to check on the runners, asking if they are alright with their drug supplies, checking how much they have sold, how many 'deals' they have left and how much money they have made from the drug 'deals'. Both these defendants are heard to ask how much money the 'runners' are short and arrange to collect money from the 'runners' which they refer to as 'papers'. Both these defendants are heard to talk about the 'runners', their drug business and arranging the new 'runners' for their business. One of the runners, defendant 5 has referred to FAKHRIDDINE (sic) as being his boss. To his customers when he is short of drug 'deals', he tells his customers that he is waiting for his boss 'Faks' to give him a ring. The defendant DOUDAR has been in custody at Silverwater jail since 5th of May, 2002 for a malicious wounding offence committed that day. Since that date, whilst in custody, DOUDAR is heard over the phone lines being appraised of the drug business, having much to say over drug packaging, money being short from the 'runners' doing the drug supplying and asking FAKHRIDDINE to recruit a new 'runner' to do the job. In sum, it is evident that he is co-managing the 'drug business' and has obviously continued to do so whilst in custody." 8 I turn to the grounds argued on behalf of Fakhreddine. GROUND ONE In commencing his calculation of sentence before allowing for appropriate discounts, the learned judge started at a penalty of sixteen years imprisonment, an excessive penalty having regard to the statutory maximum of twenty years. 9 In support of this ground the Court was directed to published statistics collated by the Judicial Commission. The sentence imposed (after discount of 25 percent for the plea of guilty) was the equivalent of the highest revealed by those statistics. The commercial quantity of heroin is statutorily defined to lie between the upper extreme of a traffickable quantity (250 grams) and the lower extreme of a large commercial quantity (1 kilogram). Supply of the latter exposes an offender to a possible life sentence. 10 The nett total supply in the present case was calculated at 421.3 grams during the period from 27 March to 19 May 2002. This was contended to reflect an offence covering what counsel for the appellant described as being in the lower range of commercial quantity. One could, of course, specify a range as lying between the extremes that I have mentioned and it is just as accurate to describe the amount involved as a little over 42 percent of a large commercial quantity. 11 The learned sentencing judge was correct in adverting to the maximum penalty prescribed by the legislature. Whilst statistics are available and useful for guidance, his task was to assess an appropriate sentence for this offender for this offence in the context of the level of seriousness implicit in the statutory prescription. 12 Fakhreddine was responsible for the distribution of a dangerous illicit narcotic into a considerable area of suburban Sydney. It was highly organized and he was active in the management and supervision. In 1999 he was imprisoned for four years for armed robbery and being an accessory before the fact to robbery. He was released to parole less than twelve months prior to the commencement of the current offence. He was still on parole while he was committing it. Although he had used drugs in the past, this crime was committed purely for profit. 13 It was open to his Honour to conclude that this offender for this offence merited stern punishment. It was plain that his earlier imprisonment had not provided a sufficient deterrent to restrain him from deliberate serious crime. The offence was in no way impulsive and involved continuing conduct including the recruitment of "runners" whose express task was to put drug into circulation within the community. 14 In regard to this, it was submitted that the evidence showed (with the exception of one "couple") that there was only one "runner" at a time engaged. This implied a modesty of size of the operation. The counterweight to that submission is that Fakhreddine was able to and did recruit people in sequence into the corrupt activity. His Honour was not obliged to mitigate sentence because all of these people were not used for the criminal operation simultaneously. 15 Upon arrest, Fakhreddine was not found to be in possession of significant assets nor "the material trappings of an established and experienced drug dealer operating at a high level." The thrust of this submission is blunted by the evidence presented on behalf of the appellant himself that he was affected by a significant "gambling problem." 16 No error is shown in the assessment of sixteen years imprisonment as a starting point. Undoubtedly, this can be discerned to be high but it was within the range of the sound exercise of discretion to determine that it was merited in these circumstances. GROUND TWO The sentence imposed on the applicant was excessive having regard to the sentences imposed on his co-offenders Ahmad Doudar and also to the sentences imposed on the other co-offenders James Locchi, Belinda Stoleski and Hassan Chahine. 17 Locchi and Stoleski were charged and pleaded guilty to conspiracy to supply a prohibited drug in an indictable quantity. Neither had significant criminal history. Chahine pleaded guilty to knowingly taking part in the supply of an indictable quantity of drug (40.17 grams gross). He had matters of significance on his record. All three of these were users of and had "drug problems." They were runners, described by Woods DCJ (who also dealt with these offenders) when speaking of Chahine as "small players in a larger overall pattern of criminality." 18 All of the abovementioned were sentenced to three years imprisonment with a non parole period of fifteen months. These sentences (and the charges to which they had pleaded guilty) were reflecting matters so different from the criminal conduct of Fakhreddine that there is no basis upon which he could harbour a justifiable sense of grievance because he was dealt with more harshly than them. Nor is it, in the absence of an appropriate basis for comparison, a relevant exercise to calculate the multiplier which would bring their sentences to the level of that received by Fakhreddine. 19 I have already detailed the sentence received by Doudar. The Crown Prosecutor drew to the attention of the Court that it has since been observed that Doudar was in fact on bail in respect of an offence then charged upon which he was subsequently found not guilty, at the time of this relevant offence. This circumstance is not an effective equivalent of Fakhreddine's situation which was that his conditional liberty was pursuant to parole during a period therefore during which he would, but for the parole, be continuing to serve imprisonment already imposed upon him. 20 Doudar did not have significant prior conviction. Although not necessarily a matter of mitigation Doudar was a user and addicted to drugs and may have been involved in part at least in order to enable him to feed that addiction. Fakhreddine was in the more culpable situation of committing crime purely for profit. 21 I would reject ground 2. GROUND THREE The evidence of the applicant himself, the evidence given by his mother and the material in the testimonials tendered on behalf of the applicant presented a strong subjective case on his part which was not reflected in the sentence ultimately imposed. 22 It is not contended that his Honour overlooked any pertinent subjective aspect of the case presented on behalf of the appellant. Counsel for Fakhreddine has collated the material including a large number of references but the sentencing judge was not obliged, for example, to accept opinions that the appellant might overcome his previously "anti social disposition." The Crown Prosecutor pointed out that Fakhreddine's own evidence cast doubt upon real prospects of rehabilitation. He said that he had not learned lessons in prior incarceration at a juvenile institution which he characterized as being like at school, and whilst he claimed that his subsequent service of a prison term gave him time, and caused him, to think he nevertheless embarked upon the present serious criminal enterprise within a year of being freed to parole. 23 The essential submission that the imposition was manifestly excessive was sought to be supported by noting the severity in this case and comparing or contrasting it with the background and imposition in some selected other cases. 24 The first reference was to R v Mitchell [2002] NSWCCA 270. That offender was said to be charged with conspiracy to supply not less than a commercial quantity of heroin although a reference to maximum penalty suggests that what was involved may have been a large commercial quantity. There was also a firearm offence upon which the offender was sentenced. On the drug offence a sentence of thirteen years imprisonment with a non parole period of eight years was held not to be excessive. Mitchell had an absence of prior relevant convictions and had significant health problems particularly involving kidney failure. It was contended that the circumstance that Fakhreddine used one runner at a time demonstrated that his offence was in some lesser category than that of Mitchell who, as a principal, operated through three so-called middle managers of distribution. 25 I am unpersuaded that the integrity of the assessment of sentence on Fakhreddine is undermined by anything that can be drawn from Mitchell. 26 The second reference was to R v Bayeh (Bill) [2000] NSWCCA 473. This offender was involved in supplying both heroin and cocaine as well as an offence of perverting the course of justice. The enveloping sentence for conspiracy to supply a large commercial quantity of cocaine was equivalent to a sentence of eighteen years imprisonment with a non parole period of fifteen years (he was in fact sentenced under the superseded regime to minimum and additional terms). 27 The submission was that it should be observed how close Bayeh's sentence was to that received by Fakhreddine, yet Bayeh's offences were far more serious. I do not accept that there is such a "closeness" between sentences of eighteen years imprisonment with a non parole period of fifteen years and twelve years imprisonment with a non parole period of eight years. 28 The third reference was to R v Barakat [2004] NSWCCA 201. This offender dealt with both heroin and cocaine. His "operation" was similar to that of Fakhreddine although it was conducted in inner west suburbs. The effective sentence, held not to be excessive, was four years imprisonment with a non parole period of three years, plus sixteen months and nine days actual pre-sentence custody. Barakat is, despite the similarity in operation, quite distinguishable. The quantities of drug were less than the commercial quantity (traffickable amounts) and the offender had assisted and was assisting authorities to the extent that it was anticipated that he would spend his entire custody on protection. 29 Contrast was sought to be drawn between the receipt of 40,000 calls on a telephone in Barakat's case and the 9,000 calls in the case of the appellant. This is not a sound basis for comparison. The facts before Woods DCJ without objection were that the vast majority of the 9,000 calls monitored related to drug transactions whereas of the 40,000 calls in Barakat's case "a minimum of 150 calls were detected relating to the sale of heroin and a minimum of 80 calls were detected relating to the sale of cocaine." 30 The decision in Barakat offers no assistance to Fakhreddine's appeal. 31 Fourthly, reference was made to R v Markarian [2003] NSWCCA 8. Markarian was sentenced to eight years imprisonment with a non parole period of four and half years on a count of supplying a commercial quantity of heroin after a successful Crown appeal. It was acknowledged by counsel that this circumstance somewhat undermined its utility as a basis for comparison. Markarian was himself addicted and said to have turned to supply out of desperation (to finance his own habits). He was receiving drugs from a "wholesaler", using some and selling the balance. He was not conducting an operation or doing anything like that currently under examination. Hulme J (Heydon JA and Carruthers AJ agreeing) observed: "So far as (Markarian's) role is concerned, he was of course not the principal and the charge was not to supply but only of being knowingly involved in supply. While at times he seems to have been no more than a chauffeur, on other occasions his role was substantially more significant." 32 Ground 3 should be rejected. GROUND FOUR The learned judge overestimated the nature of the applicant's criminality by comparing his conduct with that of the offender in R v Kalache (2000) 111 A Crim R 152. 33 This ground was not abandoned but was not argued beyond what appeared in written submissions. These misstate what was done by Woods DCJ. He did not use Kalache as a "yardstick", he said that the police exercise to which he had made reference "is not comparable in scope to the massive arrangements in the famous Kalache case." (Emphasis added). He added that he would not take indications in that case as a binding guideline but noted that it and other cases had spoken of the need for heavy punishment to deter this type of offence. There is no error in that observation and his Honour made no erroneous application of authority. 34 None of the grounds advanced on behalf of Fakhreddine has been made out. 35 I turn to the application by Doudar. 36 Doudar was dealt with more leniently than Fakhreddine and this aspect has been discussed in connection with Fakhreddine's argument that his sentence should be reduced for considerations of parity. 37 It was pointed out that, by observation of collated sentencing statistics, Doudar's imposition could be seen to lie at the top of a range being that received by three to four percent of offenders. That circumstance provokes examination, it does not demonstrate error. I have already mentioned the elaborate checking and supervision of distribution of drugs by both these appellants. 38 It was argued that what was here involved was equivalent to "street dealing". That a person who deals at street level is generally regarded as less culpable than a supplier of larger quantities than "street deals" does not mean that an organizer who sends the runners out to perform the street deals is a person of low culpability. It is at the street level that the narcotic is actually put into circulation within the community and an organizer such as the appellant is not in my view to be equated with those whom he despatches to perform the final act of his criminal enterprise. 39 An observation of Wood CJ at CL in R v Pham [2001] NSWCCA 307: "In the case of the street level user/dealer there is room for a measure of clemency "

Regina v Fakhreddine Regina v Doudar

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Cases Cited (5)

Cited By (3)