R v Kairouz - [2005] NSWCCA 247

No judgment structure available for this case.

CITATION:
R v Kairouz [2005] NSWCCA 247

HEARING DATE(S): 4 July 2005

JUDGMENT DATE:

22 July 2005

JUDGMENT OF:
Wood CJ at CL at 1; Grove J at 104; Rothman J at 105

DECISION:
Charbel Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed. John Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - whether sentencing judge erred in finding the Applicant was in a position of influence over his brothers - whether educational attainments of Applicant taken into account by sentencing judge as an aggravating factor - whether sentences manifestly excessive - parity - maximum sentence for offence - legitimate sentencing range - whether sufficient weight given to subjective features of Applicant before and after the offence.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999- s 21A(1), 44(2)
Criminal Appeal Act 1912- s 6(1)
Drug Misuse and Trafficking Act 1985 - s 25A(1), 25(1), 32(1)(g)

CASES CITED:
Chow v DPP (1992) 28 NSWLR 593
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Cheikh and Hoete [2004] NSWCCA 448
R v Cicekdag [2004] NSWCCA 357
R v Clark NSWCCA 15 March 1990
R v Diamond NSWCCA 18 February 1993
R v Fernando [2002] NSWCCA 28
R v Henry (1999) 46 NSWLR 346
R v Hoon and Pouoa [2000] NSWCCA 137
R v Hopper NSWCCA 19 November 1998
R v Ismunandar and Siregor [2002] NSWCCA 477
R v Jurisic (1998) 45 NSWLR 209
R v Khaled [2001] NSWCCA 169
R v Kipic and Elias [2004] NSWCCA 452
R v Klein (2001) 121 A Crim R 90
R v Le [2005] NSWCCA 162
R v Kai Kong Li [2005] NSWCCA 154
R v Nasr [2004] NSWCCA 441
R v Peckham [2003] NSWCCA 293
R v Preston [2005] NSWCCA 177
R v Shi [2004] NSWCCA 135
R v Smiroldo [2000] NSWCCA 120
R v Tisalandis [1982] 2 NSWLR 430
R v Tocknell NSWCCA 28 May 1998
R v Tulloh NSWCCA 16 September 1993
R v Zamagias [2002] NSWCCA 17
Veen v The Queen (No. 2) (1988) 164 CLR 465

PARTIES:
Regina
Charbel Kairouz
John Kairouz

FILE NUMBER(S):
CCA 2005/282; 2005/283

COUNSEL:
D Frearson SC (Crown)
C Stern SC (Charbel Kairouz)
G Jones (John Kairouz)

SOLICITORS:
S. Kavanagh (Crown)
K C Lawyers

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/1136

LOWER COURT JUDICIAL OFFICER:
Phegan DCJ

- 3 -

2005/282
2005/283

WOOD CJ at CL
GROVE J
ROTHMAN J

Friday 22 July 2005

Regina v John KAIROUZ

Regina v Charbel KAIROUZ

Judgment

1 WOOD CJ at CL: The Applicants Charbel Kairouz and John Kairouz each seek leave to appeal against the sentences which were imposed by his Honour Judge Phegan at the Sydney District Court on 27 August 2004 following their pleas of guilty to three drug offences. The offences and sentences imposed were as follows:

Count 1

Drug Misuse and Trafficking Act

Charbel Kairouz:

John Kairouz:

Count 2:

Drug Misuse and Trafficking Act

Charbel Kairouz:

John Kairouz:

Count 3

Drug Misuse and Trafficking Act

Charbel Kairouz

John Kairouz

FACTS

2 The Applicants were sentenced upon the basis of their involvement in a syndicate which engaged in the supply of methylamphetamine and cannabis. That syndicate was based at the premises 72 Arthur Street Ashfield, where they lived. Six other persons who were associated in the supply activities, namely Anthony Kairouz, Saad Nasr, David Nasr, David Culbert, Roger Elias, and Stephanie Kipic have also been sentenced for the offences to which they pleaded guilty.

3 Judge Phegan sentenced Anthony Kairouz, Saad Nasr and David Nasr, as well as the present applicants. The other offenders Culbert, Elias and Kipic were sentenced by his Honour Judge Nicholson SC.

4 The statement of facts upon which Judge Phegan relied is to the following effect (omitting the several annexures):

"During the period from February 2002 to November 2002, Police Strike Force Tolve investigated the supply of methylamphetamine and cannabis by persons living at premises 72 Arthur St, Ashfield and associates of those persons. In that period the Kairouz family resided at the premises including the brothers John, Anthony and Charbel. Charbel resided in a granny flat attached to the premises.

In February 2002, police lawfully intercepted mobile telephone number 0405 346 556 and established that such number was being used for the purpose of the supply of methylamphetamine or cannabis. As a result of investigations police became aware of two other mobile telephone numbers, being 0405 644 633 and 0415 308 188, which police then lawfully intercepted. The investigation revealed that both of the telephones were also being used for the purpose of the supply of methylamphetamine or cannabis. The supply of drugs took place in defined territories of Ashfield and Campsie and generally a particular telephone would be associated with either Ashfield or Campsie. The three telephones were in false names and addresses. Each of the telephones received a substantial number of calls almost on a daily basis. Examples of the number of calls on a day to these telephones are set out in annexure "A". A call requesting the supply of a drug would usually be short and would involve the purchaser requesting a small quantity of a drug, either methylamphetamine or cannabis, and arrange a place and time to meet for the supply to take place. The supply would then usually take place anywhere from around 15 minutes to an hour after the call. Police also intercepted some personal telephone services of some of the offenders including the landline to the granny flat at 72 Arthur St, Ashfield.

To further the investigation, police conducted thirty three controlled buys in which undercover police officers purchased small amounts of methylamphetamine in either tablet or powder form from persons involved in the syndicate. On occasions the undercover officers were offered and shown cannabis by such persons but the offers were declined. The controlled buys in conjunction with the telephone intercepts established that a system was in operation where a purchaser would make a call to one of the mobile numbers and order an amount of either methylamphetamine in powder or tablet form or cannabis. Methylamphetamine tablets were sold for between $30 to $50 per tablet and, on the basis of what was supplied to police, the average weight of a tablet was about 0.3g. Methylamphetamine powder was sold in small bags and, on the basis of what was supplied to police, the drug in each bag weighed approximately 0.51 g. From the investigation it appears that cannabis supplied was divided into bags which would be either $20 or $50 deals.

The evidence establishes that the members of the syndicate were conscious of the possibility of police investigating their activities. Members and, buyers generally used code when discussing drugs. However at times there would be slips and common street names for the drugs would be used. In relation to methylamphetamine sold in powder form (speed) it was established that it was at times referred to by the code words such as fast one, go-go, tickets, two halves of a running man, half a fast car, half a run, butter and speed. The code for methylamphetamine tablets included CD's, channels, E's, eccys, thunders, hearts, vitamins, round ones, lollies and Mickey Mouse. Code words for cannabis included choof, pot, and sticks. Members of the syndicate would always only take small amounts of methylamphetamine when meeting a buyer and would then have to return to 72 Arthur St Ashfield to replenish for further supplies. Tables setting out the calls in which methylamphetamine or cannabis were ordered using such terms are attached and marked annexure "B".

The evidence obtained established that there was a syndicate involved in the supply of drugs in Ashfield and -Campsie area from at least around February 2002, and that each offender was a member of the syndicate and that they were involved in a joint criminal enterprise to supply such drugs. Other persons who at time involved themselves in the joint criminal enterprise were David Culbert, Roger Elias and Stephanie Kipic. The evidence establishes that Saad Nasr, David Nasr and Anthony Kairouz at times participated in the actual supplies to undercover police officers. A table setting out the supplies by these persons to undercover police officers is annexed and marked "C". Also with that table are the statements from the undercover officers supporting such supplies.

In relation to Anthony Kairouz he supplied methylamphetamine to undercover police officers on seven occasions between 11 May and 11 June 2002. In annexure "B" it can be seen from drug lines two and three that during this period of 11 May to 11 June 2002, being the period set out in the charge for on going supply against Anthony Kairouz, he was involved in the supply methylamphetamine and cannabis on almost a daily basis. The evidence establishes that he was involved prior to the 11 May 2002 with police observing him during supplies to undercover officers on 25 March, 1 April and 2 May. The supply by Anthony Kairouz to undercover "Allison" on 1 April 2002 establishes that 72 Arthur St Ashfield .was the place from which supplies of drugs were replenished. On that occasion Anthony Kairouz met with "Allison" and thought she had requested cannabis. "Allison" advised him that she normally bought goey or pills. He told her to wait whist he obtained the drug. He was then observed to travel to and enter 72 Arthur St Ashfield and then return and meet with "Allison" and supply her with a bag of white powder being methylamphetamine. This is consistent with other occasions when, on intercepted telephone calls, various members of the syndicate discussed the place in which the drugs have been secreted at those premises.

On the 17 June 2002 police stopped Anthony Kairouz in Ashfield and in his vehicle located 14 small bags of cannabis and one bag containing methylamphetamine powder. On the 5 July 2002 Anthony Kairouz was stopped by police at the Highgate apartments in the city and on searching police located 20 methylamphetamine tablets (containing hearts, Mickey Mouse and lightening bolt symbols.). From telephone intercepts and evidence from Roslyn Tucker, these tablets were to be supplied to Roslyn Tucker as part of ongoing supplies which John Kairouz had organised with Ms Tucker for money. The evidence of the supplies he did to undercover officers, his possession of drugs when searched by police and evidence from telephone intercepts establishes that he was aware and involved in all facets of the operation and was in a position to exert some control of it with other members.

In relation to John Kairouz , intercepted telephone calls establish his involvement through out the period of the offences. The evidence establishes his-knowledge of all facets of the enterprise and he was in a position of exerting control of it with other members. In relation to the period between 24 March and 25 April 2002, being the period of the on going supply charge, John Kairouz was involved with others in a joint criminal enterprise in relation to the supplies to undercover officers by Saad Nasr and supplies by Saad Nasr and David Nasr as evidenced by the telephone intercepts. A summary of some significant calls in relation to his involvement are set out in annexure marked "D". John Kairouz also supplied methylamphetamine to Roslyn Tucker on a number of occasions during this period. The telephone intercepts, confirmed by Ms Tucker, establish that supplies took place between John Kairouz or Anthony Kairouz in John's absence, and Ms Tucker during the months April to August 2002. On 7 August 2002, after telephone calls in which Ms Tucker ordered drugs, police observed John Kairouz meet with Ms Tucker near the Highgate apartments. After the meeting police detained Ms Tucker and located 40 methylamphetamine tablets and 3.61 g cocaine. Ms Tucker confirms the drugs were supplied by John Kairouz when they met. Ms Tucker's statement sets out and explains the calls during this period in which she was supplied with methylamphetamine. The statement is annexure "E".

In relation to Charbel Kairouz the intercepted telephone calls establish his involvement throughout the period of the offences. For the on going supply offence period between 24 March and 25 April 2002, Charbel Kairouz was involved in a joint criminal enterprise with others in the supplies by Saad Nasr to undercover officers and the supplies by Saad Nasr and David Nasr as evidenced by the telephone intercepts. The evidence establishes his knowledge of all facets of the operation and he was in a position of exerting control of it with other members. A summary of some significant calls are set out in annexure marked "F". Charbel Kairouz resided in the granny flat attached to 72 Arthur St Ashfield. Police searched 72 Arthur St Ashfield including the granny flat on 8 August 2002. At the premises police located approximately one kilogram of cannabis hidden throughout the property, including cannabis divided into 69 small "street deal" bags. On searching the granny flat police located a large amount of cannabis residue on the bench, also in a garbage bin in the flat was a large amount of cannabis stalks and other unusable cannabis leaf. This evidence is consistent with the bench being used to cut up and package cannabis. Ion scans also indicated the presence of amphetamine in the granny flat. During the investigation police became aware of the likelihood that the syndicate were obtaining some items to assist with supply of drugs from a Tobacconist known as "555" at Beamish St, Campsie. On a number of occasions, on intercepted telephone calls, Charbel directed-other members of the syndicate to attend at those premises. A summary of calls relating to the Tobacconist are set out in annexure marked "G". On 25 June 2002 Charbel and David Nasr were stopped by police immediately after attending the "555" Tobacconist. On searching the vehicle police located approximately 600 small plastic resealable bags of the type the syndicate used to supply both methylamphetamine and cannabis. The intercepted calls indicate that Charbel was responsible for the preparation of drugs to be supplied and an involvement in secreting the drugs on the premises. Charbel's knowledge as to where the drugs were located is demonstrated by calls from "runners" in which he advises them where the drug is located.

In relation to the search of 72 Arthur St Ashfield, police also located an amount of money at various locations in the premises. Included in the monies located were two notes which undercover officers had used to purchase methylamphetamine during controlled buys.

In relation to Saad Nasr , he supplied methylamphetamine to undercover police officers on twenty occasions between 26 February and 3 May 2002. In relation to the period of the on going supply charge, being between 24 March to 25 April 2002, Saad Nasr supplied methylamphetamine to undercover officers on fourteen occasions. Saad Nasr was stopped in his vehicle by police on 6 March 2002 and he was found to be in possession of 11 small bags of cannabis and 5 methylamphetamine tablets. During the period from 11 February to 2 June 2002, telephone intercepts indicate that Saad Nasr supplied methylamphetamine and cannabis on almost a daily basis, see annexure "B" drug line 1. The telephone intercepts also establish that Saad Nasr continued to supply such drugs on a less regular basis during the remainder of June, July and August 2002, see annexure "B" drug lines l and 3. The intercepts also provide evidence of discussions relating to drug dealing throughout the period with other. members of the syndicate. The evidence establishes that Saad Nasr continued with his involvement in the supply of drugs up to August 2002, and that he was aware of all facets of the operation and was in a position to exert some control with ' other persons.

David Nasr

COUNT 1 - Ongoing Supply

On the 27 February and 21 March 2002, Saad Nasr supplied methylamphetamine to undercover officers confirming the existence of the drug syndicate. As a result a further 14 supplies of methylamphetamine took place between Saad Nasr and undercover officers during the 30 day period of 24 March 2002 and 25 April 2002. In addition the telephone intercepts establishes that a large number of drug transactions involving methylamphetamine took place on almost a daily basis during the 30 day period ("see annexure "B"). The evidence is that each supply was for financial reward. As each Offender was a party to the joint criminal enterprise all are criminally liable for the supplies which took place during the 30 day period. The count of on going supply for Anthony Kairouz is dated between 11 May 2002 and 11 June 2002 as it is a period that clearly demonstrates his involvement. The evidence establishes that Anthony Kairouz was involved in the joint criminal enterprise before 11 June 2002.

COUNT-2

After the offence period for the on going supply charges, the telephone intercepts and other evidence establishes that the offenders continued on in the supply of methylamphetamine until it was disrupted by police making arrests in August 2002.

COUNT-3

5 His Honour found that "it was the turnover of the operation rather than the size of the individual transactions which ultimately marked it as one of very considerable dimensions", and that it was one which involved "a very careful level of planning". Some of the devices used such as the number of different telephones in false names were found to have indicated "a degree of organisation that went well beyond any spasmodic or amateurish undertaking". As a result, his Honour was satisfied that "this was a case of a systematic enterprise for the purpose of profit and that the scale of the operation and the nature of the means used was sufficient to put it on a level of seriousness and systematic sale of the drugs concerned".

APPLICATION OF CHARBEL KAIROUZ

Ground 1 - that the sentencing Judge erred in finding as a fact in sentence proceedings against the Applicant that he was in a position of influence over his brothers, John Kairouz and Anthony Kairouz thereby increasing the sentence in relation to the Applicant on this basis.

6 In this regard, his Honour said:

you reached a level of education

on the evidence generally, a position of influence over your brothers which cast an extra responsibility on your shoulder, one which must be reflected at least to a certain extent in the sentence which I am about to impose.

7 The Applicant contends, that when sentencing Charbel Kairouz, and in making the finding in question, it is at least possible that his Honour inappropriately took into account the report of the psychologist, Karleen Ryder, which was tendered in the case of Anthony Kairouz, and which stated that he had been influenced in relation to committing the offences by his older brothers. There was some rather tenuous evidence from Anthony Cleary, the Executive Director of the Confraternity of Christian Doctrine who had come to know the Kairouz brothers either through their family or when they were students at St Charbels College, to the effect that, in his opinion, Anthony Kairouz had been a follower of his elder brothers. This evidence was led after counsel for Charbel Kairouz, who had initially called Cleary in his case, had been excused from further participation in the sentencing proceedings. As a result he was unaware that there was any possibility of his client being found to have been the dominant partner in the syndicate.

8 The Ryder report was obviously not part of the material which was available in relation to the sentencing of Charbel Kairouz, although it would be relevant for this Court when considering parity of sentence, in so far as it might explain why Anthony Kairouz received a lesser sentence.

9 The Crown however contends that there was other material which supported the finding that Charbel Kairouz occupied a position of influence over his brothers, arising from the intercepted telephone conversations in which the Applicant can be heard giving Anthony instructions as to what he was to do, and checking on his whereabouts; and from the greater education that he had acquired.

10 It is to be observed that while the submission concerning the telephone conversations related to Anthony, and does justify treating him as having been under the influence of his elder brother, it does not show that Charbel was in a position of influence over John.

11 Next, the mere fact that one offender has a more extensive education, or higher academic achievements, than another, does not necessarily mean that the first is in a position to influence the other, and still less that he has done so.

12 While there was a proper basis to show that each of John and Charbel had a more central role in the syndicate than the others, and were in a position of influence over Anthony, the same cannot be said in relation to the position of Charbel qua John.

13 The offenders were properly to be sentenced according to the positions which they occupied, as disclosed by the agreed statement of facts and attached records. There is nothing which springs to notice in those documents, and in the evidence, which was led, to suggest a proper basis for differentiating between John and Charbel, in terms of their influence, or control over the other offenders or of the operations of the syndicate.

14 So far as the record shows, the Applicant was not given any indication that he was at risk of being considered to have adopted a more dominant role than John Kairouz in the syndicate, or of being heard in opposition thereto, as would have been appropriate: R v Tocknell NSWCCA 28 May 1998 and Chow v DPP (1992) 28 NSWLR 593 at 606.

15 Although his Honour made it clear that he did not consider this aspect of this case required " a significant differentiation" between Charbel and John, the evidence did not, in my opinion, justify any differentiation between them based upon an assessment of the extent to which they could influence others. The only finding available on the agreed facts was that they occupied identical roles as principals in the management of the syndicate and were liable for their individual transactions, as well as for the transactions which were carried out by others pursuant to a joint criminal enterprise. Factual error has been established but whether, of itself, it justifies any reduction in the sentences, falls to be determined in the light of the remaining grounds.

Ground 2 - That the sentencing Judge erred in taking into account as an aggravating factor the educational attainments of the Applicant thereby increasing the sentence on this basis.

16 This ground arises from the circumstance that his Honour observed in the reasons for sentence that he had a level of education "which regrettably counts against him"; and that he was a person who "one would hope, would have both the judgment and the insight to avoid involvement in criminal activities of the kind to which he has now pleaded guilty". As previously noted his Honour had also taken his greater level of education into account in relation to the question of influence.

17 It was submitted that whilst it is permissible for a sentencing court to take into account an offender's lack of education as a mitigating factor (see R v Peckham [2003] NSWCCA 293 at [26] to [28] per Hulme J), the converse does not apply as a matter which can be taken into account as an aggravating factor.

18 The passages cited do have to be read in the full context, which show that they were more concerned with the Applicant's prospects of rehabilitation than with an aggravation of his objective criminality. His Honour said in this regard, immediately following the observation cited above:

"One of the features, in the subjective sense, of this Offender that troubles me and which I have certainly attempted to give proper weight to in the sentence is that despite his level of education and obvious intelligence he is a person who has been very slow to both recognise and identify the implications of his criminal activity or to even understand, it seems from some of his evidence, the nature of the offences which he has committed. That is very difficult to reconcile with a young man who has risen to the level of education which he has reached and it does raise some very real concerns, not about his subjective commitment to rehabilitation, but his capacity to successfully undertake it.

Crimes (Sentencing Procedure) Act

As the Crown submitted it does also, notwithstanding other evidence to the contrary, raise serious doubts about his genuine commitment to rehabilitation. A commitment which he admitted, to his credit, he made at the time of his conviction in the Local Court, and yet notwithstanding his commitment to rehabilitation which he explicitly made to the Court at that time, he apparently saw no difficulty in continuing for some months after in the activities involved in these proceedings."

19 There was some evidence from the Applicant to the effect that a reason for committing the offences was his inability to obtain employment in his chosen field, that is, a position which was commensurate with his tertiary qualifications. That was not a matter which justified his descent into criminality, and so far as it was offered as an excuse or as a matter of mitigation, it is totally without merit.

20 Notwithstanding, I am unable to accept that educational achievement operates as a circumstance of aggravation. It is not a factor referred to in s 21A(1) of the Crimes (Sentencing Procedure) Act, and it is not a matter that has had that character at common law.

21 Were it the case that his Honour found it to have been an aggravating factor, error would have been shown. I am not, however, persuaded that this was the way in which it was used. In my view it was properly available as a matter that went to the Applicant's prospects of rehabilitation, in so far as he had the education and intelligence to realise, and to understand, the consequences of reoffending, yet he chose to continue on a course of serious criminality. It was in that respect also a matter that was relevant for the considerations identified in Veen v The Queen(No. 2) (1988) 164 CLR 465 at 417, in so far as the Applicant had demonstrated a deliberate and continuing disobedience of the law, even though his educational qualifications had equipped him with the ability to fully comprehend what he was doing and what were the likely consequences. I am accordingly not persuaded that error has been shown on this account.

Ground 3 - The sentence imposed was manifestly excessive in the circumstances

Ground 4 - The sentence imposed on the Applicant was so far greater than a number of his co-offenders such that he has a justifiable sense of grievance on the basis there was a marked disparity between the sentence imposed on [him] when compared with the sentence imposed in relation to the co-Offender, Anthony Kairouz.

Ground 5 - That the sentencing Judge erred in passing sentence on the basis that s 25A(1) of the Drug Misuse and Trafficking Act carries a maximum penalty of 25 years and not a maximum of 20 years.

22 These grounds can be conveniently considered together since they overlap. They are equally relevant for the application of John Kairouz who raised substantially similar or identical grounds.

Maximum Sentence

23 It was submitted that the sentencing Judge erred when sentencing each Applicant in relation to Count 1, in so far as he was mistaken as to the maximum sentence that was available.

24 It is the case that his Honour did make the error referred to in Ground 5 in that he noted, at page 2 of the reasons, that the maximum sentence for this offence was imprisonment for 25 years whereas it was in fact 20 years. It does not follow that the head sentence and non-parole period should each be reduced, as the Applicants contended, by 25% (or more correctly by 20%), so as to correct this error. Sentencing does not occur in such a linear or mathematical environment. What was important was that the sentence reflect an appropriate penalty in the light of the overall sentencing pattern for the offence in question, and in the light of the objective and subjective circumstances of the particular case. Whether it did so or not depends on the remaining grounds, although it is to be accepted that the patent error which was identified is sufficient to justify the granting of leave to appeal.

25 Before parting from this ground, it is to be observed that it is confined to Count 1, and does not automatically carry over to the sentence for Count 2 which was set in identical terms.

26 However it is to be noted that in pronouncing sentence, in relation to John Kairouz, his Honour said:

"The sentence which I have already imposed I impose on the first of the three charges which is regarded for understandable reasons by the legislature as the more serious and which in my view on the evidence in this case should be treated accordingly. However, because of the extent of the continuation of the enterprise I see no reason why the sentence imposed for the supply of methylamphetamine should in the end be any different, and therefore the sentence imposed with regard to that charge is the same as that imposed on the first."

27 When sentencing Charbel Kairouz his Honour took up the same theme, observing:

"I now then for the same reasons as I have just given impose the sentence which I have imposed on you with regard to the first of the three offences to which you have pleaded guilty, namely the ongoing supply of the drug, that I impose an identical sentence with regard to the second of the two offences, namely the supply of methylamphetamine for again (sic)."

28 Having set a sentence for Count 1 against the maximum, as his Honour understood it, the inference is irresistible that he simply imposed the same sentence for Count 2, upon the basis that it reflected a continuation of the conduct charged in the first count. It would follow that, if there were error in relation to the first count, then it was perpetuated in relation to the second count, for which, in any event, the maximum sentence was one of only 15 years imprisonment. In circumstances where there were differences in the available maximum sentences, and where his Honour found that the first offence was the more serious of the two, it is difficult to understand why the same sentences should have been imposed for both Count 1 and Count 2, that is unless this was intended as a means of reflecting the total criminality involved.

Parity

29 In relation to the parity submissions, it is appropriate to note that the sentences imposed on the other offenders were as follows:

Anthony Kairouz

Count 1: Sentenced to 3 years and 9 months with a non-parole period of 2 years and 6 months.

Count 2: Same sentence as Count 1. To be served concurrently with Count 1.

Count 3: Sentenced to 1 year and 6 months. To be served concurrently with Count 1.

Saad Nasr

Count 1: Sentenced to 3 years and 9 months with a non-parole period of 2 years and 6 months.

Count 2: Same sentence as Count 1. To be served concurrently with Count 1.

Count 3: Sentenced to 1 year and 6 months. To be served concurrently with Count 1.

David Nasr

Count 1: Sentenced following a Crown appeal ( R v Nasr [2004] NSWCCA 441) to 2 years and 3 months with a non-parole period of 1 year.

Count 2: Same sentence following the Crown appeal as Count 1. To be served concurrently with Count 1.

Count 3: Sentenced following the Crown appeal to imprisonment for 1 year. To be served concurrently with the other sentences.

Stephanie Kipic

Count 1: Sentenced following Crown appeal ( R v Kipic and Elias [2004] NSWCCA 452) to home detention for 1 year and 3 months.

Count 2: Sentenced following Crown appeal to periodic detention for 2 years and 6 months with a non-parole period of 1 year and 3 months, and with an accumulation of 4 months, upon the sentence for Count 1.

Count 3: Sentenced following Crown appeal to home detention for 1 year with a non-parole period of 6 months, to be served concurrently with the sentence for Count 1.

Roger Elias

Count 1: Sentenced following Crown appeal ([2004] NSWCCA 452) to home detention for 1 year and 3 months.

Count 2: Sentenced following Crown appeal to periodic detention for 2 years and 6 months with a non-parole period of 1 year and 3 months, and with an accumulation of 4 months on the sentence for Count 1.

Count 3: Sentenced following Crown appeal to home detention for 1 year with a non-parole period of 6 months to be served concurrently with the sentence for Count 1.

David Culbert

Count 1: Sentenced to a fixed term of imprisonment for 9 months taking into account 3 weeks pre-sentence custody.

Count 2: Sentenced to imprisonment for a minimum term of 18 months similarly taking into account the pre-sentence custody with an additional term of 12 months to be served concurrently with the sentence for Count 1, that is, an overall sentence of 2 years and 6 months, with a non-parole period of 18 months.

30 The Crown lodged appeals against leniency which were successful in relation to David Nasr who was sentenced by Judge Phegan, and also in relation to Kipic and Elias who had been sentenced by Judge Nicholson. No appeal was lodged in the case of Culbert, and it is that circumstance upon which particular reliance is placed by the Applicant.

31 There were some differences between the offenders in relation to their antecedents. John Kairouz, Anthony Kairouz, Elias and Kipic had some entries for relatively minor matters on their records, which had attracted bonds or fines. Each of Culbert, Elias, Saad Nasr, David Nasr and Charbel Kairouz had prior convictions for offences which in some instances had been dealt with by community service orders and otherwise by fines, as well as by a suspended sentence in the case of David Nasr. His Honour Judge Nicholson had however expressly found that the records of Culbert, Kipic and Elias were not such as to attract any weight in their sentencing, and in particular were not matters of aggravation within s 21A(1) of the Crimes (Sentencing Procedure) Act.

32 In a consideration of the parity argument it is necessary to recall that his Honour made findings in relation to Charbel Kairouz, which clearly were open on the evidence, and which were not challenged on appeal, to the following effect:

(i) He was involved throughout the relevant period.

(ii) He had knowledge of all facets of the enterprise and was in a position of exerting control of it with other members.

(iii) He, along with his brother John, was one of the principals in the syndicate.

(iv) He resided at the granny flat at the family address at 72 Arthur Street, Ashfield. When the granny flat was searched on 8 August 2002 police found approximately 1 kilogram of cannabis hidden throughout the property some of it contained in a total of 69 street deal bags. There was also cannabis residue, stalks of unusable cannabis leaf on or near a bench consistent with the use of the bench to cut and package cannabis. Ion scans also revealed the presence of amphetamines in the premises.

(v) He oversaw the purchase of items, for example, resealable plastic bags which were used in supply from a tobacconist by the name of "555" in Beamish Street, Campsie.

(vi) He made telephone calls to other runners engaged by the syndicate concerning the location of drugs which would be collected for the purpose of supply.

33 Subjectively, his Honour noted the supportive environment from which the Applicant had come, his educational achievements which were dealt with in the way previously mentioned, his frustration in being unable to secure other than menial employment, his descent from recreational drug use to intensive daily abuse, his concerted efforts while in custody to take advantage of counselling and drug rehabilitation courses, his commitment to future abstinence, his express intention to resume his tertiary studies and to obtain gainful employment, all of which were potentially favourable but which had to be balanced against the fact that he had been convicted of an offence of supplying a prohibited drug during 2000, which had led to an order for community service, and against the further fact that the current offences had occurred not only while he had been on bail for that matter, but had resumed after he was sentenced for them in May 2002.

34 In relation to John Kairouz, his Honour made the following findings, which were similarly properly open on the facts, and which were unchallenged on appeal:

(i) He was involved throughout the relevant period.

(ii) He had knowledge of all facets of the enterprise and was in a position of exercising control with other members.

(iii) He was one of the principals in the operation.

(iv) His involvement was of a more widespread and significant kind than engaging in transactions with Roslyn Tucker.

(v) He was engaged in supplies to undercover officers between 24 March and 25 April 2002.

(vi) He was involved in instructing other couriers involved in the syndicate including both Saad and David Nasr.

35 Subjectively, his Honour found that he had no prior criminal convictions. Although in fact he has two matters on his record, they are trivial to the point of being ignored. He noted his favourable record of employment and accepted his explanation that he had unthinkingly drifted into drug abuse and that he had expressed a determination not to use drugs again. His behaviour while in custody, his Honour noted, had been positive and the experience, he considered to have had a salutary effect. He accepted that the extent of his prospects of rehabilitation had not been assisted by his continued detention while facing sentence, and that it was necessarily limited to an expression of intention to achieve that end.

36 The findings made in respect of Anthony Kairouz were to the following effect:

(i) He supplied methylamphetamine to undercover officers on several occasions between 11 May and 11 June 2002.

(ii) He was involved during that period in the supply of both that drug and cannabis on an almost daily basis, and there was some evidence of his involvement prior to 11 May.

(iii) When, on 17 June 2002, he was stopped by police in Ashfield, he was found to be in possession of 14 small bags of cannabis and one of methylamphetamine powder.

(iv) When, on 5 July 2002, he was again stopped by police he was found to be in possession of 20 methylamphetamine tablets, which were intended for Roslyn Tucker under an arrangement with his brother John Kairouz.

some

37 Subjectively, as I have previously observed, his Honour, relying upon the evidence of Karleen Ryder and of Mr Cleary, found that this Offender had been a follower of his elder brothers and that "his involvement [in the offences] was at least in part a consequence of the influence which [they] had over him". He noted his history of childhood illness and of physical injuries, the most recent of which arose from a serious car accident in either 2000 or 2001, and that he had a lengthy history of drug abuse from his mid teenage years, which had escalated to polydrug abuse after the accident as a way of coping with his physical restrictions.

38 His Honour noted, and it would seem accepted, his assertion that his role in the syndicate was confined to selling, that he was not in charge of any purchasing of drugs, and that his "job was essentially at the distribution level". He similarly accepted that he had taken advantage of rehabilitation courses, that he had a goal of returning to work, that he was committed to future abstinence from drugs, and that he had responded well in custody to the point of receiving a favourable report from Brother Patrick Lynch of the Parklea Chaplaincy Service.

39 No submission was advanced on behalf of Charbel Kairouz, or for that matter by John Kairouz, in relation to the difference of 6 months in the head sentences which they received for Counts 1 and 2. In this regard, counsel for Charbel Kairouz accepted that the fact that he had received a prior conviction for a drug offence which led to a community service order, and had been on bail at the time of the present offences, justified the imposition upon him of a greater sentence than that which was imposed on John Kairouz.

40 It was however submitted that appellable disparity was evident once comparison was made with the sentences received by Anthony Kairouz since those imposed on Charbel and John were either double, or nearly double, those that were passed for Anthony.

41 It was further submitted that the disparity was even more marked when comparison was made with the sentences imposed in respect of David Culbert, which unlike those imposed on Kipic and Elias, had not been the subject of Crown appeals. In that regard it was pointed out that Culbert's premises were found to contain drugs, scales, plastic bags and mobile phones; that he had been involved in the weighing packing and storage of drugs and in their trafficking for reward. He was found to have minimised the seriousness of his actions, and his contrition was described as muted.

42 Disparity of sentence is not itself a ground for appellate intervention. Rather it is a matter to be weighed when considering whether there is sentencing error: R v Kai Kong Li [2005] NSWCCA 154 at [44] per Barr J with whom the remainder of the five judge bench other than Hidden J agreed. As Barr J earlier observed:

Postiglione v The Queen

43 As Gibbs CJ observed in Lowe v The Queen (1984) 154 CLR 606 at 609:

"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."

44 To similar effect were the observations of Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301:

Lowe v R

Discrepancy or 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."

45 The Court of Criminal Appeal in this state has reserved a discretion not to intervene, or to intervene to only a limited degree, where it is apparent that the sentence under comparison was unjustifiably lenient, and that to reduce the sentence under appeal, so as to provide an equality of outcome, would result in a sentence that would amount to a repetition of error and an affront to the administration of justice: R v Ismunandar and Siregor [2002] NSWCCA 477 at [31] to [32] and see also R v Diamond NSWCCA 18 February 1993, R v Hopper NSWCCA 19 November 1998, R v Tisalandis [1982] 2 NSWLR 430, and R v Li.

46 In the present case there were proper grounds available, in accordance with his Honour's factual findings, for him to have imposed sentences upon the Appellant and John Kairouz which were longer than those which he imposed on Anthony Kairouz.

47 His Honour found that Charbel and John Kairouz were each principals who had been engaged in the operation from the outset until it was wound up, that they had knowledge of all of its facets and were in a position of exercising control. Although Anthony Kairouz was also found to have been aware and involved in all facets of the operation, the level of actual control which he exercised was found to be less than that of Charbel and John Kairouz - a distinction which was to be found in the agreed facts in so far as Anthony was said to have been in a position to exercise "some control", a qualification which his Honour expressly noted did not apply in relation his level of actual control (or similarly that of Saad Nasr). His control was accordingly found to be significantly less than that of his brothers, and his criminality was said to have been "of a much less serious level". Additionally his Honour found that his involvement "was at least in part a consequence of [his] inclination to follow his older brothers".

48 The time frame for two of the charges preferred against Anthony Kairouz also differed from that for the charges preferred against Charbel and John Kairouz as follows:

Count 1 - ongoing supply - 11 May 2002 to 11 June 2002, compared with 24 March 2002 to 25 April 2002.

49 The time frame for Count 3 - supply cannabis of 14 February 2002 and 20 August 2002 was common for all three offenders.

50 It is evident from his Honour's remarks on sentence, particularly in so far as they were based on the evidence of Mr Cleary, which he noted had been "implicitly guarded" in relation to Charbel and John Kairouz, that he had more confidence in Anthony Kairouz's prospects of rehabilitation than he had in relation to the elder brothers.

51 Finally of relevance for the difference in the sentences imposed on Charbel and John Kairouz, on the one hand, and on Anthony Kairouz on the other hand, is that while his Honour accepted that each saw the enterprise as "an easy way first of all supplying and of subsequently financing their [drug] habit", he also made the following observation:

"However, I have to say that the extent of the enterprise is such that it is impossible to accept that the level of activity which is supported by the evidence can be entirely explained away on the basis of providing support for the drug habits of each of the offenders, and that is particularly so in the case of John and Charbel Kairouz. First of all the evidence does not suggest that their level of involvement in drugs was anything above a recreational nature and that it would be impossible to accept that the level of income from this enterprise would have been no more than necessary for that particular purpose."

52 There is in this passage a further recognition of the difference in criminality which affected Anthony Kairouz compared with that attaching to his elder brothers.

53 It follows, in my view, that not all things were equal, and although there is a considerable gulf between the sentences which were imposed, it is not such as to give rise to a justifiable sense of grievance.

54 Little was said in support of the parity ground in relation to the sentences imposed on Saad Nasr and David Nasr who were charged in identical terms to those charged against Charbel and John Kairouz, nor in my view could any sustainable argument have been developed in this respect.

55 In the case of Saad Nasr, the facts found were as follows:

(i) He supplied methylamphetamine to undercover police on 20 occasions between 20 February and 3 May 2002, including 14 sales during the period charged for the ongoing supply offence.

(ii) When he was stopped by police on 6 March 2002, he was found to be in possession of 11 small bags of cannabis and 5 methylamphetamine tablets.

(iii) Telephone intercepts show that he supplied methylamphetamine and cannabis on an almost daily basis between 11 February and 2 June 2002.

(iv) The regularity of his involvement decelerated thereafter.

56 Subjectively, he was also found to have come from a close knit and supportive family, and to have developed an uncontrollable polydrug dependency which led to him joining the Kairouz brothers' syndicate for the purpose of supporting that habit.

57 His Honour noted his express intention to resume education and to abstain from further drug use, and took into account the fact that he had attended counselling, completed several courses and participated in a relapse prevention program while in custody, in a way which was rated as "satisfactory". It was not in his favour that he had some history of disruptive conduct on his prison record, as well as an earlier gambling habit, but it appears that his Honour was not dismissive of his overall prospects for rehabilitation in the light of his family support, his progress while in custody which his counsellor had described as having involved "commendable steps" to address his dependency issues, and his willingness to undertake appropriate treatment for the mental health issues which had been identified.

58 In the case of David Nasr, findings were made to the following effect:

(i) He supplied methylamphetamine to undercover officers on four occasions between 28 April and 3 May 2002;

(ii) Telephone intercepts showed evidence of his involvement in the supply of methylamphetamine and cannabis between 15 and 25 April on an almost daily basis.

(iii) He was present in a vehicle, on 8 May 2002, with two of the offenders who were sentenced by Judge Nicholson, and who were involved in discussions with undercover police for the further supply of methylamphetamine.

(iv) He was present with Charbel Kairouz on 25 June when he was stopped by police following the visit to the tobacconist shop previously mentioned.

(v) During the period up to August 2002 he was involved in intercepted telephone conversations in which he discussed the supply of drugs with other syndicate members and arranged visits to the granny flat rented by Charbel Kairouz.

(vi) He was aware of all facets of the operation, but in contrast to the Kairouz brothers and Saad Nasr, "he did not have the opportunity or indeed the capacity to exert any control over the operation".

59 Subjectively his Honour noted that he had a history of recreational drug use and that he claimed to have joined the syndicate to furnish his drug habit. He also noted that this Offender had indicated that his arrest had led him to be motivated to undertake changes in his behaviour that would result in a more stable drug free lifestyle. He noted that the pre-sentence report had been "very positive"; and said that there was further supportive evidence from another brother, who was not involved in the syndicate's activities, which was "particularly persuasive", and which provided an insight into his decline into criminality following a drive-by shooting at his home which had left him "particularly traumatised" and which had led to "quite conspicuous changes in his behaviour". The evidence, his Honour said, additionally confirmed his current commitment to rehabilitation, as was evidenced by his return to his family, both in a physical sense and as a bread winner, by the fact that he was holding down night and day jobs, and by the fact that he was not using drugs.

60 In summary his Honour said of him:

"From the point of view from his personal history and in particular his history since his release from custody he has shown himself in a very convincing way a person who having fallen into a drug habit and ultimately into the supply of drugs as a consequence of circumstances over which he does not appear to have entirely had control, has made a very positive and promising commitment to total rehabilitation."

61 It is evident that, in sentencing David Nasr, his Honour took into account the fact that he had already been held in custody for four months, that he had demonstrated rehabilitation, in a more positive way while on bail than the other offenders who appeared for sentence, and that returning him to full time custody risked seriously undermining the process of his rehabilitation.

62 In allowing the Crown appeal this Court said:

"31 An inescapable consideration to emerge from the agreed facts and his Honour’s findings in relation to the respondent is that over a significant period of time the respondent was actively engaged in a business which involved the serious and systematic sale of drugs for profit. He was aware of all facets of the operation. The fact that he did not have the opportunity or capacity or exert any control over the operation impacts upon his level of culpability by comparison with his co-offenders. It does not take his case out of that category in relation to which this Court has consistently said a custodial sentence is mandatory unless exceptional circumstances can be established. Exceptional circumstances were not established.

32 In factual situations of this kind this Court has consistently held that considerations of general deterrence and denunciation have to be emphasised in the sentencing process. Despite the positive progress on a subjective basis which the respondent has made towards successful rehabilitation, I am of the opinion that the sentences imposed by his Honour were manifestly inadequate. Although his Honour referred to it in his recitation of the facts, it also seems that his Honour failed to have regard to the fact that the respondent was on conditional liberty during the period when these offences occurred."

63 It is evident from the reasons of this Court that the sentences which it ultimately substituted in his case were at the lower end of the available range, and that the Court had taken into account not only the discretion reserved for Crown appeals, but also the lengthy delay between arrest and sentence, much of which was unexplained, as well as the demonstrated rehabilitation, and the harshness involved in resentencing an Offender to full time imprisonment in circumstances where there had been a three month period of uncertainty between sentence and the hearing of the appeal. Those circumstances do not apply for the present applicants, and they also assist to explain away any question of disparity.

64 Comparison of the sentences imposed with those passed on Elias also provides no assistance. He was found by his Honour Judge Nicholson to have not been involved before 5 May 2002, and thereafter only as a "runner" or "gopher" who received calls from interested buyers, collected drugs from other members of the operation, delivered them and returned with the proceeds of sale which he gave to the principals. His role was found to be less than that of Kipic and Culbert. His Honour noted that there was no evidence of him recruiting innocents into drug abuse, or of contributing to the design of the supply system, or of being the architect of the anti detection measures, or of having any role in the packing, cutting or production of the drugs. Subjectively his Honour found that he had been homeless and unemployed at the time of the offences and that he had been led into participating with the co offenders by reason of his use of drugs to cope with depression. He was found to have ceased the use of drugs while awaiting sentence, to have embarked in a positive way on his rehabilitation through TAFE courses, and to have been reconciled with his father who had provided him with a home and employment.

65 His sentence was reset, after a successful Crown appeal, which meant that the sentence imposed was at the lesser end of the available range. It took into account, inter alia, the fact that the appeal had the effect of returning him to custody after an unusually lengthy period of remand for 22 months, upsetting what could only be described as having been the very lenient sentences which his Honour had directed were to be served by way of home detention. In fact this Court at [35] described the sentences imposed at first instance as having been "extraordinarily lenient". In the absence of "exceptional circumstances" of the kind referred to in R v Clark NSWCCA 15 March 1990, and in combination with his Honour's failure to comply with the guidance given in R v Zamagias [2002] NSWCCA 17 and in R v Jurisic (1998) 45 NSWLR 209, in relation to home detention, there was found to have been appellable error.

66 Similar considerations apply in the case of Kipic, whose involvement in the ongoing supply offence concerned three sales made within a 24 to 36 hour period, in which her role had been that of driving the person who handed over the drugs. Her involvement in the supply offence was found to have concerned a series of small supplies on request to users, which were effected after she received phone calls and made solo deliveries, when Culbert was unavailable.

67 His Honour rejected the Crown submission that, together with Culbert and Saad Nasr, she had taken over the run and had been party to its continuation in the same fashion as that which had been conducted from the Ashfield premises of the Kairouz brothers. She was found not to have been involved in the design of the syndicate's operations, although she was found to have been actively engaged for reward.

68 Similarly to Elias, the sentence which was substituted on appeal is to be considered as having been at the lower end of the available range, and to have brought to an end after 22 months on remand, the earlier sentences which were to be served by way of home detention.

69 This Offender was found to have been introduced to the syndicate by Culbert with whom she has been in a relationship, to have come from a deprived, disruptive and dysfunctional family background, as well as to have been involved, in her late teens, in a violent and abusive relationship which led to depression and a nervous breakdown. Her involvement in the offences was found to have come about by "a confluence of factors including her drug use, her low sense of self esteem, her desire to impress Culbert, and his encouragement to her".

70 His Honour accepted that she had ceased the use of drugs after her arrest, had returned to gainful employment, had recognised the wrongfulness of her acts, had become caring and supportive of her younger brother, and had demonstrated good behaviour while on bail. These circumstances were found to be positive indicators of rehabilitation, albeit subject to some warning signs which his Honour identified, and which, in his view, called for a lengthy period of potential supervision in the community.

71 In the case of each of these offenders the Court of Criminal Appeal made it clear that the extent of its intervention was "qualified by a need to avoid a heavy handed upsetting of what [they] have thus far respectively achieved in connection with their rehabilitation, and to take into account "the length of time for which the shadow of possible imprisonment has hung over them; and to give fair credit for compliance to date with the orders made by Judge Nicholson."

72 It is always appropriate to take into account, for parity purposes, sentences imposed upon co offenders on appeal. However, where there are personal considerations present affecting the length of those sentences such as demonstrated substantial post offence rehabilitation, delay, or the harsh consequences of returning an offender who has been at large to prison, they are relevant in determining whether a justifiable sense of grievance could be entertained by another offender, who received a longer sentence and who did not share those factors.

73 This is in fact the case, for the reasons explained in relation to Kipic, Elias and also David Nasr. Apart from the other matters mentioned it eliminates any such sense of grievance in relation to the sentences which they ultimately receive after the Crown appeals.

74 The position in relation to Culbert is one of some importance. In relation to the ongoing supply offence, it is to be noted that it was confined to five discrete supplies between 14 May and 5 June 2002, and that his participation was as driver for Anthony Kairouz. The quantity of the drug involved was about 3.8 gms of 1.5% purity, the total value of which was $250.

75 The remaining counts spanned the period between 6 June and 19 August 2002, and between 14 May and 19 August 2002, and involved at least 5 gms of methylamphetamine and 1 Kg of cannabis. The quantity of cannabis found by police at his premises was 225 gms, that is, an amount less than the trafficable quantity. Plastic bags, scales and some Nokia phones and associated equipment were also found.

76 As a result, his role was found by his Honour Judge Nicholson to have been more substantial than that of Kipic and Elias, and to have included work which went beyond that of a "runner", such as weighing, packing and storing drugs. His premises were found to have been a place where Saad Nasr was able to collect drugs for on sale, and he was held to have been trafficking for reward. His criminality was accordingly serious.

77 Subjectively, he was found to have come from a close knit and supportive family, and although unemployed at the time of the offences, his Honour noted that he had earlier performed well while studying as an apprentice, and that he had been in regular employment since being granted bail. His involvement was not found to have been attributable to any problem with drug abuse, but rather to an inability or refusal to acknowledge the wrong doing associated with the supply of prohibited substances.

78 His Honour was unimpressed with his attempts to minimise his involvement. His failure to accept the full extent of his dealing was regarded as a matter which denied to him full credit for his contrition or for the assessment of his rehabilitation prospects. His failure to understand the harm caused by the use of drugs was similarly regarded as a matter demonstrating an absence of insight into this area of criminality. His psychological profile was also found to give rise to concern, in so far as it suggested a lack of preparedness to be frank, a "high tolerance to socially non-conforming attitudes, values and behaviours" and in so far as it revealed significant scores on the drug dependence scales, as well as a self focussed personality and immaturity in thinking.

79 Otherwise it was accepted that he had been of good behaviour while on bail during the period of 22 months on remand, and had not been using drugs. Generally, however, his Honour found that while Culbert had made some progress towards rehabilitation it was "not as impressive" as that of Kipic and Elias.

80 The differences between the subjective circumstances of Elias and Kipic on the one hand and Culbert on the other, and the findings as to their respective prospects of rehabilitation were no doubt behind the decision of his Honour to order that Elias' and Kipic's sentences be served by way of home detention, and to direct that the Culbert sentences be served by way of full time custody. It was almost certainly that difference which motivated the Crown appeal in the case of those two offenders, but not in the case of Culbert.

81 The sentences imposed upon Culbert, were surprisingly lenient and were, in my view, outside the lowest level of a permissible sentencing range, but I am not however satisfied that they give rise to a legitimate sense of grievance, for the following reasons:

(a) Culbert was drawn into the enterprise at a later stage than Charbel and John Kairouz who occupied the position of principals throughout, his first involvement occurring in May 2002, whereas their involvement began in March 2002.

(b) Culbert's involvement in Count 1 was confined to five discrete supplies whereas the supplies relied upon for that count in relation to Charbel and John Kairouz were far more numerous, occurring on a daily, or almost daily basis over the period charged.

82 While there was a significant difference in the sentences passed, this is not a case where all things were equal, in terms of the objective criminality of Charbel and John Kairouz, on the one hand, and of Culbert on the other hand. Moreover, to reduce the sentences imposed on John and Charbel Kairouz, so as to reflect the differences in the respective sentences, would be to perpetrate error, and to give rise to an affront to justice.

83 It is not the case that his Honour overlooked the issue of parity in that he expressly made reference to that issue, carefully weighed the objective and subjective circumstances of relevance for the offenders before him, and gave careful attention to the sentences which had been pronounced in relation to Kipic, Elias and Culbert and the reasons for them. That analysis included reference to the different factual bases upon which they had been sentenced, and the differences in their respective levels of involvement, and in the times when they were drawn into the operation.

84 For these reasons the parity argument fails in relation to both of the applicants before the Court.

Legitimate Sentencing Range

85 The final ground, which again is common to both applicants, is that the sentences were outside the legitimate sentencing range. That is to be considered in a context where each offender was given a 25% discount for the pleas; where non-parole periods equivalent to 66% of the head sentences were set; and where there was no accumulation of sentence for what amounted to ongoing, although separate, offences of considerable criminality.

86 In R v Khaled [2001] NSWCCA 169, I made the following observation of relevance for Count 1:

"18 It is precisely to the dealers who engage in this kind of conduct, that s 25A is directed, since it is those persons who keep the pernicious trade in heroin rolling. It may well be that an important part of the policy behind this legislation was to impose significant penalties which exist for those offenders who see it as profitable or prudent to immunise themselves from the significant penalties which exist for dealing in single large quantities, and in particular, by selling small enough deals from a stock warehoused elsewhere. I am unable, however, to accept that the section is to be confined to them. It applies equally to dealers such as the present applicant, who engage in an ongoing trade within the meaning of the section.

19 An appropriate differentiation can be drawn between the various classes of offenders to whom the section applies, by reflecting that in sentences towards the upper end of range within the available maximum of twenty years, for the bigger and more organised dealers, and by imposing lesser sentences for those who are at the bottom of the distribution chain. What is important is to give full effect to the legislative policy that this section operate so as to provide strong deterrent to those who may be tempted to engage in an ongoing trade in heroin and, in particular, to deter those who are minded to stand in their shoes once they are apprehended and sentenced to imprisonment. This is necessary to combat the unfortunate reality that there seems to have been an almost endless supply of street sellers willing to move in once others of their ilk are taken off the streets."

87 Although those observations were made in a decision where the subject drug was heroin, the same considerations apply to other prohibited drugs, particularly methylamphetamine.

88 The quantity of the drugs supplied in the case of such an offence is not the only relevant consideration, since as Hulme J pointed out in R v Smiroldo [2000] NSWCCA 120 at [15] the section is aimed at the business of supplying prohibited drugs, and it is the magnitude of that operation, rather than the individual supplies which is of importance.

89 Similarly in R v Hoon and Pouoa [2000] NSWCCA 137 Dunford J said:

"39 The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply."

90 The seriousness of the offence of supplying drugs on an ongoing basis has also been confirmed in other decisions of this Court, for example, R v Shi [2004] NSWCCA 135, and more recently R v Le [2005] NSWCCA 162 and in R v Preston [2005] NSWCCA 177. In the present context the further acts of supply which followed those that gave rise to Count 1, which were a continuation of the highly organised and active operation, which the syndicate had established, and of which the Applicants were principals from the outset, were also very serious objectively. In these circumstances heavily deterrent sentences were called for, as appears from the decision of this Court in R v Cheikh and Hoete [2004] NSWCCA 448, a case with some similarities in so far as it involved persons well entrenched in an organised distribution network (at least in relation to Cheikh).

91 In the case of Charbel Kairouz the continuation of his involvement while subject to a community service order for a drug supply offence, and while on bail for that offence, was a matter of considerable aggravation: R v Fernando [2002] NSWCCA 28 at [41] and R v Cicekdag [2004] NSWCCA 357 per Grove J at [7] to [8] and per Hoeben J at [48] to [54].

92 Taking into account the sustained and serious criminality involved, and giving full credit for the subjective circumstances of each Applicant, including the matters which I will mention in a little more detail when I come to the first ground in the appeal of John Kairouz, I am not persuaded that any sentences other than those imposed were warranted in law and should have been passed: s 6(1) Criminal Appeal Act.

93 I reach that conclusion with a full appreciation of his Honour's mistaken reference to the maximum available penalty for Count 1 and the factual error identified in Ground 1. Whether the sentences imposed are to be set against a 20 year or 25 year maximum, being so far short of either figure, such an error, or slip of the tongue if it be that, was of no moment. More important and relevant is to consider the offending against the range of a legitimate sentencing discretion, in the light of the decided cases, some of which are elsewhere cited in these reasons, and in particular were noted by Giles JA in R v Cheikh and Hoete.

94 Additionally the case was one where the sentencing order needed to reflect the totality of the criminality involved. While his Honour may not have accorded strictly with the decision in Pearce v The Queen in relation to Count 2 in particular, the effective overall sentencing order seems to me to have achieved that result.

95 I am not persuaded that any of the grounds have been made good.

96 In the case of Charbel Kairouz I therefore propose the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

APPLICATION OF JOHN KAIROUZ

97 This Applicant advanced the following grounds of appeal:

Ground 1 - the sentencing Judge failed to give sufficient weight to the subjective features of the Applicant particularly before and after the offence.

98 It was submitted in substance that this Applicant's motivation to become a party to the enterprise arose in circumstances where he was a victim of the vicious cycle of use and supply and was not a trafficker for greed, thereby placing him at the lower level of criminality: R v Tulloh NSWCCA 16 September 1993. That proposition was specifically rejected by his Honour in the passage earlier cited, and while his drug use may have helped explain the reasons for his joinder of the enterprise it did not, in any way, excuse it for the reasons which I identified in R v Henry (1999) 46 NSWLR 346 at [236] to [259]. Moreover the decision in Tulloh does not provide a basis for a proposition stated in the bald terms submitted, as appears from the judgment of Hunt CJ at CL in so far as his Honour noted that each case depends on its own circumstances, and that a custodial sentence is normal in the case of trafficking to any substantial degree, whether or not a profit has been obtained.

99 Next, it was submitted that the evidence of rehabilitation, remorse and contrition was of the highest order, and that the present case fell into the category in which the Court might rhetorically ask "what more could the Applicant do?" citing R v Klein (2001) 121 A Crim R 90. That question was asked, in that case, in relation the offender's provision of assistance, which police had been unable to take up for operational reasons. It is not authority for the proposition that some special allowance must be given above that which otherwise would have attached to the Applicant's plea, contrition, remorse and progress toward rehabilitation.

100 As I read his Honour's reasons, full credit was given for these matters, both in setting the sentence and in fixing a very favourable non-parole period outside the legislative direction contained in s 44(2) of the Crimes (Sentencing Procedure) Act.

101 I am unpersuaded that error has been demonstrated in this respect.

Ground 2 - The sentence was manifestly excessive in the circumstances.

Ground 3 - The sentence imposed on the Applicant was so much greater than the co-offenders that he has a justifiable sense of grievance.

Ground 4 - The sentencing Judge erred in passing sentence on the basis that s 25A(1) of the

Drug Misuse and Trafficking Act

carries a maximum of 25 years imprisonment and not a maximum of 20 years.

102 I have already dealt with these grounds which are common with those that apply to Charbel Kairouz. I reach the same conclusion, in relation to this Applicant, for the reasons previously given, which it is unnecessary to repeat.

103 Being unpersuaded that there is anything in Ground one which calls for a lesser sentence in relation to this Applicant, I would propose the following orders:

1. Leave to appeal granted;

104 GROVE J: I agree with Wood CJ at CL.

105 ROTHMAN J: I agree with Wood CJ at CL.

**********

Actions

Download as PDF Download as Word Document

Citations

R v Kairouz [2005] NSWCCA 247

Most Recent Citation

Fayd'herbe v R [2007] NSWCCA 20

Cases Citing This Decision

24

R v Ismail; R v Bakri (No 1) [2021] NSWDC 796

R v Fahmy [2015] NSWDC 382

R v Cuzman and Bucataru [2012] NSWDC 274

Cases Cited

23

Statutory Material Cited

3

R v Cheikh [2004] NSWCCA 448

R v Cicekdag [2004] NSWCCA 357

R v Fernando [2002] NSWCCA 28

CITATION:	R v Kairouz [2005] NSWCCA 247
HEARING DATE(S):	4 July 2005
JUDGMENT DATE:	22 July 2005
JUDGMENT OF:	Wood CJ at CL at 1; Grove J at 104; Rothman J at 105
DECISION:	Charbel Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed. John Kairouz - 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS:	CRIMINAL LAW - whether sentencing judge erred in finding the Applicant was in a position of influence over his brothers - whether educational attainments of Applicant taken into account by sentencing judge as an aggravating factor - whether sentences manifestly excessive - parity - maximum sentence for offence - legitimate sentencing range - whether sufficient weight given to subjective features of Applicant before and after the offence.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999- s 21A(1), 44(2) Criminal Appeal Act 1912- s 6(1) Drug Misuse and Trafficking Act 1985 - s 25A(1), 25(1), 32(1)(g)
CASES CITED:	Chow v DPP (1992) 28 NSWLR 593 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 R v Cheikh and Hoete [2004] NSWCCA 448 R v Cicekdag [2004] NSWCCA 357 R v Clark NSWCCA 15 March 1990 R v Diamond NSWCCA 18 February 1993 R v Fernando [2002] NSWCCA 28 R v Henry (1999) 46 NSWLR 346 R v Hoon and Pouoa [2000] NSWCCA 137 R v Hopper NSWCCA 19 November 1998 R v Ismunandar and Siregor [2002] NSWCCA 477 R v Jurisic (1998) 45 NSWLR 209 R v Khaled [2001] NSWCCA 169 R v Kipic and Elias [2004] NSWCCA 452 R v Klein (2001) 121 A Crim R 90 R v Le [2005] NSWCCA 162 R v Kai Kong Li [2005] NSWCCA 154 R v Nasr [2004] NSWCCA 441 R v Peckham [2003] NSWCCA 293 R v Preston [2005] NSWCCA 177 R v Shi [2004] NSWCCA 135 R v Smiroldo [2000] NSWCCA 120 R v Tisalandis [1982] 2 NSWLR 430 R v Tocknell NSWCCA 28 May 1998 R v Tulloh NSWCCA 16 September 1993 R v Zamagias [2002] NSWCCA 17 Veen v The Queen (No. 2) (1988) 164 CLR 465
PARTIES:	Regina Charbel Kairouz John Kairouz
FILE NUMBER(S):	CCA 2005/282; 2005/283
COUNSEL:	D Frearson SC (Crown) C Stern SC (Charbel Kairouz) G Jones (John Kairouz)
SOLICITORS:	S. Kavanagh (Crown) K C Lawyers

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1136
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ