R v Ramaz
[2003] NSWCCA 91
•4 April 2003
CITATION: R v Ramaz [2003] NSWCCA 91 revised - 15/04/2003 HEARING DATE(S): 7 March 2003 JUDGMENT DATE:
4 April 2003JUDGMENT OF: Giles JA at 1; Dunford J at 2; Smart AJ at 42 DECISION: Crown appeal allowed. Sentences on counts 1-12 confirmed. Sentence on count 13 quashed, respondent sentenced to 18 months with a non-parole period of 6 months. CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - supply prohibited drug (cannabis) LEGISLATION CITED: Crimes Act 1900, s 319
Crimes (Sentencing Procedure) Act 1999, ss 21A, 44
Criminal Appeal Act 1912, s 5D
Drug Misuse and Trafficking Act 1985, ss 25(1), 32(1), 39P
Justices Act 1902, s 51ACASES CITED: R v Allpass (1993) 72 A Crim R 561
R v Thomson & Houlton [2000] NSWCCA 383, 49 NSWLR 383PARTIES :
Regina (Appellant)
Sam Ramaz (Respondent)FILE NUMBER(S): CCA 60461/02 COUNSEL: DML Woodburne (Crown)
P Bodor QC (Respondent)SOLICITORS: SE O'Connor (Crown)
DJ Humphreys (Respondent)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/3215 LOWER COURT
JUDICIAL OFFICER :Sorby DCJ
60461/02
Friday, 4 APRIL 2003Giles JA
Dunford J
Smart AJ
1 GILES JA: I agree with Dunford J.
2 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of the sentences imposed on the respondent by his Honour Judge Sorby in the District Court at Campbelltown on 23 August 2002.
3 The respondent pleaded guilty to eleven counts of supply prohibited drug and two counts of deemed supply of prohibited drug (possession for the purposes of supply) all in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985. The prohibited drug was cannabis leaf and in respect of each offence the maximum penalty provided by the Act is 10 years imprisonment or a fine of 2000 penalty units or both (s 32(1)(b)). The charges were as follows:
1) That on the 7th day of September 2001, at Revesby, he did supply 2.5 grams of cannabis;
2) That on the 10th day of September 2001, at Revesby, he did supply 2.5 grams of cannabis;
3) That on the 12th day of September 2001, at Revesby, he did supply 2.9 grams of cannabis;
4) That on the 13th day of September 2001, at Revesby, he did supply 2.6 grams of cannabis;
5) That on the 18th day of September 2001, at Revesby, he did supply 0.9 grams of cannabis;
6) That on the 21st day of September 2001, at Revesby, he did supply cannabis;
7) That on the 25th day of September 2001, at Revesby, he did supply 1.1 grams of cannabis;
8) That on the 4th day of October 2001, at Revesby, he did supply 0.9 grams of cannabis;
9) That on the 10th day of October 2001, at Revesby, he did supply 0.9 grams of cannabis;
10) That on the 22nd day of November 2001, at Bass Hill, he did have in his possession for supply 9.1 grams of cannabis;
11) That on the 4th day of December 2001, at Revesby, he did supply 1 gram of cannabis;
12) That on the 6th day of December 2001, at Revesby, he did have in his possession for supply 4.3 grams of cannabis;
13) That between the 10th day of August 2001 and the 7th day of November 2001, at Sydney, he did supply 1723 grams (1.723 kilograms) of cannabis.
4 A further three offences were taken into account (on the thirteenth charge) on a Form 1, namely:
1. On 22 November 2001 at Revesby, he did possess 14.53 grams of cannabis;
2. On 6 December 2001 at Revesby, he did possess 7.4 grams of cannabis;
- 3. On 6 December 2001 at Revesby, he had goods in custody, namely $225.00, reasonably suspected of being stolen or unlawfully obtained.
5 The respondent was sentenced as follows:
· counts 1-12 - imprisonment for a fixed term of 8 months to date from 6 December 2001 and to expire on 5 August 2002;
· count 13 (and taking into account the matters on the Form 1) - imprisonment for 18 months to date from 6 December 2001 and to expire 5 June 2003. His Honour set a non-parole period of 8 months and 17 days, due to expire on 23 August 2002, the day on which the sentence was imposed.
6 On 10 August 2001 police lawfully intercepted mobile telephone numbers used by the respondent. Between that date and 7 November 2001 they intercepted 12,958 activations on one of those numbers, 0416 323 852. Almost all of these activations were to arrange meetings between the respondent and customers wanting to purchase cannabis. The respondent arranged to meet about 80 customers on average a day. The conversations were in both coded and non-coded conversation.
7 Counts 1 to 9 and 11 related to sales by the respondent to undercover police officers. On ten occasions between 7 September 2001 and 4 December 2001 an undercover police operative contacted the respondent by telephone (each call was recorded) and then met with him at the Woolworth’s car park at Revesby. On each occasion the respondent would drive a car (a number of different cars were used) to the meeting and then sell the undercover operative varying amounts of cannabis. The cannabis was packaged in the same manner on each occasion. Every transaction was observed by police surveillance teams and recorded using photographs and video footage.
8 Count 10 related to 22 November 2001 when the respondent was stopped while driving a blue Holden Utility, registration WLY572. The car had a strong smell of cannabis coming from it, but notwithstanding a cursory search by Highway Patrol Officers at the scene, no drugs were located.
9 As no drugs were located the respondent was allowed to leave, but the car was seized and towed to Bass Hill Police Station where it was searched thoroughly and ten small resealable bags of cannabis were located in a resealable sandwich bag, which was tucked under the centre console of the car out of sight. The bags were weighed together, with a total weight of 14.53 grams. These bags of cannabis were also packaged in the same manner as the cannabis purchased from the respondent by the undercover operative.
10 Count 12 related to 6 December 2001 when an undercover police operative contacted the respondent on mobile phone 0438 066 291 and arranged to meet him in the Woolworth’s car park, Revesby and purchase $50 worth of cannabis from him. The respondent arrived at the car park and was arrested prior to meeting with the undercover operative. The respondent was cautioned, the car searched, and five small bags of cannabis were located behind the glove box.
11 The bags were kept in a sandwich size resealable bag, the same type of bag that was found in WLY572 on 22 November. The cannabis weighed 7.4 grams. Police also located $225.00 cash in the defendant's wallet in $50, $20, $10 and $5 denominations. Police further located two mobile telephones, one being 0416 323 852. This phone was sitting on the seat between the respondent’s legs. The arrest and searching of the car was recorded on video. Police dialled both 0416 323 852 and 0438 066 291. Both of these calls were answered on mobile phone 0416 323 852.
12 As to count 13, police relied on 813 telephone conversations on the 0416 323 852 number where an amount or weight was mentioned during the call. The total weight sold as a result of these calls was 1723 grams (1.723 kilograms) with a value of $29,970.00. Police identified the codes used during those conversations, and can establish those weights and prices through conversations between the respondent and an undercover police operative along with other intercepted conversations with the defendant where he specified various weights and their prospective prices. The weights sold range from 1 gram for a cost of $20 to 14 grams (half ounce) with a value of $200.
13 When arrested on 6 December 2001 the respondent was taken to Hurstville Police Station where he was entered into custody. He contacted his solicitor, and after speaking with his solicitor, he informed police that he did not want to participate in an interview but agreed to record his refusal electronically, which he did. He was then charged.
14 On behalf of the Crown it was submitted that in exercising the sentencing discretion, his Honour erred in three discrete ways:
- (a) an inadequate appreciation of the objective facts and circumstances of the offences;
(b) a finding of fact not open on the evidence, namely, that “without the plea the Crown may not have been able to prove the telephone intercept deals” ; and
(c) the imposition of a sentence (both full-term and non-parole period) which was manifestly disproportionate to the gravity of the offences.
15 The criminality involved in these cases was significant. Between 10 August and 7 November 2001 there were over 12,900 activations of the mobile phone 0416 323 852, almost all of which were to arrange meetings between the respondent and customers wanting to purchase cannabis. He arranged to meet about 80 customers a day and the thirteenth count involved 813 telephone conversations where an amount or weight was mentioned during the call. To put it bluntly, the respondent over a period of four months was working full time as a drug retailer and for that he was being paid $900 per week.
16 Although the amounts of the individual transactions were small, the respondent was an essential cog in a major continuing business. Although he is only to be punished for offences for which he was charged and not for the 80 calls a day, the evidence disclosed that those offences with which he was charged were not isolated offences, but part of a major drug dealing business.
17 In addition, not two as his Honour stated, but all the offences for which he was being sentenced were committed whilst on bail for similar offences, the respondent having been arrested on 17 August 2001 on charges of goods in custody and possess prohibited drug, in respect of which offences he pleaded guilty at Bankstown Local Court on 2 April 2002 and was fined.
18 He gave what purported to be an explanation of how he got involved namely, to take over his brother’s position in the drug trade for two weeks, but he stayed four months until his arrest although he knew it was wrong because his younger brother got arrested on drug charges, so he kept dealing drugs in order to raise money for his brother’s bail, which was $7,500, and he was paid $900 per week.
19 In my view this so called explanation only added to the criminality of his conduct – he knew it was wrong, he went into it deliberately, he knew the risks, continued until he was caught, and his motive was material gain for himself and his family.
20 Although the penalties for cannabis are less than those in respect of other drugs, cannabis is a prohibited drug, its use or supply is illegal and its effect on users is harmful. Regular, continuous involvement in its trade constitutes serious criminality.
21 There were a number of subjective features which his Honour quite properly took into account including his age, what appeared to be his previous good character (with only the offences of 17 August 2001 militating to the contrary), the abuse he had received from his father, that he came from a dysfunctional family with three of his other brothers in gaol, his previous good work record and trade qualifications as a boilermaker/welder, his reconciliation with his wife and their desire to start a family, that he was at the time using cannabis to ease his depression resulting from his marriage break-up (although this was not offered as a reason for his trafficking), and his prospects of obtaining work on his release. He was at the time of the offences aged 22 and is now 23 years, 10 months.
22 Reference was made on the hearing of the appeal to a concession made by the Crown at the sentencing hearing relating to count 13, and it was claimed that the concession was that without the plea of guilty, the Crown would not have been able to prove that count beyond reasonable doubt. The concession was announced by defence counsel without any comment or dissent by the Crown prosecutor at T 4. The terms of the concession were somewhat ambiguous as to whether it was that the Crown would not be able to prove the charge, or whether it was merely that it would not be able to prove the precise amount (1.723 kgs). A reading of the whole of the relevant passage suggests it was the latter that was intended, and it was apparently so understood by his Honour because at p 2 of the Remarks on Sentence, he said:
- “The total amount of drug Cannabis involved is 1.7 kilos … a fact which is submitted … but for the Prisoner’s plea would have been very difficult for the Crown to prove as they were not able to prove beyond reasonable doubt … the actual weight of the Cannabis”.
23 It was patently clear from the police brief and in particular from the Statement of Facts, the statements from the undercover police officers and the document headed “Financial/Weight Analysis for 0416323852”, all of which were tendered by consent, that the Crown was indeed able to prove the telephone intercept deals and the approximate amount of the cannabis sold. As the Statement of Facts and the supporting documents demonstrated, police were able to establish the weights sold and prices paid through conversations between the respondent and an undercover police operative, along with other intercepted conversations with the respondent where he specified various weights and their prospective prices.
24 The Crown only relied on the 813 calls where an amount or weight was mentioned, and it was from these references that the 1.723 kilos was calculated.
25 The proof of each call, what was said and calculation of the amount of cannabis apparently referred to would have taken considerable time and effort and the actual amount may not have been determined with certainty, but the Crown would have been able to prove the essential ingredients of the charge. The plea was therefore of great utilitarian value because of the time saved, and the respondent was entitled to have this taken into account in his favour, but it was not a plea of guilty to an offence which the Crown was otherwise unable to prove.
26 In his Remarks on Sentence, his Honour inaccurately stated that, “The total amount of drug Cannabis involved is 1.7 kilos and that figure also includes the amounts transacted or possibly transacted as a result of the telephone intercepts”, whereas it was clear from the Statement of Facts and the charge sheets that the 1.723 kilos related only to the thirteenth count and that the amounts involved in counts 1 to 12, although small, were over and above that quantity.
27 Although the respondent entered his pleas of guilty at the committal stage pursuant to s 51A of the Justices Act 1902, his Honour’s reference to “full and frank admissions” was also erroneous as it was evident from the police facts and the recorded interview that the respondent refused to answer any questions concerning his involvement and did not reveal anything whatsoever about his business, his supplier or any other details, and similarly his evidence given on the sentencing proceedings was self-serving, and once again did not reveal anything whatsoever about the business operations.
28 His Honour also said that personal (or specific) deterrence and general deterrence were important in this type of case, but then went on to say personal (or specific) deterrence was not so important in this particular case for reasons he had stated, presumably because of the subjective features and prospects of rehabilitation.
29 However, because of his reasons for getting involved, notwithstanding his prospects of rehabilitation and bearing in mind that he persisted in crime by committing these offences after being charged on 17 August 2001, I consider personal deterrence was a matter which needed to feature significantly in the sentencing process and not be dismissed as his Honour did. This is the very type of case where a significant gaol sentence may well tend to deter an offender from committing a similar or any other offence in the future.
30 In sentencing the respondent on 23 August 2002, his Honour made no reference to s 21A of the Crimes (Sentencing Procedure) Act 1999 which commenced on 15 April 2002 and although he referred to the guilty pleas and R v Thomson & Houlton [2000] NSWCCA 383, 49 NSWLR 383, he did not specify what discount he had allowed in this respect.
31 It appears that his Honour did not attend to a proper exercise of the sentencing discretion by having regard to the relevant objective and subjective elements including the objective seriousness of the offences, the matters specified in s 21A and the pleas of guilty and then determining proper sentences for each offence, whether such sentences should be made wholly or partly cumulative or concurrent, the principle of totality, whether special circumstances existed and appropriate non-parole periods, but simply determined that he was going to order the immediate release of the respondent on parole, and structured the sentences so as to bring about that result.
32 For these reasons, I am satisfied that his Honour’s sentencing discretion miscarried, that the sentences imposed were manifestly inadequate, and that notwithstanding the principles which apply to Crown appeals, they call for the intervention of this Court.
33 On re-sentencing the Court must look at all the facts and circumstances existing at the time of re-sentencing: R v Allpass (1993) 72 A Crim R 561. These include the fact that on 11 November 2002 the respondent was found guilty in the District Court at Parramatta of acting with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900, and on 19 December 2002, O’Reilly DCJ sentenced him to imprisonment for 12 months commencing 3 November 2002 with a non-parole period of six months.
34 That other offence was committed on 24 August 2001, at the start of the offences the subject of the present appeal and concerned threatening a person whom it was thought may have given information to police in respect of a home invasion offence. One of his brothers subsequently pleaded guilty to the home invasion offence.
35 This means that when he was sentenced by Sorby DCJ he had not only the offences of 17 August on his record, but had also committed this offence.
36 The result is that having been released on parole when sentenced on present matters on 23 August 2002 he has been in custody serving his sentence on this other matter since 11 November 2002 and is due for release 2 May 2003. An affidavit of the respondent shows that he has a C2 classification and is presently at Oberon Young Offenders Correctional Centre and hopes to soon be considered for a C3 classification which would enable him to perform paid work outside the Centre with an approved employer of his choice.
37 Pursuant to leave granted at the hearing of the appeal, further evidence and submissions have been received from both the Crown and the respondent. Such further material shows that he is performing well at Oberon and has received very good work assessments from his supervisor. Material from the Department of Corrective Services indicates that he is unlikely to receive a C3 classification unless he can establish “special circumstances”, but that a further sentence (at least one of 18 months or less) would not jeopardise his C2 classification, his access to the Young Offenders Program, his employment or his rehabilitation.
38 Taking all these matters into account, particularly the objective criminality of the offences, the fact that it formed a course of criminal conduct, his age, and family background, his plea of guilty and expressed contrition (which in my view justify an overall discount of 25 per cent), the need for general and personal deterrence, his prospects of rehabilitation, his pleas of guilty at the committal stage, the other matters specified in s 21A, totality, and the principles of restraint which apply to re-sentencing on Crown appeals and also taking into account the matters on the Form 1, I consider that a discrete cumulative sentence should be imposed in respect of count 13.
39 Having regard to his comparative youth, that he had at the time of the offences not been in gaol before, his experiences in gaol including the stabbing, the progress he has made in gaol whilst serving his current sentence, his prospects of rehabilitation and my view that such rehabilitation would be assisted by a significant period of supervision on parole, I consider that “special circumstances” have been shown within s 44 of the Crimes (Sentencing Procedure) Act.
40 In my opinion the sentences on counts 1-12 should be confirmed but in relation to count 13 the Crown appeal should be allowed, the sentence quashed and in lieu thereof the respondent sentenced to imprisonment for 18 months, such sentence to be accumulative on the sentences for counts 1-12, and to date from 15 April 2003, which is 17 days before the non-parole part of his current sentence expires, thus giving him credit for the additional time served after the sentences on counts 1-12 expired and before his release on 23 August 2002. I would fix a non-parole period of 6 months. The earliest date on which the respondent would therefore be eligible for release on parole would be 14 October 2003 and I would order that on that date he be released on parole subject to the conditions contained in the Regulations and the further condition that he place himself under the supervision of the Probation and Parole Service and obey all reasonable directions of such Service.
41 At the request of the Crown and there being no objection from the respondent, I would also make an order pursuant to s 39P of the Drug Misuse and Trafficking Act for the destruction of the cannabis leaf the subject of the charges.
42 SMART AJ: I agree with Dunford J.
Last Modified: 04/22/2003
0
2
5