R v MOUSSA [2001] NSWCCA 28

New South Wales Court of Criminal Appeal

CITATION : R v MOUSSA [2001] NSWCCA 28 FILE NUMBER(S) : CCA 60146/2000 HEARING DATE(S) : 19 February 2001 JUDGMENT DATE : 19 February 2001

PARTIES : Regina Elvis MOUSSA JUDGMENT OF : Grove J at 13; Hulme J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0048 LOWER COURT JUDICIAL Price DCJ OFFICER :

COUNSEL : Crown: E Wilkins In person SOLICITORS : Crown: SE O'Connor Appeallant: In person

DECISION : Application for leave to appeal refused

- 3 - IN THE COURT OF CRIMINAL APPEAL No: 60146/00 GROVE J HULME J

Monday, 19 February 2001 REGINA -v Elvis MOUSSA

JUDGMENT 1 HULME J : On 2 March 2000 this applicant was sentenced by Price DCJ to minimum and additional terms each of 12 months in respect of a charge of supplying a prohibited drug, namely, heroin. The minimum term was directed to commence on 29 February 2000. The quantity involved was 27 grams of 71 percent purity. In addition his Honour took into account a similar offence committed about three or four weeks previously although, judged by the price paid, the quantity seems to have been about half of that the subject of the charge. 2 The circumstances of the offence were that the applicant had travelled from Murwillumbah to Sydney and then on to Cabramatta on 25 October 1998 where the heroin was purchased and when at Strathfield on his return journey he was apprehended by police, searched and arrested. He said that the heroin was purchased for himself and his wife, both of whom were addicts. His explanation for purchasing the drug in Sydney was that it was appreciably cheaper here than in northern New South Wales or the Gold Coast. 3 The Crown case before the learned sentencing Judge was that the applicant was a heroin dealer, but that issue was resolved in favour of the applicant and his Honour found the purpose of the purchase was that which I have stated. 4 The applicant was born in March 1970 and until the last few years he seems to have had a good employment history. Since February 1999 he has been convicted of obtaining money by deception, being in possession of property reasonably suspected of having been stolen, shoplifting and entering enclosed lands without lawful excuse. However, much of the cost of the applicant's habit seems to have been funded by the use of the proceeds of sale of a house he and his wife owned. 5 His heroin use commenced when he was 26 years old and use by injection far more recently. 6 I should mention also the applicant in 1989 had been placed on a s558 recognizance for driving whilst disqualified and about 2 years later a community service order for a similar offence. 7 The matters which the applicant, who appeared for himself, urged were that it was his first time in gaol, that the sentencing Judge made no finding whether the degree of supply was substantial, that in fact it was not and therefore a gaol term was not an appropriate sentence. The applicant drew attention to the hardship to his family, including the fact his children are now seeing a psychologist, and he is free of his addiction. The last of these matters, whilst it may be relevant to any re-sentencing should the Court reach that stage, is not relevant to the question of whether the sentence under appeal was affected by error at the time it was imposed. It must be remembered that before the Court of Criminal Appeal can interfere with a sentence imposed at first instance it must be shown that the original sentence was outside the legitimate exercise of the sentencing Judge's discretion or otherwise affected by error. 8 Hardship to a family or dependants in consequence of the imposition of a gaol term is commonly an inevitable consequence of it. Such hardship is only taken into account in extreme or highly exceptional cases - see R v Edwards (unreported) CCA 17 December 1996 and the authorities there cited. The hardship relied on by the applicant does not come close to falling into that exceptional category. 9 Turning to the argument that the degree of supply involved in this case was not substantial, it is important to bear in mind the determination of the relevant legislation: The supply of between 5 grams and 250 grams renders an offender liable to imprisonment for 15 years; the supply of between 1 gram and 5 grams renders an offender liable to imprisonment for 10 years or, if the matter is dealt with summarily, 2 years. Obviously matters other than the mere quantity of drug involved have to be taken into account, but compared with the statutory provisions to which I have referred, when regard is had to the quantity involved in this case, the applicant's sentence totalling 2 years imprisonment cannot be regarded as excessive. 10 As the applicant must by now realise, the consequences of using heroin are liable to be, if indeed they will not inevitably be, disastrous and Parliament has made it unmistakably clear that any offence of supply is to be regarded at serious. In R v Clarke (unreported) CCA 15 March 1990 it was made clear that it would only be in exceptional circumstances that a non-custodial order would be appropriate "where the offence involves the dissemination or intended dissemination of drugs to others." 11 The applicant's previous history of offending, while not comparable with that of many persons who come before the Courts, was by no means insignificant and he cannot continue to expect leniency in the sense of an alternative to a prison term. His Honour made specific mention of the applicant's dependency on the drug and recognised the credit to be given to the applicant for both his plea and the fact that his earlier offence taken into account was one which he had himself revealed to the police. 12 I am unable to see any error in the approach Price DCJ took to the sentencing of the applicant or in the sentence finally imposed. In my opinion the application for leave to appeal should be refused. 13 GROVE J : I agree with the judgment just given and proposed and that will be the order of the Court.