Regina v Haidar

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0582 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2065

McCLELLAN AJA STUDDERT J JAMES J

15 October 2004 REGINA v George HAIDAR Judgment 1 McCLELLAN J : I agree with James J. 2 STUDDERT J : I agree with James J 3 JAMES J : George Haidar applied for leave to appeal against a sentence imposed on him in the District Court on 1 September 2003 by his Honour Judge Solomon for an offence under s 233B(1)(c) and s 237 of the Customs Act ("the Act") of attempting to possess without reasonable excuse prohibited drugs to which s 233B applied, which had been imported into Australia in contravention of the Act. 4 The quantity of cocaine the applicant attempted to possess was 391.7 grams of pure cocaine, which was not less than the trafficable quantity of cocaine specified in Sch 6 to the Customs Act . By virtue of s 235(2)(d) of the Act the maximum penalty was imprisonment for twenty-five years and/or a fine not exceeding $500,000. 5 The sentence imposed by Judge Solomon was a sentence of imprisonment for seven years commencing on 30 January 2003 with a non-parole period of four and a half years. The 30 January 2003 was the date on which the applicant had been arrested and from which he had remained in custody. The applicant had pleaded guilty in the Local Court and had been committed for sentence to the District Court. 6 The applicant's notice of application for leave to appeal against sentence was not filed in time but no point was taken by the Crown and the Court should grant an extension of time for the filing of the notice of application for leave to appeal. 7 Judge Solomon annexed to his remarks on sentence a copy of the statement of the facts of the offence prepared by an Australian Federal police officer, which had been admitted into evidence in the proceedings on sentence as being the agreed facts, and the following statement of the facts of the offence is derived from the agreed statement. 8 On 27 January 2003 the Australian Customs Service informed the Australian Federal Police that a package which had arrived in Australia from Brazil by air was believed by Customs to contain a quantity of cocaine. On 28 January 2003 Australian Federal police officers attended at the airport and took possession of the package. On the package the addressee was stated to be "Rod Taylor" of an address in Dapto. An Australian Federal Police Physical Evidence Team examined the package. The package contained a computer, secreted in which were 498 grams of white powder, which on analysis was found to contain 391.7 grams of pure cocaine. 9 The Australian Federal Police reconstructed the container, substituting an inert substance for the powder but leaving 20 grams of the original cocaine. A controlled delivery of the package was made to the address at Dapto. A co-offender named Dobson accepted the package and signed a receipt for the package. Dobson put the package in the boot of a car and, while under surveillance by Federal Police, drove the car to a place where he had a meeting with the applicant. The package was transferred into the boot of the car the applicant was driving. Subsequently, both Dobson and the applicant were arrested. 10 In his remarks on sentence Judge Solomon noted that the applicant had pleaded guilty and said that the plea of guilty indicated contrition and also had a utilitarian value. 11 In his remarks on sentence Judge Solomon proceeded to say:- "I further take it into consideration that the offender is twenty-eight years of age and has no record of relevance. I further take into consideration, this is the first time the offender is to serve a gaol sentence. I further take into consideration the fact the offender does, or did have at the time of the commission of these offences a drug habit, and I accept that the offence was committed whilst the offender was under the influence of drugs. The fact that the offender was under the influence of drugs explains the offence, it does not excuse it". 12 Judge Solomon then considered what had been the applicant's role in the drug transaction as follows:- "The offender has given evidence as to his role in the transaction, I am satisfied that the offender was acting under instructions from a person who had arranged for the importation. I do not find that the offender was a principal. The offender was not a courier, on the basis that I accept his evidence that he obtained the assistance of a Mr Dobson. Mr Dobson received the package on behalf of the offender, I place the offender slightly above the position of courier". 13 In his remarks on sentence Judge Solomon took into account the steps the applicant had taken towards his own rehabilitation while in prison and that the applicant had a supportive family. 14 Judge Solomon concluded:- "The subjective matters are strong, however I must not lose sight of the fact that this offender was involved in a transaction from which there would have been a significant dissemination of drugs into this community". 15 In his written submissions counsel for the applicant relied on three grounds of appeal against the sentence imposed by Judge Solomon. On the hearing of the application the Court was informed by counsel for the applicant that the third ground of appeal was no longer pressed and almost all of counsel's oral submissions were devoted, not to the remaining two grounds of appeal in counsel's written submissions, but to a further ground of appeal which had not been raised in counsel's written submissions. I will deal firstly with the first and second grounds in counsel's written submissions.

1. Having regard to the quantity of the prohibited drug cocaine to which the applicant's offence related, the sentence imposed upon him was in all the circumstances manifestly excessive 16 As I have already indicated, the quantity of cocaine which the applicant attempted to possess was 391.7 grams of pure cocaine. In Sch 6 to the Act the trafficable quantity for cocaine is specified as being 2 grams and the commercial quantity is specified as being 2 kilograms. Accordingly, as counsel for the applicant submitted, the quantity the applicant had attempted to possess was towards the lower end of the range of trafficable quantities. 17 It was then submitted by counsel for the applicant, and not disputed by counsel for the Crown, that, notwithstanding that the decision of the Court of Criminal Appeal in R v Wong ; R v Leung (1999) 48 NSWLR 340 was criticised and reversed on appeal to the High Court Wong v The Queen ; Leung v The Queen (2001) 207 CLR 584, the guidelines for sentencing for Commonwealth drug offences stated in R v Wong have continued to be regarded as providing a useful guide. See R v Mas Rivadavia [2004] NSWCCA 284 at par 65 per Wood CJ at CL and the cases therein cited, including R v Taru [2002] NSWCCA 391. 18 In R v Taru Hidden J, with whom the other members of the Court agreed, said at par 12 that the guidelines set by the Court of Criminal Appeal in Wong :- "…remain useful notwithstanding the subsequent High Court decision arising from that case, because they were expressed to be based on the existing pattern of sentences at the time the judgment was delivered. Indeed, much of the judgment of the Chief Justice was devoted to consideration of other cases and the patterns of sentence which emerged from them…". 19 In R v Wong Spigelman CJ, with whom a majority of the other members of the Court agreed, said at par 142 that a guideline for sentences for "couriers and persons low in the hierarchy of the importing organisation" for an offence involving a mid level trafficable quantity of a drug, which was specified as being between 200 grams and 1 kilogram of the drug, would be a sentence of six to nine years. 20 It was submitted by counsel for the applicant that the sentence which Judge Solomon had imposed for an offence committed by someone slightly above the position of a courier, involving a quantity of cocaine towards the lower end of the range for a mid level trafficable quantity of the drug, was manifestly excessive, especially if a proper allowance was to be made for the applicant's early plea of guilty. If an allowance of 25 per cent should have been made for the early plea of guilty, then Judge Solomon's starting point, before making such an allowance, would have been nine years four months, that is above the upper limit of the guideline stated in R v Wong . 21 I do not consider that these submissions by counsel for the applicant should be accepted. 22 It is apparent from the Chief Justice's judgment in Wong and particularly par 141 of the judgment, that, while the Chief Justice considered that "there may be circumstances in which a plea of guilty is entitled to such significant weight as to justify a sentence below the range", the range of sentences of six to nine years which the Chief Justice stated was intended to apply to many, if not most, cases in which there had been a plea of guilty. The range of sentences between six to nine years was not intended to be restricted to the sentencing of offenders who had not pleaded guilty and had gone to trial. Hence, the submission that, in order to arrive at a sentence of seven years for an offender who had pleaded guilty, Judge Solomon must have adopted a starting point above the upper limit of the range of sentences stated in Wong , is based on a false premise. 23 In my opinion, the sentence imposed on the applicant by Judge Solomon should be regarded as being within the guideline stated in Wong and was not manifestly excessive, even after taking into account the quantity of the drug involved in the offence and even after making allowance for the applicant's plea of guilty and the applicant's other favourable subjective circumstances. 24 If the repeal of the former s 16G of the Commonwealth Crimes Act is taken into account, the conclusion that the sentence was not manifestly excessive follows even more clearly. 25 The guidelines for sentencing stated by the Chief Justice in Wong were based on sentences which had been imposed while s 16G of the Crimes Act was in force and which therefore reflected the application of s 16G. 26 It was common ground on the hearing of this application that, as Judge Solomon recognised in his remarks on sentence, the former s 16G of the Crimes Act , which was repealed with effect as from 16 January 2003, did not apply to the sentencing of the applicant. The effect of the repeal of s 16G on the sentencing of Commonwealth offenders has been referred to or discussed in a number of decisions of this Court including R v Schofield (2003) 138 A Crim R 19; R v Speer [2004] NSWCCA 118; R v Studenikin [2004] NSWCCA 164; R v Kevenaar [ 2004] NSWCCA 210; R v Mas Rivadavia . 27 At par 72 of Wood CJ at CL's judgment in R v Mas Rivadavia his Honour said:- "It is implicit in these decisions, and it was accepted in R v Studenikin [2004] NSWCCA 164 and in R v Kevenaar [2004] NSWCCA 210, that the repeal of s 16G, at least in cases where there was a plea or conviction recorded after 16 January 2003, will normally lead to the imposition of a heavier sentence than that discernible in the pre-repeal pattern of sentencing". 28 The explanation for this change in sentencing patterns is that s 16G was a statutory provision which authorised and required the making of a deduction from the sentence which would otherwise have been appropriate and that since the repeal of s 16G such a deduction from what would otherwise have been the appropriate sentence is no longer authorised or required. See R v Studenikin especially per Howie J at pars 50, 51, 52, 62, 66 and 71. 29 I would reject the first ground of appeal.

2. The sentencing judge failed to have sufficient regard to the fact that the applicant pleaded guilty to an offence of attempting to import drugs rather than an actual importation of prohibited drugs 30 It was submitted by counsel for the applicant that, notwithstanding that by s 237 of the Act an attempt to commit an offence against the Act is an offence against the Act punishable as if the offence had been committed, nevertheless a person convicted of merely attempting to commit an offence should be regarded as less culpable than a person who has actually committed the offence and should receive a less severe penalty. It was submitted that, when an offender is being sentenced, the objective seriousness of the offence is in part measured by the degree of damage which the offence has caused in the community and an attempt to commit an offence, which is unsuccessful, will have caused no damage in the community. Counsel cited R v Irusta (2000) 117 A Crim R 6 especially per Simpson J at pars 45-48 and 63. 31 I do not accept that a person who has been convicted of attempting to commit an offence should necessarily receive a significantly lesser sentence than a person who has actually committed the offence. 32 In R v Schofield Carruthers AJ, with whom Heydon JA agreed, said at 57 (139):- "It is important to appreciate that where an attempt to commit a substantive offence is involved, it is relevant to consider, in evaluating the seriousness of the offence, inter alia, that the offence was not completed; the chances of its success; the seriousness of the attempt; whether the attempt was sophisticated or naïve; the competence of the attempt and all the other surrounding circumstances; see R v Taouk (1992) 65 A Crim R 387 at 390". 33 In R v Reardon [2002] NSWCCA 203 Barr J, with whom Hodgson JA and Simpson J agreed, said at par 235:- "Such is the nature of the importation of illegal drugs that very often offenders are detected only because the authorities have foreknowledge of importations, lie in wait and seize goods as they are landed. An examination of the cases does not suggest that there is any sentencing principle which regards the criminality of importers as less because there is no real chance that the drugs they import will be distributed and cause harm to members of the public. Although it would have been different if Reardon had voluntarily withdrawn from the conspiracy, with the result that no harm to the public could result from any further act or intent of his, it seems to me that the absence of any chance of harm does not of itself mitigate his criminality. His intention was always that cocaine should be imported and distributed for profit. The fact that there was never any prospect of harm to the public did not result from any act or intent of Reardon". 34 Reardon was a case of conspiracy to commit an offence but I accept counsel for the Crown's submission that what Barr J said is equally applicable to an attempt to commit an offence. 35 Even Irusta , the case sought to be relied on by counsel for the applicant, does not give unequivocal support to his submission. In par 50 of her judgment Simpson J said:- "When one looks at all of those matters in the present case, the DPP's submission that the fact that the respondent pleaded guilty to an attempt as distinct from a completed offence, taken alone or in conjunction with all other circumstances, did not warrant the imposition of a sentence below the range promulgated in Wong and Leung , has a great deal of force. In my opinion the judge overstated the position when he said that attempts are necessarily to be treated as less serious, and warranting less severe punishment, than the completed offence". 36 In the present case the attempt by the applicant to obtain possession of the prohibited imports was a serious and competent attempt. It was not predestined to fail and, on the contrary, it would very likely have succeeded, but for the intervention of the Australian Customs Service and the Australian Federal Police. That the attempt did not succeed was not due to any act or intention of the applicant. 37 In my opinion, the second ground of appeal should be rejected.

Further ground of appeal 38 I turn now to a further ground of appeal which was raised for the first time in counsel for the applicant's oral submissions. The further ground of appeal was not precisely formulated by counsel but was to the effect that the sentencing judge had failed to take into account a relevant matter, namely the applicant's motivation for entering into the attempt to obtain possession of the drugs. 39 Counsel referred to evidence given by the applicant in the proceedings on sentence that he had developed a drug habit, that his business as a mechanic had suffered because he started selling tools and equipment to finance his habit and that "then I was threatened to pay my debt to my supplier, which I couldn't pay straight away, so I was asked to do this job and my debt would be cleared. At the time I had lost control of what right and wrong was and I didn't want to bring any trouble to my home". 40 Counsel also referred to passages in a report by Dr Niellsen, a forensic psychiatrist who had interviewed the applicant, in which Dr Niellsen recorded a history he had been given by the applicant, including that the applicant had come under increased pressure to repay the money he owed for drugs and had committed the offence in an attempt to wipe out his debt. 41 It was submitted by counsel for the applicant that it was apparent from Judge Solomon's remarks on sentence that his Honour had generally accepted the evidence given by the applicant in the proceedings on sentence and that his Honour should have made a finding in accordance with the applicant's evidence about the applicant's motivation for committing the offence and then regarded the applicant's motivation as a matter of mitigation. However, in the passage of his Honour's remarks on sentence which I have already quoted, his Honour had merely found that at the time of committing the offence the applicant had a drug habit and that the offence had been committed "whilst the offender was under the influence of drugs" but that that circumstance did not excuse the offence. I interpose that it seems clear that in saying that the offence was committed while the applicant was "under the influence of drugs", Judge Solomon was not making a finding that the applicant was actually under the influence of drugs at the time he committed the offence but was merely making a finding that the applicant was subject to a drug habit at the time of committing the offence. 42 In support of his submissions counsel for the applicant referred to R v Selim (unreported NSWCCA 19 May 1998) and a decision of the Court of Appeal of the Supreme Court of Victoria R v Bernath [1997] 1 VR 271 especially at 275-276. 43 In R v Selim the offender had been sentenced for precisely the same offence as the present applicant was sentenced, that is attempting to obtain possession of a prohibited import (cocaine) in contravention of s 233B(1)(c) of the Act. The sentencing judge made a finding that it was the applicant's addiction to cocaine which had motivated her offence. She was using at least 3 grams of cocaine per day and she was to be rewarded for her participation in the importation of the cocaine by being given some of the drug for her own use. However, the sentencing judge said in his remarks on sentence "I do not mitigate the prisoner's criminality because she was addicted to drugs…". 44 At p 5 of the judgment of the Court of Criminal Appeal in Selim Studdert J, with whom the other members of the Court agreed, said:- "Since his Honour had found that there was a link between the applicant's addiction and her participation in this crime, that was a circumstance which, on the authorities, entitled the applicant to have her criminality regarded as on a lower level than had she been committing the offence purely for monetary gain: see Tulloh (unreported, Court of Criminal Appeal, 16 September 1993, and in particular the judgment of Hunt CJ at CL). See also R v Bernath , and in particular the judgment of Callaway JA at 275-276. To what extent a penalty otherwise appropriate should be adjusted if the offender commits the offence to feed an addiction calls for close assessment of all the relevant circumstances. However, his Honour's remarks in this case indicate that he did not take into account the applicant's particular motivation and in this respect, in my opinion, he fell into error". 45 The passage in the judgment of Callaway JA in Bernath at pp 275-276 is as follows:- "Mr Gyorffy, who appeared for the Crown before us, did not contest that it is sometimes a very significant factor in sentencing that an offender engaged in trafficking, especially at street level, in order to gain the wherewithal to satisfy his own craving, rather than purely for reasons of greed in callous disregard of the grave harm that offence does to its victims. But as McGarvie J said in R v Nagy [1992] 1 VR 637 at 640, the regard to be paid to this factor depends on the circumstances of each case. The weight to be attributed to it is greatly diminished, often to vanishing point, when one is considering operations above street level". 46 In Tulloh Hunt CJ at CL, who delivered the principal judgment, said at p 2 that a user/dealer who sells primarily only to feed his own habit is at a lower level of criminality than a trafficker for greed. 47 I do not consider that this ground of appeal should be upheld. 48 In the present case, unlike Selim , the sentencing judge did not make any finding that it was the applicant's drug addiction which motivated the offence. Even if Judge Solomon did accept or should have accepted the applicant's evidence that the applicant had entered into the drug transaction in order to pay a debt he owed to a person who had supplied drugs to him while he was addicted, this evidence would not have supported a finding of a link between the commission of the offence and the offender's drug addiction of the kind referred to in Selim and Bernath , that is that the offence was committed in order to satisfy an immediate need for drugs to satisfy the offender's addiction or, as it was expressed in Bernath , "in order to gain the wherewithal to satisfy his own craving". 49 Although the drug transaction in Selim was clearly above street level, I would adopt what Callaway JA said in Bernath that the weight which should be given to any link between the commission of an offence and the drug addiction of the offender depends on the circumstances in each case and the weight which should be attributed to it is likely to be less, if the transaction is above street level. The remarks made by Hunt CJ at CL in Tulloh , a case in which the offender had sold half a gram of heroin for $50 and was found in possession of another 2·11 grams of heroin, were made in the context of a discussion by his Honour of whether a custodial sentence was necessarily required in every case of a trafficking in drugs and it can be inferred that the kind of user/dealer his Honour had in mind was a person dealing at a very low or street level. In the present case, the transaction was, of course, well above street level. 50 On the evidence given by the applicant in the proceedings on sentence the applicant was not destitute at the time of committing the offence. He was not in the position of having no alternative lawful means of paying the debt he owed to his supplier. 51 In argument on the application the Crown referred the Court to the discussion of drug addiction in the judgment of Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at 397-398 (273-274). Although R v Henry was a guidelines judgment for offences of armed robbery, I consider, as counsel for the Crown submitted, that Wood CJ at CL's discussion can properly be applied to offences other than armed robbery. 52 The general principle stated by Wood CJ at CL in R v Henry was that the need to acquire funds to support a drug habit, even a severe habit, is not a matter of mitigation in sentencing an offender. His Honour then stated various qualifications to this general principle. It would not appear to me that the present case fits within any of the qualifications stated by his Honour. One qualification stated by his Honour, to which reference was made in argument on this application, was that "the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act". However, the applicant's evidence in the proceedings on sentence fell far short of establishing that the applicant's state of mind or capacity at the time of committing the offence fitted within this qualification. 53 I have concluded that all the grounds of appeal should be rejected. In my opinion, while leave to appeal against sentence should be granted, the appeal against sentence should be dismissed. *********

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