Mohamed Abdul Fattah v The Queen
[2016] VSCA 43
•18 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0253
| MOHAMED ABDUL FATTAH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 February 2016 |
| DATE OF JUDGMENT: | 18 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 43 |
| JUDGMENT APPEALED FROM: | DPP v Fattah (Unreported, County Court of Victoria, Judge Murphy, 3 December 2015) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking methamphetamine – Trafficking simpliciter – ‘High end’ offence – Three years and nine months’ imprisonment – Sentencing error – Judge relied on incorrect facts – Crown concession – Whether different sentence should be imposed – Role – Delay – Rehabilitation – Community protection – Public interest in continued rehabilitation – Fairness – Resentenced to three years’ imprisonment wholly suspended – Drugs, Poisons and Controlled Substances Act 1981 s 71AC, Criminal Procedure Act 2009 s 281.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C B Boyce SC | Garde-Wilson Lawyers |
| For the Respondent | Mr D Lane | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
THE COURT:
Summary
The applicant (‘MF’)[1] pleaded guilty to one charge of trafficking in a drug of dependence (methamphetamine).[2] He was sentenced to three years and nine months’ imprisonment, and a non-parole period of two years was fixed.
[1]The abbreviation is used for ease of reference only.
[2]Drugs, Poisons and Controlled Substances Act 1981 s 71AC (‘the Act’).
His application for leave to appeal raised a number of grounds, one of which contended that the judge had imposed sentence on an erroneous factual basis, by taking into account facts and matters on which the prosecution had originally relied but which, by the time of the plea hearing, were no longer relied on. As will appear, the Crown conceded error in this respect.
That concession was properly made, in our view. Accordingly, the first element in s 281(1) of the Criminal Procedure Act2009 is satisfied, that is, there is error in the sentence below.
Last December, based on that concession and a submission from senior counsel for MF that a non-custodial disposition would be within range for this Court on resentencing, MF was granted bail pending the hearing of the appeal. He has therefore been at liberty since 22 December 2015.
Submissions on the appeal were directed at the second question which arises under s 281(1), namely, whether a different sentence should be imposed. In considering that question, this Court is deciding for itself what the appropriate sentence should be, having regard to all relevant matters concerning the offender and the offending as at the date of the appeal.[3]
[3]Kentwell v The Queen (2014) 252 CLR 601, 618 [43].
For reasons which follow, we have concluded that a different sentence should be imposed. We would allow the appeal and resentence MF to three years’ imprisonment, wholly suspended for an operative period of two years.
Ordinarily, as counsel for MF conceded on the plea, serious offending of this kind would attract a sentence of immediate imprisonment. The quantity trafficked approached a commercial quantity, and MF played a significant — albeit subordinate — role in the trafficking activity.
There are, however, two features of the case which warrant the suspension of the term of imprisonment. The first concerns the circumstances in which MF became involved with the principals in this trafficking operation and allowed himself to become their ‘right-hand man’ for a period of seven weeks. The second concerns the extraordinary delay of almost three years between the offending and MF’s arrest and charge. During that time, MF rehabilitated himself in a most impressive fashion, a process which continued to the date of sentence, and it would be contrary to the public interest for that process to be disrupted by his incarceration now, more than five years after the offending.
The trafficking
The factual basis for the sentencing was set out in a prosecution plea opening dated 13 November 2015 (the ‘November opening’). This was prepared following objections made by MF’s representative to an earlier plea opening, prepared in August 2015 (the ‘August opening’). The changes were reflected in the November opening.
As set out in the November opening, the head of the operation was Oueida, who was a major trafficker of methamphetamine. He ran a substantial trafficking business, in which he:
·negotiated purchases and sales;
·arranged and supervised cooks;
·arranged and supervised transport of the drugs;
·arranged and supervised payment; and
·at times, personally handled sales.
Weightman cooked and trafficked methamphetamine for himself and for Oueida and others. His role included:
·sourcing and purchasing methamphetamine oil (‘meth oil’);[4]
·testing proposed and actual purchases of methamphetamine;
·cooking methamphetamine; and
·sale and supply of methamphetamine to others.
Weightman conducted much of his trafficking — in particular, the cooking — at his home.
[4]Methamphetamine oil is a very pure form of methamphetamine, which needs to be ‘cooked’ in order to convert it into crystal form (‘ice’) for sale.
MF pleaded guilty to Giretti-style trafficking.[5] The conduct comprised five transactions[6] which took place over a seven week period between December 2010 and February 2011. On the plea, the prosecutor accepted that MF was below both Oueida and Weightman in the hierarchy of the trafficking operation.
[5]R v Giretti (1986) 24 A Crim R 112.
[6]Referred to as ‘occasions’ in the plea opening.
The total amount trafficked approached, but did not exceed, the amount specified in the Act for a commercial quantity of mixed product methamphetamine (500 grams).[7] Thus, as the prosecutor told the judge, this was ‘high end’ trafficking simpliciter.
[7]Drugs, Poisons and Controlled Substances Act 1981 sch 11 pt 3.
The five transactions were as follows:
1. MF gave a supplier $120,000 as payment for meth oil which had been supplied by the supplier to Oueida / Weightman.
2. MF sourced the supply of meth oil, delivered it to Weightman, was present when Weightman tested the oil, and discussed payment with him.
3. MF couriered an unknown amount of cash from Sydney to Melbourne and delivered it to Weightman.
4. MF delivered two bottles of meth oil to Weightman and picked up an unknown quantity of vacuum-packed bags of cooked methamphetamine.
5. MF delivered an unknown quantity of meth oil to Weightman and picked up vacuum-packed bags of cooked methamphetamine.
The last of these transactions took place on 7 February 2011. Later that month, MF left Australia, for reasons discussed below. He did not return to Australia until November 2012. Although he was stopped at the airport, he was not arrested and charged until January 2014. The principals in the drug trafficking had been arrested in April 2011.
MF was committed for trial in May 2014 on a charge of trafficking in a commercial quantity. On the third day of the trial, 29 July 2015, agreement was reached that MF would plead guilty to the lesser charge of trafficking simpliciter.
The factual error
MF contended that the judge had, by mistake, incorporated into his sentencing reasons parts of the superseded August opening and, as a result, had sentenced him on an incorrect factual basis. The judge’s report states that he sought to sentence MF on the basis of the November opening, which
was tendered in the course of the plea and was subject to amendment during discussion on the date of the plea.
(His Honour’s working copy of the November opening is attached to the report, and clearly shows a number of handwritten amendments.)
It is clear that the sentencing reasons included a number of factual matters which were no longer relied on by the prosecution. Paragraph 6 of the sentencing reasons is in these terms:
As part of the operation you were identified as a trusted associate of Oueida and Weightman. In the Crown opening in paragraph 16 your role was described as follows, and I incorporate by reference paragraph 16 of the Crown opening:
Fattah was invested as part of Operation Rossa and was a trusted associate of OUEIDA and WEIGHTMAN
a) FATTAH was the right hand man of OUEIDA and he was trusted to:
a.Negotiate and coordinate the payment for and collection of methamphetamine.
b.Personally collect large amounts of cash.
c.Personally deliver large amounts of cash interstate to pay for methamphetamine.
d.Transport large quantities of methamphetamine interstate and directly to the cook WEIGHTMAN.
e.To be present and or participate in the cooking or testing of the meth oil.
f.Personally on-deliver the cooked methamphetamine.
g.To attempt to source alternate supplies of large quantities of meth oil.
b)FATTAH also acted as for WEIGHTMAN. However he always made it clear his primary duty was to OUEIDA.[8]
[8]DPP v Fattah (Unreported, County Court of Victoria, Judge Murphy, 3 December 2015) [6] (‘Reasons’) (emphasis added).
It is common ground that what his Honour set out here was the text of the original paragraph 16 (from the August opening), rather than the text of the amended paragraph 16 (from the November opening). The differences, indicated in italics in the extract above, are material. MF was not to be sentenced on the basis that he had:
·‘attempted to source alternate supplies of large quantities of meth oil’; or
·‘participated in the cooking or testing of the meth oil’.
As to the second of these points, the November opening stated only that MF had been present (with others) while meth oil was ‘test cooked’.
A further complaint was that the form of paragraph 16 set out in the reasons did not make clear — as the November opening did — that the various activities listed in paragraphs (a)–(f) were confined to one or more of the transactions described in the opening (referred to as ‘occasions’ below), rather than being engaged in generally. It is necessary for this purpose to set out the amended paragraph 16, showing the changes:
FATTAH was invested as part of Operation Rossa and was a trusted associate of OUEIDA and WEIGHTMAN.
a)FATTAH was the right hand man of OUEIDA and on the occasions set out in this plea opening he was trusted to:
a.Negotiate and coordinate the payment for and collection of methamphetamine (occasion 2).
b.Personally collect large amounts of cash (occasion 3).
c.Personally deliver large amounts of cash interstate to pay for methamphetamine (occasion 1).
d.Transport quantities of methamphetamine oil directly to the cook WEIGHTMAN (occasions 2, 4 and 5).
e.To be present in the cooking or testing of the meth oil (occasion 2).
f.Personally on-deliver the cooked methamphetamine (occasions 4 and 5).
b)FATTAH also acted for WEIGHTMAN. However he always made it clear his primary duty was to OUEIDA.[9]
[9]Emphasis added.
Complaint was also made about the erroneous inclusion in the sentencing reasons of statements to the effect that:
·as part of transaction 1, MF had driven from Sydney to Weightman’s home in order to deliver meth oil to him. (The reference to the delivery of oil was excluded from the November opening);
·in relation to transaction 2, Weightman had confirmed that the oil delivered by MF had been tested. (This statement was part of a paragraph of the August opening — deleted entirely from the November opening — which included the allegation that MF had in fact delivered oil to Weightman and that the oil was of high quality); and
·also in relation to transaction 2, MF had participated in cooking methamphetamine and had then ‘picked up’ the cooked product. (Both statements were deleted from the November opening.)
MF’s submission is that the erroneously-included statements ‘described an inflated role by MF, a role that was not ultimately contended for’, in particular because he was described as ‘dealing in the cooked meth and actually participating in a cook’.
Finally, MF refers to matters stated in the August opening — but not in the November opening — which, it is said, ‘must have wrongfully inflated MF’s culpability in the judge’s eyes’. The references in question are to the effect that (in relation to transaction 2):
·MF told Weightman that he might come to his house ‘but might not be able to bring’ the meth oil;
·there had been messaging between MF and Oueida ‘over drug debts in Sydney’; and
·MF had ‘more‘ for Weightman and wanted a further sum of money.
According to the submission, the second of these suggested — wrongly — that MF was trusted by the principal to convey information about drug debts that were outstanding. The third depicted MF — wrongly — as ‘behaving in a more entrepreneurial fashion than was ultimately contended’.
The collective effect of these factual errors, it was submitted, was to:
invest MF with a more deeply involved, more trusted and, indeed, more entrepreneurial role than was in fact the case. This must have operated upon the sentencing judge’s reasoning process so as to lead the judge to reject the contention that MF was a ‘lackey’ and find, rather, that MF was someone who was ‘entrusted to engage in negotiation on behalf of Oueida’, someone who was an ‘entrusted operative’, someone who had an ‘important role within the overall trafficking enterprise’ and someone who was ‘prepared to be deeply involved in trusted activities in the enterprise conducted by the principals’.
As already noted, the respondent concedes that the judge erred by sentencing MF on an erroneous factual basis. The respondent submits, however, that no different sentence should be imposed. It is said that, although the factual errors ‘are not trivial or inconsequential’, they do not affect the validity of the judge’s findings about the nature and importance of his role or about the extent to which he was trusted by the principals.
More particularly, it is submitted that MF played ‘a vital role’ in transaction 1, notwithstanding the removal of the allegation that he personally delivered the meth oil to Weightman. Nor, it is submitted, did the erroneous reference to participation in cooking in transaction 2 alter MF’s ‘extensive and serious involvement’ in that transaction. According to the respondent, the agreed facts in the November opening showed that:
·MF was trusted to source alternative supplies of meth oil; and
·he was party to discussions relating to dealings in, and payment for, drugs.
Consideration
On the plea, the prosecutor contended that MF had played a ‘significant role’. That could hardly have been disputed given that, despite the amendments, the November opening still described MF as having been ‘the right-hand man’ of Oueida. On the agreed facts, he was trusted, variously, to:
·negotiate and coordinate the payment for, and collection of, methamphetamine;
·collect large amounts of cash;
·deliver large amounts of cash interstate to pay for methamphetamine;
·transport quantities of meth oil directly to the cook;
·be present, for lengthy periods, while the oil was test cooked; and
·deliver cooked methamphetamine.
The proper characterisation of this role, in our view, is that of trusted emissary. Importantly, there is no suggestion that MF was privy to any of the planning or decision-making of the principals, nor that he had any independent authority. (On the one occasion when MF placed an order for methamphetamine, he was constantly in touch with Oueida.)
Put shortly, MF was someone who could be relied on to do the bidding of the principals, acting on their behalf and at their direction. His cargo was, of course, of central importance to the operation — cash, oil and quantities of the drug in crystalline form — but that does not alter the essential character of his involvement. Put simply, MF did what he was told — and could be relied on to do so.
In order to assess MF’s criminality, therefore, it is necessary to understand both how he became involved as an obedient servant of Oueida and then why his involvement came so abruptly to an end after seven weeks. Answers to these questions were provided by the submissions of defence counsel on the plea, whose description of the relevant circumstances was not in any respect challenged by the prosecutor. (These were, in short, undisputed facts, albeit that no viva voce evidence was called to establish them.)
MF migrated to Australia in 2000 from Lebanon, in order to marry. There were two children of the marriage, but the relationship deteriorated and the couple separated in about 2008. Following the separation, MF had led a chaotic lifestyle, with a number of short term relationships and unstable accommodation. It was during this time that he met Oueida, who provided him with employment and accommodation.
According to the report of the forensic psychologist, Mr Newton, this ‘appears to have cemented a strong sense of loyalty on MF’s part towards Oueida’. Oueida subsequently gave MF financial assistance, following the breakdown of another relationship. This, said Mr Newton, ‘further cemented MF’s loyalty’ to Oueida. Subsequently, MF had become ‘more and more involved in Oueida’s business’.
According to the plea submission, MF had thus become ‘somewhat beholden’ to Oueida. MF started helping Oueida with various businesses and, according to the submission:
slowly but surely and sadly, he becomes a trusted friend of Oueida and therein lies his vulnerability in doing what one of the informants described as being a lackey … That’s what he was. He was a lackey for someone who is a much shrewder man with really evil intent …
This was, with respect, a cogent explanation of how MF came to play the role he did. It also explains how the relationship with Oueida could end so abruptly. Put simply, MF was only ever a temporary participant, with no ongoing stake in the operation.
As noted earlier, transaction 5 took place on 7 February 2011. Shortly afterwards, MF flew to Lebanon. According to defence counsel’s submission — again, unchallenged on the plea — MF left Australia for two reasons. The first was that ‘he no longer wanted to associate with Oueida and Weightman’. He acted to remove himself from the operation. The second was that his father was suffering from terminal cancer.
In these circumstances, it is hardly surprising that MF was both fully trusted and completely obedient to Oueida. Viewed objectively, he had much to be grateful to Oueida for and, unsurprisingly, felt a sense of loyalty to him, of which Oueida was no doubt aware. His involvement in the trafficking operation, though active and conscientious, was short-lived. Once this is understood, it becomes clear that MF’s role is to be viewed as that of a functionary rather than that of a senior operative.
We turn now to the significance of delay.
Delay
As noted earlier, MF was not charged until almost three years after his offending came to an end. The principals in the drug trafficking operation, on the other hand, were charged in April 2011. MF’s absence overseas between February 2011 and November 2012 appears to have had no bearing on this. As noted earlier, he was stopped at the airport on his return in November 2012 but not charged for another 15 months.
In the sentencing reasons, the judge noted that the prosecution had given no explanation for this delay.[10] All the prosecutor had been able to say on the plea was that ‘police … were involved in other matters and then when they got around to trying to — had to get advice about this matter’.
[10]Reasons [50].
As to the period between the charge (January 2014) and sentence (December 2015), his Honour concluded that
some of the delay is attributable to the workings of the criminal justice system, and some of the delay has been as a result of you contesting the charge and then choosing … rather late in the piece to offer to plead guilty to the charge with which I am dealing.[11]
[11]Ibid [52].
In our opinion, delay was a very significant mitigating factor in this case, for the reasons advanced by defence counsel on the plea. On the material before the Court, both of the sentencing issues to which delay can give rise — rehabilitation and fairness — arose for consideration.[12]
[12]See Merrett v The Queen (2007) 14 VR 392, 400 [35].
As to rehabilitation, counsel told the sentencing judge that, after MF’s return from Lebanon in 2012, he had remarried and resumed full time employment as a truck driver. He and his second wife had a child, and together cared for the four children from their respective prior marriages. MF’s wife gave evidence on the plea that he was a good father and a very hard worker, and did not associate at all with the people he had been involved with in 2010–11. There was no challenge to this evidence.
The process of rehabilitation began, it seems, almost as soon as the offending stopped, and it continued throughout the five year period up to the date of sentence. It was true, as the sentencing judge pointed out in his reasons,[13] that it was not until July 2015 that MF finally accepted responsibility for the offending, by pleading guilty to the trafficking charge. But it was of great importance, nevertheless, that he was engaged in productive employment and was in a stable family setting where he was taking appropriate parental responsibility.
[13]Reasons [58].
From a fairness point of view, the possibility of arrest and charge was hanging over MF’s head at least from the time when he was stopped at the airport in November 2012 on his return from Lebanon. Indeed, it would be surprising if he had not been aware of the arrest of the senior figures in the syndicate in April 2011. At all events, he was for some significant period living with the uncertainty as to whether he would or would not be charged.
It is unnecessary to explore in detail the sequence of events leading to the entry of a plea of guilty once the trial had commenced. Suffice it to say that, where an accused person exercises his right to contest a charge, the resultant delay will ordinarily be of less mitigating significance than where it is attributable to factors beyond his control.[14]
[14]Arthars v The Queen (2013) 39 VR 613, 621–2 [28]–[30].
On the plea, defence counsel cited the following passage from the judgment of Chernov JA (with whom Winneke P and Buchanan JA agreed) in R v Cockerell,[15] which was directly on point:
The courts have been recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels - see, for example, Miceli, Todd, R v Schwabegger, MWH, R v Blanco. First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent, A.J.A. has pointed out in Schwabegger, there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.[16]
[15](2001) 126 A Crim R 444.
[16]Ibid 447 [10] (citations omitted) (emphasis added)
Had MF been arrested and charged promptly, as the principals were, the sentencing considerations would — obviously enough — have been entirely different. In the event, however, MF fell to be sentenced almost five years after his brief period of trafficking activity had come to an end. One of the most important sentencing considerations is protection of the community against the risk of re-offending.[17] In the circumstances described, that objective was much more likely to be achieved, in our view, by enabling MF’s very positive rehabilitative progress to continue.
[17]Boulton v The Queen [2014] VSCA 342 [68].
Defence counsel also referred to Bourne v The Queen,[18] in which the court said:
[N]o amount of delay, and no amount of rehabilitation during the period of delay, could alter the seriousness of the offending. But the argument from delay is of quite a different character. What makes delay such a ‘powerful mitigating factor’ in a case such as the present is that considerations of rehabilitation and fairness weigh heavily in the sentencing synthesis, mitigating the punishment which the seriousness of the offence might otherwise warrant.[19]
[18][2011] VSCA 159.
[19]Ibid [30].
In our opinion, the powerful delay considerations in the present case called for a ‘tempering of the punitive purposes of punishment’, in the way suggested by the Western Australian Court of Criminal Appeal in R v Duncan:
[W]here, prior to sentence, there has been lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation. [20]
[20](1983) 9 A Crim R 354, 356.
Conclusion
For these reasons, in our view, a wholly suspended sentence will appropriately serve all the purposes of punishment, in particular the public interest in community protection.
There was much debate on the plea, and on the appeal, about the extent to which the sentences imposed on Oueida and Weightman, and on three lower-level participants in the trafficking activity, informed and constrained (for reasons of parity) the sentence to be imposed on MF. It is sufficient for present purposes to note that Oueida was sentenced to eight years and six months’ imprisonment on three charges (manufacturing/trafficking in a marketable quantity — 25 year maximum); Weightman was sentenced to eight years’ imprisonment for trafficking in a commercial quantity (25 year maximum); and each of the three lower-level participants received a non-custodial order (12 month CCO; release on recognisance; and wholly-suspended sentence respectively).
Given that our conclusion rests on matters peculiar to MF’s case, it is unnecessary to examine in any detail the circumstances relating to the other offenders. Bearing in mind that — as Priest JA pointed out in McNaughton v The Queen[21] — sentences of three to four years are ‘not at all unusual’ for trafficking simpliciter, we consider that the appropriate sentence in the present case is three years’ imprisonment, wholly suspended for two years (save for the time served in custody between the date of sentence and the grant of bail).
[21][2014] VSCA 174 [58].
As is required under s 6AAA of the Sentencing Act 1991 we declare that, but for the plea of guilty, we would have resentenced MF to four years’ imprisonment with a non-parole period of two years and six months.
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