Yassine v R

Boujaoude v R [2008] NSWCCA 35 Lowe v The Queen (1985) 154 CLR 606 CASES CITED : Postiglione v The Queen (1997) 189 CLR 295 R v De Simoni (1981) 147 CLR 383 R v Kerr [2003] NSWCCA 234 R v Kollas & Mitchell [2002] NSWCCA 491

PARTIES: Abboud Yassine Regina

COUNSEL: P Lange (Applicant) N Noman (Respondent)

SOLICITORS: S O'Connor (Legal Aid Commission) K Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 16 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Abboud Yassine

IN THE COURT OF CRIMINAL APPEAL 2007/3703

Spigelman CJ Price J McCallum J

1 SPIGELMAN CJ: I agree with Price J. 2 PRICE J: The applicant Abboud Yassine pleaded guilty in the Local Court to one count of supply of a prohibited drug, to wit, cocaine being an amount which was not less than the commercial quantity applicable to that prohibited drug. He was committed for sentence to the District Court where he adhered to his plea. He asked the Judge to take into account a further six matters on a Form 1.

3 The Court Attendance Notice (CAN) to which the applicant adhered to his plea was in the following terms: "Drug Misuse and Trafficking Act 1985, Section 25(2) - SI Supply prohibited drug between 8.00am on 20/12/2005 and 2.00pm on 30/03/2006 at Merrylands. That Abboud YASSINE between the 20th day of December 2005, and the 30th day of March 2006, at MERRYLANDS, in the State of New South Wales, did supply an amount of a prohibited drug, to wit, 383.1 grams of cocaine, being an amount which was not less than the commercial quantity applicable to that prohibited drug."

4 The amount of cocaine which was alleged to have been supplied was originally stated in the CAN to be 392 grams. This amount, it seems, was amended to 383.1 grams at the time of the applicant's committal to the District Court for sentence.

5 The applicant was sentenced to a term of imprisonment with a non-parole period of three years and six months to date from 30 March 2006 and to expire on 29 September 2009 with an additional term of three years and six months to date from 30 September 2009 and to expire on 29 March 2013. 6 The offence being contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 is punishable by 20 years imprisonment or 3,500 penalty unit fine or both. A standard non-parole period of 10 years imprisonment has been prescribed: s 54B Crimes (Sentencing Procedure) Act 1999 and table in Division 1A. 7 The applicant seeks leave to appeal against the sentence imposed on the following grounds:

1. The sentence imposed upon the applicant's co-accused, Mr Hamid, gives rise to a justifiable sense of grievance on the part of the applicant; and
2. His Honour erred by sentencing the applicant on the basis of a larger quantity of drugs than that with which he was charged and to which he pleaded guilty. 8 The first ground of appeal raises the issue of parity of sentences. As the determination of the second ground will impact upon the parity issue, it is logical and convenient to consider this ground first. 9 Mr Lange for the applicant contends that the Judge appears to have sentenced the applicant on the basis that he supplied approximately 500 grams of cocaine, rather than 383.1 grams which was the amount stated as the quantity of the prohibited drug in the CAN. He argues that the charge related only to 383.1 grams and the Judge was in error when he took into account on sentence 112 grams of cocaine which had not actually been supplied. He submits that it may well be that his Honour was led into error by the inclusion of the agreement to supply the 112 grams of cocaine in the fact sheets. It is not clear, he argues, why reference to the agreement was not removed, as it should have been prior to the statement of facts being tendered, since such a statement of facts should not contain facts that would aggravate the offence in breach of the principle in R v De Simoni (1981) 147 CLR 383.

10 In oral argument Mr Lange refers to the written submissions on behalf of the applicant which were handed to the Judge during the proceedings on sentence and contends that it appears that the applicant's counsel was not aware that the offence for which the applicant was to be sentenced included the 112 grams of cocaine which the applicant had agreed to supply. He submits that defence counsel may have considered the agreement to supply to be part of the factual scenario in which the offence occurred. 11 The Crown accepts that the CAN stated as the quantity of the prohibited drug 383.1 grams of cocaine but submits that is a particular. The Crown argues that the facts presented on sentence (exhibit A3) included the four actual supplies [amounting to 383.1 grams] and the agreement to supply cocaine [112 grams] which occurred within the dates specified in the charge. All five occasions, the Crown submits, were part of the offence despite the pleading of an erroneous quantity. There was no issue raised, the Crown argues, by experienced defence counsel regarding the inclusion of this aspect of the offending within the facts which clearly stipulate five discrete offences supporting the one charge. There is no evidence that there was error in including it in the facts, or that the erroneous particular in the charge was misleading. The Crown submits that the combined documentation makes it apparent that the applicant's criminality extended to being involved in the supply of 495 grams of cocaine and confirmation of this can be obtained by reference to the record of proceedings. 12 The applicant accepts that the statement in the CAN that the amount of the supply was 383.1 grams of cocaine was a particular: see Boujaoude v R [2008] NSWCCA 35. As was said by Giles JA in Boujaoude at [48]: "48 Particulars might reveal a flaw in the Crown case, but that does not mean invalidity of the basal indictment. The basis of particulars is that procedural fairness calls for the accused to know the case the accused must meet: "For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge" ( Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J). It is not necessary that all particulars appropriate for that purpose appear on the face of an information (Preston v Donohoe (1906) 3 CLR 1089 at 1091 per Griffiths CJ; ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 170 per Jordan CJ; Knaggs v Director of Public Prosecutions at [72]-[74] per Campbell JA, Mason P and Tobias JA agreeing), nor in an indictment since particulars can be ordered (see generally Johnson v Miller ; S v The Queen (1989) 168 CLR 266; Director of Public Prosecutions v Parmenter (1992) 1 AC 699). "

13 Further particulars of an offence with which a person is charged may be provided by the service of the Crown brief or by a statement of the facts alleged by the prosecution to be the foundation of the charge. This is what the Crown says happened in the present case. Mr Lange argues that the particulars were not varied as defence counsel when setting out the factual basis upon which he apparently believed the applicant was to be sentenced stated in his written submissions that the amount in question was 392 grams.

14 During the proceedings on sentence in the District Court the applicant was represented by Mr Dhanji, an experienced counsel. The Crown brief was tendered and admitted without objection (exhibit A3). Included in the Crown brief was a document entitled "Fact Sheets - Drug Offences - Yassine". Below the heading Offence (seq6): Supply prohibited drug (exceed commercial quantity) between 20/12/05 - 30/03/06, the document detailed the facts alleged under a number of sub-headings which were in the following manner and order:

· Supply Prohibited Drug on 20/12/05 - 54.1 grams Cocaine · Agree to Supply Prohibited Drug on 17/01/06 - 112 grams Cocaine · Supply Prohibited Drug on 14/02/06 - 111.3 grams Cocaine · Supply Prohibited Drug on 09/03/06 - 109.6 grams Cocaine · Supply Prohibited Drug on 30/03/06 - 108.1 grams Cocaine 15 The facts disclosed the actual supply of cocaine by the applicant on four occasions, namely, 54.1 grams on 20 December 2005; 111.3 grams on 14 February 2006; 109.6 grams on 9 March 2006 and 108.1 grams on 30 March 2006. Each supply was to an undercover operative. It is clear that the amount of the prohibited drug specified in the CAN is the total weight of cocaine actually supplied. 16 Also disclosed was an agreement to supply 112 grams of cocaine on 17 January 2006. Shortly stated, the Judge was informed that on 13 January 2006 the undercover operative spoke with the applicant who agreed to supply four ounces of cocaine to him. As a result of the applicant's delay in obtaining the prohibited drug, the undercover operative indicated to him that the supply could not take place. The metric equivalent of four ounces is 112 grams. 17 The fact sheets, in my opinion, explicitly identified the agreement to supply as being one of the five offences which supported the charge. There could be no misunderstanding that the 112 grams was included merely as part of the factual scenario in which the offence occurred. 18 "Supply" as defined in s 3 of the Drug Misuse and Trafficking Act includes: "agreeing to supply" 19 The agreement to supply occurred within the period specified in the CAN for the supply of the prohibited drug and could properly be included in the charge. As I have stated, no objection was taken by defence counsel to the inclusion of the agreement to supply in the fact sheets. 20 During the applicant's testimony in the proceedings on sentence, he was asked by Mr Dhanji: (T 19 L 18-28)

"Q. You made contact with the undercover operative? A. I did.

Q. You entered into the arrangement to sell cocaine on the various occasions in the fact sheet (emphasis added) A. Yep.

Q. And I think you've told us effectively already that in relation to those on each occasion that you actually supplied cocaine you took some of the cocaine (emphasis added).

A. I did." 21 Both Mr Dhanji and the applicant, it is plain from this exchange, had turned their attention to the contents of the fact sheets. The applicant by the first answer acknowledges the accuracy in the facts of the arrangements to sell cocaine. 22 At the close of the applicant's case, Mr Dhanji tendered to the Judge written submissions saying; (POS at 28 L24-37): "Your Honour I've prepared some written submissions, obviously enough they've been prepared prior to the evidence that's been heard and I may need to just put a line through something…" "Perhaps I raise two matters, these submissions I must confess were prepared somewhat late last night and I picked up a piece of paper the supply matter that's on a Form 1. I have in fact had to put a line through it because the submissions were prepared under a misunderstanding in relation to that. I'll hand up the submissions and I apologise for the crossing out in texta." 23 It seems that Mr Dhanji then crossed out the reference in his submissions to a charge of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act as that charge had been included on a Form 1. Mr Lange points to the crossing out of the second charge and to the retention in the document of the statement that the amount of the drug was 392 grams. 24 The following paragraphs in Mr Dhanji's submissions are of particular relevance and are said by Mr Lange to support the submission that Mr Dhanji's understanding of the offence for which the applicant was being sentenced was confined to the actual supply of cocaine: " The objective gravity of the offence 4. The primary offence involved the actual supply of cocaine to an undercover operative. The initial supply on 20 December 2005 involved 56g. Subsequent supplies involved 112g. The total amount supplied was 392g. The commercial quantity in relation to cocaine is 250g. The large commercial quantity is 1kg. … 9. In addition, the amount of the drug, 392 grams, is at the lower end of the scale in relation to the commercial quantities (250g - 1kg)." 25 The written submissions had been drafted the previous night. It appears that at the time of drafting Mr Dhanji understood the primary offence to be that of actual supply. Paragraph 4 contains errors of fact. 112 grams was the amount agreed to be supplied whereas subsequent actual supplies amounted to 329 grams. 26 In discussions with counsel which followed the tender of the submissions, the Judge referred to "the large amount", "the large amounts" and "the large quantities" of the drugs. 27 When oral submissions had been completed, the Judge sentenced the applicant. During his sentencing remarks, the Judge said that "the facts in this matter are set out in full in exhibit A3". His Honour then detailed the four occasions of actual supply and went on to say (ROS p 2): "During that period on 17 January the offender also agreed to supply 112 grams but no actual supply in that amount was made or any money received for it. In total during the stated period the offender supplied to the undercover police operative 383.1 grams which had a total purchase value of $91,600.00 and he agreed to supply 112 grams (emphasis added). The amount of $65,600.00 was not recovered." And further (ROS at p 3): "It is to be noted that for this particular charge the supply of 250 grams or more brings it into the not less than commercial quantity and the upper end of the range of commercial quantity is one kilogram or 1,000 grams. Accordingly the 383.1 grams which was supplied is a little below the halfway mark and about the halfway mark when you add the 112 which was not supplied but which he did agree to supply (emphasis added). The purity percentages are reasonably high." 28 His Honour's remarks, to my mind, made it clear that the applicant was being sentenced not only for the 383.1 grams which had actually been supplied but also for the 112 grams agreed to be supplied. It is not a reasonable possibility that experienced defence counsel could have understood the Judge to be referring to the 112 grams as demonstrating the factual scenario in which the offence occurred. 29 When the Judge had completed his ex tempore remarks on sentence, he asked Mr Dhanji: "I take it there are no matters I should have mentioned or no corrections?" to which Mr Dhanji responded that there was nothing to be raised. 30 It is not a reasonable possibility in the circumstances of the sentencing hearing that experienced defence counsel would not have raised with the Judge that his client had been sentenced on an incorrect basis if that had been the case. The written submissions, it is apparent, were prepared the night before with a degree of confusion and perhaps haste. I am satisfied that nothing was raised as defence counsel and the applicant were aware at the time of the proceedings on sentence that the offence for which the applicant was being sentenced included the agreement to supply 112 grams of cocaine. 31 The fact sheets detailed the actual supply of 383.1 grams of cocaine and the agreement to supply 112 grams of the prohibited drug. The particulars of the amount of the supply had been varied to 495.1 grams. His Honour was obliged to take into account on sentence the 112 grams of cocaine that the applicant had agreed to supply and the principle in R v De Simoni was not breached. No error has been established and the second ground of appeal fails. 32 I turn to the first ground of appeal. 33 The applicant contends that the sentence imposed upon his co-offender Wajde Hamid gives rise to a justifiable sense of grievance on his part. 34 Wajde Hamid pleaded guilty to three counts of supply of the prohibited drug cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act and was sentenced by the Judge on 20 July 2007 to a total effective term of imprisonment of three and a half years with an effective non-parole period of one year and nine months. The maximum penalty for an offence contrary to s 25(1) disposed of upon indictment is imprisonment for 15 years or 2,000 penalty unit fine or both. There is no standard non-parole period prescribed for this offence. 35 Mr Lange contends that during the proceedings on sentence the Crown took the view that any difference in the criminality of the applicant and Hamid arose from the nature of the charge. The applicant had been charged with one count of supply of not less than the commercial quantity of cocaine contrary to s 25(2) whereas Hamid had been charged with three counts of supply contrary to s 25(1). Mr Lange points out that the total quantity of cocaine, which was the subject of the three charges preferred against Hamid, amounted to 275 grams - itself over the commercial quantity. It would have been open to charge Hamid, Mr Lange contends, with one count of supplying a commercial quantity of a prohibited drug. Mr Lange cites what was said in R v Kerr [2003] NSWCCA 234 by Miles AJ (with whose judgment Beazley JA and Adams J agreed) at [13]:

"…the principle of parity in sentencing, or rather the policy behind it, was not so easily dismissed, in my view. The policy behind the principle is not to be avoided by the prosecuting authority simply charging co-operative offenders with less serious offences. The whole of the circumstances need to be examined." 36 So far as the extent of the applicant's involvement in the supply was concerned Mr Lange argues that there was little to distinguish between the criminality of the applicant and that of Hamid. Of the greatest importance, he contends, is the fact that the quantity supplied by the applicant (383.1 grams) was not substantially greater than that supplied to the applicant by Hamid (275 grams) for the purpose of onward supply. This submission has been dealt with in the consideration of ground 2. 37 Hamid, he submits, took an active role in each exchange for which he supplied cocaine. Not only would he supply the applicant with the drugs, but on each occasion on which he had done so, he would be in the vicinity of the exchange with the undercover officer. Mr Lange points out that on 20 December 2005 and 14 February 2006 Hamid remained in the same vehicle the applicant had used to drive to the place where the exchange took place. 38 Mr Lange concedes in written submissions that there were factors which could justify the imposition of a greater sentence upon the applicant than upon Hamid, such as the difference in age, the applicant being 26 years old and Hamid 20 years old and the fact that the applicant had supplied approximately 100 grams more than Hamid. However, it is submitted that such differences could not justify the imposition which was twice as severe at that imposed upon Hamid, especially where the applicant was essentially of good character. 39 The Judge carefully and sympathetically considered the subjective circumstances of the applicant. Whilst the subjective circumstances of the applicant and the co-offender were not identical, they were not such as might explain the different sentences imposed. 40 During the proceedings on sentence, the following exchange took place between the Judge and the prosecutor: (POS at 3) "His Honour: Does the Crown put them forward as being on the same plane of criminality? Or at the same level of criminality?

Byrne: Yes your Honour. His Honour: So the distinction if there be one in terms of the outcome is likely to be as a consequence of subjective matters rather than criminality --

Byrne: Mr Yassine's offence is set at the commercial quantity, whereas the other accused are not.

His Honour: So he does have the more significant criminality then than the others.

41 What the prosecutor intended to convey to his Honour is not, in my opinion, entirely clear. If it be the case, as Mr Lange contends, that on the prosecutor's view any difference in criminality arose from the nature of the charge, then his Honour was not bound by that submission. Fact sheets and other material were before the Judge when he came to sentence the applicant and then at a later stage Hamid. It was open to his Honour to make his own assessment of the respective criminality of the applicant and the co-offender. 42 His Honour in sentencing Hamid noted that he had assisted the applicant to supply cocaine to the undercover operative on the three occasions when a total of 275 grams was supplied. The applicant had contacted Hamid on each occasion in order to source the cocaine with Hamid accompanying the applicant to the general area where the supplies took place. His Honour remarked that Hamid was not physically with the applicant when the supplies took place. The Judge observed that the applicant was involved in a number of other supplies. He noted that Hamid did not have a Form 1 whereas the applicant had a number of matters on a Form 1. He remarked that Hamid had "pleaded guilty to three actual supplies totalling 275 grams or approximately half the amount supplied by Mr Yassine." His Honour found that the "question of parity does not strictly apply to Mr Yassine because of the more serious charge and his greater involvement" (ROS at 3). 43 The Judge, in my view, carefully analysed the participation by the accused and the co-offender Hamid in the criminal offending. The finding that the applicant's involvement was "greater" was clearly correct. This is not a case where the discrepancy in sentences on the two co-offenders arises solely from the difference in the charges they faced. The criminal culpability of the applicant for which he was sentenced was of a significantly more serious character than that of Hamid. Hamid had participated neither in the supply of cocaine on 30 March 2006 nor in the agreement to supply on 17 January 2006. It was the applicant who spoke with the undercover operative on each occasion and agreed to supply cocaine to him. Having sourced the cocaine he met with the purchaser exchanging the drug for an agreed sum. The supply did not take place on 17 January 2006 as the applicant experienced delay in obtaining cocaine through another co-offender, Assoum. The financial rewards for the applicant were more than for Hamid. 44 In determining the appropriate sentence his Honour took into account, as he was required to do, the six matters on the Form 1. One of those matters was an offence of supply of cocaine in an amount of 13.25 grams which his Honour noted was a "deemed supply". The Judge was entitled to increase the penalty for the primary offence because of the criminality involved in the Form 1 offences. There were no matters on a Form 1 to be taken into account when Hamid was sentenced. 45 Although it is true that Hamid could have been charged with the more serious offence under s 25(2), his Honour was obliged to take into account on sentence the different charges they faced. For the offence with which the applicant was charged a standard non-parole period of 10 years imprisonment has been prescribed. This was not an irrelevant consideration. 46 The applicant has not shown that a reasonable person, looking at the circumstances of the case, would regard his grievance as justified: Lowe v The Queen (1985) 154 CLR 606, Postiglione v The Queen (1997) 189 CLR 295, R v Kollas & Mitchell [2002] NSWCCA 491 at [45-50]. The sentence imposed by the Judge does not give rise to a justifiable sense of grievance. The first ground of appeal fails.

47 I propose that leave to appeal be granted, but the appeal be dismissed. 48 McCALLUM J: I agree with Price 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.