Naim v Regina

[2006] NSWCCA 289

CITATION:	Naim v Regina [2006] NSWCCA 289
HEARING DATE(S):	5 September 2006
JUDGMENT OF:	Giles JA at 23; Sully J at 1; Latham J at 24
EX TEMPORE JUDGMENT DATE:	09/05/2006
DECISION:	Leave to appeal against sentence granted; Appeal against sentence dismissed
LEGISLATION CITED:	Drug (Misuse and Trafficking) Act 1985 Crimes (Sentencing Procedure) Act 1999 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW)
CASES CITED:	Queen v Way (2004) 60 NSWLR 168 Regina v Beavan: unreported, NSWCCA 22 August 1991
PARTIES:	Fares Naim Regina
FILE NUMBER(S):	CCA 2006/714
COUNSEL:	P. Barrett - Crown S. Hodges (solicitor) - Appellant
SOLICITORS:	S. Kavanah - Crown S. Hodges - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0397
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	27 October 2004

2006/714

GILES JA
SULLY J
LATHAM J

5 September 2006

FARES NAIM v REGINA

Judgment

1 SULLY J: Mr Fares Naim applies for leave to appeal against sentences of imprisonment passed upon him in the Parramatta District Court on 27 October 2004.

2 On 3 June 2004 the applicant was presented before the Parramatta District Court upon AN indictment containing two counts. Count 1 of the indictment charged the applicant with having supplied, on 14 May 2003, a prohibited drug, namely, methylamphetamine. An offence of that character contravenes S25(1) of the Drug (Misuse and Trafficking) Act 1985 and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 15 years. Count 2 charged the applicant, jointly with another name co-offender, of having supplied on 29 May 2003 not less than the large commercial quantity prescribed for the purposes of the relevant legislation in respect of the prohibited drug methylamphetamine. An offence of that character contravenes S25(2) of the Drug (Misuse and Trafficking) Act 1985 and it attracts upon conviction a statutory maximum penalty, relevantly, of imprisonment for life.

3 An offence of that character is affected also by the statutory scheme of standard non parole periods, which is to be found in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The standard non parole period prescribed within the ambit of that scheme for a contravention of S25(2) is a standard non parole period of imprisonment for 15 years.

4 The applicant pleaded guilty to both of the charges thus preferred against him. He asked that there be taken into consideration in sentencing a further offence, which was a contravention, also on 14 May 2003, of s10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW), the substance of the offence being the supply of a restricted substance, namely, ketamine.

5 The learned primary Judge dealt with the applicant as follows: in respect of the offence covered by count one in the indictment his Honour passed a sentence of two years’ imprisonment passed as a fixed term to date from 29 May 2003 and to expire on 28 May 2005. His Honour provided for a fixed term because of the sentence that he passed in relation to the offence charged in count two of the indictment. The sentence passed in respect of count two took into account the additional matter which the applicant had asked to be considered and the end result of what was done in connection with count two, understood in that way, was the passing of a sentence of imprisonment for nine years comprising a non parole period of six years to date from 29 May 2003 and to expire on 28 May 2009 with an additional term of three years to date from 29 May 2009 and to expire on 28 May 2012.

6 One point only is taken in support of the present application. It is a point related to the operation, in the context of the present case, of the statutory scheme of standard non parole periods of which I have earlier spoken. Because of the narrow focus of the argument thus advanced it is not necessary, I apprehend, to embark upon a discursive canvass of the relevant objective and subjective features of the applicant’s case. They are carefully canvassed by the learned primary Judge and it is not now submitted that his Honour fell into any error, except that into which it is suggested his Honour fell by reason of the way in which he factored into his process of reasoning the standard non parole period scheme.

7 That said, it is, I apprehend, timely to say at once two things. The first is this: that it will be seen from the pattern of the sentencing adopted by his Honour that his Honour made both sentences wholly concurrent. I observe that this gave the applicant, in my opinion, a significant benefit to which, on a strict view, I would have thought he was not entitled. The two offences did not arise, it seems to me and looking at them in a realistic kind of way, out of one particular criminal enterprise. There were two discrete supplies of a prohibited drug; the second of them an extremely serious one involving, as I have said, a barefaced transaction involving 1244.3g of the prohibited drug.

8 The second thing to be observed is that the offences were committed, as has been pointed out, on two separate days in May 2003. It is relevant to understand that on 1 April 2003 in the Central Local Court the applicant had been dealt with in relation to two offences: one offence being that of possessing a prohibited drug; the other being an offence of goods in custody, the goods not being a motor vehicle but a sum of money. In relation to the first of those offences he was fined the sum of $400. In relation to the second of them he was given the leniency of a s9 bond of six months’ duration to commence, as I infer, on 1 April 2003. It thus appears that on the dates of the offences now in point the applicant was at liberty pursuant to that s9 bond: indeed, he was barely a month into it in relation to the first matter; and a bare couple of months into it in relation to the second matter.

9 There is no need to dilate upon the extent to which the existence of the bond aggravates the offences for which the applicant stood for sentence in the District Court. It is, however, worthwhile saying, consistent with ample authority on the point, that a s9 bond is not given to anybody just for the asking. It is given, if at all, upon the basis of an assurance given by the beneficiary of the bond to the relevant Court that he has understood the relevant breaches of the law committed by him and is resolved to commit no further breaches, at least during the currency of the bond which is extended to him. It cannot be successfully contended that a person of normal intelligence cannot grasp that fact and if, in breach of the obligations of the bond voluntarily accepted by him he commits further breaches of the law at all, let alone further breaches of the law as serious as the ones with which this appeal is concerned, then he has no just grievance if the way in which he is dealt with for those further breaches reflects in a serious and practical way the breaches of the bond.

10 All that said, it is relevant to turn now to the one particular point upon which the application has focused

11 When an offence attracts the operation of Pt 1A of the statutory scheme, the first matter that needs to be considered by the sentencing Judge is whether the case is seen by that Judge as appropriate for the use of the standard non parole period prescribed in the relevant table forming part of Pt 1A. The sentencing Judge is not compelled, more or less as a matter of routine, to set a non parole period at the level of the standard non parole period prescribed by statute. What the Judge is required to do is to make plain on the face of his reasons for sentence why he has, on the one hand increased, or on the other hand reduced, the non parole period actually to be set by him.

12 In this matter and in relation to count two the learned primary Judge expressed the view that the objective seriousness of the count was at the lower end of seriousness for offences of the kind in point. His Honour gave three particular reasons for that view. First, that the quantity involve was at what his Honour was satisfied to be:

"the lower end of the range of large commercial quantity……… and bearing in mind the fact that the range is open-ended and potentially includes tens and hundreds of kilograms."

Secondly, that despite the existence of telephone taps there had been no evidence produced to suggest that the transaction of 23 May had been other than what his Honour described as a " one-off deal". Thirdly, that his Honour was satisfied that the applicant stood to gain in the vicinity of $5,000, which his Honour described as being:
"a relatively small amount in the scheme of things for offences involving large commercial supply."

13 Having decided that the case was one in which it would be proper to depart from the standard non parole period of imprisonment for 15 years, his Honour was then obliged to proceed in the way indicated by the decision of a differently constituted bench of this Court in Queen v Way (2004) 60 NSWLR 168. His honour observed, in my respectful view correctly, that having decided to depart from the standard non parole period prescribed by statute, that standard non parole period nevertheless remained on foot as:

"a reference point or guide post along with other relevant extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty."

14 This is precisely in line with the guidance given by the decision of this Court in Way itself.

15 The essence of the argument put in support of the present application is that the primary Judge's sentencing discretion miscarried for the reason that his Honour, having decided to depart from the standard non parole period as prescribed by statute, nevertheless gave that matter a weighting in the overall scheme of things which had a distorting, and ultimately vitiating, effect upon the remainder of his Honour's process of reasoning towards the conclusion that the appropriate sentences were those to which I have earlier referred.

16 It is conceded frankly that the case in that respect is really one of latant error rather than of patent error: that is to say, that the existence of a vitiating flaw is not to be found in anything precisely said by the learned primary Judge but is to be found, rather, by looking at the end result on its face, comparing that end result with what are submitted to be available and legitimate statistical comparisons.

17 The validity of that submission necessarily depends upon the validity of what are advanced as the relevant statistical comparisons. Reference has been made to the JIRS statistics and that reference has its proper place in the present scheme of things. The problem with the reference, of course, is a constantly recurring problem with which this Court is all too familiar: that the statistics themselves, while they might have some particular indicative value, really have not very much more value unless they are bolstered by some more particular reference to an analysis of individual cases drawn from the body of statistics and capable of being regarded on a reasonable view as providing in truth a fair standard of comparison both as to objective criminality and as to relevant subjective facts. In my view what has been said about the JIRS statistics cannot simply be dismissed as having no value, and I do not take that approach to it. I do think, however, that what has been put before the Court can have, as I have said, nothing more than the very broadest kind of indicative value.

18 The plain facts of this matter with which the applicant really has to come to grips are these: the voluntary conduct of the applicant in respect of the count two offences put him into a situation where he was facing by statute a possible statutory maximum penalty of imprisonment for life. Nobody would suggest for a moment that the objective criminality of the offence, especially when balanced out against the relevant subjective features, could possibly justify the maximum sentence or anything like it. My point in referring to the maximum sentence is that the count 2 offence is beyond peradventure in that statutory band of offences for which the statutory maximum penalty is as great as one of imprisonment for life. That is not a factor that can simply be brushed aside by a primary sentencing Judge. Neither can such primary sentencing Judge brush aside entirely the will of the Parliament as expressed in relation to standard non parole periods, even in a case where the Judge has decided for good cause shown to adopt in fact a non parole period less than that prescribed standard non parole period. As Hunt CJ at CL (as he then was) explained in Regina v Beavan: unreported NSWCCA 22 August 1991, sentencing is not a mathematical science. Sentencing is an art which requires the bringing to account in an intuitively synthesised way of all of those matters, - objective criminality, subjective features, relevant statutory provisions, - which, if meticulously dissected one by one, might bring about in a particular case a particular result that could not be justified by a proper synthesis of all of those facts.

19 It seems to me that when one reads entirely the remarks on sentence, it cannot be said that the learned Judge erred in his approach to that exercise of a proper and sensible synthesising of the relevant facts, and certainly not in relation to his Honour's approach to the standard non parole period.

20 I have already remarked upon the fact that the relevant offence was committed while the applicant was on conditional liberty pursuant to a bond. There can be no question that the offence was a planned criminal activity. It can be allowed that the sentences imposed were severe sentences; but the offences were severe sentences. Courts of the highest authority have said for more years than one can now readily quantify, that it is the will of the Parliament that all illicit trafficking in drugs should be put down, including the kind of trafficking which is the concern of the two charges here in point, but in particular the charge preferred by count 2.

21 The point taken in support of the application has, in my opinion, not been made good; but I accept that it was a serious point of law deserving of consideration, and for that reason I would grant the application for leave to appeal against the sentence; but I would dismiss thereupon the substantive appeal.

22 I propose that leave to appeal against sentence be granted, but that the appeal against sentence be dismissed.

23 GILES JA: I agree.

24 LATHAM J: I agree.

25 GILES JA: That will be the order.

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