R v Nasr

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Nasr [2004] NSWCCA 441

FILE NUMBER(S):
2004/2395

HEARING DATE(S): 01/12/04

JUDGMENT DATE: 08/12/2004

PARTIES:
Crown - Appellant
David Nasr - Respondent

JUDGMENT OF: Tobias JA Sully J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1135

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
Ms J Girdham - Applicant Crown
Mr R Hulme SC - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Crown
S O'Connor, Legal Aid Commission - Applicant

CATCHWORDS:
CRIMINAL LAW: Sentencing - Crown appeal against leniency of sentence - whether sentence manifestly inadequate - objective gravity of offences - member of drug supplying syndicate - whether prospects of successful rehabilitation given too much weight.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
Crown appeal allowed. Sentences imposed in relation to counts 1,2 and 3 quashed. Respondent re-sentenced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2395
TOBIAS JA
SULLY J
HOEBEN J
Wednesday, 8 December, 2004

REGINA v David NASR

Judgment

TOBIAS JA: I agree with Hoeben J.
SULLY J: I agree with Hoeben J.
HOEBEN J:
Offences and sentences
On 2 June 2004 the respondent entered a plea of guilty to the following offences:
Count 1: Ongoing supply of a prohibited drug methylamphetamine (d.o.o. between 24 March 2002 – 25 April 2002) contrary to subs 25A(1) of the Drug Misuse and Trafficking Act 1985.
The maximum penalty is $385,000 fine or imprisonment for 20 years or both.
Count 2: Supply a prohibited drug, methylamphetamine (d.o.o. between 25 April 2002 and 20 August 2002) contrary to ss 25(1), 32(1)(g) of the Drug Misuse and Trafficking Act 1985.
The maximum penalty is $220,000 fine or imprisonment for 15 years or both.
Count 3: Supply a prohibited drug, cannabis (d.o.o. between 14 February 2002 and 20 August 2002) contrary to ss 25(1), 32(1)(h) of the Drug Misuse and Trafficking Act 1985.
The maximum penalty is $220,000 fine or imprisonment for 10 years or both.
The respondent came before Phegan DCJ on 27 August 2004 to be sentenced for those offences. In respect of Counts 1 and 2 his Honour imposed concurrent terms of 3 years with a 1 year 8 month non-parole period to be served by way of periodic detention. In relation to Count 3 his Honour imposed an 18 month sentence to be served by way of periodic detention. The commencement date for each sentence was 3 September 2004.
The Director of Public Prosecutions has appealed against those sentences. The Director signed the Notice of Appeal on 17 September 2004. Notice was served on the respondent at his home address on 23 September 2004, within four weeks of sentencing.
Factual background
Strike force “Tolve” was established to target the supply of prohibited drugs in the Ashfield and Campsie local area commands. A well-organised drug dealing business was operated out of premises in Arthur Street, Ashfield. Customers telephoned mobile telephone numbers to place their orders for prohibited drugs, usually using code words and small quantities of prohibited drugs at a time were dispatched by “runners” in vehicles, often meeting the customers in public places such as car-parks. The offenders were criminally liable, both for individual transactions and because they took part in a joint criminal enterprise. Police obtained telephone intercept warrants and monitored the telephone numbers associated with the persons at the premises. On average there were 75-200 calls per day.
The respondent was a member of the syndicate running the business, albeit not a leading member. He was sentenced with other members of the syndicate – John Kairouz, Anthony Kairouz, Charbel Kairouz and Saad Nasr, all of whom played a more prominent part in the syndicate.
His Honour made the following findings of facts based on the agreed facts relevant to the respondent and the co-offenders with whom he was sentenced.
(a)          There was a syndicate involved in the supply of drugs (methylamphetamine and cannabis) in the Ashfield and Campsie area from at least February 2002.
(b)          Each offender was a member of that syndicate and was to that extent involved in a joint criminal enterprise to supply such drugs.
(c)          Three mobile telephones were used by the syndicate for the purposes of supplying the drugs, false names and addresses having been recorded in respect of those telephones.
(d)          Each telephone received a substantial number of calls almost on a daily basis.
(e)          Based on thirty three controlled purchases by undercover police and intercepted telephone calls:
(i)Methylamphetamine tablets with an average weight of about .3 grams were sold for between $30-$50 per tablet;
(ii)Methylamphetamine powder was sold in small bags weighing approximately .51 grams each;
(iii)Cannabis was supplied in bags which would either be $20 or $50 deals;
(iv)Generally a code was used when discussing drugs, although at times there were slips and common names were used.
(f)           This was a case of a systematic enterprise for the purpose of profit;
(g)          The scale of the operation and the nature of the means used were sufficient to put it on a level of serious and systematic sale of the drugs concerned.
Insofar as the respondent was concerned, the agreed fact showed:
(a)          He at times participated in the actual supply to undercover police officers.
(b)          He supplied methylamphetamine on four occasions to undercover officers between 28 April 2002 and 3 May 2002 (ie during the period referred to in Count 2) and
(c)          He was involved on “almost a daily basis” in the supply of methylamphetamine and cannabis from 15 April 2002 to 25 April 2002.
In relation to June 2002, the agreed facts stated:
“On 3 June David Nasr was in a vehicle with David Culbert and Stephanie Kipic when a meeting took place with an undercover officer who had made contact to purchase methylamphetamine. At that meeting David Nasr questioned the officer as to how she got the telephone number and, on being satisfied that she was a genuine buyer, he took part in making the arrangements for that supply which took place shortly after the meeting. On 25 June 2002 David Nasr was with Charbel Kairouz when they were stopped by police after visiting “555” tobacconist. On searching their vehicle police located approximately 600 plastic bags to be used in drug supply. Further telephone intercepts throughout the period to August provide evidence of David Nasr discussing matters involving the supply of drugs with other members of the syndicate and his being in the granny flat (at Arthur Street, Ashfield) at various times during the period. The evidence establishes that David Nasr was aware of all facets of the operation.”
His Honour found that although the respondent was aware of all facets of the operation, in contrast with the other four offenders with whom he was sentenced, he did not have the opportunity or capacity to exert any control over the operation (ROS 34).
Subjective features
The respondent was born on 26 October 1978. He was twenty-three at the time of the offences and is now twenty-six. He was the oldest in a family of five children. He had a criminal history albeit one containing relatively minor matters. He had never been to gaol before.
At the time of these offences he was subject to a community service order for 150 hours and was also subject to a s9 good behaviour bond for 18 months. Both those orders were imposed by the Bankstown Local Court on 14 February 2002.
The respondent completed his schooling with the attainment of the higher school certificate and the completion of an electrical trade course at TAFE. He worked on a part time basis during the latter part of his school years and in electrical trades for 2 years after leaving. His father established a service station business at St Marys in about 1997 and the respondent commenced to work there.
On New Years Eve in 1998 the respondent was the victim of a “drive by shooting” at the family home. He had arrived home at about 1.15 am and was walking to his bedroom when unidentified gunmen fired some 23 rounds at the house. There were apparently bullet holes everywhere. Tests administered by a psychologist several months later revealed that the respondent was suffering from a severe form of post traumatic-stress disorder with an accompanying severe anxiety disturbance.
His Honour accepted the evidence of the respondent’s younger brother, Mr George Nasr, as to the effect of the shooting. George Nasr said:
“Unfortunately David was just about to go to sleep when the incident occurred so he was the only one awake during the shooting and at that point of time him being the eldest in the family it affected his responsibility over the family and his feeling, protecting over the family, pretty much put him down in a pretty strong manner and he spent so much time at home after that, his character began to change in not being so close with the family and yeah, there was some signs of changes.”
The respondent commenced using cannabis the following year “to calm his nerves”. This escalated to the point of heavy daily use. Amphetamine and Ecstasy use soon followed. Dr Christopher Lennings, a psychologist who provided a report in relation to the respondent, said:
“It seems the deterioration in his behaviour at home is in part a function of his amphetamine use and disturbance of behaviour.”
In June 2000 the respondent’s family experienced financial difficulties. His father was forced to sell the service station business. The respondent initially found work at another service station but then accepted unemployment benefits while searching for other work. Mr George Nasr said of this period:
“Months after that unfortunately he wasn’t able to find work. After my father selling the business we were in quite a bit of debt from the business. He – unfortunately due to his age and his illnesses wasn’t able to find work so we were running on a pretty tight budget. David, his presence at home wasn’t like normal. He would disappear for long periods, come home. There were signs of him taking some sort of substances, coming home, not being able to talk with the parents, with ourselves, try to discuss the situation, very argumentative and some significant character changes, yeah.”
The respondent was arrested on 20 August 2002. By that time according to George Nasr he had become a stranger to the family. When the family first visited him in gaol he was silent, would not look his parents in the eyes and appeared to be ashamed. However he “slowly started to recognise his faults and started to speak with his parents trying to acknowledge their forgiveness. He did change over those few months in gaol and him being the eldest in the family it really took effect on him.”
The respondent was released on bail after four months (130 days) in custody. It would appear that his experience in gaol had a significant and positive impact upon him. He soon found work. At one stage he had a day job as well as a night job. He was successful in applying for a position as a permanent dockhand with TNT Australia on 12 July 2004.
Since his release on bail at the end of December 2002 the respondent adopted a completely different lifestyle to the one he had been living over the past few years. George Nasr said that the respondent spent most of his time either at work or at a gym but otherwise at home with the family. The respondent’s relationship with his family had improved and George Nasr did not see any sign of substance abuse.
Dr Lennings was of the opinion that the respondent was genuinely remorseful for his offending conduct and that his rehabilitation was proceeding extremely well with strong prospects of ultimate success. He expressed a concern that should the respondent receive a custodial sentence, the rehabilitation process might be significantly jeopardised in that the respondent might lose his motivation and he would, of necessity, be placed in a situation where he would resume contact with anti-social peers.
The prospects of rehabilitation played a significant part in his Honour’s approach to sentencing. His Honour said:
“From the point of view of his personal history and in particular his history since his release from custody, he has demonstrated in a very convincing way a person who first of all fell into a drug habit and ultimately into the supply of drugs as a consequence of circumstances over which he doesn’t appear to have entirely had control and nonetheless has made a very positive and promising commitment to total rehabilitation since that release.” (ROS 37.6)
It was agreed that the respondent entered his plea of guilty at the earliest reasonable occasion and consequently his Honour discounted the sentences imposed upon him by twenty five percent.
Since his Honour imposed the sentence, the respondent has attended every weekend for his periodic detention (12 weeks). The periodic detention arrangement was incompatible with his employment at TNT but the respondent has obtained alternative employment doing formwork on a part time basis. He continues to live at home and his relationship with his family remains good.
Crown appeal
Although the Crown relies upon two specific grounds of appeal, the real basis of complaint is that the sentences are manifestly inadequate in that his Honour failed to have regard to the objective seriousness of the offences. The apparent failure of his Honour to refer to the fact that the offences were committed while on conditional liberty is by comparison a secondary issue.
As the Crown has pointed out, the case law in relation to persons convicted of drug trafficking offences is almost all one way. In the absence of exceptional circumstances custodial terms must be imposed due to the need for substantial general deterrence. The respondent’s subjective circumstances, while clearly impressive in terms of his employment and progress in rehabilitation, are not exceptional and were not so found by his Honour.
With reference to these sentences in R v Day [unreported, NSWCCA, 23 April, 1998) Wood CJ at CL at p 11 cited Kirby P in R v Niga (unreported, NSWCCA, 30 April, 1994) to the effect that periodic detention “is not normally considered to be an appropriate sentence in cases involving the supply of illegal drugs for which heavy penalties have been prescribed”. The offences involving the respondent had penalties of 20, 15 and 10 years respectively.
In R v Leslie (1991) 55 A Crim R 68 Campbell J said at 70:
“Periodic detention is a very useful addition to the armoury of a sentencing judge, however, it is not a custodial sentence in the sense that that term is used in the many cases, of which the learned judge mentioned some, making it virtually mandatory that a person such as the respondent involved with the drug trade on a commercial basis should serve such a sentence. Those cases make clear the special features of drug trafficking which call for fulltime custodial sentences.”
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.
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.
Court’s discretion
This is an appeal by the Director of Public Prosecutions and as such significant restraint has to be exercised by the Court before intervening. The Court may decline to interfere even if error has been shown and the Court must be astute to avoid a result which may be in the nature of double jeopardy. If the Court does substitute its own sentence for an inadequate sentence, that sentence will generally be less than that which should have been imposed and towards the lower end of the available range. (R v KM & Ors [2004] NSWCCA 65 at [33])
There are some other considerations to be taken into account in this matter. One of those is the principle of parity. It does not arise in relation to the co-offenders sentenced by his Honour with the respondent since his Honour found that their level of culpability was significantly greater than the respondent. It may arise in relation to the co-offender, Culbert, who was more actively involved in the syndicate than the respondent and who received a comparatively modest sentence of fulltime imprisonment from Nicholson DCJ on 4 June 2004.
When sentencing the respondent Phegan DCJ was careful to distinguish his conduct from that of Culbert. The most significant point of distinction was that the respondent had been involved in the syndicate throughout the period of its existence whereas Culbert had only become involved in the latter period, albeit in a significantly more active way than the respondent. In the circumstances I am of the opinion that the principles of parity in relation to the sentence imposed on Culbert do not prevent a fulltime custodial sentence being imposed on the respondent.
Another matter is the delay between the apprehension of the respondent in August 2002 and him coming before the court for sentence in August 2004. The respondent was in custody until December 2002, but otherwise the delay remains unexplained. As was submitted, somewhat unusually this gave the respondent an opportunity over a period of 20 months to demonstrate to the court that he was capable of successfully rehabilitating himself. That was put as a further reason why this Court should not intervene.
The possibility of successful rehabilitation is always an important factor in any sentencing consideration. In this case there is clear evidence over a period of some 20 months of successful efforts at rehabilitation by the respondent.
Despite the persuasive nature of this submission, the considerations to which I referred in [28] – [32] remain valid. The nature of the offences, their duration and objective seriousness require a sentence which reflects the importance of general deterrence and denunciation. To do otherwise would bring the criminal justice system into disrepute.
I am also mindful that the respondent was sentenced on 27 August 2004 and that the uncertainty surrounding the appeal and the fact of being re-sentenced to a period of fulltime imprisonment can be cruel in its effect (R v Hernando (2002) 136 A Crim R 451). Nevertheless, the seriousness of this offence balanced against the manifest inadequacy of the sentence and the need for clear denunciation requires that the respondent be re-sentenced so that he undergoes a period of fulltime imprisonment.
Decision
The sentence which I propose is 3 years fulltime imprisonment. Applying the twenty five percent discount for the early plea of guilty made by his Honour the sentence is reduced to 2 years and 3 months. T`he subjective factors in this matter, particularly the progress in rehabilitation are compelling. Accordingly, I fix a non-parole period of 1 year. I am also mindful that the respondent spent 130 days in custody between August and December 2002 and that he has completed 12 weeks of his periodic detention. For that reason I propose to backdate the sentence to commence on 1 July 2004.

I propose the following orders:
(1)          Appeal allowed.
(2)          The sentences imposed in relation to Counts 1-2 are quashed. In lieu thereof the respondent is sentenced to concurrent periods of imprisonment of 2 years and 3 months with a non-parole period of 1 year. The non-parole period is taken to have commenced on 1 July 2004 and will expire on 30 June 2005. The parole period will commence on 1 July 2005     and will expire on 30 September 2006.
(3)          The sentence imposed in relation to Count 3 is quashed. In lieu thereof the respondent is sentenced to a fixed term of imprisonment of 1 year. That sentence is taken to have commenced on 1 July 2004 and will expire on 30 June 2005.
(4)          I direct that the respondent be released to parole on the expiry of the non-parole period on 30 June 2005.

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LAST UPDATED: 10/12/2004

[2004] NSWCCA 441

8 December 2004