Kheir v The Queen

[2012] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0300
MAHOUD KHEIR	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	1 February 2012
DATE OF JUDGMENT:	10 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 13
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Howie, Date of Sentence 18 November 2011)

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CRIMINAL LAW – Sentence – Trafficking in and possession of drugs of dependence – Incarceration in respect of an unrelated charge on which the offender was acquitted taken into account – Incarceration in respect of a pending charge not taken into account in the particular circumstances of this case.  No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Garde-Wilson Lawyers
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. In 2008, the police had reason to believe that members of the applicant’s family were engaged in drug trafficking. They monitored the telephones of members of the family and laid charges against the head of the family and three of his sons.  The applicant is the eldest son.

1. The applicant was arraigned in the County Court and pleaded guilty to a count of trafficking in methylamphetamine, a count of possession of a drug of dependence being alprazolam and a count of possession of a drug of dependence being ecstasy.

1. A plea was conducted and the applicant was sentenced to be imprisoned for a term of 9 months on the count of trafficking in methylamphetamine and to a term of 6 months on the count of  possession of ecstasy.  Three months of the latter term were cumulated upon the sentence on the count of trafficking in methylamphetamine, creating a total effective sentence of 12 months’ imprisonment.  A minimum term of 6 months’ imprisonment was fixed before the applicant was to be eligible for parole.  On the count of possession of alprazolam, the applicant was fined $100.

1. The applicant seeks leave to appeal against his sentence on the following grounds:

1.The learned sentencing judge erred by failing to give adequate weight to the period of 10 months the applicant had spent on remand (2 December 2008 to 5 October 2009) before being acquitted of the offence resulting in this period of remand on 6 October 2010.

2.The learned sentencing judge erred by giving no weight or inadequate weight to the period of 10 months the applicant had spent on remand (4 December 2009 to 12 October 2010) in relation to a trial that is listed to commence in May 2012.

3.The learned sentencing judge erred by failing to have adequate regard to the implications of delay.

4.The terms of imprisonment on counts 1 and 3, the total effective sentence and the non-parole period are manifestly excessive and inappropriate.

1. At the plea, the prosecutor accepted that the evidence to support the count of trafficking in methylamphetamine was limited to two telephone conversations and that the quantity and value of the drug being trafficked were unknown.  The telephone interceptions occurred between August and September 2008.

1. On 24 September 2008, the police executed a search warrant.  They found two xanax pills wrapped in paper in a sock belonging to the applicant and a plastic bottle containing 186 whole and three broken ecstasy tablets with a purity of 10 per cent.  At the plea, it was not contended on behalf of the applicant that the tablets were for his personal use.

1. The applicant is some 33 years old.  He was born in Australia but travelled with his family to Lebanon after primary school and stayed there for five or six years before returning to Australia.  He did not receive any secondary education and is illiterate.

1. The applicant worked in a furniture factory conducted by relations in Tripoli and performed work with his brother refurbishing motor vehicles.

1. The applicant had a history of binge drinking and abuse of methylamphetamine and prescription medicine.

1. The applicant is married and has three young children. 

1. The applicant has 27 prior convictions from 12 court appearances, including convictions for offences of violence, drug offences, offences of dishonesty, driving offences and street offences.  Of particular relevance is a conviction for trafficking in amphetamine.

1. Reports by two psychologists were tendered in the course of the plea.  Mr Newton said that the applicant was clearly intellectually disabled.  He said that ‘His reasoning skills in both verbal and non-verbal domains are extremely poor and only one in fifty of his peers would perform so poorly.’  He also said that the applicant had significant anger management problems.  Mr Healey said that intellectual testing revealed a full scale IQ of 68.  Ninety-eight per cent of the population would do better.  Testing did not reveal any ‘major psychological or emotional disturbance’.

1. The first ground of the application is that the sentencing judge erred by only reducing the applicant’s sentence by five months on account of the period of ten months the applicant spent on remand between 2 December 2008 and 5 October 2009 before being acquitted on 6 October 2010 on an unrelated charge.

1. In the course of his sentencing remarks, his Honour said, ‘I have reduced the sentence that would have been imposed by five months for the time served for the offence of which you were acquitted.’ The sentencing judge was exercising a discretion, long recognised, to take into account pre-sentence detention not caught by s 18 of the Sentencing Act 1991, and properly did so at the first opportunity. 

1. Counsel for the applicant submitted that the sentence should have been reduced by the full period of ten months.  While counsel recognised that there are many cases where less than the full period of pre-sentence detention has been deducted, he said that there was no good reason in this case for reducing the extent of the pre-sentence detention. 

1. The detention was not doubly warranted, as was the case in R v Renzella[1] and in R v Heaney.[2]The applicant was only remanded on charges other than those giving rise to this sentence.  Further, it is now known that the charges in respect of which the applicant was on remand resulted in an acquittal.  As a matter of justice, the applicant should not have served any term of imprisonment.    His Honour alone was in the position to correct the injustice for in this jurisdiction there are no other means of compensating the applicant.  It is unsatisfactory that only those offenders who are sentenced for the commission of further crimes are compensated for incarceration on charges which do not lead to conviction.

   [1][1997] 2 VR 88.

   [2]Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 27 March 1996.

1. In the absence of any circumstances which warranted a different result, I am of the opinion that the sentencing judge should have had regard to the entire period of detention[3]. That is not to say that the period must be treated with mathematical precision, as if it were a period to which s 18 of the Sentencing Act 1991 did apply or as credit in a bank kind of balance.[4].  The sentencing judge should consider what effect the imposition of a further period of imprisonment will have on the overall period of incarceration, having regard to the principle of totality and the determination of a sentence that is appropriate to the criminality of the offender considered overall.  For example, in a particular case it may be appropriate to impose a sentence notwithstanding that the time already served in detention would exceed a sentence that was otherwise appropriate.

   [3]See R v Stares (2002) 4 VR 314, [27] (Charles JA).

   [4]R v Kotzmann [1999] 2 VR 123, 137 (Callaway JA).

1. In the present case I can perceive no reason for failing to give the applicant credit for the entire period of ten months’ detention.

1. The second ground of the application is that the sentencing judge erred by failing to reduce the applicant’s sentence at all on account of the period of ten months the applicant had spent on remand between 4 December 2009 and 12 October 2010 in relation to a trial that is listed to commence in May 2012.

1. In the course of his sentencing remarks his Honour said that there were a number of matters to be taken into account to moderate the sentence to be imposed upon the applicant.  They included the circumstance that:

[Y]ou have spent a considerable amount of the last three years in prison on unrelated matters, more than 21 months as I understand it.  It means that you have had the benefit of what ever rehabilitation and personal deterrence such an experience might achieve.

The period of more than 21 months appears to be the product of the addition of the period on remand in respect of the offence on which the applicant was acquitted and the period spent on remand in respect of the charge still to be tried.  His Honour later said that he reduced the sentence for the time served for the offence on which the applicant was acquitted but he did not say that the time spent on remand for the offence yet to be tried would operate to reduce the sentence save insofar as it might bear upon rehabilitation and personal deterrence. 

1. The period was also to be taken into account on the basis that the applicant might be acquitted of the charge, or the charge might be withdrawn.  In R v Arts and Briggs[5] Callaway JA said that:

such pre-sentence detention is to be taken into account in the exercise of the court's discretion and should ordinarily be taken into account at the first opportunity, in case the prisoner is acquitted at a later trial or hearing or a nolle prosequi is entered.[6]

In that passage his Honour answered the potential contention that as s 18 of the Sentencing Act 1991 will apply if the applicant is convicted at a later trial, that will relieve the sentencing judge from taking the period of detention into account.  In Wade v R[7] Maxwell P said that if something less than a full amount of a relevant pre-sentence detention was to be taken into account, it was important that the sentencing judge state to what extent it had been taken into account in order that the court that later sentences the offender knows that there is a part of an earlier detention that was taken into account and a part that remained to be taken into account. 

[5][1998] 2 VR 261.

[6]Above, 263.  See also Karpinski v R (2011) 207 A Crim R 429.

[7][2005] VSCA 276. See also R v Heaney, above, 7 (Brooking JA).

1. The third ground of the application is that the sentencing judge erred by failing to have adequate regard to the implications of delay. 

1. There was a delay of over three years between the commission of the offences in September 2008 and the imposition of a sentence in November 2011.  It was submitted on behalf of the applicant that although the sentencing judge was aware of the period of delay, he did not say that he treated it as a mitigating factor.  The sentencing judge mentioned the period of delay and referred to the manner in which the applicant spent the period of delay as bearing upon his prospects of rehabilitation.  In my view, it does appear that his Honour appropriately took the delay into account.

1. The final ground is that the individual sentences imposed on the counts of trafficking in methylamphetamine and possession of ecstasy, the total effective sentence and the non-parole period are manifestly excessive.

1. Counsel for the applicant relied upon the earlier grounds, the pleas of guilty, the applicant’s significant intellectual disability, the fact that the trafficking in methylamphetamine was at a low level and was allied to the applicant’s use of drugs and the fact that the possession by the applicant was primarily for his own use. 

1. For the reasons which I have stated, I consider that the sentencing judge erred in his treatment of the periods of detention served by the applicant.  I also consider that a different sentence should be imposed.

1. The maximum sentence for the offence of trafficking in a drug of dependence is 15 years’ imprisonment.  The evidence disclosed that the applicant was engaged in trafficking for profit.  He had a prior conviction for a like offence.  Notwithstanding the mitigating factors advanced by the applicant’s counsel and the conclusion I would draw that the applicant’s intellectual disability and the milieu in which he was brought up made him a likely candidate for this offending, I consider a term of imprisonment was appropriate.

1. Putting to one side the period of detention referable to the charge on which the applicant was acquitted and the detention referable to the charge that is yet to be tried, I consider that a total effective sentence of 12 months’ imprisonment be appropriate.  Too much time has elapsed to give the applicant credit for the entire period of detention referable to the charge on which he was acquitted or give any discount for any part of the period of the detention referable to the charge that is yet to be tried.  I view the entire period of incarceration on the charge on which the appellant was acquitted as accounted for by the orders I propose.

1. I would re-sentence the applicant to be imprisoned for a term of 64 days on

the count of trafficking in methylamphetamine and for 64 days on the count of possession of ecstasy.  I would order that the sentences be served concurrently.  I would confirm the sentence on the count of possession of alprazolam.  As there is pre-sentence detention of 64 days, the applicant will be entitled to be released immediately. 

HOLLINGWORTH AJA:

1. I agree with Buchanan JA.

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