Salama v R

Court of Criminal Appeal (NSW)|2023-04-28|Before: Wright J, Wilson J, Fagan J

JUDGMENT

WRIGHT J: I agree with Wilson J.
WILSON J: By Notice filed on 9 February 2023 the applicant, Mark Salama, seeks leave to appeal against the sentence imposed upon him on 9 September 2022 by his Honour Judge Craigie SC with respect to drug and other charges, as set out below. Count Details Indicative Sentence Possess precursor intending it be used in the manufacture of a prohibited drug 1 s 24A(1)(a) Drug Misuse and Trafficking Act 1985 (NSW) 3 years 10 months imprisonment Maximum penalty: 10 years imprisonment and or fine of 2000 penalty units Possess precursor intending it be used in the manufacture of a prohibited drug s 24A(1)(a) Drug Misuse and Trafficking Act 1985 Form 1 Maximum penalty: 10 years imprisonment and or fine of 2000 penalty units Taken into account in sentence for count 1 (Count 1) Supply Prohibited Drug (2 counts) s 25(1) Drug Misuse and Trafficking Act 1985 Maximum penalty: 15 years imprisonment and or fine of 2000 penalty units Possess precursor intending it be used in the manufacture of a prohibited drug Count 2 s 24A(1)(a) Drug Misuse and Trafficking Act 1985 3 years 6 months imprisonment Maximum penalty: 10 years imprisonment and or fine of 2000 penalty units Steal from Dwelling s 148 Crimes Act 1900 (NSW) Form 1 Maximum penalty 7 years imprisonment Taken into account in sentence for count 2 (Count 2) Enter enclosed lands s 4(1)(B) Inclosed Lands Protection Act 1901 (NSW) Maximum penalty: fine of 5 penalty units

An aggregate sentence of 4 years imprisonment was imposed, with a non-parole period ("NPP") of 2 years and 4 months specified. The NPP expires on 30 November 2023.
The applicant proposes two grounds of appeal: 1. His Honour erred in: 1. taking into account material not properly before the sentencing court and, consequently, making factual findings not available on the evidence; and 2. finding that the applicant's objective offending was "more towards the area of the mid-range". 1. The aggregate sentence imposed was manifestly excessive.
Although I have concluded that the accused has made good his proposed ground 1(a) and thus should be granted leave to appeal, for the reasons that follow the appeal should be dismissed.

The Proceedings in the District Court

The applicant was committed to the District Court for trial, entering his pleas of guilty at a call-over on 9 March 2022. The sentence hearing of both the applicant and his two co-offenders, Jonathon Tabone and Taing Sachhoy, came before the sentencing court on 30 May 2022. Although the sentence proceedings were heard jointly, the Crown tendered separate evidentiary material for each of the three offenders and, of some significance to this application, separate statements of the facts relevant to each.

The Crown Case

The statement of agreed facts tendered with respect to the applicant noted that the three co-offenders had shared a house at Wakeley, the premises in which precursors and other drug related items were found by police. Although the applicant disputed the relevant portion of the facts before this Court, the agreed statement recorded that conversations between the three men that "related to [the] manufacture of drugs, cutting agents, and the involvement of Tabone in [the] manufacture" had been captured by electronic surveillance. One of those conversations was between the applicant and Sachhoy on 31 July 2020 in which Sachhoy reprimanded the applicant for some perceived dereliction in "watching matey", implicitly as "matey", or Tabone, went about the process of manufacturing drugs.
On the same day a search warrant was executed at the Wakeley premises. Police entering the property called out to identify themselves. The applicant and Tabone both fled by jumping through a window and climbing over fences into neighbouring properties to escape. In one of the properties the applicant entered (reflected by the offence of entering inclosed lands on the Form 1 document to count 2) he took clothing from a washing line in a garage and replaced the shirt he had been wearing with a t-shirt stolen from the line (reflected by the stealing charge on the same Form 1 document).
The applicant was found by police hiding in a garage and arrested.
Specialist investigators examined the Wakeley premises and established that it had been used to operate a clandestine laboratory. Laboratory equipment and chemicals used in the manufacture of prohibited drugs were located. An amount of 876 grams of hypophosphorous acid with a density of 1.23 grams per millilitre, reflected by count 2 on the indictment, was found in the kitchen of the premises. In the applicant's bedroom a quantity of 11.63 grams of ephedrine and an amount of 4.59 grams of methylamphetamine were located. These drugs were reflected by the two offences of supplying a prohibited drug taken into account in the sentence imposed for count 1.
An amount of iodine was found in an inactive clandestine laboratory in a bedroom of the house, reflected by the possess precursor offence also taken into account in the sentence for count 1 on the indictment. Some 971.6 grams of ephedrine was also located, this being the basis of the offence charged by count 1.
A substantial amount of equipment and other items associated with the manufacturing process was found throughout the property. The clandestine laboratory set up in the Wakeley house was capable of manufacturing methylamphetamine, the three necessary precursors - ephedrine, iodine, and hypophosphorous acid - all being present. The amounts of ephedrine and hypophosphorous acid present were sufficient, if combined with a similar amount of iodine, to manufacture a large commercial quantity of methylamphetamine. The amount of iodine on the premises limited the capacity of the laboratory to the small quantum specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985.
The applicant's criminal history was before the sentencing court. It showed that the applicant had first breached the criminal law as a child, being dealt with for an offence of violent disorder in April 1998. Thereafter, he has convictions recorded against him for offences including resisting police (2 counts) from 1999; entering a vehicle without consent in 2000; larceny in 2002; 2 counts of possessing a prohibited drug from 2006; another such offence from 2007; driving whilst disqualified from 2008; damaging property from 2013; resisting police and intimidation of a police officer from 2014; robbery in company in 2015; driving under the influence of drugs in 2018; another such offence together with goods in custody, 2 counts of resisting police, and 2 counts of possessing a prohibited drug in 2019; and driving whilst disqualified, assaulting a police officer, and another count of resisting police, in 2020.
A custodial history from Corrective Services NSW showed that the applicant committed five institutional offences after entering custody on remand having been charged with respect to these matters, the most serious of which was failing a drug test.
A Sentencing Assessment Report ("SAR") was before the court. The author noted that the applicant's marriage had broken down whilst he was in custody, although he maintained contact with his two children, who were aged 17 and 18 years respectively. After being released to bail in September 2021 the applicant went to live with family, whose support he maintained.
The applicant had been unemployed prior to the commission of these offences, but obtained some part-time work as a cement renderer after entering bail. Noting that the applicant had an extensive history of drug related convictions the author of the SAR recorded Mr Salama's attitudes to the offending, which appeared to traverse his pleas. He denied being involved in the manufacture of drugs, accepting responsibility only for the items found in his bedroom. He claimed to have been in the wrong place at the wrong time, minimised his involvement in the offences, and stated he had pleaded guilty only "so the matter could be resolved". He conceded use of heroin and methamphetamine up until his arrest but asserted that he paid for his drug habit from Centrelink benefits. He claimed to have been abstinent since arrest.
The author of the SAR concluded that the applicant had no insight into the consequences for the community of his offending behaviour. He was assessed as posing a "medium-low risk" of reoffending.

The Applicant's Case

The applicant did not give evidence before the court. In an affidavit sworn by him on 30 May 2022 he said he had worked as a cement renderer since September 2021, and had enrolled in a Wellness Group operated by Lifeline, attending four sessions via video-link between February and April 2022. The Group addressed, in part, drug addiction, and the applicant said he realised that he needed to tackle his drug use.
He relied upon a report of 9 May 2021 that had been prepared for the purposes of use on sentence by Ms Susan Hawil, a psychologist. Ms Hawil interviewed the applicant via a telemedicine software platform similar to a video conference, over a period of about 2 hours. She administered psychometric tests to him, and had access to the statement of agreed facts and the applicant's criminal history.
The applicant told Ms Hawil that he was born in Australia, of Egyptian heritage. His family operated small businesses until, when he was about 10 years old, the businesses collapsed into insolvency. His family moved to Mt Druitt. His father began to drink alcohol to excess, and the applicant said that he witnessed and was subject to domestic violence until his parents separated, when the applicant was 13 years old. He had limited contact with his father for a few years after that. The applicant was educated until Year 12, although his education was disrupted by truancy and poor behaviour after his parents separated.
When the applicant was 19 he left home to live with his now ex-wife, with whom he has two teenage children. He initially worked as a foreman in a construction company, before establishing his own business in 2001. The applicant said that he operated the business until 2015, losing both it and his marriage when he went into custody in that year. He attributed the blame for the breakdown of his marriage to disloyalty on the part of his ex-wife.
The applicant gave a history of extensive drug use, beginning with cannabis at age 12 and progressing to heroin at 17 years of age. With some brief periods of abstinence or opioid replacement therapy from time to time the applicant said that his heroin habit increased steadily and he was using fairly heavily until his arrest for these matters.
Ms Hawil suggested that the applicant "met the criteria" under the Diagnostic and Statistical Manual 5th edition for a severe opioid use disorder.
Of the commission of the offences before the sentencing court the applicant said that he had been using heroin in the days leading up to the search on his home. He blamed his co-offender for the drug and manufacturing paraphernalia found by police on the property and suggested that, had he not been using drugs, he would have "opened [his] eyes and got out of there".
Ms Hawil administered psychometric testing to the applicant. The results of an "Impression Management Subscale" suggested that the applicant's responses to the tests were likely affected by his desire to give "socially desirable" answers, and present himself in a more positive light than may be warranted. Other results pointed to difficulties in "self-report evaluation". Despite those features Ms Hawil noted that the applicant's responses pointed to a marked potential for depression, anxiety, tension and worry; problems with impulsivity, recklessness, and a disregard for authority; and for feelings of alienation from others. Depression and anxiety scales gave elevated results, although this was thought to be connected with the applicant's legal position.
Ms Hawil's conclusion was that the applicant's history of adverse life events had had an impact on his emotional well-being, whist his drug use had left him with an opioid use disorder.
The applicant additionally tendered a reference from his employer who described him as reliable and trustworthy.

The Remarks on Sentence

In giving his remarks and imposing sentence, the sentencing judge was obliged to deal with the cases for each of the three co-offenders in turn. Having set out the charges faced by each man, his Honour turned to the facts of the offences, commencing with the case relating to Sachhoy. The facts against Mr Sachhoy relied in part upon listening device product that captured intercepted conversations between him and the applicant. Referring to that material, the sentencing judge said: "Sachhoy communicated with Salama on most days. He regularly directed him to carry out certain tasks related to activities in the premises. This included also instructions as to the supply of drugs; warning against any police surveillance; receiving cash proceeds from Sachhoy's drug supplies and banking them into Sachhoy's accounts. In addition to these activities Salama maintained his own customer base of persons, regularly requesting drugs from Sachhoy. I note that this would indicate only that Salama is not able to rely upon any inference such as might otherwise suggest that his activities were isolated to those before the Court."
His Honour observed: "The nature of intercepted communications indicated that all three offenders had an intimate knowledge of manufacturing related offending to which they were subsequently charged in various terms. […] In the case of Salama, his knowledge, including as reflected in his conversation with Sachhoy and supervision of Tabone's activities, supports the element of possessing precursors for the related manufacture of methylamphetamine."
The content of further conversations between the applicant and Sachhoy - in evidence against the latter but not the former - were referred to in his Honour's remarks concerning Sachhoy.
On turning to the facts against the applicant, his Honour noted that: "The facts as agreed in the case against Salama established that he was one of the three persons charged living at 93 Bulls Road, Wakeley. Having regard to aspects of his communications with Sachhoy in particular, as from the evening of 28 July 2020, I find his participation in the offending related to substances he possessed for the purposes of an existing manufacturing enterprise, that he was, as advised by Sachhoy, to advance that enterprise, including by supervising the activities of Tabone. This was in particular to ensure, as directed by Sachhoy, that Tabone completed the tasks of physical manufacture that had been given to him."
The three subjective cases were outlined by the sentencing judge. With respect to the applicant, his Honour set out in detail those matters summarised above, noting - favourably to the applicant - that his apparent denials to the author of the SAR of involvement in the offences did not constitute a traversal of his pleas but, rather, rested in an awareness of the difference between manufacturing a drug and possessing a precursor for use in the manufacturing of a drug. The sentencing judge found that the applicant had "some insight as to the self-destructive aspects of his addiction". He said, "The offender stated that the present offending had been, on his account, whilst under the influence of illicit substances. The use of illicit substances, and I accept it more probable than not, that he was drug-dependent and does provide some explanation as distinguishes him from other kinds of drug offenders. It is, however, not mitigating. I also do not find there is an indictor, particularly in the extensive evidence of his communications with Sachhoy, any diminution of his cognitive functioning when he had been involved in quite deliberative and complex aspects of the offending."
His Honour concluded that "Salama's offending is somewhat below that of Sachhoy in totality", although above that of Tabone. As to the comparative roles of the three offenders the sentencing judge observed: "I should say Salama is to be sentenced for offences that, although serious, carry a lesser level of inherent seriousness indicated in their maximum penalties. Otherwise, his conduct, arising from his interactions with Sachhoy was that of a lieutenant and an assistant above the activities of Tabone, whom both Sachhoy and Salama, on Sachhoy's behalf, somewhat contemptuously directed and supervised in his labours."
His Honour concluded: "In Salama's case there are two indictment counts, each having a maximum penalty of ten years imprisonment. They relate to the possession of very significant quantities of two essential precursor chemicals that he intended to be employed in the manufacture of methylamphetamine. On the basis of the evidence indicated in the Agreed Statement of Facts referrable to him I find that his offending was not isolated to the date of his arrest and form part of an ongoing criminal relationship with Sachhoy and Tabone that was only curtailed by his arrest. […] Salama's criminality as reflected in the quantities of precursors, his level of commitment to the purpose of manufacture as reflected in the conversations with Sachhoy, and the potential for harm that may arise from their endeavours is however to be proportionately reflected".
The offending was said to fall "towards the area of the mid-range" in terms of objective gravity. The late plea of guilty was recognised by a discount on sentence of 10%, whilst the applicant's criminal history disentitled him to any leniency. His Honour noted that the applicant's drug addiction was his principal criminal driver, and the drug addiction was linked to early hardship. Sentence was moderated because of that and the applicant's "compromised mental health".

Ground 1(a): Error in taking into account material not properly before the sentencing court and, consequently, making factual findings not available on the evidence

As noted above, it can be accepted that there was error by the sentencing judge in having regard in sentencing the applicant to factual matters that were not in evidence in the case against him. To some extent, this came about because of the way in which the Crown presented its case against the three co-offenders. Rather than proceeding - as is generally desirable - on the basis of a joint statement of facts that set out the facts of the offending as a whole, noting the charges and evidence relevant to each offender, the Crown produced three separate and materially different statements of agreed facts.
In the 6 page statement of facts referable to the applicant the offending conduct was confined to the events of 31 July 2020. Those events included reference to a single intercepted conversation between the applicant and Sachhoy, set out at [7] above, in which Sachhoy castigated the applicant for failing to watch "matey". That conversation was a sufficient basis for his Honour to conclude, inferentially, that the applicant was subordinate to Sachhoy, but played a supervisory role to Tabone who, despite being the "cook", was at the bottom of the hierarchy of the three co-offenders. It was also a sufficient basis for a conclusion, by inference, that for the applicant to supervise Tabone in the manufacturing proces, he must have understood the process being engaged. It did not, however, provide a basis for his Honour to conclude that the applicant's direct involvement was "not isolated to the date of his arrest", but extended beyond 31 July 2020 to form "an ongoing criminal relationship with Sachhoy and Tabone that was curtailed only by his arrest".
To reach that conclusion, the sentencing judge must have taken into account information before the court in the much more detailed 18 page statement of agreed facts tendered by the Crown against Sachhoy. That statement of facts, admissible only against Sachhoy, incorporated the detail of conversations between him and the applicant that related to the manufacture of drugs and which were noted to have taken place on "most days". The conversations were much more revealing about the applicant's involvement in the manufacturing process than the short discussion concerning watching matey of 31 July 2020 that was in evidence against him. These multiple conversations evidenced criminal activity and a criminal association that went well beyond that day.
It is not clear why the Crown chose to adduce against Sachhoy alone evidence of the multiple conversations between him and the applicant concerning the manufacture of drugs; it must be assumed that there was some reason for that decision that cannot be known to this Court. Notably, none of the parties to the sentence proceedings raised any complaint concerning the formulation of the Crown cases and there was no issue raised as to unfairness or abuse of process prior to the entry of the pleas. An intermediate appellate court has no power in those circumstances to go behind the decision of the prosecuting authority and inquire into matters within the prosecutorial discretion: Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31, at [35].
However, the difference in the case presented against Sachhoy and that presented against the applicant had the appearance of, at the very least, considerable artificiality. It put the sentencing court in the difficult position of having to sentence Sachhoy on one basis and the applicant on quite a different basis, ignoring other information that was known to the court, and which highlighted the apparent artificiality of the facts advanced against the applicant. Ultimately, the way in which the two cases were presented by the Crown was productive of error.
The sentencing judge was obliged to take three distinct and, in some instances, materially different statements of facts, and consolidate them into a coherent narrative for the purpose of delivering joint oral reasons for the sentences imposed upon the co-offenders. In determining those sentences his Honour was permitted to take into account only those factual matters advanced with respect to the individual offender. The difficulty of entirely quarantining one from the other is revealed in his Honour's failure, despite well understanding it, to meet that requirement.
Acknowledging the difficulty, it was not open to the sentencing judge to take into account evidence tendered against Sachhoy when considering the case against the applicant. To the extent that his Honour referred to the conversations between Sachhoy and the applicant in the plural, and to the applicant's criminal conduct as extending beyond 31 July 2020, there was error, and ground 1(a) is established.

Ground 1(b): Error in finding that the applicant's objective offending was "more towards the area of the mid-range".

Accepting that his Honour referred in some of his conclusions to evidence not tendered against the applicant, and thus that error has been established, it is not strictly necessary to consider the remaining grounds advanced on appeal, since this Court must proceed to re-sentence unless, having independently exercised the sentencing discretion, it determines that no lesser sentence is warranted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, at [35].
Since resolution of the question of error raised by the proposed ground 1(b) could have some bearing on that process, it is convenient to address it, before turning to considerations relevant to re-sentencing.
The applicant complains that, in concluding that the objective gravity of the offence fell "more towards the mid-range" the sentencing judge must have impermissibly taken into account factual matters derived from the case against Sachhoy, as the assessment made by the court wrongly elevated the gravity of the offences.
To the extent that the sentencing judge had regard to evidence not tendered against the applicant in reaching his conclusion concerning the gravity of the crimes, there was error. Despite that, the conclusion itself, with all of the imprecision that inheres to the language of range, was one that was open in my opinion.
The point as to the indefinite nature of adjectives denoting a position on a notional range of objective gravity to describe the seriousness of an offence has been made repeatedly by this Court, with a summary of relevant authorities found at JG v R [2023] NSWCCA 33 at [99] - [102]. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Basten JA observed (at [82]) that, "[…] although it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as "near the top of the low range") there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range".
Basten JA made the same point in Martellotta v R [2021] NSWCCA 168 at [65] - [66]. Other decisions that refer to the imprecision of the language of range, and its negligible utility in aiding transparency in sentencing or consideration of error are McDowall v R [2019] NSWCCA 29 at [35] - [37]; Higgins v R [2020] NSWCCA 169 at [78]; Thorp v R [2022] NSWCCA 180 at [86]; and Decision Restricted [2023] NSWCCA 10, at [50] - [52].
In this instance the description of the gravity of the applicant's crimes as "more towards the mid-range" conveys only that his Honour considered the offences to fall at some point above the low range of gravity, but below the mid-range. Greater exactitude than that is not possible. Bearing in mind the imprecise nature of the categorisation of objective gravity utilised, I am unable to conclude that his Honour's assessment was not open to the court.
What is more important than the question of place on a scale in determining if there has been error in the assessment of the gravity of an offence are the features considered in undertaking that assessment. In the applicant's case two features that materially contributed to his Honour's conclusion was the applicant's place in the hierarchy of offenders and his role in the commission of the offences. The sentencing judge found that the applicant was senior to Tabone, in that he was responsible for supervising Tabone as he undertook activities connected with the presence of precursors on the premises, and that the applicant necessarily understood the activities he was supervising.
The facts against the applicant referred to "the trio", being Sachhoy, Salama, and Tabone, as residents at the Wakeley property where the precursors were found. The next sentences read: "The trio regularly communicated. Sachhoy had conversations with his associates related to [the] manufacture of drugs, cutting agents, and the involvement of Tabone in manufacture".
Although the applicant contended before this Court that "associates" was a reference to persons other than he and Tabone, that is to ignore the clear meaning of the text. It also argues for a construction that would render the disputed sentence irrelevant, and inadmissible. The point was not taken before the District Court, probably because those involved in settling the statement of facts as "agreed" between the applicant and the Crown understood that the term "associates" was a reference to the applicant and Tabone. On the basis of that passage, it was open to the sentencing judge to conclude that the applicant was no mere novice unwillingly caught up on the fringes of the criminal activity of others, but rather, that he was a knowledgeable participant in the crimes to which he had entered pleas of guilty. On the basis of the next passage in the agreed facts, which gives the detail of an exchange between Sachhoy and the applicant concerning the latter's "job" in watching Tabone as he "did it", it was open to the sentencing judge, in the context of the whole, to conclude that the applicant held a supervisory role, senior to that of Tabone, for which knowledge of the process of drug production was necessary.
Those features, taken together with the quantity of precursors in the applicant's possession for the purposes of manufacturing prohibited drugs, the fact that the applicant had possession of the three pre-cursors necessary to the process, together with the presence of a quantity of items connected with the manufacturing process in his bedroom, point to a level of gravity that his Honour elsewhere described as "of considerable objective seriousness". That conclusion was well open on the evidence.

The Re-exercise of the Sentencing Process

No additional evidence was filed relevant to re-sentence.
On the basis of the evidence that was before the District Court relevant to the applicant, the aggregate sentence that I would impose is not one which is less than that imposed at first instance. The sentence must comprehend the applicant's grave criminality in having possession of three precursor chemicals intended for use in the manufacture of prohibited drugs, in premises which were equipped to carry out that process. It must also take into account two counts of supplying a prohibited drug, where the applicant had in his bedroom items typical of supply, such as digital scales and small resealable plastic bags. Whilst the supply offences and one of the precursor offences were placed on Form 1 documents, to be dealt with pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in this instance the increase to the sentence indicated for count 1 should not be small. The offences on the Form 1 represent heightened criminality and signify a greater need for a sentence of personal deterrence and retribution. The offences to be taken into account in the sentence imposed for count 2 are less serious, some modest increase to the penalty is required.
The applicant's subjective case is limited. His criminal history is such as to deny him the leniency that might otherwise be extended to him. It also indicates a need for a sentence in which specific deterrence figures strongly. Whilst Mr Salama took some steps after being admitted to bail to seek help with his drug use and has expressed some understanding of the negative role that drug use has played in his life, he must be regarded as having very little insight into his crimes, particularly given his attempts to minimise his offending conduct when speaking to the author of the SAR.
His prospects for the future are difficult to predict but, given his lack of insight and his criminal history, it is difficult to be other than guarded in their assessment.
A term of 4 years imprisonment with a NPP of 2 years and 4 months is a lesser term than I would impose on re-sentence.

Proposed Orders:

For those reasons the orders I propose are: 1. Leave to appeal is granted; 2. The appeal is dismissed.
FAGAN J: I agree with Wilson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (11)

Cited By (3)