R v Mousallem

[2001] NSWCCA 536

CITATION:	R v Mousallem [2001] NSWCCA 536
FILE NUMBER(S):	CCA 60792/00
HEARING DATE(S):	14 December 2001
JUDGMENT DATE:	14 December 2001
PARTIES :	Regina Alan (Ahmad) Mousallem
JUDGMENT OF:	Wood CJ at CL; Sperling J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0071
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL :	J S Stratton for the Applicant G E Smith for the Crown
SOLICITORS:	Brenda Duchen for the Applicant S E O'Connor for the Director of Public Prosecutions
CATCHWORDS:	Criminal Law - application for leave to appeal against sentence - no question of principle
CASES CITED:	Wong and Leung (1999) 48 NSWLR 340
DECISION:	Leave to appeal granted; Appeal dismissed.

- 1 -IN THE COURT OF

1 SPERLING J: The applicant was born on 10 July 1967. He was imprisoned in relation to various offences from 6 December 1991 to 10 April 1998. The offences included armed robbery, supply of a prohibited drug (heroin), and being knowingly concerned in the importation of a prohibited drug (heroin). When he was sentenced for supply of a prohibited drug, two similar offences were taken into account.

2 The offence of being knowingly concerned in the importation of a prohibited drug was a Commonwealth offence for which the applicant received a sentence of nine years with a non-parole period of six years expiring on 10 May 1999. An appeal against that conviction and sentence was unsuccessful. The applicant was released on licence on 10 April 1998, some 13 months earlier than the expiry date for the non-parole period of six years.

3 On 5 November 1999 the applicant was arrested and charged with a further offence of supplying prohibited drug (heroin) on that day. The supply was constructive, the applicant having been found in possession of heroin and selling paraphernalia.

4 At that time, the applicant had been out of prison for a period of approximately 18 months. The non-parole period of six years in relation to the previous Commonwealth offence had expired but the head sentence of nine years had not. The applicant was still on liberty on licence in relation to that sentence.

5 The applicant pleaded not guilty to the new charge. Following a trial in the District Court he was convicted on 7 December 2000.

6 In his remarks on sentence, Freeman DCJ summarised the circumstances of the offence and the applicant's prior criminal history. He also noted that at the time of the offence the applicant was at liberty on licence.

7 His Honour referred to a report tendered on sentence being a report by Barbara Aldrich Psychological Services, which recorded the history of a disruptive, destabilising and psychologically damaging childhood and upbringing, including childhood exposure to the trauma of war in Lebanon. There was also a history of the applicant and his brother becoming separated from their parents after their arrival in Australia from Lebanon, and of the brother's untimely death. His Honour noted that the applicant did not give evidence on oath at the sentencing hearing in support of that history. It is apparent that his Honour was somewhat sceptical as to its reliability, as his Honour was entitled to be. Nonetheless, his Honour said that he was allowing some weight to the material and that, accepting it as an accurate picture, it provided some explanation for how the applicant came to be involved with drugs but no excuse for having engaged in the drug trade. That was a reasonable appraisal of the evidence concerning the applicant's personal history.

8 His Honour accepted that the process of psychological assessment which had occurred might improve the applicant's prospects of rehabilitation. That was supported, to some extent, by the applicant having sought assistance within the prison system by way of psychological counselling and drug and alcohol counselling. His Honour noted, however, that Ms Aldrich predicted that the applicant's course of treatment would be difficult, prolonged, and subject to the likelihood of there being reversals and set backs.

9 His Honour imposed a sentence of eight years and 11 months commencing on 16 November 2000 with a non-parole period of four years and 11 months. His Honour revoked the licence under which the applicant had been released and sentenced the applicant to 12 months imprisonment in that regard to be served concurrently. (His Honour specified the latter period of imprisonment as being from 11 May 2000 to 10 May 2001, but it is common ground on the hearing of the appeal that that was a slip, and that his Honour intended to specify 11 May 2001 – being the date of sentence – to 10 May 2002.)

10 The sentence imposed by his Honour was effectively a sentence of nine years with a non-parole period of five years, taking into account a period of 26 days which the applicant had spent in custody shortly following his arrest on the present charge. His Honour backdated the sentence to 16 November 2000 notwithstanding that from that date to 4 December 2000 the applicant was in custody, bail refused, in relation to other matters (albeit matters for which there was never a conviction).

11 The non-parole period was substantially less than that provided for by the provisional statutory formula, his Honour having found special circumstances by reason of need for a prolonged period of supervision and treatment on the applicant's release from prison. Indeed, the departure from the provisional statutory formula was unusual in its extent, being approximately 60 percent of the head sentence by comparison with the provisional proportion of 75 percent.

12 The applicant seeks leave to appeal against the sentence. The only ground of appeal is that the sentence was manifestly excessive. In support of that ground of appeal it is observed on the applicant's behalf that the applicant was in possession of 14.5 grams of heroin which was 47.5 percent pure. That, it is pointed out, was towards the lower end of the range of quantities applicable to the offence for which he was convicted. It is said that a sentence of about two thirds of the maximum penalty of 15 years was disproportionate. That submission must be moderated by the consideration that both the head sentence and the non-parole period include the sentence of 12 months for breach of the licence.

13 An analogy was also sought to be drawn with the decision of this Court in Wong and Leung (1999) 48 NSWLR 340, where a range of five to seven years imprisonment was specified as a guide for the offence of importing a prohibited drug in the quantity of two to 200 grams. The proposed analogy takes no account, however, of the applicant's criminal history.

14 Counsel for the applicant has also referred the court to statistics kept by the Judicial Commission of New South Wales. They indicate that, of 391 offenders sentenced for the relevant offence between April 1993 and December 2000, only three received a higher non-parole period or its equivalent, and only one received a higher head sentence. The statistics are informative but they do not, of course, constitute binding precedent. They include offenders with prior convictions, but they do not reveal the nature and extent of such prior convictions, nor the extent of penalties previously imposed.

15 The applicant's prior record is of particular importance. It includes very serious crimes, including armed robbery and offences of the same kind as that committed on this occasion. A prison sentence of nine years, of which the applicant served about five years, was insufficient to deflect the applicant from this pattern of behaviour. The applicant was on bail for an earlier supply offence when he committed the Commonwealth offence to which I have referred, and he was on licence when he committed the Commonwealth offence for which he was sentenced in this instance.

16 The applicant has displayed a complete disdain for the law and for the consequences of criminal behaviour for him, personally. That makes the prospect of rehabilitation very problematic indeed. There is a need for severe punishment in this case in the hope that this may cause the applicant to change his ways. The applicant's history also increases the weight to be given to protecting the community from a continuation of the same pattern of behaviour, although the penalty cannot, of course, be disproportionate to the objective gravity of the offence for which the applicant has been convicted and sentenced.

17 The sentencing judge had regard to all relative considerations relating to the objective circumstances of the offence for which the applicant was convicted and to the subjective circumstances relating to the applicant personally. An important feature of the sentence imposed is that it included the sentence of 12 months for the breach of licence so that, effectively, for the present offence, the applicant was sentenced to a head sentence of eight years and a non-parole period of four years.

18 Having regard to these considerations, the sentence imposed both in relation to the total sentence and the non-parole period was, as I assess it, a heavy one, but properly so and within the range of a proper exercise of judicial discretion.

19 I would grant leave to appeal and dismiss the appeal.

20 WOOD CJ at CL: I agree. I only wish to add that having regard to the fact that the present offence was committed at a time when the applicant was on licence, it was appropriate, if not essential, that the sentence imposed for the new offence be cumulative upon the existing sentence.

21 The order of the Court will therefore be as Sperling J has proposed.

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