Chehab v The Queen

[2015] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chehab v R [2015] NSWCCA 44
Hearing dates:	13 March 2015
Decision date:	26 March 2015
Before:	Macfarlan JA at [1]; Simpson J at [2]; Schmidt J at [53]
Decision:	(1)  Grant leave to appeal; (2)  Dismiss the appeal.
Catchwords:	APPEAL - sentencing - aggravated break and enter with intent to commit serious indictable offence (larceny) - parity - whether trial judge failed to give effect to parity assessment - applicant’s role in offence - offence committed whilst on conditional liberty - no error found - appeal dismissed APPEAL - sentencing - whether sentence manifestly excessive - deemed supply, Drug Misuse and Trafficking Act 1985 (NSW), s 29 - whether possession for personal use - appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 21A(2)(j), s 23, s 44(2) Crimes Act 1900 (NSW), s 113(2) Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 29
Cases Cited:	Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 House v The King [1936] HCA 40; 55 CLR 499 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Pilley (1991) 56 A Crim R 202 R v Van Rysewyk [2008] NSWCCA 130 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Smith v R [2011] NSWCCA 163 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Hussein Chehab also known as Hassan Chehab (Applicant) Regina (Respondent)
Representation:	Counsel: A Francis (Applicant) N Adams (Respondent) Solicitors: W Jabakhangi (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/147326; 2012/165846
Decision under appeal	Court or tribunal: District Court Date of Decision: 29 November 2013 Before: Freeman ADCJ File Number(s): 2012/147326; 2012/165846

Judgment

1. MACFARLAN JA: I agree with Simpson J.

2. SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 29 November 2013 in respect of two offences. The first offence in time, of which the applicant was convicted after trial, was an offence of supply of a prohibited drug and was committed on 8 May 2012. In respect of this offence, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) the applicant asked that two offences of possession of prohibited drugs (identified on a Form 1) be taken into account. The second offence, of aggravated break and enter with intent to commit a serious indictable offence (larceny), to which the applicant entered a plea of guilty, was committed on 24 May 2012.

3. The drug offence is subject to a maximum term of imprisonment of 15 years (Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 29); the break and enter offence is subject to a maximum term of imprisonment for 14 years (Crimes Act 1900 (NSW), s 113(2)).

4. On the drug offence Freeman ADCJ sentenced the applicant to imprisonment for a term of 3 years and 6 months with a non-parole period of 2 years and 8 months and a balance of term of 10 months, commencing on 14 February 2013. For the break and enter offence, he imposed a term of imprisonment of 4 years, made up of a non-parole period of 2 years and a balance of term of 2 years, commencing on 14 February 2015 (and therefore accumulated on the previous sentence by 2 years). The commencing date of the first sentence was selected to coincide with the expiration of the non-parole period of a sentence previously imposed (as to which more will be said below).

The facts of the offences

(i)  the drug offence

5. On 8 May 2012 the applicant was driving his car in the vicinity of his home. It was stopped by police and his vehicle searched. He was in possession of $560 in cash, and of three mobile telephones, which rang frequently during the search. A search of the applicant’s home yielded electronic scales and a container. Inside the container were the drugs MDMA (ecstasy) (5.2 grams), cocaine (2.42 grams), heroin (0.29 grams), together with resealable plastic bags, aluminium foil and other items, many of which are associated with drug dealing. It was the MDMA that was the subject of the charge on the indictment. Possession of the cocaine and heroin gave rise to the two Form 1 offences. The Crown accepted that the applicant was a “user/supplier”. He was arrested, charged and, the following day, granted conditional bail.

(ii)  the aggravated break and enter with intent to commit serious indictable offence

6. The circumstances of this offence were put before the sentencing judge by way of an agreed statement of facts which was to the following effect.

7. At about 1.00am on 24 May 2012, the applicant, in company with several others (two of whom were Hamzeh Youssef and Ali Zeineddine) travelled to an address in Redfern. The premises were occupied by a man the offenders believed to be a drug dealer. He was present with others in his unit. The offenders entered, and demanded to know where the resident kept his drugs. The applicant directed the other offenders. The attempt was unsuccessful; the offenders did not penetrate the unit past the front door area and left without any property.

8. At about 1.40pm on the same day the applicant presented himself to the St George Police Station. He was arrested and cautioned. He participated in an electronically recorded interview, but made no admissions of his involvement. He was refused bail and has remained in custody since that date.

9. Both co-offenders, Youssef and Zeineddine, pleaded guilty to the charge in the Local Court. Both were sentenced (at different times) by Bennett DCJ. Youssef agreed to assist authorities and to give evidence against his co-offenders. He was therefore entitled to consideration of a reduction in his sentence pursuant to s 23 of the Sentencing Procedure Act. Combined with the reduction which he was allowed in respect of his plea of guilty, the sentence which otherwise would have been imposed was reduced by 50 per cent. In the result he was sentenced to imprisonment for 2 years, with a non-parole period of 1 year. Zeineddine was entitled to the reduction by reason of his plea of guilty, but did not provide assistance which would entitle him to a reduction under s 23. After reduction by 25 per cent of the sentence that would have been imposed, he was sentenced to imprisonment for 3 years with a non-parole period of 1 year and 6 months.

10. It is here to be noted that, although all offenders were participants in the same criminal excursion, the facts as presented to Bennett DCJ differed markedly from the facts tendered to Freeman ADCJ.

The applicant’s personal circumstances

11. Evidence of the applicant’s personal circumstances were given by way of a psychologist’s report, by oral evidence given by the applicant, and oral evidence given by his partner, Ms Zeynep Huseyin. The applicant read from a lengthy letter he had prepared addressed to the judge. The evidence disclosed the following.

12. The applicant was born in April 1983, in Australia, of Lebanese parents, the second of four children. He was 27 years of age at the time of the offending. According to the psychologist (Mr Machlin), the home was a scene of “perpetual conflict”; the applicant’s father was violent towards the applicant’s mother. His father worked night shifts as a taxi driver, working night shifts, as a consequence of which the children saw little of him. However, the applicant was subject to a number of suspensions from school, and, during these periods, was able to observe more closely the conflict between his parents. Part of the source of the conflict was the existence of two children of the applicant’s mother, by a previous marriage, of whom the applicant became aware only gradually.

13. The applicant has a criminal history that commenced in 2002, when he was dealt with in the Children’s Court on offences of aggravated assault with intent to rob and five counts of robbery in company. In 2003 he was sentenced in the District Court to imprisonment for 5 years (with a non-parole period of 2 years and 6 months) for an aggravated offence of taking and detaining a person with intent to obtain advantage. On 11 April 2011 he was arrested and charged with offences of being an accessory after the fact to aggravated break and enter with intent, and being an accessory after the fact of discharging a firearm in or near a public place. He was granted bail on these offences, and was sentenced on 14 November 2012, after the commission of the offences the subject of the present application. He was therefore subject to the terms of that bail order when he committed the present drug offence. By the time of the second offence he was subject to the conditions of two grants of bail. The offences for which he was arrested in April 2011 resulted in an overall sentence of 1 year and 9 months, with a non-parole period of 9 months, which expired on 13 February 2013 - hence the selection of the commencement date of the sentences the subject of the present application.

14. While the applicant was serving the 5 year prison term imposed in 2003, his father died. This was the cause of some distress, because he was unable to assume the family responsibilities of an older son in accordance with Islamic tradition.

15. The family conflicts increased, with the arrival in Australia of the applicant’s two half-brothers.

16. The applicant has a history of depression. He began illicit drug use at the age of 23, after his release from custody. By the time he committed the present offences, he had “an entrenched substance abuse habit” and qualified for a diagnosis of Substance Abuse Disorder. While in custody he has attempted to gain access to drug and alcohol rehabilitation courses, but these have not been available to him. He has had some contact with a drug and alcohol counsellor, and with a psychologist. As the psychologist (Mr Machlin) noted, his capacity to remain drug free in the community is untested.

17. The applicant has been in a relationship with Ms Zeynep Huseyin for some years. They have plans to marry. Ms Huseyin has two children, with whom the applicant has developed a close relationship. She gave evidence confirming the strength of the relationship. The applicant retains her support.

The Remarks on Sentence

18. The manner in which the facts concerning the break and enter offence were presented has been the occasion of some difficulty. Freeman ADCJ was conscious of the need to have regard to parity issues in sentencing, and had before him the sentencing remarks of Bennett DCJ when sentencing the two co-offenders, Youssef and Zeineddine. However, the agreed facts as presented to Bennett DCJ were different from those presented to Freeman ADCJ. As recounted by Bennett DCJ in his sentencing remarks, the offence involved a level of actual violence and the threat of the use of a weapon. The violence and threats were attributed, in those statements of the facts, to the applicant. Those allegations were absent from the facts presented to Freeman ADCJ. That meant that the facts of the offence for which Bennett DCJ was sentencing were objectively more serious than the facts (of the same offence) for which Freeman ADCJ was sentencing. However, on the facts before Bennett DCJ, Youssef and Zeineddine played roles that rendered them less culpable than the applicant; specifically, the facts alleged that the applicant was, but they were not, involved in the violence. By contrast, Freeman ADCJ was called upon to sentence the applicant on a version of the offence that was less serious than the version on which Bennett DCJ proceeded.

19. Freeman ADCJ was conscious of the discrepancy, and conscious that his task was to sentence the applicant in accordance with the agreed facts as tendered to him. After recounting the circumstances of the offence, his Honour turned his attention to the question of parity. He noted that, notwithstanding that the agreed facts on which Bennett DCJ sentenced Youssef and Zeineddine asserted that the offence was accompanied by actual violence, and the threat of a use of a weapon, Bennett DCJ expressly “excluded Youssef and Zeineddine from being involved in those aggravating elements”. Freeman ADCJ asked himself whether the discrepancy made “much practical difference”. He recognised that the different factual scenarios precluded his sentencing on the basis that the applicant was “the promoter, the instigator and the principal felon”, but also accepted (on the basis of the statement of facts before him) that, at the time of entry, “it was [the applicant] who was giving most of the directions”. He concluded that the applicant’s criminality was not to be regarded as any less than that of Youssef and Zeineddine, who, he said, were sentenced “as minor players in a somewhat more serious crime”. The applicant, he considered, was to be sentenced “as a full player in a crime marginally less serious”. He then said:

“Sentencing is not a mathematical exercise, nor can the intuitive synthesis yield to distinctions without any real difference. The agreed facts [as presented to him] no longer portray [the applicant] as the arch villain. I am bound to sentence in accordance with those and, clearly, [the applicant] should not receive a sentence more onerous than that imposed on Zeineddine and Youseff. I am not persuaded, on this argument, that he should receive any less.” (italics added)

These observations have given rise to the sole ground of appeal against the sentence for the break and enter offence.

20. Freeman ADCJ rejected a submission advanced on behalf of the applicant that his criminal record was more favourable than that of either Youssef and Zeineddine, and said:

“… I draw the conclusion that a comparison of [the applicant’s] criminal history with those of his co-offenders does not advantage him. His history represents a very much more serious criminality. That, of course, does not aggravate the present offence, nor does the fact that he was at conditional liberty at the time of committing these offences, although this speaks to his prospects of rehabilitation. It is certainly not a footing on which he should receive treatment more favourable than his co-offenders.” (italics added)

21. Several other aspects of the Remarks on Sentence call for specific mention. One is the approach taken by Freeman ADCJ to the benefit to be afforded to the applicant by reason of his plea of guilty to the break and enter offence. He recorded that this plea was entered at a late stage, after the matter had been fixed for trial, and that counsel for the applicant sought a reduction of 15 per cent, to which the Crown was “not opposed”. His Honour did not accept that joint approach, and allowed a reduction of 12.5 per cent.

22. A second is that he found, pursuant to s 44(2) of the Sentencing Procedure Act, special circumstances justifying departure from the statutory ratio between the head sentence and the non-parole period. In the result, the non-parole period represents 50 per cent of the total sentence, a significant reduction of the statutory ratio of 75 per cent.

23. So far as the drug offence is concerned, it was necessary that Freeman ADCJ make findings of fact, on the basis of the evidence in the trial, and not inconsistent with the jury verdict. This his Honour did, in terms as set out earlier in these reasons (see ([5] above). He found that the applicant was “involved in trafficking to a significant extent”, and that he was a “user/supplier”. He therefore considered that the applicant was not to be subject to the “additional sanction” that would have been appropriate had he been found to be “cynically supplying for financial gain alone”.

The grounds of the application

24. One ground only in respect of each sentence is pleaded. The grounds are:

“1.  The sentencing judge erred in failing to give effect to his parity assessment in the imposition of the sentence for the break and enter offence.

2.  The sentence imposed in respect of the deemed supply offence is manifestly excessive.”

Ground 1: the parity assessment

25. This ground depended entirely upon the observation (see [19] above) that “[the applicant] should not receive a sentence more onerous than that imposed on Youssef or Zeineddine”. Counsel for the Crown accepted that that observation was not reflected in the sentence imposed. In order to appreciate this ground, it is necessary to examine, not the sentence as finally imposed on each offender, but the starting points of each before the relevant reductions.

26. Youssef’s sentence was of 2 years with a non-parole period of 1 year. He was given a reduction of 50 per cent (for assistance and the plea of guilty). The starting point was therefore 4 years.

27. Zeineddine’s sentence was 3 years. He was given a 25 per cent reduction for his plea of guilty. The starting point was therefore also 4 years.

28. The applicant’s sentence was 4 years. However, that followed a reduction of 12.5 per cent in recognition of his plea of guilty. The starting point was therefore 4 years and almost 7 months. (An alternative way of looking at it is that his Honour sentenced the applicant in parity with both co-offenders, but overlooked the inclusion of the reduction in the final sentence. If that were so, it would give rise to a different ground of appeal.)

29. The Crown’s approach in responding to the applicant’s submissions was to accept that his Honour did not give effect to his observation that the applicant should not receive a sentence more onerous than that imposed on the co-offenders, but to point to other circumstances that balance that error (if error it was).

30. The first of these was the finding (see [20] above) that the fact that the applicant’s offence was committed whilst at conditional liberty did not aggravate the offence. This, counsel for the Crown argued, was an error.

31. Counsel for the applicant challenged that assertion. She referred to authorities which, she claimed, demonstrated that commission of an offence whilst at conditional liberty is not an aggravating factor. The authorities referred to are:

Smith v R [2011] NSWCCA 163 at [26];

Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30];

R v Van Rysewyk [2008] NSWCCA 130 at [25].

32. The submission is untenable. In each of the cases cited, the finding is that commission of an offence whilst on conditional liberty is not a circumstance relevant to the assessment of the objective gravity of the offence: R v Way [2004] NSWCCA 131; 60 NSWLR 168. The fallacy in the submission is exposed by simple reference to s 21A(2)(j) of the Sentencing Procedure Act, which puts beyond doubt that commission of an offence whilst on conditional liberty is an aggravating factor for sentencing purposes. In this respect the Crown is correct to assert that Freeman ADCJ was in error, but in a way that favoured the applicant. This circumstance is relevant to the disposition of the appeal, if error is otherwise found.

33. The Crown further initially contended that the allowance made for the plea of guilty of 12.5 per cent was “unduly generous”. When confronted with the acceptance by the Crown in the District Court that 15 per cent was an appropriate reduction, he abandoned this submission.

34. The Crown also argued, with some force, that the assessment made by Freeman ADCJ of the applicant’s role in the offence unduly favoured the applicant. On the facts as presented to him, the applicant was directing the other offenders while at the scene of the crime. Freeman ADCJ found that he was a “full player” in contrast to Youssef and Zeineddine, who were “minor players”. This assessment of the applicant’s role, the Crown argued, warranted more significant punishment. Moreover, his Honour found that the applicant’s criminal history was more serious than those of the co-offenders; the result of such a finding is that any leniency that might be allowed is modified.

32. Finally, the Crown pointed to the significant benefit given to the applicant by the finding of s 44(2) special circumstances, and the extent (50 per cent) to which the ratio was consequently varied.

Resolution

36. There is significant force in each of the arguments (excluding that concerned with reduction for the plea of guilty) advanced on behalf of the Crown. Moreover, I am not persuaded that the observation that gave rise to this ground is of the character that has been ascribed to it. The observation was made in the context of a discussion of the objective circumstances of the offence, by reference to the differential statements of the relevant facts. In my opinion, all his Honour was saying was that he was obliged to treat the circumstances of the offence as they were presented to him, and that that of itself did not justify a more serious punishment for the applicant. The observation was not directed to other sentencing considerations. His Honour proceeded to deal with those other relevant sentencing considerations, many of which, as appears above, warranted imposing a more severe punishment on the applicant than was imposed on the co-offenders.

37. In my opinion this ground fails.

Ground 2: the drug offence - manifestly excessive?

38. In order to succeed on this ground, it is necessary that the applicant show that the sentence imposed was “unreasonable or plainly unjust”: House v The King [1936] HCA 40; 55 CLR 499; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; Markarian v The Queen [2005] HCA 25; 228 CLR 357.

39. The evidence in the trial was not before this Court. It appears, however, that the Crown relied upon s 29 of the Drug Misuse and Trafficking Act, which relevantly provides:

“29  A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:

(a)  the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or

(b)  …”

40. A traffickable quantity of MDMA is 3 grams. The applicant was in possession of 5.2 grams. The deeming provision of s 29 therefore came into effect. Counsel for the applicant said, in written submissions (without contradiction by the Crown), that, at trial, the applicant conceded legal possession of that quantity of the drug, but claimed (and gave evidence) that it was in his possession for personal use. In the absence of any assertion to the contrary, I assume that he made this claim in respect of the whole of the 5.2 grams. If the jury had accepted, on the balance of probabilities, that assertion, the applicant was not guilty of the offence of supply. It is evident from the verdict that the jury did not accept the assertion.

41. Freeman ADCJ made no express finding as to any quantity of drug that the applicant may have had in his possession for his own use. This was the subject of some criticism of the sentencing judge, at least by implication. The transcript of proceedings on sentence shows that the submissions made on behalf of the applicant were directed entirely to the break and enter offence; no submission was directed to the drug offence. It was never suggested that the sentencing judge might make some assessment of what quantity (if any) of the MDMA he might have had in possession for personal use. It is not at all clear that the evidence would have allowed such an assessment.

42. The argument that followed was to the following effect.

43. Since a traffickable quantity of MDMA is 3 grams, and the applicant had in his possession 5.2 grams, the jury verdict meant only that it found that the applicant had 3 grams in possession for the purpose of supply. There having been evidence in the trial that the applicant was a drug user, a finding by the judge that the applicant was a “user/supplier”, and no finding as to what proportion of the drug was in his possession for the purpose of supply and what proportion (if any) for personal use, he could only be sentenced on the basis that 3 grams was for supply.

44. As mentioned above, no such submission was put to the sentencing judge, and he was not invited to differentiate between quantities of the drug, or the purposes for which the applicant had it in his possession.

45. In R v Pilley (1991) 56 A Crim R 202, Finlay J (with whom Handley JA and Allen J agreed) said:

“In my view it was not open to the learned sentencing judge to deal with the matter on any [basis other than that the offender had the drug in his possession for supply]. To do so would be inconsistent with the jury’s verdict having regard to the scheme of the legislation.

Certainly it would be open for a person convicted in these circumstances to satisfy the judge, as a matter of mitigation, that on the balance of probabilities the supply that he intended was only to give it, for example, gratuitously to an invalid relative. Of course, there were no such facts here.”

46. Nor was there any evidence identified to this Court in the present case that would enable differentiation to be made with respect to any part of the drug that the applicant intended to supply, and any part that he intended to retain for his own use.

47. Although, in the absence of contradiction by the Crown, I would accept that the applicant gave evidence of his own drug use, and that the sentencing judge accepted that he was a “user/supplier”, finding that the applicant dealt “to a significant extent” in the drug. Such a finding was inevitable in the light of the evidence of the other items found in the applicant’s possession - resealable plastic bags, aluminium foil, electronic scales, mobile telephones, and a reasonably large sum of money.

48. I do not accept that the applicant was to be sentenced on the basis that only 3 grams of the MDMA was in his possession for the purpose of supply. He was to be sentenced, as Freeman ADCJ found, as a dealer “to a significant extent”. I find no error in the approach of Freeman ADCJ in this respect.

49. The final argument was that, by reference to cases said to be comparable, the sentence imposed was manifestly excessive.

50. The basic premise of this argument also was that the applicant was to be sentenced for the supply of only 3 grams of MDMA. I have already rejected that proposition. The question that remains is whether the sentence imposed was manifestly excessive as a sentence for a dealer “to a significant extent” who was in possession of 5.2 grams of the drug.

51. It has been made abundantly plain by the High Court that, while the quantity of drug involved in an offence is a relevant consideration, it is far from the only consideration: Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584. All other relevant considerations were appropriately taken into account by Freeman ADCJ. There is nothing in any of the individual cases to which reference was made that persuade me that his Honour’s sentencing discretion miscarried. I would reject this ground of appeal.

52. Accordingly the orders I propose are:

1. Grant leave to appeal;

2. Dismiss the appeal.

53. SCHMIDT J: I agree with Simpson J.

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Decision last updated: 26 March 2015