Regina v Fred Nassif

Fred Nassif (Appellant) PARTIES: Regina (Respondent)

E Wilkins (Crown) COUNSEL: S Kluss (Appellant)

S Kavanagh SOLICITORS: Ross Hill & Assoc. (Appellant)

IN THE COURT OF CRIMINAL APPEAL 2004/2661

GROVE J BELL J BUDDIN J

Tuesday 15 February 2005 Regina v Fred NASSIF Judgment 1 GROVE J: I will ask Bell J to give the first judgment. 2 BELL J: By notice of appeal dated 22 October 2004, Fred Nassif appealed against both conviction and sentence. He was convicted before Andrew ADCJ (the Judge) in the Sydney District Court on 5 March 2004 of an offence of attempting to receive for supply a large commercial quantity of the prohibited drug 3,4- methylenedioxymethylamphetamine, commonly known as ecstasy. The offence is provided by s 25(2) of the Drug Misuse and Trafficking Act 1985 (the DMTA). The maximum penalty for an offence involving not less than the large commercial quantity of the drug is imprisonment for life and/or a fine of five thousand penalty units: s 33(3)(a) DMTA. 3 The applicant was sentenced to a term of six years' imprisonment to date from 9 November 2003. A non parole period of three years was specified. 4 The grounds of appeal filed with the notice of appeal contended that there had been a miscarriage of justice in that the appellant had been convicted on the basis of a plea of guilty that, in the circumstances of the case, should have been rejected. No grounds with respect to the challenge to the sentence were filed. 5 Prior to the matter coming on for hearing, the Registry was notified that the applicant did not intend to pursue the challenge to his conviction. This was confirmed on the hearing of the appeal. Counsel informed the Court that the applicant only sought to pursue his application for leave to appeal against the severity of the sentence. 6 The applicant pleaded guilty before Blanch CJDC on 3 November 2003. 7 The sentence hearing came on before the Judge on 17 and 18 February 2004. His Honour sentenced the applicant on the basis of a set of facts (Exhibit A). Those facts may be briefly summarised as follows. 8 On 16 November 2001, a container of deep freezers arrived by ship in Brisbane. On 20 November, the container was searched by Customs officers who located approximately 123.5 kg of the drug ecstasy concealed within the freezers. Officers from the Australian Federal Police substituted all but approximately 3 kg of the ecstasy with an inert substance. 9 The container was transported to premises in Concord West, being the home of Louis Sukkar. 10 The Sukkar premises were the subject of police surveillance. Over the next several days the police monitored telephone calls between Louis Sukkar and the applicant. In a telephone call on 26 November 2001, Sukkar indicated his awareness that the drugs had been substituted and his belief that he had been "ripped off". In this telephone call, Sukkar said that he had lost $7,000,000 worth of stock. He said that there was a small amount of stuff they "could do", and the two men made arrangements to meet later that day. Calls were intercepted between Sukkar and the applicant, on 27, 28 and 29 November 2001. On the evening of 2 December 2001, the applicant met Sukkar at Sukkar's home. The conversation between the two men inside the house was transmitted by a listening device that had been installed under the authority of a warrant. A summary of the contents of the discussion is set out in Exhibit A. Briefly, the applicant told Sukkar that he would see his friends that night and see how many he needed. He asked for a sample to show others. Sukkar said that he could only give him ten. The applicant said he would take the ten. The applicant asked how many Sukkar had for him. Sukkar said that he had fourteen thousand and that the applicant could take the lot if he could sell them. Sukkar told the applicant that the price was "fifteen" and the applicant said that he might add a dollar to it. Sukkar said that he would require an initial sum of $50,000 to be paid to him about one week after the applicant took possession of the drugs with the remainder to be paid later. In total, Sukkar valued the drugs at approximately $200,000. 11 The applicant said he would see his mate the next day and give him the ten tablets. He said that he had two associates who would take the fourteen thousand and that he would get back to Sukkar the following day. He said that he would speak to a person named Harry about storage for the drugs, as did not want to leave anything at his own home. The applicant agreed to take the fourteen thousand ecstasy tablets, paying an initial payment of $50,000, and said that he would need about a month to get the rest of the money. 12 On 3 December 2001 a number of telephone calls were intercepted between Sukkar and the applicant. During the first call, Sukkar asked the applicant about his contact with his associates. The applicant confirmed that he would take the whole amount and that everything had been organised. He told Sukkar to telephone him later that afternoon to organise a time to meet. In a later call the two agreed to meet at the place of a person named Whitey. An associate of both the applicant and Sukkar, named White, was then living in Kingsgrove. Records relating to the applicant's mobile telephone service for 3 December 2001 establish that shortly before 6pm on that day he was in the Kingsgrove area. On 5 December 2001, Sukkar said to the applicant during an intercepted telephone discussion, "You know those things I gave you the other day?" to which the applicant replied, "Hm yep". 13 Sukkar was arrested on the afternoon of 5 December 2001 at his home in Concord. Only forty-five of the tablets that had formed part of the three kilograms left by the Australian Federal Police were located at that time. The estimated weight of fourteen thousand ecstasy tablets was said to be 3.2452 kilograms. 14 The large commercial quantity for the drug 3,4- methylenedioxymethylamphetamine is .05 kg. The estimated street value of 14,000 ecstasy tablets is between $700,000 and $980,000. 15 The applicant was arrested on 27 September 2002. He was interviewed by the police and admitted to knowing Sukkar and to having visited Sukkar's premises prior to his arrest. The telephone and listening device recordings were played to him and he declined to comment. 16 At the sentence hearing, the applicant gave evidence that in late 2001 he had been a heavy user of ecstasy and that he had spent a lot of time attending night clubs. He said of the incriminating telephone conversations with Sukkar that he had misled Sukkar to believe that he was something he was not. Generally, it was his account that he had been "big noting" himself in his dealings with Sukkar. He acknowledged receiving eight ecstasy tablets from Sukkar as a sample. He said he had swallowed them. The Judge rejected the applicant's evidence in these respects. 17 The applicant was aged thirty two years at the date of sentence. He has a record of criminal convictions, including for the supply of prohibited drugs. He was convicted before the Sutherland Local Court in July 1993 of the possession and the supply of prohibited drugs. For the latter offence he was sentenced to perform 250 hours of community service work. In November 1993 the applicant was again convicted of the possession and the supply of prohibited drug. Following a successful appeal against the severity of the sentences imposed in respect of these offences, the applicant was sentenced to a term of nine months' imprisonment to be served by way of periodic detention. 18 On 22 February 2001, the applicant was sentenced in respect of two counts of obtaining money by deception and two counts of making a false instrument. On one conviction for the offence of obtaining money by deception he was released on a bond conditioned that he be of good behaviour for a period of eighteen months. For the remaining three convictions he was sentenced to perform community service work. 19 A pre-sentence report dated 23 January 2004 was in evidence at the sentence hearing, together with a number of reports from Sam Borenstein, a clinical psychologist, and several references. 20 The Judge sentenced the applicant taking into account the following subjective circumstances. The applicant was a single man. Following his father's death in July 2002 he had been the main support both emotionally and financially for his mother. He had overcome a history of gambling and drug abuse. The Judge noted that the author of the pre-sentence report described the applicant in these terms: "At the time of the report preparation Mr Nassif presented as a stable man living in a positive domestic environment and involved in a stable relationship with his girlfriend."

His Honour accepted this assessment, noting that the applicant's girlfriend and family remained supportive of him. 21 The applicant was employed as an electrician subcontractor with an income ranging between $600 and $700 per week. Two of his employers confirmed that he was reliable and efficient. He reported that his business had been intermittent since 1996. 22 The Judge took into account the contents of the psychologist's reports, noting that the applicant is a person who is easily led. There was no evidence that he suffered from any psychiatric disorder. His Honour accepted that the applicant is a well-liked and popular person who had experienced a difficult upbringing in a dysfunctional family. 23 The applicant had embraced religion and the Judge found that he was remorseful and contrite. Generally, the Judge considered that the applicant is succeeding with his rehabilitation. 24 A maximum discount was allowed on account of the utilitarian value of the plea of guilty. His Honour considered that an appropriate starting sentence was one of eight years' imprisonment. This was reduced to a term of six years with the discount. The sentence was fixed to commence on 9 November 2003 to reflect a period of pre-sentence custody. His Honour considered that the applicant's progress towards rehabilitation and his continuing prospects of rehabilitation amounted to special circumstances so as to justify a departure from the statutory proportion provided by section 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Grounds 25 In written submissions, counsel challenged the sentence upon the sole ground of manifest excess. In the course of oral submissions, a related submission was developed that challenged the sentence on grounds of parity with the sentence imposed upon Sukkar. I will return to the latter basis of challenge. 26 Counsel submitted that the starting point identified by the Judge of eight years was appropriate to a completed offence of supply. It was submitted that the statement of facts left open an inference that the applicant had come into possession of the total quantity of the ecstasy tablets and hence, that a completed offence of supply had occurred. In this respect, counsel drew attention to the Judge's remarks at page 4.5: "The inference from the call is that Nassif had organised matters which, based on the conversation of the previous day, included arranging storage for fourteen thousand tablets and that the meeting later that day was for Nassif to take possession of the fourteen thousand ecstasy tablets." 27 The above passage was said to carry with it that the Judge found as a fact that the applicant had received 14,000 tablets for the purposes of supply. 28 After reviewing the evidence the Judge said (at ROS 8): "I am satisfied the elements of the offence are established on all of the evidence including the intention to receive the drugs for the purpose of supply. He has adhered to his plea of guilty and I proceed to sentence on the basis the offender acted out of a desire for commercial gain and I proceed to sentence on the facts as outlined by the Crown in the statement of fact. This is clearly a serious offence involving a substantial amount of MDMA being approximately three kilograms in weight, albeit he is charged with attempt to obtain that amount for supply organising to supply to others through a network he could offload to."

I am not persuaded that the Judge approached the sentencing of the applicant on the basis that he had received the 14,000 tablets. His remarks contain no such finding and it is apparent that his Honour was mindful that the offence charged was one of attempting to receive for supply. 29 "Supply" is defined in s 3 of the DMTA in these terms: "'Supply' includes sell and distribute and also includes agreeing to supply or offering to supply or keeping or having in possession for supply or sending, forwarding, delivering or receiving for supply or authorising, directing, causing, suffering, permitting or attempting any of those acts or things". 30 Having regard to the breadth of the statutory definition, I am not persuaded that an attempt to receive drugs for supply is necessarily to be categorised as less objectively serious than an offence of supply constituted, for example, by an agreement to supply the same quantity of drugs. The assessment of the objective seriousness of a given offence, including an attempt, depends upon the particular facts of the case. 31 The applicant stood for sentence on the basis that he attempted to receive not less than the large commercial quantity of the drug ecstasy in tablet form for the purposes of supply. It was a commercial dealing in which the applicant was to be a wholesale dealer. 32 In support of the challenge, counsel supplied us with statistics maintained by the Judicial Commission of New South Wales for the period January 1997 to December 2003. Those statistics reveal that in the fifteen cases included in the survey only thirty three percent of offenders received sentences of eight years' imprisonment or more. 33 The statistics covered all offenders and it was acknowledged that they may be assumed to include sentences imposed after a plea of guilty. They may also include consecutive sentences imposed on offenders being dealt with for more than one offence. In such cases the sentences may reflect, among other considerations, that of totality. Counsel acknowledged that little by way of useful comparison could be drawn from this material. 34 The applicant persisted over a number of days in his dealings with Sukkar with a view to obtaining possession of a quantity of ecstasy tablets well in excess of the large commercial quantity with a view to their supply. He is a person with prior convictions for the supply of prohibited drugs. The applicant was motivated not only by the desire to support his own drug habit but, as he told the probation officer, by a desire to make money out of the enterprise. In view of the quantity of the drug involved, this was a realistic acknowledgment on his part. 35 Counsel invited us to consider that the applicant's financial reward was to be relatively modest. That submission is to be balanced against the consideration that the applicant said in the course of his discussions with Sukkar that he was willing to pay $50,000 within a week of receipt of the drug and that he would pay the balance within four weeks. This was a significant commercial dealing. 36 The offence was committed at a time when the applicant was the subject of a s 9 bond, a circumstance of considerable aggravation. 37 Taking into account the favourable subjective facts to which the Judge referred, I do not consider that the sentence can be said to have fallen outside the range of sound discretion. His Honour structured the sentence in a fashion that exhibited a considerable measure of leniency, in the finding of special circumstances and the determination to fix the non-parole period at one half of the sentence. 38 I return now to the submission that the sentence was excessive when regard is had to considerations of parity. 39 Louis Sukkar pleaded guilty to an offence that between 1 March 2001 and 5 December 2001 at Sydney he was knowingly concerned in the importation into Australia of prohibited imports to which s 233(B) of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of 3,4- methylenedioxymethamphetamine being not less than a commercial quantity. In addition, he pleaded guilty to a charge that between 23 November and 6 December 2001 at Sydney he did offer for supply to Fred Nassif a large commercial quantity of 3,4- methylenedioxymethamphetamine. In respect of the latter, he was sentenced to a term of six years' imprisonment. 40 In counsel's submission, Sukkar's supply was objectively a more serious offence than the applicant's offence and, accordingly, the sentence of six years' imposed on Sukkar demonstrated that the applicant's sentence was excessive. 41 Sukkar was dealt with by Andrews ADCJ after his Honour passed sentence on the applicant. 42 It is to be noted that in the Judge's reasons for sentence in the matter of Sukkar, his Honour found that Mr Sukkar had provided assistance to the authorities and that the assistance included, by way of a practical benefit, that this applicant had pleaded guilty in the knowledge that Sukkar was willing to give evidence against him. His Honour referred to the sentence imposed upon the applicant, noting that Sukkar had no prior convictions. His Honour found that the role played by Sukkar was greater than that played by the applicant in that Sukkar was the instigator of the offence. His Honour found that Sukkar was remorseful, had pleaded guilty at the earliest opportunity and may "well be rehabilitated". It was in these circumstances that the Judge determined to impose the same sentence upon Sukkar as that which he had earlier imposed upon this applicant, notwithstanding his finding that Sukkar's role in the commission of the subject offence was the greater. 43 The six year sentence imposed on Sukkar was wholly subsumed by the sentence of eighteen years' imprisonment imposed in relation to the conviction for the Commonwealth offence. 44 In the circumstances I do not consider that the sentence imposed upon Sukkar lends support to the ground that challenges the present sentence as manifestly excessive, nor do I consider that the applicant could be said to have a justified sense of grievance arising out of the sentence imposed upon Sukkar. For these reasons the orders that I propose are:

1. Dismiss the appeal against conviction. 2. Grant leave to appeal against sentence. 3. Dismiss the appeal against sentence. 45 GROVE J: I agree with the orders proposed by Bell J and the reasons that she has given. 46 BUDDIN J: I also agree. 47 GROVE J: The orders of the Court therefore will be as proposed by Bell J. Exhibit A to be returned to the Crown.

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