Laalaa v The Queen
[2009] NSWCCA 250
•2 October 2009
New South Wales
Court of Criminal Appeal
CITATION: Laalaa v R [2009] NSWCCA 250 HEARING DATE(S): 2 September 2009
JUDGMENT DATE:
2 October 2009JUDGMENT OF: Tobias JA at 1; Hoeben J at 2; RA Hulme J at 3 DECISION: Extension of time to apply for leave to appeal is refused. CATCHWORDS: CRIMINAL LAW - appeal against sentence - supply of large commercial quantity of heroin - assessment of objective seriousness - parity between co-offenders - whether sentence manifestly excessive LEGISLATION CITED: Criminal Appeal Act 1912
Drugs Misuse and Trafficking Act 1985CATEGORY: Principal judgment CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
EG v Regina [2003] NSWCCA 246
JOD v R [2009] NSWCCA 205
R v AEM Snr, KEM and MM [2002] NSWCCA 58
R v Amurao [2005] NSWCCA 32
R v Attallah [2005] NSWCCA 277
R v Barton [2001] NSWCCA 63
R v Bavadra [2002] NSWCCA 292; (2000) 115 A Crim R 152
R v Bayeh [2000] NSWCCA 473
R v Chung [2001] NSWCCA 484
R v George (2004) NSWCCA 247; 149 A Crim R 38
R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
R v MAK; MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Morgan (1993) 70 A Crim R 368
R v Panagakos [2003] NSWCCA 81; (2002) 138 A Crim R 538
Vuni v R [2006] NSWCCA 171PARTIES: Noureddine Laalaa (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2002/14793 COUNSEL: Mr H Dhanji (Applicant)
Mr P Leask (Respondent)SOLICITORS: O'Brien & Hudson
Solicitor for Public ProsecutionsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0019 LOWER COURT JUDICIAL OFFICER: Stewart ADCJ LOWER COURT DATE OF DECISION: 31 October 2003
2002/14793
2 October 2009TOBIAS JA
HOEBEN J
R A HULME J
Judgment
1 Tobias JA:
I agree with R A Hulme J.
2 Hoeben J: I agree with R A Hulme J and the order which he proposes.
3 R A Hulme J: Noureddine Laalaa applies for an extension of time for leave to appeal against a sentence imposed upon him in the District Court on 31 October 2003. On that occasion his Honour Acting Judge Stewart QC sentenced the applicant for an offence of supplying not less than the large commercial quantity of heroin to imprisonment for 20 years with a non-parole period of 15 years. The sentence was expressed to commence on 3 August 2000. The applicant will become eligible for release on parole on 2 August 2015. The maximum penalty for the offence is imprisonment for life and/or a fine of $550,000 (s 33(3)(a) Drugs Misuse and Trafficking Act 1985).
4 In sentencing for that offence the judge took into account at the applicant’s request a further offence, being one of supplying not less than the commercial quantity of cocaine. That offence, if dealt with on indictment, would have exposed the applicant to a penalty of imprisonment for up to 20 years and/or a fine of $385,000.
5 Amended grounds of appeal were filed at the hearing by leave:
1. The learned sentencing judge erred in failing to properly assess the objective seriousness of the offence.
2. The learned sentencing judge erred in the manner in which he dealt with the matter on the Form 1.
3. The applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon him and that imposed upon his co-offenders, EG, Tony Gannam and Bill Panagakos.
4. The sentence imposed on the applicant is, in all the circumstances, manifestly excessive.
Facts
6 The judge in his remarks on sentence quoted verbatim from a very lengthy statement of facts that was before him. It is sufficient for present purposes to adopt the succinct summary that is set out in the Crown’s written submissions:
A heroin and cocaine supply business operated out of a hotel room at the Discount Hotel, Darlinghurst Road, Kings Cross. Both the principal offence involving heroin and the matter on the Form 1 involving cocaine spanned the period from 6 April 2000 to 3 August 2000 inclusive, a few days short of four months. Two men, Tony Ganem and Bill Panagakos, who were effectively employees of the applicant, worked alternate 12 hour shifts at the hotel room selling heroin and cocaine in medicinal capsules that were enclosed in colour-coded balloons. Customers paid the manager of the hotel $10 to gain access to the room where the drugs were sold. A second room was used for storage. EG acted as the immediate supervisor or manager for Ganem and Panagakos. The Crown contention, which was accepted by his Honour, was that EG answered to the applicant and it was the applicant who was the principal of the organisation. The applicant and others were arrested following a controlled operation in which undercover operatives purchased prohibited drugs at the hotel room on thirteen occasions. The operatives saw between 30 and 100 balloon-covered capsules in the room on the occasions when they purchased drugs. In addition, telephone intercepts and listening devices and video cameras were used to covertly record information.
7 There are some further particular matters to note from the judge’s recitation of the facts. EG’s role in managing Ganem and Panagakos included conveying the drugs to them to sell and collecting the proceeds of sales from them and conveying them to the applicant. He kept the applicant apprised of the progress of drug sales in regular meetings with him.
8 The applicant oversaw the entire operation and that included the acquisition of heroin and cocaine in bulk. He was responsible for disbursing monies derived from sales to those beneath him as payment for their involvement and undertook the role of addressing any problems that arose which affected the network’s distribution capabilities.
9 In late May police became aware that the applicant was staying at several hotels including the Hilton Hotel in Pitt Street. They installed a listening device and camera in a particular room of that hotel and there monitored conversations between the applicant and an unknown Asian male. During those conversations the applicant was heard discussing the purchase of heroin for the sum of $49,000. The applicant said, “Can you give me 12 ½ at once”. The Asian male replied, “You try, you like, you buy”. The applicant said, “One now, I’ll buy”. The applicant left the hotel room and returned a short time later and counted out $49,000 in cash. He was later heard to say, “I’ll take two a week”.
10 A search warrant was executed at room 13 of the Discount Hotel on 17 July 2000. Ganem and his girlfriend were present. Police recovered various capsules containing heroin and cocaine. In all there were 55 capsules containing almost 25 grams of drug and there was a further 16 grams of a drug believed to be heroin in a resealable plastic bag. Police also recovered $8,200 in cash. Ganem was arrested and charged with supplying the prohibited drugs heroin and cocaine and also goods in custody. Shortly after the police left the Discount Hotel a conversation by telephone between the applicant and EG was intercepted. In the course of the conversation the two discussed the arrest of Ganem and the seizure of the drugs and money. There was a discussion about getting legal assistance for Ganem and EG undertook to keep the applicant informed.
11 The execution of the search warrant did not prevent the network continuing in the distribution of drugs as the following day an undercover police operative attended the Discount Hotel and purchased heroin from Panagakos. It is apparent that the dealing in drugs from the Discount Hotel continued unabated until arrests were made on 3 August 2000.
12 The applicant was arrested at his house. Police recovered cash in the sum of $2,156,250, including $1,969,000 found in a suitcase. Undercover police purchasing heroin at the Discount Hotel had on a number of occasions photocopied the money used. Some of the currency found at the applicant’s house was identified as having come from those undercover purchases. Police also located a number of pieces of paper of a similar nature to those found during the search at the Discount Hotel on 17 July. These pieces of paper were headed “start/finish” and listed various quantities under those headings. These documents were records of quantities of drugs on hand at the beginning and end of shifts of those working at the Discount Hotel.
13 EG was arrested on the same day as the applicant. At the time of his arrest he was found to be in possession of $1,417.50.
14 Panagakos was arrested at the Discount Hotel on the same day and found to be in possession of various capsules of heroin and cocaine as well as $690 in cash.
15 On 5 August 2000 police executed a search warrant at a unit in Pelican Street, Surry Hills. The unit was sub-leased to a man the judge found beyond reasonable doubt was EG. During the course of the search police found a large quantity of packages containing heroin and cocaine, the total weight of the drugs being 674 grams.
16 A final matter to note is that evidence was available from the Crown Casino in Melbourne that since 25 June 2000 the applicant had lost in excess of $378,000 gambling at that establishment.
Findings of the judge
17 The judge stated his clear satisfaction upon the evidence before him that the applicant was a principal in this drug supply activity and all others were his subordinates. He was satisfied that this was the case during the entire period the subject of the charge, that is, 6 April 2000 to 3 August 2000 and “for some time before that”.
18 It was submitted to the judge by senior counsel then appearing for the applicant that the judge could only be satisfied beyond reasonable doubt that the money derived by the applicant from the drug supply activity was that which had been found at his house that had been used in the undercover purchases. That money comprised a mere few hundred dollars. The judge rejected that submission and, referring to the money at the applicant’s house upon his arrest, said “this evidence convinces me beyond reasonable doubt that the vast preponderance of this money represents profits made from drug trafficking directly related to this charge and to the Form 1. To find to the contrary would be flying in the face of clear and unambiguous evidence”.
19 It was also submitted to the judge that the role played by the applicant was no worse than that of EG and that the penalty to be imposed should be much the same as that which was imposed on EG or slightly more. The judge rejected that submission and, after referring to authority in this court, said that “those who sell and do not use, as in the case of Laalaa, are in the worst category of drug offenders”.
Subjective features
20 The applicant was born in 1968 and so he was aged 31 at the time of the offences and was 34 at the time of sentence.
21 He had a criminal history comprising a conviction for goods in custody in May 1993 and a conviction in the District Court for robbery in company in October 1993. For the latter he was sentenced to imprisonment for a total of 3 years 8 months. An appeal to this court against his conviction and sentence was dismissed. It is to be noted that the applicant received a further sentence in the District Court in May 2004 for an offence described as using a firearm likely to endanger another to imprisonment for 3 years 4 months with a non-parole period of 2 years 6 months with the sentence specified to commence on 3 August 2013. It can be seen that the effect of this sentence was to extend the non-parole period of the sentence the subject of this application by 6 months and reduce the parole period by a corresponding amount.
22 A report by Mr W John Taylor, psychologist, was before the judge. From that report the judge noted that the applicant was the youngest in a family of 10 children and had been brought up in Tripoli, Lebanon. The family life had been disrupted because of the fighting there and the applicant came to Australia with his family at the age of 16. The applicant described his family as being very caring and said he was always close to his parents. He had never left home but had remained to look after his parents who were ill. He had never married, nor had any de facto relationships, but had had some girlfriends in the past.
23 The applicant told Mr Taylor that he was educated in Lebanon until the age of 16 and when he came to Australia he completed his Higher School Certificate studies but failed the examination because of inadequate English language skills. He claimed to Mr Taylor, however, that he had since become quite literate in both Arabic and English.
24 The applicant also told Mr Taylor that when he was arrested in 2000 he sustained a back injury. He had been diagnosed with having a slipped disc and spoke of having been hospitalised and needing to have an operation. He said that he still experienced pain and was on medication. The judge accepted this.
25 Mr Taylor was told that the applicant did consume alcohol but only on a social basis and never had a problem with it. He did on occasions use ecstasy and cocaine but again, not on a regular basis. The judge noted that “he is clearly not an addict”. The applicant was recorded as having said to Mr Taylor, “I’m sorry I got mixed up with the wrong people. People around me are bad people. Drugs are not good for people, makes them destroy peoples lives”.
26 Mr Taylor assessed the applicant as not having a personality disorder and “quite a low likelihood of recidivism”. The judge said that he took note of this and also of the fact that there were no adverse reports from prison authorities from which he inferred that the applicant had behaved himself in prison. He opined, “it may be that he has learnt and is still learning from his experiences and mistakes in the past. However it is hard to guage this”.
Assessment of objective seriousness and assessment of sentence
27 The judge observed that the primary offence, as well as the offence on the Form 1, were serious. Indeed, he quoted the submission of counsel for the applicant as having referred to the offence as “very, very serious”. The judge then said, “It continued from April to August, day and night, seven days a week and seven nights a week. It was organised. It was heartless. It was done for profit. It was motivated by greed. It generated millions of dollars and it caused untold misery and harm to those persons who purchased these drugs and used them”. The judge said there were few mitigating factors. He then referred to the maximum penalty of imprisonment for life and, correctly, mentioned that the maximum is reserved for cases in the worst category. He then said, “This is not the worst case, but it is toward the top of the range of seriousness”.
28 The judge then referred to the importance of both general and specific deterrence, denunciation and retribution. He also referred to the need to have “proper regard to the Form 1 offence which itself is serious and carries a maximum penalty of 20 years”.
29 The judge then referred to what he regarded as the authorities in this Court for the manner in which offences to be taken into account are to be considered. He referred to R v Morgan (1993) 70 A Crim R 368 at 371 - 372, R v Bavadra [2002] NSWCCA 292; (2000) 115 A Crim R 152 at 158 and R v AEM Snr, KEM and MM [2002] NSWCCA 58. He then said that he did take the offence on the Form 1 into account and said “it does make the matter with which I am dealing something more serious when it is taken into account in relation to the principles of totality”.
30 Finally the judge referred to the applicant’s plea of guilty. He regarded the utilitarian value of the plea as “significant”. He remarked that had the matter proceeded to trial it would have been lengthy in that it had an eight week estimate. The judge resolved to provide a discount for the utilitarian value of the plea and ultimately made a reduction of 3 years from the sentence he would otherwise have imposed. No allowance was made for contrition and remorse.
Ground 1 - Failure to properly assess objective seriousness of offence
31 The applicant accepted that the offence to which he pleaded guilty was “extremely serious”, that he played an important role in an organised drug trafficking operation, and no challenge was made to the judge’s finding that he was the principal of the operation. Nevertheless it was submitted that the judge failed to properly assess the objective seriousness of the offence.
32 There are two ways in which it is asserted the judge erred. The first was in relation to the quantity of heroin supplied in the period covered by the charge. The co-offender Ganem gave evidence for the Crown at the sentence hearing. His evidence was that in April 2000 he was selling about 150 deals per shift. He was not asked, and did not say, what proportion of the deals were heroin as opposed to cocaine. He said that Bill Panagakos was selling deals in about the same quantity. When later asked about the entire period from April to August 2000 he said, “It could vary, like especially that time of year it starts slowing down a bit, it wasn’t very high sales, about 100, 150 on average”. He was asked how much that would equate to in dollars and cents and he said, “Round about $8000 per shift”. He was asked about a specific occasion when he met the applicant at a hotel in Bass Hill in June/July 2000 and he said the purpose of the trip was to meet the applicant and handover the proceeds of sales. He handed over what he said was about $14,000 which represented the takings for his shift and the other shift. In other words it was the takings for an entire day. Senior counsel for the applicant cross-examined Mr Ganem about some of the “start/finish” notes which had been found by the police in various locations. He explained that they set out the quantities of deals on hand at the beginning and end of shifts from which it could be determined how many deals were sold during the course of the shift. Counsel now appearing for the applicant pointed out that these notes show a range of total deals sold of between 25 and 72 and submitted that the judge erred by not taking this into account. It must be acknowledged, however, that very few of the notes that must have been generated during the period of the charge were recovered by police. Whether those that were recovered are truly indicative of the volumes of deals being sold is not entirely clear.
33 The judge referred to the evidence of Ganem in his sentencing remarks. He bore in mind that Ganem was a member of the syndicate and was a person of “bad repute”. However the judge took the view that the evidence supported the Crown’s contention that the applicant was at all relevant times the principal of the enterprise and he concluded that the evidence of Ganem should be accepted as truthful. The judge’s assessment was no doubt made upon consideration of the whole of Ganem’s evidence. It cannot be concluded that he erred by failing to take into account the “start/finish” notes.
34 The other error asserted in relation to this ground was in the judge’s finding that the “vast preponderance” of the money found at the applicant’s home upon his arrest represented profits from drug trafficking directly related to the charge and the Form 1 offence. It was submitted that whilst it was open to find that the money was from drug trafficking generally, the evidence was not sufficient to find that it was from drug trafficking in the particular period charged. There was evidence from Ganem that he had been working selling drugs since May or June 1999. He said that when he commenced selling drugs at the Discount Hotel at that time it had been at the behest of the applicant. Accordingly it was submitted that given the applicant’s criminal activity was not restricted to the charged period it was impossible to determine how much of the money found in the applicant’s possession was attributable to drug dealing in that charged period.
35 I accept that the evidence was not such that the judge could make a definitive finding as to the quantity of heroin sold, or cocaine for that matter, or as to the amount of money generated by drug sales. The judge did not purport to make any finding as to the quantity sold and in relation to the money generated he made the two statements that I have referred to earlier, that is that the “vast preponderance of the money” found at the applicant’s home was from drug sales directly related to the charge and the charge on the Form 1, and the later statement when finding that the case was “towards the top of the range of seriousness” that the offences “generated millions of dollars”. In my view these findings were open to the judge but it needs to be borne in mind that they were not the only matters that the judge took into account in assessing the seriousness of the applicant’s offending conduct. Whilst undoubtedly an important matter, the quantity of drug is not the chief factor in sentencing for this offence. Indeed, Wood CJ at CL said in R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44:
“[33] It is also to be accepted that the mere quantity of the drugs is not the sole, or even the principal, determinant for sentencing in relation to drug offences. What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity.”
36 There are certain aspects of the evidence which support the findings made by the judge. For example if one was to assume that the $14,000 Ganem spoke of having delivered to the applicant one day was typical for a day’s takings, the total takings for the period covered by the charge would be in the order of $1.7 million. If the $8000 dollars he estimated was the takings of a typical shift, and noting that there were two shifts per day, the takings for the period covered by the charge would be in excess of $1.9 million. There is some support for the evidence of Ganem of $8000 being the takings of a typical shift in that when the search warrant was executed at the hotel on the 17 July 2000 police seized $8200 in cash. Another matter was the evidence of the transaction engaged in between the applicant and the unknown Asian male at the end of May 2000 when the applicant purchased a quantity of heroin for $49,000 in cash and indicated to that man that he was prepared to take two (of the same quantity) per week. If the applicant was purchasing heroin for close to $100,000 per week, that would equate to about $1.7 million over the charged period. That heroin would have been sold for a substantially higher price. In addition to that would be the proceeds of cocaine sales. Finally there was the evidence that when the premises associated with EG were searched on 5 August 2000 a quantity of heroin and cocaine was seized that can only be described as substantial (674 grams). That is another indication of the dimension of the drug dealing the enterprise was engaged in.
37 The applicant’s submissions in relation to ground 1 relied solely upon the two asserted errors. It was not contended that if the judge was correct in the findings that he made his classification of the offence as being “toward the top of the range of seriousness” was not open to him.
38 I would reject ground 1.
Ground 2 – Error in dealing with offence on Form 1
39 The applicant’s contention in relation to this ground is, in essence, that his Honour took into account authorities in this Court which predated the guideline decision in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (“the guideline judgment”). That decision was handed down on 20 December 2002 but not referred to in the sentencing remarks which were delivered on 31 October 2003. It was submitted that by speaking of the principle of totality the judge “appears to have determined to pass a total sentence appropriate to the criminality involved in both the heroin offence and the cocaine offence”. In doing so, so it was submitted, the judge failed to have proper regard to the limitations inherent in taking matters into account as referred to in the guideline judgment.
40 The Crown submitted that the judge’s reference to “totality” was inapt but it submitted that, if this was an error, it was not a material error because his Honour’s references to authority indicated that he had in mind the correct legal principle in accordance with the guideline judgment. It was submitted that the judge was taking into account the matter on the Form 1 with a view to increasing the sentence for the principal offence. It was noted that the maximum penalty for the further offence on the Form 1 was imprisonment for 20 years and that whilst it coincided in time and modus operandi with the principal offence, it involved a separate prohibited drug. Consequently, so it was submitted, a substantial increase in the sentence for the principal offence was open and indeed required in the circumstances, based upon the need for personal deterrence and the community’s entitlement to retribution for multi-drug selling being engaged in by the applicant.
41 There is some support for the Crown’s submission to be found in the judgment of Studdert J in R v Panagakos [2003] NSWCCA 81; (2002) 138 A Crim R 538. More will be said about the sentencing of the co-offenders later but it is appropriate to observe at this point that Panagakos was sentenced to one count of supplying a large commercial quantity of heroin and asked the sentencing judge to take into account his guilt of an offence of supplying a commercial quantity of cocaine, precisely the same regime of charges with which the present application is concerned. Studdert J remarked (at [23]):
“Not only was the applicant to be sentenced for the supply of heroin but the Form 1 offence was also extremely serious and due consideration for this additional offence gave rise to a need to increase the sentence so as to appropriately bring into account its commission. This need was to be met by giving greater weight to personal deterrence and the community’s entitlement to extract retribution”. (The guideline judgment was referred to).
42 A closer look at the authorities to which the judge referred is also useful in determining the approach that he took to this issue.
43 Morgan (supra) (at 371-372) is authority for the proposition that it is wrong to suggest that the additional penalty to be imposed because a further offence is taken into account should be small. The judge set out the relevant passage from Morgan in his sentencing remarks. This proposition from Morgan was said by Spigelman CJ in the guideline judgment (at [18]) to be “well established and uncontroversial”.
44 There was reference to “totality of criminality” in Bavadra (supra) in a passage the judge also quoted in his remarks but the Chief Justice regarded this reference as being no more than a proposition that the sentencing judge should give due recognition to the gravity of the further offence(s) (guideline judgment at [29]).
45 In the final case referred to by the judge, AEM & ors (supra), the Court (Beazley JA, Wood CJ at CL and Sully J) canvassed authorities on the correct approach to taking into account Form 1 offences. Included was reference to R v Barton [2001] NSWCCA 63 and the judgment in AEM & ors (at [81]) includes the following extract from the judgment of Spigelman CJ:
[64] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence , which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in subs 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. (Emphasis added)
The judgment in AEM & ors continues:
[82] Although the authorities make it clear that in sentencing in respect of the principal offence, appropriate weight has to be given to the Form 1 offences so as to reflect the overall criminality involved, it must also be recognised, as Simpson J pointed out in Lemene (2001) 118 A Crim R 131 at 134, that an offender who adopts the Form 1 procedure “ is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted ”. See also R v Harris [2001] NSWCCA 322 per Simpson J (Spigelman CJ and Einfeld AJ agreeing).
46 With his reference to these three cases I would not lightly conclude that his Honour applied some wrong principle and imposed a longer sentence than was otherwise warranted by taking the Form 1 offence into account in the manner described in the guideline judgment. The passages I have referred to, some of which were quoted by the judge, contained statements of principle that are not inconsistent and, indeed, the passage from the judgment of the Chief Justice in Barton, quoted in AEM is on all fours, with what the Chief Justice said at [42] of the guideline judgment. If there was any error in the present case it was one of terminology rather than of substance.
47 It seems clear enough that there was an increase in the sentence imposed upon the applicant because of the need to take into account the Form 1 offence but it appears to have been in relatively modest terms given the judge’s reference to the Form 1 offence making “the matter with which I am dealing something more serious”.
48 I would reject ground 2.
Ground 3 – Parity
49 The co-offender Ganem was sentenced by his Honour Judge Armitage in the District Court on 15 June 2001. He had pleaded guilty to two charges of conspiracy to supply a prohibited drug in an amount not less than the large commercial quantity (heroin and cocaine) and one charge of supplying a prohibited drug on more than three separate occasions. Accordingly he stood for sentence for two charges carrying a maximum penalty of imprisonment for life and/or a fine of $550,000 and one offence carrying a maximum penalty of imprisonment for 20 years and/or a fine of $385,000. The period covered in the two conspiracy charges was 6 April 2000 to 4 August 2000. The evidence before Judge Armitage was to the effect that Ganem had commenced working for the applicant in May or June 1999. He initially engaged in the work willingly but after a time sought to withdraw but was threatened with violence which forced him to continue working until he was arrested. The evidence was that the quantity of drugs sold varied during the time that Ganem was working for the applicant but the average over the entire period was valued at close to $10,000 per shift. Judge Armitage concluded that whilst that there was no precise evidence as to the weight of drugs sold it was abundantly plain that the amount involved in each conspiracy was very much more than 1 kilogram. Ganem was being paid about $150 per day for his efforts. He was aged 23 at the time of sentence. He had a minimal criminal history. The judge accepted that he was remorseful and had excellent prospects of rehabilitation. A plea of guilty was entered to the charges at what was regarded the first available opportunity.
50 Judge Armitage determined that the appropriate sentence for each of the conspiracy charges was imprisonment for 10 years with a non-parole period of 6 years and for the other charge, imprisonment for 3 years with a non-parole period of 20 months. The judge allowed a deduction for assistance to authorities which was described as assistance of a high order and such that Ganem placed his own life in jeopardy. The judge allowed a discount of 50%. It is not made clear but it seems that discount incorporated a discount for the pleas of guilty. Accordingly, Ganem was sentenced on each of the conspiracy charges to imprisonment for 5 years with a non-parole period of 3 years with the sentences to be served concurrently. For the remaining offence there was a sentence of imprisonment for 18 months with a non-parole period of 10 months, also to be served concurrently. For one of the offences (unspecified) four offences (unspecified) on a Form 1 were taken into account.
51 Panagakos was sentenced by his Honour Acting Judge Dalgleish on 17 July 2002. He had pleaded guilty to a single charge of supplying heroin in not less than the large commercial quantity and asked that a further offence of supplying cocaine in a commercial quantity be taken into account. Acting Judge Dalgleish deduced from the evidence that in period of April to August 2000 covered by the charges Panagakos and Ganem would have sold in the vicinity of 2 kilograms of heroin and 2 kilograms of cocaine each. Panagakos was aged 33 and had a relatively minor and short criminal history. There was evidence that he had been addicted to drugs but had abstained from drug use since going into custody. The judge rejected a submission that the plea of guilty had been entered at the earliest opportunity although he recognised that it was plea entered before trial and did have some have utilitarian value. Acting Judge Dalgleish compared the case before him with the approach taken by Judge Armitage in sentencing Ganem.
52 He noted the 10 year starting point adopted by Judge Armitage. Noting that he was required to take into account an offence on a Form 1, he increased that by one year and so adopted a starting point of 11 years before reducing it to 10 years on account of the plea of guilty. The judge apparently did not notice the difference in charges the pair faced. The final sentence was one of 10 years with a non-parole period of 7 years 6 months.
53 Panagakos appealed against the severity of his sentence: R v Panagakos (supra). It was held that Acting Judge Dalgleish had erred in his approach to the assessment of sentence. Studdert J said that the starting point, rather than being one of 10 years, being the starting point adopted by Judge Armitage in Ganem’s case, should have been one of 14 years. Then after deduction of 20% discount for the plea of guilty the sentence would have been one of 11 years 2 months. Studdert J then looked at the issue of parity that was raised in the case and determined that the appropriate sentence should have been one of 10 years with a non-parole period of 6 years 6 months. The appeal was allowed and that sentence was substituted.
54 EG pleaded guilty and was sentenced by Acting Judge Dalgleish on 1 November 2002. He pleaded guilty to one count of supplying a large commercial quantity of heroin and asked that his guilt of an offence of supplying a commercial quantity of cocaine be taken into account. He was a 25 year old man with no previous convictions. The judge found that his participation in the offences was “from a desire for money or a perceived glamour of the club scene and what appeared to go with it”. The judge said that EG was “not a link in the chain, that he was in a managerial organising capacity in this criminal undertaking with Mr Laalaa. He was a director of operations. He was prepared to supply, he was a money collector, he was supplying, both sellers. He was much higher in the command, further up in the chain.” The judge was satisfied that he had shown “a degree” of remorse. The judge nominated an appropriate starting point for the sentence of 14 ½ years. He then reduced that so as to take into account a late plea of guilty, a degree of assistance, and remorse and imposed a sentence of 11 years 3 months with a non-parole period of 8 years.
55 EG appealed against the asserted severity of his sentence: EG v Regina [2003] NSWCCA 246. In an ex tempore judgment Hidden J, with whom Spigelman CJ and Sully J agreed, said (at [33]):
“The applicant was involved, at a managerial level, in a major drug trafficking enterprise over a period of some 4 months. He was not the principal in the enterprise but his role does not appear to have been very much less than that of a principal . The drugs were actually sold by other offenders but they were supplied to those offenders by the applicant and he maintained a supervisory role over them.” (Emphasis added).
56 It was observed that over the period of the charge about 4 kilograms of heroin were sold and a very substantial quantity of cocaine. Hidden J regarded the primary offence together with the Form 1 offence as “very serious”. It was contended on appeal that the discount of about 22.5% for the applicant’s plea of guilty, assistance and remorse was inadequate. Hidden J said (at [13]):
“It certainly would have been open to his Honour to have allowed a greater reduction of sentence for that combination of factors. On the other hand, it must be said that it would equally have been open to his Honour to have fixed a considerably higher starting point for sentence before any such reduction was made”.
57 In the end it was determined that pursuant to s 6(3) of the Criminal Appeal Act, no lesser sentence was warranted. Hidden J said that was so because of the obvious gravity of the offence on the indictment, coupled with the offence on the Form 1, and the very significant role which the applicant had to play. The appeal was dismissed.
58 Mr Dhanji pointed to the starting point adopted by the judge of 23 years prior to the discount for the plea of guilty. He accepted that a higher starting point was appropriate but submitted, nevertheless, that the difference, particularly with the starting point in relation to EG (14½ years), was disproportionately large. Reference was made to some decisions of this Court in which it has been said that the severity of a sentence is not simply the product of a linear relationship. For example, it has been observed that a sentence of 10 years is more than twice as severe as one of imprisonment for 5 years: see R v Amurao [2005] NSWCCA 32 per Hulme J at [65] and R v MAK; MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16]. It was submitted that whilst what was said in those cases was in the context of discussing the principle of totality, the observations are of equal application in the determination of due proportion between co-offenders. Accordingly, it was submitted that the applicant’s sentence of 20 years is, in its impact, very much more severe than the head sentence of 11 years 3 months imposed on EG. Based upon this analysis it was submitted that the applicant had a justifiable sense of grievance having regard to the sentence imposed upon EG and also that the sentence imposed upon the applicant was disproportionate to those upon Ganem and Panagakos.
59 The parity principle has been the subject of frequent consideration in this court in recent times. It is useful to draw upon what Hall J said in JOD v R [2009] NSWCCA 205:
“[60] The principle of parity requires that co-offenders receive the same sentence only if all other things are equal. Gibbs CJ In Lowe (supra) described the operation of the parity principle in the following terms at 609:-
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence , but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. ” (emphasis added)
[61] To similar effect were the observations of Dawson and Gaudron JJ in Postiglione (supra) at 301:-
“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”
[62] Accordingly, in general terms, the parity principle involves a question of due proportion between the sentences of co-offenders to be determined by considering the different degrees of criminality and the different circumstances of the co-offenders in question.
[63] The parity principle is only engaged where the alleged disparity is such as to give rise to a justifiable sense of grievance. As Kirby J observed in Postiglione (supra) (at 337):-
“So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders.”
[64] The test for determining the existence of a sense of grievance is objective. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the offender’s grievance as justified: Regina v Ilbay [2000] NSWCCA 251 Grove J (at [6]).
60 As can be seen, the “part which (the offender) played in the commission of the offence” (per Gibbs CJ in Lowe) or the “different degrees of criminality” (per Dawson and Gaudron In Postiglione) is perhaps the most significant consideration in the present case. It is also important to take note of the extract from the judgment of Kirby J in Postiglione.
61 It is clear that the applicant in this case stood in a position far superior to that of each of the co-offenders. As the Crown put it, he was the controlling mind of the enterprise, he gave directions to the subordinates, he stood to reap the greatest rewards, shown amply by the sums of money found at his house upon his arrest and by the extent of his gambling losses in Melbourne. Those below him in the enterprise were expendable as can be seen by the easy replacement of Ganem with another employee when Ganem was arrested on 17 July 2000. Whilst the subordinates were expendable, the applicant was not. Without the applicant there was no enterprise. I agree with the Crown submission that the applicant’s moral culpability for the offending was of a different character and far more grave than any of his subordinates.
62 Some reliance was placed by the applicant upon the comment made by Hidden J in dealing with the severity appeal by EG that “he was not the principal in the enterprise but his role does not appear to have been very much less than that of a principal”. It was contended that this supported the proposition that there should be less distinction in the sentences imposed upon the applicant and EG. I am not of the view that this remark supports the applicant’s contention. Hidden J was clearly talking about the role of EG in comparison to those underneath him in the enterprise. He immediately went on to remark that the drugs were actually sold by other offenders but that they were supplied to those offenders by the applicant who maintained a supervisory role over them. Hidden J was clearly talking about “a principal” in general terms and not comparing in any way the role played by EG with the role played by “the principal”, the present applicant.
63 Acting Judge Stewart was clearly alive to the need to consider the parity principle. It was submitted to him that the role played by the applicant was “no worse than that of (EG) and the penalty imposed upon (the applicant) should be much the same as that imposed upon (EG) or slightly more”. The judge rejected that submission and then immediately preceded to remark that the authorities indicated that those who sell drugs but are not drug users themselves fell into the worst category of drug offenders. He said that description applied to the applicant. Clearly the judge assessed the objective gravity of the applicant’s offence as significantly greater than in the case of EG. That was a conclusion well open to him and on that basis it was open to his Honour to impose a significantly more substantial sentence. I would reject ground 3.
Ground 4 – Manifest excess
64 A number of propositions were advanced on behalf of the applicant in support of the contention that the sentence imposed upon him was, in all of the circumstances, manifestly excessive. It was acknowledged, as it had to have been, that the applicant’s offence was extremely serious, the maximum penalty prescribed for the offence is imprisonment for life, and that the applicant was a principal in the enterprise.
65 It was submitted that the offence of supplying not less than the large commercial quantity of a prohibited drug has no upper limit in terms of the quantity of drug and so offences may be committed involving many times the large commercial quantity. By way of example, reference was made to R v Chung [2001] NSWCCA 484 where the amount of drug supplied was 63 kilograms. It was submitted that the applicant’s offence was significantly less serious than an offence of that order. It has to be noted, however, that in Chung the sentence imposed was significantly greater than that imposed upon the applicant. Chung was sentenced to imprisonment for life and an appeal against the severity of that sentence was dismissed.
66 Next, reference was made to the personal circumstances of the applicant. He was aged 31 at the time of his arrest and was a single man with no children. He had no prior convictions in relation to supplying drugs. (He was however imprisoned in 1993 for an offence of robbery in company). Reference was made to the psychologist’s report that was before the judge which was said to give some insight into the applicant’s background and functioning. In particular it was noted that the psychologist found the applicant to be “mildly intellectually handicapped”. In relation to the latter I note there has been no complaint about the manner in which the judge assessed the applicant’s subjective circumstances including the material that was disclosed in that report.
67 The applicant referred to three cases which were said to support the proposition that the sentence was manifestly excessive. The first was R v Attallah [2005] NSWCCA 277, a case in which an offender was sentenced for two counts of supplying a large commercial quantity of drugs, being cocaine and heroin. The offences took place over a period of two years in which the quantities supplied exceeded 3 kilograms and 8.6 kilograms of each type of drug. The applicant in that case operated an unlicensed brothel and supplied drugs in small quantities to prostitutes working at that brothel. At first instance he was sentenced to imprisonment for life but on appeal this was reduced to concurrent sentences of 24 years with non-parole periods of 18 years. It was submitted that the criminality inherent in that case exceeded that in the present case and yet the sentence of 24 years, where there was conviction after trial, only exceeded the starting point sentence for the present applicant by one year. Accordingly it was submitted that the applicant’s offences merited a level of punishment significantly less than those of Attallah.
68 Next, reference was made to R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338. It was submitted that Knight was the principal of a commercial operation which, over a period of time, supplied approximately twice the large commercial quantity of ecstasy. Offences involving the supply of other drugs exceeding the indictable quantity were taken into account of a Form 1. Reference was made to a description of Knight as being “the head of a drug syndicate which involved a number of men who acted as runners” as well as others who helped to sort, weigh and package drugs. It was submitted that her role could not be described as any less than that of the present applicant. She was sentenced at first instance to a total term of 10 years with a non-parole period of 6 years. A Crown appeal was upheld and a sentence of 14 years 4 months with a non-parole period of 10 years was substituted. It was conceded that the comparative value of that sentence was “somewhat muted” by the fact that it was imposed after a successful Crown appeal. It was said to be of significance, however, that Howie J said that the sentence before any discount for the plea of guilty should have been one of 18 years. It was submitted that the applicant’s offending merited punishment no greater than that warranted in the case of Knight. Accordingly it was submitted that the starting point of 23 years was “suggestive of error”.
69 Finally, reference was made to R v Bayeh [2000] NSWCCA 473. The applicant in that case was sentenced for four offences including 18 years with a non-parole period of 15 years for a conspiracy to supply a large commercial quantity of cocaine and a concurrent sentence of a fixed term of imprisonment for 9 years for conspiring to supply not less than the commercial quantity of heroin. It was estimated in that case that the amount of cocaine supplied in the period covered by the charge was between 2 and 3 kilograms and the amount of heroin was estimated between 0.5 and 1 kilogram. It was submitted that the role of the applicant in that case was no less serious than that of the present applicant.
70 Chung was clearly a more serious case and the sentence imposed was substantially more severe than that imposed upon the applicant. There were differences in the factual circumstances of Attallah, including that the offender in that case was not supplying the drug to the public at large as was the present applicant. The sentence in that case was, of course, greater than that imposed upon the applicant. In Knight there were subjective circumstances which were to some extent more compelling than those of the applicant including that the offender in that case had been involved with drugs since the age of 11 having been introduced to supplying drugs by her mother. She had consumed alcohol since the age of 12 and amphetamines since the age of 17.
71 Reference to these three cases do not make good the contention of manifest excess. There are significant differences, as the applicant acknowledged. They do not establish a “range”, let alone that the sentence in the present case lies outside a relevant range. This Court has observed that an invitation to compare sentences in other unrelated cases is “quite wrong” (Regina v Morgan (supra) at 371) and “neither helpful nor justified by authority” (R v George (2004) NSWCCA 247; 149 A Crim R 38 at [48]),
72 In Vuni v R [2006] NSWCCA 171 Hoeben J stated:
[33] To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was “unreasonable or plainly unjust” ( Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. ( Markarian v R [2005] HCA 25 at [26]–[28]).
73 I have earlier referred to the matters taken into account by the judge in his assessment of the objective seriousness of the offence, and the assessment of the overall sentence to impose. Having regard to those matters, the maximum penalty provided for the offence, and the need to take into account the serious offence on the Form 1, I have come to the view that the sentence, whilst severe, is not one that can be described as manifestly excessive.
Orders
74 My Dhanji conceded that if the Court found no merit in the proposed grounds of appeal that it would be appropriate to refuse the extension of time.
75 I propose the following order:
- Extension of time to apply for leave to appeal is refused.
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