Chamoun v The Queen

[2019] NSWCCA 169

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chamoun v R [2019] NSWCCA 169
Hearing dates:	26 June 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Before:	Gleeson JA at [1] Harrison J at [2] Adams J at [34]
Decision:	(1) Grant leave to appeal. (2) Dismiss the appeal.
Catchwords:	CRIME – sentence appeal – where applicant convicted of supplying a commercial quantity of prohibited drug – where applicant sentenced to imprisonment for 3 years with a non-parole period of 18 months – whether sentencing judge erred in assessing the role of the applicant in the offence – whether sentencing judge erred in not concluding that delay in entering guilty plea was caused by factors outside of legal representative’s control – whether sentencing judge erred in only reducing the sentence by 10 per cent for guilty plea
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 Crimes Act 1900 (NSW), ss 93T(1), 193B(3) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Criminal Assets Recovery Act 1990 (NSW), ss 10A, 10B(3)(B)
Cases Cited:	Mulato v R [2006] NSWCCA 282 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
Category:	Principal judgment
Parties:	Sam Chamoun (Applicant) Crown (Respondent)
Representation:	Counsel: K Ratcliffe (Respondent)   Solicitors: Pryor Tzannes & Wallis (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2012/76499
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court at Newcastle Jurisdiction: Criminal Date of Decision: 9 August 2018 Before: Hock DCJ

Judgment

1. GLEESON JA: I agree with Harrison J.

2. HARRISON J: Sam Chamoun pleaded guilty in the District Court of New South Wales to one offence of supplying not less than a commercial quantity of a prohibited drug, between 14 November 2011 and 9 March 2012, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Mr Chamoun was sentenced on 9 August 2018 to a term of imprisonment for 3 years commencing on 7 August 2018 and expiring on 6 August 2021 with a non-parole period of 18 months expiring on 6 February 2020. In sentencing Mr Chamoun, her Honour Hock DCJ took into account two other offences placed on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, namely, recklessly deal with the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 and participate in a criminal group contrary to s 93T(1) of the Crimes Act. Mr Chamoun was also convicted of a further offence of possessing a prohibited drug on a s 166 Certificate.

3. Mr Chamoun now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him on the following grounds:

Ground 1: the sentencing judge erred in placing the applicant’s role only at a slightly lower level than the role of his co-offender Mr Ward.

Ground 2: the Court was in error in coming to the conclusion that it could not be satisfied on the balance that on the whole of the evidence “the delay before the applicant entered his plea of guilty was caused by factors outside of his or his legal representative’s control”.

Ground 3: the Court erred in merely reducing the sentence by 10 per cent for the utilitarian value of the plea.

Agreed facts

4. Mr Chamoun was sentenced upon the basis of reasonably extensive agreed facts. These facts were thoroughly reviewed by her Honour in her remarks on sentence.

5. In summary, Mr Chamoun was the proprietor of a Jax Tyre franchise located in Spring Street, Bondi Junction. In July 2011, police identified a number of individuals of interest, including Mr Chamoun, who worked there. Subsequent investigations revealed that between September 2011 and March 2012, Mr Chamoun was part of a criminal group that included Mr Ward, Mr Hennessy and Mr Hill, who were involved in the supply of cocaine from the franchise premises.

6. Mr Chamoun supplied 250 grams of cocaine on the basis that he facilitated the transactions by allowing his business premises to be used for that purpose. He was also involved in the actual supply of cocaine to customers.

7. On 8 March 2012, Mr Chamoun’s house was searched by police, who uncovered a large amount of cash. This money turned out to correspond to the currency used by undercover police to purchase cocaine during controlled operations.

8. Messrs Ward, Hennessy and Hill were charged on the same day as Mr Chamoun. All pleaded guilty apart from Mr Chamoun. Mr Ward was sentenced to a total term of 5 years and 3 months imprisonment with a non-parole period of 2 years and 6 months. The sentences of Mr Chamoun’s co-accused have now all expired.

Findings on sentence

9. In sentencing Mr Chamoun, her Honour made the following findings:

1. He was to be sentenced on the basis that the quantity of cocaine he supplied was at the threshold of the commercial quantity.

2. His role was difficult to identify from the statement of facts. The evidence established that Mr Ward was the person who actually supplied the drugs on all but one occasion. By his plea, Mr Chamoun acknowledged that he was a participant in this enterprise. It is not uncommon for those who are more senior in the criminal enterprise to distance themselves from the actual transactions.

3. The fact that Mr Chamoun had $17,350 of the buy money in his home was significant.

4. It was not possible to be satisfied beyond reasonable doubt that Mr Chamoun was in a more senior position to Mr Ward. His role was therefore at a slightly lower level. Mr Chamoun was clearly engaged in trafficking to a substantial degree.

5. Overall Mr Chamoun’s offence fell significantly below the mid-range of objective gravity.

6. Hardship caused to Mr Chamoun’s partner and children related to his imprisonment fell into the category of “highly exceptional” and should be taken into account.

7. Mr Chamoun was addicted to cocaine at the time of the offence, which presumably played a part in his decision to commit it.

8. Mr Chamoun appeared to have completely rehabilitated himself in the six years since the commission of this offence. He no longer used illegal drugs, there was evidence of his remorse and he appeared to be extremely unlikely to reoffend.

9. Mr Chamoun had not been the victim of entrapment. This was clearly a case where he was involved in an enterprise to sell drugs.

10. There had been an extraordinary delay in the matter being finalised.

11. Periods of delay after the plea was entered, which were not attributable to the conduct of Mr Chamoun’s legal representatives, should be taken into account.

12. Mr Chamoun’s bail conditions were not “onerous” for an offence of supplying a commercial quantity of cocaine.

13. The respective subjective cases of Mr Ward and Mr Chamoun were quite different, in that Mr Ward was considerably younger. Neither had prior convictions of any kind and both had excellent prospects of rehabilitation.

14. Mr Chamoun was sentenced on the basis that the quantity of cocaine supplied in Count 1 was 36 grams less than Mr Ward and there was no Form 1 matter in respect of the significant additional supply by Mr Ward of 900 grams of cocaine which was taken into account in Mr Ward’s sentencing, a charge that was based solely on Mr Ward’s submissions which entitled him to significant leniency.

15. Mr Chamoun was sentenced on the basis that his role was at a slightly lower level than Mr Ward.

16. A fulltime custodial sentence was the only appropriate penalty.

17. The appropriate starting point for Mr Chamoun’s sentence was 3 years and 6 months.

18. There should be a discount of 10 per cent for the utilitarian value of the plea entered two days after the matter was listed for trial in 2017.

19. There were special circumstances because Mr Chamoun would benefit from having a longer period of supervision on parole after his first period in custody at age 44.

Ground 1

10. Mr Chamoun submitted that “there was nothing in the agreed facts on which the Court could make a finding beyond reasonable doubt…that [his] role was ‘slightly lower’ than…Mr Ward” and that her Honour did not “expose in her reasoning the basis for such [a] finding”.

11. With respect first to the agreed facts, the following paragraphs are instructive:

“121. The offender was offered the opportunity to participate in an electronically recorded interview which he accepted. In that interview he told police that he was the franchise owner of Jax Tyres and the employer of Ryan Ward, Gregory Hennessy and others. The offender was asked if he was aware that drugs were being supplied from the premises and the offender replied, ‘should be off the premises … was kind of [aware] it was happening but I sort of said “hey not at work”’ [Q&A 53 & 54].

122. The offender further admitted that he was aware of Ryan Ward supplying cocaine [Q&A 56] but denied any involvement himself [Q&A 66]. The offender did admit however to having lent Ward money.

123. At A70 he said, ‘wasn’t supposed to be in the business. I believe some heavies were, not heavies but someone warned him one day and said they were coming to get him and I think they were chasing some money I don’t know he said something about that. I don’t know who they were. Possibly trying to make a quick dollar …’

124. The offender later stated however that he would see customers come into the shop to buy drugs and possibly helped out once or twice in the sale of cocaine [Q&A 87]. At A131 he admitted that he told a customer to ‘try someone’s other number’.

125. The offender did admit to meeting ‘Jessica’ and states that he thought she was some sort of dealer [Q&A 156]. The offender also admitted to being a regular user of cocaine and stated that he would buy from Ryan Ward.

…

133. The Crown case against the offender is that he approached Ryan Ward with a way to make money and to pay off his debts being to sell cocaine.

134. It is accepted by the offender that Ryan Ward owed the offender money.

135. It is also accepted by the offender that Ryan Ward was mainly doing the supplies of cocaine and that the offender supplied the premises/location from which Ryan Ward engaged in those supplies.

136. Whilst the offender may not have been conducting the majority of the supplies, the offender acknowledges that out of money found at his residential premises, $17,350 was later found by police to be ‘buy’ money marked by the police. The offender accepts he was reckless as to whether this money was from the sale of drugs (see offence under section 193B(3) Crimes Act 1900 on the Form 1).

137. The offender also accepts that he ought reasonably to have known that he was participating in a criminal group (which group included Ryan Ward, Greg Hennessy and Nelson Hill) in that he ought reasonably to have known that his own involvement contributed to the criminal activity of that group (see Participate in Criminal Group offence under section 93T(1) Crimes Act 1900 on the Form 1).”

12. Her Honour specifically adverted to these facts and quoted a large section of them in her remarks on sentence.

13. With respect to her reasoning process, her Honour said this:

“The evidence establishes that Mr Ward was the person who actually supplied the drugs on all but one occasion. However, by his plea, the offender acknowledges that that he was a participant in this criminal enterprise. It is not uncommon for those who are more senior in the criminal enterprise to distance themselves from the actual transactions.

In my view, it is significant that he had $17,350 of the buy money in his home. However, I cannot be satisfied beyond reasonable doubt that the offender was in a more senior position to Mr Ward and, therefore, I will sentence him on the basis that his role was at a slightly lower level. Quite clearly, the offender was engaged in trafficking to a substantial degree.

Overall, in my view, the offence falls significantly below the mid-range of objective gravity.”

14. In my view, her Honour’s characterisation of Mr Chamoun’s role, either in absolute terms as a person engaged in trafficking to a substantial degree or in relative terms compared to Mr Ward, is unexceptionable. Mr Chamoun made his tyre business premises available as a site that would appear to have become known as a centre for the supply of cocaine. I consider that Mr Chamoun’s written submissions describing him as “suffering” his premises to be used for this purpose is apt to mislead. It tends to imply that Mr Chamoun did so only begrudgingly or reluctantly and conveys an impression that is impermissibly and inappropriately favourable to him. The fact that Mr Chamoun in effect implored his associates to conduct their activities off-site, and expressed annoyance at the prospect that they might not do so, is no more than an act or statement consistent with his knowledge of and involvement in what was occurring. It seems reasonably apparent that Mr Chamoun was not disavowing his involvement in drug trafficking so much as expressing concern that the activities of supplying drugs being conducted by his employees should not attract unnecessary attention to his otherwise legitimate business.

15. Moreover, as her Honour specifically discussed, the fact that Mr Chamoun was in possession of a substantial sum of money representing the proceeds of the sale of drugs is not without significance. On one reading of her Honour’s remarks, her characterisation of Mr Chamoun’s role was particularly favourable to him, when regard is had to her comments concerning the tendency, in her Honour’s experience, for those who are more senior in a criminal enterprise to distance themselves from the transactions that occur on the street. Her Honour’s stated inability to be satisfied beyond reasonable doubt that Mr Chamoun was more senior than Mr Ward produced a conclusion, not that they were on the same level, but that Mr Chamoun was on a slightly lower level. That finding was clearly explained and was entirely open to her Honour. As the Crown has observed, the facts reveal that Mr Chamoun was present at the business premises on each occasion when drugs were supplied and on a number of occasions engaged in conversation with an undercover officer before directing her to one of his employees.

16. An applicant who asserts error of this type faces a difficult task. Many cases will be obvious, such as where a sentencing judge mistakes the facts or ignores some important matter. This is not such a case. Mr Chamoun’s contention rises no higher than a complaint that her Honour should have arrived at a different result. As is well known, the possibility that a different sentence might have been imposed by some other judge or even that this Court might have a different view of the outcome is no basis for interfering with a decision arrived at without demonstrable error. In the present case, her Honour acknowledged the difficulties that were present. The well-known remarks of Simpson J at [46] in Mulato v R [2006] NSWCCA 282 are apposite.

17. This ground is not made out.

Ground 2

18. Her Honour dealt with the question of delay at some length in her remarks on sentence. The following extract should be noted:

“It is obvious from the date of the offender’s arrest, 8 March 2012, that there has been an extraordinary delay in this matter being finalised. There was a period of just under five years before the plea was entered, a period from March 2012 to February 2017. Thereafter, there has been a further period of 18 months before the matter was concluded today, 9 August 2018.

The chronologies of the parties, exhibit C and exhibit 5, set out salient events. There was considerable evidence about delay and its cause. In essence, the offender contends that the delay from mid to late 2013 to February 2017, when the plea was ultimately entered, was attributable to the NSW Crime Commission’s decision not to release funds for his legal representation. It was submitted that without funds the offender could not obtain appropriate legal advice.

However, the Crown Prosecutor pointed out in his submissions that in his affidavit of 22 August 2017, which is part of exhibit 1, the offender’s solicitor stated, at para 6, ‘I indicated Mr Chamoun’s willingness to plead on facts similar to these now agreed facts in January 2014.’ That clearly indicates, in my view, that the offender had had some legal advice about his position and had given instructions to plead guilty.

Despite that, the matter was listed for trial three times in the District Court, with an estimate of 20 days. On each occasion the trial was vacated on the application of the offender, on the basis that he was indigent. Without delving into all the evidence about delay set out in exhibit 1, tab 7 and exhibits 2, 3, 5 and exhibit E, for reasons that are not clear to me, the offender’s solicitor sought to settle the civil proceedings first with the Crime Commission. The Crime Commission took the opposing view. The proceedings have ‘limped along’ for all this time.

Ultimately, on 5 August 2016, following a request for reasonable legal expenses, $283,800 was released. The result seems to be that the offender has expended a huge amount of money and had the stress and anxiety of this matter hanging over his head for more than six years, in circumstances where Mr Ward was sentenced by me in March 2013. Mr Ward has served not only the non-parole period; he has served his entire sentence.

The two cases stand in stark contrast and, in my view, the path taken by the offender and his legal representatives has acted to his considerable detriment.

On the whole of the evidence I am not satisfied on the balance of probabilities that the delay before the offender entered his plea was caused by factors outside his or his legal representatives’ control.

As to the lengthy period from the time the plea was entered to the matter being finalised, the chronology attached to these reasons sets out the relevant dates and events.

I have taken into account the periods of delay between the plea being entered where the delay was not attributable to the conduct of the offender’s legal representatives.”

19. Mr Chamoun was arrested and charged on 8 March 2012. He was committed for trial on 29 July 2013 and the matter was thereafter listed for trial on four occasions, namely, 16 June 2014, 29 October 2015, 25 July 2016 and 6 February 2017. The first three trial listings were vacated on Mr Chamoun's application, on the basis that he was indigent. However, on 8 February 2017, two days after the fourth listing, he entered a plea of guilty.

20. There was considerable evidence and argument at the sentence proceedings in relation to the delay in the criminal proceedings up to the entry of the applicant's plea of guilty on 8 February 2017.

21. Mr Chamoun's submission was that the delay was the responsibility of the NSW Crime Commission and not him or his legal representatives, because the Commission had obtained a Supreme Court order on 5 April 2012 restraining his interests in property pursuant to s 10A of the Criminal Assets Recovery Act 1990. He argued that he therefore could not secure access to funds to pay his legal representatives and was accordingly unable to receive legal advice with respect to the criminal proceedings that he faced.

22. In response to this argument, the Crown obtained evidence from the Commission in the form of an affidavit from Rindala Katrib, a solicitor employed by the Commission, sworn 1 February 2018, which attested to the following things:

1. On 5 April 2012, on the Commission's application, the Supreme Court made an order restraining all of the interests in property of Sam Chamoun.

2. On 11 June 2013, Mr Macaulay, Mr Chamoun’s solicitor, attended the Commission on behalf of Mr Chamoun for the first without prejudice discussions.

3. Section 10B(3)(b) of the Act makes provision for payment of reasonable legal expenses of a person whose interests are restrained and who is defending a criminal charge out of restrained property.

4. Mr Chamoun did not make an application prior to 26 May 2016 for the release of reasonable legal expenses pursuant to s 10B(3)(b) of the Act.

1. When the first application to vacate the criminal trial listed for 16 June 2014 was made by Mr Chamoun on 8 May 2014, the Commission appeared and informed the Court of the provision to release reasonable legal expenses under s 10B(3)(b) and that no application had been made under this provision. Mr Chamoun's solicitor confirmed this was the position and informed the Court that he was unwilling to be paid at the prescribed rates.

2. On 13 May 2014, the Commission and Mr Macaulay arranged a second without prejudice discussion, but no application for reasonable legal expenses was made at that time.

3. On 22 May 2014, the trial listed for 16 June 2014 was vacated on Mr Chamoun's application on the grounds that his interest had been restrained and he was unable to secure access to his funds.

4. On 29 October 2015, the trial listed for 2 November 2015 was vacated on Mr Chamoun's application, on the same grounds as before.

5. On 26 May 2016, Mr Chamoun applied for the first time for the release of reasonable legal expenses pursuant to s 10B(3)(b) of the Act.

6. On 28 June 2016, the Supreme Court granted orders by consent for the payment of Mr Chamoun's reasonable legal expenses in the specified amount of $150,000.

7. On 15 July 2016, Mr Chamoun made a second application for the release of further reasonable legal expenses. The Commission consented to the request and provided draft orders for consideration on 21 July 2016.

8. On 25 July 2016, the trial listed for 22 August 2016 was vacated on Mr Chamoun's application on the grounds that there was insufficient time for him to access the funds which were released by court order on 28 June 2016, and because the funds were insufficient.

9. On 5 August 2016, the Court made orders by consent for the payment of Mr Chamoun's reasonable legal expenses in the amount of $283,800. These orders replaced those made on Mr Chamoun's first application for reasonable legal and living expenses.   

23. Mr Chamoun’s submissions in support of this ground distil to a complaint that her Honour did not properly assess all of the evidence and did not properly consider all of his submissions which, on his account, would have led her Honour to conclude that the delays that were occasioned in this matter were, on balance, caused by factors outside the control of Mr Chamoun or his legal representatives.

24. With great respect to the author of these detailed submissions, I am unable to accept them. The burden of Mr Chamoun’s complaint is that her Honour should have come to a different conclusion and would have done so if she had properly considered the evidence and read his submissions. The difficulty with that contention is that it is apparent from her remarks on sentence that she did precisely that. It is demonstrably clear that her Honour read the affidavits upon which Mr Chamoun wished to rely. It is not contended that the summary of events prepared by Ms Katrib, the solicitor from the Crime Commission, summarised above at [22], is inaccurate or unfair or misleading. It is difficult to see how or in what way her Honour’s conclusions were not supported by, or available to be made having regard to, that material.

25. Mr Chamoun’s solicitor had instructions as early as January 2014 to plead guilty to the charges. The delay in entering his plea was thereafter caused by Mr Chamoun’s own actions or instructions. Mr Chamoun’s solicitor could have made an application for reasonable legal expenses pursuant to s 10B(3)(b) of the Act at any time between 5 April 2012 and 26 May 2016. The extensive nature of the brief of evidence would not have precluded such an application and on one view might ordinarily be expected to have prompted it.

26. It was entirely open to her Honour to conclude that the cause of the delay in finalising the proceedings was caused by Mr Chamoun and not otherwise.

27. This ground of appeal is not made out.

Ground 3

28. Mr Chamoun contends that he should have received a discount of 17 per cent instead of 10 per cent for the utilitarian value of his plea. This is said to be based upon the fact that the complexity and size of the brief made it difficult or possibly even impossible to do so sooner. Mr Chamoun also maintains that his plea avoided a very long trial in circumstances where the Crown case was said to be questionable.

29. Generally, reasons for any delay in entering or offering a plea are irrelevant because the utilitarian value of the plea is referable to foreclosing the prospect of a trial rather than the content of an explanation of an offender’s motivation in doing so: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102.

30. Her Honour’s relevant remarks were as follows:

“I have taken into account the plea of guilty, which was entered two days after the matter was listed for trial in 2017. I have reduced the otherwise appropriate sentence by 10% for the utilitarian value of the plea to the criminal justice system and as indicating an acceptance of responsibility and a willingness to facilitate the course of justice.”

31. The circumstances of this case are somewhat unusual, particularly having regard to the extensive delays between charging and sentencing and to the related fact that Mr Chamoun’s trial was listed for hearing but vacated on several occasions. Even if Mr Chamoun were able to suggest that a larger discount could have been applied, that is not the same as establishing that her Honour’s assessment of 10 per cent was erroneous in the sense that it was not reasonably available to her having regard to the circumstances of the case and the limits upon her sentencing discretion.

32. This ground of appeal is not made out.

Orders

33. I would make the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

34. ADAMS J: I agree with Harrison J.

**********

Decision last updated: 29 July 2019