Yaghi v R

Fairbairn v Regina [2006] NSWCCA 337; 165 A Crim R 434 FV v R [2006] NSWCCA 237 Johnson v Johnson (2000) 201 CLR 488 Pearce v R (1998) 194 CLR 610 Queen v De Simoni (1981) 147 CLR 383 CASES CITED : R v Gu [2006] NSWCCA 104 R v House [2005] NSWCCA 88 R v Howard [2004] NSWCCA 348 R v Kearns [2003] NSWCCA 367 R v Uzabeaga [2000] NSWCCA 381; 119 A Crim R 452 Regina v JRB [2006] NSWCCA 371

PARTIES: Yazid YAGHI (Applicant) Regina (Respondent)

COUNSEL: Mr K Dailly (Applicant) Mr P Leask (Respondent)

SOLICITORS: Shad Partners Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2008/4390

GROVE J SIMPSON J R A HULME J

1 GROVE J: I agree with R A Hulme J. 2 SIMPSON J: I agree with R A Hulme J.

3 R A HULME: The applicant was sentenced on 9 December 2008 in the District Court at Penrith by his Honour Judge Knight for three offences. There was an offence of knowingly taking part in the manufacture of a commercial quantity of a prohibited drug (methylamphetamine). This is an offence against s 24(2) Drugs Misuse and Trafficking Act 1985 ("the Act") for which the maximum penalty is imprisonment for 20 years. A standard non-parole period of 10 years is also prescribed in the table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.

4 The second offence was possession of a precursor intended for use in the manufacture of a prohibited drug, the precursor being hypophosphorous acid and the prohibited drug methylamphetamine. This is an offence against s 24(A)(1) of the Act for which there is prescribed a maximum penalty of imprisonment for 10 years.

5 The third offence was one of supplying not less than the commercial quantity of a prohibited drug (pseudoephedrine). That is an offence against s 25(2) of the Act for which there is a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years.

6 In sentencing for the first offence the judge took into account at the applicant's request three further offences listed on a Form 1 document. They were offences of possessing a prohibited drug (192.5 grams of cannabis), possession of a prescribed restricted substance (53mls of steroids) and possession of ammunition without a licence.

7 For the first offence, and taking into account the offences on the Form 1 document, the applicant was sentenced to imprisonment for 6 years with a non-parole period of 4 years with effect from 19 December 2006. For the second offence the judge imposed a fixed term of imprisonment for 2 years and for the third offence a fixed term of imprisonment for 3 years, both of which sentences were also specified to commence on 19 December 2006.

8 The total effective sentence was one of 6 years with a non-parole period of 4 years.

9 Four grounds of appeal were notified but two were abandoned on the hearing of the application. The remaining grounds are: 1. The learned sentencing judge erred in allowing his suspicion to affect the ultimate sentence by taking into account matters that were not part of the Agreed Facts.

2. The learned sentencing judge erred by taking into consideration matters adverse to the applicant, which were not open to be made.

10 A statement of facts was tendered before the judge without objection and from it I have drawn the following.

11 On 19 December 2006 police executed a search warrant at a two acre property in Government Road, Berkshire Park, upon which there was a house, a garage, and three sheds. The applicant lived at this property with various family members.

12 51 packets of cold and flu tablets containing pseudoephedrine were found in a kitchen cupboard and in the laundry. A glass jug containing 83.5 grams of methylamphetamine was found in the oven in the kitchen. Also in the oven were two plastic bottles containing liquid in which there was methylamphetamine. In the kitchen pantry was a plastic container which contained 62.7 grams of methylamphetamine.

13 Pseudoephedrine in various concentrations were found in the garage in three 70 litre plastic containers of white sludge and powder, on two of three electric woks and on a blender. There were also fifteen empty 20 litre drums and sixteen empty 4 litre bottles which were each labelled as having contained methylated spirits.

14 A scanner was found in one of the sheds. Another shed, described as the "green shed", had a glass sliding door which was open when the police approached. Inside the doorway there was a sheet of black plastic hanging from the roof to the floor obscuring the view into the shed. Within this shed were scientific glassware, exhaust tubing and other equipment set up as a laboratory. The applicant told police that he had rented this shed to a person for about three months for $80 per week. He declined to tell the police this person's name.

15 The statement of facts sets out the method of manufacture that had been carried out on the premises. It involved the use of cold and flu tablets containing pseudoephedrine and the various chemicals and equipment that had been found. The scientific glassware that was found within the green shed was set up in a distillation configuration. The statement of facts also asserts that "multiple processes of this method of manufacture of methylamphetamine had been carried out in the shed". It also asserts that the pseudoephedrine contained in the three 70 litre drums found in the garage could have been used in this process to manufacture no less than 97.11 grams of methylamphetamine.

16 The applicant was arrested and taken to a police station where he was formally interviewed. During the course of that interview he admitted to possession of the drugs and other items which had been seized by the police from within the house. He denied any knowledge of the contents of the green shed. He said that he had put up the black plastic near the door when he set up a hydroponic system there a year previously, but that he cleared the system out of the way when he rented the shed about three months earlier. He said that he was aware that methylated spirits had been placed in the garage and that the woks found there "were dirty and had been chucked aside".

17 The applicant said that he used 1½ grams of methylamphetamine a day as well as about 1 or 2 grams of cannabis a day. He said that he had not been employed for 11 months. Of the 5 adults and 8 children who lived in the house only 1 adult was employed. None of the occupants paid rent to him.

18 Under the heading "the offenders participation in the manufacture process" the following appears: The offender permitted equipment for the manufacture of methylamphetamine to be set up in the green garden shed, and allowed chemicals and equipment used in the manufacture process to be stored in the green garden shed and in the garage shed. He also allowed products of the manufacture process to be stored in both sheds.

The offender also stored cold and flu tablets, precursor chemicals and pseudoephedrine to be used in the manufacture process in his house. Methylamphetamine manufactured in the shed was also stored in the kitchen of his house - 83.5 grams in glass jug in the oven, 62.7 grams in a plastic container in the pantry, and 2 bottles above the oven containing liquid with concentrations of methylamphetamine.

Peter Ballard, forensic chemist, observed the equipment and materials found at the property. Based on the amount of waste product found, he is of the opinion that an amount of methylamphetamine in excess of 1 kilogram could have been manufactured in the green garden shed.

The (applicant) was aware that an amount of about 900g methylamphetamine was being manufactured in the green shed.

19 The second offence of possessing a precursor for the manufacture of a prohibited drug relates to the police finding in the laundry of the house a 2 litre plastic bottle containing 1.5 litres of hypophosphorous acid.

20 The offence of supplying not less than the commercial quantity of a prohibited drug relates to the police finding on a shelf in a room set up as an office inside the house a plastic shopping bag containing 1,461 grams of pseudoephedrine.

21 The three offences on the Form 1 document related to other items found in various locations throughout the house. There were fifty-three 1 millilitre ampoules of steroids which the applicant said that he had bought for $40 each for his own use, 192.5 grams of cannabis for which the applicant acknowledged ownership, and a total of 217 rounds of various calibres of ammunition.

22 In his sentencing remarks the judge noted that the commercial quantity prescribed for methylamphetamine is 250 grams and the large commercial quantity is 1 kilogram. The judge said that he accepted that an amount of about 900 grams of methylamphetamine was being manufactured in the green shed, that is to say a commercial quantity but not a large commercial quantity. The judge specifically noted that if he were to accept that an amount of 1 kilogram or more had been manufactured that would constitute a more serious offence and he would be falling into the error referred to in Queen v De Simoni (1981) 147 CLR 383.

23 Further in relation to the manufacturing offence the judge said: Before going on to look at the other drugs, I should indicate that I am quite satisfied that you knew exactly what was happening in the shed and on your property generally in relation to the manufacture of the methylamphetamine, and that is shown by the multiple places in which the drug and its precursors were found and the very fact that they were found in the house, and in a part of the house which would normally be frequented by people living in it, to wit, the kitchen and laundry.

24 In relation to the third offence of supplying a prohibited drug, namely pseudoephedrine, the judge noted that the commercial quantity prescribed for that drug is 1.25 kilograms and the large commercial quantity is 5 kilograms.

25 Upon completion of his review of the facts of the matter the judge then stated: It does not need words of mine to indicate that these offences are very significant indeed. The community is fed up to the back teeth with people who manufacture and supply and deal in prohibited drugs. There seems to be at large a concept that a person who is a user is in some way, less culpable than a person who is not a user, and that may well be the case, but it is no excuse for engaging in the drug traffic arena that you are doing so to feed a personal habit.

I have a strong suspicion that you were far more involved in the manufacturing process than you have been prepared to concede in your record of interview. But it seems to me I must sentence you on the facts which have been placed before me, and I do so , and, on those facts, your role in the matter was the methylamphetamine to be manufactured in the garden shed on your property, allowing the chemicals and equipment used in that process to be stored in the shed and also in your garage shed, and allowing products of the manufacturing process to be stored in those sheds. As I have already pointed out, you also allowed the precursor chemicals to be stored in your house and you stored the end result, the methylamphetamine, also in your house, and you made available items used in the manufacturing process, such as the oven and woks, on your property, the oven, of course, being part of the house itself. (Emphasis added).

26 The judge then made reference to the judgment of Howie J in R v Gu [2006] NSWCCA 104 at [27] as to the "consistent line of authority … that has made it quite clear that, unless there are truly exceptional circumstances present, a fulltime custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs". He referred to those principles applying also to cases of manufacturing and being knowingly concerned in the manufacture of prohibited drugs. The judge continued: The authorities also establish that, in general terms, being knowingly concerned in the manufacture is a somewhat lesser offence than the actual manufacture itself. Having said that, I have little doubt that you were involved, and to the extent that I have already indicated , in this manufacture, and your role in the manufacturing process was significant. I say that because obviously it was your property and it was your facilities which enabled the methylamphetamine to be manufactured on your premises. (Emphasis added).

27 The judge noted that the applicant was born in August 1973 and so was aged 33 at the time of the offences and aged 35 at the time of sentence.

28 The applicant entered pleas of guilty in the Local Court and for this the judge allowed a discount of twenty-five per cent for their utilitarian value. He also regarded the pleas of guilty as being evidence of contrition and remorse.

29 The applicant has a criminal history which the judge described as "very slight". He noted that the applicant had not spent any time in custody prior to the commission of the subject offences, he was not on any form of conditional liberty, there were no previous drug offences, and the last of the previous offences had occurred some nine years previously. Taking those matters into account the judge concluded that the prior record could be disregarded.

30 The judge had before him two reports from the Probation and Parole Service in addition to a report from a clinical psychologist.

31 The applicant was born in Lebanon and came to Australia in 1976 at the age of about three years. He was raised in what was described as a strict family environment with a dominating father who rigidly adhered to the traditions of his religion, culture and customs. The applicant left home at the age of about 15 or 16 because of tensions between his father and himself. At some subsequent stage he moved back into the family home because his mother had become ill. His parents separated with his father moving away. The applicant then played something of parental role to his younger siblings and also cared for his mother whose state of health was declining. After about three years his mother died and the judge noted that this had been a source of grief to him and he found it difficult to cope.

32 The applicant subsequently married and has three children, the oldest of whom is eight. The marriage lasted about ten years but by the time of sentencing he was separated and regarded himself as being divorced under the law of Islam. The judge noted that the applicant had strong support from his family. He had reconciled with his father, his siblings and other members of his family who had indicated that they would provide him with assistance when he was eventually released from custody.

33 The applicant completed the Higher School Certificate in 1991 and had thereafter engaged in regular employment whenever it was available. For most of his adult life, however, he had used illicit drugs to a very significant extent, including heroin, cocaine, amphetamines and cannabis, although there had been periods of abstinence. The applicant gave evidence about the amount of money that he was spending on illicit drugs at the time of commission of the offences but the judge said: I do not accept that evidence because it varied from time to time. Thus there is conflict between what you originally said, which was five hundred dollars per week, and that was a statement that you made as well to the Probation and Parole Officer, whereas, when you were cross-examined by the Crown it became apparent that you were saying it was five hundred dollars per day, and at one stage you were talking about five thousand dollars per week. Your evidence was all over the place and I am not satisfied that it should be relied on, besides which I do not regard it as being necessary for the purposes of sentencing. I accept that you were using a cocktail of various drugs at the time you committed these offences and had been doing so for years, and I accept that part of your payment in relation to allowing these drugs to be manufactured on your property was the supply of illicit drugs. I accept the statement at the top of page 3 of the Probation and Parole Service report on 16 July 2008 as follows: "He attributed his use of illicit substances and the lure of financial gain as causal to his offending." I accept that as an accurate statement. It does not seem to me that the precise amounts of money involved are important in the determination of the appropriate sentence for you.

34 The judge then stated that the applicant had behaved himself "at a very high level" since going into custody. He had undertaken various drug and alcohol programs and some educational programs in literacy and computing. It was also noted that the applicant was currently engaged in study as an external student at the University of Southern Queensland, studying in the field of child psychology and that he hoped to complete that course which would take approximately four years. He continued: It seems to me, on the material that has been put before me, that you are making considerable efforts to overcome what you now recognise as a real problem in your life, namely your use of illicit drugs, and the sentences that I intend to impose on you are designed to try and assist you in your rehabilitation.

Other aspects of the judge's approach to sentencing

35 The judge found that there were three statutory aggravating features but given the abandonment of the ground that the sentences are manifestly excessive it is unnecessary to dwell upon them.

36 As to mitigating factors in s 21A(3) Crimes (Sentencing Procedure) Act, the judge was satisfied that the applicant did not have a significant record and that he was a person of good character, notwithstanding the previous convictions, and that he was remorseful. He found that the applicant had "high prospects, and good prospects, of being able to avoid re-offending" but stopped short of finding that he was unlikely to re-offend. He did find, however, that there were good prospects of rehabilitation. In this regard, he noted that the applicant had not previously had any professional assistance in attempting to overcome his drug addiction prior to going into custody and that he had availed himself of the services that were available in custody for that purpose. The judge said that this spoke volumes for the applicant's intention and he was satisfied that the psychologist was correct with the emphasis that he had placed on rehabilitation. He noted, in particular, a passage in the report which stated, "rehabilitation will necessarily be long and extensive". The judge indicated that he agreed with that statement and that it would have a significant impact in terms of the parole period that he would impose. Finally, the judge again noted the applicant's plea of guilty.

37 The judge indicated that, in accordance with Pearce v R (1998) 194 CLR 610, he had determined the appropriate sentence for each offence and then considered the question of whether to accumulate or partially accumulate the sentences having regard to the principle of totality. He stated that his conclusion was that the "second and third offences were completely bound up with the first offence" and so he proposed to make all of the sentences concurrent.

38 After announcing the sentences the judge indicated that he found special circumstances for the non-parole period for the first offence being less than three quarters of the total term in that this would be the applicant's first time in custody in conjunction with his need for a lengthy period of supervised parole in order to assist his rehabilitation.

39 These grounds were argued together in written submissions and were not supplemented by oral submissions. Briefly they assert, first, an error in the judge allowing his suspicion to affect the ultimate sentence by taking into account matters that were not part of the agreed facts and, secondly, an error in taking into consideration matters adverse to the applicant which were not open to be taken into account.

40 Attention was invited to the following exchanges which occurred in the course of submissions on behalf of the applicant: HIS HONOUR: … It's quite clear that special circumstances need to be found.

HIS HONOUR: So I would be envisaging dividing any period of time in custody half and half between non-parole period and total term.

DAILLY: Thank you, your Honour. I'll jump forward in my submissions and see what else I'm able to put to your Honour in that regard.

41 A little later in the course of an exchange with the representative of the Crown concerning the applicant's role in the manufacture offence there was this: HIS HONOUR: I mean quite frankly Mr Crown I have extreme reservations about accepting his evidence that his involvement in it was as little as - but I can't allow suspicion to rule the case. I'm bound by the agreed statement of facts and I intend to apply them but if it were left to me I frankly don't believe in what he says that his only part in it was the renting out of the shed. I think he was in it up to his ears but I won't sentence on that basis . (Emphasis added).

42 Then, immediately after indicating that he proposed taking the luncheon adjournment: DAILLY: Before your Honour takes it, Mr Yaghi just pointed out to me, which I remind, well not remind, your Honour hasn't heard the evidence, there was no evidence in the brief in relation to Mr Yaghi, surveillance evidence, if we put anything of that nature being in the shed, there is no fingerprint, no DNA evidence.

HIS HONOUR: Yes, look I want to make it perfectly plain, whilst I have reservations about accepting his role in the matter was as little as what the facts that have been put before me would indicate, I am bound to sentence on the facts that have been agreed between the parties and I intend to do so . I have a very strong suspicion but suspicion is not a basis of sentencing, so I want to make it perfectly plain to you and your client that even though I strongly suspect that he has a far greater role in this than he is prepared to admit, the fact is that I am going to sentence on the basis of what's been put before me . (Emphasis added).

43 Upon resumption after the luncheon adjournment there was this exchange with counsel for the applicant: HIS HONOUR: Yes all right. There is a couple of things I have been thinking about this over lunch gentlemen, there is a couple of things I want to raise with you. First of all Mr Dailly I think I may have indicated to you that I was contemplating dividing any term in half for a short - for a special circumstances (sic).

HIS HONOUR: I am not sure that that would be appropriate in the circumstances, I clearly think it is a case where special circumstances ought to be found but as I would not want to mislead you, I am not presently contemplating dividing precisely in half. So I may have cut you off earlier and if that is the case then now is your opportunity to speak.

DAILLY: I had obviously as I said the force of my submission rests in rehabilitation and it was based on that submission and principally that submission I was going to ask your Honour to split the sentence in half on that basis in furtherance of what Mr Borenstein said and I do not think I can make the submission anymore detailed than that to your Honour that I was going to ask your Honour to consider that, when your Honour made a note of that earlier that might have been what your Honour was going to do, I did not say anything at that point for that reason.

HIS HONOUR: No that is why and that is why I am raising it with you because I do not like to mislead counsel. I mean I was not attempting to but that was my thoughts at the time but I have been thinking about since.

DAILLY: Yes. No your Honour I would ask that your Honour still consider the split in that term … .

44 Counsel continued making a submission in support of his proposition that there should be an even division of the sentence as between non-parole and parole periods. Subsequent to that, the representative of the Crown conceded that special circumstances could be found but submitted that a "50/50 split would perhaps make any sentence perhaps more lenient than it would otherwise might be". The judge then immediately delivered his sentencing judgment.

45 It was submitted on behalf of the applicant that the judge had changed his mind from his earlier indication of setting a non-parole period at 50 per cent of the overall sentence after indicating his suspicion about the role played by the applicant in the manufacture offence. The submission was made that "despite his Honour's clarification that he would not sentence based on 'suspicion' it would appear to have affected his decision concerning the calculation of the overall sentence and most notably the non-parole and parole periods".

46 It was further submitted that the comments by the judge concerning his suspicion about the applicant's role gave rise to the appearance of bias. After referring to R v Kearns [2003] NSWCCA 367 at [35], which in reality is a reference to Johnson v Johnson (2000) 201 CLR 488 at 492, it was submitted that "a fair minded lay observer would reasonably apprehend that suspicion did in fact affect his Honour's thought process and the ultimate sentence imposed. Particularly with reference to the parole and the non-parole period imposed".

47 The written submissions assert that "counsel raised objection to his Honour's comments on the basis that there was no evidence to suggest the presence of the Appellant (sic) ever having been inside the laboratory". This is a reference to the submission of counsel immediately before the luncheon adjournment set out above. I would not characterise it as the "raising of an objection". It is not at all evident that counsel perceived any appearance of bias and, in my view, there was no ground for any such a perception.

48 On the material that was before him it was open to the sentencing judge to hold the suspicions that he outlined. The critical thing, however, is that the judge said, in the emphasised portions of the passages quoted above, both in his exchange with counsel and in his remarks on sentence, that he would not allow suspicion to affect the exercise of his sentencing discretion. Counsel for the applicant did not invite attention to anything said in the remarks on sentence that would indicate, either explicitly or implicitly, that the judge's discretion had been influenced in even the slightest fashion by what he had said earlier in the course of submissions. The applicant bears the onus of persuading this Court that the judge should not be taken at his word. In my view he has not discharged that onus.

49 I am unpersuaded that there is any connection between the raising by the judge of his suspicions about the applicant's role and his decision concerning the extent to which the non-parole period might be reduced. All that happened was that the judge at an earlier stage indicated a relatively generous but tentative view on that topic. Then, after reconsidering the matter during the luncheon adjournment and as a matter of procedural fairness he informed counsel for the applicant that he had modified his view.

50 The written submissions on behalf of the applicant include reference to FV v R [2006] NSWCCA 237 and R v Uzabeaga [2000] NSWCCA 381; 119 A Crim R 452 which are concerned with the need for a sentencing judge to accord procedural fairness when the judge is contemplating sentencing upon a different factual basis than is set out in a statement of agreed facts. The cases are authority for the proposition that a sentencing judge will err if he or she fails to give notice that he or she is minded to sentence upon a basis which differs from that contained in a statement of agreed facts and fails to provide an opportunity for the parties to address on that issue. These cases do not support the applicant's contention.

51 There are other authorities concerning the same or analogous situations that are on point. They include R v House [2005] NSWCCA 88 per Wood CJ at CL at [23]; Fairbairn v Regina [2006] NSWCCA 337; 165 A Crim R 434 per Basten JA at [2] and Bell J at [37]; and Regina v JRB [2006] NSWCCA 371 per James J at [42].

52 Most pertinently, in R v Howard [2004] NSWCCA 348 Spigelman CJ said: [47] … a trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material.

53 This is precisely what his Honour Judge Knight did in the present case. He indicated a view on a particular topic but, after he had considered the matter further and was contemplating taking a different approach, he informed counsel for the applicant so as to permit an opportunity for him to make further submissions on the topic.

54 I am of the view that there is no merit in either grounds one or two. I propose that leave to appeal be granted but that the appeal be dismissed. **********

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