New South Wales Court of Criminal Appeal CITATION : R v Khaled [2001] NSWCCA 169 FILE NUMBER(S) : CCA 60243/60 HEARING DATE(S) : 20 April 2001 JUDGMENT DATE : 20 April 2001 PARTIES : Regina Khaled Khaled JUDGMENT OF : Wood CJ at CL at 1; Sully J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0236 LOWER COURT JUDICIAL Moore DCJ OFFICER : COUNSEL : L. Lamprati (C) A.P. Cook (A) SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - supply of drugs - error as to quantity supplied - s 25A Drug Misuse and Trafficking Act - whether sentence manifestly excessive CASES CITED: Crimes Act 1900 s 94 Crimes (Sentencing Procedure) Act 1999 s 32 DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60243 of 2000 WOOD CJ at CL SULLY J FRIDAY 20 APRIL 2001 Regina v Khaled KHALED The applicant pleaded guilty to having supplied a quantity heroin on three separate occasions within a thirty day period, contrary to s 25A Drug Misuse and Trafficking Act 1985. He was sentenced to four years imprisonment with a non-parole period of two years. The analysts' certificate showed that the quantities of heroin involved in the sale were less than that assessed by the sentencing Judge. The applicant seeks leave to appeal against the severity of the sentence on the grounds that (1) the sentencing Judge erred in relation to the assessment of the quantity of drugs involved; (2) the sentence was manifestly excessive. HELD: (Appeal dismissed): Ground 1: his Honour erred in relation to assessment of quantity of drugs It may be accepted that the quantity of the drug is a relevant consideration in sentencing, however, this is not the only consideration. In determining an appropriate penalty for offences under s 25A Drug Misuse and Trafficking Act it is relevant to consider the magnitude of the operation or dealing. It is important to give full effect to the legislative policy of the section so as to provide a strong deterrent for those who may otherwise become involved in such activity. Sirocic [2000] NSWCCA 447; Smiroldo [2000] NSWCCA 120 applied. Ground 2: the sentence was manifestly excessive The sentencing Judge's conclusion that the applicant had reached a stage of his life where he may be able to overcome his drug additcion, was not supported by the evidence. The applicant had convictions for a series of drug and drug related offences, which showed a continuing disregard for the law. The applicant had also committed the current offence while on parole, a fact seemingly overlooked by the sentencing Judge, which was a circumstance of considerable aggravation and should have been taken into account. While the sentencing proceedings were marred by a factual error concerning the quantity of drugs involved, there was a significant counter-balance of error, such that no amendment of the sentence was warranted. Proposed Orders (1) Leave to appeal granted. (2) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60243/60 WOOD CJ at CL SULLY J FRIDAY 20 APRIL 2001 REGINA v KHALED KHALED JUDGMENT 1 WOOD CJ at CL: On 24 March 2000, the applicant was sentenced by his Honour Judge Moore to four years imprisonment, with a non-parole period of two years for an offence of having supplied heroin on three separate occasions within a thirty-day period, contrary to s 25A of the Drug Misuse and Trafficking Act 1985. This is an offence for which the maximum penalty is imprisonment for twenty years. To that offence he had pleaded guilty when arraigned. 2 He now seeks leave to appeal against the severity of the sentence upon two grounds: (a) that his Honour erred in relation to the assessment of the quantity of drugs involved; and (b) the sentence was manifestly excessive. Facts 3 The facts, as recorded by his Honour in his reasons for sentence somewhat briefly, disclosed a sale by the applicant to an undercover operative on 11 August 1999 of a quantity of heroin, which he found to have been .2 of a gram, in exchange for $100; a similar sale on 19 August 1999; and a third sale on the same date, this time of two packets of heroin, the quantity of which his Honour did not mention, but which was also handed over in exchange for $100. 4 His Honour either overlooked, or did not pay sufficient attention to the material tendered on sentence, so far as he erroneously found that the first two deals each involved .2 of a gram of heroin. The analyst's certificate, which was in evidence before him, showed that the quantities respectively involved in the three sales were 0.10gm, 0.05gm and 0.04gm, totalling 0.19gm. That factual error, which is relied upon by the applicant as one of his grounds of appeal, has been conceded by the Crown. It is, accordingly, appropriate that leave to appeal be granted and that this Court then reconsider the matter in order to determine in accordance with s 6(3) of the Criminal Appeal Act 1912, whether some sentence other than that imposed was warranted in law and should have been passed. 5 The very brief findings made by his Honour, in relation to the circumstances in which the offences occurred, did not address the further facts that: (a) the first sale was made by the applicant in the gaming room of an hotel in Crown Street, Wollongong and involved the supply of two packets of heroin; (b) the second sale was, at least, initiated outside the methadone clinic in Wollongong and was effected after the applicant asked the undercover operative to place $100 in an envelope which he was carrying. The applicant then took the operative to the side of some nearby premises, where he cut two small pieces of heroin from a larger rock which he had concealed in his pants, and placed them onto a piece of foil held by the operative; (c) the third sale was, at least, similarly initiated outside the methadone clinic. The undercover operative was taken on this occasion by the applicant to the railway station toilets. There he cut from a larger rock two deals, which he again placed into the foil held by the operative. After doing this, he handed a quantity of cash to an associate, "Speedy", who had come into the toilet area. 6 When interviewed by the police, the applicant, as he was entitled to do, made no admissions. Again as he was entitled to do, he did not give any evidence when he appeared for sentence. 7 In sentencing the applicant, his Honour observed at one point, that the applicant was dealing for the purpose of feeding an addiction. Somewhat contradictorily, his Honour later observed that "immediately prior to the commission of this offence, he was performing extremely well by not abusing drugs ..." These two passages cannot stand together and, in any event, I can find no evidentiary support for the second observation either in the pre-sentence report or in the report from Anna Robilliard, or elsewhere. 8 His Honour also came to a conclusion, for which I can see no proper support in the evidence, that the applicant had "reached a stage in his life where there are real indications that with substantial support he may wean himself from his addiction". 9 The evidence, in my view, pointed in the opposite direction. The applicant had an extensive criminal history, which commenced in 1983 in the Children's Court, and contained multiple convictions for drug offences, including convictions for supply offences in November 1983, January 1986, August 1986 and May 1998, quite apart from numerous convictions for use and possession. 10 In relation to two of those supply convictions, it is appropriate to note that, on 13 August 1986, he was sentenced to a term of four years and six months penal servitude with a non-parole period of two years and two months. It is also appropriate to note that following appeal in relation to the other of these two matters, he was sentenced in the Wollongong District Court, on 23 June 1998, to a minimum term of nine months and to an additional term of one year and three months for six counts of supply prohibited drug. Accordingly, he could not have been ignorant of the seriousness with which courts regard drug supply offences. 11 The applicant also had convictions for offences of break, enter and steal, receiving, robbery in company and goods in custody. His record was in these circumstances anything but a good record, in that it showed a continuing disregard for the law particularly that relating to the use of and the dealing in narcotics. 12 At the time of the offence before the Court, the applicant was in fact on parole for a drug supply offence, a matter that was seemingly overlooked by his Honour since he made no mention of it, even though it was a circumstance of significant aggravation which should have been taken into account: Vranic NSWCCA 7 May 1991, and Moffit (1990) 20 NSWLR 114 per Badgery-Parker J at 128. 13 Moreover, in July 1999 the applicant broke off contact with the Probation & Parole Service, apparently out of pique when the Parole Board refused his request to be allowed to travel to Lebanon. The report of that Service noted that while he had continued his attendance at the methadone clinic, which had helped him to stabilise his position and to, at least, reduce his use of heroin, he had "maintained regular association with former or current drug users and seems unable or unwilling to break away". 14 The report of Ms Robilliard did not paint a particularly favourable picture, either so far as it noted that he had a long history of drug dependence and a parallel history of related criminal offences. She observed additionally that he displayed a "markedly anti-social" personality. The most favourable aspects of this report related to the fact that he was on methadone maintenance and was participating in counselling while in custody, that he had a "valued relationship" with Tabatha Sharp, who his Honour sentenced at the same time for related drug offences, and that his criminal antecedents did not include violent behaviour. 15 The cautious opinion Ms Robilliard offered was that, "Given his current relationship commitment and his willingness to undertake counselling, he may be able to cope this time." That was, however, as far as it went and neither this report nor the pre-sentence report support the unduly optimistic findings of his Honour, concerning the subjective circumstances of the applicant. 16 Returning to the objective criminality of the applicant and to the objective findings of his Honour, it may be accepted that quantity is a relevant consideration: Sirocic [2000] NSW CCA 447 per Sheller JA at para 15. However, it is not the only consideration, for the various reasons identified by Hulme J in Smiroldo [2000] NSW CCA 120 where his Honour said: "[15] On the other hand, it would be wrong to look merely at the quantity supplied on the occasions which led to a conviction and attempt to judge an offender's conduct by the quantity and those provisions of the Act which imposed penalties for supply and grade those penalties by reference to quantity. The persons at whom section 25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. It must, it seems to me, be relevant to consider the magnitude of such an operation. As great a quantity of a prohibited drug may be supplied by a series of small transactions as by a few large ones, and one may anticipate that most offenders charged under s 25A will have been involved in the supply of far more than the particular quantities the subject of the occasions which have inspired the charge. [16] But there are likely to be constraints on how far it is permissible to go in any assessment of any overall quantity supplied in an offender's operation. Any conclusion that he or she had supplied a specific quantity or at least that quantity on occasions other than those relied on in the particular charge would run against the principle for which Regina v DeSimone (1980-1981) 147 CKR 383 is commonly cited that, in sentencing, it is not appropriate to take into account as factors of aggravation, circumstances which would themselves constitute another offence which has not been charged. [17] However, subject to that qualification, the sentencing judge was entitled to take other matters into account if they bore on the applicant's criminality and which were proved in accordance with the standards referred to in Regina v Olbrick (1999) 73 ALJR 1550." 17 It is evident in the present case that the applicant was a street dealer, and not a person any higher up in the distribution circles operating within the Wollongong district. Nor was he a person shown to have had access to any great quantity of heroin. It is, however, also clear, even though there was no actual evidence of other sales by him during the relevant thirty-day period, that the sales he made to the undercover operative were not isolated lapses on his part. So much is clear from the fact that he was present in those areas of Wollongong to which drug users are likely to be drawn, from the terms of the product of a listening device that was used in the operation, from the fact that he cut the deals from a larger rock of heroin in his possession, from his delivery of money to "Speedy," and from his earlier record. 18 It is precisely to the dealers who engage in this kind of conduct, that s 25A is directed, since it is those persons who keep the pernicious trade in heroin rolling. It may well be that an important part of the policy behind this legislation was to impose significant penalties which exist for those offenders who see it as profitable or prudent to immunise themselves from the significant penalties which exist for dealing in single large quantities, and in particular, by selling small enough deals from a stock warehoused elsewhere. I am unable, however, to accept that the section is to be confined to them. It applies equally to dealers such as the present applicant, who engage in an ongoing trade within the meaning of the section. 19 An appropriate differentiation can be drawn between the various classes of offenders to whom the section applies, by reflecting that in sentences towards the upper end of range within the available maximum of twenty years, for the bigger and more organised dealers, and by imposing lesser sentences for those who are at the bottom of the distribution chain. What is important is to give full effect to the legislative policy that this section operate so as to provide strong deterrent to those who may be tempted to engage in an ongoing trade in heroin and, in particular, to deter those who are minded to stand in their shoes once they are apprehended and sentenced to imprisonment. This is necessary to combat the unfortunate reality that there seems to have been an almost endless supply of street sellers willing to move in once others of their ilk are taken off the streets. 20 While the sentencing proceedings in this case were marred by factual error, there is significant counter-balancing error. I am not persuaded, after reviewing the subjective and objective circumstances, that any sentence other than that imposed is warranted. 21 I would grant leave to appeal but I would dismiss the appeal. 22 SULLY J: I agree. 23 WOOD CJ at CL: The orders of the Court are as I have passed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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