Majzoub v Regina

[2006] NSWCCA 128

CITATION:	Majzoub v Regina [2006] NSWCCA 128 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/04/2006
JUDGMENT DATE:	21 April 2006
JUDGMENT OF:	Hodgson JA at 1; James J; Hoeben J
EX TEMPORE JUDGMENT DATE:	04/21/2006
DECISION:	Leave to appeal granted.; Appeal dismissed.
CATCHWORDS:	Sentence appeal - manifestly excessive - parity of sentence - no legitimate sense of grievance.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
CASES CITED:	Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Mohammed Majzoub - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2005/2373
COUNSEL:	Ms A Francis - Applicant G Rowling - Crown
SOLICITORS:	SE O'Connor, Legal Aid Commission of NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3028
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ
LOWER COURT DATE OF DECISION:	06/05/05

2005/2373

HODGSON JA
JAMES J
HOEBEN J

Friday, 21 April 2006

Mohammed MAJZOUB v REGINA

Judgment

1 HODGSON JA: The Court is in a position to give judgment and I will ask Hoeben J to give the first judgment.

2 HOEBEN J:

Offences and sentence
On 9 February 2005 the applicant pleaded guilty on indictment that between 3 November 2004 and 4 November 2004 at Ashcroft in the State of New South Wales he did on three separate occasions supply a prohibited drug, to wit, amphetamine for financial or material reward contrary to s25A(1) of the Drug Misuse and Trafficking Act – maximum penalty imprisonment for 20 years.

3 The applicant, who had been in custody since 4 November 2004, was sentenced by Maguire DCJ on 6 May 2005 as follows:

A term of fulltime imprisonment with a non-parole period of 2 years and a balance of term of 2 years. The sentence was to commence on 4 November 2004 with the non-parole period expiring on 3 November 2006 and the balance of term expiring on 3 November 2008.

Background to offences

4 In the sentence proceedings, the following statement of facts was admitted into evidence without objection. In this application the applicant accepts its accuracy.

“About 2pm on Wednesday 3 November 2004 an undercover police operative contacted mobile telephone [phone] and entered into negotiations regarding the purchase of prohibited drugs with a male. The undercover operative was directed to Ashcroft shops located Sinclair Road, Ashcroft.
On arrival at the Ashcroft shops the undercover operative was met by a dark blue BMW registration IMASON. The vehicle was being driven by the co-offender Mahmoud Chamma. The passenger in the vehicle, the offender Mohammed Majzoub nodded his head to the undercover police operative. The undercover police operative went to the offender and handed him $50. The offender handed the undercover police operative a small plastic re-sealable bag containing a brown yellow substance. The co-offender handed the undercover operative a piece of paper with the name of Pete, telephone number 043 8030494 written on it. The undercover operative was informed by the co-offender to call that number in future. They both left the area.
About 4.20pm on the same day the undercover police operative contacted mobile telephone number recently recited and entered into negotiation regarding purchase of prohibited drugs with a male. The undercover operative was directed to Ashcroft shops where she was met by the co-offender. He was a passenger in the same dark blue BMW. The vehicle was being driven by an unknown female.
The offender was seen to arrive at the location at the same time as the BMW. The offender was driving a gold coloured Nissan pulsar, registration YIU 321. The undercover police operative handed the co-offender Chamma $50 in exchange for a small plastic resealable bag which contained a yellow brown substance. The offender Majzoub can be seen observing the transaction, then seen to drive away at the completion when the blue BMW and the co-offender, Chamma, leave.
At 12.15pm the following day an undercover police operative contacted the second mentioned mobile phone number and negotiated a purchase of prohibited drugs with a male. The operative was directed to the Ashcroft shops where he was met by Majzoub who attended the area on a bicycle. The undercover police operative handed the offender $50 in exchange for a small plastic bag which contains a yellow brown substance. The offender left the area.
About 3.15pm on the same day an undercover police operative contacted the last mentioned number and entered into negotiations with a male. The police operative was directed to Ashcroft shops where he was met by the BMW. Majzoub was seated in the passenger seat. The vehicle was being driven by Chamma. The undercover police operative handed Majzoub $100 in exchange for two small plastic resealable bags which contained a yellow brown substance. The undercover operative left the area.
Majzoub and Chamma were arrested a short distance away in Sutton Road at 3.25pm in the BMW. The offender had in his possession the $100 handed to him by the police operative in exchange for the prohibited drugs. The co-offender had in his possession $570 in Australian currency. He was unable to explain who owned the money or how he came to be in possession of it. The offender Majzoub and the co-offender Chamma were taken to Green Valley police station. On receiving legal advice they both declined to answer any questions. The total amount of drugs seized from the offender is 1.2 grams, presumptive tests indicate the substance to be amphetamine. Total amount of drugs seized from the co-offender is 0.3 grams. Presumptive tests indicate the substance to be amphetamine.”

5 The co-offender, Mahmoud Chamma, came before Maguire DCJ for sentencing at the same time as the applicant. He pleaded guilty to one count of supply a prohibited drug, contrary to s25A(1) of the Drug Misuse and Trafficking Act 1985. He asked that a matter of goods in custody be dealt with by way of a Form 1. His Honour sentenced Mahmoud Chamma as follows:

A term of imprisonment with a non-parole period of 18 months and a balance of term of 18 months, such sentence to be served by way of periodic detention. The non-parole period was to date from 12 May 2005 and expire on 11 November 2006 and the balance of term was to expire on 11 May 2008.

Remarks on sentence

6 The applicant was born on 13 May 1980 and was 25 when he appeared before his Honour for sentencing. His Honour had regard to the following subjective matters, which were referred to in the Probation and Parole report before the court.

7 The applicant had come to Australia from Lebanon with his parents and three older sisters in 1981. A younger brother was born in Australia. His parents divorced when he was five years old. His father was an alcoholic and had been verbally abusive during his formative years. His father had returned to Lebanon and the applicant had been raised by his mother, with whom he had close ties.

8 Just before these offences the applicant had separated from his girlfriend of 18 months. The applicant said that the cause of the break up was his illicit drug use and unemployment. His former girlfriend had taken out an apprehended violence order against him in October 2004 and this order was enforceable until 28 October 2006. While in custody, the applicant had been visited by members of his family, friends and by his ex girlfriend.

9 The applicant had left school at the end of year 9 when he was aged 15. He said that he had poor numeracy and literacy skills. He had held a number of short-term jobs. His employment had been interrupted by periods of substance abuse. He was unemployed at the time the offence occurred.

10 The applicant said that he had first used cannabis in his early teens and had become addicted by age 17. He had smoked cannabis on a daily basis since that time. He had commenced using amphetamines and cocaine at the age of 20 on an ad hoc basis depending upon his financial situation. He said that his illicit drug use escalated after the break up with his girlfriend. He claimed to be under the influence of amphetamines at the time of the offence.

11 The applicant had expressed regret for his actions to the Probation and Parole Service and indicated a desire to rehabilitate himself. Whilst in custody since 5 November 2004, he had successfully completed a number of courses which related to substance abuse.

12 The Probation and Parole report concluded with the following observation:

“He impressed as a fairly immature young man who appears to have experienced a supportive and financially comfortable upbringing. He’s maintained the support of his family throughout this matter and inquiries suggest they have been aware of the extent of his illicit drug use. Although he may have gained some insight into his offending behaviour it is considered that upon his eventual release a lengthy period of formal supervision would assist the offender in avoiding further adverse contact with the authorities in the future.”

13 The applicant did not give evidence in the sentencing proceedings. A letter from him addressed to the court was tendered and his Honour accepted it as demonstrating contrition. On the basis of the material in the Probation and Parole report, his Honour found the applicant’s prospects of rehabilitation to be above average.

14 His Honour had regard to the applicant’s criminal record, which had one previous offence of supplying drugs and a number of driving offences, some of which his Honour characterised as being of a serious nature.

15 His Honour was prepared to accept that the applicant’s plea of guilty had been entered at an early stage and allowed a 20 per cent discount.

16 In his final remarks before sentencing, his Honour referred to the serious nature of the offence and noted that deterrence was an important consideration. His Honour found that the applicant would benefit from an extended period of supervision and accordingly that special circumstances had been established for the purposes of s44(2) of the Crimes (Sentencing Procedure) Act 1986.

17 His Honour referred to the principle of parity and in relation to the co-offender, he said:

“The circumstances of the co-offender on whom I shall shortly pass sentence do not call for a sentence of the same gravity as those of this offender.”

Grounds of appeal

18 The only ground of appeal relied on by the applicant is ground 3. This ground was that the disparity between the sentences of the appellant and the co-offender, Chamma, engendered a justifiable sense of grievance, which requires the court to intervene to correct what is otherwise an error in the application of the parity principle.

19 In support of this ground it was submitted that there was a significant difference between the sentence imposed on the applicant and that imposed on the co-offender, Chamma, for what was in effect the same offence. The disparity was such as to engender a justifiable sense of grievance and an appearance of injustice thereby entitling this Court to intervene to correct what would otherwise be a significant error in the application of the parity principle.

20 In relation to the objective seriousness of the offence it was submitted that the roles of the applicant and Chamma were relatively equal in the transactions for which they were convicted and that the level of criminality on the part of each of them was similar.

21 In relation to their subjective circumstances, the only difference was the criminal record in that the applicant had a criminal record whereas Chamma did not. It was submitted that his Honour erred in failing to have regard to the fact that the applicant’s reason for committing the offence was to support his drug use. Chamma did not have that same justification.

22 A further ground of complaint was that his Honour failed to properly identify and explain how the differences in the objective and subjective circumstances of the applicant and Chamma led to him imposing such different sentences upon them.

23 It is clear from his Honour’s approach to the sentencing of Chamma that his Honour considered that his subjective circumstances significantly favoured him over the applicant. Contrary to what was submitted, Chamma did have a drug problem which was also complicated by alcohol abuse and an addiction to gambling. It was a combination of those matters which led to the commission of the offence. That is clear from the report of the psychologist, Ms Langovski.

24 By the time the matter came to court, Chamma, who was then aged 22, had already taken positive steps to address his drug abuse and was in regular employment. Not only did the psychologist express a positive opinion as to the chances of Chamma not re-offending, but it is clear that his Honour was impressed with Chamma as a witness and accepted his evidence and that of another witness as to the genuineness of Chamma’s resolve never to offend again. There was also evidence, which his Honour accepted, that this offence was out of character. These were subjective matters which significantly favoured Chamma by comparison with the applicant.

25 The other important point of distinction was that Chamma had no prior criminal record. By comparison, the applicant’s criminal record included three offences of supplying a prohibited drug for which originally a sentence of periodic detention was imposed, but which was subsequently cancelled and replaced by imprisonment for a fixed term of 13 weeks. The applicant’s record contained a number of driving offences, which included six offences of driving whilst disqualified.

26 While the fact of prior convictions did not increase the severity of the present offence, it demonstrated that the present offence was “a manifestation of continuing disobedience of the law” and that “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted” (Veen v The Queen (No 2) (1988) 164 CLR 465).

27 Taking those matters into account, I am not satisfied that a reasonable mind looking objectively and overall at the sentences imposed by his Honour on the applicant and on Chamma would see justification in the applicant’s alleged sense of grievance (R v Ilbay [2000] NSWCCA 251 at [6]). The basis of the principle of parity in relation to sentencing is that any discrepancy should be justifiable. Quite clearly his Honour identified the matters to which I have referred as distinguishing the position of the applicant from that of Chamma. I am not persuaded that his Honour erred in so doing.

28 These grounds of appeal fail.

29 The orders which I propose are:

(i) Leave to apply be granted.
(ii) The appeal be dismissed.

30 HODGSON JA: I agree with the orders proposed by Hoeben J and his reasons. In my opinion, the difference in the antecedents of the two offenders could properly be considered as justifying a difference in the sentences imposed. In all the circumstances, the difference resulting from the sentences actually imposed by the sentencing judge is not such as could possibly justify appellate intervention.

31 JAMES J: I agree with Hoeben J.

32 HODGSON JA: The orders of the Court are as proposed by Hoeben J.

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29/05/2006 - typographical error in cover sheet - Paragraph(s) cover sheet