Quzag v The Queen (No 4)
[2016] ACTCA 27
•22 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Quzag v The Queen (No 4) |
Citation: | [2016] ACTCA 27 |
Hearing Date: | 2 November 2015 |
DecisionDate: Reasons Date: | 2 November 2015 22 July 2016 |
Before: | Refshauge, Burns and Wigney JJ |
Decision: | 1. The appeal is allowed. 2. The sentence of 12 February 2015 is set aside. 3. Mohanad Quzag is sentenced to imprisonment for 22 months to commence on 28 September 2015, reduced from 24 months for his plea of guilty. 4. On 27 May 2016 the sentence is suspended. 5. Mohanad Quzag is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 2 years with a probation condition that he be under the supervision of the Director-General or her delegate for 2 years or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – cultivating a trafficable quantity of cannabis – manifest excess – comparable cases – consideration of sentences for more serious offences – different subjective circumstances – parity – roles of co-offenders differed – sentence contrary to law – combination sentence – full time custody and periodic detention – periodic detention more lenient than full time custody – re-sentencing |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 11, 29(1), 29(1)(a), 33, 33(1)(za) Criminal Code 2002 (ACT), ss 616(3), 616(5) |
Cases Cited: | Anderson (1987) 32 A Crim R 146 Azzopardi v The Queen (2011) 219 A Crim R 369 |
Parties: | Mohanad Quzag (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr M Kukulies-Smith (Appellant) Mr J White SC (Respondent) |
| Solicitors Kamy Saeedi Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 12 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 12 February 2015 Case Title: R v Mohanad Quzag Citation: [2015] ACTSC 52 |
Refshauge and Burns JJ:
For about two months between 27 July and 10 November 2012, the appellant, Mohanad Quzag, attended, on an almost daily basis, at a residence in Macgregor in the Australian Capital Territory, for the purpose of tending a crop of 98 cannabis plants.
During the execution of a search warrant on the premises on 10 November 2012, police located and seized the cannabis plants. Forensic investigation identified fingerprints of Mr Quzag in the premises and DNA that matched his DNA on items found in the premises.
On 11 November 2012, Mr Quzag was located by police, searched and a key to the Macgregor premises was found in his possession.
Police executed a search warrant on Mr Quzag’s premises on 9 January 2013 and he was arrested. He was subsequently charged with cultivating a traffickable quantity of cannabis.
He pleaded not guilty in the Magistrates Court and, on 22 August 2013, was committed to this Court for trial. On 26 November 2014, however, he pleaded guilty to the offence.
On 12 February 2015, he was sentenced to 28 months imprisonment, reduced from 30 months for his plea of guilty, to commence on that day and to be served as to the first 6 months by full-time imprisonment, the next 8 months by periodic detention to commence on 12 August 2015 and the balance of the term to be suspended from 12 April 2016 with a Good Behaviour Order for 14 months.
Mr Quzag has now appealed against the sentence.
On 2 November 2015, the Court upheld the appeal and re-sentenced Mr Quzag and indicated that it would give reasons later. These are our reasons.
The Notice of Appeal
The Notice of Appeal was filed on 6 March 2015 and amended on 10 April 2015. As amended, the grounds of the appeal are:
a)The sentence is manifestly excessive.
b)The sentence fails to adequately accord parity with respect to the co-offenders.
c)The learned sentencing Judge erred by imposing a sentence contrary to law.
Particulars
(i)The sentence impermissibly included both full time detention and periodic detention contrary to s 29(1)(a) of the Crimes (Sentencing) Act 2005.
The facts of the offence
A general outline of the facts is set out above (at [1]-[5]). It is appropriate to deal with these further. The primary Judge made findings about the factual circumstances of the offence as follows.
The cannabis, the subject of the offence, was grown by a somewhat sophisticated hydroponic method in a house owned by the parents of Mr Quzag’s girlfriend. There were, in the premises, lamps, shade, an irrigation system and an air filter system.
When police executed the search warrant on the premises, they seized the 98 plants, which is at the high end of the range of traffickable quantity for cannabis plants; the next range, a commercial quantity, is 100 plants or more.
Mr Quzag had attended the premises on an almost daily basis from 27 July to 22 October 2012 and was recorded by audio surveillance from the listening devices installed under warrant in his premises. Several conversations were heard consistent with him cultivating the crop.
Her Honour found no evidence to suggest that Mr Quzag was an organiser of the cultivation, but that his role as caretaker of the crop was “crucial to such an operation”. Her Honour also found that he committed the crime because he had drug debts from which she inferred that he would gain a benefit from the operation, whether financial or by receipt of cannabis or in some other way.
Subjective circumstances
Mr Quzag was 20 years old at the date of the offences. His parents were separated, but he had a stable and supportive relationship with his mother and his siblings.
He had been in a relationship with the daughter of the owners of the subject premises for about five years.
He had what was described, at [19], as “some involvement with the justice system” but no involvement with the criminal courts either before or after the offending.
In 2010, Mr Quzag was diagnosed with bone cancer in his leg and was required to undergo surgery, which did not result in full recovery of the use of his leg. As part of his treatment, he underwent chemotherapy but used cannabis to relieve his pain and ameliorate the effects of his chemotherapy. He became a heavy user of cannabis, which was related to him experiencing depression and anxiety.
He has, however, rehabilitated himself from the use of cannabis and has apparently not used the drug since January 2013. He has, it was reported by the Court Alcohol and Drug Assessment Service (CADAS), demonstrated a high level of commitment to treatment and recovery.
Mr Quzag completed Year 11 at school and was thereafter employed until he was diagnosed with cancer.
The primary Judge described him, at [27], as “emotionally immature” and as displaying “limited insight into his actions”, seeking to blame others for his predicament.
The offence
Cultivating a trafficable quantity of cannabis is an offence against s 616(5) of the Criminal Code 2002 (ACT), which attracts a maximum penalty of 1000 penalty units (that is, at the time, a fine of $110,000) and imprisonment for 10 years.
Relevantly in this appeal, that is to be contrasted with the maximum penalty for cultivating a commercial quantity of cannabis which is 2500 penalty units (that is a fine, at the time, of $275,000) and imprisonment for 25 years (s 616(3) of the Criminal Code 2002).
As the High Court pointed out in Muldrock v The Queen (2011) 244 CLR 120 at 133; [31]:
The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence.
(footnote omitted)
Manifest excess
The first ground of appeal is that the sentence imposed was manifestly excessive.
The test for whether a sentence is manifestly excessive is well-known. Recently, this court summarised the principles in Dalton v The Queen [2015] ACTCA 48 at [18], where the court said:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
·Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
·The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
·It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
See also R v Campbell [2010] ACTCA 20 at [32]-[35], where the Court referred, with approval, to what were said to be the helpful comments of King CJ, with whom White and Mohr JJ agreed, in R v Morse (1979) 23 SASR 98 at 99:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
The applicant submitted, correctly, that the primary Judge referred to a number of comparable cases, all of which involved sentences, however, for the more serious offence of cultivating a commercial quantity of cannabis, which attracts a much more serious maximum penalty.
Her Honour did refer to that fact but it was not clear how these cases could, in the circumstances, be said to be comparable. The sentencing principles that might be gained from consideration of such decisions were not articulated.
There is no doubt that a careful consideration of the cited decisions leads to the conclusion that general deterrence plays a significant part in the sentence for offences of cultivating cannabis. The cases also stand clearly for the proposition that, nevertheless, there is a place for the amelioration of severity for the particular subjective circumstances of an offender where appropriate.
The difference in the maximum penalties is significant and due weight must therefore be given to the difference in seriousness between the two offences which must be reflected in the relative sentences to be imposed for offenders committing the different offences.
Mr Quzag was a significant participant in the cultivation; indeed, he was central to the operation. Her Honour, however, held that he was not one of the organisers. He was, however, to be rewarded with a benefit.
Mr Quzag was, nevertheless, a young man at the time of the offending. That he was not a minor is not necessarily to deprive him of the leniency that is accorded to young people, especially those who, as her Honour found he was, are still immature. As Hunt CJ at CJ said in Gordon (1994) 71 A Crim R 459 at 469, of a 19 year old, “his youth is not to be disregarded in the sentencing process”.
Mr Quzag had become addicted to cannabis when using it to address his pain and chemotherapy, which somewhat moderates the culpability of his use. He had also, her Honour found, made significant efforts at rehabilitation which appear to have been successful. [Redacted for legal reasons]
This is to be contrasted with sentences for the more serious offence of cultivating a commercial quantity of cannabis in R v Quan; R v Zhang [2014] ACTSC 385, where Mr Quan was a “resident caretaker”, the primary caretaker, but not an organiser, a rather similar role to that of Mr Quzag. In that case, there were 214 plants cultivated. Mr Quan was considerably older than Mr Quzag, being about 45 or 46 years old, but he had no prior convictions and came from a relatively impoverished background. He was sentenced to two years and three months imprisonment, reduced from 3 years for his early plea of guilty. It was a more serious offence than committed by Mr Quzag and Mr Quan had fewer mitigatory subjective circumstances.
In R v Li; R v Jin [2014] ACTSC 304, Mr Li rented a house in another name in which he established a cultivation of 371 cannabis plants, involving a growing arrangement of heaters, fans, timers and hosing. The primary Judge found, at [8], that Mr Li’s role in the operation “was not entirely clear” but that he was “undertaking the day-to-day cultivation and ... [was] the principal occupant of the premises”. He was described as playing a “substantial role”. Mr Li was 48 years old and her Honour inferred that the venture would be a source of income. The cultivation, her Honour found, had been conducted over 3 months.
Mr Li was sentenced to imprisonment for two years and seven months, reduced from three years and four months for his plea of guilty but the period of full-time custody was significantly reduced for Mr Li’s terminal health condition.
The offence was more serious than the one committed by Mr Quzag and the role Mr Li played somewhat more significant. Apart from his illness, Mr Li did not have the same mitigatory subjective circumstances as Mr Quzag.
In R v Nikro [2015] ACTSC 231, Mr Nikro was initially involved with two significant cannabis growing operations in two Canberra suburbs. In one, 105 cannabis plants were found and, in the other, there were 99 plants. Mr Nikro was to receive 10 percent of the proceeds from the first crop and 25 percent of the proceeds from the second crop.
Mr Nikro helped set up the hydroponic system in the first house and occasionally maintained it. Mr Nikro said that he “did more work on” the second crop.
Mr Nikro was 29 years old with a prior criminal history including being convicted of cultivating a traffickable quantity of cannabis, for which he was sentenced to 12 months imprisonment which was fully suspended. He graduated from the Solaris Therapeutic Community Program in the Alexander Maconochie Centre in 2014.
He was sentenced to 15 months imprisonment for the offence of cultivating a commercial quantity of cannabis and 15 months imprisonment, cumulative as to 8 months, for cultivating a traffickable quantity of cannabis. The sentences were reduced by 20 percent for the plea of guilty. The sentence was complicated because Mr Nikro was also sentenced for trafficking in cocaine.
It appears that, while Mr Nikro did not involve himself in the actual tending of the crops to the extent that Mr Quzag did, Mr Nikro did tend the crops and was an organiser of the operation who had a direct financial benefit in the outcome. He did not have the same mitigatory subjective circumstances as Mr Quzag.
Other cases were referred to in submissions which showed that significantly lesser sentences have been imposed for the offence of cultivating a traffickable quantity of cannabis and similar sentences for cultivating a commercial quantity of cannabis. As the High Court has observed in Wong v The Queen (2001) 207 CLR 584 at 605; [57], however, other sentences are not a precedent for any sentencer.
Nevertheless, current sentencing practice is mandated as a consideration to be taken into account under s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). In addition, in Barbaro v The Queen (2014) 253 CLR 58 at 74; [41], the plurality pointed out that “in seeking consistency, sentencing judges must have regard to what has been done in other cases”. Their Honours continued, “The history stands as a yardstick against which to examine a proposed sentence”.
In this case, there were significant subjective circumstances which, while not outweighing the objective seriousness of the offence, were required to be taken into account and which were properly mitigatory. The comparable cases confirm that such subjective circumstances are relevant and are mitigatory. The comparable cases also confirm that the objective seriousness does require consideration of a term of imprisonment to give effect to the need for general deterrence and to mark the seriousness of the offending.
In our view, having regard to the maximum penalty for the offence, the objective seriousness of the participation in the offence by Mr Quzag, his subjective circumstances and sentencing practice, the sentence was manifestly excessive.
In our view, the starting point should have been two years imprisonment, reduced to 22 months for his plea of guilty.
Parity
Parity is, along with consistency, an important value in sentencing. As Dawson J, with whom Wilson J agreed, said in Lowe v The Queen (1984) 154 CLR 606 at 623:
There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been don [sic].
(footnotes omitted)
There were, in this case, three co-offenders, Yasin Al Naqib, Nabel Quzag (brother to Mr Quzag) and Mustapha Negro.
Mr Al Naqib was sentenced in the Magistrates Court for the same offence, namely cultivating a taffickable quantity of cannabis. He was sentenced to a Good Behaviour Order for 18 months with a community service work condition of 208 hours.
His role, however, was very limited. He attended the premises on three occasions. While at the premises, he moved equipment and tended the plants with water and fertiliser. His only reward was overnight accommodation. He was 25 years old with a minor criminal record. He entered an early plea of guilty.
Mr Negro was sentenced in the Supreme Court but for aiding and abetting Mr Quzag in the cultivation of the traffickable quantity of cannabis. He was sentenced to 10 months imprisonment reduced from 12 months for his early plea. The sentence was wholly suspended and a Good Behaviour Order made for 18 months.
Mr Negro also played a limited role in the enterprise. He did attend on 21 occasions and, on one occasion was there for some hours helping Mr Quzag move some 40 plants around. There was no evidence of any profit obtained from his activities. Mr Negro was also 21 years old at the time of the offending with a minor criminal record, but being sentenced for dishonestly obtaining property by deception to a Good Behaviour Order which he breached. He was a consumer of cannabis and, although offering to become abstinent, had not done so by the time he was sentenced.
Although the sentence imposed on Mr Negro was lenient, his involvement was much less than that of Mr Quzag and entitled him to a lesser sentence.
Mr Nabel Quzag appears to have played the most limited role of all participants. He attended the house on only 6 occasions and was also charged with aiding and abetting his brother, Mr Quzag. He only entered the house on 5 occasions. On two of the occasions when he entered the house, he appears only to have taken items to the garage. His involvement was equated generally to that of Mr Al Naqib by the primary Judge. He also entered an early plea of guilty.
He was 20 years old at the date of the offence with a minor criminal history. He was employed full-time in the building industry. He denies any substance abuse, though urinalysis did throw that denial into some doubt.
Having regard to these matters, parity with Mr Al Naqib, who had somewhat better subjective circumstances, meant that he was sentenced by making a Good Behaviour Order for 2 years with a condition to perform 220 hours of community service.
It is clear that, while the court cannot ignore the sentences imposed on the co-offenders, there is, in this case, no real issue of parity because of the significant differences, particularly in their participation in the criminality, their rewards from their involvement and in their differing subjective circumstances.
Her Honour, on sentencing Mr Quzag, noted this matter and expressly gave regard to the question of parity. Her Honour said at [16]:
The offender’s role was different from that of the co-offenders. The attendance of Mr Al Naqib and Mr Nabel Quzag was only occasional, and Mr Negro often attended in the company of the offender. When sentencing Mr Negro and Mr Nabel Quzag, I characterised the degree of participation or role of each of those offenders as ‘towards the lower end, particularly in the case of Mr Nabel Quzag’. The same cannot be said of this offender.
There can be no criticism of this finding. That means that this ground of appeal is not made out.
Sentence Contrary to Law
Her Honour, in sentencing Mr Quzag, made a combination of a sentence of imprisonment, consisting of a period of full-time custody, followed by a period of periodic detention and then a suspended sentence.
Section 29(1) of the Crimes (Sentencing) Act, as it was at 12 February 2015, the date of sentencing, however, limited the combination sentence so that it may not include both full-time custody and periodic detention. It provided relevantly:
(1)If the offence is punishable by imprisonment, the court sentencing the offender may impose a sentence (a combination sentence) consisting of 2 or more of the following orders:
(a)an order sentencing the offender to imprisonment (as full-time detention or periodic detention, but not a combination of these kinds of imprisonment).
Her Honour was, unfortunately, not assisted by either counsel who did not point out that error to her Honour.
This requires the sentence to be set aside. The respondent, however, submitted
that the easiest way to re-sentence is simply to convert the period detention component of the purported combination sentence to full time custody. Two sevenths of eight months is just over two and a quarter months, so an appropriate conversion would be an additional nine weeks of full time custody to be added to the six months already ordered.
While, perhaps, that may be the easiest way to re-adjust the error, it is not necessarily the just or appropriate way. There are considerations other than the number of days of detention that inform a court’s decision to direct that a period of imprisonment be served by periodic detention which a convenient mathematical conversion would not recognise.
A sentence of periodic detention is a sentence of imprisonment. It may only be imposed if the offender is first sentenced to imprisonment: s 11 of the Crimes (Sentencing) Act 2005, as at 12 February 2015. It is, however, “unquestionably and inescapably more lenient when compared to full-time custodial sentences”: R v Niga (New South Wales Court of Criminal Appeal, Gleeson CJ, Kirby P and Ireland J, CCA 60845 of 1993, 13 April 1994, Unreported) at p 8.
Nevertheless, it is a sentence of some severity and will appear on the record of Mr Quzag as a sentence of imprisonment. It also renders him liable to serve the term of imprisonment in full-time custody if he fails to attend, attends late or attends under the influence of alcohol or drugs or otherwise (automatically if that happens without approval on two or more occasions) or if he breaches any of the other obligations. It is, like a suspended sentence, certainly not a sentence without punishment. See Elliott v Harris (No 2) (1976) 13 SASR 516 at 527. Indeed, in R v Creighton [2011] ACTCA 13 at [50], this Court acknowledged the deterrent effect of periodic detention.
As to the suggested equivalence of days in custody in periodic detention and days in full-time custody, Kirby P pointed out in Anderson (1987) 32 A Crim R 146 at 155:
Although it is conventionally said that this is equivalent to two days’ imprisonment I regard it as substantially more. It involves the disturbance of three actual days of the prisoner’s life. Furthermore it involves, for the period of the order, the loss of the great part of the weekend which the prisoner would otherwise be able to spend with his family and friends and pursuing his recreations or entertainment.
Despite Mr Quzag’s absence of current employment, the deprivation of liberty at the weekends is a significant curtailment on those activities which can only be enjoyed then.
In addition, it is relevant to accept that the continuous deprivation of liberty in full-time custody is not linear in its seriousness. Hulme J in R v Henry (1999) 106 A Crim R 149 at 209; [328] regarded
ten years imprisonment as more than twice as severe as a five year sentence.
See also Clinch v The Queen (1994) 72 A Crim R 301 at 306; R v Hopkins (2008) 22 NTLR 125 at 130; [16]; Lu v The Queen (2008) 190 A Crim R 109 at 122; [59]; Azzopardi v The Queen (2011) 219 A Crim R 369 at 388; [62].
For these reasons, the mathematical approach of the Crown in this case should not be accepted.
The preferable option, had this been the only error in the sentence, would have been to refer the matter back to the primary Judge for reconsideration of the sentence.
Given, however, the findings we have made as to ground 1, that is not appropriate. Accordingly, the Court must consider an appropriate sentence in substitution for the whole sentence to be imposed.
Disposition
In our view, having regard to the two grounds of appeal that have been upheld, we would re-sentence Mr Quzag to imprisonment for 22 months, the first 8 months of which are to be served by full-time custody and the balance suspended with a Good Behaviour Order for 2 years.
Given that Mr Quzag has already spent some time in custody before he was granted bail, the sentence should be directed to commence having regard to that period of custody.
In the meantime, Mr Quzag’s bail should be revoked and the orders take into account the period of custody consequent upon the revocation of bail.
In re-sentencing Mr Quzag, we have had regard to the purposes of sentencing in s 7 of the Crimes (Sentencing) Act. In this case, general deterrence plays a prominent role, as does denunciation and punishment.
Given his abstinence from cannabis use and his commitment to the treatment for abuse of drugs that he has shown, specific deterrence does not need to play a large part in the sentence.
We have regard to the objective seriousness of the offences. Although the quantity of an illegal drug is not the chief factor in sentencing (Wong v The Queen at 609; [67]-[70]), it is not irrelevant (Bezan (2004) 147 A Crim R 430 at 438; [34]), and the high number of plants makes the offence, together with the sophisticated nature of the operation, the financial benefit from the operation for Mr Quzag makes the offence, objectively a serious one. His level of participation and responsibility also makes the offence a serious one.
I have regard to the matters required to be taken into account under s 33 of the Crimes (Sentencing) Act which, so far as we know them, are set out in these reasons. There are significant subjective factors that are mitigatory.
These include Mr Quzag’s youth and his achieved reform. He also pleaded guilty but it was a late plea which does not attract a significant discount but does show some remorse and the facilitation of the course of justice.
As Hall J pointed out in R v Godden [2005] NSWCCA 160 at [28], the cultivation of prohibited plants where there is a profit motive will require a term of imprisonment. That must apply in this case.
It was for these reasons that we joined in the decision of the Court to uphold the appeal and re-sentence Mr Quzag.
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Refshauge and Justice Burns. Associate: Date: 21 July 2016 |
Wigney J:
Mr Quzag appealed against a sentence imposed on him in respect of the offence of cultivating a trafficable quantity of cannabis plants contrary to s 616(5) of the Criminal Code 2002. The facts, procedural background, sentence imposed and grounds of appeal are outlined in the joint judgment of Refshauge and Burns JJ. On 2 November 2015, the Court upheld Mr Quzag’s appeal and resentenced him.
My reasons for upholding the appeal differ slightly from their Honours’ joint judgment. At the hearing of the appeal, the Crown conceded that Mr Quzag’s appeal must be upheld because the sentence imposed on him by the learned sentencing judge was contrary to s 29(1)(a) of the Crimes (Sentencing) Act 2005 because it included both full time detention and periodic detention within a combination sentence. That concession was properly made. There was no doubt that the sentence imposed was contrary to law. Accordingly, it was necessary for Mr Quzag to be resentenced.
Despite the Crown’s concession that the appeal must be allowed and that Mr Quzag must be resentenced, argument was heard in relation to Mr Quzag’s two other grounds of appeal: that the sentencing imposed was manifestly excessive and that the sentence infringed the parity principal.
There was no merit in the appeal ground relating to the parity principal for the reasons jointly given by Refshauge and Burns JJ.
Their Honours have found that the sentence imposed was manifestly excessive. I have, with respect, some doubts that it can be concluded that the sentence was manifestly excessive. The offence was objectively very serious. It carried a maximum penalty of ten years imprisonment. The role played by Mr Quzag in the criminal enterprise responsible for cultivating the cannabis plants was significant and crucial. The quantity of cannibals plants involved was towards the top end of the trafficable range. The need for general deterrence was a significant factor in sentencing for the offence.
It may be accepted that Mr Quzag’s personal circumstances warranted a degree of leniency in the sentence imposed. Some may consider that, in light of those circumstances, the sentence imposed on Mr Quzag by the sentencing judge was somewhat harsh. In my view, however, Mr Quzag’s personal circumstances do not compel a finding that the sentence imposed was unreasonable or plainly unjust.
Mr Quzag relied on sentences imposed in three supposedly comparable cases to demonstrate that the sentence imposed on him was manifestly excessive. Those sentences are referred to in the joint judgment of Refshauge and Burns JJ. Even accepting that there may be some similarities between the facts and circumstances of those cases and the facts and circumstances in Mr Quzag’s case, I doubt that the sentences imposed in that small selection of cases is capable of demonstrating that Mr Quzag’s sentence was manifestly excessive for the reasons given by the New South Wales Court of Criminal Appeal in Frahm v R [2014] NSWCCA 10 at [19] (Hoeben CJ at CL, Schmidt J and Barr AJ agreeing); referred to in Dalton v The Queen at [19].
It is apparent from the sentence imposed on Mr Quzag consequent upon the upholding of his appeal that the members of this Court would have imposed a different sentence on Mr Quzag to that imposed by the learned sentencing judge. It is well-established, however, that such a circumstance does not establish that the sentence imposed by the sentencing judge was manifestly excessive: Markarian v The Queen (2005) 228 CLR 357 at 371 [28].
I joined in the orders made on 2 November 2015 because the appeal ground based on s 29(1)(a) of the Crimes (Sentencing) Act had been made good and Mr Quzag had to be resentenced. For the reasons jointly given by Refshauge and Burns JJ, it was inappropriate to simply “adjust” the sentence in the mathematical manner advocated by the Crown. I also considered it preferable for this Court to resentence Mr Quzag rather than remit the matter to the sentencing judge to correct the error.
I agree, for the reasons given by their Honours that an appropriate sentence for Mr Quzag is a sentence of imprisonment for 22 months, the first eight months of which are to be served by full time custody and the balance suspended with a Good Behaviour Order for two years.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney. Associate: Date: 27 June 2016 |
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