R v Harmouche

[2005] NSWCCA 398

Reported Decision: 158 A Crim R 357

New South Wales

Court of Criminal Appeal

CITATION:	R v HARMOUCHE [2005] NSWCCA 398 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 November 2005
JUDGMENT DATE:	21 November 2005
JUDGMENT OF:	Sully J at 1; Hulme J at 2; Latham J at 76
DECISION:	See paragraph 72

PARTIES:	Regina Albert Harmouche
FILE NUMBER(S):	CCA 2005/1299
COUNSEL:	Crown: W Roser Respondent: H Dhanji
SOLICITORS:	Crown: S Kavanagh Respondent: S O'Connor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0415
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ

- 25 -

There being accidental error in the formulation of order (iii) appearing at paragraph 72 in this matter the Court corrects that error by ordering in lieu (see paragragrah 72(iii)
IN THE COURT OF
CRIMINAL APPEAL

SULLY J
HULME J
LATHAM J

Monday, 21 November 2005

REGINA v Albert HARMOUCHE

Judgment

1 SULLY J: I agree with Hulme J.

2 HULME J: On 4 November 2004, the abovenamed Respondent to this Crown appeal pleaded guilty before Judge Ellis to a charge “that he between 16 January 2002 and 14 February 2002 … did supply a prohibited drug, namely cocaine”. On 31 May 2005 Judge Delaney sentenced the Respondent to imprisonment for 2 years and 6 months including a non-parole period of 1 year and 3 months, directing that the sentence be served by way of periodic detention.

3 The Respondent’s offence was one provided for by s25(1) of the Drug (Misuse and Trafficking) Act and rendered the Respondent liable to imprisonment for 15 years and a fine equivalent to 2000 penalty units. The Crown contends that the sentence imposed was manifestly inadequate and draws attention, in addition to the sentence itself, to a number of matters which it contends are demonstrative of error on the part of his Honour.

4 The circumstances of the Respondent’s offending as laid before Judge Delaney were contained in a document described as “Agreed Facts”, a Schedule of some 28 telephone calls between 18 January and 9 February 2002 and transcripts of those calls. The “Agreed Facts”, including an agreed amendment to paragraph 6 made during the course of proceedings, are in the following terms:-

“1. Albert Harmouche was born on 14 September 1982.

2. Strike Force Thamesford was established in November 2001 to investigate the distribution and supply of prohibited drugs in the South Western suburbs of Sydney. A combination of physical surveillance and telephone intercepts allowed investigators to uncover a cocaine supply network.

3. Albert Harmouche and Ahmed Sayadi (DOB 12/01/1980) obtained quantities of cocaine from unknown parties and on-sold it either directly or through others including Tallal Rifai (DOB 1/1/83).

4, The Crown Case against Harmouche relies on his use of the mobile telephone service 0407 272 216. Police intercepted this mobile service between 17 January 2002 and 13 February 2002.

5. Between 17 January 2002 and 13 February 2002 inclusive Harmouche either offered or agreed to supply a total quantity of cocaine in the region of 200g. It was his intention with respect to each of those offers or agreements to supply cocaine.

6. Harmouche was able to supply cocaine in ounce quantities and agreed to do so – some agreements went to fruition - during that period for prices between $3800 and $5000 per ounce depending on purity and availability.

7. Attached to these facts are copies of transcripts of recorded telephone calls in which Harmouche was a party. The purpose of the attachment of this material is to illustrate the way in which Harmouche committed the offence of supply.

8. Harmouche was on bail at the time of this offence. He was charged with unrelated matters on 30 October 2001. Those charges were later dismissed.

9. Harmouche was arrested on 6 May 2002. he declined to be interviewed by police.

10. The Crown estimate of the street value of 200 grams of cocaine is $66,666 based on the 200g divided by 0.15g (a street deal) multiplied by $50.00 (the approximate value of a street deal).

This is a plea on the basis of the extended definition of supply being offers and agreements.

It is for the indictable amount in the “region” of 200 grams.

That these facts fully encompass the offender’s position in any hierarchy and the degree of sophistication of his offending. The parties are agreed that he be sentenced for his offences during the dates on the indictment and that whether he did or did not commit offences outside the period is not relevant to these proceedings.

The Crown concedes the prisoner pleaded guilty at the earliest opportunity.”

5 On one of the many days on which the sentencing proceedings were either mentioned or the subject of significant hearing, it was further agreed between the parties that the value of the cocaine referred to in paragraph 10 of the Agreed Facts was the value if sold as small deals on the street.

6 Also as exhibits before Judge Delaney were a Pre-Sentence Report dated 21 February 2005 and, tendered on behalf of the Respondent, reports by consultant forensic psychologists, Mr Watson-Munro and Ms Carol Hayek and a number of character and work references. In the former the Respondent is recorded as having had a childhood which was both materially and emotionally satisfactory and, to the parole officer, reporting no personal drug use and presenting as having little insight as to the consequences of his actions on the community.

7 Mr Watson-Munro on the other hand said that the Respondent was raised in a fairly dysfunctional home both prior and subsequent to the departure of his father when the Respondent was about 10, that as the Respondent was the oldest male in the house, he assumed a considerable burden of responsibility “which no doubt has established the basis for his long standing symptoms of depression, anxiety and low self esteem”. Mr Watson-Munro said that the Respondent described a range of physiological and psychological problems and reported that he had started smoking when aged 18 in response to being quite stressed and progressed to using cocaine in his eighteenth year, this usage peaking at 3 grams per week.

8 The references, some 11 in all, painted a picture of the Respondent as hardworking, remorseful, reliable, honest, trustworthy, of good character, and having matured over recent years. Most of the authors of the reports acknowledged that they were aware he was facing charges.

9 The Respondent also gave evidence and was cross-examined. However, before turning to the details of this, some history of the proceedings may not be inappropriate.

10 The Respondent was arrested on 6 May 2002. He was committed for trial on 26 July 2004 and a chronology of events in the Local Court makes it clear that there was considerable delay in service of the brief. On the other hand, that chronology also indicates that some of the delays, albeit involving a significantly lesser period, were due to actions on the Respondent’s side of the record. The proceedings came before Judge Ellis on 19 August and on that date Judge Ellis noted that 15 November was a suitable date for trial. However, the defence asked for an adjournment so discussions with the Crown could occur. These discussions seem to have been the inspiration for further adjournments on 9, 23 and 30 September and 21 October. The Respondent pleaded guilty on 4 November 2004 and the matter was adjourned to 4 February for sentence, the preparation of a psychiatric report in the meanwhile being foreshadowed. The transcript of proceedings of 4 November 2004 makes it clear that the charge laid against the Respondent to that time was one of supplying a commercial quantity and that the reduced charge and the Respondent’s plea was the result of a deal between the representative of the Director of Public Prosecutions and those appearing for the Respondent. The matter was mentioned on 15 December, presumably by consent, a pre-sentence report was ordered and the date for sentence changed to 21 February.

11 On that day the matter came before Judge Delaney. The solicitor appearing for the Respondent informed his Honour that the matter was not ready to proceed, the Respondent having been “charged some time ago in respect of a further matter which may impact on the sentencing” and which “may well be a plea of guilty”. He sought an adjournment and indicated that he understood the Crown had an issue with the continuance of bail. His Honour was informed that the further matter raised a “very similar allegation”. In subsequent discussion his Honour said that the further matter “has got nothing to do with sentence”. His Honour refused to adjourn the proceedings at that stage but indicated he would reconsider after the Crown documents were tendered. Later the matter was adjourned and an application for revocation of bail refused.

12 On 11 March, counsel for the Respondent sought a further adjournment upon the basis that his client was ill. The evidence in support was thin and Judge Delaney was only willing to grant the application until Monday 14th March. On 14 March some witnesses the defence wished to call were not available and the matter was adjourned to 16 March. It did not conclude on that day and was adjourned to 7 April. For reasons not due to either party the matter could not then proceed and it concluded on 25 May when Judge Delaney reserved his decision, handing it down, as has been said, on 31 May last.

13 It should be noted also that the Crown conceded before Judge Delaney that the Respondent was entitled to a discount of 25% for the combination of his plea and delay. Though suggesting it was unduly generous, counsel who appeared for the Crown in this Court properly did not seek to resile from that concession.

14 The Respondent’s evidence included the following. He said that at the time of the offence he was going through a stressful time with his family taking responsibility for them, he was ashamed to tell them, then started taking drugs and doing criminal offences. He agreed that he was charged with an offence of possessing a prohibited drug prior to the commission of the subject offences and that matter was dealt with by a small fine. He agreed that apart from this and a minor traffic matter – in fact 2 - he had no prior criminal antecedents. He said that after his release from jail following his arrest on the subject charge, he has been ashamed and turned his life around. He denied he sold drugs to make money from doing so and in answer to a question what he wanted to get out of the selling, he said he had been “really struggling” and all he got out of it was a $2000 car that gets him to and from work. He said his offending only went on for 2 or 3 weeks. He acknowledged that at the time he supplied the drugs he was on bail and from the time of his arrest on the possession charge realised he could go to jail for such an offence. He gave evidence that he had turned his life around and had tried to keep away from all criminal activities and since being released from custody had not “touched or been involved in any form of drug use”

15 His Honour was informed without dissent that the Respondent’s conviction on the possession charge had been quashed in the District Court. In fact it does not appear on the Respondent’s antecedents report.

16 It is unnecessary to set out verbatim any substantial part of his Honour’s remarks on sentence. It is clear that his Honour regarded as significant, some 134 days that Respondent spent in custody after his arrest and prior to entering upon bail, saying that that delay was of “quite considerable relevance to the way in which the Court should approach the question of sentencing”, the character references attesting to the Respondent being honest and trustworthy, to his having shown interest in his future work and having over the years “matured dramatically”, and to his having worked during his school years to help support his family. His Honour also accepted evidence that the Respondent had become stressed about having to give substantial care to his mother, and at age 18 commenced smoking and using cocaine, use which continued during the time of the offending for which he stood for sentence. His Honour accepted a statement of the Respondent that “Gaol woke me up, I knew I was on the wrong track, it got me thinking” and that the Respondent was remorseful and contrite. His Honour accepted that substantial rehabilitation had occurred and that the Respondent needed for the future only limited assistance as described by one of the psychologists. His Honour found that specific deterrence was of much less weight than would normally be the case and, in the Respondent’s youth, past rehabilitation and need for future rehabilitation, special circumstances.

The Issues advanced by the Crown in the Appeal

17 Against that background, I turn to the arguments advanced in the appeal. It is convenient firstly to refer to some of the specific complaints made on behalf of the Crown. Two matters relied on were that his Honour had “erred in finding that between the commission of the offence and sentencing that the Respondent had exhibited rehabilitation … and had not committed any further offences”. The Crown informed this Court that on 28 January 2005 the Respondent had been arrested and charged with supplying 112 grams of cocaine on 9 December 2004.

18 So far as the latter aspect of these complaints is concerned, the only “evidence” that the Respondent had committed a further offence was the information communicated to his Honour on 21 February and which I have detailed above.

19 His Honour was undoubtedly wrong in saying that the further offences, or more accurately charges, of which he was informed had “nothing to do with the sentence” he had to impose, at least in a situation where the Respondent was contending that there had been substantial rehabilitation during the period from February 2002 to early 2005. It is difficult to see how a finding of such rehabilitation could properly be made without reaching a conclusion that the Respondent had not in fact committed the offences the subject of the further charge.

20 Some time prior to his Honour’s remark, the representative of the DPP with perhaps less clarity than would have been desirable remarked that “it” – which in context referred to an adjournment application but may have been intended to refer to the further charge – “may have an effect on the sentence in other respect your Honour in that if there is an assertion to be made that Mr Harmouche is rehabilitated, the Crown will take a certain view to that, subject to what happens with this other matter” (sic) but otherwise failed to point out to his Honour the fairly elementary proposition stated at the end of the immediately preceding paragraph. Neither did he seek to be heard in opposition to his Honour’s expressed view. Furthermore, in cross-examination of the Respondent there was no attempt to challenge, by adverting to the further charge and the events which inspired it, the Respondent’s claim that he had turned his life around, had tried to keep away from all criminal activities and since being released from custody had not “touched or been involved in any form of drug use”. It may well be that the Respondent could have claimed privilege from answering questions if those answers may have incriminated him but that was not a reason why the questions should not have been asked. After all it was the Respondent who was claiming, and had the onus of proving, rehabilitation. Any refusal to answer would itself have been relevant to the issue of whether he had established that rehabilitation had occurred.

21 One issue which arises is whether the communication of the fact and nature of the further charge on 21 February occurred in the course of the sentencing proceedings, as distinct from in an application for adjournment or for revocation of bail. Given the course the proceedings took, the better view is that it did. It was at that time that his Honour remarked that the further matter or charge “has got nothing to do with sentence” – a remark or ruling which was relevant to the issue of sentence but not to adjournment or revocation of bail. But even assuming in the Crown’s favour that the exchanges should be regarded as part of the sentencing proceedings, there was simply no evidence before his Honour that the Respondent had committed any further offence(s) nor any refusal to answer which might have cast doubt on his evidence of rehabilitation. The fact of a charge is not, in sentencing proceedings, evidence of the commission of any offence.

22 It might be noted also that the failure of the DPP’s representative to challenge the Respondent when he was available to be questioned on the matter of further offending provides an additional argument that the Crown should not be allowed in any event to rely on the matter of the subsequent charge here. However, given his Honour’s prior ruling, that argument would not succeed.

23 The Crown also submitted that his Honour “did not give any weight to the aggravating feature that when the Respondent committed the offence he was in the community on conditional liberty”.

24 In support of this ground the Crown’s written submissions informed this Court that at the time of committing the offence for which he was sentenced, the Respondent was on bail for 2 offences of supply or knowingly take part in the supply of cocaine, bail on these offences having been granted on 31 October 2001. However, a difficulty from the Crown’s point of view with this information is that the Crown did not put it in evidence before Judge Delaney. All his Honour was told was of the earlier possession charge and that the conviction on that had been quashed. When this was pointed out to counsel appearing on the appeal he abandoned reliance on the suggestion that there had been 2 charges or that they involved supply.

25 However the question does arise whether his Honour had proper regard to the limited information he was given. All he said on the topic was:-

“although the offender was on bail for unrelated matters at the time, those matters were dismissed, and I accept for all relevant purposes that he was before this event, and has been since, a person without previous and subsequent convictions”

and later:-

“ this is a case where I am satisfied in all the circumstances the court should not find any aggravating circumstances under s21A (2) (of the Crimes (Sentencing Procedure) Act) is established on the evidence before the Court.”

26 Section 21A(2) lists as a feature which a sentencing court is to treat as aggravating if it is present:-

(j) The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence.

27 The fact of the matter is that the Respondent was on conditional liberty at the time of the subject offending, and in the context of s21A, and the courts’ attitude to offending on conditional liberty, the result of the charges which led to that conditional liberty was irrelevant. His Honour thus erred.

28 Other features which s21A(2) dictates are to be regarded as aggravating are:-

“(e) The offence was committed in company.
(n) The offence was part of a planned or organised criminal activity.”

29 A simple consideration of the terms of the Agreed Facts and the transcripts of the telephone calls indicates that his Honour’s failure to find each of these aggravating circumstances present was also an error.

30 It was also submitted on behalf of the Crown that his Honour erred in that:-

He did not give sufficient weight to:-

The objective seriousness of the offence
The elements of both specific and general deterrence
The legislative intention in relation to these types of offences; and

The protection of the community
He gave undue weight to the subjective features of the case; and
Erred in ordering that the sentence imposed be served by way of periodic detention.

31 There is no doubt that his Honour gave great weight to the Respondent’s subjective features. He recorded that during the course of the hearing the focus of attention was substantially upon those factors. Whether the weight given was undue and whether he erred in the other respects identified are matters which can conveniently be dealt with together.

32 As has been said, the Respondent’s offence was one that carried a maximum penalty of imprisonment of 15 years. Had the quantity involved been or exceeded 250 grams the maximum penalty of imprisonment would have been 20 years. Had it been or exceeded 1 kg that period would have been life imprisonment.

33 So far as quantity is concerned, the Respondent’s offending was thus not far from the top of the scale for offences involving less than commercial, quantities. He knew the quantities in which he was dealing. Furthermore, he could have done no more to fulfil the element of “supply” in the offence for which he stood for sentence

34 So far as role is concerned, it seems clear that the Respondent was simply a reseller, rather than a principal, or organiser of others, or financier. He was above the level of a street dealer but, given the fact that the case had proceeded on the basis of a particular amount being supplied (in the extended meaning of that term), I am not sure that this fact matters much, if at all. He, or others who were willing to do the same, was an essential cog in the distribution of cocaine to those whose lives it was likely to damage, and to the reaping of profits by those who put such profits ahead of the welfare of others, and the requirements of the law.

35 Furthermore, it must be recognised that his offending was not the result of some momentary weakness of temptation. The Agreed Facts and telephone call transcripts make it clear that his offending involved considered, deliberate criminality, day after day for some time.

36 It is not clear whether his sole motivation was the need for the wherewithal, be it funds or cocaine, to feed his own addiction which, on the basis of the 3 grams a day figure he gave to one of the psychologists and the costs referred to in paragraph 10 of the Agreed Facts would have cost, at retail prices, $1,000 per day. However, though mentioning these matters, I make it clear that such addiction is not a matter of mitigation. The law has set its face against so treating the perpetuation of addiction in an offender, or in others, or in assisting others to participate in, or risk, the harm that cocaine is liable to do – see R v Henry (1999) 46 NSWLR 346 at [171-206, 215 et seq., 278, 331].

37 In R v Peel (1971) 1 NSWLR 247 at 262 it was said that “In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug.” Where does the Respondent’s offending lie in the scale of criminality envisaged by the statutory provision here relevant? Clearly it does not lie at the top. But when regard is had to activity, quantity, knowledge, deliberateness and role, his offending is a long, long way from the bottom of that scale. And this is so even without the aggravating feature of his offending having occurred while he was on bail.

38 Undoubtedly, the Respondent on the evidence before, and findings of, Judge Delaney made out an impressive subjective case. He had the factors of a plea, delay and youth arguing for a lesser penalty than would have been appropriate in their absence and was also entitled to have taken into account 134 days, i.e. something over 4 months, pre-sentence custody.

39 That said, the 25% discount for the Respondent’s plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage.

40 That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in R v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]:-

“If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.
This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.”

41 I myself would go further. Albeit the extent of any discount is a matter in which a sentencing judge has some discretion - although as R v Thompson and Houlton at [159] makes clear, one subject to appellate review – where the rationale for a discount as high as 25% does not exist, a discount of that degree should not be given.

42 The Court’s attention was drawn to a passage in the transcript of submissions of counsel appearing for the Respondent before Judge Delaney to the effect that in the middle of 2003 offers had been made, I infer by the Respondent, that were “almost identical to what’s in the indictment” and to the decisions of his Court in R v Cardoso [2003] NSWCCA 15 where it was held, following R v Oinonen [1999] NSWCCA 310 that where a person was convicted of manslaughter, a discount should be given for an offer to plead guilty to manslaughter, notwithstanding that the offer was conditional on the Crown accepting it in full satisfaction of a charge of murder, that it had not been accepted by the Crown and was not made formally in response to the charge.

43 In R v Oinonen, it was said that such an approach had been a long-standing practice of this Court and in trial courts to take account of an offer of a plea of guilty which matches the crime for which a person is ultimately convicted”, and this notwithstanding that the circumstances did not fall within s439 of the Crimes Act (now reproduced in substance in s22 of the Crimes (Sentencing Procedure) Act. The Court in R v Cardoso held that this principle or practice survived, notwithstanding that in R v Thompson and Houlton the Chief Justice, with the concurrence of 4 other members of the Court, had said, at [123] that “any general quantitative guideline should focus on the utilitarian advantage derived by the criminal justice system from encouraging pleas of guilty” and indicated, at [152-156] that the extent of the discount in any particular case should be assessed by reference to events calculated to affect the degree of utilitarian value.

44 How one should value a plea which has no utilitarian value in fact I do not know. Why one should give a discount for utilitarian value to someone who seeks to make his plea conditional and, if the condition is not met, enjoys the benefits of a prospective acquittal I do not understand. Nor am I disposed to do anything which encourages the degree of bargaining which now seems to characterise criminal prosecutions in this state and which, I have the firm impression, often lead to charges appreciably less serious or numerous than the evidence would suggest occurred.

45 However I do not need to decide these issues in this case. Firstly, it is agreed that the Respondent should receive a substantial discount for the plea ultimately made. Secondly, sentencing has become complicated enough without judges having to consider the worth of offers no more precisely described than “almost identical to what’s in the indictment”.

46 It is also not inappropriate to repeat something else often forgotten. As I said with the concurrence of the Chief Justice in R v Stanbouli [2003] NSWCCA 355, “Despite the terms in which submissions by defence counsel are often couched, there is no “entitlement” to receive a discount of 25% for every plea entered no later than committal – see also R v Scott [2003] NSWCCA 286 at [28]”.

47 I confess to some reservations whether the Respondent was entitled to have as much weight given to the topic of delay as Judge Delaney afforded. Those who indulge in criminality which requires the expenditure of a considerable amount of scarce police and community resources to ensure the evidence against them is in a proper condition for committal or trial hardly seem entitled to consideration for the time reasonably taken in that task. Nor is it apparent to me that the time taken in plea bargaining negotiations - events which seems to have become regrettably commonplace - should be regarded as a matter in mitigation. Certainly is this so in the absence of evidence of some conduct on one side or another which may fairly be regarded as especially entitling in that regard.

48 Here, while it was accepted that some of the delay was due to the Crown and should not have occurred, there was no evidence of how much this was, or of the time which, was reasonably required to prepare the Crown case. Furthermore, it is clear that after 19 August 2004, a considerable amount of time was spent in negotiations and because the Respondent’s side was not ready. While the earliest possible trial date would seem to have been 15 November 2004, a deal of the delay after 19 August should also not be something that Respondent can prey in mitigation. Judge Delaney took the view that the delay should be regarded as of “considerable relevance” to the way in which the sentencing of the Respondent should be considered and in light of the way the proceedings before his Honour were conducted and that that finding is not challenged here, I am content to proceed on the basis of it and notwithstanding that there is clear authority for the proposition that where delay has benefited an offender by, for example, allowing him to effect and demonstrate rehabilitation – and that is the Respondent’s case here – leniency on the basis of delay should not necessarily be extended – see V (1998) 99 A Crim R 297 at 300.

49 No basis exists in the evidence for not accepting Judge Delaney’s finding that the Respondent’s need for specific deterrence has much less weight than usual. Furthermore it is impossible to avoid the conclusion that the Respondent’s youth and consequent immaturity probably had something to do with decisions first to use cocaine and then to fund that use by supplying others. On the other hand, he was 18 or 19 at the time of these decisions – ages at which people are regarded as, and given the rights and responsibilities of, adults. His offending was of a nature such as to allow time for reflection on what he was doing and to consult others and, even apart from anything else, his arrest in October 2001 must surely have given him occasion to do so. Thus while the Respondent’s youth is entitled to some weight, that weight is limited.

50 There can be no doubt that the Respondent’s subjective case, many of the other matters to which I have referred, and his interests argued strongly for a sentence such as his Honour imposed. In light of his Honour’s findings it may well be thought that the sentence imposed fulfilled the requirements of specific deterrence, rehabilitation and protection of the community. On the other hand there lay the seriousness of the Respondent’s offending, judged by the statutory criteria and other purposes which sentencing is intended to serve, in particular general deterrence and retribution. The importance of the first of these has frequently been emphasised – see R v Rushby (1977) 1 NSWLR 594 and the cases there cited, R v Clark (Unreported, NSWCCA, 15 March 1990). As to the importance of both, see Musumeci v R (Unreported, NSWCCA, 30 October 1997).

51 The Crown has reminded the Court of numerous authorities – only some of which I shall mention - wherein the following propositions have been made clear:-

1. The subjective features of a particular offender must not be allowed to overshadow the objective seriousness of the offence under consideration – R v Dodd (1991) 57 A Crim R 349 at 354; R v Rushby (1977) 1 NSWLR 594; R v Myers (unreported CCA, 13 February 1990).
2. Only in exceptional circumstances will a full time custodial sentence not be imposed upon an offender being sentenced for supplying prohibited drugs – R v Fabien (1992) 64 A Crim R 365 at 366. R v Leslie (1991) 55 A Crim R 68. R v Clark (unreported CCA 15 March 1990).
3. The evils of the drug trade are such that the courts must take a very firm stand against it – R v Collin [2000 NSWCCA 236] at [15]; R v O’Brien and Mammone (unreported, CCA, 23 August 1989); R v Wong and Ng (1988) 39 A Crim R 1 at 3.
4. A sentence of periodic detention contains a strong element of leniency, is outwardly less severe in denunciation of criminality and is not normally appropriate in cases involving the supply of illegal drugs – R v Day (1998) 100 A Crim R 275; R v Niga (unreported, CCA, 13 April 1984); R v Hallocoglu (1992) 63 A Crim R 287 at 294. (To the uninitiated, I would add that, despite its terms and because of administrative decision, such a sentence normally does not involve periodic detention for the time specified but commonly for only one to two-thirds of that time.)

52 To these propositions I would add that the achievement of rehabilitation does not of itself constitute exceptional circumstances justifying a sentence other than full time custody albeit if there is evidence that full time custody is likely to have the effect of nullifying rehabilitation previously effected, the situation may be different – R v Thompson (unreported, CCA 4 April 1991). Furthermore, drug dealing raises many of the same considerations which led this Court in Musumeci v R (Unreported, NSWCCA, 30 October 1997) – a case of dangerous driving causing death - to say that “The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson”.

53 With the possible exception of the qualification mentioned in R v Thompson, I find it impossible to reconcile the sentence imposed with these principles. Furthermore, so far as that qualification is concerned, there is no specific evidence that the imposition of a custodial term will have the undesirable effect. The conclusion at which I have arrived is that Judge Delaney did allow the subjective features of the case to overshadow the seriousness of the Respondent’s offence. As is apparent from his Honour’s remarks on sentence, the focus of attention during the course of the sentencing proceedings was upon those subjective factors and the remarks themselves contain little by way of attention to the Respondent’s criminality. While undoubtedly the Respondent’s subjective circumstances as accepted by his Honour including the extent of his rehabilitation at the time of sentence, and the delay involved in the proceedings against him do distinguish his case from most involving the commercial supply of drugs, the sentence imposed grossly undervalues the extent of the Respondent’s criminality. It contains no, or almost no, significant element of general deterrence or of retribution. It was manifestly inadequate.

54 The question then arises whether this Court should interfere. The Court’s attention was directed to a number of the authorities, including R v Wall [2002] NSWCCA 42 at [70], wherein attention is given to the restraint and principles by which the Court should be guided in making this decision. Subject to one matter, I acknowledge these principles and the restraint which the Court should exercise.

55 (My reservation arises in respect of the observation in R v Wall, that “A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court”. In R v Kalache, [2000] NSWCCA 2 at [204 et seq], I directed attention to the topic of the approach of this Court to determining what sentence should be imposed once the Court had decided to allow a Crown appeal and the authorities there referred to make it clear that the passage just quoted somewhat overstates the position. The Court has a discretion but many cases indicate a preference for the least sentence which should have been imposed at first instance, not one that is less. See also Jurisic (1998) 101 A Crim R 259 at 278-9 where Wood CJ at CL, whose judgment in R v Wall contained the passage I have quoted, endorsed a statement of Gleeson CJ in R v Rose (unreported, NSWCCA, 23 May 1996), favouring the “least sentence that could properly have been imposed” approach.)

56 In this case counsel for the Respondent urged a further ground against allowing the appeal – parity. He drew attention to the sentences imposed on a number of other persons who were, or were said to be co-offenders of the Respondent. One was Ahmed Sayadi, referred to in the Agreed Facts set out above. Sayadi was sentenced by Judge Delaney on 10 June last to imprisonment for a period of 2 years and 6 months including a non-parole period of 1 year and 1 month. His Honour had earlier indicated that the non-parole period would be 1 year and 3 months but reduced it on account of 2 months and a few days pre-sentence custody.

57 The circumstances of Sayadi’s offending would seem to have been identical to those detailed above in the case of the Respondent save and except that the period of phone calls taken into account was between 12 February and 6 May 2002. Differences in the subjective circumstances were that Sayadi was 17 months older having been born on 12 January 1980. He had a previous conviction involving drugs and was on conditional liberty at the time of his offence. It may be noted that in his remarks in sentencing Sayadi Judge Delaney said that in this respect Sayadi was different from the Respondent. Sayadi gave evidence that his motivation was a combination of the need for cash and to finance a cocaine addiction but Judge Delaney was not willing to find that these “issues of mitigation” were made out. His Honour also indicated that he had serious reservations about any remorse or contrition. Mr Sayadi was the carer of an elderly and ill father and that was taken into account on the duration of sentence. Judge Delaney also regarded Sayadi as entitled to mitigation on the basis of delay and expressed the view that parity should apply between Sayadi and the Respondent.

58 Another offender was Omar Saleh who was sentenced by Judge Ellis on 20 May 2004 in respect of two counts of supply under s25(1) and one count of ongoing supply contrary to Section 25A of the Drugs (Misuse and Trafficking) Act. On each of the two counts of supply the sentence imposed was 12 months imprisonment. On the charge of ongoing supply, the sentence was 3 years imprisonment including a non-parole period of 18 months. All periods commenced on the same date and were directed to be served by way of periodic detention.

59 Saleh had been recruited by Rifia, also referred to in the Agreed Facts. Saleh’s offending was limited to the period 8 February 2002 and concluded on 11 March 2002 and consisted of 8 instances of street level supply by way of fulfilling orders of purchasers who approached Rifia. Details of only 2 instances of supply appear in Judge Ellis’ remarks. One was of 0.11 grams for $50 and the second of 0.23 grams for $100. Saleh received $10 for each $50 supply. Judge Ellis was satisfied that Saleh voluntarily ceased his offending on 11 March having previously demonstrated he was becoming increasing loath to be involved.

60 Saleh spent 15 days in pre-sentence custody and after being released on bail had established himself well in employment. Judge Ellis accepted he required no further personal deterrence.

61 A fourth offender MH was sentenced in the Childrens’ Court. The transcript of the magistrate’s remarks on sentence is brief and relatively uninformative. It was noted that the evidence indicated an extended period of offending but that other charges had been withdrawn, and MH was sentenced on one count of supply, and one of having goods in custody, viz. $50. For the first offence a sentence of 100 hours of Community Service was imposed and for the second, a s9 12 months’ good behaviour bond. MH’s record seems to have consisted of one driving offence, dealt with without a conviction being recorded.

62 A fifth offender JK, said by the Crown to be a co-offender, was also sentenced in the Childrens’ Court, on 19 August 2002 on 5 charges of supply, one of goods in custody and 5 traffic matters. He had no prior record and was 18 at the time of sentence. On each of the traffic matters a $40 fine was imposed. The goods in custody charge was dismissed with a caution and the supply matters were each dealt with by the imposition of an 18 months probation order. The offender had been on bail and the magistrate remarked that he had had a chaotic life at home but had been straight forward with the Probation Service adhering to the dictates of that organisation and doing a lot to overcome a difficult start to life.

63 The sentence imposed on Saleh suggests that that imposed on the Respondent was grossly inadequate. Although Saleh faced 3 charges and that of on-going supply is in its nature and maximum penalty of 20 years more serious than the offence for which the Respondent was sentenced, the fact that Saleh seemed to be a street supplier combined with the information in paragraph 10 of the Agreed Facts, tends to indicate that the total quantity supplied by Saleh was of the order of 1 to 2 grams. The Respondent supplied about 100 to 200 times as much. There is nothing to suggest he voluntarily discontinued his offending. He was on bail at the time of his offence and yet his sentence was less than that imposed on Saleh.

64 Such limited information as there is suggests that MH was a street supplier also. The apparent differences between his offending and that of the Respondent, together with the fact that the information concerning MH is so limited mean that there is no basis for making any meaningful comparison between their sentences. Similar remarks may be made about JK.

65 Sayadi is clearly a co-offender whose circumstances are comparable with those of the Respondent. The difference is age, the fact that he had a prior conviction (presumably not quashed as the Respondent’s was), that he had not established remorse and contrition as the Respondent had, even making allowance as Judge Delaney did for Sayadi’s caring for his father, are sufficient to justify the differences in their sentences and, if principles of parity are to be adhered to, preclude any increase in the sentence imposed on the Respondent. (I should add that there was nothing said to the Court to suggest that the Crown had lodged any appeal against the sentence on Sayadi.)

66 Nevertheless the conclusion at which I have arrived is that the Court should allow the appeal and re-sentence the Respondent, and this notwithstanding that the effect will be to return him to full time custody and make his sentence disproportionate to that imposed on Sayadi. I am also conscious that Judge Delaney’s finding that the Respondent has been rehabilitated was made in light of his Honour’s rejection of the possibility that the subsequent charge of which he was informed could have anything to do with his sentencing and that proper consideration of the question of whether rehabilitation has occurred would involve remitting the matter for a further hearing. However the delays which have occurred should not be increased. In my view justice will be better served if this Court accepts Judge Delaney’s conclusions on the topic of rehabilitation and proceeds to re-sentence itself.

67 The factors which have led me to the conclusion that the appeal should be allowed and the Respondent re-sentenced are as follows. There is the importance of the 4 principles listed above and on which the Crown relies, and of this Court ensuring as best it can that those principles are in fact adhered to by judges whose daily task is to sentence offenders such as the Respondent. The sentence imposed in this case is ample demonstration that, despite the principles having been stated over a lengthy period, they are either not understood or not followed. There is the extent of the manifest inadequacy in the sentence imposed in this case. There is, to adopt the words of the Chief Justice in R v Wong and Leung (1999) 48 NSWLR 340 at 361, “the exceptional threat to our society that is posed by large scale drug use”, a factor which makes it imperative that this Court ensure proper sentencing standards are adhered to. It cannot be forgotten that every sentence imposed in the higher courts is reflected in statistics which by use as standards, tend to be self-perpetuating.

68 It is these factors also that have led me to the view that the Court should not refrain from allowing the appeal notwithstanding that doing so will result in the Respondent suffering a substantially higher penalty than that imposed on Sayadi. Of course that lack of parity provides a reason why the appeal should not be allowed but the authorities make it clear that while parity is important, where adhering to parity would result in a, or a second, sentence which is manifestly inadequate, the Court is entitled to take a different course. These authorities include R v Ismunandar and Siregar [2002] NSWCCA 477 at [15 – 38]; R v Chen [2002] NSWCCA 174 at [289]; R v Doan (2000) 50 NSWLR 115; R v Steele (unreported, NSWCCA, 17 April 1997); R v Diamond (unreported, NSWCCA, 18 February 1993).

69 I indicted earlier that when regard is had to the Respondent’s activity, his knowledge, the deliberateness and duration of his offending, his role, and the quantity of drugs involved his offending is a long, long way from the bottom of that scale of offending against the statutory provision under which his offence falls. There are the factors that the offence was part of a planned or organised criminal activity and that it was committed in company. In part that latter factor may be thought to be a necessary component, if not an element of the offence of supply and to that extent I would not increase the sentence on account of it. However, it is clear that the company extended further than this and subject to the reservation mentioned, I regard these s21A matters, in the context of drug supply, as meriting a heavier sentence than otherwise. There was the further feature of the Respondent’s offence having occurred while he was on bail and proper regard for the authorities such as R v Readman (1990) 47 A Crim R 181, R v Chang [2003] NSWCCA 327 and R v Huynh [2003] NSWCCA 239 would also lead to an increase in the sentence beyond that otherwise appropriate.

70 Operating in the other direction are the Respondent’s rehabilitation, his plea, the delay which occurred before 31 May last, the period during which the Respondent has been serving periodic detention, the fact that the sentence I propose will involve returning the Respondent to prison and the disparity with the sentence imposed on Sayadi which will result. I should add that I have had regard to the totality of the requirements of s21A of the Crimes (Sentencing Procedure) Act but do not regard it as necessary to specifically mention more than I have.”

71 Judge Delaney found special circumstances and made the non-parole and balance of term periods of the Respondent’s sentence equal. The Crown has not sought to argue against the finding but there is no basis for the proportions into which Judge Delaney divided the total sentence. The Respondent is, of course entitled to credit for the 134 days pre-sentence custody and I would effect this be back-dating the commencement of his sentence.

72

(i) That the appeal be allowed;
(ii) That the sentence imposed by Judge Delaney on 31 May 2005 be quashed; and
(iii) That the Respondent be sentenced to imprisonment for a non-parole period of 2 years and 134 days commencing on 11 July 2005 with a balance of term of 1 year commencing on 21 November 2007, on which date the Respondent will become eligible for parole.

73 Before I conclude these reasons there are three further matters to which I would refer. Firstly, as has been said before but, as this case demonstrates, needs to be said again, judges who fail to pass sentences properly reflecting the seriousness of offences as laid down by Parliament and the principles of sentencing as dictated both by that body and established by superior Courts do no favour to those such as the Respondent who must now have his life and rehabilitation interrupted yet again and be returned to custody.

74 Secondly, this case is yet another of those all too frequent cases where, in order to impose a proper sentence on the Respondent, this Court has had to choose between the unfairness of unequal treatment of co-offenders and the injustice to the community of acquiescing in a second manifestly inadequate sentence because the Director of Public Prosecutions, while appealing in the case of the Respondent elected, or was not sufficiently organised, to appeal in the case of a co-offender. As the Respondent and Sayadi were both arrested on the same day and sentenced by the same judge some 2 weeks apart it is inconceivable that the Office of the Director of Public Prosecutions was not aware of the relationship between them. In that situation it is impossible to see any rational explanation for the bringing of an appeal in one case and not in the other.

75 Thirdly, I wish to make it clear that the sentence I have proposed is one entered in the exercise of this Court’s discretion, reflects a number of matters which should not have been allowed to occur and is appreciably less than should have been imposed at first instance.

76 LATHAM J: I agree with Hulme J.

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