DS v R

[2014] NSWCCA 267

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

DS v R [2014] NSWCCA 267

Hearing dates:

10 and 11 April 2014

Decision date:

28 November 2014

Before:

Bathurst CJ; Fullerton J; Davies J

Decision:

1.Appeal against conviction dismissed.

2.Grant leave to appeal against sentence.

3.The sentence imposed in the District Court on 27 July 2012 on Count 4 on the indictment is quashed.

4.In lieu thereof, a sentence of imprisonment of 14 years and 6 months is imposed, commencing on 11 March 2011 and expiring on 10 September 2025, comprising a non-parole period of 9 years and 6 months and an additional term of 5 years.

5.The appellant will become eligible for release on parole upon the expiration of the non-parole period on 10 September 2020.

Catchwords:

CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same
CRIMINAL - appeal - sentence - whether sentencing judge failed to consider delay between commission of offence and sentencing - failure to raise delay with sentencing judge - no explanation for failure provided on appeal - sentencing appeals are a reviewing of the exercise of a discretionary judgment not rehearing a plea in mitigation
CRIMINAL - appeal - sentence - parity - whether discrepancy between sentences of co-offenders is disproportionate to relevant distinctions in roles played and subjective circumstances of co-offenders - whether disparity is gross, marked or glaring - difficulty when comparing sentences imposed with respect to different offences with different maximum penalties - difficulty where co-offender is charged with different offence with lower maximum penalty despite conduct being objectively more serious - need for sentences to reflect the different criminal culpability between co-offenders with more senior roles in the drug enterprise

Legislation Cited:

Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1983 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1

Cases Cited:

Crystal Lee England v R [2009] NSWCCA 274
ES v R [2014] NSWCCA 268
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Ibrahim Jidah v R [2014] NSWCCA 269
Lachlan Wilson v R [2014] NSWCCA 266
Pym v R [2014] NSWCCA 182
R v Todd [1982] 2 NSWLR 517
Yousef Jidah v R [2014] NSWCCA 270
Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

DS (Appellant)
Crown (Respondent)

Representation:

Counsel:
C Steirn SC (Appellant)
I D Bourke / M England (Crown)
Solicitors:
Meridian Legal (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2008/209593

 Decision under appeal 

Before:

Frearson SC DCJ

File Number(s):

2008/209593

Judgment

1. THE COURT: On a joint indictment presented on 23 February 2011, Lachlan Wilson, DS (the appellant), Ibrahim Jidah, Yousef Jidah and Ryan Kapral were charged with a range of what might be described broadly as drug offences. ES, another person also involved in the alleged offences, pleaded guilty.

1. The charges against the appellant alleged contraventions of the Drug Misuse and Trafficking Act 1983 (NSW) (the DMT Act) and the Criminal Code Act 1995 (Cth) (the Code). The charges were as follows:

"Count 3

Between about 4 August 2008 and 13 August 2008 at Sydney in the State of New South Wales and elsewhere, did import into Australia a substance, namely a commercial quantity of pseudoephedrine, a border controlled precursor, intending to use, or believing that another person intended to use any of that substance to manufacture a controlled drug, in that he did aid, abet, counsel or procure the commission of that offence by Lachlan WILSON.

Contrary to ss. 307.11(1) with 11.2(1) Criminal Code

Count 4

Between about 4 August 2008 and 14 August 2008 at Sydney in the State of New South Wales and elsewhere, did supply a prohibited drug, namely pseudoephedrine, being not less than the commercial quantity and not less than the large commercial quantity applicable to pseudoephedrine.

Contrary to s.25(2) Drugs Misuse and Trafficking Act

Count 5

Between about 4 August 2008 and 14 August 2008 at Sydney in the State of New South Wales and elsewhere, did attempt to possess a precursor, namely pseudoephedrine, intended for use in the manufacture or production by [DS] or another person of a prohibited drug.

Contrary to s. 24A(1) Drugs Misuse and Trafficking Act."

1. Following a trial before Judge Frearson SC and a jury, the appellant was convicted on Counts 4 and 5. The jury was unable to agree on Count 3 and was subsequently discharged.

1. The appellant was sentenced on Count 4 to a non-parole period of 10 years 4 months and 1 week with an additional term of 5 years and 7 months (that is a head sentence of 15 years 11 months and 1 week imprisonment expiring on 24 February 2027). On Count 5 he was sentenced to 20 months imprisonment to be served wholly concurrently with the sentence imposed for Count 4.

1. The appellant has appealed against his conviction and sought leave to appeal against his sentence.

1. Lachlan Wilson, Ibrahim Jidah, Yousef Jidah and ES were convicted of various offences relating to the same drugs as those the subject of the charges against the appellant and their appeals, with the exception of that of ES (on sentence), were heard at the same time as this appeal.

The relevant legislation

1. Section 25(2) of the DMT Act provides as follows:

"25(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence."

1. "Supply" is defined in s 3 of the DMT Act in the following terms:

"supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things."

1. "Prohibited drug" is defined in s 3 of the DMT Act as any substance other than a prohibited plant specified in Sch 1. Pseudoephedrine is specified in Sch 1. A large commercial quantity of that drug is 5.0 kg.

1. Section 33(3) of the DMT Act provides that the maximum penalty for s 25(2), where the offence involved not less than the large commercial quantity, is life imprisonment, a fine of 5,000 penalty units or both. The standard non-parole period is 15 years imprisonment.

1. Section 24A of the DMT Act so far as relevant provides as follows:

"24A(1) A person who has possession of:

(a) a precursor, or

(b) a drug manufacture apparatus,

intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence.

...

(3) In this section:

drug manufacture apparatus means an apparatus specified or described in the regulations as a drug manufacture apparatus for the purposes of this section.

precursor means a substance specified or described in the regulations as a precursor for the purposes of this section."

1. Pseudoephedrine is specified in Sch 1 of the Drug Misuse and Trafficking Regulation 2011 (NSW) as a precursor for the purpose of section 24A of the DMT Act.

1. Section 33AB of the DMT Act provides that the maximum penalty for an offence under s 24A is a fine of 2,000 penalty units or imprisonment for 10 years or both.

Factual background

1. The facts relating to the charges against the appellant are set out in our judgment in the appeal of Lachlan Wilson (Lachlan Wilson v R [2014] NSWCCA 266 at [13]-[114]), particularly at [100]-[114] and it is not necessary to repeat them.

The conviction appeal

1. The appellant appealed against his conviction on the sole ground that the trial miscarried because the appellant was charged with inconsistent verdicts. However, during the course of the hearing of the appeal the appellant was granted leave to amend this ground of appeal in the following terms:

"On the facts of this case the conviction of the appellant on both Counts 4 and 5 have led to a miscarriage of justice because the elements of Count 4 are contained in the elements of Count 5."

1. The relief sought was that the conviction under Count 4 or Count 5 be quashed.

The submissions

1. The appellant adopted the submissions made on behalf of Yousef Jidah on his appeal. The Crown also relied on the submissions made in that appeal (see YousefJidah v R [2014] NSWCCA 270 at [17]-[33]).

Disposition

1. This appeal raises the same issues as those in the appeal of Yousef Jidah. For the reasons given in that appeal (YousefJidah v R [2014] NSWCCA 270 at [34]-[58]), the appeal against conviction should be dismissed.

The sentence appeal

1. The application for leave to appeal against sentence is effectively limited to the sentence imposed for Count 4 (the supply count). For that offence, a sentence of 15 years 11 months and 1 week was imposed, comprised of a non-parole period of 10 years 4 months and 1 week and a balance of term of 5 years and 7 months against a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Sentence was imposed on 27 July 2012 and took account of broken periods of pre-sentence custody. His Honour made a finding of special circumstances.

1. The jury was unable to agree as to the appellant's guilt on Count 3. (The jury were also unable to agree that Lachlan Wilson, a co-accused at the appellant's trial, was the importer of the pseudoephedrine, see Lachlan Wilson v R [2014] NSWCCA 266.) His Honour accepted, for sentencing purposes, that nothing the appellant did in supplying the pseudoephedrine (as a prohibited drug contrary to s 25 of the DMT Act) or attempting to possess it (as a precursor contrary to s 24A(1) of the DMT Act) was conduct directed to aiding and abetting the importation of the pseudoephedrine (as a border controlled precursor) or that the appellant intended that his conduct might have that effect.

1. Three grounds of appeal are relied upon:

(1)   His Honour failed to take into account the period of substantial delay between the commission of the offence and the sentencing of the appellant;

(2)   The sentence was in breach of the principle of parity; and

(3)   The sentence imposed was manifestly excessive.

The facts found for sentencing purposes

1. The appellant was the last of a number of co-offenders involved in and sentenced for the importation, supply and attempted possession of the pseudoephedrine. In his Honour's reasons for sentencing this appellant, his Honour referred to the fact that the context in which the appellant's offending was to be assessed had been set out repeatedly in the sentencing reasons published in respect of the co-offenders. The facts have also been set out at very considerable length in the appeal against conviction by Lachlan Wilson at [13]-[114] and particularly, so far as this appellant is concerned, at [100]-[114] (Lachlan Wilson v R [2014] NSWCCA 266). The conviction appeals of Ibrahim Jidah and Yousef Jidah were considered in the context of the same facts (Ibrahim Jidah v R [2014] NSWCCA 269 and YousefJidah v R [2014] NSWCCA 270).

1. Having regard to the evidence led at trial, his Honour was satisfied that the appellant was aware of the pending arrival of the container in which the drugs were secreted, and that his role was to facilitate the delivery of the container to the warehouse, to supervise the unpacking of the container by those who were to attend to that task and to isolate the boxes containing the drugs to facilitate the delivery to others. His Honour also found the appellant's role was to supervise the resealing of the boxes after they had been examined with a view to locating any listening devices.

1. His Honour described the appellant's role as important, given the need for coordination and supervision of the arrangements essential to securing possession of the drugs for the purposes of on-supply. He also found that the appellant performed that role for a significant but unquantified financial reward. He did not consider the fact that the appellant performed his role for reward as a feature of aggravation, it being inherent in drug offending of this scale.

1. In light of the appellant's role and, in particular, his manual handling of the boxes with a view to isolating those that he believed to contain the drugs, his Honour was satisfied that the appellant well knew the approximate gross quantity of pseudoephedrine. His Honour accepted that while the quantity of the drug supplied was not decisive, it was relevant to an assessment of the objective gravity of the appellant's offending.

1. In considering the relative roles of the various co-offenders for parity purposes, his Honour considered that the appellant's role as an organiser, overseer and manager of the warehouse, was subordinate to ES's role, who, as principal, instructed and directed the activities of the appellant and others involved in the enterprise. His Honour accepted that ES was the person to whom the appellant reported after the container was cleared through Customs and after the boxes were unpacked. The appellant's role was also assessed as subordinate to Lachlan Wilson who was convicted of being knowingly concerned in the supply of the drugs, but senior to Yousef Jidah and Ibrahim Jidah, who were recruited to assist in transporting the drugs and who were convicted of the same offences as this appellant.

The appellant's subjective circumstances

1. The appellant was aged 33 at the time of sentence. His Honour noted that he had a criminal record which, although relatively minor, disentitled him to the same measure of leniency as might be afforded a person with no criminal record. A number of references were tendered on sentence, including from his cousin, a member of the legal profession, and other family members who describe the appellant as subject to considerable influence exerted by ES. They also referred to his kind and generous disposition.

1. His Honour also referred to a report from Dr John Jacmon, a consultant psychologist, which he found instructive insofar as it detailed the appellant's background.

1. Dr Jacmon reported that the appellant's day to day functioning was impaired by the effects of a post-traumatic stress disorder and by depression and anxiety at clinically significant levels. The post-traumatic stress disorder was thought likely to have arisen during the appellant's childhood and adolescence, as a result of suffering frequent abuse and violence perpetrated by his father, and witnessing the abuse of other family members. Dr Jacmon was also of the opinion that the appellant's various functional impairments were likely to diminish his ability to formulate reasoned judgments, causing him to act impulsively without giving appropriate consideration to the consequences of his actions. The same opinion was proffered by the same psychologist in a report tendered in ES's sentence proceedings (see ES v R [2014] NSWCCA 268 at [18]).

1. His Honour found that the evidence at trial, including the appellant's evidence (some of which his Honour considered to be patently untrue), did not support any suggestion that his conduct was impulsive. Rather, the enterprise involved a comprehensively planned and organised cooperative effort by many people, including the appellant. His Honour took into account the appellant's background as reported to the psychologist. In that regard, he noted the appellant was born in Lebanon and grew up on a rural property near Bathurst. His father had diabetes and, when he did not take his medication, was prone to frequent eruptions of violence. After moving with his family to Sydney the appellant completed Year 10. He then studied engineering at TAFE before taking up work in his father's takeaway food shop where he was required to work long hours. Thereafter he worked in a building company for a year and in 2008 set up his own waterproofing company. He was in a relationship of some long standing at the time of sentence.

1. His Honour regarded the appellant's prospects of rehabilitation as fair to good, being satisfied that he was unlikely to reoffend in the same way upon his release. There was no evidence of remorse.

Ground 1: His Honour failed to take into account the period of substantial delay between the commission of the offence and the sentencing of the appellant

1. The appellant was convicted by the jury on 12 May 2011. He had spent two months in custody following his arrest on 14 August 2008 before being released to conditional bail. Bail was revoked on verdict.

1. He was sentenced in July 2012, 2 months after Lachlan Wilson was sentenced, 10 months after Ibrahim Jidah and Yousef Jidah were sentenced and the day before ES was sentenced. It would appear that the delay of 14 months between verdict and sentence was due to the Crown initially notifying its intention to retry the appellant (and Lachlan Wilson) on the Commonwealth counts on the indictment (upon which the jury were unable to agree), jointly with ES, whose trial had been severed from the trial of the other co-offenders in February 2011. Consequent upon ES pleading guilty to aiding and abetting, counselling or procuring the importation of a commercial quantity of pseudoephedrine in February 2012, the Crown formally notified the appellant (and Lachlan Wilson) that they would not be retried and their respective sentence hearings were then convened.

1. Neither the fact nor the extent of the delay, either between the offending and sentence or the verdict and sentence, was raised with the sentencing judge, and no submission was made that it had an impact on sentence. As Johnson J observed in Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [80]-[82], in sentencing appeals this Court is reviewing the exercise of a discretionary judgment in accordance with settled principles, not rehearing a plea in mitigation. A sentence appeal is not the occasion for the revision and reformulation of the case advanced on behalf of an offender before a sentencing court. This Court is entitled to expect that in a sentencing hearing an offender's legal representative will advance submissions by reference to the particular factors which are considered to operate in mitigation of sentence in order to allow the Crown the opportunity to address them and for the sentencing judge to give consideration to them. Subject to the relatively rare case where material has either not been presented on sentence or overlooked by either the parties or the sentencing judge, and where there is a risk of a serious injustice in the sentencing result as a consequence, this Court will not lightly entertain arguments that could have been advanced to the sentencing judge but were not (see Pym v R [2014] NSWCCA 182).

1. Senior counsel for the appellant in this Court did not appear on sentence. He was unable to offer any satisfactory explanation as to why the issue of delay (assuming it was relevant) was not raised for the consideration of the sentencing judge as having any potential to impact upon the judge's assessment of the appellant's prospects of rehabilitation. Neither did he refer to any evidence tendered before the sentencing judge, which might have supported a submission that the delay should be considered by this Court to operate in mitigation of sentence in accordance with R v Todd [1982] 2 NSWLR 517. The mere fact that there was a delay, even of some years, between the commission of the offence and verdict, during which time the appellant was on bail, and between verdict and sentence, when he was not, is not, in itself, a mitigating factor. In this case, the delay between the appellant's arrest and trial was not unreasonable given the number of co-accused jointly tried and the factual matrix upon which proof of the Crown case at trial depended and the determination on the part of the Crown to endeavour to maintain the trial of all offenders as a joint trial.

1. The first ground of appeal is rejected.

Ground 2: The sentence was in breach of the principle of parity

1. The appellant complains that, despite his Honour's clear finding that ES was the principal in the importation (in which the appellant was involved as a supplier of the drug imported), and that the appellant was, in all respects, subordinate to ES, acting at his instruction and direction in his dealings with the container and its contents, a difference of 7 months between the appellant's sentence of 15 years 11 months and 1 week and ES's undiscounted sentence of 16 years and 6 months, when viewed objectively, gives rise to a justifiable sense of grievance.

1. The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, at [28] per French CJ, Crennan and Kiefel JJ, their Honours said of equal justice:

"It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.'"

(References omitted).

1. The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be "gross", "marked" or "glaring" (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]).

1. In Gill v R [2010] NSWCCA 236 at [58], McColl JA (with whom RS Hulme and Latham JJ agreed) observed that an applicant faces considerable obstacles in invoking the parity principle in circumstances where a sentence, said to give rise to a justifiable sense of grievance, was imposed by a sentencing judge who was aware of the sentences imposed on co-offenders and it is clear that the sentence is structured in that knowledge.

1. In considering this appellant's complaint, that his sentence cannot be maintained given ES's senior role, there is the additional practical difficulty, recognised by the High Court in Green v The Queen; Quinn v The Queen supra at [30], in comparing sentences imposed on participants in the same criminal enterprise who have been charged with different offences with different maximum penalties.

1. The High Court also recognised that the greater the difference between the offences, the greater the practical difficulties in ensuring that sentences reflect the principle of equal justice, particularly where disparity is said to arise from a sentence imposed on a co-offender who has been sentenced for an offence that is less serious. If the difficulty identified by the High Court is to have any currency on this appeal, it is complicated by the fact that, although ES was sentenced against a maximum of 25 years imprisonment, while this appellant (and Lachlan Wilson) were sentenced against a statutory maximum of life imprisonment, ES's offending was, clearly, objectively more serious than this appellant's offending. In the appellant's case, there is the further legislative guidepost to an appropriate sentence that operates by reason of the standard non-parole period of 15 years while no standard non-parole period applies to the importation charge against ES, it being a Commonwealth offence.

1. While, for those reasons, it is not possible to make a direct comparison between the sentence imposed on this appellant and that imposed upon ES and Lachlan Wilson, a meaningful comparison is possible. That task was undertaken by the sentencing judge, both in reflecting on the sentences imposed on Lachlan Wilson previously and on ES the previous day. His Honour made express reference to what he referred to as "equal justice considerations" and the hierarchy of roles within the enterprise while noting the incongruity in the charges preferred against this appellant and ES.

1. The subjective circumstances of DS and ES are different, but not to any material degree. As we have noted, while they both relied upon the same mental health review by the same psychologist, his Honour rejected any submission that their conduct was impulsive or a result of any compromised capacity for reasoned judgment (see ES v R [2014] NSWCCA 268 at [18]). They were both members of extended families and had sound employment histories as far as the evidence revealed. The sentencing judge was faced with a difficult sentencing task. We are satisfied, however, that after taking into account the different maximum sentences under the DMT Act and the Code, and the fact that the supply count attracts a standard non-parole period of 15 years, the differential of 7 months between ES's undiscounted sentence and the sentence imposed on this appellant and a differential of 3 months in the sentence imposed on Lachlan Wilson is unjustified. It fails to reflect the different, and more senior, roles of those two co-offenders and their significantly different criminal culpability and stake in the success of the operation.

1. Were we not persuaded that the ground of appeal alleging disparity was made out, we would not have intervened to re-sentence on the basis that the sentence imposed at first instance was manifestly excessive, in the sense of it being unreasonable or plainly unjust, after giving due weight to all relevant circumstances particular to this appellant's offending, including the maximum penalty of life imprisonment.

Re-sentence

1. No materials were relied upon by the appellant on re-sentence. In that exercise, having regard to his Honour's factual findings and our own assessment of the gravity of the offending, in particular because of the weight of the drug involved, and its capacity to generate very significant profits in which the appellant was to share to some unquantified extent, a sentence of 14 years and 6 months, comprised of a non-parole period of 9 years and 6 months and an additional term of 5 years should be imposed. The ratio between the non-parole period and the additional term preserves the finding of special circumstances made by the sentencing judge.

Orders

1. The Court makes the following orders:

(1)   Appeal against conviction dismissed.

(2)   Grant leave to appeal against sentence.

(3)   The sentence imposed in the District Court on 27 July 2012 on Count 4 on the indictment is quashed.

(4)   In lieu thereof, a sentence of imprisonment of 14 years and 6 months is imposed, commencing on 11 March 2011 and expiring on 10 September 2025, comprising a non-parole period of 9 years and 6 months and an additional term of 5 years.

(5)   The appellant will become eligible for release on parole upon the expiration of the non-parole period on 10 September 2020.

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Decision last updated: 28 November 2014