DPP v Malcolm; R v Nassar
[2002] VSCA 170
•8 October 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS | No. 184 of 2002 |
| v. | |
| ANTHONY MALCOLM | |
| THE QUEEN | No. 170 of 2002 |
| v. | |
| RAMZI NASSAR |
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JUDGES: | PHILLIPS and CALLAWAY, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 October 2002 | |
DATE OF JUDGMENT: | 8 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 170 | |
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Criminal law – Sentencing – Trafficking in cocaine – Co-offenders with different levels of participation and different roles – Whether same sentence for both appropriate – Director’s appeal that sentence inadequate – Application by co-offender that sentence excessive – Appeal and application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr P.A. Coghlan, Q.C., D.P.P. and Mr T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent Malcolm | Mr P.F. Tehan, Q.C. and Mr M. Amad | Amad & Amad |
| For the Applicant Nassar | Mr O.P. Holdenson, Q.C. | Valos Black & Associates |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. and Mr T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
PHILLIPS, J.A.:
On 27 June 2002 Anthony Malcolm and Ramzi Nassar were each sentenced in the County Court at Melbourne on one count of trafficking in a drug of dependence, namely cocaine. Malcolm was presented for so trafficking between 15 December 2000 and 17 April 2001. Nassar was presented for so trafficking between 20 February 2001 and 17 April 2001. The offence carries a maximum sentence of 15 years' imprisonment and both Malcolm and Nassar pleaded guilty. Each was sentenced to three years' imprisonment, 18 months of which was suspended for three years. In the case of Nassar, who was already undergoing a sentence of imprisonment of eight months to which he had been sentenced on 17 May 2002, it was ordered that the 18 months to be served in custody should be served cumulatively upon the earlier sentence.
In relation to Malcolm, the Director of Public Prosecutions now appeals on the ground that the sentence imposed was manifestly inadequate. For his part, Mr Nassar seeks leave to appeal on the ground that the sentence imposed was manifestly excessive and further, by grounds added only last week, that the judge failed to give weight, or sufficient weight, to the principle of parity or the principle of totality and erred in directing cumulation on the earlier sentence. In my opinion there is nothing in either the appeal or the application for leave to appeal.
The circumstances of the offending are set out in the sentencing remarks of the judge and there is no need to repeat the details. In broad outline, Malcolm became the target of a police drug trafficking investigation in December 2000 and in the course of that investigation he sold to an undercover operative a quantity of cocaine on a number of occasions. On 15 December, the subject matter of the sale was .87 grams of cocaine with an approximate purity of 20 per cent, which was sold for $200. After a number of other transactions, on 20 February the undercover operative attended at Malcolm's apartment and purchased an ounce of cocaine for $6,000. On this occasion, Nassar was present and Malcolm handed the $6,000 to Nassar. Further sales followed, including a further sale of cocaine for $6,000, another for $12,000 and on 17 April, in a car park in South Melbourne, five ounces of cocaine were sold to the undercover operative for the sum of $28,500. The cocaine sold on this last occasion was approximately 60 per cent pure. In sum, over a period of four months, Malcolm trafficked to the undercover operative some 254 grams of cocaine. Nassar was implicated in some of the sales, but not all of them. Malcolm was arrested on 17 April and Nassar on 21 June. Both made "no comment" responses to the police when interviewed.
What became clear, said the judge in his sentencing remarks, was that Malcolm was an addict and was using part of the cocaine for himself and that the undercover operative was encouraging Malcolm to supply more and greater amounts of cocaine despite the fact that Malcolm was not used to dealing in large quantities. Nassar, said the judge, needed no such encouragement. Nassar was one of Malcolm's suppliers, but he had others, one of whom was arrested some 15 minutes after Malcolm. But Malcolm did not divulge the names of any other suppliers.
The number of transactions to which Nassar could be linked was limited. There was the one on 20 February 2001 when an ounce was supplied and another on 5 April when Nassar agreed to supply two ounces of cocaine, although that order was cancelled before he had a chance to deliver. There was, too, an order of 12 April when Nassar agreed to supply four ounces per day for two days, but again the order was cancelled by Malcolm when he found another supplier.
Malcolm, who was born on 8 November 1964 and was therefore 36 at the time of the offending, had two prior court appearances, one for handling stolen goods in May 1994 when he was fined $500 without conviction and another in September 1994 when he went before the court on a charge of theft and the matter was adjourned for two years. Neither is of much relevance to the present matters. The judge dealt with the personal circumstances of Malcolm in some detail and what is striking is the extent of his addiction. Having grown up in a happy and secure family setting, he left school in Year 11 to start an apprenticeship and he remained with that employer for some ten years. He had character references from many who testified to his good character, positive attitude to life and hard working capabilities until he became addicted to cocaine. By the year 2001 his addiction had got out of control and, it was said, he was spending some $1,000 to $1,500 per day on his habit. He was borrowing from his family and he became indebted to them to the tune of something in excess of $200,000. His nasal passages were damaged and he underwent rhinoplasty in an effort to repair his nostrils. By January 2001 he had reached the stage where he took a drug overdose and, had it not been for his family and friends rallying around, he might well have lost his life. The judge found that addiction was the main motivating factor for his having become involved "in trafficking in the drug which has done so much to destroy [his] life". The total amount he made out of the sales to the undercover operative was less than $3,000.
There was some promise for the future in that since his arrest, according to the sentencing judge, Malcolm had tried to turn his life around and had "taken a serious attitude towards ... rehabilitation". Rehabilitation was continuing and the judge accepted the evidence given on behalf of Malcolm of his "strong sense of shame at the misery" he had wrought. The judge took into account his early plea of guilty, his remorse and the fact that any term of immediate imprisonment might jeopardise his rehabilitation which was occurring outside the gaol system. No doubt it was bearing all those things in mind that when Malcolm was sentenced to three years' imprisonment, it was further ordered that 18 months of that sentence be suspended. The Director of Public Prosecutions now claims that such a sentence is manifestly inadequate, but I do not agree.
I have said enough to indicate what a sorry picture is presented of this offender and what a sad mess he has made of his life through addiction. Given that rehabilitation was progressing, that the motivation for his offending was his addiction which was out of control, that he was being engaged by the undercover operative to deal in ever increasing quantities in order that the police might reach out to the suppliers, and that he himself made so little otherwise from the selling of cocaine, I think that, all things considered, the sentence of three years was not below the range of sentences properly open to the sentencing judge. There must always be some room in the criminal law for mercy and I am not prepared on a Director's appeal, which is justified only in the rare and exceptional case, to intervene on this occasion. I would therefore dismiss the Director's appeal.
So far as Mr Nassar is concerned, he was born on 2 February 1962, so that at the time of the offending he was 38 years of age. He had 11 previous convictions arising out of five court appearances between April 1986 and November 1995, convictions for crimes of violence as well as handling stolen goods, possession of cocaine and possession of a firearm. He was not a cocaine addict but had used the drug from time to time as a result of being exposed to it in the night club culture where he worked for many years as a security officer. Married in October 1999, he had two children aged three and ten months at the time of sentencing. His wife had remained loyal to him and was still supportive. Like Malcolm he came from a Lebanese family, and he himself was born in Beirut. After leaving school at 14 he did factory work before shifting to the security industry where he worked until more recently he gained a job as manager of a restaurant. A former employer and a friend from earlier days both gave evidence on his behalf, expressing surprise that he had become involved in drug trafficking. But as the judge said when addressing Nassar:
"Your involvement was motivated by sheer greed. As one of Malcolm's suppliers you were higher up the supply chain than he even though your involvement in the actual trafficking shown here was less."
The judge took into account the remorse that was indicated by the plea of guilty, recognised the saving to the community of that plea and acknowledged that Nassar's prospects for rehabilitation were heightened by the fact that he had legitimate work to go to upon release. On the other hand, since his involvement in this offence Nassar had again been before the courts when he was convicted of intentionally causing injury, for which he was sentenced to the eight months' imprisonment already mentioned. (The judge made a slip in his sentencing remarks when he described the conviction as one for recklessly causing injury.)
Given the antecedents of Nassar and the fact that his prospects for rehabilitation were by no means assured, given that he was higher up the chain of supply in that he was one of Malcolm's suppliers, and given that his motivation was simply greed, I cannot say that three years' imprisonment was other than an appropriate sentence. It was well within range. It is extraordinary, I think, that Nassar complains about this sentence given that 18 months of it was suspended so that it will be served in the community, and not in custody. If anything, the order for suspension was lenient, given the seriousness of the offending, notwithstanding that Nassar was involved in fewer transactions than Malcolm. Their circumstances were altogether different, as was the role played by each and Nassar was fortunate indeed to attract no heavier sentence than did Malcolm.
The judge concluded his sentencing remarks by saying:
"In the long run when all of the relevant factors are taken into account I believe it is appropriate that similar orders be made in respect of each of you."
This was attacked by counsel for Nassar as indicating that the judge had improperly set out to impose upon both offenders the same sentence, but of course it indicates no such thing. It was not a statement of intention at the outset: it was a statement of result at the end. It was immediately followed by the sentences that were pronounced. It does not bespeak error in the exercise of the sentencing discretion. Nor am I persuaded in any other regard that the judge misunderstood the principle of parity, or at all events misunderstood it in a way which prejudiced the applicant, and no error is shown in that respect.
As to the order that the sentence being imposed on 27 June should be served cumulatively with that imposed on 17 May for earlier offending, again I can detect no error. The circumstances of the offending could not have been more unlike, as we had occasion to learn yesterday when dealing with an application for leave to appeal against conviction brought by Nassar's co-offender, Iliovski. There were seven counts on the presentment arising out of a single episode; Iliovski was convicted on two counts and Nassar on only one, that of intentionally causing injury to a third
party. Nothing could have been more unlike the offending on this occasion, a course of trafficking in drugs between dates in February and April 2001. It is claimed now that in ordering cumulation the judge failed to give weight, or sufficient weight, to the principle of totality, but I cannot agree. It was within discretion to order cumulation and the end result was not, in my view, inappropriate.
As already indicated, in my opinion the sentence imposed upon Nassar is far from excessive; if anything it is lenient. Accordingly I would dismiss his application for leave to appeal, just as I would dismiss the Director's appeal in the case of Malcolm.
CALLAWAY, J.A.:
Granted that the sentence imposed on Malcolm was merciful, not to say lenient, I am not persuaded that it was so manifestly inadequate that this Court should intervene at the instance of the Crown. Not only would double jeopardy have to be taken into account but also the sentence imposed on Nassar.
Far from being manifestly excessive, that sentence, too, was merciful. In his case I am disposed to say "lenient". Nassar was not an addict. His motive was greed and, although they were both wholesalers, he was higher up the chain of distribution. His antecedents were different and prospects of rehabilitation worse. The Director submitted that Nassar's place in the chain of distribution was not a substantial distinction, but the learned judge gave it weight and I think he was entitled to do so. In those circumstances the fact that Nassar was involved in fewer transactions over a shorter period does not give rise to appellable disparity, even when it is recalled that his sentence is to be served cumulatively.
Indeed, in at least one respect the sentence imposed on Malcolm appears to have driven the disposition in respect of Nassar. I can understand why the judge partially suspended Malcolm's sentence. It is more difficult to understand why his Honour did not fix a non-parole period in the case of Nassar, whose pattern of offending, he said, appeared to be becoming entrenched. The thought crossed my
mind that, Nassar having put his head in the noose by applying for leave to appeal, we might grant the application[1] and use the appeal to substitute a non-parole period for the partially suspended sentence imposed on him, but I did not raise this matter with counsel and I say no more about it.
[1]It is now too late to abandon the application except by leave: see Rule 2.10(3) of the Supreme Court (Criminal Procedure) Rules 1998.
The judge's statement that it was appropriate to make "similar orders" in respect of both offenders was not inconsistent with the cumulation that he directed. His Honour expressly adverted to the principle of totality and cumulation, even total cumulation, was an option open to him here, especially as the sentence already being served by Nassar was relatively short and for a disparate offence. There was no breach of s.16(1) of the Sentencing Act 1991[2] and no obligation, in the circumstances of this case, to give a reason for the measure of cumulation chosen.
[2]See R. v. Mantini [1998] 3 V.R. 340.
For these reasons and for those given by the learned presiding judge, I agree that both the appeal and the application should be dismissed.
O'BRYAN, A.J.A.:
I agree that the appeal and the application should be dismissed for the reasons given by my colleagues.
PHILLIPS, J.A.:
The order of the Court is that the appeal by the Director of Public Prosecutions in the matter of Malcolm is dismissed and the application for leave to appeal by the applicant Nassar is also dismissed.
MR TEHAN:
Your Honours, I make application for a certificate pursuant to s.15(1)(a) of the Appeal Costs Act 1998.
PHILLIPS, J.A.:
Very well, a certificate is granted.
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