REGINA v Khaled ZAKARIA [2002] NSWCCA 450 | Case summary

13 November 2002 REGINA v Khaled ZAKARIA Judgment 1 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 3 May 2002. The applicant pleaded guilty on indictment to two charges; (i) that on 28 August 2001 at Kings Cross in the state of New South Wales on three separate occasions during a period of thirty consecutive days he did supply a prohibited drug, namely cocaine, for financial reward. This offence is provided by s 25A of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"). It carries a maximum penalty of twenty years imprisonment and/or 3500 penalty units; (ii) that between 29 June 2000 and 29 June 2001 at Sydney in the state of New South Wales he did supply a prohibited drug, namely cannabis. This offence is provided by s 25(1) of the DMT Act and carries a maximum penalty of ten years imprisonment and/or 2000 penalty units. 2 The applicant asked the sentencing judge to take into account a further eight offences pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. Those offences were said to have been committed between the 26 and 29 June 2001. The offences committed on 29 June involved three counts of the supply of prohibited drugs; cannabis leaf (40 grams) amphetamines (2 grams) and Ecstasy (2.9 grams). Additionally on that date the applicant was charged with an offence of goods in custody relating to his possession of the sum of $50. The offences said to have occurred on 26 June also involved three counts of the supply of a prohibited drug, namely cannabis leaf (29.66 grams) amphetamines (2.12 grams) and Ecstasy (2.3 grams). There was a further charge of goods in custody relating to the possession of the sum of $250 at the time of his arrest on 26 June. 3 The sentencing judge was invited to take these eight offences into account in sentencing the offender for Count 2 (the supply of cannabis). It might have been thought more appropriate for the Form 1 offences to be taken into account in dealing with the offence, which carried the higher maximum sentence. 4 In relation to the supply of cannabis offence the judge sentenced the applicant to three years imprisonment to date from 8 August 2001, the date upon which he had been taken into custody. His Honour specified a non-parole period of eighteen months to expire on 27 February 2003. 5 In respect of the offence of supply cocaine charged in Count 1, the judge sentenced the applicant to a term of two years imprisonment to date from 27 February 2003. His Honour fixed a non-parole period of twelve months to expire on 26 February 2004. The effect of his Honour's sentencing order was that the applicant was sentenced to a total of three years and six months imprisonment with an effective non-parole period of two years and six months. 6 Ms Francis, who appears on behalf of the applicant, in written submissions challenged the sentence upon three grounds. Firstly, she contended that the sentencing judge erred in failing to allow a discount in conformity with the principles enunciated in R v Ellis (1986) 6 NSWLR 603. Secondly the sentencing judge is said to have erred in failing to take into account the plea of guilty on Count 1, and thirdly it was submitted that the sentence is manifestly excessive. In the course of oral submissions Ms Francis adopted a matter raised, fairly, by the Crown Prosecutor, that relates to the offence charged in Count 2. His Honour was wrongly informed both by the representative of the Crown and the applicant's own legal representative that the maximum penalty for the offence was one of fifteen years imprisonment. I will return to this matter in due course. 7 It is necessary to set out the facts in order to appreciate the challenge that Ms Francis makes by reference to the principles set out in the decision of this Court in Ellis. It is convenient to do so by incorporating the facts as found by the sentencing judge and set out in his reasons for sentence: "Dealing with the second offence first. The prisoner was stopped by police on 29 June 2001 when driving a vehicle XHN252 in Mortdale. On searching the vehicle police found a quantity of drugs concealed in it. The prisoner was arrested and admitted to the possession and supply of cannabis and amphetamines on that day. He told police he had been supplying such drugs for the preceding twelve months, selling up to 100 bags a day. The facts of the supply of the drugs on the Form One are almost identical to those on 29 June 2001, just three days earlier. The prisoner was seen in a different vehicle, XPM651 in Hurstville. He was stopped for a random breath test, and whilst this was occurring, police detected a strong smell of cannabis. They searched the vehicle and they found seven small plastic bags, six medium plastic bags, and one long clear plastic bag, all containing cannabis. They also found five coloured tablets which were later shown to be amphetamines. He denied knowledge of the drugs at this time. He later admitted to police that he was selling Ecstasy but when first arrested he denied knowledge of the drugs. He also had possession of $390 which he claimed was his own. As to the cars, he said that a person 'Mick' had lent it to him. It was in fact a rental car. In regard to the sale of the drugs, the prisoner says that he was selling the cannabis for $20 or $50, depending upon the size. The amphetamines for $50 a bag and Ecstasy tablets were $25 each. The sales of these drugs were a significant commercial operation. The prisoner's role in the offence was that of a runner supplying the drugs to customers on behalf of those above him. He, perhaps understandable, declined to name those from whom he obtained the drugs because he fears for his safety. The prisoner was very well rewarded for his role. At the end of the day he was required to return the days takings to his principle, (sic) and at the end of the week he would be paid a wage of $3,000. The facts in respect of the ongoing supply of cocaine are straightforward. Police conducted a covert operation in Kings Cross and used operatives to approach suspects for the purchase of cocaine. At 8:43 on 28 August 2001, an operative approached the prisoner and purchased 0.14 grams of cocaine for $70. Four minutes later another operative likewise purchased 0.14 grams for the same amount, and then a third bought 0.13 grams for $60. The prisoner was arrested, taken to Kings Cross police station where he declined to be interviewed about the matter. He was later charged and has been in custody since that time." 8 In Ellis, Street CJ (in a judgment with which Hunt and Allen JJ agreed) said at p 604: "This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." 9 Ms Francis submits that the Crown Case in relation to the offence of supply cannabis was based entirely upon the submissions made by the applicant in the course of the record of interview conducted on 29 June 2001. These admissions amounted to disclosure of what would otherwise have been undetectable guilt. Further, in her submission, the admissions made during the course of that interview provided considerable assistance to the Crown in relation to proof of each of the eight offences taken into account in on the Form 1. Ms Francis complains that his Honour did not include any reference to these considerations in the statement of his reasons. 10 As far as the matters taken into account on the Form 1 are concerned, while it may be accepted that the admissions volunteered by the applicant were of value to the Crown it could hardly be said that in any instance they amounted to disclosure of an otherwise unknown guilt of the offence such as to attract the operation of the principles enunciated by Street CJ in Ellis. 11 The offences set out in the schedule related to the events of 26 and 29 June 2001 respectively. In each case the applicant had been stopped by police while travelling in a motor vehicle. On 26 June 2001 he was stopped by Constables D'Amico, Firth and Shieles in Hurstville. Constable Shieles approached him saying, "Khaled, we have information that this vehicle has been involved in drug supply in this area". 12 The police conducted a search of the motor vehicle in which the applicant was travelling. In the course of that search they located a clear, resealable plastic bag containing a quantity of green vegetable matter. The applicant was thereupon arrested for possession of prohibited drugs. The search of the vehicle continued and Constable Shieles located the sum of $290 in cash. A quantity of Glad freezer bags was located in the glove compartment of the car. The applicant was taken to the Hurstville police station where upon examination of the Glad resealable bag containing the green vegetable matter, seven smaller resealable bags were found, six of medium size, one long bag, each containing green vegetable matter. There were two small resealable plastic bags containing white powder and one medium sized resealable plastic bag a white and a green tablet. 13 The applicant was stopped in Mortdale while driving a different motor vehicle on 29 June 2001. On this occasion a search of the passenger's footwell of the vehicle revealed a small resealable plastic bag. The sum of $50 was found in the centre consol ashtray. A large resealable plastic bag containing a number of resealable bags was located under the driver's electronic window control. In all, the police located one plastic bag containing green vegetable matter, one bag with seven green and yellow tablets and two resealable bags containing white powder. Although the applicant initially denied knowledge of the drugs found by police on 26 and 29 June, his forthright admissions given during the course of his electronically recorded interview evidenced both his willingness to co-operate with the authorities and his contrition. However, they do not amount to the disclosure of otherwise unknown guilt of the offences set out in the Form 1 schedule. Ms Francis acknowledged as much in the course of oral submissions. 14 The applicant's admissions concerning his supply of cannabis over the preceding twelve months seem to me to fall into a somewhat different category. They constituted the sole evidence upon which the Crown case proceeded. I accept the Crown Prosecutor's written submissions that this is not a case in which the applicant provided information in respect of offences for which he was not a suspect. On 29 June when he participated in the electronically recorded interview he had twice been stopped by police in possession of prohibited drugs, including cannabis, within the last three days. On the occasion of his first arrest, as I have noted, it had been put to him squarely by Constable Shieles that the police were in possession of information that the vehicle in which he was stopped was one that had been involved in the supply of drugs in the area. Nonetheless, as Ms Francis submits, the likelihood that the police might have uncovered evidence that the applicant had been engaged in the regular supply of substantial quantities of cannabis over the preceding twelve months in the absence of his admissions seems to me to have been slight. During the course of oral submissions the Crown acknowledged that this did entitle the applicant to an added element of leniency in addition to the utilitarian value of his plea of guilty. 15 In dealing with the challenge to the sentence imposed on Count 2 it is appropriate to return to the matter I adverted to earlier, namely that the hearing proceeded upon a wrong understanding of the maximum penalty for the offence. In Bimahendali (1999) 109 A Crim R 355, Wood CJ at CL observed that the best guide to the seriousness of a drug offence is to be found in the maximum penalty provided by the legislature. The Crown acknowledges that the proceedings with respect to Count 2 were vitiated by error, and I accept that is so. However it does not follow that the Court would proceed to quash the sentence. Pursuant to s 6(3) of the Criminal Appeal Act 1912, the Court is only to quash the sentence and pass another sentence in substitution thereof if it is of the opinion that some other sentence is warranted in law. I will return to this when dealing with the third ground that challenges the sentences as being manifestly excessive. 16 Ms Francis contended that his Honour erred in failing to take into account the applicant's plea of guilty in respect of Count 1. His Honour, in terms, applied a discount of twenty-five per cent to take account of the early plea of guilty in imposing the sentence on Count 2. This was the first sentence pronounced in point of time. His Honour went on to pronounce sentence on the offence charged in Count 1 and did not on this occasion state that he had discounted the sentence to take account of the plea of guilty. Nonetheless, immediately prior to pronouncing sentence he said: "I have taken into account his pleas of guilty. They were entered at the first reasonable opportunity and he is therefore entitled to some reduction on his sentence." 17 The judge was not constrained to quantify the discount in relation to the offence charged in Count 1: R v Thomson & Houlton at [160]. It is apparent that his Honour had firmly in mind that the applicant had entered pleas of guilty to both offences at the earliest opportunity. I am not persuaded that the failure to quantify the discount with respect to Count 1 discloses error. 18 I turn now to the submission that the sentences are manifestly excessive. In Ms Francis's submission, the overall sentence of three years and six months with a non-parole period of two years and six months bespeaks error when proper weight is given to the applicant's admissions to the investigating police and the subjective features of his case. In the latter respect she emphasises the following matters. The applicant was aged twenty at the date of sentence. He had not previously been sentenced to a term of full time custody and he had a history of drug abuse in the context of significant "psychological and behavioural difficulties after the breakdown of his parents' marriage". The quotation is drawn from the report of a psychologist, Ms Simmonata. 19 Since I am of the view that the applicant has made good his challenge that the sentencing in respect of Count 2 was attended by error, it is appropriate to take into account the whole of the material that was before the sentencing judge in order to assess whether some other sentence is warranted in law. A pre-sentence report prepared by Steven Smith, Probation and Parole officer attached to the Sutherland District Office, recited that the applicant described a happy childhood, marred only by his parents' separation several years ago. The applicant told Mr Smith that his mother and father had nonetheless maintained a civil relationship and that he had frequent contact with both. Mrs Zakaria expressed support for her son and willingness to have him return to the family home upon his release. 20 The applicant left school at the age of seventeen years. He was part-way through year eleven. From that time until December 2000 he had worked with his uncle as an apprentice panelbeater. Following an argument with his uncle, his employment was terminated. Up until the time of the argument he had been regarded as a good employee. At the time of his arrest he was in receipt of the New Start Allowance. 21 At the time of his interview with Mr Smith the applicant said that his time spent in custody had made him realise the stupidity of his actions and resolve not to offend again. He had attended for counselling at the Drug and Alcohol Unit at the Parklea Correctional Centre from September 2001. He had undergone counselling for alcohol and drug addiction, assertiveness training and a variety of other subject matters generally designed to enhance his interpersonal skills. Mr Smith assessed the applicant has having "every chance of becoming a worthwhile and contributing citizen" should he maintain his momentum in dealing with his drug problem. Mr Smith noted that while in the past the applicant had not responded positively to supervision by the Probation Service his attempts to address his problems while in custody were a cause for optimism. 22 A report prepared by Ms Simmonata, a consultant psychologist, dated 5 November 2001 furnished further background information concerning the applicant. The applicant was pleasant and co-operative throughout his interview with Ms Simmonata. He impressed as being remorseful for his behaviour and concerned about the negative effects of it on his family. Ms Simmonata reported that Mrs Zakaria gave an account that the applicant's behaviour had begun to deteriorate following her separation from his father. She had found herself unable to control his behaviour and was concerned about his choice of an older peer group. The applicant gave an account of a difficult and troubled time at high school, involving truancy, fighting and general misbehaviour. He had been suspended on more than twenty occasions and was expelled halfway through year eleven. He had experienced ongoing difficulties with learning. He was assessed by Ms Simmonata as being functionally literate and capable of reading a newspaper. He gave a history of marijuana use since the age of twelve or thirteen years (this corresponding with the time of his parents' separation). Subsequently he said he had developed a heavy cocaine habit and that he had also consumed quantities of amphetamines, Ecstasy and heroin on a regular basis. He gave an account that he had found it difficult to resist pressure from older peers, many of whom were drug addicts. Ms Simmonata observed in the concluding portion of her report: "Mr Zakaria developed a lifestyle that evolved as a result of heavy poly drug use. It is likely that his behaviour was almost wholly influenced by drinking and drug use. Since being in custody he had continued to battle the difficulties of negative influences within the custodial system. His immaturity and propensity to be easily influenced suggest that a prolonged period of time in a custodial setting is likely to place Mr Zakaria under the same negative influences he experienced prior to his offences." 23 On 13 November 2000 the applicant was sentenced before Hornsby Local Court in respect of a conviction for stealing. He was placed on a bond, conditioned that he be of good behaviour for two years. Ten days later, on 23 November 2000, he was convicted before the Manly Local Court of assault occasioning actual bodily harm. He was again placed on a bond, conditioned that he be of good behaviour for two years. On 8 August 2001 he appeared before the Parramatta Local Court where he was dealt with for the offences of obtain money by deception, goods in custody and failing to comply with the condition of a good behaviour bond. 24 In respect of the first two matters, he was placed on a further bond for a period of twelve months. On this occasion the bond was made the subject of supervision by the New South Wales Probation Service. In relation to failing to comply with the condition of a good behaviour bond he was sentenced to a Community Service Order, requiring that he perform 100 hours of community service work. The offence charged in Count 1 was, thus, committed while the applicant was the subject of the bond imposed some three weeks earlier at the Parramatta Local Court. It would appear that the applicant was released on bail following his arrest on 26 June 2001, and as I have noted, a mere three days later arrested again in respect of like offences. Again he was released on bail and some two months later he was arrested in relation to the supply of cocaine. 25 In the course of submissions upon the hearing of the appeal Ms Francis handed up statistics maintained by the Judicial Commission of New South Wales in relation to the supply of cannabis in cases involving a quantity less than the commercial quantity. It was her submission with respect to the offence charged in Count 2, that a head sentence of three years and a non-parole period of eighteen months was at the top of the range. In assessing that submission it is necessary to bear in mind that the applicant stood for sentence in relation to the supply of cannabis charge upon the basis that the Court was to take into account the eight matters on the Form 1 including, as they did, six counts of supplying drugs. Generally, the sentencing judge found the facts of all the matters to show that the applicant had engaged in the dissemination of a variety of drugs for financial reward, his role being that of a street seller. It is to be noted that the applicant admitted, with respect to his involvement in the supply of cannabis, that he had been receiving a wage of some $3000 per week from his suppliers. 26 Taking into account these considerations and giving recognition to the fact that the applicant volunteered his guilt of the offence charged in Count 2, in circumstances in which the Crown would not otherwise have had a case against him, but noting that there were a number of offences involving the supply of different prohibited drugs taken into account on the Form 1 (in respect of which that latter consideration does not apply) I am not persuaded that some lesser sentence is warranted in law in relation to Count 2. Generally, taking into account the structure of the two sentences, I am not persuaded that they are manifestly excessive. For these reasons I would propose that leave to appeal be granted, but that the appeal be dismissed. 27 WOOD CJ AT CL: I agree. 28 DOWD J: I also agree. I would only add my agreement with her Honour's views, what was said by her Honour in relation to Form 1 matters. It is generally desirable that a matter which is inextricably linked with another offence should travel with that offence on a Form 1, but that generally Form 1 matters should be attached to the more serious of the offender's offences before the Court. Indeed it may be appropriate in some cases for two Forms 1 to be entered into, whereby because there can be any number of offences disclosed in a Form 1, whereby offences linked to a particular lesser offence should travel with that and be dealt with on that, but that otherwise matters should go with the offence carrying the greater penalty, allowing the Court the maximum flexibility to reflect the matters taken into account. 29 WOOD CJ AT CL: The orders of the Court will be as proposed by Bell J.

REGINA v Khaled ZAKARIA

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