Moeen Mohammed v Matthew Stephen Sprague
[2006] ACTSC 113
•13 October 2006
MOEEN MOHAMMED v MATTHEW STEPHEN SPRAGUE
[2006] ACTSC 113 (13 October 2006)
APPEAL – sentence – drug dealing – methamphetamine – need for custodial sentence – no error in Magistrate’s sentence.
R v Darwell (1997) 94 A Crim R 35
R v Bimahendali (1999) 109 A Crim R 355
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT
No SCA 33 of 2006
Judge: Connolly J
Supreme Court of the ACT
Date: 13 October 2006
IN THE SUPREME COURT OF THE )
) No. SCA 33 of 2006
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN: MOEEN MOHAMMED
Appellant
AND: MATTHEW MICHAEL SPRAGUE
Respondent
ORDER
Judge: Connolly J
Date: 13 October 2006
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
This is an appeal against a sentence delivered on 7 July 2006 on Moeen Mohammed (the appellant) in respect of offences relating to drugs. He pleaded guilty to the charges of trafficking in a controlled drug other than cannabis, trafficking in a controlled drug other than cannabis and possessing a drug of dependence.
The first charge relating to trafficking in a controlled drug other than cannabis related to methamphetamine, 78.24 grams of pure methamphetamine, which is some 39 times the deemed trafficable quantity. It is an offence which carries a maximum penalty of 10 years. The second charge of trafficking in a controlled drug other than cannabis relates to slightly over 5 grams of pure MDMA. The trafficable quantity for MDMA is half a gram, so that is something in the order of ten times the deemed amount, and again that is a maximum penalty of 10 years. The charge of possess drug of dependence relates to some 2.3 grams of pure cocaine.
The circumstances to which he pleaded guilty on the statement of facts that was agreed before the Magistrate was that there had been some surveillance for a period of time by way of authorised telephone intercepts.
The appellant came from Sydney to the Australian Capital Territory with the drugs, he met another person in a city hotel room. The other person was coming to purchase the drugs from the appellant and had with him cash in the sum of some $23,000. After observation, police executed a lawful warrant and entered the hotel room where they found the appellant, the other person, the drugs and the money.
As the learned Magistrate made clear, this was drug trafficking of some substance and as I remarked to Mr Coroneos, for the appellant, in the course of his submissions, this is not retail drug trafficking where one addict is selling a relatively small amount of substance to another addict for the purposes of obtaining drugs for their own use. This is a person engaging in an interstate trip with what may be described as a wholesale quantity of drugs. There was material before the learned Magistrate suggesting that the $23,000 sale price for these drugs would have been more than doubled had the drugs then entered the retail Canberra market.
In sentencing the appellant, her Honour recognised that it was a complex sentencing task because although, on the one hand, it was a serious drug transaction, there were significant factors in the appellant’s favour that had to be given careful consideration. They related to his age and otherwise good character, they related to his early plea of guilty and to his cooperation with the authorities in relation to the prosecution of the prospective purchaser of the drugs.
Her Honour heard extensive submissions by counsel for the appellant and counsel for the Crown and effectively reserved her decision for a couple of weeks. In delivering her decision it is apparent from the reasons that she has given the matter extremely careful consideration. It seems to me that she has applied all principles of law correctly, and indeed Mr Coroneos very properly and graciously made that concession, that there is no error of law that can be pointed to, but nonetheless he maintained that the sentence could be seen as being excessive.
It seems to me that her Honour dealt correctly, both in principle and in outcome, with all of the significant factors that were before her. While she noted that the appellant was entitled to a sentencing discount for the plea of guilty, she also noted correctly that the level of utility of an early plea does depend to some extent on the strength of the Crown case, and this was an exceptionally strong Crown case where the police had executed a warrant at hotel premises, and in effect right in the middle of a wholesale drug transaction. It was a strong case.
She also, correctly it seems to me, cited a number of remarks of appellate and I think also trial judges in other jurisdictions to the effect that good character is a matter where in drug transactions some caution must be taken. It is clearly not in the interests of those higher in the line of drug distribution to engage as couriers or persons to take drugs interstate for sale, persons with a known record for dealing in drugs. Therefore persons with apparently otherwise clean records and who are not known to police may often find themselves recruited into such operations. And there has been acknowledgements by courts of appeal that an otherwise clean record, while to be taken into account, must be viewed with some caution in serious drug trafficking cases.
The Magistrate had regard to a number of decisions of courts of appeal, particularly in New South Wales and Western Australia in recent years that have made remarks that methamphetamine and MDMA are drugs of significant concern to the community and ought to be considered at the higher end of seriousness in the hierarchy of prohibited drugs. As Malcolm CJ in Western Australia said in remarks that her Honour referred to extensively, from R v Darwell (1997) 94 A Crim R 35 if not equated to heroin and cocaine it is close enough to those drugs to be regarded as in the same category. There were similar remarks in the New South Wales Court of Appeal from Wood CJ in R v Bimahendali (1999) 109 A Crim R 355.
So her Honour was confronted with a man, a young man of otherwise good character, who had pleaded guilty at an early stage and who was prepared to cooperate with the authorities in relation to the prosecution of the prospective purchaser of these drugs. Her Honour made the point that on a number of occasions, correctly it seems to me, that but for those factors she would not have proceeded with the sentence. That is to say she would have been of the view that a sentence of 2 years imprisonment would have been inadequate and she would have sent the matter to this Court for appropriate sentencing. With respect to her Honour, I think that was correct, and that a starting point for what is effectively a wholesale methamphetamine and MDMA drug transaction, would be imprisonment well above the limit that could be imposed by the Magistrates Court.
However, she was mindful, properly so, that it was appropriate to provide the discounts in respect of his age, his antecedence, his early plea and his level of cooperation, and it was those factors that formed her Honour’s view and allowed her to sentence within the Magistrates Court range.
The final disposition that she made was to record convictions in respect of each matter. In respect of the methamphetamine he was sentence him to 2 years’ imprisonment with the non-parole period commencing on 27 June 2006, ending on 27 June 2007. In respect of the MDMA, he was convicted and sentenced to 12 months imprisonment, 9 months of which was concurrent with the earlier offence, and in relation to the cocaine he was convicted and sentenced to 3 months imprisonment fully concurrently with the second offence. The effect of that was an effective head sentence of 27 months with a non-parole period ending on 27 June 2007.
It seems to me that such a penalty was entirely within range and indeed gave all of the benefit that could be given to the appellant. While it had been submitted before her Honour that periodic detention may have been appropriate, it does seem to me appropriate to remark that periodic detention for this level of drug trafficking would be a matter that could well excite a Crown appeal in relation to excessive leniency. Her Honour was clearly also of that view and formed and expressed the view, correctly in my view, that the only appropriate penalty was a substantial head sentence. Substantial but bearing in mind all the factors in the appellant’s favour, and again taking account of all those matters in his favour she felt appropriately able to partially accumulate the sentences and to impose effectively 12 months only to serve on a full-time basis.
There is ample and abundant authority which her Honour cited in detail to support the proposition that courts need to send a strong message in relation to this type of commercial drug transactions, and that persons minded, even though they may at the time themselves be using substances, to seek substantial profit by way of these types of transactions must realise that they may, and in many cases will, be detected and apprehended and they will face a period of custodial sentence. The appeal is therefore dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Associate:
Date: 13 October 2006
Counsel for the Appellant: Mr Coroneos
Solicitor for the Appellant: Darryl Perkins
Counsel for the Respondent: Mr D Sahu Khan
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 13 October 2006
Date of judgment: 13 October 2006
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