Kada v The Queen
[2017] VSCA 339
•22 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0039
| HAVAL KADA | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2017 0040
| HADIL KADA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE and KYROU JJA and BEALE AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 11 October 2017 | |
| DATE OF JUDGMENT: | 22 November 2017 | |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 339 | First revision: 29 November 2017 |
| JUDGMENT APPEALED FROM: | DPP v Kada (Unreported, County Court of Victoria, Judge Chettle, 17 February 2017) | |
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CRIMINAL LAW – Appeal against sentence – Trafficking in a drug of dependence – Large quantities of methylamphetamine supplied in four transactions to dealer who onsold to undercover police operative – Sentence of 42 months’ imprisonment on trafficking charge – Whether judge failed to give appropriate weight to element of entrapment involved in transactions – Relevant principles – No error disclosed.
CRIMINAL LAW – Appeal against sentence – Whether judge erred in characterising applicants’ offending as falling within upper-mid level range – No error disclosed.
CRIMINAL LAW – Appeal against sentence – Whether sentences manifestly excessive – No error disclosed.
CRIMINAL LAW – Appeal against sentence – Judge imposed same sentence on applicants even though first applicant had a lesser role in offending – Parity principle infringed – Appeal allowed – First applicant resentenced to 3 years’ imprisonment on trafficking charge.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Haval | Mr C Carr | Grigor Lawyers |
| For the Applicant Hadil | Mr P Smallwood | Grigor Lawyers |
| For the Crown | Mr P J Doyle | J Cain, Solicitor for Public Prosecutions |
TATE JA
KYROU JA:
Introduction and summary
On 9 February 2017, the applicants Hadil Kada and Haval Kada pleaded guilty to the charges set out in the following tables and, on 17 February 2017, they were sentenced as set out in those tables:[1]
[1]DPP v Kada (Unreported, County Court of Victoria, Judge Chettle, 17 February 2017) (‘Sentencing remarks’).
HADIL KADA Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’), s 71AC]
15 years 42 months Base 3 Possessing a drug of dependence
[DPCSA s 73, trafficking purpose not excluded]
5 years 6 months 3 months 4 Possessing a drug of dependence
[DPCSA s 73, trafficking purpose not excluded]
5 years 3 months - 5 Possessing a drug of dependence
[DPCSA s 73, trafficking purpose excluded]
1 year[2] $200 fine - Related summary charges 4 Driving while authorisation suspended
[Road Safety Act 1986 s 30]
2 years $1,000 fine - 12 Possessing a poison
[DPCSA s 36B(2)]
10 penalty units $200 fine - Total Effective Sentence: 3 years and 9 months’ imprisonment Non-Parole Period: 2 years Pre-Sentence Detention Declaration: 62 days Section 6AAA Statement: 5 years’ imprisonment with non-parole period of 3 years Other Orders: Pecuniary penalty order for $38,328.25 [2]See below n 4.
HAVAL KADA Charge Offence Maximum Sentence Cumulation 2 Trafficking in a drug of dependence
[DPCSA s 71AC]
15 years 42 months Base 3 Possessing a drug of dependence
[DPCSA s 73, trafficking purpose not excluded]
5 years 6 months 3 months Total Effective Sentence: 3 years and 9 months’ imprisonment Non-Parole Period: 2 years Pre-Sentence Detention Declaration: 135 days Section 6AAA Statement: 5 years’ imprisonment with non-parole period of 3 years Other Orders: Pecuniary penalty order for $19,578.25
The applicants, who are brothers, seek leave to appeal against sentence.
Hadil relies on three proposed grounds of appeal. The first ground alleges that the judge erred in finding that the gravity of the offending the subject of charge 1 fell into the upper-mid level range of offences for trafficking in a drug of dependence. The second ground alleges that the judge failed to take into account that the offending the subject of that charge might not have occurred but for a covert police operative instigating that offending. Ground 3 alleges that the sentences are manifestly excessive.
Haval relies on four proposed grounds of appeal. Grounds 1 and 2 are substantially the same as those relied upon by Hadil. Ground 3 alleges that the judge contravened the principle of parity while Ground 4 alleges that the sentences are manifestly excessive.
For the reasons that follow, we would:
(a) refuse Hadil’s application for leave to appeal; and
(b) grant Haval’s application for leave to appeal with respect to Ground 3, allow his appeal on that ground and resentence him as set out at [131] below.
Circumstances of the offending
Between 2 September and 22 October 2015, the applicants sold crystal methylamphetamine (‘ice’) to a drug dealer, Matthew Bainbridge, who lived and operated in the Albury area. There were four sale transactions and, on each occasion, Bainbridge onsold the drugs to a covert police operative known as ‘Russell’.
Hadil was involved in the trafficking of 344.4 grams of ice (Hadil charge 1) and Haval, who was only involved in the last three of the four sale transactions, was involved in the trafficking of 277.7 grams (Haval charge 2). The sales were made in multiple ounce quantities, at a price of $7,000 to $7,500 per ounce, with purity varying from 62.5 to 79 per cent. Hadil organised the transactions, delivered drugs to Bainbridge on three occasions and collected money on one occasion. Haval’s role in the offending involved delivering drugs to Bainbridge on one occasion and the collection of money on that occasion and two other occasions. Sales totalling $91,700 occurred, of which Haval was involved in $73,000.
The applicants and Bainbridge were arrested on 22 October 2015.
At the time that he was arrested, Hadil was driving with a suspended licence (Hadil summary charge 4) and was in possession of $9,550 in cash. At Hadil’s house, the police found digital scales and scale weights, four ecstasy tablets (Hadil charge 5[3]) and 7.1 grams of ice (Hadil charge 4).
[3]Charge 5 also included an additional ecstasy tablet located at Haval’s house for which Hadil took responsibility.
At the time of his arrest, Haval was in possession of 55.7 grams of ice in zip lock bags wrapped in toilet paper and black tape. He was also in possession of $371.75 in cash. A roll of black tape was found in Haval’s car.
Upon searching Haval’s house, police located 34 grams of cocaine in a bedroom used by both applicants (Hadil charge 3 and Haval charge 3) and a Viagra tablet (Hadil summary charge 12). Neither applicant was able to discharge his evidentiary onus to support his contention that the cocaine was for personal use, although they both had extensive cocaine habits at the time. Accordingly, the higher maximum penalty of 5 years’ imprisonment applied to that possession charge.[4]
[4]Section 73(1) of the DPCSA provides that if the offence of possessing a drug of dependence is not committed for any purpose relating to trafficking, the maximum penalty is 1 year’s imprisonment.
The police also found two notebooks containing ledger transactions at Haval’s house. One notebook contained dollar amounts and weights corresponding to drugs listed as ‘Ice’, ‘Speed’, ‘Coke’ and ‘Es’.
The total weight of ice sold to Bainbridge (344.4 grams) and seized from Haval (55.7 grams) was 400.1 grams. This represented 80 per cent of a commercial quantity (500 grams mixed purity). Hadil was involved in trafficking the entire quantity. Haval was involved in trafficking 333.4 grams, being 67 per cent of a commercial quantity.
Personal circumstances common to both applicants
The applicants were born in Iraq and are the youngest of nine siblings. Their father was a successful international trader and their family was heavily involved in the Chaldean Catholic community in Baghdad. Due to the persecution of members of that community, five of their siblings fled Iraq.
The applicants’ father died in 1995. Shortly afterwards it was necessary for the applicants, their mother and their two other siblings remaining in Iraq to go into hiding and eventually flee to Turkey. They were granted refugee visas to migrate to Australia and arrived in August 1997. All but one of the applicants’ siblings now live in Melbourne, and they have a close family relationship.
The applicants and their family faced difficult circumstances when they arrived in Melbourne. The family had been forced to leave their assets in Iraq, and relied on welfare payments. The family lived together in a two-bedroom flat. No one spoke more than rudimentary English. Nevertheless the family became involved in, and helped to develop, the Chaldean Catholic community in Melbourne.
Hadil’s personal circumstances
Hadil was born on 28 March 1988. He is the youngest of nine children. He was nine years old when his family arrived in Australia. He was 27 years old at the time of the offending, and 28 years old at the time of sentencing.
Hadil commenced primary school after arriving in Australia and was an able student. He attended high school, leaving school part way through year 11 when he was 17 years old. In pursuit of his ambition to follow in his father’s footsteps and work in international business and trade, Hadil completed a diploma in business at a TAFE college. He found it difficult to obtain employment in this field, and worked as a labourer before commencing a carpentry apprenticeship. Upon completion of that apprenticeship, he started a successful construction business with a cousin. He bought his first property at the age of 21.
Hadil continued to be involved with the Chaldean church, acting as a youth minister and mentor, leading youth groups and undertaking courses at a theology college.
In around 2012, when he was 24 years old, Hadil purchased a second property which caused him significant financial strain. In around 2013 or 2014, his construction business stopped trading.
As a result of this financial stress, in 2013 Hadil began to drink heavily and take cocaine in significant quantities, at a cost of up to $2,000 a day. Occasionally he also used ice. His drug addiction exhausted his finances and it is in this context that he began offending to support his cocaine addiction.
Prior to the current offending, Hadil had no criminal history other than driving offences in 2008, 2009, 2013 and 2015, including driving while his licence was suspended.
After his arrest on 22 October 2015, Hadil spent 62 days on remand. Upon being released on bail, he commenced drug and alcohol counselling. He has not used illicit substances since his arrest. As at the date of sentencing, he had abstained for about 16 months.
Also upon his release on bail, Hadil resumed the operation of his construction company. He employed two people, including Haval, and the company became successful again.
Hadil’s family, friends, partner (Loretta King) and church continue to support him. Character references tendered on the plea described him as honest, hard-working, reliable, family-orientated and a generous volunteer. The references stated that he was regretful and embarrassed by his offending and the harm it has caused to those around him, and determined not to reoffend.
Haval’s personal circumstances
Haval was born on 17 August 1986. He is the second youngest of nine children. He was about 11 years old when his family arrived in Australia. He was 29 years old at the time of the offending, and 30 years old at the time of sentencing.
Haval completed VCE in 2005 and began, but did not complete, tertiary courses in accounting and international business. He worked predominantly in the restaurant business, first in family owned restaurants and then owning and operating his own restaurant from 2010 until 2013. He then joined Hadil’s construction business and worked there as a labourer and carpenter until the business stopped trading.
On 6 December 2007, Haval was before the Broadmeadows Magistrates’ Court on charges of trafficking, possessing and using ecstasy and was released on a community based order (‘CBO’) for 12 months without conviction. On 25 May 2009, he was convicted by that Court and fined for driving while disqualified and using ice. On 18 May 2010, he was convicted and fined for driving offences, theft and failing to answer bail.
On 31 August 2010, Haval was dealt with for failing to comply with the CBO. He was released on a further CBO for 12 months.
Haval was using cocaine prior to his arrest on 22 October 2015. He attributed his 2007 trafficking offence to the party lifestyle that he was living at the time.
After his release on bail following almost four and a half months on remand for the current offences, Haval participated in a drug rehabilitation program and became drug free. While on bail, he lived with his mother and worked with Hadil. He volunteered with a church soup van and assisted a church youth group. Character references (including by his partner, Tamara Khamo) were tendered which described him as sincere, warm and compassionate and stated that he had expressed remorse for his offending.
Plea hearing
At the joint plea hearing on 9 February 2017, the applicants accepted that the prosecution opening could be treated as an agreed statement of facts.
The prosecution opening referred to the following matters which are relevant to the grounds of appeal:
(a)The first sale transaction took place on 2 or 3 September 2015 and involved the supply of close to 2.5 ounces of ice for $18,750. Haval did not have any role in that transaction.
(b)In relation to the second sale transaction, Hadil telephoned Bainbridge on 7 September 2015 and they discussed supplying four ounces of ice ‘to Bainbridge’s “mate” (ie Russell)’. Hadil telephoned Bainbridge later on the same day and said he ‘wanted a $3,000–$4,000 debt owed to him by a Shaun Barr — an associate of Bainbridge — sorted out.’ At 3:10 pm on 9 September 2015, Haval supplied Bainbridge with four ounces of ice. At 3:18 pm on the same day, Bainbridge supplied approximately four ounces of ice to Russell ‘in zip lock bags wrapped in toilet tissue and black tape.’ Russell paid Bainbridge $30,000. At 3:40 pm on the same day, Hadil telephoned Bainbridge and they discussed the price at which Bainbridge was selling ice to Russell. Bainbridge said that Russell wanted to pay $7,250 per ounce but Bainbridge told him $7,500. Hadil told Bainbridge that he should sell at $7,500 per ounce. A short time later, Haval attended at Bainbridge’s residence and collected monies from the sale to Russell.
(c)On 29 September 2015, Russell telephoned Bainbridge and said he needed four ounces of ice urgently. A few minutes later, Bainbridge called Hadil asking for four ounces of ice urgently. Hadil told Bainbridge ‘that this would be easy’ but the sale did not eventuate.
(d)In relation to the third sale transaction, on 7 October 2015, Bainbridge asked Hadil if he could obtain four to six ounces of ice the next day. Hadil told Bainbridge that ‘it was easy’. On 8 October 2015, Hadil supplied Bainbridge with four ounces of ice. Later that day, Bainbridge supplied 110.5 grams (3.9 ounces) of ice to Russell and was paid $29,000. Bainbridge subsequently paid $24,000 to Haval from the sale to Russell. On 9 October 2015, Hadil called Bainbridge and asked why he did not ‘send back’ $30,000. Bainbridge said that: he gave Russell the four ounces of ice for $29,000; he took $5,000 instead of $6,000 for himself; and he gave Haval the balance of $24,000.
(e)The fourth sale transaction took place on 22 October 2015. Hadil supplied two ounces of ice to Bainbridge. Bainbridge supplied 56 grams (1.98 ounces) of ice to Russell but Bainbridge was arrested prior to payment being made. Haval was arrested prior to reaching Bainbridge’s residence, where he intended to obtain the proceeds of that transaction from Bainbridge. Hadil was also arrested on that day.
The prosecutor agreed with the judge that, although there were separate trafficking charges against the applicants, the prosecution case was that there was a joint criminal enterprise between them. He also agreed with the judge that ‘[a]lthough it seems like Hadil does the negotiating and Haval does the money collecting and dropping stuff off … [t]hey’re working as a team.’[5]
[5]Transcript of Proceedings (9 February 2017) 13 (‘Plea transcript’).
Hadil’s counsel, Mr Barker, accepted the judge’s characterisation of Hadil’s role in the offending, as follows:
HIS HONOUR: I got the impression that your bloke was the prime mover … You don't argue with that?
MR BARKER: I wouldn't argue with that.
HIS HONOUR: He seems to be making the arrangements ‑ ‑ ‑
MR BARKER: He seems to be ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ and the other fellow [Haval] was assisting him.
MR BARKER: That's correct, Your Honour ...[6]
[6]Plea transcript 32–3.
The following exchange took place between the judge and Haval’s counsel, Mr Johns, regarding the extent of Haval’s involvement in the offending and whether Haval was involved in a joint criminal enterprise:
MR JOHNS: The offending of Mr Haval Kada obviously is of smaller breadth in terms of its criminality, perhaps not to a great extent, but it certainly is because it’s absent the first transaction. And I heard what Your Honour has said in discussion with ‑ ‑ ‑
HIS HONOUR: Well, clearly it was a joint enterprise, but I might say, you wouldn’t argue with the proposition that Hadil was the prime mover.
MR JOHNS: No, so ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ as far as you two were concerned.
MR JOHNS: Yes, so I followed your discussion with [the prosecutor], and I followed your discussion with Mr Barker. I don’t demur from any of that. I just say, to be clear, Your Honour says, well, clearly it was a joint enterprise, we agree with that. We’re complicit in what we’re charged with, obviously, and that's ‑ ‑ ‑
HIS HONOUR: You've got a bit less than that.
MR JOHNS: That's stating the obvious.
HIS HONOUR: Less than your brother.
MR JOHNS: Yes. ... [7]
[7]Plea transcript 55.
Mr Barker made the following written submission about the scale of Hadil’s trafficking, Hadil’s involvement with Bainbridge and the role of Russell:
[Hadil] met Matthew Bainbridge through an acquaintance. By that time, it would seem, Bainbridge was already dealing with the Covert Operative in New South Wales. Similarly, the requests being made by the Covert Operative were getting greater; and Bainbridge was having difficulty sourcing sufficient [ice]. Bainbridge knew that [Hadil] was a heavy Cocaine user and asked if he could source [ice]. Bainbridge said that there would be a profit margin if he could, in fact, source it. Regrettably, [Hadil] said that he thought his Cocaine dealer also dealt in [ice]. He did so with the sole aim of making a profit to fund his Cocaine use.
[Hadil’s] offending is limited in duration — approximately 7 weeks. There are a limited number of transactions — 4. The profits were modest — the sales to Bainbridge were for approximately $500 per ounce more than [Hadil] paid.[8]
[8]Hadil Kada, ‘Outline of Plea Submissions’, 8 February 2017, [20]–[21].
In his oral submissions, Mr Barker stated that Bainbridge had been selling ice to Russell for ‘a couple of months’ before the applicants commenced selling ice to Bainbridge.[9] The following exchange then took place:
HIS HONOUR: There’s no indication of [the applicants] being involved with Bainbridge before [the first sale] transaction?
MR BARKER: No, Your Honour, no, there’s not. What covert operatives do, they ramp up the requests.
HIS HONOUR: Yes, I know, they entrap you.
MR BARKER: They entrap you, but they entrap you firstly at an eight-ball, take you to a quarter ounce and they see how far they can get you. And what had happened, Your Honour, is that Bainbridge was having trouble sourcing sufficient ice himself to satisfy the requirements of the covert operative. He knew that my client was a drug user, and a heavy drug user by that point in time, and he says to my client, ‘Can you get me something?’ He says to my client, who is in incredible financial stress at that time, ‘There’s a profit motive in this for you if you do.’ My client, foolishly and regrettably, and something that he’s terribly remorseful for, and this is a plea that’s strongly about remorse, acceded to his request and said, ‘Look, I think the person who supplies my cocaine also supplies ice’, and then things were set in train. He did this with the sole aim of funding his cocaine use.[10]
[9]Plea transcript 33.
[10]Plea transcript 33–4.
The judge then observed that these submissions were made on instructions without any supporting evidence. The following exchange took place regarding the absence of evidence:
HIS HONOUR: All this is on instructions, isn’t it.
MR BARKER: Of course it is, Your Honour.
HIS HONOUR: Yes, there’s no evidence of it. I mean [the applicants] didn’t cooperate with the police. They didn’t tell their story.
MR BARKER: That’s correct, Your Honour.
HIS HONOUR: All right. So it’s just what it is.
MR BARKER: I’m not putting it, Your Honour, because I wouldn’t be putting it to you if I didn’t accept what I’m putting to you.
HIS HONOUR: That’s not my test, though, is it.
MR BARKER: No, it’s not your test, Your Honour.
HIS HONOUR: Your client’s told you and you're telling me.
MR BARKER: That’s right, Your Honour.[11]
[11]Plea transcript 34.
Later, in the course of submissions by Mr Johns on behalf of Haval, the judge again noted that reliance was placed on matters put from the Bar table. The following exchange took pace:
HIS HONOUR: [M]y concern is I get a whole lot of stuff from the Bar table and on instructions.
MR JOHNS: Yes, look, I understand that.
…
HIS HONOUR: There is some issue about getting all this stuff on instructions, Mr Johns.
MR JOHNS: Yes.
HIS HONOUR: It happens all the time. The same with Mr Barker.
MR JOHNS: Yes.
HIS HONOUR: What you’re telling me is what your client has told you, and although there may be some references that support some of the issues in relation to rehabilitation and remorse and things of that sort, as to the circumstances of the offending, your instructions as to what happened when and why don’t mean much.
MR JOHNS: Well, they’re not evidence.
HIS HONOUR: No.[12]
[12]Plea transcript 49–51.
After Mr Barker submitted that the notebooks found at Haval’s house[13] contained the hand writing of a woman named Monique and related to trafficking activities of persons other than the applicants, the following exchange took place:
[13]See [12] above.
HIS HONOUR: I make it clear to both of you. No matter how earnestly and enthusiastically you put your instructions, they are just that.
MR BARKER: Indeed.
HIS HONOUR: And they are not supported [by] evidence and each of you can if you want to, call evidence. If you wanted to.
MR BARKER: Thank you, Your Honour.
HIS HONOUR: That’s always the case on a plea.
MR BARKER: I’m aware of that, sir.
HIS HONOUR: And I often invite people to do so. And you all know that.[14]
[14]Plea transcript 64.
Neither Mr Barker nor Mr Johns took up the judge’s invitation to call evidence.
The following exchange took place between Mr Johns and the judge on the issue of parity:
MR JOHNS: [T]here is … ample scope to give the disposition for which I’ve requested — for which I’ve submitted is appropriate by a short sentence and followed by a [community correction order] with some conditions — some stringent conditions — but in my submission when one looks at the entirety of this — and Your Honour’s going to have to consider parity — there’s no strict parity but Your Honour’s going to have [to] consider disparity, I suppose is the way to describe it — and whether they come out even in the end or what ‑ ‑ ‑
HIS HONOUR: Your bloke has less involvement than Hadil but your guy’s got the priors.
MR JOHNS: Got the prior — my fellow’s spent more time in custody. Don’t disagree with any of that.[15]
[15]Plea transcript 56.
Both applicants were assessed as suitable for a community correction order (‘CCO’).
Sentencing remarks
The judge summarised the respective roles of the applicants as follows:
You, Hadil, organised the various transactions and you, Haval, assisted with the delivery of the drugs and collection of the money. Details of the various transactions are set out in [the prosecution opening]. You, Hadil, were involved in the sale of 344.4 grams of [ice] and you, Haval, 277.7 grams. The sales were made in multiple ounce quantities, at a price of $7,000 to $7,500 per ounce; with the purity varying from 62 to 79 per cent. $91,700 of drugs sales occurred in total. You, Haval, were involved in $73,000 of those sales.
The dealer you sold to, onsold the [ice] to an undercover police operative.[16]
[16]Sentencing remarks [4]–[5].
Later, the judge described Hadil as ‘the prime mover’ and ‘the organiser’ in the offending and noted that Hadil had dealt in ice on more occasions and for a longer period than Haval.[17] However he noted that, unlike Hadil, Haval had committed a prior trafficking offence which was relevant to sentencing for his current offending.[18] Accordingly, the judge stated that he proposed to ‘treat [the applicants] equally in sentencing as a result’.[19]
[17]Sentencing remarks [34].
[18]Sentencing remarks [12], [34].
[19]Sentencing remarks [34].
The judge said he was prepared to accept Mr Barker’s assertion that Hadil offended in order to fund his ‘serious and expensive’ cocaine addiction, even though there was no evidence to support that assertion and Mr Barker declined to call any evidence on the issue.[20]
[20]Sentencing remarks [17]–[18].
The judge said that he took into account Hadil’s favourable references, including the statements about his remorse and resolve not to re-offend.[21] The judge accepted that Hadil had taken steps to rehabilitate himself[22] and said the following about his prospects for rehabilitation:
I accept that the steps you have taken since your arrest indicate that your future prospects for rehabilitation are good. Your lack of relevant prior criminal history, your family's support, your work history and your work ethic, your broader community support; all support those prospects.[23]
[21]Sentencing remarks [22].
[22]Sentencing remarks [19].
[23]Sentencing remarks [23].
The judge said that he had taken into account the steps that Haval had taken towards his rehabilitation, his drug free status, the favourable references tendered on his behalf, and the remorse he had expressed for his current offending.[24]
[24]Sentencing remarks [27]–[28].
The judge said the following about the mitigating factors in favour of both applicants:
In relation to both of you, I take into account your early pleas of guilty. You have demonstrated remorse and spared the community the time and expense of a criminal trial. You are both entitled and shall receive a reduction to the sentence to reflect the pleas of guilty. …
In relation to each of you, I take into account the good prospects for future rehabilitation. You both claim to be drug free and both have strong family and community support. If you both remain drug free your prospects are good. Your prior history, Haval, makes your prospects a little uncertain, however it is up to both of you to ensure that you remain drug free if you wish to avoid offending in the future and extensive time in custody.
Both your counsel relied heavily on the combination of your prospects for rehabilitation and your pleas of guilty. I give full weight to both of these mitigating factors in sentencing each of you.
…
In both your cases I propose to impose a longer than usual parole period to reflect those good prospects of rehabilitation.[25]
[25]Sentencing remarks [29]–[31], [37].
The judge addressed the submission put on behalf of the applicants that a CCO ought to be imposed on each of them and said the following:
Each of you have demonstrated your ability to be constructive law-abiding citizens over the past year. I have considered all the factors mandated by the Sentencing Act and have had regard to the comparative sentences for similar offending. While every case is different, I am of the view that your offending falls into the upper-mid level range of offences of trafficking in a drug of dependence. I do not believe that the purposes of sentencing can be achieved by the imposition of a [CCO]. …
I cannot impose a combination … sentence of imprisonment and a [CCO] because in my view, a sentence of imprisonment in excess of two years must be imposed on each of you.[26]
[26]Sentencing remarks [32]–[33].
The judge described the offending as ‘well-planned’, ‘lucrative’ and involving ‘substantial quantities of cash and drugs’.[27] He added the following:
The public is heartily sick of the devastation drugs of addiction cause to our community. Lives, particularly young lives, are ruined by drugs of addiction. This court sees that destruction and devastation on a daily basis.
General deterrence, just punishment and the expression of community denunciation dictate that nothing other than a substantial term of imprisonment is appropriate for your offending. I have reduced the sentences I am about to impose to reflect the mitigatory factors to which I referred and were relied upon by your counsel.[28]
[27]Sentencing remarks [35].
[28]Sentencing remarks [35]–[36].
The judge said that the confiscation orders of $38,328.25 and $19,578.25 for Hadil and Haval respectively represented the benefit each of them had derived from the trafficking activity.[29]
[29]Sentencing remarks [41].
Grounds of appeal
Hadil’s proposed grounds of appeal are in the following terms:
1The sentencing judge erred by finding that the gravity of the offending that informed charge 1 fell into the upper-mid level range of offences for trafficking in a drug of dependence.
2The sentencing judge erred by failing to take into account when assessing the applicant’s culpability the fact that the offending that informed charge 1 might not have occurred but for a Covert Operative instigating that offending.
3The sentence imposed on charge 1, the sentence imposed on charge 3, the order for cumulation made in relation to the sentence imposed on charge 3, the total effective sentence and the non-parole period fixed are each manifestly excessive.
Haval’s proposed grounds of appeal are in the following terms:
1The sentencing Judge erred in finding that the gravity of the applicant’s offending ‘falls into the upper-mid level range of offences of trafficking in a drug of dependence’.
2The sentencing Judge erred in failing to take into account the fact that the applicant’s offending was the result of a police ‘sting’, and might not have occurred without police instigating that offending.
3The principle of parity has been breached, in that the relativity between the applicant’s and his co-offender’s sentences is such as to engender in the applicant a justifiable sense of grievance.
4The individual sentences, the order for cumulation, and the total effective sentence thereby reached are manifestly excessive.
As Grounds 1 and 2 are common to both applicants, we will deal with those grounds together. As the applicants placed their primary focus on Ground 2, we will deal with that ground first.
Ground 2 for both applicants: Involvement of the covert police operative
Case law relating to involvement of a covert police operative
A number of cases have considered the extent to which the involvement of police officers in the circumstances of the offending — which is often described as entrapment — may be taken into account in mitigation of penalty.
In R v Taouk,[30] the offender was convicted of attempting to pervert the course of justice by seeking to bribe a judge in order to secure a more lenient sentence for a relative. The offender discussed his desire to bribe the judge with an acquaintance who then introduced him to a police officer. That police officer introduced the offender to a second police officer who said that he knew the judge and would be willing to pass on any bribe offered by the offender to the judge. The offender was arrested after he made the payment to the second police officer.
[30](1992) 65 A Crim R 387 (‘Taouk’).
Badgery-Parker J (with whom Clarke JA agreed) reviewed English and Australian authorities on the role of entrapment in criminal law and stated that it was well established that entrapment is to be taken into account as a matter going to mitigation of penalty.[31] He said that, as the sentencing process is concerned with the level of culpability of the offender, if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender. This was so even where the conduct of the police was not improper.[32] He summarised the principle as follows:
[W]hen it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or inducement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as to diminish his culpability.[33]
[31]Taouk (1992) 65 A Crim R 387, 396.
[32]Taouk (1992) 65 A Crim R 387, 403.
[33]Taouk (1992) 65 A Crim R 387, 404.
Badgery-Parker J endorsed the view expressed by King CJ in R v Mandica[34] that entrapment is not a ground for leniency where the effect of the ‘police trap’ is not to encourage a person to commit an offence which he or she would not have otherwise committed, but merely to detect and obtain evidence against an offender who is only too ready to commit the offence.[35] After reviewing the evidence, Badgery-Parker J concluded that, even though the offender ‘was not just willing but anxious to bribe the judge’, if the police officers had not made themselves available as the means by which the bribe might be conveyed to the judge, the crime may never have been committed. He said that he gave ‘a great deal of weight to that factor’ in assessing the offender’s level of criminality.[36]
[34](1980) 24 SASR 394, 403.
[35]Taouk (1992) 65 A Crim R 387, 400.
[36]Taouk (1992) 65 A Crim R 387, 416.
Abadee J agreed with the order proposed by Badgery-Parker J. However, he said that, in assessing the level of the offender’s criminality, he would ‘not give the same “great deal of weight”’[37] to the willingness of the police officers to assist the offender. This was because, had the police officers rejected the offender’s proposal, ‘it was very likely that [he] would have tried in another direction.’[38]
[37]Taouk (1992) 65 A Crim R 387, 417.
[38]Taouk (1992) 65 A Crim R 387, 417.
In R v N,[39] the offender was serving a sentence of periodic detention for a previous conviction of supplying heroin. The police used an agent to arrange a meeting between the offender and an undercover operative for the purpose of inducing the offender to again supply heroin. The police targeted the offender for this purpose and arranged for the agent to make initial contact with her at the centre where she performed community service, under the subterfuge that the agent was also performing such service.
[39](1999) 106 A Crim R 493 (‘N’).
The applicant gave uncontested evidence on the voir dire that the agent instigated discussions about drugs, and pressed her to supply heroin to an ‘acquaintance’. This occurred on eight or 10 occasions. Each time, the offender told the agent that she did not want to be involved and that he should leave her alone. The agent also visited the offender at her home and made similar demands. Eventually, the offender met with the undercover police officer and later supplied her with heroin. However, the offender continued to show reluctance by: failing to attend at the next arranged meeting; hanging up on the agent’s telephone call; and putting off other meetings with the police officer. On one occasion, the agent used threatening language in response to the offender’s reluctance to supply heroin. On another occasion, the agent visited the offender’s home and threatened that she or her four-year-old son could be killed. The offender’s evidence was that she supplied heroin on the second occasion because she was scared for her safety and that of her son. The Crown conceded that the offender was particularly vulnerable at the time the agent pressed her to supply drugs.[40]
[40]N (1999) 106 A Crim R 493, 500 [32].
Adams J (with whom Spigelman CJ and Dunford J agreed) stated that, objectively, the offender was not eager to participate in the transactions initiated by the agent. To the contrary, she was a reluctant participant.[41] Adams J held that it could not be established beyond reasonable doubt that the offender would have engaged in the transactions without the police inducement[42] and that this view was not altered by her ready access to the drug.[43] Overall, he assessed the offender as ‘going along’ with the offending rather than being involved for profit.[44] Adams J stated that, once it becomes apparent that ‘a target such as the [offender]’ is reluctant to commit the proposed crime, it is ‘quite wrong’ for the police to attempt to overcome that reluctance, and the presence of the reluctance ‘significantly undermines the supposition or suspicion that the police are, as it were, merely joining the queue of customers being supplied with drugs by the target.’[45]
[41]N (1999) 106 A Crim R 493, 499 [26], 501 [40].
[42]N (1999) 106 A Crim R 493, 502 [42].
[43]N (1999) 106 A Crim R 493, 502 [41].
[44]N (1999) 106 A Crim R 493, 503 [50].
[45]N (1999) 106 A Crim R 493, 497 [21].
In a brief concurring judgment, Spiegelman CJ cited with approval the observations of Badgery-Parker J in Taouk which are quoted at [59] above and stated that the ‘very special circumstances’ of the case significantly diminished the offender’s culpability.[46]
[46]N (1999) 106 A Crim R 493, 504 [59].
In Director of Public Prosecutions (Cth) v Haidari,[47] the offender had been involved in small-scale people smuggling. He had arranged for one person to be transported to Australia by boat in 2009 (charge 1), and six people in 2010 (charge 2). In 2011, an undercover police officer represented to the offender that he wanted his help to bring six people from Indonesia to Australia. The offender agreed. Meetings took place and the offender was provided with details of the persons to be transported, and received payments from the undercover police officer (charge 4). The offender was arrested at the last of these meetings. The Crown appealed against the offender’s sentence on the ground, amongst others, that the sentencing judge had given too much weight to the fact that charge 4 involved a ‘sting operation’, and that the offending the subject of that charge did not result in any non-citizen entering Australia.
[47](2013) 230 A Crim R 134 (‘Haidari’).
Harper JA (with whom Weinberg and Priest JJA agreed) stated that ‘[t]he circumstances in which an offender enters into a criminal enterprise are relevant to sentence’[48] and that ‘[i]f there is a real likelihood that, in the absence of police inducement, the offender would not have committed the crime, leniency may well be indicated’.[49] He referred to the principles discussed in Taouk and N and concluded that the sentencing judge had not erred in holding that the offender’s culpability in the commission of the offence the subject of charge 4 had been diminished by ‘the involvement of the police in the commission of [that offence]’[50] and by the fact that the commission of that offence ‘put no one at risk’.[51]
[48]Haidari (2013) 230 A Crim R 134, 142 [31].
[49]Haidari (2013) 230 A Crim R 134, 142 [32].
[50]Haidari (2013) 230 A Crim R 134, 143 [36].
[51]Haidari (2013) 230 A Crim R 134, 143 [37].
By reference to N, Harper JA drew a distinction between, on the one hand, ‘those who had been encouraged by the police to do what they otherwise would not have done’ and, on the other hand, ‘those who were engaged in the criminal behaviour in question as part of their ongoing business’.[52]
[52]Haidari (2013) 230 A Crim R 134, 142 [33].
Harper JA relied on the fact that the offending the subject of charge 4 was initiated by the police rather than the offender. He acknowledged that the offender had demonstrated ‘a willingness, perhaps even an eagerness’ to participate in, and profit from the people smuggling proposed by the police.[53] He also acknowledged that, arguably, the offender fell into the category of offender who was encouraged by the police to engage in the offending as part of his ongoing business.[54] However, Harper JA stated that the impact that police involvement had on the scale of the offending was a relevant consideration, for the following reasons:
If the [offender] was engaging in a business, it was on a very small scale; and, without the involvement of the police, it might never have become larger. … Moreover, this case is not comparable with those in which the police, as part of an evidence‐gathering exercise, inveigle themselves into (for example) a drug‐running ring and in the process become involved in a drug‐trafficking incident. If the undercover agent had not contacted the [offender], the particular, discrete, events which resulted in charge 4 would not have happened. And (to adopt the words of Badgery-Parker in Taouk) there is in this case ‘a real possibility that, but for the assistance, encouragement or incitement offered by police officers he [the offender] would not have [committed the crime]’.[55]
[53]Haidari (2013) 230 A Crim R 134, 142 [31].
[54]Haidari (2013) 230 A Crim R 134, 142 [33]–[34].
[55]Haidari (2013) 230 A Crim R 134, 143 [36].
The question whether, in trafficking offences, the fact that the drugs did not reach the community due to police involvement is capable of affecting the level of culpability of the offender was considered by this Court (Hansen, Whelan and Beach JJA) in Taumoefalau v The Queen.[56] After reviewing the authorities, the Court summarised the relevant principles as follows:
The authorities we have reviewed make clear the importance of the fact that the legislative scheme governing trafficking does not distinguish between the acts which constitute ‘trafficking’ in such a way as to render less serious acts which do not result in distribution from those which do. The acts which constitute trafficking include preparing a drug of dependence for trafficking, manufacturing a drug of dependence, and selling, exchanging, agreeing to sell, offering for sale or having in possession for sale a drug of dependence. …
Likewise, the authorities make it clear that it is significant that the legislative scheme does not differentiate between attempts to traffick and trafficking. …
But the [authorities] do not mean that all acts which constitute trafficking or attempts to traffick are to be treated the same. …
The harm (actual and potential), or … the ‘deleterious effects’, of particular conduct is a potentially relevant matter depending upon the circumstances of each individual case. The sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve. … The fact that the conduct of the offender may be such as to render it unlikely, or even impossible, that he or she will achieve the objective is unlikely to mitigate an assessment of the criminality, and it will commonly have very little weight. … In any particular case, actual harm, both its presence and its absence, can be taken into account, as this Court said in Haidari.[57]
[56](2015) 253 A Crim R 508 (‘Taumoefolau’).
[57]Taumoefolau (2015) 253 A Crim R 508, 518–19 [33]–[36] (citations omitted).
In New South Wales, recent decisions of the Court of Criminal Appeal have determined that the absence of dissemination of drugs to the community is not a mitigatory circumstance. In Giang v The Queen[58] and Sponberg v The Queen,[59] that Court endorsed the following statement of Johnson J (with whom Hoeben CJ at CL and Bellew J agreed) in AB v The Queen:[60]
[The sentencing judge’s] finding, as a mitigating factor, that no substantial harm was caused because all the drugs were seized, was very generous to the [offender]. If the drugs had been disseminated into the community, it would have constituted a significant aggravating factor on sentence. However, the absence of an aggravating factor does not translate the matter into a mitigating factor. This Court has observed repeatedly, in the context of offences where police operations mean that the drugs are not actually disseminated into the community, that the moral culpability of an offender is not thereby reduced.[61]
[58][2017] NSWCCA 25 [24].
[59][2017] NSWCCA 120 [40].
[60][2013] NSWCCA 273 (‘AB’).
[61]AB [2013] NSWCCA 273 [92].
The principles that emerge from the above authorities which are relevant to the present applications may be summarised as follows:
(a)The involvement of police in the commission of a trafficking offence is a relevant sentencing consideration.
(b)The weight to be given to police involvement will depend on the circumstances of each case.
(c)The fact that there is a real possibility that the specific offending would not have occurred but for the involvement of the police may carry some weight. As this causation element will be present in many cases, considered in isolation, it will not necessarily be an important sentencing consideration.
(d)The primary focus will usually be on how the circumstances of the police involvement in a particular case bear upon the culpability of the offender. Police involvement does not have a predetermined or uniform impact on culpability. Rather, there is a spectrum along which that impact is to be assessed, ranging from very little impact to substantial impact.
(e)Factors that affect the impact of police involvement on culpability include the following:
(i)The manner in which the involvement of the police contributed to the offending, including the nature and degree of any pressure or coercion applied, or encouragement or inducement offered, by the police to secure the commission of the offence.
(ii)The extent to which the involvement of the police contributed to the offending.
(iii)Whether the police dealt with the offender directly or through an intermediary. Ordinarily, the more remote the police involvement — including any pressure, coercion, encouragement or inducement by them — is to the offender, the less weight it will have on the sentencing synthesis.
(iv)The readiness with which the offender responded to any requests for drugs by the police. The involvement of the police will carry greater weight if the will of the offender is overborne by them, compared to a situation where the offender regards the requests for drugs from the police as a welcome expansion to his or her trafficking operation. Conversely, police involvement will carry less weight if the offender, rather than the police, instigated the relevant trafficking transaction.
(v)Whether the police became involved at a time when the offender was already trafficking in the relevant drug and, if so, the scale of his or her operation at that time and the scale of operation resulting from the police involvement. The involvement of the police will carry less weight if their requests for a drug can be accommodated within the offender’s existing supply lines, compared to a situation where those requests can only be accommodated by material changes to the offender’s scale of operation and supply lines.
(f)The fact that no actual harm arises because the involvement of the police prevents the drugs from being distributed to the community is a relevant consideration. However, ordinarily, this fact will be accorded little, if any, weight as a mitigating circumstance. This is because it would be anomalous for the offender to receive a more favourable sentencing disposition due to a circumstance which, from his or her perspective, is fortuitous, namely, the involvement of the police.
Parties’ submissions
Haval referred to the exchange between Mr Barker and the judge set out at [38] above and submitted that it was apparently accepted by the prosecutor and the judge on the plea that the trafficking involving Bainbridge was induced by Russell and was of an entirely different scale to any in which the applicants might otherwise have been engaged. The involvement of Russell was said to be significant in assessing the applicants’ culpability because, although the quantities of ice that were sold were large, this was the result of those amounts being requested by Russell.
Haval contended that this case can be distinguished from one in which an undercover police operative is introduced to an ongoing large-scale trafficking business, and merely provides evidence to permit the prosecution of the ongoing large-scale trafficking. Haval accepted that in such cases, the fact that the offences are induced by the police is not relevant to the assessment of culpability, because the police are merely ‘joining the queue of customers’. By contrast, so it was said, Russell’s requests in the present case resulted in a series of individual transactions that were far out of proportion to any trafficking that might have otherwise been undertaken by the applicants.[62]
[62]Haval referred to Haidari (2013) 230 A Crim R 134, 143 [36].
Haval submitted that there was a real likelihood that he would not have committed the offence in the absence of police inducement, and that warranted leniency in sentencing. Indeed, so it was said, there was ‘no hint’ of any prior trafficking of ice by Haval at all, let alone trafficking of such a large scale.
According to Haval, the role of Russell had the effect of reducing his culpability, and therefore the judge should have taken it into account. Haval contended that the fact that the judge did not mention the police involvement in his sentencing remarks indicates that he failed to take it into account and thus fell into error. He argued that, if the judge had taken it into account, he would have assessed Haval’s offending at a lower level of culpability than he actually did. This, in turn, so it was said, would have resulted in a lower sentence.
Haval submitted that, as the prosecution opening described the sale transactions as sales to Russell rather than sales to Bainbridge, there was a ‘real and somewhat direct connection’ between the police entrapment and the applicants’ offending.
Haval submitted that it was also a mitigating circumstance that the involvement of Russell meant that the drugs would never be distributed to the community.
Hadil adopted Haval’s submissions on Ground 2 and emphasised that there was no evidence that the applicants had previously supplied ice to Bainbridge.
The Crown submitted that it was readily apparent on the plea that the judge appreciated and accepted the role played by Russell and the fact that the offending might not have occurred without the police instigating a ‘sting’.
The Crown relied on the exchange set out at [38] above in support of that submission. The Crown also noted that the judge referred to the involvement of Russell in his sentencing remarks[63] and submitted that while he did not expressly state the way the involvement of Russell impacted on the culpability of the applicants, the judge was alert to the fact and gave it due consideration.
[63]See [45] above.
The Crown accepted that there was a real possibility that, but for the involvement of Russell, the applicants would not have engaged in trafficking either at all or on the scale that informed the charges. However, the Crown submitted that the involvement of Russell did not militate against a finding that the offending was in the upper-mid level range, especially given the substantial quantity of drugs and cash involved for a trafficking ‘simpliciter’ case. The Crown noted that the involvement of Russell was one step removed from the applicants.
Decision
In our opinion, Ground 2 is not made out.
It is clear from the exchange between the judge and Mr Barker on the plea[64] and the judge’s sentencing remarks[65] that he was aware of Russell’s involvement in the offending and accepted that the sales of large quantities of ice to Bainbridge might not have occurred had it not been for that involvement. It can also be readily inferred that the judge was aware that the ice which was onsold to Russell was not distributed to the community. The sentencing remarks do not disclose how much weight the judge gave to these sentencing considerations. We will assume, in favour of the applicants, that the judge gave them little weight. However, in accordance with the principles set out at paras (c) and (f) of [72] above, the judge did not err in doing so.
[64]See [38] above.
[65]See [45] above.
The key to determining whether Ground 2 is to be accepted is an assessment of where, in accordance with the principles summarised at [72] above, the involvement of Russell in the present case places the applicants’ offending along the spectrum of culpability. Although the judge was clearly aware of the element of police entrapment involved in the present case, he did not expressly state in his sentencing remarks how the entrapment affected his assessment of the applicants’ culpability. However, as he found that the applicants’ offending fell within the upper-mid level range of trafficking in a drug of dependence, it can be safely inferred that the judge concluded that their culpability fell at the upper-midpoint of the spectrum and that the entrapment did not materially mitigate it. For the following reasons, we agree with the judge’s conclusion.
First, while the judge accepted that Russell’s involvement resulted in an element of entrapment, the judge did not necessarily accept the statements made by Mr Barker and Mr Johns from the Bar table about the genesis of, and reasons for, the applicants’ dealings with Bainbridge. As is evident from [39]–[41] above, the judge said on more than one occasion that there was no evidence for counsel’s statements on instructions and that he invited counsel to call evidence in support of those statements. Counsel did not take up the judge’s invitation. The judge’s statement to Mr Johns that, ‘as to the circumstances of the offending, your instructions as to what happened when and why don’t mean much’ clearly indicates that he did not proceed on the basis that he accepted that the facts were exactly as they had been represented by counsel.[66]
[66]See [40] above.
That fact that counsel did not take up the judge’s invitation to call evidence meant that there was no evidence on the plea that: Bainbridge knew that Hadil was a heavy cocaine user; Bainbridge told Hadil that he was having difficulty sourcing sufficient ice; Bainbridge asked Hadil whether he could source some ice and said that there would be a profit in it for Hadil; and Hadil said that he thought that his cocaine dealer also dealt in ice. The present case is to be contrasted with N, in which the offender gave evidence of her dealings with the covert police operative and the pressure to which she was subjected by the operative’s agent.
Secondly, as the applicants did not adduce any evidence about the genesis of, and reasons for, their dealings with Bainbridge, the factual framework for the offending must be established by reference to the prosecution opening which the parties treated as an agreed statement of facts. The prosecution opening indicates that Hadil had some form of relationship with Bainbridge prior to the current offending because an associate of Bainbridge owed Hadil $3,000–$4,000.[67]
[67]See [33(b)] above.
Thirdly, the prosecution opening indicates that on two occasions on which Bainbridge asked Hadil whether he was able to supply significant quantities of ice urgently, he responded that this would be ‘easy’. It can be inferred from this that Hadil had well-established connections to supply channels and that, notwithstanding Russell’s involvement, there was no element of coercion and the applicants’ will was not overborne. There was no evidence of pressure of any type being applied to them. Bainbridge’s dealings with the applicants were entirely commercial in nature in the sense that Bainbridge’s dealings with Russell generated demand for ice and Hadil chose to meet that demand at a price that yielded a profit. The only ‘inducement’ was the opportunity to earn money, which is common in trafficking offences and does not depend on any police involvement. In these circumstances, there is little that could provide a sound basis for treating Russell’s involvement as a significant mitigating factor.
Fourthly, the fact that Bainbridge was interposed between Russell and the applicants meant that the police entrapment was relatively remote from the applicants. We reject the applicants’ submission that there was a direct connection between the police entrapment and their offending. Hadil had a pre-existing association with Bainbridge and neither applicant met Russell. As far as the applicants were concerned, Russell was a ‘mate’[68] of Bainbridge whose dealings with Bainbridge created an opportunity for them. However, even if it is accepted that Bainbridge is the applicants’ agent and the sales of the ice are to Russell rather than to Bainbridge, the fact remains that the interposition of Bainbridge diluted the impact of the entrapment on the applicants.
[68]See [33(b)] above.
We accept that the dealings between the offender and the police in N were facilitated by an agent. However, in that case, the police targeted the offender and sent the agent — with whom the offender had no prior relationship — to the centre at which the offender performed community service to coerce her into selling drugs to the covert police operative. The offender met the operative and engaged in communications with her before selling heroin to her. Apart from the overt coercion by the agent, there was an element of pressure — or at least persistence — by the operative to ensure that the sale transactions took place.
Fifthly, as Hadil was the ‘prime mover’ and ‘organiser’ and, in one sense, interposed between Haval and Bainbridge, Haval was even more remote from the entrapment.
Sixthly, the prosecution opening indicates that the applicants’ trafficking was not confined to purchasing ice in response to requests from Bainbridge and for the sole purpose of meeting those requests. At the time of his arrest, Haval was in possession of 55.7 grams of ice. In addition, the police found 34 grams of cocaine in a bedroom used by both applicants. The purpose of trafficking was not excluded on the indictment and, as mentioned, the applicants could not discharge their evidentiary onus that the cocaine was not possessed for a traffickable purpose.[69] The applicants had possession of these drugs independently of Bainbridge and Russell. There was therefore no element of entrapment in relation to those drugs.
[69]See [11] above.
It follows from the above analysis that, while Russell’s involvement was relevant to the sentencing synthesis, in the circumstances of this case it had little impact on the applicants’ culpability and therefore warranted little weight as a mitigating factor. Accordingly, Russell’s involvement in the present case did not vitiate the judge’s assessment of the gravity of the applicants’ offending or the sentences he imposed on them.
Ground 1 for both applicants: Gravity of the offending
Parties’ submissions
Hadil submitted that it was not open to the judge to conclude that his offending fell in the upper-mid level range of trafficking in a drug of dependence. He contended that his offending fell into a lower category in the light of: Russell’s involvement and role in the trafficking offence; the context and circumstances in which he committed that offence; the fact that there was no evidence that he or Haval had been involved with Bainbridge prior to the first sale transaction; and the limited duration, number of transactions and profit margin of the offending. Hadil contended that these matters were significant to the assessment of his culpability and the gravity of his offending.
Hadil referred to the submissions set out at [37]–[38] above which were made at the plea hearing about the genesis of the trafficking to Bainbridge and the role of Russell. He then stated that ‘[t]he prosecutor did not, in reply, respond to (and thus did not cavil with) those submissions’.
Haval submitted that the judge’s finding that the offending fell into the upper-mid level range of offences was significant because it ‘led immediately to the rejection of the argument that, in light of the time already served on remand, a [CCO] could be appropriately imposed’.[70] According to Haval, that finding was not open for two reasons. The first reason was said to be that the finding failed to take into account the genesis of the offending, and the role of police in it. This issue has already been discussed under Ground 2 above.
[70]Haval cited Sentencing remarks [32]. See [51] above.
The second reason was said to be that the impugned finding failed to properly differentiate between the gravity of Haval and Hadil’s respective offending, as assessed by the judge. Haval referred to the sentencing judge’s statement that Hadil was the ‘organiser’ and ‘prime mover’ of the offending, and was involved in trafficking a larger quantity, over a longer period.[71] Haval submitted that even if it were correct to characterise Hadil’s offending as falling into the upper-mid level range, it was wrong for the judge to fail to differentiate between that offending and Haval’s ‘significantly less grave’ offending.
[71]See [46] above.
According to Haval, it is no answer to that submission to state that the judge did, in the context of assessing parity, differentiate between the applicants on the basis of their respective roles. Haval submitted that a proper assessment was bound to result in a finding that the gravity of his offending was ‘markedly less’ than that of Hadil. He also submitted that if Hadil’s offending was properly to be described as in the upper-mid level range, then Haval’s offending was, at its highest, ‘at or below the bottom of the mid level range’. Haval emphasised that his involvement was limited to dropping off drugs on one occasion, and picking up money on that and two other occasions which were isolated sales to one individual over the course of six weeks.
Haval also relied on the fact that he was an employee of Hadil in the latter’s construction business.
The Crown submitted that the circumstances of the offending, the significant amount of ice and the ‘not insubstantial amount of cocaine’ the subject of the charges put the offending in the upper-mid level range. The Crown referred to the judge’s finding that the offending was ‘well-planned’, ‘lucrative’ and involved ‘substantial quantities of cash and drugs.’[72]
[72]See [52] above.
According to the Crown, in finding that the offending was in the upper-mid level range, the judge sufficiently explained why he viewed the applicants’ roles as such. In relation to Haval, the Crown submitted that while he played a ‘somewhat lesser role in the offending’, it was conceded by Haval’s counsel on the plea that the offending was committed pursuant to a joint criminal enterprise.[73]
[73]See [36] above.
Decision
In our opinion, Ground 1 is not made out.
An important aspect of the applicants’ submissions in support of Ground 1 concerned the involvement of Russell in their offending. We have already discussed this issue under Ground 2.
The judge was correct to characterise the applicants’ offending as in the upper-mid level range. This is so having regard to: the quantity of ice that the applicants sold to Bainbridge; the amount of money that was involved; the ease with which Hadil was able to source the drug; the well-planned nature of the trafficking in relation to ice; and the large quantity of cocaine that was in the applicants’ possession for the purpose of trafficking. The total ice that Hadil trafficked or possessed for the purpose of trafficking was 80 per cent of a commercial quantity and, in the case of Haval, it was 67 per cent. These percentages indicate offending on a very serious scale.
Although Haval’s offending was less extensive than that of Hadil, in its own right, without regard to parity, it warranted the characterisation of ‘upper-mid level’. We will discuss Haval’s level of culpability in more detail below under the parity ground.
Haval Ground 3: Parity
Parties’ submissions
Haval submitted that he fell to be sentenced on the basis that he had offended at a significantly lower level than Hadil. He emphasised the judge’s finding that Hadil was the ‘organiser’ and ‘prime mover’ of the offending and had been involved in trafficking a larger quantity, over a longer period. In contrast, so it was said, Haval had a ‘relatively limited role’ and his criminality was significantly less than that of Hadil.
In oral submissions, Haval contended that his role in the offending was that of a drug courier. He also argued that the fact that he was an employee of Hadil’s construction business meant that there was an element of subordination.
Haval contended that, while his prior finding of guilt for trafficking was relevant to his prospects of rehabilitation and specific deterrence,[74] it was not a sufficient reason to impose the same sentence on each of the applicants. Haval emphasised that his prior offending had not merited the imposition of a criminal conviction, less still a custodial sentence, and had occurred close to a decade before the current offending. Accordingly, so it was said, it had relatively limited significance to the appropriate sentence, particularly since the judge accepted that he was remorseful and had good prospects of rehabilitation. This was said to mean that there was ‘little call for specific deterrence’.
[74]Haval relied on Charles JA’s description of the relevance of prior offending in R v O’Brien [1997] 2 VR 714, 718.
Haval submitted that there was an ‘inappropriate relativity’ between the sentences imposed on him and Hadil and that it was necessary, in the proper exercise of the sentencing discretion, to impose a lesser sentence on him.
Haval also relied on the fact that Hadil fell to be sentenced for a series of other, albeit minor, offences. According to Haval, when that ‘additional criminality was added to the mix’, it was necessary for him to receive a lesser total effective sentence and non-parole period than Hadil.
The Crown submitted that it was put by the prosecutor on the plea, and accepted by counsel for Haval, that the applicants were acting pursuant to a joint enterprise.[75] According to the Crown, in those circumstances, and in the light of the fact that Hadil played a slightly more significant role than Haval but Haval had a relevant prior history, the judge was reasonably entitled to treat the applicants equally in sentencing.
[75]See [36] above.
Decision
In our opinion, Haval’s Ground 3 is made out.
As the judge found that Hadil was the ‘organiser’ and ‘prime mover’ in relation to the trafficking of ice and that Haval had trafficked a lesser quantity of ice over a shorter period than Hadil, it was incumbent upon the judge to consider whether the parity principle required that Haval be sentenced more leniently than Hadil. The judge did not refer to this principle in terms in his sentencing remarks. It is clear, however, that the judge had the principle in mind when he said that, although Haval was less involved in the trafficking of ice than Hadil, due to Haval’s prior trafficking offence, he proposed to ‘treat [the applicants] equally in sentencing as a result’.[76]
[76]See [46] above.
With respect, we find it difficult to see how Haval’s prior trafficking offence was of sufficient relevance to the sentencing synthesis to deprive Haval of the benefit of the parity principle to which he was entitled by virtue of his lesser role in the offending. The prior trafficking offence took place prior to 6 December 2007 when Haval was approximately 20 years of age.[77] While details of the offending are not before this Court, the fact that it was dealt with at the Magistrates’ Court and resulted in a CBO without conviction[78] indicates that the offending was not particularly serious.
[77]See [28] above.
[78]See [28] above.
Importantly, the only sentencing consideration to which the judge linked Haval’s prior trafficking offence was rehabilitation. The judge stated that Haval’s prior history made his prospects of rehabilitation ‘a little uncertain’.[79] However, in the same paragraph, the judge said that, in relation to each applicant, he took into account ‘the good prospects for future rehabilitation’. Further, after noting that counsel for both applicants relied heavily on their prospects for rehabilitation and their pleas of guilty, the judge said that he gave ‘full weight to both of these mitigating factors’ in sentencing each applicant.[80] The end result appears to be that, notwithstanding some hesitation, the judge found that both applicants had good prospects of rehabilitation. This finding was well justified by the evidence on the plea.
[79]See [50] above.
[80]See [50] above.
It follows from the above discussion that, in our view, Haval’s prior trafficking offence was an insufficient basis to displace the differences in Haval’s offending relative to that of Hadil for the purposes of the parity principle.
A close analysis of Haval’s offending indicates that it is not as insignificant as his counsel submitted before us. Haval was not simply a ‘courier’ whose role was confined to delivering drugs and collecting money as directed from time to time by Hadil. When arrested, he was in possession of 55.7 grams of ice and there was no connection alleged to any transaction with Bainbridge. The ice was in zip lock bags wrapped in toilet paper and black tape. A roll of black tape was also found in his car, suggesting that he may have been involved in packaging as well as delivering ice. Haval’s counsel conceded that Haval was involved in a joint criminal enterprise with Hadil and the judge said on the plea that the applicants were ‘working as a team’.[81] We do not attribute much weight to the fact that Haval was once employed in Hadil’s construction business. As this employment had ceased prior to the offending and as Hadil and Haval were siblings, the prior employment relationship does not provide any insight into their respective roles in the trafficking of ice.
[81]See [34] above.
Notwithstanding the matters set out at [118] above, it is indisputable that there is no evidence that Haval was involved in the first sale transaction and it is readily apparent from the prosecution opening that Hadil’s role in the trafficking of ice was more extensive and at a higher level in the offending hierarchy than that of Haval. These differences in their offending, which are reflected in the judge’s findings set out at [45]–[46] above, and the fact that Hadil was convicted of two additional possession charges, engaged the parity principle and required the judge to sentence Haval more leniently than Hadil. By not doing so, we consider the judge failed to give effect to the parity principle.
Haval Ground 4 and Hadil Ground 3: Manifest excess
Parties’ submissions
Hadil submitted that the sentences imposed on him in respect of charges 1 and 3 and the total effective sentence were manifestly excessive in the light of the following factors:
aThe matters argued under Grounds 1 and 2, which were relevant to the assessment of [his] culpability in relation to charge 1 as well as the gravity of that offending.
bHis pleas of guilty, which were entered at the earliest opportunity, [were] of utilitarian value and accompanied by remorse.
cHis otherwise good character, as revealed by references and his lack of relevant prior convictions.
dThe significant steps that he had taken towards his rehabilitation since his arrest, including his engagement in drug and alcohol counselling, abstinence from drugs and work at [his construction business].
eThe delay of about 16 months between his arrest and the date on which he was sentenced, which was to be given considerable weight in mitigation given:
iThe process of rehabilitation that he had undertaken, during which he had resolved that he would not re‐offend. He and [Haval] demonstrated their ‘ability to be constructive law‐abiding citizens’.
ii He experienced considerable uncertainty and worry.
fSpecific deterrence was not a particularly significant consideration given his (good) prospects for rehabilitation.
gThe principles of totality and parsimony.[82]
[82]Citations omitted.
Haval submitted that the individual sentences and the total effective sentence were manifestly excessive in the light of the submissions he made in support of his other grounds of appeal about the objective gravity of his offending and the following factors that he called in mitigation and were said to bear real weight:
aNotwithstanding that he had come to Australia as an 11-year old refugee, he had completed his schooling and commenced, though not completed, tertiary education.
b He had the benefit of strong family support.
c He had pleaded guilty at an early stage.
d He was genuinely remorseful.
e He had participated in drug rehabilitation.
fTestimonials to his character described him as sincere, warm and compassionate.
gHe had meaningfully contributed to the community by volunteering at his church’s soup van and assisting his church’s youth group.
h He had good future prospects.
The Crown submitted that the sentences imposed on the applicants were within the appropriate range.
In relation to the offending the subject of charge 3, the Crown noted that the applicants accepted on the plea that they could not establish on the balance of probabilities that the cocaine was in their possession for their own use, and thus they fell to be sentenced on the basis that they possessed it for the purpose of trafficking. The Crown submitted that for sentencing purposes, trafficking in cocaine is to be regarded as being as serious as trafficking in any other scheduled drug of dependence, including ice[83] and that possession for trafficking purposes is also a serious offence.
[83]The Crown cited Tiong v The Queen [2016] VSCA 257 [38]; R v Pidoto (2006) 14 VR 269, 270–1 [1]–[6].
The Crown referred to a sentencing snapshot produced by the Sentencing Advisory Council which showed that, for trafficking in a non-commercial quantity of drugs between 2010–11 and 2014–15, the median length of imprisonment was two years and three months. The most common length of imprisonment imposed was two to less than three years.[84]
[84]Sentencing Advisory Council, Sentencing Snapshot No 193: Trafficking in a non-commercial quantity of drugs (June 2016) 3.
The Crown referred to Haddara v The Queen,[85] in which the offender sold at least 105.1 grams of ice over a period of approximately six months to a covert operative in nine discrete sales and was sentenced to two years’ imprisonment on that charge. This Court described the sentence as ‘barely within the lower end of the permissible range.’[86] According to the Crown, relative to the amount involved in the current offending, and the period of offending, the sentences imposed on the applicants are appropriate and proportionate.
[85][2016] VSCA 168 (‘Haddara’).
[86]Haddara [2016] VSCA 168 [87].
The Crown also referred to Dislakis v The Queen[87] which related to a charge of trafficking in ice. The offender in that case was part of a trafficking enterprise that manufactured and distributed ice. He was not the primary trafficker, but was actively involved in selling ice, collecting and depositing the proceeds of sales, and obtaining pseudoephedrine. He was sentenced to three years and six months’ imprisonment. His co-accused, the syndicate’s ‘drug cook’, who had more significant prior convictions — including one for trafficking in ice — was sentenced to four years’ imprisonment.
[87][2016] VSCA 297. The Crown noted that that case did not involve the use of a covert police operative.
According to the Crown, the mitigatory factors referred to by the applicants in support of these grounds were given due weight by the judge in reaching the sentences. The Crown noted that the judge imposed a modest non-parole period to appropriately reflect the mitigating factors and submitted that as such, there should be no reduction in the sentences imposed on Hadil or Haval on the basis of manifest excess.
Decision
In our opinion, the applicants have failed to demonstrate that the sentences imposed on them are manifestly excessive.
For the reasons set out under Ground 1, the judge was justified in characterising the applicants’ offending as in the upper-mid level range. The authorities to which the Crown referred[88] indicate that the sentences of 42 months for trafficking in a drug of dependence in the quantities involved in the present case were well within the range of sentences reasonably available to the judge.
[88]See also R vDare [2009] VSCA 91 [4], [15], [28]; Zerafa v The Queen [2013] VSCA 42 [2], [7], [42]; Fernandez v The Queen [2014] VSCA 169 [2], [10], [26]; Short v The Queen [2016] VSCA 210 [1], [62]–[63].
The fact that each applicant was able to call in aid extensive mitigating
circumstances does not mean that the sentences imposed on them were manifestly excessive. Rather, that fact means that, in the absence of the mitigating circumstances, longer sentences would have been warranted. The judge gave full weight to the mitigating circumstances as well as the gravity of the applicants’ offending and imposed sentences which cannot be considered excessive.
Resentencing of Haval
The sentencing discretion in relation to Haval having been reopened by virtue of our upholding his Ground 3, we would resentence him as follows:
Charge Offence Maximum Sentence Cumulation 2 Trafficking in a drug of dependence 15 years 3 years Base 3 Possessing a drug of dependence 5 years 6 months 3 months Total Effective Sentence: 3 years and 3 months’ imprisonment Non-Parole Period: 1 year and 9 months
Pursuant to s 6AAA of the Sentencing Act 1991, we would make a declaration that, but for Haval’s plea of guilty, we would have sentenced him to a total effective sentence of four years and nine months’ imprisonment with a non-parole period of two years and nine months.
BEALE AJA:
I have had the benefit of reading the joint judgment of Tate and Kyrou JJA in draft. I agree with it, except in relation to Haval’s Ground 3.
That ground effectively asserts that the learned sentencing judge was obliged by the parity principle to give Haval a lesser sentence than he gave his younger brother Hadil.
I am not persuaded that it was not open to the learned sentencing judge to impose identical sentences on the two brothers.
As set out in the joint judgment, especially at [33], Haval had a lesser role in the offending than Hadil but the difference in their roles was not so great as to place them into different levels on the spectrum of seriousness for the offence of trafficking in a drug of dependence simpliciter. As the joint judgment acknowledges at [105], the sentencing judge was correct to view the offending of both brothers as upper-mid range examples of that offence.
Unlike Hadil, Haval has relevant antecedents. In December 2007, when he was 21, a magistrate at Broadmeadows placed him on a 12-month CBO without conviction for trafficking, possessing and using a drug of dependence. As was revealed at the plea hearing for the current matter, he was intercepted in his vehicle and found to be in possession of 200 ecstasy tablets which he intended to sell. I regard that prior matter as a significant antecedent. The fact that no conviction was recorded is not inconsistent with that conclusion: it simply reflects the priority that was given by the sentencing magistrate to rehabilitation of a relatively youthful offender who at that point had no antecedents. The fact that this prior is almost 10 years old does not, in my view, relegate it to the status of ancient history.
In addition to 100 hours of unpaid community work, it was a special condition of the 2007 CBO that Haval undergo assessment and treatment in relation to illicit drugs but when Haval was 22, he was convicted and fined for, amongst other things, using ice. When he was 24, he was dealt with for breaching the 2007 CBO and released on a further CBO for 12 months, which he successfully completed. No doubt, the courts and Corrections impressed on him along the way the deleterious effects of illicit drugs on the community but that did not dissuade him from engaging in the current offending.
An offender’s antecedents are sometimes relevant to illuminate his or her moral culpability in a particular case and the emphasis that ought be given to just punishment and denunciation for that offending;[89] antecedents may be relevant to more than the weight to be given to specific deterrence. Consequently, the sentencing judge’s finding that, like Hadil, Haval has good prospects of rehabilitation did not preclude the sentencing judge from relying on Haval’s antecedents as a factor justifying identical sentences for the two brothers.
[89]In Veen v The Queen [No 2] (1988) 164 CLR 465, 477, the plurality said: ‘The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.’ See also the Victorian Sentencing Manual (online) [7.4.1.1] < align="center">- - -
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