Ahmad v The Queen

[2012] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ahmad v R [2012] NSWCCA 273

Hearing dates:

4 October 2012

Decision date:

14 December 2012

Before:

McClellan CJ at CL at [1]
Rothman J at [2]
Adamson J at [3]

Decision:

(1) Grant leave to appeal.

(2) Order that the appeal be dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - drugs offences - whether sentencing judge failed to pay adequate regard to subjective circumstances - whether repetitive conduct in one count taken into account in aggravation of another count - whether sentence manifestly excessive

Legislation Cited:

- Drug Misuse and Trafficking Act 1985

Cases Cited:

- Pearce v R [1998] HCA 57; 194 CLR 610

Category:

Principal judgment

Parties:

Maria Ahmad (Applicant)
Regina (Respondent)

Representation:

Counsel:
R Webb (Applicant)
N Bruni (Respondent)
Solicitors:
Elias Tabchouri Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/152118

Publication restriction:

None

 Decision under appeal 

Citation:

R v Ahmed [2011] NSWDC 210

Date of Decision:

2011-09-30 00:00:00

Before:

Berman SC DCJ

File Number(s):

2010/152118

Judgment

1. McCLELLAN CJ at CL: I agree with Adamson J.

1. ROTHMAN J: I agree with Adamson J.

1. ADAMSON J: This is an application for leave to appeal the sentence imposed upon Maria Ahmad, the applicant, by Berman DCJ in the District Court of New South Wales.

1. The applicant pleaded guilty to:

(1) One charge of supplying a prohibited drug, methylamphetamine, on three separate occasions between 8 May 2010 and 17 May 2010 contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (the Act);

(2) One charge of supplying a prohibited drug, namely cannabis, on 19 May 2010, 30.7 g, contrary to s 25 of the Act; and

(3) One charge of supplying a prohibited drug, namely methylamphetamine between 23 April 2010 and 12 June 2010 (21 g over 49 separate transactions), contrary to s 25 of the Act.

1. The following Form 1 offences were also taken into account:

(1) Possess equipment for administering prohibited drug;

(2) Possess prohibited drug (41 g cannabis leaf);

(3) Possess prohibited drug (3.27 g methylamphetamine);

(4)   Possess prohibited drug (4 cannabis seeds); and

(5)   Exposing child to drug premises.

1. The applicant pleaded guilty in the Local Court and was given a 25% discount.

1. The applicant was sentenced to a total sentence of imprisonment for 4 years with an effective non-parole period of 2 years and 6 months.

1. The sentence was structured as follows, with the sentence for count 2 being wholly concurrent with the sentence for count 1 and the sentence for count 3 partially accumulating.

Offence	Sentence	Period	Maximum penalty for offence
Count 1 (s 25A methylamphetamine; including Form 1 matters)	Term	5 Aug 2011- 4 Aug 2014 3 years	Imprisonment for 20 years
Non-parole period	5 Aug 2011- 4 Feb 2013 18 months
Count 2 (s 25 supply cannabis)	Term	5 Aug 2011-4 Aug 2012 1 year	Imprisonment for 10 years
Non-parole period	N/A
Count 3 (s 25 supply methylamphetamine)	Term	5 Aug 2012- 4 Aug 2015 3 years	Imprisonment for 15 years
Non-parole period	5 Aug 2012- 4 February 2014 18 months
Cumulative	Term	5 Aug 2011- 4 Aug 2015 4 years
Non-parole period	5 Aug 2011- 4 Feb 2014 2 years 6 months

1. On 6 July 2012, the applicant applied for leave to appeal against the sentence on three grounds: first, that the sentencing judge erred in regarding count 3 in aggravation of repetitive conduct in count 1; secondly, that the sentencing judge had insufficient regard in terms of the casting and overall effect of the sentence to the subjective features of the applicant; and thirdly, that the sentence was manifestly excessive in all of the circumstances.

Facts

1. The sentencing judge recorded the following facts in respect of the three offences.

1. Telephone intercept warrants were granted to police on 23 April 2010. On that day the police recorded the applicant making arrangements concerning the supply of half a gram of methylamphetamine. Police continued to listen and watch over the next few weeks until the applicant was arrested.

1. The first count relates to supplies on 8 May, 14 May and 17 May 2010. On 8 May 2010 police overheard the applicant agreeing to supply a person with methylamphetamine. Police watched as he went to her premises and arrested him as he drove away. He was found to be in possession of 0.09 grams of methylamphetamine.

1. On 14 May 2010, police overheard arrangements made by the applicant to supply a person with drugs. Police watched as the applicant delivered those drugs to him and when they arrested him, he had a bag containing half a gram of methylamphetamine.

1. On 17 May 2010, police intercepted a telephone conversation between "Andy" and the applicant. Once more, police watched as the applicant supplied him with drugs. Upon his arrest he was found to be in possession of 0.2 of a gram of methylamphetamine.

1. The total amount of drugs supplied in the course of these three transactions was 0.79 grams.

1. The second count related to the supply of cannabis to a person named Sarah. Police overheard a conversation between Sarah and the applicant relating to the purchase of drugs and, when they met, police watched the transaction and arrested Sarah soon afterwards. She was found to be in possession of 30.7 grams of cannabis leaf which had just been supplied to her by the applicant.

1. The third count concerned a large number of transactions which police identified by listening to the intercepted telephone calls. Between 23 April 2010 and 12 June 2010, there were approximately forty-nine such transactions recorded involving a total of 21 grams of methylamphetamine. There was a large number of purchasers involved.

1. Police eventually wound up the operation by arresting the applicant on 17 June 2010 . When they searched her premises they discovered drug paraphernalia located throughout the house including a glass ice pipe, some cannabis leaf, some crystal methylamphetamine and four cannabis seeds. Throughout this period that the applicant's fifteen-year old daughter lived with her at the home.

1. The sentencing judge referred to the applicant as an "enthusiastic and resourceful supplier of methylamphetamine". His Honour also recorded that the evidence of the transactions "reveals the enthusiasm with which the applicant went about supplying drugs".

Subjective circumstances

1. The sentencing judge recorded the following facts relevant to the applicant's subjective circumstances.

1. The applicant was brought up in Australia by her parents who separated when she was about nine due to domestic violence within the household. The applicant's father returned to Greece, his country of origin, and she had no contact with him until she was about sixteen. Her marriage ended in divorce in 1999. She continued to live with her daughter, who was a child of the marriage. The following year her ex-husband was murdered. His murder remains unsolved.

1. The applicant had other relationships since then, which were affected by her continued custody of her daugher. In particular she was in a de facto relationship with a man who was a drug user. Her use of drugs developed at that stage and increased after that relationship ended. Her former de facto acted violently and dangerously and at one stage they were shot at.

1. The applicant gave evidence at the sentence hearing that she wanted to have friends and that she believed that she could befriend people by supplying them with drugs. She said that her friends pooled their money and she happened to supply the drugs. It is apparent from the Remarks on Sentence that his Honour did not accept this narrative. His Honour found that the telephone intercepts revealed a more traditional relationship between supplier and purchaser whereby the applicant obtained drugs in bulk and then sold them to purchasers who would ring up, make arrangements to buy drugs from her, which on many occasions she delivered to the purchasers.

1. His Honour found that the applicant was clearly trafficking to a substantial degree. The number of individual transactions and the small quantitifes involved in any given transaction showed that she was engaging in street level dealing, which his Honour found to be a serious crime.

Ground 1: error in regarding count 3 in aggravation of repetitive conduct in count 1

1. The applicant submitted that count 1, the offence of ongoing supply, incorporated repetition. She submitted that the sentencing judge regarded count 3 as aggravating count 1.

1. There is no reference in the Remarks on Sentence to aggravation generally, not to any specific aggravation by reference to counts 1 or 3 or both.

1. Count 1 involved 3 separate instances over an 11-day period (7-18 May 2010) where the applicant supplied a customer with methylamphetamine who then left the premises with the drugs and was stopped by police and found in possession. It was obviously a business transaction rather than a social encounter. Count 3 involved a large number of transactions over a 6-week period where the applicant negotiated supplies to various customers some of whom would collect the drugs and some of whom would have the applicant deliver the drugs to them. Many of the conversations were in code with the drugs referred to as "pizzas", "steaks", "paperwork" and other terms.

1. In my view, the findings merely reflected what was evident from the charges and the Statement of Facts, namely, that the applicant was engaged in trafficking to a substantial degree even though, as his Honour noted, the individual quantities were relatively small and the applicant was not making large amounts of money. Her reward was drugs for her own use.

1. His Honour was obliged to take into account the overall criminality of the offences, consistent with the principles of totality: Pearce v R [1998] HCA 57; 194 CLR 610 at [40]. His Honour's findings about the nature of the dealing did not double count the element of repetition or in any way aggravate the criminality of any of the individual offences. None of the transactions relied upon in count 1 was relied upon in count 3. There was, in my view, no double punishment for the one offending course of conduct.

1. The applicant also contended that since the first transaction relied upon for count 1 occurred on 8 May 2010, all transactions up until 7 June 2010 (30 days later) ought to have been included in count 1, rather than charged as a separate count in count 3.

1. Section 25A(1) of the Act provides in part:

"25A Offence of supplying prohibited drugs on an ongoing basis

(1) Offence provision

A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.

Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both.

...

(3) Jury must be satisfied as to same 3 occasions of supply

If, on the trial of a person for an offence under this section, more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence."

1. In my view, there is nothing in s 25A which obliges the police to charge all offences that could be charged under s 25A in the same count. Indeed, charging only three occasions of supply under s 25A obviates the need to have the jury consider different permutations of charges to meet the requirements of s 25A(3). Furthermore, there were other reasons to separate the other occasions of supply which fell within the 30-day period and charge them separately. Those transactions relied upon in count 3 were to be proved by telephone intercepts establishing the negotiations rather than by subsequent arrest of the customer, as occurred with respect to the occasions of supply relied upon in count 1.

Ground 2: failed to pay adequate regard to subjective circumstances

1. The applicant identified several matters which she contended had not been given sufficient weight by the sentencing judge. These matters included the following, each of which was referred to by the sentencing judge:

(1) Her ex-husband had been murdered and she had been introduced to drugs by a subsequent de facto;

(2) Her reward was limited to drugs to support her own habit;

(3) She was remorseful;

(4) Her offending was out of character with her earlier years;

(5) Her prospects of rehabilitation were good at the time of sentence.

1. The obstacle faced by the applicant is that she has been able to identify only one matter of relevance that was not specifically adverted to by the sentencing judge in his careful Remarks on Sentence: the applicant's age. All other matters relied upon were specifically addressed. Although the applicant's age was not referred to in terms, the sentencing judge did refer to the fact that the applicant was the mother and custodial parent of a teenage daughter. This amounted, in my view, to a sufficient consideration of the applicant's stage in life at the time of sentence. This Court is a court of error. No error in the exercise of the sentencing judge's discretion has been identified. Accordingly, this ground must fail.

Ground 3: the sentence was manifestly excessive

1. There were many transactions. The applicant used two mobile phones, both of which were in false names. The recorded conversations and the charges as a whole showed that the applicant conducted an organised street level supply business with both enthusiasm and resourcefulness. The trafficking came to an end only when the applicant was arrested.

1. His Honour was also required to take into account five offences on the Form 1, including the applicant's exposing her 15-year old daughter to prohibited drugs.

1. Having regard to the criminality of the applicant's conduct, I am not satisfied that the overall sentence was excessive. Nor am I satisfied that the sentence for any of the three counts was excessive.

1. In my view, this ground must also fail.

Orders

1. For the foregoing reasons, none of the three grounds of appeal has been made out. I would grant leave to appeal but dismiss the appeal.

1. Accordingly, I propose the following orders:

(1)   Grant leave to appeal.

(2)   Order that the appeal be dismissed.

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Decision last updated: 14 December 2012