Elhassan v R [2018] NSWCCA 118

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elhassan v R [2018] NSWCCA 118 Hearing dates: 13 April 2018 Decision date: 13 June 2018 Before: Simpson AJA at [1]; Fullerton J at [2]; McCallum J at [3] Decision: Sentence imposed by Syme DCJ quashed and, in substitution therefor, applicant sentenced to a term of imprisonment with a non-parole period of six years commencing on 29 October 2016 and a balance of term of three years. Catchwords: CRIME – sentence – where error on the part of the sentencing judge is conceded by the Crown –contention by Crown that "no lesser sentence is warranted in law" – how apt to mislead – obligation of appellate court to exercise its own sentencing discretion independently of the sentence selected at first instance Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 44(2) Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Cases Cited: Davis v R [2015] NSWCCA 90 Elsaj v R [2017] NSWCCA 124 Hillier v DPP (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Fidow [2004] NSWCCA 172 R v Jones (Unreported, NSW Court of Criminal Appeal, 30 June 1994) R v Kaliti [2001] NSWCCA 268 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 Smith v R [2011] NSWCCA 163 Trejos v R [2017] NSWCCA 122 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Yeung v R [2018] NSWCCA 52 Yousif v R [2014] NSWCCA 180 Category: Principal judgment Parties: Mouraf El Hassan (Appellant) Regina (Respondent) Representation: Counsel: D Barrow (Appellant) H Roberts (Respondent)

Solicitors: Watsons Solicitors (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2014/190406 Publication restriction: None Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Crime Date of Decision: 13 April 2017 Before: Syme DCJ File Number(s): 2014/190406

Judgment 1. SIMPSON AJA: I agree with McCallum J. 2. FULLERTON J: I agree with McCallum J. 3. McCALLUM J: Mouraf Elhassan seeks leave to appeal against the sentence imposed upon him after he was found guilty by a jury of an offence of supplying not less than the commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The commercial quantity for cocaine is 250 grams. The amount the subject of the charge against the applicant was 278 grams. 4. The offence carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. The applicant was sentenced to a term of imprisonment with a non-parole period of 7 years and 1 month and a balance of term of 2 years and 5 months, giving a total sentence of 9 years and 6 months commencing on 29 October 2016. 5. The indictment on which the applicant was arraigned included a second count of dealing with the proceeds of crime but the applicant was acquitted of that charge.

Circumstances of the offence 1. The learned sentencing judge's summary of the evidence at trial, as helpfully supplemented in the applicant's written submissions, may be summarised as follows. The applicant had been asked by a friend who was travelling overseas to keep an eye on his apartment and his car. Presumably unbeknownst to either, the apartment was under surveillance by police. Over six days between late May and early June 2014, a surveillance camera in the driveway to the apartment recorded the applicant driving to and from the premises from time to time. 2. Police subsequently installed an additional surveillance camera, which was activated by motion, inside the kitchen of the apartment. On two separate days in late June 2014, that camera recorded the applicant and another man packaging quantities of cocaine into plastic bags using a heat-sealing machine. The surveillance footage also recorded both men smoking from a glass pipe on two of those occasions. 3. The applicant was arrested as he attempted to leave the premises on the second day of recorded activity. Upon searching the apartment, police found scales, two vacuum heat-sealing machines and a number of relatively small quantities of various drugs. Inside the car belonging to the applicant's friend (to which the applicant had access) was found a plastic shopping bag containing two heat-sealed bags of cocaine. The applicant was charged with supplying that quantity of cocaine (totalling 278 grams), evidently on the basis of deemed supply. He was not charged with possession of the drugs found within the apartment. An analysis of the cocaine contained in the two heat-sealed bags ascertained that it was of a purity of 87.5%. 4. In her remarks on sentence, the sentencing judge considered the evidence at trial which established that the substance being packaged in the kitchen on the two days recorded by the surveillance camera was cocaine. The correctness of that finding was accepted in the present application. 5. In assessing the objective seriousness of the offence, the judge had regard to the quantity of the drug (approximately 10% more than the prescribed commercial quantity), the purity of the drug (which her Honour inferred the applicant knew was high, since he had smoked some of it), the indicia of supply (scales and packaging found in the kitchen), the absence of evidence of any profit or actual drug transaction, the level of organisation of the offence (her Honour found that it was a well-organised, mid-level organisation as reflected in the use of the premises while the tenant was away, the equipment found in the kitchen and the fact that two persons were involved in the packaging process) and the applicant's level of involvement, which her Honour found to be significant based on the fact that he packaged the drugs from larger quantities, sealed the bags and hid them for future distribution. Her Honour rejected a submission that some of the cocaine found by police may have been for personal use, noting that the drugs seized were securely packaged and that any of the original quantity that may have been used personally by the offenders must have been used before it was packaged. 6. In her assessment of the objective seriousness of the offence, the judge also had regard in that context to the fact that the applicant was on parole. That is the basis for this appeal. The judge considered that the offence was "close to but below mid-range seriousness for the charged offence".

Error conceded by the Crown 1. The applicant relies on a single ground of appeal, which is: "Her Honour erred in taking into account that the applicant had been on parole at the time when assessing the objective seriousness of the offence". 1. The Crown concedes the error. It was correct that the applicant was on parole at the time he committed the offence. As provided by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that was an "aggravating factor" to be taken into account in determining the appropriate sentence for the offence. The confusion generated by the use of the term "aggravating" in that context was resolved in the decision of this Court in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242. At common law, an "aggravating factor" was understood to mean one that makes the offence more serious. However, as explained in McNaughton, that is not the sense in which the word "aggravating" is used in the Act. The list of "aggravating factors" in s 21A(2) was intended to encompass both subjective and objective considerations: McNaughton at [30]-[34] per Spigelman CJ; McClellan CJ at CL agreeing at [60]; Grove J agreeing at [76]; Barr and Bell JJ agreeing at [81]. 2. The fact that the offence was committed while the offender was on conditional liberty was relevant as a subjective consideration but not as part of the assessment of the objective seriousness of the offence: Hillier v DPP (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312 at [30] per Basten JA; at [74] per R A Hulme J; applied in Smith v R [2011] NSWCCA 163 at [26] per R S Hulme J; Giles JA and Adams J agreeing at [1] and [72]. The distinction is important because the principle of proportionality requires that a sentence should not exceed (or fall short of) what is proportionate to the gravity of the crime, having regard to the objective circumstances: McNaughton at [15], citing Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. 3. It is clear that the sentencing judge erroneously had regard to the fact that the applicant was on parole at the time of the offence as a factor that aggravated its objective seriousness. Her Honour said, at 4: "It is an aggravating circumstance of the offence that the offender was on conditional release on parole for prior offending at the time of the commission of this offence. This increases the objective seriousness of the offence and is a circumstance of the offending as the offender well knew at the time of involvement in criminal activity, he was in breach of his personal condition of liberty at the time. The commission of the offence while on parole, also has relevance when considering his subjective circumstances in the way that I will refer to later." 1. On the strength of those remarks, the Crown's concession that the sentencing judge erred was appropriate and must be accepted.

Proper approach in re-sentencing the applicant 1. It is accordingly necessary for this Court to exercise the sentencing discretion afresh in accordance with the principles stated by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. 2. The Crown's concession as to the need to re-sentence the applicant was expressed in the following terms: "It is therefore necessary for this Court to exercise the sentencing discretion afresh to determine whether a lesser sentence is warranted in law." It is potentially misleading to formulate the Court's task in those terms, for the reasons explained by Simpson J (as her Honour then was) in Davis v R [2015] NSWCCA 90 at [75] to [84]; Basten JA and Adamson J agreeing at [1] and [91]. Justice Simpson said at [80]: "Reliance by the Crown on a contention that "no lesser sentence is warranted in law" is apt to mislead. Unless the contention is that the sentence imposed lay at the bottom of the available range, then the submission is simply wrong. Where the sentence imposed is other than at the very bottom of the available range, some lesser sentence is, as Kentwell makes plain, "warranted in law". That does not mean that it must be imposed. But the fact (if it be the fact) that the sentence imposed lies within the available range also does not relieve this Court of its obligation to exercise its own sentencing discretion, independently of the sentences selected at first instance." 1. I respectfully agree with her Honour's remarks in that case. The proper approach is for this Court to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act and any other Act or rule of law require or permit.

Objective circumstances 1. An aspect of that task is for this Court to form its own assessment of the seriousness of the offence. In doing so, it is not necessary to articulate a determination placing the offence at a point along a hypothetical range, such as "below mid-range" or "just below mid-range": Yeung v R [2018] NSWCCA 52 at [24] (a judgment of mine, with which Hoeben CJ at CL and Simpson JA agreed at [1] and [2]). 2. I respectfully agree with the sentencing judge's assessment that the circumstances established by the evidence speak of a reasonably well-organised, mid-level operation. However, the facts of the Crown case do not permit any finding to be made as to the applicant's position within that organisation or whether he played any role beyond that recorded on camera. His role as established by the evidence at trial was confined to packaging the drugs and hiding them for future distribution. As acknowledged by the sentencing judge, there was no evidence of profit or any drug transaction. There was no evidence as to whether the applicant stood in the role of principal or subordinate within the operation. While the quantity of the drug is not determinative in this assessment, there was not a great deal more to establish how serious the offending was. The purity was high but the weight (278g) was close to the minimum commercial quantity (compared with the large commercial quantity, which for cocaine is 1kg). The applicant's participation was limited to 2 days of activity packaging the drugs. The Crown submitted that the applicant was engaged in preparing the cocaine for supply over "at least 2 separate days" but there is no basis for finding that it was any more than the 2 days detected by the police surveillance. As submitted by the applicant, while the drugs were presumably packaged for future sale, the future involvement of the applicant, if any, is speculative. 3. In all the circumstances, I would assess the seriousness of the offence as being more than minimal but of a lower order than that reflected in the sentencing judge's determination.

Subjective circumstances 1. The applicant had a relatively limited criminal record until 2000 when he was convicted of a very serious offence of possession of a prohibited import, being 17.5 kg of cocaine. He was sentenced for that offence to a term of imprisonment for 15 years with a non-parole period of 10 years dating from 12 May 2000. He was released on parole on 11 May 2010. He was arrested for the present matter at the end of June 2014 and was granted bail almost immediately (the precise dates are unclear but the sentencing judge backdated the sentence for the present matter to allow for 5 days spent in custody at that time). 2. Upon his arrest for the present offence, the applicant's parole was not revoked. He remained at liberty until the jury returned its verdict on 3 November 2016, whereupon his bail was revoked. 3. The prior conviction for a drug offence and the fact that the applicant remained on parole for that offence when he committed the present offence are "aggravating factors" within the meaning of the Crimes (Sentencing Procedure) Act and must be taken into account as relevant factors in determining the appropriate sentence. However, it is always necessary to consider the precise relevance of such matters in the circumstances of the individual case. The Crown submitted that the fact that the applicant committed the offence whilst still serving his parole period for a very similar offence is a matter of "major aggravation", citing the decision of this Court in Yousif v R [2014] NSWCCA 180 at [30]. In that case, Hoeben CJ at CL (with whom Adamson and Bellew JJ agreed at [39] and [40]) said at [30] that such repetition of offending "has been treated as a matter of 'major aggravation' by this Court", in turn citing R v Jones (Unreported, NSW Court of Criminal Appeal, 30 June 1994) Finlay J (with whom Carruthers and Badgery-Parker JJ agreed). I do not think those remarks were intended to (or can) be elevated to a rule that the commission of an offence whilst on parole must necessarily be treated as a matter of major aggravation. The relevance of that factor must always be assessed according to the circumstances of each individual case. 4. Apart from the prior offence for which he was on parole, the applicant puts forward a strong subjective case. He did not give evidence at the proceedings on sentence but tendered a number of references from family (including his two adult daughters and his current partner), friends and work associates. That material was supplemented before this Court with affidavits from his partner and two daughters. The family references speak with one voice, describing the applicant as a generous, loving and dedicated family man. He continues to enjoy the support of his partner. She visits him regularly in gaol and hopes they will move to the North Coast and start a family upon his release from gaol. Former work associates uniformly describe him as honest and hard-working. All portray him as a man who puts others before himself. His adult daughters attribute him with having played an important supportive role in their lives, even during the lengthy period of his previous sentence. 5. The evidence before this Court also included his prison record, which shows him to be a model prisoner who works hard, causes no trouble, supports others and has taken active steps to address his "criminogenic needs". 6. The applicant's prospects of rehabilitation must be guarded, having regard to his lengthy and insidious addiction to drugs, principally cocaine. A report tendered at the proceedings on sentence from Mr Watson-Munro, consultant psychologist, expressed the opinion that the applicant's relapse into drug use whilst on parole had a significant impact on his judgment. Plainly, there is some risk that will happen again. However, there are a number of factors which indicate that the applicant will now be better equipped to avoid relapse into drug use upon his release from gaol. The references acknowledge that the applicant's family has in the past expected significant support from him, perhaps without appreciating his need for support from them. He was experiencing a variety of pressures when he relapsed into drug use whilst on parole. He now has the prospect of significant family support upon his release. 7. Having served such a lengthy sentence before, only to relapse and face a further lengthy sentence, there is a basis for accepting the assessment of his family members that he will be strongly motivated to adhere to his rehabilitation when next released. Whilst the applicant must be adequately punished, rehabilitation is also a purpose of sentencing. The applicant's rehabilitation will not be promoted by the imposition of a crushing sentence.

Special circumstances 1. At first instance, a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act was sought (although, it seems, somewhat half-heartedly); the sentencing judge found no basis for departure from the statutory ratio between the head sentence and the non-parole period. No ground of appeal challenging that discretionary decision was advanced. 2. Having considered the question after judgment was reserved, the Court invited the parties to make further submissions on that issue. The applicant submitted that there should be a finding of special circumstances so as to allow for an extended period of supervision on parole. The reasons put forward for making such a finding, in summary, were the lengthy period over which the applicant has struggled with addiction, his return to the use of drugs at the time of the present offence notwithstanding his age and the fact that he had served a ten-year non-parole period, the fact that his return to drug use appeared to have been due to a failure to adjust to stressful life events in the community despite strong family support and the risk that he may have become institutionalised by the time of his ultimate release as a consequence of his combined periods of incarceration. 3. The Crown opposed the making of such a finding. It was acknowledged that the need for support to remain drug-free may sustain a finding of special circumstances in an appropriate case. However, the Crown submitted that, in the circumstances of this case, the term of the sentence likely to be imposed would mean that adequate supervision would be provided with no variation to the statutory ratio. 4. The Crown further submitted that care must be taken to avoid automatically elevating subjective circumstances (properly taken into account when fixing the term of the sentence) into special circumstances, citing R v Kaliti [2001] NSWCCA 268 at [10]-[13] per Wood CJ at CL; Howie J agreeing and R v Fidow [2004] NSWCCA 172 at [18]-[20] per Spigelman CJ; R S Hulme and M Adams JJ agreeing. In Kaliti, Howie J added at [21] that a reduction in the non-parole period must be "purposeful". 5. Without derogating from the force of those remarks, with which I respectfully agree, it might equally be observed that care must be taken not to impose a test more exigent than the statute demands. In my assessment, the combination of factors relied upon by the applicant does warrant structuring the sentence in a way that departs from the statutory ratio so as to allow for a lengthy period of supervision on parole in this case. The applicant has had a lengthy addiction to drugs and will inevitably be institutionalised to some degree by the end of the non-parole period. The subjective material before the Court presents a complex picture of competing influences. I consider that interests of the community will be well served by affording the applicant a lengthy period of rehabilitation and supported reintegration into the community upon his release on parole.

Recent decisions 1. Acknowledging the limitations of other sentencing decisions, the applicant pointed to two decisions which he submitted might assist in determining the appropriate sentence in the present case: Elsaj v R [2017] NSWCCA 124 and Trejos v R [2017] NSWCCA 122. In each of those cases, the offender had been sentenced to an aggregate sentence. The principal significance of the decisions is that the offending was considerably more serious but the indicative sentences were comparable with the sentence imposed on the applicant, suggesting that a lesser sentence is appropriate in the present case. The Crown noted that, in Elsaj at [57]-[58], Hoeben CJ at CL (with whom Bathurst CJ and I agreed at [1] and [84]) cautioned against the use of a small number of comparative cases to establish a range. Consistency in sentencing cannot be numerical; it requires consistency in the application of principle. That said, it is not inappropriate for this Court to keep itself informed of recent sentencing decisions in similar or comparable matters, to obviate the risk of haphazardness.

Conclusion 1. In all the circumstances, I have concluded that a lesser sentence is warranted in law and should have been passed. The orders I propose are: 1. that the sentence imposed by Syme DCJ be quashed; 2. in substitution therefor, that the applicant be sentenced to a term of imprisonment with a non-parole period of six years commencing on 29 October 2016 and expiring on 28 October 2022 and a balance of term of three years expiring on 28 October 2025. The applicant will be eligible for release to parole upon the expiration of his non-parole period on 28 October 2022. His sentence will expire on 28 October 2025.

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