Regina v Taouk [2005] NSWCCA 53 | Case summary

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Nicholson DCJ in the Sydney District Court. 2 The applicant pleaded guilty to an indictment containing two counts. The first count charged supply of the prohibited drug cocaine, his possession of 28 grams exceeding the traffickable quantity and thus attracting the statutory provisions relating to deemed supply. That offence occurred on 7 September 2001. 3 The second count charged supply of a prohibited drug, again cocaine, in not less than the large commercial quantity. That offence was alleged to have occurred between 5 and 8 January 2001 and was based upon an agreement to supply the drug evidenced by arrangements made by the applicant in various telephone calls, the content of which was intercepted by police. There was no actual supply save a small amount described as a "sample". 4 His Honour was also asked to take into account, pursuant to the Form 1 procedure, seven further offences which can shortly be described as custody of a knife in a public place; goods in custody (cash $1,180); supply prohibited drug (cocaine); knowingly take part in the supply of a prohibited drug (28.4 grams of cocaine); supply prohibited drug (0.7 grams of cocaine); supply prohibited drug (methylamphetamine) and supply prohibited drug (cannabis leaf). 5 On the first count his Honour imposed a sentence of imprisonment for two years and three months commencing on 7 September 2001 and expiring on 6 December 2003 and, on the second count, taking the Form 1 matters into account, imprisonment for a term of six years commencing on 7 December 2003 with a non-parole period of two years and three months commencing on that date and expiring on 6 March 2006. The last mentioned date is the earliest date upon which the applicant will be eligible for consideration of parole. 6 Thus, the overall effective sentence can be described as eight years three months imprisonment with a non-parole period of four years six months. In addition to possible fines, the maximum prescribed penalties for the offences charged were, in relation to the first count, 15 years imprisonment and, for the second, imprisonment for life. 7 The applicant was one of a number of offenders identified as a result of an extensive police operation investigating the supply of prohibited drugs. It was said by counsel that some 40 offenders were involved. It appears that attention was directed to the applicant as a result of his contact details being listed in the mobile telephone directory of a man arrested in connection with the purchase of amphetamines. Warrants were obtained to intercept telephone services operated by the applicant. 8 Although in receipt of unemployment benefits he was found to be in possession of four mobile phones, three of which were the subject of intercept warrants. The applicant was heard to converse using terms which could readily be interpreted as a somewhat ineffectual code for drugs. These included expressions such as "small one, eight ball, aus, key, the nose stuff, bolivian, paperwork and charlie". 9 At the first instance hearing the applicant disputed certain facts, principal among which was an assertion that he could not in fact have supplied one kilogram of cocaine, which was the large commercial quantity relative to the second count. The findings of Nicholson DCJ were that in relation to the first count the applicant was making a delivery of the cocaine in his pocket to a single purchaser or had the drugs in his possession ready to respond to a request for that amount of 28 grams. It was noted that 28 grams is about equivalent to an ounce which is a common quantity in which the drug is traded. 10 On the second count his Honour found that the applicant intended, provided he could "lure" the business, to broker a deal whereby he supplied $130,000 worth of cocaine, that is one kilogram thereof, with the intention of gaining for himself what he described as a brokerage. 11 His Honour also made important findings in relation to the seriousness of the facts revealed by matters on the Form 1. The first two matters were incidents arising out of the applicant's arrest on 7 September 2001. The third offence was supply of cocaine between 10 August and 7 September, evidenced by some 22 intercepted telephone calls, arising out of which his Honour found that the applicant was dealing with at least nine persons offering to supply varying quantities of cocaine. He was satisfied that about 80 percent of the quantity of 107 grams was actually supplied for a sale price exceeding $8,000. 12 The fourth matter was a supply of 28 grams (or one ounce) between 5 and 9 July 2001. The purchaser was identified as a man known as Abed and his Honour estimated the purchase price as between $3,500 and $4,000. The fifth matter concerned the supply of 0.7 grams of cocaine sold for $200 on 4 September. His Honour considered this may have been a single deal or "sample or tester". 13 The sixth matter related to events between 31 July and 29 August and involved the supply of a large commercial quantity of methylamphetamine. His Honour found that there were at least a number of consummated deals at a price each in the order of $6,000. 14 The seventh matter on the Form 1 was again evidenced by the product of telephone intercepts and demonstrated supply of substantial quantities of cannabis which his Honour found ultimately involved a total sale price of something in the region of $24,000. 15 The submissions in support of the application have been presented on four grounds: "(a) His Honour erred with respect to his assessment of the objective criminality in relation to the second count. (b) His Honour erred in that the sentences should not have been wholly accumulated. (c) This ground is no longer pressed. (d) That the sentences imposed were, in all the circumstances manifestly excessive, and (e) That the sentences imposed were, in all the circumstances, disproportionate to the sentences imposed upon co-offenders particularly with respect to the associated matters before his Honour and of James Manassa and Fernando Riggio sentenced after this offender." 16 In relation to the first ground, it can scarcely be disputed that the offences were objectively serious. The thrust of the applicant's submission is that a schedule of selected decisions relating to the commercial supply of cocaine, which were tendered to the sentencing judge, are said to demonstrate that a starting point of eight years imprisonment (prior to discount for plea) where there was no actual transaction, was outside the range indicated by what were described in submissions as "the authorities". That description is itself demonstrative of misconception. 17 Individual cases do not provide authority. Every sentence results from an exercise of discretion. Not only did the second count in the indictment carry a potential penalty of life imprisonment but so also did the offence of supplying a commercial quantity of methylamphetamine which was taken into account on the Form 1. 18 It is a settled principle that the sentence for the foundational offence (in this case the second count) should not be only slightly increased if the offences to be taken into account on the Form 1 are serious in their own right: R v Barton [2001] NSWCCA 63; R v Perese (2001) 126 A Crim R 508; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. A "Form 1 offence" carrying a prescribed maximum of life imprisonment must, prima facie, lie in the upper limits of any scale of seriousness. 19 His Honour noted that it was the Crown case that this applicant is at the upper end of drug suppliers in the Sydney Metropolitan Region and whilst he did not articulate his findings in terms of that submission, his findings obviously support the proposition that the applicant was a significant participant in criminal activity of drug trafficking nature in this city. 20 His Honour made no error in assessing the objective criminality of the applicant's offence. He was expressly aware that, in relation to the second count, actual supply did not take place but, as I have indicated, he was satisfied of the intention to broker a deal of that quantity. 21 The second ground complains of the accumulation of the sentences. The criminal activity manifested in the first and second counts were separated in time by some eight months. Apart from involving the same drug (cocaine) there is no element of commonality in the behaviour constituting the two offences. Although it might be said that the applicant's activity was in a sense the one business of attempting to earn money from illegal drug trafficking, I would uphold the Crown's submission that the two offences cannot properly be characterised as part of the same criminal transaction. 22 It was his Honour's duty to sentence the applicant appropriately for each offence and thereafter determine whether they should be served concurrently or cumulatively in order to arrive at an appropriate total sentence reflecting his criminality: Pearce v The Queen (1998) 194 CLR 610. 23 Whilst not directly raised in relation to argument in support of the ground, it can be mentioned that the applicant was not unfamiliar with the likely consequences of committing crime. Between February 1991 and February 1994 the applicant served the minimum term of a sentence imposed upon him for the crime of manslaughter. Although this crime is of a different nature from drug trafficking, the record of conviction operates to disentitle the applicant from leniency that might be given to a person who had no prior conviction. 24 Given the ultimate effective result of his Honour's imposition and again noting that two of the offences for which the applicant was appearing for sentence (one taken into account on the Form 1) carried prescribed maximum sentences of life imprisonment, his Honour's ultimate assessment in terms of totality of an effective sentence of eight years three months with a non-parole period of four years six months is such as I would describe as lenient. 25 For the reasons expressed above, the sentences should not be categorised as manifestly excessive. 26 The final ground seeks to raise matters of asserted parity. A number of offenders were dealt with for various offences arising out of the police operation. That there were links between various participants and that they were detected as a result of the same investigation, does not create a parity between the offenders, nor does that circumstance of itself give rise to a justifiable sense of grievance if different sentences are imposed. 27 Nicholson DCJ noted that two offenders who were brothers, Raymond and Joseph Frangieh, had been dealt with by Tupman DCJ. He found no question of parity (with this applicant) arose. He made the same finding in relation to another offender, Ahmed Al-Remmahi, who appeared upon different charges and who was given a very significant discount for assistance to authority. Another offender, Riggio, was dealt with for five offences, none of which involved a large commercial quantity of methylamphetamine. In a complexity of sentences he received a non-parole period of effectively four years. 28 Counsel made specific reference to another offender, Manassa (in whose telephone the details of contact with the applicant were found by the police) who was dealt with in February 2004 by Hosking DCJ. Manassa was dealt with for a single offence of supplying methylamphetamine on three or more occasions (ongoing supply) and for non drug related offences of dishonesty. Under the Form 1 procedure there was another matter of supplying a drug. The outcome of the proceedings against him were that he was placed upon a good behaviour bond and pursuant to the suspended sentence procedure he received an imposition. 29 Particular attention was directed by counsel to the two last mentioned offenders. Today we have been provided with the remarks on sentence for both Riggio and Manassa. It might be noted that Manassa had been kept in custody for an extended period prior to being sentenced by Hosking DCJ and prior to his having entered bail. 30 It was conceded by counsel for the applicant that it cannot be put that he has available a "strict parity claim" but it was submitted that the assessment of objective criminality and disproportionate treatment of "co-offenders", having regard to their relative positions "in the network", demonstrated error on the part of his Honour. 31 Intervention by this Court to vary sentences by reason of lack of parity emerges when there is a justifiable sense of grievance engendered by the harshness with which one co-offender is treated when compared with another. The principles do not extend to application over numerous people who, in various ways, have participated in some criminal activity. It is basic to the notion of parity that those whose sentences are being compared are co-offenders in their offence whose circumstances attract broad equality of treatment for reasons of fairness. The different roles played by participants in drug dealing almost inevitably lead to discrimination in the assessment of the objective seriousness of what each has done and, of course, in making an ultimate assessment the subjective factors appropriate to be taken into account for each individual offender must play a part. 32 Insofar as the submission implies by use of the expression "strict parity claim" that there is some broader basis for application of "parity" than that approved by authority, I would reject the submission: Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295. This ground is not made out. 33 I would grant leave to appeal against sentence but dismiss the appeal. 34 BELL J: I agree with the orders proposed by the Presiding Judge for the reasons that his Honour gives. 35 BUDDIN J: I also agree. 36 GROVE J: The orders of the Court therefore will be, leave to appeal against sentence is granted but the appeal is dismissed.

Regina v Taouk

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