Ghossein v Regina

[2006] NSWCCA 108

CITATION:	Ghossein v Regina [2006] NSWCCA 108
HEARING DATE(S):	05/04/2006
JUDGMENT OF:	Grove J at 26, 28; Simpson J at 27; Howie J at 1
EX TEMPORE JUDGMENT DATE:	04/05/2006
DECISION:	Appeal against conviction is dismissed. Leave to appeal against sentence granted but the appeal is dismissed.
CATCHWORDS:	Criminal Law - Trial by judge alone - whether should have directed himself on lies - sentence appeal - whether judge failed to take into account mental disability of appellant and whether judge should have found special circumstances.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 - s 25(1) Criminal Procedure Act 1986 - s 133 Criminal Appeal Act 1912
CASES CITED:	Fleming v The Queen (1998) CLR 250 Edwards v The Queen (1993) 178 CLR 193 R v Engert (1989) 84 A Crim R 67
PARTIES:	Mathew Luke Ghossein v Regina
FILE NUMBER(S):	CCA 2006/335
COUNSEL:	V. Lydiard - Crown S. Kluss - Applicant
SOLICITORS:	S. Kavanagh - Crown Ross Hill & Associates - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	0/61/0023
LOWER COURT JUDICIAL OFFICER:	Woods DCJ

2006/335

GROVE J
SIMPSON J
HOWIE J

WEDNESDAY 5 APRIL 2006

Mathew Luke GHOSSEIN v REGINA

Judgment

1 HOWIE J: The appellant was convicted after trial by judge alone of an offence of supplying a prohibited drug, namely methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty for an offence under that section is relevantly imprisonment for 15 years. The appellant was sentenced to imprisonment for two years to date from 12 June 2005 with a non-parole period of 18 months to expire on 11 December 2006, the date upon which the appellant is to be released to parole. The appellant appeals against both his conviction and sentence.

2 The facts can be very briefly stated. On the evening of 26 September 2003 police acting on intelligence stopped a vehicle heading towards Mudgee from Sydney. The appellant was travelling in the vehicle with other persons. Police took the appellant back to a police station and searched him. No drugs were found and he was allowed to leave the police station. Later a condom containing what was analysed as being 13.3gms of methylamphetamine was found behind a rubbish bag in the police station. The purity of the drug was seven per cent, approximately twice the purity of amphetamine usually located in the Mudgee area. DNA tests revealed that the condom had been in the possession of the appellant. The appellant was interviewed by police about the condom and its contents and but denied knowing anything about them.

3 The appellant gave evidence at the trial admitting that the condom was his. He said that he had bought the amphetamine in Sydney and he had paid $500 for half an ounce. He said that he was unemployed and had received a loan from his parents to use as bond money for a place he was looking to rent in Mudgee. However the appellant had used the money to purchase the drugs. He said he bought the amount he did it because of the expense of the drug in Mudgee. He was using about half a gram to a gram everyday. He had bought as much amphetamine as he could with the $500 and was intending to use it himself. The appellant admitted that he had told lies to the police in the course of his interview. His mother gave evidence to the effect that she had given the appellant about $600 on 25 August 2003.

4 The amount of drug that the appellant had in his possession at the time of his arrest was more than the trafficable quantity specified for methylamphetamine. The only issue, therefore, to be determined by the trial judge was whether the appellant had proved on the balance of probabilities that he had the drug in his possession for a purpose other than supply.

5 There is a single ground of appeal relied on for the appeal against conviction. It is to the effect that the trial judge did not comply with what is now s 133 of the Criminal Procedure Act. That section is as follows:

133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

6 It was held in Fleming v The Queen (1998) 197 CLR 250 that the failure of a trial judge to include in his judgment a warning that would have been required to be given to a jury was a wrong decision on a question of law for the purposes of the Criminal Appeal Act and that a miscarriage of justice occurred. Here it is submitted by the appellant that the judge failed to direct himself appropriately on the evidence of lies told by the appellant to police in his recorded interview and, therefore, the trial miscarried.

7 There was no issue that the appellant had told police a number of lies during his interview. The Crown prosecutor at the hearing before the trial judge addressed him in respect of those lies as follows:

The Crown says, your Honour, that [the appellant’s case] is incredible and that your Honour would not accept it and the Crown says that your Honour would not accept it because the accused is, from his own mouth, on more than 10 occasions through the interview that he had with the police on 27 September, a teller of untruths. I expect, your Honour, that my friend and I will need to make submissions to your Honour about the issue of what is to be made of those lies told to the police.

I invite your Honour to regard them as lies that show a consciousness of guilt. They are lies, in the Crown's submission they are lies told in a way, and at a time, that allows them to be fully particularised, then recorded, they are told so often and on the last occasion with such vigour that there can be no mistaking the intention of the accused in telling them.

A little later the Crown said:


Because it's a case, your Honour, where the Crown needs to prove possession before s 29 comes to operate and it becomes a case of what we call deemed supply, and because the lie is about knowledge and physical custody - that is possession - the Crown says it's a material lie and your Honour made regard it and all of the lies that are told of the course of that record of interview - as lies that evince a consciousness of guilt.

If your Honour's against the Crown on that, they are lies that go directly to the credibility of the accused when your Honour comes to assess whether or not he has carried, on the balance of probabilities, the burden of proof that lies upon him as s 29 requires. Your Honour will need to have regard in that context too, to the demeanour of the accused when he gave evidence. I think it's fairly clear, your Honour, that the accused suffers some significant emotional disturbance by reason of events that have occurred in the course of his life. It's only right that your Honour might take that fact into account in assessing his demeanour. But your Honour will remember, as against that, that he told your Honour, "I lied to the police because I was scared and I thought I could get out of it if I told lies".

Today, your Honour, in my submission he is in exactly the same position. His ability and desire to tell the truth are things that are compromised when he's in a position where he needs to be believed, otherwise he is in trouble, he has every reason in the world for telling a lie to get out of it.

The Crown says that what your Honour saw today was a whole series of answers to many questions that demonstrate that the accused was doing just that, that he was telling untruths about his intention in the future with respect to his possession of the drug because it was in his interests to do so so he might escape liability. His economic circumstances provide a compelling motive for him to have the drug in his possession for supply. He’s a man who tells lies about the material fact of his possession of the drug he tells lies to the police about the other portion of the condom that’s found in his clothing when he’s searched. That set of lies your Honour, that is conceded about the other part of a condom in his clothing, is probably not well thought out, and your Honour can read the transcript, but nonetheless it is a distinct attempt to put the listener, the police officer, off the trail. That factor, your Honour bears heavily upon his credibility.

8 Counsel for the appellant in his address referred to the High Court decision of Edwards v The Queen (1993) 178 CLR 193 and the facts that had to be proved before the Crown could rely upon a lie as evidencing a consciousness of guilt. He then went on:

Well he is charged basically with an offence that has the basis of its commission in possession of the item. He is also charged with supply based on that possession of a certain amount. But it would not be clear, your Honour, that what he is denying is I don't have possession of that item because I know how much it is and I know that if I say I've got possession of it, I might be deemed to have supplied it. And he's not telling lies that relate to the supply aspect of it, he's telling lies that relate to his possession of it your Honour, which might be understandable in the circumstances. He says "I was scared, I wanted to disown my connection with it, not to be caught with it in my possession".

It's my submission that the lies do go to credit but not consciousness of guilt in the terms required by Edwards. It's a circular thing I suppose, it starts and comes back to the same point, that the telling of lies by someone, if they were so found, still can't prove a case. The Crown has to prove possession, well it has, the accused admits possession and the Crown proves it with its physical evidence.

But the fact that he denied his contact with it, in my submission, doesn't detract or doesn't make him guilty of having something for the purpose of supply. The law deems that to be so, your Honour. It's my submission that there is no consciousness of guilt about that in what he does about telling a lie, that's why your Honour would not use lies as consciousness of guilt as corroborative of the Crown case, as my friend’s asking you to do.

9 In giving his reasons for finding the appellant guilty of the offence the Judge said:

Firstly, it has been put to me that his lies to the police at the interview when he was confronted with the condom and the material in it, are lies that indicate a guilty conscience and therefore can corroborate his guilt. The accused has admitted that he deliberately lied to the police when interviewed when first arrested and before the condom was connected to him by the DNA evidence. He stated that he lied at the time because he was scared and he thought he might be able to get away with it, namely being connected with the object found discarded in the police station.

It has been put that whilst these lies may reveal a knowledge of an offence, it should initially be looked at as being the offence of possession of the drugs but not necessarily of being in possession for supply, thus they are not lies with a full knowledge of the deeming provisions of the Act.

It seems clear to me that the Judge was referring to the address of the appellant's counsel to the effect that the Judge could not use the lies told as revealing a consciousness of guilt of the offence of supply because they might be evidence of a consciousness of guilt of being in possession of the drug. The Judge then went on:

I cannot completely discount the lies he gave to the police at the time of his arrest that I will consider those lies along with his evidence before me in this Court. The main emphasis of his evidence in Court is his own usage, so does that all stand up?

10 I believe that these passages indicate that the judge had accepted the submissions made on behalf of the appellant that he could not use the lies as evidence of consciousness of guilt in respect of the offence of supply but that he did intend to use them in determining the issue of the appellant's credibility. That being the case, there was no reason for the Judge to refer to Edwards or the preconditions that had to be found before lies could be used as evidence of a consciousness of guilt of the offence charged.

11 Ultimately the Judge found that the appellant's explanation for having so much drug in his possession "does stretch credibility". The Judge concluded that he could not accept the appellant's explanation on the balance of probabilities and, therefore, found the offence proved.

12 In my opinion the ground of appeal has no merit and the appeal against conviction should be dismissed.

13 The applicant seeks leave to appeal against sentence. There are three grounds as follows:

1. His Honour erred by referring to the applicant's record within the context of section 21A and including it as an aggravating feature

2. His Honour did not take into account, or gave insufficient regard, to evidence that Mr Ghossein was suffering from a significant mental health condition.

3. His Honour did not find special circumstances pursuant to section 5 of the Crimes (Sentencing Procedure) Act.

14 The Judge in his sentencing remarks summarised the subjective case for the appellant as follows:

………. He is aged 30 years, grew up in a stable family environment in Sydney, obtained a School Certificate and then left school, completed an apprenticeship as a spray painter and was employed as such for six years. He had commenced using drugs when aged 15 years and this eventually started to affect his employment. He eventually left Sydney and moved to Mudgee where his parents had acquired a property. The reports note an extensive drug history and using heroin.

At age 20 he formed a relationship with a woman he met at a methadone clinic, however after two years his partner died from a drug induced stroke and then later the child died. He became more isolated and heavier into drugs. He then got involved with criminal offences. In 1998 there were break and enter offences for which he received community service orders, in the year 2000 there was a break and entry for which terms (sic) of imprisonment were suspended. So he is a 30 year old man with a record of serious offences and who has been given opportunities to resolve any issues. Recent psychological reports suggest the possibility of a significant mental health condition which it appears has been brought on through the use of drugs.

He has the support of his mother from Mudgee and claims to hope to remain drug free. However, whether his resolve will be fully transported into action remains to be seen…………..

15 The first ground concerns what is asserted to be an error in the Judge taking into account as an aggravating feature the appellant's criminal record. The Judge stated:

Having regard to s 21A of the Crimes (Sentencing Procedure) Act, with respect to aggravating and mitigating factors…………………..

Included in aggravating factors would be that he does have a criminal record of offences……….

16 At the present time the state of the law in respect of s 21A(d) appears to be that a judge is not entitled to take into account as an aggravating feature an offender's criminal record unless the record was such that it indicated that “retribution, deterrence and protection of society may indicate that a more severe sentence is warranted”. The Crown concedes that the ground has been made out but argues that no lesser sentence is warranted. It is unfortunate that in August 2005 in light of the numerous authorities to the contrary that a sentencing judge could still be under the misapprehension that a criminal record itself was an aggravating feature regardless of the nature of that criminal record. However, that error does not indicate to me that the sentencing discretion miscarried to such an extent that this Court should necessarily interfere. However, I shall deal with the other grounds of appeal.

17 The second ground asserts that the judge gave insufficient weight to the applicant's mental condition. The presentence report, dated 25 July 2005, contained the following:

The offender recently indicated that he is not suffering from any mental health condition. However, he is concerned about his medical health as he has been receiving treatment for a stomach complaint for some time. He indicated that his father was diagnosed with bowel cancer sometime ago and he feels that he may be afflicted with the same illness. Unfortunately, confirmation of the situation was unable to be verified with the offender's medical practitioner.

18 There was in evidence a report from Dr Wilcox, a psychiatrist, dated 14 December 1999. The report contains the following:

After the death of his son I believe that he developed a Major Depression as he experienced loss of interest in his usual activities, he became more isolative and withdrawn, he had impaired sleep, poor appetite and weight loss, decreased energy and decreased motivation.

It should be noted that the appellant's son died in September 1998.

19 There was also a report from a psychologist, Mr Tyrer, dated 22 March 2005. That report referred to the earlier report of Dr Wilcox. It contains the following:

[The appellant] reports a number of difficulties consistent with a significant depressive experience. Although he does not appear to feel hopeless and his self-esteem seems largely intact, he does manifest affective and psychological signs of depression. He admits openly to feelings of sadness, a loss of interest in normal activities, and a loss of the sense of pleasure in things that were previously enjoyed. His likely to show a disturbance in sleep pattern, a decrease in level of energy and sexual interest, and loss of appetite and/or weight. Psychomotor slowing might also be expected.

The psychologist concluded:


[The appellant] is a 30 year old man with a significant history of drug abuse and the possibility of a significant mental health condition. [The appellant] is not developmentally disabled. His presentation would suggest that he is functioning in the Average range of intelligence. His current functioning is significantly disturbed by his history of drug abuse and its repercussions and also by indications of psychiatric disorder.

[The appellant] appears to be vulnerable to external stressors, with his reactions to severe stresses provoking pathological responses, Major Depression following a death of his son, and a similar reaction compounded by a Somatisation Disorder developing after his father's bout with bowel cancer. These somatic symptoms were not mentioned in a 1999 psychiatric report and appear to have developed since that time. This raises the prospect that [the appellant] may be suffering from an emerging mental illness of a somatic nature, in addition to the strong likelihood that is currently clinically depressed. [The appellant] requires an up-to-date psychiatric assessment to allow for greater certainty in this regard.

20 The state of the evidence before the Judge does not indicate to me that the appellant was at the time of the offending or at the time of sentencing suffering from such a mental disability that would require, or even justify, the Judge declining to give full weight to general deterrence in respect of the appellant and his offending. In my view the line of authority, including cases such as R v Engert (1989) 84 A Crim R 67, upon which the appellant relies to submit that the Judge erred in not giving the appellant's mental condition, whatever it might be, sufficient weight, were not applicable.

21 The third ground of appeal asserts that the sentencing judge ought to have found special circumstances when determining the length of the non-parole period. It is accepted on behalf of the appellant that this was a discretionary matter but the submission was made that in light of the appellant's need for counselling and assistance, his mental condition, and the fact that it was his first time serving a custodial sentence required that the Judge find special circumstances.

22 The Judge said:

I cannot find that with his history and the circumstances of the offence that there are any circumstances for any special leniency nor that can be regarded as sufficiently special to justify a variation in the statutory proportion for any non-parole period.

23 I believe that this was a finding that it was well open to the sentencing judge to make and I am not satisfied that the subjective matters pertaining to the appellant were such that it was not within the judge's discretion to apply the statutory proportion between the non-parole period and the head sentence.

24 In my opinion the sentence was a relatively lenient one and certainly I am not persuaded that any lesser sentence is warranted.

25 I would propose that the appeal against conviction be dismissed. I would grant leave to the appellant to appeal against sentence but I propose that this appeal also be dismissed.

26 GROVE J: I agree with Howie J.

27 SIMPSON J: I also agree.

28 GROVE J: The orders of the Court are as proposed by Justice Howie.

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