Tamer v R

Court of Criminal Appeal (NSW)|2020-12-01|Before: Brereton JA, Bellew J, Campbell J

Judgment

BRERETON JA: I agree with Bellew J.
BELLEW J: Ayman Tamer (the applicant) pleaded guilty to an indictment presented against him in the District Court in the following terms: [1] Between 3 December 2016 and 23 February 2017, in Parramatta and Bankstown in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity for that drug.
That offending is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of life imprisonment. A standard non-parole period of 15 years' imprisonment is prescribed.
The applicant also asked the sentencing judge to take into account the following additional matters on a Form 1: 1. supplying a prohibited drug greater than the indictable quantity, namely 27.8g of methamphetamine; 2. supplying a prohibited drug greater than the indictable quantity, namely 140.8g of methylamphetamine; 3. knowingly directing the activities of a criminal group; 4. supplying a prohibited drug greater than the small quantity but less than the indictable quantity, namely 398.3g of cannabis leaf; and 5. dealing with the proceeds of crime in a sum less than $100,000.00.

THE FACTS OF THE OFFENDING

On 29 November 2016 police commenced the lawful interception of a telephone used by the applicant, from it which became clear that he was in regular contact with a co-offender, Somphop Khetkan (Khetkan) to whom (along with other persons) he was supplying methylamphetamine. [2]
The applicant's modus operandi [3] was that a prospective drug purchaser would contact him via a telephone call or text message in the course of which the amount of the drug to be supplied (referred to in code), and the price, would be discussed. The purchaser would then attend a location nominated by the applicant where the supply would take place. There were some occasions on which the applicant attended a purchaser's residence to conduct the transaction. The applicant charged between $3,100.00 and $3,800.00 per ounce of methylamphetamine.
The applicant's offending encompassed 22 separate occasions between 3 December 2016 and 23 February 2017 on which he supplied quantities of methylamphetamine totalling 1,060g. [4] The total financial benefit from the sale of the methylamphetamine during the period was approximately $137,000.00. [5]
The majority of matters on the Form 1 were of a generally similar nature, and involved the applicant's supply of prohibited drugs to Khetkan as well as to an undercover operative. [6]
When the applicant was arrested he made partial admissions in an electronically recorded interview but did not reveal the entirety of the nature and extent of his drug supply activities. [7] He significantly understated the occasions on which he had supplied methylamphetamine and told police that he did not make any money from those activities. [8]

Ground 1 - His Honour erred in proceeding upon the basis of wrong findings of facts in assessing the objective seriousness of the offending.

The evidence on sentence

The applicant was born on 1 November 1995. [9] He was therefore 21 years of age at the time of the offending, and 24 years of age at the time of sentence.
On 15 April 2016 the applicant appeared before the Bankstown Local Court in respect of a charge of driving whilst disqualified. He was released on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act (1999) (NSW) (the Sentencing Act) for a period of 18 months. The offending to which the applicant pleaded guilty before the District Court was therefore committed within the period of that bond. [10]

The reasons of the sentencing judge

In sentencing the applicant, his Honour said the following: [11] In the course of sentencing proceedings it was noted that [the applicant's] offending had been during the currency of a s 9 bond for driving whilst disqualified. That bond was imposed on the Local Court and entered on 28 October 2015 for a term of 18 months. To the extent of the overlap with the offending now before the Court, that represents an aggravating circumstance attaching to the offending.
Subsequently, his Honour said: [12] [The applicant] was significantly younger than Khetkan. He was aged 23 at the time of the matters now brought before the Court. At the time of the offending he was on bail in respect of a drug supply charge of which he was subsequently acquitted. Notwithstanding that, the offending whilst at conditional liberty is an aggravating circumstance. The offending now before the Court also involves a breach of a bond imposed on 15 April 2016 in the Local Court for a term of 18 months.

Submissions of the applicant

It was accepted on behalf of the applicant that he was subject to the s 9 bond at the time of this offending. However, counsel for the applicant pointed out that it was in fact Khetkan who was on bail at the time of his offending, and not the applicant. [13] It was submitted that in taking into account, as an aggravating circumstance, that the applicant was on bail at the time of his offending, his Honour had erred.
Counsel for the applicant further submitted that his Honour had erred in stating that the applicant was aged 23 at the time of the offending, when he was in fact aged 21.

Submissions of the Crown

The Crown accepted that the sentencing judge had erred in each of the respects relied upon by the applicant. However, the Crown submitted that the error in relation to the applicant's age was immaterial, and did not have the capacity to influence the exercise of the sentencing discretion. The Crown also pointed out that the conclusion of the sentencing judge that the applicant was subject to a bond at the time of his offending was clearly correct.
Nonetheless, the Crown accepted that in all of the circumstances it would be open to this Court to conclude that the erroneous finding that the applicant was on bail at the time of the offending had the capacity to influence the exercise of the sentencing judge's sentencing discretion.

Consideration

The issue raised by this ground is whether either of the identified errors had the capacity to influence the sentence which was imposed. [14] Whilst I have some doubt as to whether the error as to the applicant's age had that capacity, it is not necessary for me to express any final view in relation to that issue. The conclusion of the sentencing judge that the applicant was on bail at the time of the offending was clearly an error. That error not only had the capacity to influence the sentence, it did so. So much is clear from the fact that the sentencing judge took it into account as an aggravating factor. [15]
It follows that this ground has been made out, as a consequence of which it is necessary for this Court to re-sentence the applicant in the fresh exercise of the sentencing discretion. In these circumstances it is not necessary to consider the second ground of appeal, namely that the sentence imposed was manifestly excessive. To the extent that the parties made submissions in support of their respective positions on that ground, I have taken those submissions into account in re-sentencing the applicant.

The objective seriousness of the offending

The maximum penalty for this offending, and the prescribed standard non-parole period, represent important sentencing yardsticks. They are a reflection of the seriousness with which offending of this kind is viewed by the Parliament.
Put simply, the applicant was part of a planned and well-organised system of drug supply in which he played a pivotal role. Without the applicant performing that role, the system of supply could not have been put into effect. The consequence of the applicant's offending was that more than twice the large commercial quantity of methylamphetamine was released into the community over a significant period of time. The amount of money derived from the offending was also significant, although I accept that there is no evidence of how much of that money was retained by the applicant, as opposed to being passed on to others.
As against that, the supplies made, though repeated, were predominantly, if not exclusively, to a single purchaser. Although, when accumulated, they amount to more than twice the large commercial quantity, they are far from the very large quantities captured at the upper end of the scale of this offence. The applicant appears to have been an intermediary, towards the lower end of the supply chain. In all of those circumstances, the offending, while of considerable gravity, was below the mid-range for this offence when one has regard to the very much more serious offending that it also captures.
A report of Dr Richard Furst, Forensic Psychiatrist, was tendered before the sentencing judge without objection. The majority of information pertaining to the applicant's background is drawn from that report.
The applicant was 21 years of age at the time of his offending. He is now 25 years of age.
The applicant was educated to year 12. He commenced smoking cannabis at the age of 15 and reported to Dr Furst that he had developed a heavy drinking habit, and a cocaine habit, around the age of 18 to 19 which continued to the time of his offending. [16] As a consequence of his drug and alcohol abuse, the applicant did not work between the time he left school and the time of his arrest. [17]
The applicant told Dr Furst and that his addiction to drugs resulted in his leaving home prematurely and becoming estranged from family, following which he began to sell drugs to support his addiction. [18] The applicant also told Dr Furst that he progressively became involved with "more serious people" which led to his offending. [19] He told Dr Furst that he regretted his actions which he described as "ugly", and acknowledged that he had "harmed everyone" including himself. [20] The applicant described his incarceration as the "worst thing that had ever happened to [him]". [21]
Dr Furst was asked to specifically consider the issue of the applicant's vulnerability in light of his age and the people with whom he was associating at the time of the offending, and to assess any impact this would have had on the applicant's mental health. Dr Furst expressed the view that the applicant's drug addiction and social circumstances, including the estrangement from his family, were probably the main factors which contributed towards his ongoing drug use and related offending. [22] Notwithstanding the question that was asked of him, Dr Furst made no specific comment about the applicant's age, and expressed no view as to the existence of any causative link between the applicant's age and his offending.
Dr Furst did not diagnose the applicant as suffering from any specific mental disorder or mental illness at the time of the offending, other than his substance abuse disorder constituted by his addiction to cocaine and alcohol. [23] He expressed the view that the applicant regretted his actions, that he had taken responsibility for them, and that he was remorseful. [24]
Dr Furst assessed the applicant's risk of re-offending as moderate and considered that future treatment needs would include structured drug and alcohol counselling, and associated rehabilitation to address his addiction. [25] He described the applicant's expressions of commitment to engage in structured drug and alcohol counselling and rehabilitation as "encouraging", and expressed the view that the applicant had reasonable prospects of being successfully rehabilitated. [26]
A sentencing assessment report of Kay Menemenios, Community Corrections Officer, dated 18 June 2019 was also tendered before the sentencing judge. In addressing the applicant's attitudes, Ms Menemenios said: [27] On the surface, Mr Tamer acknowledged that drug supply had a negative impact on the lives of the users however, he failed to demonstrate any insight on what the impact was to these users and their families. Furthermore, Mr Tamer demonstrated a total disregard for the road rules, stating that he needed to drive to get to his destination. He failed to acknowledge how driving whilst disqualified could have had a negative impact on others, further claiming that he was very careful on the road.
In terms of the applicant's insight into the impact of his offending, Ms Menemenios said: [28] Mr Tamer described a superficial understanding of how his criminal activities impacted on the victims' lives, however he failed to make a connection of how his actions had a negative ripple effect on the wider community.
The applicant swore an affidavit which was read in the sentence proceedings without objection. [29] The Crown in the court below did not seek to cross-examine the applicant on its contents. A letter written by the applicant was also tendered to the sentencing judge without objection by the Crown. [30]
In his affidavit the applicant spoke about the difficulties he has experienced in custody. [31] He said that he had told the truth to Dr Furst and had done his best to accurately recall the chronology of events in his life when he spoke with him. [32]
The applicant took specific issue with the observation of Ms Menemenios that he had failed to make a connection between his actions and what she described as a "negative ripple effect on the wider community". [33] In this regard the applicant said: [34] I disagree with the comment that I failed to make a connection of how my actions had a negative ripple effect on the wider community. I was asked about what kind of ripple effect my actions may have had. I didn't know what ripple effect meant so I was not clear in my answer. I have now been explained [sic] what this means by my lawyer. I clearly remember telling a lady who assessed me that I knew what I did was wrong and how bad of an effect it had on the community. I also said these kinds of things to Dr Furst.
In his letter to the Court the applicant said (inter alia): [35] I thank you for taking the time to read my letter to express my remorse and the shame I feel for my actions. I have brought a huge amount of shame to myself and to my family. I accept I have been reckless and ignorant of the law. I did plea [sic] guilty as a sign of my remorse and opted to stay in jail and allow justice to take its course and I also accept the consequences for my actions and have asked my family and friends for forgiveness and I ask the courts also for-giveness [sic]. I have been in custody for 31 months. Being in custody has been very confronting to the consequences of my wrong doings it may have caused to the community and I am sincerely apologise [sic]. The shear [sic] fear of having to go thru [sic] this experience ever again is enough to ensure I never repeat my wrongs ever again. My family supporter has motivated me moreso [sic] to making my life more productive and focus [sic] on returning to my work upon my release. I have used my time in custody to reflect on my past and plan to be a productive, positive influence within my community once again upon my release.
The applicant's mother provided a testimonial [36] in which she expressed her ongoing support for the applicant, and her view that he had "learnt his lesson" and was not likely to commit the offence again. Testimonials from Rajeevan Gnanendra [37] and Sahar Dib [38] expressed confidence in the applicant's successful rehabilitation.
The applicant's criminal history dates back to 2014 when he was given the benefit of a Community Service Order for an offence of supplying a prohibited drug and dealing with property suspected to be the proceeds of crime. There are other counts of possessing a prohibited drug and numerous counts of driving whilst disqualified.

Consideration

Consistent with the concession made by the Crown before the sentencing judge, [39] I propose to apply a discount of 25% to reflect the utilitarian value of the applicant's plea of guilty.
I have made reference to the applicant's criminal history, which includes offences of a similar kind. Although that previous offending was far less serious, it remains the case that the applicant's criminal history disentitles him to leniency.
I am satisfied that the applicant is genuinely remorseful for his offending. His remorse is evident, not only from the fact of his plea but from his statements to Dr Furst, the contents of his affidavit and the contents of his accompanying letter. I accept that this Court has said on numerous occasions that untested statements made by offenders to third parties should be approached with considerable caution. [40] I also accept that this Court has expressed its disapproval of the practice of tendering statements made by an offender in the absence of any cross-examination on their contents. [41] However in the present case, the applicant swore an affidavit in which he said he told Dr Furst the truth, and in which he took issue with the conclusions expressed by Ms Menemenios as to his level of insight into his offending. When that affidavit was read, the Crown Prosecutor in the court below took no objection to it, and did not seek to cross-examine the applicant on its contents. He also took no objection to the tender of the applicant's letter, and made no submission to the sentencing judge as to what weight ought to be attached to its contents. In circumstances where the applicant's evidence of remorse is unchallenged, and in the absence of any other evidence which causes me to doubt its truthfulness, I accept it.
The report of Dr Furst supports the conclusion that the applicant's prospects of rehabilitation are generally favourable and that his risk of re-offending is limited. Those prospects are dependent, at least in part, on the applicant's willingness to undertake appropriate rehabilitative programs to overcome his drug addiction. However I am satisfied in the light of the contents of his affidavit that he is committed in that respect. I am therefore satisfied that his prospects of rehabilitation are favourable and that he is at a generally low risk of reoffending. I am fortified in those views by the fact that the applicant is supported by his family and friends, in circumstances where Dr Furst expressed the view that his previous estrangement from his family contributed to his offending.
The applicant's need for rehabilitation is such that he is likely to benefit from a longer period on parole. That justifies a finding of special circumstances and I propose to apply the same ratio as that applied by the sentencing judge, namely one of 60%.
As I have previously noted, Dr Furst did not specifically address the issue of the applicant's age in terms of the offending. There was no evidence before the sentencing judge, nor is there any evidence before this Court, which directly establishes any causal connection between the applicant's youth and his offending. However, that is not to say that the applicant's youth is an irrelevant consideration on sentence.
The principles which apply to sentencing youthful offenders were cited by McClellan CJ at CL in KT v R [42] and may be summarised as follows: 1. considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation; [43] 2. the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age; [44] 3. where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult; [45] 4. although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct; [46] 5. the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or considerable gravity; [47] 6. in determining whether a young offender has engaged in "adult behaviour", the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society; [48] 7. the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A 'child offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth. [49]
In BP v R [50] Hodgson JA accepted the correctness of those principles. In doing so, his Honour emphasised that Courts should not be "over-ready" to discount the relevance of an offender's youth on the basis that the offender acted like an adult. [51] In the same case Johnson J, having set out the principles in KT, said: [52] [T]he law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. The law considers youth and not just biological age. Where immaturity of an offender is a significant contributing factor to the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult."
Finally, in JM v R [53] Simpson J (as her Honour then was), having reviewed the authorities, said: It seems to me that the weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. That does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present, give way entirely or even substantially to the interests of rehabilitation. …
As I have pointed out, there is no direct evidence that the applicant's immaturity significantly contributed to his offending, in circumstances where such offending is properly regarded as adult-like. I accept that the applicant's youth is a relevant factor on sentence and I have taken it into account. However in doing so, I am also mindful of the observations of Sully J in R v Mastronardi: [54] … [I]t is timely to make plain, yet again, that youth, - whether it is real, or merely comparative, or defined with a generous elasticity, - is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of the conduct.
Finally, it is necessary to take into account the additional offences on the Form 1. All of those offences obviously stem from the applicant's engagement in drug supply. Two of the offences relate to the supply of a further 168.6g of methylamphetamine. The maximum penalties for the offences on the Form 1 range from 3 years' imprisonment to 15 years' imprisonment. Those matters are of obvious significance. I have taken the additional offences on the Form 1 into account in accordance with the decision of this Court in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002. [55]

CONCLUSION

I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for a period of 7 years and 6 months commencing on 17 March 2017 and ending on 16 September 2024. 5. I specify a non-parole period of 4 years and 6 months' imprisonment commencing on 17 March 2017 and expiring on 16 September 2021.
CAMPBELL J: I agree with Bellew J.

Endnotes

AB 5.
AB 82.
AB 86-87.
AB 86-87.
AB 89.
AB 89.
AB 89.
AB 89.
AB 135.
AB 167-168.
AB 86.
AB 98.
AB 42.
Newman (a pseudonym) v R [2019] NSWCCA 157 at [10]-[11].
Section 21A(2)(j) of the Sentencing Act and see the sentencing judge's reasons at AB 86.
AB 176.
AB 177.
AB 177.
AB 177.
AB 177.
AB 177.
AB 179.
AB 179.
AB 179.
AB 180.
AB 180.
AB 145.
AB 146.
AB 31.25- AB 31.46.
AB 31.46.
AB 171 and following.
At [16]; AB 172.
At [17]; AB 173.
At [17]; AB 173.
AB 174.
AB 189.
AB 190.
AB 91.
AB 109.
See for example R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] per Smart AJ; at [79] per Spigelman CJ.
See for example R v Elfar [2003] NSWCCA 358 at [25] per Whealy J (Ipp J and Davidson AJ agreeing).
(2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] - [26].
At [22].
At [23].
At [23].
At [24].
At [25].
At [25].
At [26].
(2010) 201 A Crim R 379; [2010] NSWCCA 159 commencing at [3].
At [6].
At [75].
[2012] NSWCCA 83; (2012) 223 A Crim R 55 at [108].
(2000) 111 A Crim R 306; [2000] NSWCCA 12 at [20], Grove and Simpson JJ agreeing.
(2000) 56 NSWLR 146; [2002] NSWCCA 518 at [42] per Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing.

Amendments 11 December 2020 - Typographical error in para [2]. 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 December 2020

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