R v Hassan-Judge; R v Bubner; R v Hassan-Judge

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HASSAN-JUDGE; R v BUBNER; R v HASSAN-JUDGE
[2013] SASCFC 147
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Blue and The Honourable Justice Stanley)
20 December 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS - GENERALLY
These are appeals against sentence by three co-accused. Eleven defendants charged on one Information were each convicted of multiple counts of trafficking in a controlled drug, namely methylamphetamine. There was no dispute that the offences of which the defendants were convicted were representative of a course of criminal conduct spanning a period of months. Three of those defendants appealed against sentence.
Robert Hassan-Judge pleaded guilty to six counts of trafficking in a controlled drug. The first four counts were aggregated offences. He was sentenced to 10 years’ imprisonment with a non-parole period of seven years. Robert Hassan-Judge was in control of the drug trafficking operation, which was set up and administered for a period of time while he was serving a sentence of imprisonment in respect of prior drug offending and during his participation in a work release program. Two psychological reports indicated that Robert Hassan-Judge had cognitive deficits sufficient to satisfy the criteria for a diagnosis of Mixed Receptive Expressive Language Disorder. Whether the Judge erred in not giving less weight to general deterrence as a consequence of these cognitive deficits. Whether the sentence imposed was manifestly excessive.
Hayden Bubner pleaded guilty to nine counts of trafficking in a controlled drug. Bubner acted as the right hand man of Robert Hassan-Judge and helped to establish the drug operation when Robert Hassan-Judge was in custody and during his participation in the work release program. The sentencing remarks initially indicated that Bubner was to be sentenced to seven years and six months’ imprisonment with a non-parole period of four years but elsewhere referred to a credit of three months for time spent in custody. Following a discussion with the prosecutor, the Judge reduced the head sentence to seven years and three months on account of time spent in custody. Whether the Judge erred in failing to reduce the non-parole period on account of time spent in custody. Whether the notional starting point of a head sentence of 10 years’ imprisonment was manifestly excessive. Whether the Judge failed to give adequate weight to the personal mitigating material. Whether the Judge incorrectly characterised the extent of Bubner’s drug use and drug dealings. Where the Judge had incorrectly attributed a submission of the prosecution regarding Bubner’s drug use and drug dealings to defence counsel.
Deeon Hassan-Judge pleaded guilty to five counts of trafficking in a controlled drug. He was sentenced to three years and nine months’ imprisonment, which was reduced by three months on account of time spent in custody. A non-parole period of two years was fixed. Deeon Hassan-Judge was described by the Judge as being a customer of Robert Hassan-Judge and Bubner who on sold the drug to other persons. Whether Deeon Hassan-Judge had a justifiable sense of grievance as a result of disparity between his sentence and the sentences imposed upon several of his co-offenders whose offending was similarly described by the Judge. Whether there was a justifiable sense of grievance as a result of the lack of disparity between his sentence and the sentences imposed upon two of his co-offenders whose offending had occurred in breach of the terms of earlier suspended sentence bonds.
Held per the Court (dismissing the appeals):
Robert Hassan-Judge
(1)     The evidence did not establish that the cognitive deficits from which Robert Hassan-Judge may have suffered reduced his ability to appreciate the significance and gravity of his conduct (at [27], [30]). The Judge had regard to and gave weight to the views of the psychologists insofar as they were relevant and material (at [32]).
(2)     The sentence imposed cannot be said to be manifestly excessive (at [35]).
Hayden Bubner
(1)     While it is possible that the Judge overlooked adjusting the non-parole period on account of time spent in custody, a non-parole period of four years is merciful. Any error by the Judge would not vitiate the sentence so as to justify this Court interfering (at [47]).
(2)     The sentence imposed was not manifestly excessive having regard to the extent of Bubner’s involvement in the drug distribution network (at [53]).
(3)     The Judge gave proper weight to Bubner’s personal antecedents and those matters described as being personally mitigatory (at [55]).
(4)     The Judge did not act on the submission that he had misattributed to defence counsel (at [60]).
Deeon Hassan-Judge
(1)     The differences in criminal culpability and personal antecedents as between Deeon Hassan-Judge and the suggested like co-offenders fully justify the different sentences imposed. No justifiable sense of grievance can arise (at [71] - [72]).
Criminal Law (Sentencing) Act 1988 (SA) s 10(1) and s 18A; Controlled Substances Act 1984 (SA) s 32(3) and s 33N, referred to.
R v Engert (1995) 84 A Crim R 67; Bugmy v The Queen (2013) 87 ALJR 1022; Munda v Western Australia (2013) 87 ALJR 1035; Hili v The Queen (2010) 242 CLR 520; R v Carbone [2012] SASCFC 34; Green v The Queen (2011) 244 CLR 462; R v Lagana [2012] SASCFC 135; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Police v El-Zaibak (2004) 90 SASR 217; The Queen v MacGowan (1986) 42 SASR 580; The Queen v Kite (1971) 2 SASR 94, considered.

R v HASSAN-JUDGE; R v BUBNER; R v HASSAN-JUDGE
[2013] SASCFC 147
Court of Criminal Appeal: Gray, Blue and Stanley JJ
THE COURT.

Following pleas of guilty in the District Court, ten defendants charged on the one Information were each convicted of multiple counts of trafficking in a controlled drug, namely methylamphetamine, between 1 January and 10 June 2011. An eleventh defendant was found guilty by jury verdict of four counts of trafficking in a controlled drug, namely methylamphetamine, between 16 April and 21 May 2011. All eleven defendants were either related or were friends. Three of those defendants, Robert Hassan-Judge, Hayden Bubner and Deeon Hassan-Judge, have appealed against the sentences imposed.
Before coming to discuss the separate appeals, it is convenient to outline the nature of the offending. In September 2008, Robert Hassan-Judge and Kirsty Bennett were travelling in a motor vehicle when it was stopped by police. A subsequent search of their premises revealed quantities of methylamphetamine, ecstasy and cash. Both subsequently pleaded guilty to the offences of trafficking in methylamphetamine, trafficking in ecstasy and unlawful possession of the cash. On 9 April 2010, they were sentenced in the District Court. Robert Hassan-Judge was sentenced to imprisonment for a period of two years and four months, cumulative on 29 days of unexpired parole in relation to an earlier offence. A non-parole period of one year and two months was fixed. Ms Bennett was sentenced to a suspended term of imprisonment.
On 14 February 2011, while serving his sentence at the Yatala Labour Prison, Robert Hassan-Judge applied to the Department for Correctional Services to participate in a work release program with a business owned and operated by his half brother and co-defendant, Llewellyn Cleaver. The application was approved and he participated in that program between 9 March and 21 April 2011. In all, he was released on 21 occasions. Generally, his release times were between 7.00 am and 5.00 pm Monday to Friday. On two occasions, approval was given to work overtime on Saturdays. On each occasion, he was collected from and returned to prison by Llewellyn Cleaver.
On 28 April 2011, Robert Hassan-Judge was released from the Adelaide Pre-release Centre and placed under supervision on the home detention program from that date until 10 June 2011. He was returned to prison when arrested in respect of the offending the subject of this appeal. While on home detention, he resided with Ms Bennett and their infant daughter at Mawson Lakes. During this time he was permitted to leave home to work with Llewellyn Cleaver’s business.
The police drug investigation which revealed the offences committed by the defendants commenced in early January 2011. Through telephone interception, the police implicated all the defendants in methylamphetamine trafficking. Undercover operations gave rise to further evidence including the sale by the defendant Bubner of methylamphetamine on seven occasions between 17 February and 31 March 2011. As a consequence of these investigations, the police arrested 10 of the defendants on the morning of 10 June 2011. The eleventh defendant was arrested at Kadina on 11 June 2011.
Robert Hassan-Judge was arrested at Pooraka in the company of Llewellyn Cleaver. An earlier search of his home failed to reveal the presence of any drugs or related equipment, but did locate cash of $3,275.00, together with electrical equipment, jewellery and lounge suites.
The defendant Bubner was arrested in his home at Croydon Park. A search of his premises revealed $4,185.00 in cash, digital scales bearing traces of methylamphetamine, quantities of methylamphetamine in two plastic re-sealable bags, a plastic tub containing a quantity of methylamphetamine and numerous empty plastic tubs.
Police attended at the home of Deeon Hassan-Judge at West Lakes. He was found hiding in the backyard and was arrested. Located in the backyard was cash in the amount of $1,505.00, a plastic bag containing methylamphetamine and an “ice pipe”. Two mobile phones and a set of digital scales were also located.
The other defendants, with the exception of Llewellyn Cleaver, were arrested in their homes. As earlier noted, Llewellyn Cleaver was arrested in the company of Robert Hassan-Judge. At each of the homes, the police found evidence of and paraphernalia associated with drug use.
The sentencing Judge noted that there was no dispute that Robert Hassan-Judge and Hayden Bubner were party to a joint enterprise pursuant to which they sold methylamphetamine to a network of customers. Robert Hassan-Judge was in charge of the operation and Bubner was his right hand man. Bubner was primarily responsible for acquiring, packaging and selling the methylamphetamine, as well as collecting payment from customers. For the most part, the methylamphetamine was stored in a house at Ridleyton occupied by relatives of one of the defendants.
The drug operation was extant when the police commenced intercepting telephone calls on 10 January 2011. The operation began while Robert Hassan-Judge was imprisoned in Yatala and continued during his time on the work release program and while on home detention. The operation came to an end on the arrest of the participants on 10 June 2011. Bubner visited Robert Hassan-Judge while he was in prison, received directions from him and acted on those directions. Following Robert Hassan-Judge’s release on the work release program and on home detention, Bubner received his directions by telephone and through face-to-face meetings. The customers of Robert Hassan-Judge and Bubner included six of their co-defendants, who also onsold the drug to other persons. Three of the defendants facilitated some of the sales made by Robert Hassan-Judge and Bubner.
On 29 March 2012, the eleven defendants were jointly committed for trial from the Magistrates Court. Bubner entered pleas of guilty on his first arraignment. Robert Hassan-Judge pleaded guilty on 27 August 2012 when charged on a fresh Information filed that day. Deeon Hassan-Judge entered pleas of guilty on 24 September 2012. The remaining defendants, with the exception of Llewellyn Cleaver, entered their pleas, some when first arraigned and others at later times.
Robert Hassan-Judge
The Judge sentenced Robert Hassan-Judge pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one sentence of imprisonment of 10 years. In arriving at this sentence, the Judge made a reduction of three years and six months on account of the pleas of guilty. This represents a reduction of just over one quarter. The Judge fixed a non-parole period of seven years. The Judge declined to suspend the sentence. The sentence was backdated to commence on 22 September 2011, from which date Robert Hassan-Judge had been in custody on the charges for which he was ultimately sentenced.
On the hearing of the appeal, Robert Hassan-Judge advanced two primary submissions; that the Judge failed to have proper regard to evidence of cognitive impairment when determining the appropriate weight to be given to general deterrence, and that the sentence was manifestly excessive, particularly when regard was had to the range of sentences imposed by the Court for like offending.
As earlier mentioned, Robert Hassan-Judge pleaded guilty to six counts of trafficking in a controlled drug. The first four counts alleged the sale of methylamphetamine on multiple occasions contrary to section 32(3) and section 33N of the Controlled Substances Act 1984 (SA). These were aggregated offences. The remaining two counts concerned two discrete sales of methylamphetamine. There was no dispute before the sentencing Judge that the six counts were representative of a course of criminal conduct spanning a period of at least five months and involving frequent, almost daily, sales of varying quantities of methylamphetamine ranging in price from about $100.00 to thousands of dollars. It was accepted that Robert Hassan-Judge occupied a position in the drug hierarchy below a drug wholesaler but above a street dealer. There was some debate during sentencing submissions as to the profits from the operation. As the Judge noted, the defendant eventually conceded that he earned substantial profits as a consequence of his offending the subject of this appeal. It appears that at least tens of thousands of dollars of profit flowed to Robert Hassan-Judge. The Judge rejected the suggestion that Robert Hassan-Judge re-entered the business of selling drugs to pay off debt. The Judge found that he was driven by greed and the desire to acquire luxury goods.
At the time of sentencing, Robert Hassan-Judge was 27 years of age and was in a relationship with Kirsty Bennett, with two children to that relationship aged four and one. The Judge discussed the family history and noted that Robert Hassan-Judge had been diagnosed with Attention Deficit Hyperactivity Disorder as a child. As a consequence, he experienced educational and behavioural difficulties at school, which he left at the age of 14 with poor literacy and numeracy skills. He then relied on his mother for financial support, supplemented by casual labouring work from time to time. When sentenced by Muecke DCJ in 2010 for drug offending, he had been working for Llewellyn Cleaver for some 12 months.
Robert Hassan-Judge began using amphetamines when aged 15 years and developed a significant addiction to the drug. His need to finance this addiction was the catalyst for his involvement in trafficking methylamphetamine in 2008. He claimed to have stopped using the drug but continued trafficking until his arrest in 2008.
The Judge had the assistance of two psychological reports tendered as part of the sentencing materials. Carol Cayley had conducted psychological testing in early 2010 and her report was put before the District Court at the time Robert Hassan-Judge was sentenced in regard to the 2008 drug trafficking charges. Dr Cayley formed the opinion that it was likely that Robert Hassan-Judge had cognitive deficits sufficient to satisfy the criteria for a diagnosis of Mixed Receptive Expressive Language Disorder, as well as amphetamine dependence. Dr Cayley thought it likely that his cognitive deficits would have a significant impact on his behaviour. At the time of her report, she suggested that if Robert Hassan-Judge were able to access an appropriate program of assessment and treatment, he would be more likely to be able to cope effectively in the community without reverting to drug use and his risk of recidivism would be reduced. She made other recommendations to assist his literacy development. None of her suggestions were followed through.
Luke Broomhall reviewed Robert Hassan-Judge in respect of the more recent offending. He did not conduct any further psychometric testing. He noted that, apart from a short exposure to education while in prison, Robert Hassan-Judge had not had the opportunity to participate in meaningful educational development and the identification of transferrable vocational skills which had been at the core of Dr Cayley’s recommendations. Mr Broomhall indicated that were these recommendations to be followed through, they would reduce the risk of reoffending.
Robert Hassan-Judge’s criminal antecedents commenced in the year 2001, initially involving various property offences and breaches of the motor vehicle law. The level of his offending then escalated and in 2005 he was convicted of two counts of assault occasioning actual bodily harm leading to a suspended term of imprisonment. In 2007, he was convicted of firearms offending leading to a sentence of two years’ imprisonment. In 2010, as earlier mentioned, he was convicted of drug offending leading to a sentence of imprisonment for two years and four months. That drug offending was in breach of the terms of his parole in respect of the 2007 sentence.
General Deterrence
Robert Hassan-Judge contended on the appeal that the evidence established that he had limited cognitive capacity, that this in turn reduced his moral culpability and that the Judge erred in not giving less weight to general deterrence when determining an appropriate sentence. Attention was drawn to the following remarks of the Judge when sentencing:
[Counsel for Robert Hassan-Judge] submitted that the element of general deterrence should be given less weight in the defendant’s case because of the cognitive deficiencies identified in the psychological reports. I reject that submission. The defendant was not suffering from a mental disorder that reduced his ability to appreciate the significance and gravity of his conduct. On the contrary he conducted the operation with guile and cunning.
It was submitted that these remarks demonstrated error.
Section 10(1)(i) of the Sentencing Act addresses deterrence and provides:
In determining the sentence for an offence, a court must have regard to such of the following factors and principles as may be relevant: …
(i)the deterrent effect any sentence under consideration may have on the defendant or other persons;
…

In Engert, Gleeson CJ made the following general observations concerning the approach to be taken when sentencing persons suffering from mental disorders:[1]
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238 as follows:
... protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.
A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
[1] R v Engert (1995) 84 A Crim R 67, 68.
These observations were referred to with approval by the plurality judgment in Bugmy.[2] In Bugmy, their Honours continued:[3]
It does not advance the appellant's case to say, as he does, that the Court of Criminal Appeal was wrong to take into account general deterrence in concluding that Judge Lerve erred in his assessment of the objective seriousness of the offence. Consideration of the objective seriousness of the offence must take account of the fact that this was an offence committed by a prisoner against an officer in a prison. These are the "particular circumstances" to which Hoeben JA was referring when he said that it appeared that Judge Lerve had given inadequate weight to general deterrence.[4] An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that Judge Lerve allowed.
The appellant's case also relies on the evidence of his mental illness. As noted, the significance of a mental disorder to sentencing was the issue in Engert. Gleeson CJ observed that the existence of a causal relationship between an offender's mental condition and the offence does not automatically operate to reduce the sentence and that the absence of such a connection does not automatically mean that the sentence will not be reduced.[5] The appellant relies on the latter statement. He submits that Hoeben JA wrongly held that evidence of an offender's mental illness or disorder may only be taken into account when it has contributed (directly or indirectly) to the commission of the offence. Hoeben JA's conclusion that Judge Lerve erred in taking the evidence of the appellant's mental condition into account did not depend on the absence of a causal connection with the offence. His Honour accepted the prosecution submission that the general terms of Dr Westmore's diagnosis were an inadequate foundation on which to give lesser weight to the consideration of deterrence.[6]
[2]    Bugmy v The Queen (2013) 87 ALJR 1022, 1032.
[3]    Bugmy v The Queen (2013) 87 ALJR 1022, 1032-33.
[4]    R v Bugmy [2012] NSWCCA 223 at [38].
[5]    R v Engert (1995) 84 A Crim R 67 at 71.
[6]    R v Bugmy [2012] NSWCCA 223 at [47].
Against the background of the foregoing, it is convenient to now turn to the evidence concerning Robert Hassan-Judge’s suggested cognitive deficits. As earlier noted, Dr Cayley reported in February 2010. Dr Cayley assessed cognitive function with the assistance of the Kaufman Brief Intelligence Test. This test is designed to provide an indication of a person’s verbal and non-verbal intelligence, as well as an overall measure of global intelligence. Robert Hassan-Judge’s overall intelligence was assessed as falling within the borderline range. A significant difference was found between verbal and non-verbal abilities. This result, in Dr Cayley’s opinion, suggested that Robert Hassan-Judge has a language disorder. Children with such disorders may develop behavioural problems, which in turn can lead to anti-social behaviour over time. According to Dr Cayley, persons with a language disorder may feel distressed at their inability to express emotional feelings and this in turn may lead to the use of alcohol and drugs to reduce that distress.
Ultimately, Dr Cayley reached the opinion that Robert Hassan-Judge was a person whose overall intellectual ability fell within the borderline range and that he was likely to satisfy the relevant criteria for a diagnosis of Mixed Receptive Expressive Language Disorder. Dr Cayley also considered that he was likely to have met the diagnostic criteria for amphetamine dependence. Dr Cayley considered it unfortunate that Robert Hassan-Judge had not undergone appropriate testing when he was younger. However, she considered that he would benefit from a comprehensive assessment of his intellectual ability and functional levels of literacy. This would allow appropriate remediation programs to be developed and strategies developed to assist him to cope more effectively. She considered that assessment by a speech pathologist may also be appropriate.
Dr Cayley did not suggest that at the time of the 2008 offending, Robert Hassan-Judge acted without knowledge of what was being done and without knowledge of the gravity of his offending actions. Dr Cayley did not suggest that at that time Robert Hassan-Judge did not fully comprehend the nature and quality of his acts or fully comprehend that those acts were wrong. No further report from Dr Cayley was before the Court.
As earlier discussed, a different psychologist, Mr Broomhall, prepared a report in respect of Robert Hassan-Judge’s offending the subject of the within appeal. Mr Broomhall undertook a two hour interview with Robert Hassan-Judge. Mr Broomhall was provided with a copy of Dr Cayley’s earlier report and chose not to readminister any psychometric testing. Mr Broomhall’s report sets out in detail the history provided by Robert Hassan-Judge. Mr Broomhall reviewed Dr Cayley’s assessment and concurred with her finding that Robert Hassan-Judge met the diagnostic criteria for Mixed Receptive Expressive Language Disorder. He noted that from the history given, Robert Hassan-Judge had also likely met the childhood criteria for Attention Deficit Hyperactivity Disorder and that this might explain why he disengaged from schooling. In the course of his report, Mr Broomhall briefly referred to the circumstances of the current offending. Mr Broomhall was given an account by Robert Hassan-Judge that he was released from custody in 2011 into the community into an area where there were known drug users and former associates whom he was attempting to avoid. Mr Broomhall was told that these people became aware of Robert Hassan-Judge’s release and called in previous debts, and that he succumbed to pressure from these former associates.
This history, as relied on by Mr Broomhall, bore little resemblance to the undisputed facts forming the basis of sentencing. As noted earlier, Robert Hassan-Judge’s drug trafficking activities commenced while he was in custody and did not result from pressure placed on him by known drug users on his release. The large scale drug operation put in place by Robert Hassan-Judge was not disclosed to Mr Broomhall.
Notwithstanding his gross misunderstanding of the circumstances of the offending, there was no suggestion by Mr Broomhall that at the time of his offending the subject of this appeal, Robert Hassan-Judge did not act with knowledge of what was being done and with knowledge of the gravity of his offending actions. Mr Broomhall did not suggest that, at that time, Robert Hassan-Judge did not fully comprehend the nature and quality of his acts or fully comprehend that those acts were wrong.
Having regard to the foregoing, the evidence did not establish that the cognitive deficits from which Robert Hassan-Judge may have suffered reduced in any way his ability to appreciate the significance and gravity of his conduct. Robert Hassan-Judge had the ability to establish his drug trafficking operation while in custody and he enlisted the assistance of Bubner, who established their joint enterprise. Robert Hassan-Judge was in control and Bubner was his right hand man. Through Bubner, Robert Hassan-Judge set up his network. He arranged for a source of supply, a location to store the drugs, their preparation and packaging, and their distribution through a network of dealers. This was a substantial operation that extended for five months, leading to many tens of thousands of dollars of profit to Robert Hassan-Judge. He used those profits primarily for the acquisition of luxury goods and to satisfy his greed and desire for material possessions. As the sentencing Judge observed, he “conducted the operation with guile and cunning”.
We do not consider that the Judge erred in his assessment of the cognitive deficiencies that may have been suffered by Robert Hassan-Judge or their relevance and significance concerning sentencing. The Judge had regard to and gave weight to the views of Dr Cayley and Mr Broomhall insofar as they were relevant and material.
Manifestly Excessive
The other matter of complaint was that the sentence imposed was manifestly excessive. Robert Hassan-Judge referred the Court to many decisions of this Court dealing with the sentencing of drug traffickers. It was accepted that none of those decisions involved the admitted circumstance of aggravation that the drug operation was set up and administered for a period of time while the defendant was in custody.
French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in Hili:[7]
In Director of Public Prosecutions (Cth) v De La Rosa,[8] Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned".
[Footnotes omitted.]
These remarks were recently endorsed and applied in Munda v Western Australia by French CJ, Hayne, Crennan, Kiefel, Gaegler and Keane JJ.[9]
[7] Hili v The Queen (2010) 242 CLR 520, 537.
[8] (2010) 243 FLR 28 at 98 [303]-[305].
[9] Munda v Western Australia (2013) 87 ALJR 1035, 1042.
The sentences extracted from other authorities do not demonstrate that the sentence imposed on Robert Hassan-Judge was outside the range of an appropriate sentence. He engaged in a course of conduct involving numerous offences leading to the six counts as charged. As earlier noted, four of those counts refer to an aggregation of offences. On each count he faced a maximum term of imprisonment of 10 years. Robert Hassan-Judge set up and was engaged in a major drug trafficking operation. The sentence imposed of 10 years’ imprisonment with a non-parole period of seven years cannot be said to be manifestly excessive.
Hayden Bubner
Hayden Bubner pleaded guilty to nine counts of trafficking in a controlled drug. His pleas were accepted in full satisfaction of all counts charged against him on the Information. There was no dispute before the sentencing Judge that the nine counts were representative of a course of criminal conduct that spanned the period January to May 2011. As earlier mentioned, the Judge proceeded on the basis that Bubner acted as the right hand man of Robert Hassan-Judge in relation to the drug distribution network.
The Judge sentenced Bubner to the one sentence of imprisonment of seven years and three months. In arriving at this sentence, the Judge made a reduction of two years and six months on account of the pleas of guilty, and three months on account of time spent in custody and on home detention bail. The Judge had regard to Bubner’s promising prospects of rehabilitation in fixing what he expressed to be a relatively moderate non-parole period of four years. The Judge declined to suspend the sentence.
On the hearing of the appeal, Bubner submitted that the Judge erred in failing to reduce the non-parole period on account of time spent in custody, that the notional starting point of a head sentence of 10 years was manifestly excessive, that the Judge incorrectly characterised the extent of his drug use and drug dealings, and that the Judge failed to give adequate weight to the personal mitigating material relevant particularly to the non-parole period.
Time Spent in Custody
Bubner was arrested on 10 June 2011 and spent 15 days in custody before being released on home detention bail. On 8 June 2012, bail was revoked at Bubner’s request and he again went into custody. The written remarks handed down by the Judge at the time of sentencing suggest that the non-parole period of four years was fixed in relation to a head sentence of seven years and six months. However, an amended version of these remarks which appears on the Court file indicates that the head sentence was reduced to a period of seven years and three months to account for time spent in custody and on home detention bail. However, no reduction was made to the non-parole period.
On the appeal, Bubner submitted that the Judge should have also reduced the non-parole period by three months to reflect credit for time spent in custody and on home detention bail.
On the day of sentencing, the Judge, before proceeding with his oral sentencing remarks, handed to counsel copies of written remarks that he had prepared. The object of this procedure was to shorten the time for the delivery of the oral remarks. In the course of the written remarks, the Judge observed:
I impose a single sentence of 7 years and 6 months imprisonment reduced from 10 years on account of his guilty pleas. In my view, the defendant has promising prospects of rehabilitation and so I will fix a relatively moderate non parole period of 4 years. There is no good reason to suspend the sentence. …
When imposing sentence on Bubner, in the course of his oral remarks, the Judge observed:
You played a key role in a substantial commercial drug operation. I impose a single sentence of seven years and six months imprisonment reduced from 10 years on account of your guilty pleas. In my view you have promising prospects of rehabilitation and so I fix a relatively moderate non-parole period of four years.
Immediately following the conclusion of the Judge’s oral sentencing remarks, the following interchange took place between counsel for the Director and the Judge:
MR PRESS:One last matter, could I just ask that your Honour take up p.21 of the remarks. Could I just confirm, your Honour was going to give a credit of three months for time spent in custody for Mr Bubner, your Honour indicated a reduction or single sentence of seven years and six months reduced from 10 years on account of his guilty pleas. I don’t know whether your Honour intended that to include the three months, or whether there should be an extra three months reduced.
HIS HONOUR: Let me just read that again. No, that should read seven years and three months, Mr Press, thank you.
MR PRESS:The seven years and three months, that includes the extra three-month discount that your Honour would give Mr Bubner?
HIS HONOUR: Yes.
The Judge subsequently amended his written remarks to read as follows:
I impose a single sentence of 7 years and 6 months imprisonment reduced from 10 years on account of his guilty pleas and further reduced to 7 years and 3 months on account of time spent in custody. In my view, the defendant has promising prospects of rehabilitation and so I will fix a relatively moderate non parole period of 4 years. There is no good reason to suspend the sentence. …
The formal record of the Court signed by the Judge and his associate records the head sentence imposed on Bubner as seven years and three months and the non-parole period as four years.
On the appeal, Bubner contended that the Judge erred in failing to reduce the term of the non-parole period by a period of three months on account of time spent in custody. Counsel for the Director submitted that the Judge’s settled final written remarks correctly stated the position and demonstrated that the Judge intended to fix a non-parole period of four years against a head sentence of seven years and three months. It was accepted that the Judge, in both his oral remarks and the unamended version of the written remarks, had made a slip in referring to a head sentence of seven years and six months and that, at the conclusion of the oral remarks, when this was drawn to the Judge’s attention by counsel for the Director, the slip was corrected. It was pointed out that counsel for Bubner did not seek any correction in respect of the non-parole period. On the appeal, counsel for Bubner informed the Court that his client did not favour seeking a report from the sentencing Judge.
On the material before the Court and in the absence of seeking a report from the Judge it is possible that the Judge had in mind a head sentence of seven years and three months when fixing the non-parole period of four years. It is also possible that the Judge fixed that non-parole period against the initial sentence of seven years and six months and then overlooked adjusting the non-parole period when he adjusted the head sentence. However, a non-parole period of four years in respect of a head sentence of seven years and three months reflects a merciful approach and any error by the Judge would not vitiate the sentence which was imposed so as to justify this Court interfering under section 353(4) of the Criminal Law Consolidation Act.
Manifestly Excessive

Bubner’s second contention on the appeal was that the notional starting point of a head sentence of 10 years’ imprisonment was manifestly excessive. Counsel for Bubner referred to the decision in Carbone[10] and submitted that comparisons could be drawn between Bubner’s offending and the offending of the defendant Kirk in that case. In Carbone,[11] this Court confirmed a notional starting point of a head sentence of seven years and nine months’ imprisonment in respect of the defendant Kirk, who had pleaded guilty to 12 counts of trafficking in methylamphetamine or amphetamine. On this appeal, counsel submitted that the personal circumstances of Bubner provided greater scope for moderation of the sentence when compared to the personal circumstances of Kirk. It was pointed out that Bubner pleaded guilty at the earliest reasonable opportunity, that he had no previous drug-related convictions, that he had ceased using drugs upon his arrest, that he had no psychological or psychiatric disorders that would inhibit his excellent prospects for rehabilitation, that he had strong family and social support, and that he had good prospects for gaining employment upon his release.
[10] R v Carbone [2012] SASCFC 34.
[11] R v Carbone [2012] SASCFC 34.
When considering this submission, it is important to recognise that Bubner played a principle role in setting up the drug enterprise at a time when Robert Hassan-Judge was in custody. As the Judge noted, Bubner acted as Robert Hassan-Judge’s right hand man. He engaged in a joint enterprise. He was directly involved in the organisation of the delivery and transport of the drugs from their hiding place to another property every couple of days over a period of five months. He would receive orders from customers and then package and prepare the drugs for sale. He kept records of amounts owed to Robert Hassan-Judge, negotiated with customers to the advantage of Robert Hassan-Judge, took part in the delivery of drugs throughout the day and generally addressed the issues that arose in a busy enterprise. He was trusted with money, trusted to keep appropriate records, trusted in the recovery of debt and generally acted as a middle man in delivering the threats made by Robert Hassan-Judge to ensure that the debts were discharged.
Without Bubner’s assistance, Robert Hassan-Judge would not have been able to set up the enterprise and offend while in prison. Bubner actively participated in the operation while Robert Hassan-Judge was incarcerated and on his early and conditional releases. This was a significant aggravating factor. This factor makes comparisons with other cases of limited utility.
Bubner had a number of criminal antecedents, but the present offending was apparently his first incursion into drug offending. However, his antecedents did include a six month suspended jail term in 2008 for the aggravated offence of driving dangerously to cause police pursuit and a 12 month immediate term of imprisonment imposed in 2011 for multiple offences of driving under disqualification. His antecedent report also disclosed offences in relation to a firearm in 2009.
The Judge concluded that Bubner had good prospects of rehabilitation. In arriving at this conclusion, the Judge had regard to character references supplied in support of Bubner as well as a report from a psychologist.
We do not consider that the sentence imposed was manifestly excessive. Bubner’s involvement in the drug distribution network was substantial. His offending extended over many months, during which time substantial quantities of drugs were sold, yielding very substantial profits. The drug involved, methylamphetamine, is known to cause harm to users. The sentence imposed, having regard to all of the relevant circumstances, was within the sentencing discretion of the Judge.
Personal Antecedents
Bubner’s third contention on the appeal was that the Judge failed to give adequate weight to the personal mitigating material relevant particularly to the non-parole period. The circumstances of Bubner that were said to be mitigating included his relative youth, his lack of prior convictions for drug offending, his employment record, his positive character references, his supportive family and his abstinence from drugs since his arrest. It was contended that these factors were not adequately recognised and reflected in the sentencing remarks.
The substance of this contention has already been addressed. We see no reason to doubt that the Judge gave proper weight to the personal antecedents of Bubner and those matters described as being personally mitigatory.
The Extent of Drug Use and Dealings
Bubner’s final contention on the appeal was that the Judge incorrectly characterised the extent of his drug use and drug dealings. The prosecutor referred the Judge to Bubner’s statement to a psychologist that he made about $50.00 to $100.00 for each “8-ball” of methylamphetamine that he sold. The prosecutor suggested that if that were so, in order to buy an “8-ball” for his own consumption, at a cost of around $2,200.00, Bubner would have to sell 22 “8-balls” at a profit of $100.00 each. The prosecutor also postulated that another alternative was that Bubner either made more money per transaction, or that he used less than that quantity of drug.
In his written remarks, the Judge characterised Bubner’s conduct as follows:
[Counsel for Bubner] submitted that most of the money his client made from the operation was spent on financing his own addiction to methylamphetamine. He submitted that in order to fund his addiction the defendant had to sell approximately 22 “8 balls” (60g of methylamphetamine) per day. Such an amount of methylamphetamine would have fetched about $17,500 in the illicit drug market.
On the appeal it was accepted that no such submission had been made by Bubner’s counsel. It was suggested that the Judge had taken the hypothesis offered by the prosecutor and wrongly attributed it as an assertion of fact made by Bubner’s counsel. It was said that, in so doing, the Judge attributed to Bubner a daily usage of methylamphetamine and a number of daily drug transactions that was not supported by the submissions of counsel or by other material before the Court. It was contended that this was a significant error which was likely to have influenced both the head sentence and the non-parole period imposed.
Counsel for the Director pointed out that the Judge did not make a finding of fact on this topic. Having noted what he described as a submission of counsel for Bubner, the Judge said:
Unless the defendant’s share of the profits from the sales was very small it would be surprising if most of the money he earned was spent on his own addiction. It should also be observed that the defendant was unemployed during the period of offending and that when the police searched his home they located $4,185 cash. Photographs of the interior of the house indicate that it was reasonably well appointed with furniture and the like. In any event, even if the defendant’s primary motivation was to finance his own drug addiction that fact would not mitigate his conduct to any significant extent. But for the defendant’s involvement Robert Hassan-Judge would have been unable to run a very substantial drug operation.
[Emphasis added.]
The Judge did not act on what he characterised as a submission by counsel for Bubner. He noted the submission but, importantly, described the defendant’s primary motivation in terms well justified by the evidence before the Court. We do not consider that this complaint raises a matter of substance.
Deeon Hassan-Judge
The Judge sentenced Deeon Hassan-Judge to the one sentence of imprisonment of three years and six months, which included a reduction of 15 months on account of his pleas of guilty and a further reduction of three months on account of time spent in custody and on home detention bail. The Judge fixed a non-parole period of two years. The Judge declined to exercise his discretion to suspend the sentence.
On the appeal, Deeon Hassan-Judge advanced a single contention, namely, that there was a disparity between the sentence imposed on Deeon Hassan-Judge and those imposed on several of his co-accused, having regard to both the notional starting point and the Judge’s failure to exercise his discretion to suspend the sentence.
Deeon Hassan-Judge pleaded guilty to five counts of trafficking in a controlled drug, namely methylamphetamine. As with the other appellants, it was accepted that those charges were representative of a course of conduct spanning several months.
On the appeal, counsel for Deeon Hassan-Judge drew attention to the following passage of the Judge’s sentencing remarks:
The customers of Robert Hassan-Judge and Bubner included their co-defendants Peter Bennett, Josellyn Cleaver, Adam Jenkin, Tracey Johns, Deeon Hassan-Judge and Marina Vukasinovic who on-sold the drug to other persons. The defendant’s [sic] Brian Bennett, Steven Bennett and Llewellyn Cleaver facilitated some of the sales made by Robert Hassan-Judge and Hayden Bubner. …
It was pointed out that of the defendants who were described as customers of Robert Hassan-Judge and Bubner, each of Peter Bennett, Josellyn Cleaver and Marina Vukasinovic had received sentences that were suspended and that were shorter in duration than the sentence imposed on Deeon Hassan-Judge. Counsel submitted that there was a lack of parity between the sentence received by Deeon Hassan-Judge and those received by Peter Bennett, Josellyn Cleaver and Marina Vukasinovic.
It was acknowledged that the sentences of Adam Jenkin and Tracey Johns had not been suspended. However, it was suggested that these two defendants could be justifiably distinguished from the others by reason of the fact that their offending had occurred in breach of the terms of earlier suspended sentence bonds. By contrast, Deeon Hassan-Judge had not previously been given the benefit of a suspended sentence in relation to drug offending. It was argued that, in these circumstances, the lack of disparity between the sentence received by Deeon Hassan-Judge and those of Adam Jenkin and Tracey Johns constituted an appealable error.
The parity principle recognises that as between co-offenders there should not be a marked disparity which gives rise to a justifiable sense of grievance.[12] It is one aspect of equal justice. Like cases are to be treated alike.[13] The obvious corollary of the principle is that unlike cases need not be treated alike.[14]
[12] See Green v The Queen (2011) 244 CLR 462; R v Lagana [2012] SASCFC 135; Lowe v The Queen (1984) 154 CLR 606, 613.
[13] Green v The Queen (2011) 244 CLR 462; R v Lagana [2012] SASCFC 135; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295, 301-302.
[14] Police v El-Zaibak (2004) 90 SASR 217, 220.
The approach to ascertaining whether there is disparity calling for interference should take into account all the circumstances of the offenders. As was observed in Postiglione:[15]
… disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
[15] Postiglione v The Queen (1997) 189 CLR 295, 301-302.
The test of whether there is a justifiable sense of grievance is an objective one.[16]
[16] Postiglione v The Queen (1997) 189 CLR 295, 323.
It is to be borne in mind that the sentence imposed on an individual defendant must properly reflect the seriousness of the offence and, insofar as relevant, his or her own personal circumstances. It is settled that there are instances where any sense of grievance experienced by a defendant should be tolerated in the public interest.[17] If a defendant is treated justly, he has no right to complain.[18]
[17] The Queen v MacGowan (1986) 42 SASR 580, 583. See also The Queen v Kite (1971) 2 SASR 94, 96.
[18] The Queen v Kite (1971) 2 SASR 94, 96.
Deeon Hassan-Judge’s offending included his assistance to Bubner in the packaging and delivery of drugs to other customers, who in turn would make sales to street customers. In addition, he had his own customers. The evidence before the Court established that Robert Hassan-Judge specifically directed Bubner not to sell drugs to some customers because he wanted those persons to be the exclusive customers of Deeon Hassan-Judge. For these reasons, the criminal culpability of Deeon Hassan-Judge differed from that of his co-offenders who were sentenced to suspended terms of imprisonment.
Additionally, there were a number of differences between Deeon Hassan-Judge and other co-offenders who received a head sentence with a lower notional starting point or a suspended sentence. A number had pleaded guilty at an earlier time than Deeon Hassan-Judge. A number had less prior convictions, were involved in less sales, offended over a shorter period, made less profit, gave no assistance to Bubner and generally played a lesser role in the distribution network. There were also differences in respect of a number of the co-offenders’ personal antecedents. The differences between Deeon Hassan-Judge and the suggested like co-offenders are such as to fully justify the different sentences imposed and, once those differences are understood, no justifiable sense of grievance can arise.
We dismiss this complaint.
Conclusion
For the reasons set out above, we dismiss the appeals of Robert Hassan-Judge, Hayden Bubner and Deeon Hassan-Judge.

[2013] SASCFC 147

20 December 2013

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Charge

Sentencing