Sleiman v R

Court of Criminal Appeal (NSW)|2012-04-11|Before: McClellan CJ, Davies J, Garling J, Charteris J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: I agree with Garling J. 2DAVIES J: I agree with Garling J. 3GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court by his Honour Justice Charteris on 14 April 2011. 4The applicant, Mr Omar Sleiman, pleaded guilty before Charteris DCJ to one offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. 5The offence related to the fact that on 23 June 2010 at Granville, Mr Sleiman knowingly took part in the supply of a prohibited drug, namely, 21.8 grams of methylamphetamine. 6The maximum penalty for the offence is 15 years imprisonment and/or a $220,000 fine. No standard non-parole period applies. 7As well as the offence to which he pleaded guilty, the applicant asked Charteris DCJ to take into account 11 further offences which were placed upon a List of Additional Charges (Form 1) pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. 8The sentencing judge imposed an overall sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years commencing on 23 June 2010, which was the date upon which the applicant was arrested and bail was refused.

Facts 9The Statement of Agreed Facts was tendered to the sentencing judge. A brief summary of these facts is set out below. 10At about lunchtime on 23 June 2010, the police whilst patrolling at the Vauxhall Inn Hotel, came across the applicant in the gaming area. With due cause, the applicant was searched. Concealed about the applicant's clothing were 20 small resealable plastic bags containing methylamphetamine. 11A shoulder bag that the applicant was carrying was found to contain 4.8 grams of cannabis in 5 resealable bags, 10 bags of methylamphetamine and $1,290 in a cash bundle. 12A search of the applicant's motor vehicle parked at the hotel revealed a sum of $5,000 in $50 notes. 13The total of the methylamphetamine in all of the recovered bags was 21.8 grams. The total of the cash was $6,290. 14A search was undertaken pursuant to a warrant at the applicant's premises at Auburn. That search of his bedroom found 7 different sorts of illegal drugs. This led to a number of the charges on the Form 1. As well, the police found a box of ammunition for which the applicant did not have a permit and some goods, which the police reasonably believed were stolen. These goods included Myer Gift Cards, two laptop computers and a NSW driver's licence in the name of another person. These goods and the ammunition also formed the subject of charges put on the Form 1. As well, the police recovered a set of digital scales. 15The accused was arrested on 23 June 2010, and then charged later that day with knowingly taking part in the supply of a prohibited drug. 16He pleaded guilty to that offence on 28 October 2010 in the Local Court.

Applicant's Submissions on Sentence 17The applicant agreed with the facts to which I have made reference. On sentence he gave evidence himself and relied upon the contents of a report from a clinical psychologist, Ms De Santa Brigida. As well, submissions were made on his behalf by his counsel. 18The applicant in his evidence accepted that he had come from a close family, that he had abused illicit drugs for a lengthy period and that although he had tried to reform his ways, he had not done so effectively. He admitted that he had continued to use drugs whilst in jail and that although he had intentions of changing his life to avoid the use of drugs, he accepted that he had not yet done so. 19The report from Ms De Santa Brigida noted a long history of illicit substance abuse and dependency starting at the age of 18. By the time he came to be sentenced, the applicant was 35 years old. His history of illicit substance abuse covered the use of cannabis, ecstasy, cocaine and crystal methamphetamine (ice). The applicant had no history of childhood disorders and no history of psychological or psychiatric problems. 20He gave a history to the psychologist, which he repeated in evidence, that in 2002 his younger brother, Mahmoud had disappeared and was presumed to have been murdered. This event precipitated an increase in his drug use. It also apparently caused him to become depressed and he used this state of depression as a reason for increasing his drug use. 21It was apparent from the psychologist's report that the applicant came from a stable family background. He was one of four children, being the second youngest. He had been schooled to Year 10 and then completed a three year apprenticeship in panel beating. He terminated that apprenticeship due to asthma. 22Around 1995 the applicant took out a mobile telephone store franchise and operated his business first from Chatswood, and then after a period of five years, at Penrith. He closed his business following the disappearance of his younger brother. 23Ms De Santa Brigida concluded: "In summary, Mr Sleiman has an extensive history of substance abuse and dependence ... he meets the criteria for Cannabis, Cocaine, Hallucinogen, Amphetamine and Opioid Dependence. He also meets the criteria for Cocaine and Amphetamine Induced Psychotic Disorder. As stated, Mr Sleiman already had a history of substance abuse and dependence prior to his brother's disappearance in 2002. Despite this, he was able to operate a successful phone franchise up until his Brother's disappearance. However, the onset of Depression, bereavement and a trauma response following his brother's disappearance has seen him close the business. I note that in response to his Brother's disappearance, Mr Sleiman's use of illicit substances has escalated dramatically. In my opinion, it is not possible to address Mr Sleiman's substance abuse and dependency without first addressing his trauma and unresolved bereavement problems." 24During submissions on sentence, Mr Peluso, who appeared for the applicant, conceded that there were certain features of, and surrounding, the applicant's conduct which aggravated it. He accepted that these features ought to be taken into account by the sentencing Judge. 25He conceded that the applicant's conduct was part of an organised criminal enterprise. He conceded that the applicant's conduct occurred at a time when he was on bail "...to an offence of custody of knife and a further offence of carrying an offensive weapon." 26He also conceded that the offences listed on the Form 1 were matters which the sentencing Judge was entitled to take into account on aggravation of the penalty which he was to impose, having regard to the number of those offences and their nature. 27Mr Peluso also accepted that the criminal history of his client was a factor that the Court was entitled to take into account in forming a view as to his likely prospects of rehabilitation. 28By way of mitigation, Mr Peluso submitted that the Court would find, and the Crown agreed, that the plea of guilty had been entered at the earliest available opportunity. 29As well, the applicant had undertaken to give evidence in a trial against two accused who were charged with murder. The applicant had volunteered a statement and had volunteered to give evidence. The Crown agreed with the applicant's counsel that: "... there is obviously a great benefit to the community, to police from people who provide assistance of this nature, especially in a matter such as the one that he did."

Subjective Features 30The applicant was born on 4 December 1975 and was aged 34 years at the time of the offence. 31He has a long history of previous offences and convictions commencing in 1994 when he was 19 years old. His record included minor stealing and motor vehicle offences, a robbery in 1996 for which he received a sentence of imprisonment of 18 months to be served by way of periodic detention, an offence of supplying a prohibited drug for which he was sentenced in 2000 to a period of imprisonment consisting of a non-parole period of 9 months and a 15 months balance of term. In August 2007, for a further offence of supplying a prohibited drug, he was sentenced to imprisonment for 7 months with an additional period of 9 months. 32As well, there were some other offences for being in possession of a prohibited drug. 33When giving evidence on sentence, the applicant said that he had resolved to reform because he had a 10 year old son for whose upbringing he was responsible and that he wished to rectify his past misdeeds.

Remarks on Sentencing 34The sentencing Judge found that the applicant's criminal behaviour was very serious. With respect to the criminality of the offence, the trial judge was satisfied that the applicant was "... clearly occupying the role of a drug dealer ". This seems to have been based upon the following facts to which the sentencing Judge referred: "... he had illicit drugs on him, and in the car nearby; he had illicit drugs revealed in the search of his residence. He had all the paraphernalia one would associate with a drug dealer." 35The sentencing Judge accepted that the purpose of the applicant's dealing in drugs was to satisfy his own need for the taking of illicit drugs. 36When dealing with the applicant's past criminal history, the sentencing judge found that the applicant had three previous offences in relation to serious drug matters. He noted that he had been convicted of supplying a prohibited drug in 2000, 2006 and 2007. 37He also noted that at the time of the offences for which the applicant was being sentenced, he was on bail as a consequence of having been arrested on 28 January 2010 on charges that he had custody of an offensive instrument in a public place and, as well, custody of a knife in a public place. 38The sentencing Judge observed that the fact that the applicant was on conditional liberty "... must aggravate the penalty that I impose". 39As I have earlier noted, the sentencing Judge did not find the applicant's criminal history to be an aggravating matter, but simply that it did not entitle him to leniency. 40The sentencing Judge noted, having taken account of the applicant's age, that the applicant had not responded to earlier attempts at rehabilitation and that he did not seem to have been deterred from undertaking drug supply by periods of imprisonment in the past. 41His Honour allowed a discount of 25 per cent for the utilitarian value of the applicant's plea of guilty. In addition to that discount, the sentencing judge allowed a further discount of 15 per cent to reflect the applicant's cooperation with the authorities. 42He found that special circumstances were established and accordingly, that the non-parole period should be less than 75 per cent of the total sentence.

Grounds of Appeal 43Four grounds of appeal were relied upon by the applicant: (1)His Honour erred in finding that the applicant had been sentenced to three previous serious (supply) drug matters. (2)His Honour erred with respect to his factual findings with respect to the objective criminality of the offence. (3)Manifest excess. (4)His Honour erred when he held that the applicant was on bail when he committed the subject offence.

Ground 1 - Erroneous Criminal History 44This ground complains of an error in the sentencing Judge's finding that the applicant's past criminal history included three separate instances of serious (supply) drug matters. 45It is clear that the sentencing Judge erroneously reached the conclusion that there had been three previous drug supply offences on the applicant's record. 46It is accepted by the Crown that this conclusion was erroneous because the offence of supply to which his Honour referred as having been the subject of a sentence on 18 December 2006, was in fact the same offence for which he was re-sentenced on 17 August 2007. These were not two separate occasions of supply, but were rather two sentences, the first by the Drug Court and the second when the applicant was removed from the Drug Court's program. 47The sentencing Judge relied upon the finding of three previous serious (supply) drug matters in two ways. The first of those was when he concluded that the applicant's past criminal history did not entitle the applicant to leniency. I note that his Honour did not find that the past criminal history was an aggravating matter. 48It seems to me that whether the applicant had been guilty of two past serious drug supply matters or three, is of no significant weight in the determination of the sentencing Judge when he found that the applicant's past record did not entitle him to leniency. That conclusion was the correct conclusion whether the applicant had either two or three previous serious drug supply matters. 49The second way in which the sentencing Judge used his conclusion that there were three previous convictions was in two comments to be found in the Remarks on Sentence. The first was when his Honour said: "It is regrettable that his record shows that he has been before this Court on other occasions for supply of illicit drugs ... He does not seem to have been deterred by periods of imprisonment given for drug supply on the previous occasions." The sentencing Judge further said: "I must punish the offender ... I must protect our community from him, I must personally deter him from behaving in this way in the future ... It is apparent that the offender has not 'got the message' so to speak, from earlier punishments imposed upon him. I am satisfied that I must give weight to the need for personal deterrence." 50The use by the sentencing Judge of the applicant's past criminal history, in these circumstances, is to form the conclusion that weight must be given to the need for personal deterrence. 51This obviously correct conclusion, having regard to the totality of the applicant's previous criminal history, and the admissions which he made as to his ongoing drug taking whilst in custody, would be the same whether the applicant had two or three instances separately, of convictions for the supplying of drugs. 52While I accept that the trial judge has made the error to which the appellant has drawn attention by this ground, I am not satisfied that the error has led to any erroneous conclusion. In other words, the conclusions which the sentencing Judge has reached were properly founded on all of the evidence which was correctly before the Court. Such error as the trial Judge has made, is entirely inconsequential. 53I would not be disposed to allow the appeal on this Ground.

Ground 2 - Objective Criminality of the Offence 54The trial Judge concluded that the criminality involved was serious and that the applicant was clearly occupying the role of a drug dealer. This was a conclusion which was properly open to him on the facts. Four matters of fact supported the conclusion: (a)the quantity of drugs found in the applicant's possession; (b)a large number of empty resealable bags found in his possession; (c)a set of electronic scales capable of being used for the weighing of drugs found in his home; and (d)the money found in his possession. 55It is submitted that in support of the conclusion that the applicant was occupying the role of a drug dealer, the trial Judge referred, erroneously, to the fact that the applicant had an "array" of drugs, and that illicit drugs were found in the applicant's motor vehicle and in the search of his residence. 56The applicant submits that these additional findings suggest that the sentencing Judge regarded the seriousness of the applicant's conduct as much more than that which he was entitled to do because the applicant's only charge of supply was one dealing with methylamphetamine. The applicant submitted that he was not charged with supply of multiple types of drugs, nor was he charged with supply of any of the drugs found in his home. I note that there were no drugs found in his motor vehicle. Thus, the applicant submits, the sentencing Judge's remarks were ill founded. 57On the other hand, the evidence supported the trial Judge's conclusion that the applicant's possession of the methylamphetamine was spread amongst many separate bags, some of which were of different sizes and no doubt those bags would, in the ordinary use of the word "array" have been available to be arranged in a regular order, something which accords with the dictionary definition of "array". 58Whilst the applicant's submissions on this Ground point to some expressions in the Remarks on Sentence which may suggest some infelicity of language, I am not satisfied that the conclusions of the Judge were not open to him nor that they were incorrect. 59It seems clear that the conclusion reached by the trial Judge with respect to the seriousness of the offence, was expressed in a way which recognised that the applicant's involvement in the offence for which he was being sentenced, came about because of the need to feed his own chronic drug habit. 60I would not be prepared to uphold the appeal on this Ground.

Ground 4 - Error in Finding that the Applicant was on Conditional Liberty when Offence was Committed. 61It is convenient to consider this ground next. 62The applicant complains that the sentencing Judge erroneously concluded that he had committed the offence for which he was being sentenced whilst he was on bail for two earlier offences. This factual conclusion of the trial Judge arose because of what he was told by counsel for the Crown and the applicant who were then appearing before him. 63The exchange between counsel and the Bench was: "[Crown]: I should also at this stage note your Honour that the coversheet towards the bottom doesn't note that the offender was on bail at the time of the offence. He actually was on bail to an offence of custody of knife and a further offence of carrying offensive weapon. I think that's agreed by my friend. Peluso: That's so your Honour, agreed." 64Counsel for the Crown and for the applicant then went on to inform his Honour that the applicant had been dealt with by the Court in respect of those original offences. 65In this Court, both counsel for the applicant and counsel for the Crown agreed that what their predecessors told the sentencing Judge was erroneous, because although the applicant had been required to attend Court by means of a Court Attendance Notice, he was not on bail because bail was not required. 66In dealing with the fact that the applicant was said to have committed the subject offence whilst on bail, the sentencing Judge said this: "The offender was on bail in respect of those matters when he committed the subject offence. The fact that he was on conditional liberty must aggravate the penalty that I impose." (emphasis added) 67Whilst accepting that the sentencing Judge was led into error, the Crown nevertheless submits that this Court would not be satisfied that any lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. 68Nevertheless, having regard to the nature of the error, and its apparent impact on the sentence imposed by the trial judge, it will be necessary to consider what sentence ought to have been imposed in order to form the opinion required by s 6(3) of the Criminal Appeal Act.

Ground 3 - Manifest Excess 69The applicant submits that the sentence was, having regard to the relatively small quantity of drugs and cash involved, manifestly excessive. 70In light of the fact that the error identified in Ground 4 requires a fresh consideration of the appropriate sentence, there is no useful purpose to be served in considering this Ground separately.

An Appropriate Sentence 71The offence to which the applicant pleaded guilty involving the supply of a prohibited drug, namely, 21.8 grams of methylamphetamine, was a serious offence. It was part of a planned activity involving the applicant deliberately concealing in various parts of his clothing and in his shoulder bag, bags containing the drugs. He had a significant sum of cash that I would infer was the proceeds of drug dealing. In his home, a set of scales were found which was capable of, and I would infer, was used for the purpose of his drug dealing activities. 72The charges on the Form 1 were of themselves not major, but their number and their nature require that proper consideration be given to them in the course of imposing any sentence on the applicant. 73The sentencing Judge allowed a 40 per cent discount for the applicant's early plea of guilty and the provision of assistance to authorities. On the hearing of this application for leave to appeal, both the Crown and the applicant accepted that this was an appropriate discount. I agree. This discount will be taken into account in imposing any sentence. 74The applicant's subjective facts and circumstances are referred to earlier in the judgment. There is no doubt that he has had a lengthy period of drug addiction and abuse. Previous terms of imprisonment for two previous offences of supplying drugs have not succeeded in modifying the applicant's conduct. In other words, he has not been deterred by those periods of imprisonment from continuing to engage in the supply of drugs. 75I would conclude that, as did the sentencing Judge, and as both parties submitted to this Court, the applicant was supplying drugs in order to support his own drug habit. 76I have had regard to the opinions of Ms De Santa Brigida and the evidence that the applicant gave to the sentencing Judge. 77As well, the applicant relied upon the contents of an affidavit sworn 13 March 2012. In that affidavit the applicant affirms that he has abstained from alcohol and drugs for the past eight months and asserts that he has not had any positive urine test result since he was sentenced by Charteris DCJ. 78Since being in custody, the applicant has attempted to engage in the Smart Program which is a program targeting substance abuse, but has not as yet successfully engaged with that program because presently no vacancy is available. He has completed the Managing Emotions course, which targets emotional regulation, and he is on the waiting list for further programs. Since being in custody, either at Nowra or Wellington, he has had ongoing employment. 79He says that when released from custody he intends to remain abstinent from illicit drugs and is willing to engage in counselling and obtain help from other community programs to support that intention. 80The sentence which I propose involves a ratio which differs from that fixed by statute: s 44 Crimes (Sentencing Procedure) Act. Accordingly, unless special circumstances are identified, such a sentence cannot be imposed. 81Here, as noted in [42], the sentencing judge found that special circumstances existed at the time that he passed sentence. No party in the Court submitted that this finding was in error. 82I am also satisfied for the same reasons as those articulated by the sentencing judge, that special circumstances have been established, which means that the statutory ratio will be varied to take account of those circumstances. 83The imposition of a sentence is necessarily an individual process which requires emphasis to be given to principles which do not always point in the same direction. 84Having regard to the objective seriousness of the offence, the applicant's past criminal history, his subjective features and such progress as he has made whilst in custody, in my view a term of imprisonment of 2 years and 6 months non-parole with a balance of term of 1 year and 3 months would be appropriate.

Orders 85I propose the following orders: (1)Grant leave to appeal. (2)Quash the sentence imposed by Charteris DCJ on 14 April 2011. (3)In lieu thereof, sentence the applicant to a term of imprisonment without parole of 2 years and 6 months to commence on 23 June 2010 and to conclude on 22 December 2012. (4)Sentence the applicant to a balance of term of 1 year and 3 months to conclude on 22 March 2014. I note that the first day upon which the applicant will be eligible for release from custody is 23 December 2012.

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: 11 April 2012

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