Ebrahami v The Queen

[2019] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ebrahami v R [2019] NSWCCA 273
Hearing dates:	17 July 2019
Decision date:	13 November 2019
Before:	Leeming JA at [1] Davies J at [2] Hidden AJ at [3]
Decision:	Leave to appeal granted, appeal allowed. Aggregate sentence in the District Court quashed. In lieu, applicant sentenced to aggregate sentence of 8 years with a non-parole period of 5 years, from 11 August 2017.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – supply commercial quantity of methylamphetamine, dealing with proceeds of crime – challenge to sentencing judge’s assessment of objectiveness seriousness of drug supply offence – whether aggregate sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), s 193B Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
Cases Cited:	Abdul v R [2019] NSWCCA 18 Assam v R [2019] NSWCCA 12 Battersby v R [2018] NSWCCA 141 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DS v R [2017] NSWCCA 37 Gilmour v R [2018] NSWCCA 295 Healey v R [2018] NSWCCA 214 Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Matu v R [2019] NSWCCA 23 Mihelic v R [2019] NSWCCA 2 Mulato v R [2006] NSWCCA 282 Salafia v R [2015] NSWCCA 141 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Mostafa Ebrahimi (Applicant) The Queen (Respondent)
Representation:	Counsel: Ian McLachlan (Applicant) Catherine Gleeson (Respondent)   Solicitors: O’Brien Hudson Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/245331
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 07 December 2018 Before: Colefax DCJ SC File Number(s): 2017/245331

Judgment

1. LEEMING JA: I agree with Hidden AJ.

2. DAVIES J: I agree with Hidden AJ. However, I wish to echo the remarks his Honour makes at [42]. This Court sees too frequently appeals on the ground of manifest excess where comparable cases and statistics are relied upon that were never identified to the sentencing judge. Those appearing for offenders have a positive duty to assist the sentencing judge so that the risk of error is minimised. District Court judges do not ordinarily have the time to carry out independent research for cases which might provide guidance on an appropriate sentence. Those judges are entitled to expect, and this Court expects as was emphasised by Zreika v R [2012] NSWCCA 44 in a slightly different context, that all relevant matters will be put before them to guide their decision-making.

3. HIDDEN AJ: The applicant, Mostafa Ebrahimi, pleaded guilty in the District Court to an indictment containing the following two counts:

1. supplying a prohibited drug, methylamphetamine, in not less than the large commercial quantity, an offence under s 25(2) and s 29 of the Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum sentence of imprisonment for life and a standard non-parole period of 15 years;

2. knowingly dealing with the proceeds of crime, an offence under s 193B(2) of the Crimes Act 1900 (NSW), carrying a maximum sentence of 15 years imprisonment.

4. For both offences he was sentenced to an aggregate term of imprisonment for 11 years and 6 months, with a non-parole period of 7 years and 6 months, to commence on the day of his arrest, 11 August 2017.

Facts

5. The offences relate to the applicant’s possession on 11 August 2017 of 858.9 grams of methylamphetamine and $44,130 in cash. There were agreed facts, which are rather spare and somewhat unusual.

6. At the time the applicant was living in a home unit in Fennell Street, North Parramatta. At about 5.10am on 11 August 2017, neighbours heard loud noises coming from the unit. The sounds appeared to be loud voices, of more than one person, and the moving of furniture. The offender left the apartment building, wailing and with a bloodied face, and went towards the back of the unit block. Shortly thereafter, he walked onto Fennell Street, screaming and crying. He was then seen to be walking around the Parramatta area for a period of time. He walked along O’Connell Street towards the Parramatta Leagues Club and past Victoria Road. At this time he was seen approaching two separate vehicles, which then drove away. He then walked along O’Connell Street towards Church Street. He was seen standing at the driveway entrance to McDonalds on Victoria Road, holding a mobile phone.

7. At about 6.20am he returned to the rear of his unit block. He was seen walking past a window of the adjoining property. Police had been contacted earlier, and when they arrived in the area they saw the offender standing in the rear yard of that property. He had blood on his face, caused by a fractured nose, and had grazes with blood on both of his knees.

8. He was standing about a metre from a black jacket and a small black bag. In the bag police found two resealable bags containing methylamphetamine. One bag contained 495.6 grams of the drug with a purity of 79.5%. The other contained 358.6 grams, with a purity of 80.5%. A further 4.7 grams of the drug was also found in the bag. As I have said, the total amount of methylamphetamine found was 858.9 grams.

9. In a pocket of the jacket and in a separate location in the yard police found amounts of cash totalling, as I have said, $44,130.

10. The applicant was arrested and cautioned, but appeared to be well affected by drugs. An ambulance arrived and conveyed him to Westmead Hospital to be treated for his injuries. Later that day he was taken to Parramatta Police Station, where he participated in a recorded interview, with the assistance of a Farsi interpreter. He made no admissions, denying any knowledge of the bag or the jacket.

11. There was no evidence in the sentence proceedings about the cause of his injuries.

Subjective case

12. The applicant was 40 years old at the time of the offences, and is now 42. He has a minor record, comprising driving offences, which is of no significance for present purposes.

13. At the sentence proceedings an affidavit of the applicant was read, and there were admitted into evidence a psychological report and a sentencing assessment report from Community Corrections. The applicant was born in Iran. His father is deceased (from a heart attack) and an older brother was killed in the Iran/Iraq war. His elderly mother and his three sisters still live in Iran.

14. He has not had an easy life. His father was a gambler, and he left school at the age of 13 in order to work for a man to whom his father owed money. He did so for about 5 years. For some 3 years from the age of 19 he was a promising soccer player. He described soccer as his “passion”. However, his pursuit of that sport came to an end following a knee injury.

15. He undertook compulsory military service. For some years from his mid-20s he lived and worked in South Korea. Upon his return to Iran, he was imprisoned for several months for attending a political protest. Because of this and for what he described as “many problems” in Iran, he fled that country in 2010. After spending some time in Indonesia, he came to Australia by a perilous sea voyage as a refugee. He spent some months in immigration detention until he obtained a bridging visa, which was still in force at the time of these offences.

16. He has never married and has no children. Having no family in this country, his life has been isolated. In his affidavit he deposed that he had taught himself to read and write English, although to what level is unclear. He has had work as a painter.

17. In February 2017, roughly 6 months before the offences, he began to use methylamphetamine and his abuse of that drug became quite intense. The psychologist reported his account that he “drifted into dependence, with associated symptoms of high anxiety, paranoia and occasionally experiencing auditory hallucinations”. He also acknowledged experiencing “rebound depression” when coming down.

18. In 2015 he was diagnosed with depression by a general practitioner and prescribed medication. To the psychologist he described “longstanding psychological issues dating back to his formative years in Iran”. The psychologist concluded that he was currently experiencing a severe and recurring depressive disorder, his depression and anxiety being compounded by his current circumstances and his fear that, if he were deported to Iran, he would be incarcerated and severely punished. To his credit, he has detoxified during his period in custody. The psychologist noted a continuing isolated existence in prison. He made recommendations as to his treatment while in custody, although expressing the view that that treatment would be “complicated”.

19. The psychologist reported that he had expressed “appropriate remorse” for his crimes. The sentencing judge regarded this with “some caution, given, in particular, the unexplained circumstances of the offending beyond the minimalist material contained in the agreed facts”. His Honour noted, however, that he had managed to resolve his drug habit without formal intervention and there were no misconduct charges against him, and concluded that his prospects of rehabilitation were “reasonable”.

20. The applicant had been committed for trial in relation to both offences. At the outset of the trial he pleaded not guilty to the offence of supplying methylamphetamine but guilty to the proceeds of crime offence. However, on the third day of the trial, at which stage no witnesses had been called, the applicant pleaded guilty to the supply charge, it having been agreed that there would be a 20% reduction of sentence for the utilitarian value of that plea. When his Honour passed sentence, the indicative sentence for each of the offences was discounted by 20%.

The application

21. Counsel for the applicant, Mr McLachlan, argued the application on two grounds: that the sentencing judge erred in his assessment of the objective seriousness of the supply offence, and that the sentence is manifestly excessive.

Objective seriousness

22. His Honour assessed the objective seriousness of the supply offence as “slightly below the mid-range” (and of the proceeds of crime offence as “somewhere equidistant between the middle and the bottom of the range”). In the course of oral argument he rejected a submission that the applicant should be seen as a “warehouse keeper”, holding the drug for another, so as to be “at the bottom of the supply hierarchy”. He noted that the applicant had given no evidence about his role in any enterprise relating to the drugs. In this Court, Mr McLachlan took no issue with that approach. On the other hand, his Honour noted in his reasons that there were “no aggravating circumstances surrounding the offending”.

23. In determining the objective seriousness of the supply offence, his Honour referred in his reasons to the quantity of the drug and its high level of purity. When dealing with the issue of general deterrence, he also observed that that quantity had “the very real and high potential for the destruction of many lives if those drugs had entered into the community”.

24. Mr McLachlan noted that there was no evidence about when the subject drugs and money came into the applicant’s possession, or in what circumstances. He added that there was also no evidence of prior drug dealing on the part of the applicant, or of any links by him to any organised criminal syndicate. There was no evidence that he was the subject of any ongoing police investigation, or was involved in the instigation, financing and/or significant planning of the supply of drugs.

25. In oral submissions, Mr McLachlan argued that the agreed facts were clearly based upon relevant eyewitness observations of the applicant’s behaviour, and noted that he was not described at the time he left the unit as wearing the jacket or carrying the bag later seen by police. (By contrast, he was described as holding a mobile phone when he was later seen in the vicinity of McDonalds on Victoria Road.) From this, he argued, it might be inferred that he came into possession of the bag and jacket some time between 5.10am, when he left the unit, and 6.20am, when he returned to the area of the units and entered the rear yard of the adjoining block. Accordingly, it was put, his possession of those items was very recent at the time police observed them.

26. Mr McLachlan also referred to a passage in the transcript of submissions in the District Court recording an exchange between his Honour and counsel then appearing for the applicant, in which his Honour expressed the view that it should be inferred that the money the subject of count 2 was the product of the sale of drugs by the applicant, and that this bore upon the objective seriousness of the drug supply offence. Mr McLachlan submitted that that link could not fairly be drawn and, while acknowledging that it might be inferred that the money was the proceeds of the sale of drugs by someone, it could not be said necessarily to have been the applicant.

27. He argued that the circumstances disclosed by the facts, although attenuated, “undermine the notion” that the applicant had previously been involved in the supply of drugs and that his possession of the drugs in question was the product of a “degree of planning”, “a degree of organisation”. Equally, he argued, it could not be inferred that the applicant was aware of the purity of the drugs.

28. In response, the Crown prosecutor argued that it cannot be assumed that the lack of any reference in the facts to the applicant wearing the jacket and carrying the bag at the time he left the unit means that he did not have possession of those items at that time. The Crown prosecutor also noted that, having left the building, the applicant went towards the back of the unit block before walking onto Fennell Street. He referred to the applicant approaching two vehicles on O’Connell Street which, he argued, might mean that he had had contact with a person or persons at that time. Equally, the commotion in the unit before he left it means that he was in contact with a person or persons there. Thus, the Crown prosecutor argued, there was contact with persons at two points in time which might be related to his possession of the drugs and money. This, he added, would not exclude the inference that he had come into possession of those items through some prior contact. He noted that the facts leave open the possibility that, having returned to Fennell Street, he went to his unit before proceeding to the rear of the adjoining premises.

29. The thrust of his argument, which has force, is that the facts leave open “too many inferences” as to when and how the applicant might have obtained possession of the drugs and the money to be able to arrive at any conclusion about that matter. As he put it in oral argument, his Honour proceeded on the only inference which could be drawn, that is, that there must be some link between the applicant’s possession of the drugs, deemed to be for the purpose of supply, and the money, that money being the revenue of the supply of drugs by the applicant himself.

30. I accept that the limited material before his Honour did not enable any finding to be made about when the applicant came into possession of the drugs and money, or in what circumstances. An inference that the money was the proceeds of the sale of drugs by the applicant was open, but it is not clear that his Honour made that finding when he passed sentence. In the course of submissions, when dealing with the argument that the applicant should be seen as a warehouse keeper, his Honour said, “He has got almost a kilo of ice of very high purity. … that’s the beginning and end”. Towards the end of submissions his Honour said, “On the … agreed facts, I am unable to go beyond … the mere fact of possessing a very significant quantity of methylamphetamine of a very high purity which would be worth a very large sum of money”.

31. As I have said, his Honour referred to the quantity of the drug and its high level of purity in arriving at his finding of the objective seriousness of the drug supply offence. At that point in his reasons he also referred to the sum of money, noting that it constituted the offence of dealing with the proceeds of crime and expressing his assessment of the objective gravity of that offence. At no stage in his reasons did he expressly refer to the money as a matter going to the objective gravity of the drug offence. It does appear that that assessment was based only on the amount of the drugs and their purity.

32. That approach, of course, was entirely proper. Whether it placed the offence at slightly below the mid-range was a matter for his Honour’s determination, and Mr McLachlan acknowledged the well recognised reluctance of this Court to set aside such a finding enunciated in Mulato v R [2006] NSWCCA 282, and applied in a number of subsequent decisions of this Court: see, for example, Salafia v R [2015] NSWCCA 141, per Wilson J at [88]-[91]. No error has been demonstrated in his Honour’s approach to the assessment of the objective gravity of the drug offence or the conclusion which he reached.

33. This ground is not made out.

Manifestly excessive

34. His Honour’s aggregate sentence of 11½ years with a non-parole period of 7½ years reflects a finding of special circumstances. He did so in recognition of the fact that the applicant’s isolation in this country, together with his language difficulties, would render imprisonment more onerous for him than for others. Generally, his Honour’s findings as to the applicant’s subjective circumstances were favourable to him. He noted the applicant’s minor criminal record and saw him as entitled to the leniency extended to first offenders. He took into account the applicant’s depression, anxiety and self-medication with methylamphetamine, although he did not see any “clear causal connection” between those matters and the offences. As I have noted, he approached the applicant’s expressions of remorse with some caution but regarded his prospects of rehabilitation as reasonable.

35. The indicative sentences for the two offences were as follows:

1. for the drug supply offence, 9 years and 7 months with a non-parole period of 6 years and 3 months;

2. for the proceeds of crime offence, 3 years and 7 months.

Each sentence was arrived at after a 20% reduction because of the pleas of guilty. Accordingly, the starting point of sentence for the supply offence was 12 years’ imprisonment, and for the proceeds of crime offence 4½ years.

36. The quantity of methylamphetamine involved, 858.9 g is almost twice the prescribed large commercial quantity of 500 g. As I have also noted, in assessing the objective gravity of each offence his Honour found no aggravating circumstances. He observed, however, that considerations of both specific and general deterrence were “fully engaged”. He observed that the indicative sentences would “not have been totally concurrent”. The measure of accumulation built into the aggregate sentence is just under 2 years.

37. Mr McLachlan referred to a number of decisions of this Court involving the supply of large commercial quantities of prohibited drugs, carrying the maximum sentence of imprisonment for life and a standard non-parole period of 15 years. In most of them, aggregate sentences were imposed, and in all of them there was a reduction of sentence by 25% for pleas of guilty. All but one of them (Gilmour) involved MDMA (ecstasy) or MDA (cocaine). The large commercial quantity for MDMA is 500 grams, and for cocaine 1 kg.

38. These were the following:

1. Battersby v R [2018] NSWCCA 141: this Court imposed an aggregate sentence of imprisonment for 12 years with a non-parole period of 8 years for charges of supplying 23.85 kg of ecstasy and 2.23 kg of cocaine, as well as an offence of knowingly dealing with the proceeds of crime ($189,750 in cash). The indicative sentence for the ecstasy offence was 10 years with a non-parole period of 6½ years, for the cocaine offence 5 years with a non-parole period of 3 years, and for the proceeds of crime offence 3 years. Both drug supply offences had been found by the sentencing judge to be “somewhat below the middle of the range of seriousness”: [19], and the proceeds of crime offence was found to be at the mid-range: [40].

1. Healey v R [2018] NSWCCA 214: this was an unsuccessful appeal by the offender relating to the supply of 1084.9 grams of cocaine, together with offences of supplying commercial quantities of ecstasy, cocaine and methylamphetamine. An aggregate sentence of 10 years with a non-parole period of 7 years had been imposed, the indicative sentence for the major offence (taking into account related offences on a form 1) being 7½ years with a non-parole period of 4½ years. The sentencing judge had found that offence to be “just below the mid-range of objective seriousness”: [39].

2. Mihelic v R [2019] NSWCCA 2: an appeal was dismissed against sentences aggregating 6 years with a non-parole period of 4 years for offences of supplying 3.545 kg of ecstasy and a commercial quantity of cocaine. The sentence for the major charge was imprisonment for 6 years with a non-parole period of 4 years (with a wholly concurrent sentence for the other charge). That charge comprised four separate supplies over a period of 2 months, the total amount being over seven times the large commercial quantity.

3. Assam v R [2019] NSWCCA 12: this was a successful appeal against sentence on a parity ground, involving two charges of supplying large commercial quantities of ecstasy, the amounts being 1.039 kg and 2.515 kg respectively. There were also offences of supplying commercial quantities of ecstasy and cocaine and other lesser offences. This Court imposed an aggregate sentence of 9 years and 9 months with a non-parole period of 6 years and 9 months. Indicative sentences for the large commercial quantity offences were 5 years and 8 years respectively. The sentencing judge had found all of the offences to be “at least within the mid-range of objective seriousness”: [125].

4. Abdul v R [2019] NSWCCA 18: this was an unsuccessful application for leave to appeal against sentence, the applicant being an associate of the applicant in the previous matter, Assam. Here also there were a number of offences, including two involving large commercial quantities: 6.234 kg of ecstasy and 1.138 kg of cocaine. He had been sentenced to an aggregate term of imprisonment for 12½ years with a non-parole period of 9 years. The indicative sentence for the offence involving ecstasy was 10½ years with a non-parole period of 7½ years, and for the offence involving cocaine 6 years. The sentencing judge had described the offences as all “objectively very serious, even acknowledging that quantity alone is not the touchstone”: [27]. The applicant’s role was described as “the entrepreneurial force and prospective empire builder utilising the services of others to make deliveries”: [45].

5. Matu v R [2019] NSWCCA 23: this matter involved 2.417 kg of ecstasy, and a significantly less serious offence of supplying cocaine. The applicant was an associate of the applicants in Assam and Abdul. He was found to have been the “driver” of the enterprise, delivering drugs as directed, collecting the payments and returning them to others: [23]. He had been sentenced to an aggregate term of 7½ years imprisonment with a non-parole period of 4½ years, the indicative sentence for the major charge being 6 years. The Court intervened only to adjust the commencement date of the sentence.

6. Gilmour v R [2018] NSWCCA 295: this matter involved two offences of supplying a large commercial quantity of 25C-NBOMe, in amounts of 24.6 g and 121.5 g. The commercial quantity is 2 g. The applicant had been sentenced to an aggregate term of 7 years with a non-parole period of 3½ years, the indicative sentences being 3 years and 6 years respectively. The applicant was found to have played an important role in a criminal enterprise as “the actual physical supplier of the drugs”: [72]. This Court found error in the sentencing judge’s approach, but dismissed the appeal on the basis that no lesser sentence was warranted.

39. The principles governing the disposition of a complaint that a sentence is manifestly excessive are well established and need not be repeated. The approach to a ground that an aggregate sentence is manifestly excessive was stated by Schmidt J, with whom Macfarlan JA and Wilson J agreed, in DS v R [2017] NSWCCA 37 at [63-[64]:

“63.   What must be resolved in respect of this ground is whether the aggregate sentence imposed on DS properly reflected the totality of the criminality involved in all of his offending, as well as the evidence as to all of the other factors relevant to that sentence, including both objective and subjective matters, considerations of general and specific deterrence and questions of totality.

64   Indicative sentences are not themselves amenable to appeal, but they may reveal error in the aggregate sentence imposed. Even if indicative sentences are accepted as being excessive, that will not necessarily result in the conclusion that the aggregate sentence is excessive: see JM v R [2014] NSWCCA 297 at [40].”

40. In the present case, Mr McLachlan argued that the indicative sentences are excessive and this, together with the measure of accumulation between them, has led to a manifestly excessive aggregate sentence. His primary focus was upon the drug supply offence, which was also the focus of the comparable cases. The limitations upon the use of what are said to be comparable cases in examining a particular sentence are well recognised, because each case turns on its own facts and the subjective circumstances of the offender. Nevertheless, the cases here do provide a “yardstick against which to examine” the present sentence, to adopt the expression used by Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304], (70-71). Her Honour’s approach was endorsed by the High Court in Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54], (537).

41. The aggregate sentence imposed by his Honour, and the indicative sentence for the drug supply offence, sit well towards the top of the range of sentences in the comparable cases, but for the most part those cases involved quantities greatly in excess of the prescribed large commercial quantity for the drug concerned. In addition, most of them involved a number of other offences of a similar nature. In so saying, I am mindful that in each case there was a 25% reduction of sentence for pleas of guilty.

42. I am satisfied that the aggregate sentence in the present case is manifestly excessive. I have been assisted by the comparable cases provided by Mr McLachlan, who did not appear in the District Court. Unfortunately, his Honour was not afforded assistance of that kind. District Court judges have a heavy workload in sentence matters, and are called upon to deal with the entire gamut of indictable offences except murder. It is desirable that they be afforded as much assistance as possible through the provision of statistics and comparable cases if they are available, a responsibility borne by the representatives of the Crown and of the offender.

43. For the purpose of resentence the Court received a further affidavit of the applicant, which attests to his satisfactory conduct in custody. He has earned work release as a light engineer and has undertaken the maximum number of hours of English study that are available to him. No other programs are available.

44. I would allow a 20% discount for the applicant’s pleas of guilty, as his Honour did, and I would also find special circumstances. In my view, the appropriate aggregate sentence is imprisonment for 8 years with a non-parole period of 5 years. The indicative sentences I would propose are:

1. for the offence of supplying the prohibited drug, 7 years (a rounded down figure after a 20% reduction from a starting point of 9 years) with a non-parole period of 4 years;

2. for the offence of knowingly dealing with the proceeds of crime, 2 ½ years (discounted by 20% from a starting point of 3 years).

45. Accordingly, I would grant leave to appeal and allow the appeal. I would quash the aggregate sentence passed in the District Court and, in lieu, I would pass an aggregate sentence of 8 years with a non-parole period of 5 years, commencing on 11 August 2017. The applicant would be eligible for parole on 11 August 2022.

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Decision last updated: 13 November 2019