Regina v Morres George [2002] NSWCCA 419

New South Wales Court of Criminal Appeal

CITATION : Regina v Morres George [2002] NSWCCA 419 FILE NUMBER(S) : CCA 60265/02 HEARING DATE(S) : 11/10/2002 JUDGMENT DATE : 11 October 2002

PARTIES : Regina Morres George JUDGMENT OF : Sperling J at 22; Buddin J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0334 LOWER COURT JUDICIAL Blanch CJ of DC OFFICER :

COUNSEL : R Herps (Crown) AP Cook (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) CATCHWORDS : Appeal against sentence - knowingly take part in supply of not less than commercial quantity of amphetamine - Form 1 offences - acted as "middleman" - plea of guilty - prior convictions - in poor health - appeal dismissed. CASES CITED: R v Burrell [2000] NSWCCA 262 R v Conway (2001) 121 A Crim R 177 DECISION : Grant leave to appeal. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60265/02

SPERLING J BUDDIN J

Friday 11 October 2002 REGINA v MORRES GEORGE Judgment 1 BUDDIN J: The applicant seeks leave to appeal against a sentence of four years' imprisonment with a non-parole period of three years which was imposed upon him in the District Court. 2 The applicant pleaded guilty to a charge of knowingly take part in the supply of not less than the commercial quantity of methylamphetamine, an offence which occurred in late April 1999. Pursuant to S 25(2) of the Drug Misuse and Trafficking Act 1985, that offence attracts a maximum penalty of imprisonment for 20 years and/or a fine of $385,000. The applicant asked that two further such offences, which had occurred in June 1999 and which were placed on a Form 1 document, be taken into account on sentencing. 3 The sentence was ordered to commence on 2 October 2001, as was the non-parole period which is due to expire on 1 October 2004. The commencement date was selected to give effect to a period of time which the applicant had spent in custody prior to sentence. The applicant stood for sentence with his de facto wife, Ms Rompel, with whom he had been living for some 15 years. 4 So far as the facts in the matter are concerned, it is necessary only to have reference to the sentencing judge's summary of them which appears in the following passage in the Remarks on Sentence: In April 1999 the police began the surveillance of Harry Lahood, whose name I direct not to be published because of an upcoming trial, and the police operation noted that he was travelling from Sydney to Perth and he met Antony Labianca in Perth. The police began a surveillance of Labianca and monitored telephone conversations between Labianca, the prisoner Morres George and the prisoner Penny Rompel. They discussed bringing large amounts of cash from Perth to Sydney to purchase prohibited drugs. On 18 April 2000 a monitoring of those conversations indicated the arranging of a large amount of cash to be brought form Perth to Sydney to purchase drugs. The drugs were to be purchased by a person Baker and the money was to be brought to Sydney from Perth by a man called Turner and the drugs were to be returned by drug couriers Deanne Cross and Bill Hallani. On 23 April 1999 the NCA saw Labianca and Turner go to the airport and a ticket was purchased by Turner to go to Sydney. A search of his bag found $82,000 in the bag. He travelled from the domestic airport to the home of the prisoners who were living at Harris Park. When he arrived there he rang Baker and organised to meet him. The prisoner George travelled form Harris Park to Baker's address and returned some time later. The persons who were nominated as the couriers Cross and Hallani were observed by the police arriving at the home of the two prisoners. Hallani was carrying a blue bag and shortly afterwards prisoner George and Hallani left the premises and Hallani was carrying the bag. The police followed Cross and Hallani to the Ansett domestic terminal at Sydney where Hallani collected his ticket and checked in the blue bag. The blue bag was searched and was found to contain 850.4 grams of methylamphetamine and the bag and the drugs were seized by the police. Subsequently Hallani returned to Perth and the bag did not come off the plane and there was then discussion between Labianca, the two prisoners, Baker, Cross and Hallani about the disappearance of the bag. It is perfectly clear from the facts of that case that the two prisoners were involved to some extent in the organising of the bringing of the money from Perth and the sending of the drugs from Sydney to Perth. It is clear that their involvement was something more than being mere couriers as Hallani and Cross and Turner were, but it is also clear that the scheme was one which was essentially hatched by Labianca and Lahood. The first matter on the form 1 relates to the bringing of $80,000 from Perth on another occasion to purchase drugs from Lahood and the money was left in the premises occupied by the two prisoners. Some of the money was collected from the premises of the two prisoners and subsequently a box containing at least 2,900 methylamphetamine tablets was sent to Perth. There was conversation monitored by police indicating the drugs had safely arrived and that monitoring of the conversations indicated, as the plea of guilty has, that the prisoners were involved in the planning of that operation. In June 1999 police monitored a telephone conversation indicating that Morres George was asking for some $3,000 and that $3,000 appears to be the amount of money that he was being paid for his part in the organising of that particular shipment, and also of course for the prisoner Rompel's role. The second count on the form 1 relates again to the sending of Turner to Sydney with money to purchase ecstasy tablets from Lahood. Again there were monitored telephone conversations indicating an involvement of the two prisoners and surveillance of Turner was carried out. The monitoring of that conversation indicated that the prisoner George was concerned that he was being followed by police, and he was in fact under surveillance at that stage. Turner went to the airport at a subsequent time with a box which the police seized and it was found to contain 2,781 methylamphetamine tables weighing 662 grams. In brief the prosecution case is stated to be that these two prisoners acted as "middle-men" who introduced the purchaser Labianca to various suppliers being Harry Lahood and Glen Baker. The prosecution case is that they also assisted in providing a pick-up point for the drugs and movement of the drugs between the source and the couriers. 5 The applicant, as I have said, pleaded guilty to these offences. His Honour observed that he was thus "entitled to the maximum discount for the plea both as an expression of contrition and as an expression of [his] willingness to facilitate the course of justice". 6 The applicant was aged 60 at the time of these offences and is now aged 63. He does have a criminal history but with one exception it involves only minor offences and reflects the applicant's long-standing interest in gambling. He had had no convictions since 1991 prior to the commission of these offences. However in 1986 he was sentenced to imprisonment for five years for an offence of conspiracy to bribe a public official which related to the bribing of Rex Jackson, the then Minister for Corrective Services, to ensure the early release of prisoners from gaol. 7 The applicant was born in Lebanon but came to Australia at the age of 18. He appears to have acquired few vocational skills and has rarely been engaged in gainful employment. He has been on either sickness benefits or a disability pension for many years. The probation officer reported that the applicant "was not willing to discuss any offending rationale or behaviour. He was vague, saying that 'I can't work it out – why I did it – it must have been for the money. … [He] continues to minimise any offending behaviour, claiming that he was 'just in the wrong place, mixing with the wrong crowd'. He feels he just made a 'mistake', just as he did with his last offence which resulted in a long gaol sentence." 8 The applicant was in poor health when he appeared for sentence. The sentencing judge summarised the evidence in respect of that matter in the following terms: In his case there is a significant physical health problem . In a report of Dr Lahood dated November 2001 his ailments are outlined as including ischaemic heart disease which indicates that he has had heart failure, and he takes multiple cardiac medications. It says also that he has prostatic hypertrophy and that is taken up in a subsequent report of Dr Drummond of 9 January 2002 where he says that the prisoner has progressive prostatism leading to frequency nocturia which is quite distressing and arrangements have been made for there to be an operation. Going back to the report of Dr Lahood of November 2001 he speaks of severe blockage in the leg arteries saying he is unable to walk more than thirty metres due to leg pain and has had gangrene of his lower limbs and been hospitalised. That is taken up also in a podiatrist's report indicating a need for regular treatment. There is also noted a thickening of the blood and he is on constant Warfarin for that. He is suffering from chronic diabetes and requires regular insulin injections. He suffers from chronic kidney failure due to that diabetes. He suffers from hypertension and hypercholesterolaemia. He suffers from chronic paraesthesia and obviously he is a man who now at 64 is suffering from debilitating illnesses which require ongoing treatment. The probation officer has made inquiries as to whether that treatment is available within the jail and the information she has given to the Court is that the prisoner can be dealt with while in custody and provided with medical attention. It stands to reason, as a matter of general experience, that it is more difficult for people in jail to be got out and taken to civilian hospital care than it would be if the prisoner were in the community. There is no suggestion however that the fact of his being in jail would lead to a life threatening situation arising. However, in my view the fact that he is so ill is something that has to be taken into account on the broader issue of what the appropriate sentence is to be. In my view it is a matter which in this case should be taken into account to reduce the sentence which might otherwise be imposed . (emphasis added) 9 The sentencing judge indicated that he was aware of the need to ensure that the sentence which he imposed was not such as to enliven a justifiable sense of grievance on the part of any of the co-offenders, a number of whom he had already sentenced. On 3 August 2000 he sentenced each of Hallani and Cross to a term of three years' imprisonment with a non-parole period of 15 months. Each of them was sentenced upon the basis that they were a courier. Neither of them had prior convictions. In each case the offender was serving the sentence in protective custody as threats had been made upon their lives in an attempt to deter them from giving evidence. Each had given significant assistance to the authorities and for that reason their sentences had been discounted by 50%. It is reasonable to assume, in those circumstances, that but for the assistance which those offenders provided to the authorities, overall sentences of six years' imprisonment would have been imposed upon them by the sentencing judge. 10 On 12 November 2001 the sentencing judge imposed a sentence of two years' imprisonment with a non-parole period of 18 months upon David Turner. That offender was aged 35, was of prior good character and had pleaded guilty. He was found to be a courier but the scope of his involvement was found to be considerably less than that of Cross and Hallani. 11 A further co-offender named Mate Yerkovic had been sentenced on 10 March 2000 to 40 hours of community service for his role in the enterprise. A Crown appeal against that sentence was dismissed. In dismissing the appeal this Court found that the case was a truly exceptional one. Mr Yerkovic had played only a relatively minor role, had provided significant assistance to the authorities and his state of health was such (he having had coronary artery bypass surgery) that sending him to gaol would constitute a real threat to his life. 12 On the same day as the applicant was sentenced, Ms Rompel was sentenced to imprisonment for three years with a non-parole period of two years and three months. She was aged 46 at the time, and had had no prior convictions. Like the applicant, she had pleaded guilty. The sentencing judge found that she had been led into the commission of these offences because of the circumstances in which she found herself, namely that she was living with the applicant who knew and had on-going contact with some of the other offenders. Those circumstances, his Honour found, made it difficult for her to resist becoming involved. Moreover she had assumed the role of "carer" to the applicant for a period of 15 years. 13 As I have observed, the sentencing judge was aware that he was sentencing the applicant in the context of sentences which had already been imposed upon co-offenders. The applicant's level of involvement was clearly at a higher level than those of his co-offenders who had already been sentenced, albeit that there were others who were yet to be dealt with, whose criminality was even more significant than his. Moreover and importantly he was not entitled to the leniency which had been extended to his co-offenders by reason of their claims to prior good character or, where relevant, to having provided assistance to the authorities. Nevertheless, as has been observed, the sentencing judge said that it was necessary to reduce the otherwise appropriate sentence on account of his "serious ill health". 14 In making an assessment as to the appropriate sentence to be imposed upon the applicant his Honour said: …it is appropriate to categorise Mr George as someone who has always been interested in making a short term profit. He has been interested in gambling. He was involved in the bribing of a Commonwealth official. He seems to have embraced this scheme and to have embraced it on the basis that he was not going to be a major shareholder in it or a major participant in its profits. He is someone who did not hesitate to become involved in a serious criminal enterprise. The distribution of drugs on our streets is a serious matter. The harm that these drugs do to members of our community, including particularly young members of the community, is incalculable. People who involve themselves in the distribution of these drugs must expect to be punished particularly if they do it, as was done here, for profit. There has to be an element of general deterrence in sentencing for these offences. 15 The applicant acknowledged that his criminal conduct was of a high order and "warranted, in the ordinary course of events, a significant penalty". However, the applicant submits that his ill-health placed a different complexion upon the case. It was not submitted that the applicant's medical condition was such that the wholly exceptional course of imposing a non-custodial sentence was called for. See R v Burrell [2000] NSWCCA 262. Nor was it submitted that the sentencing judge had failed to take the applicant's health into account. What was submitted however was that His Honour "failed to give proper consideration to the applicant's medical condition and the extent to which it would make life more difficult for him in prison". It was submitted that "virtually every aspect of [the applicant's] life in prison would be more difficult for him". 16 In R v Conway (2001) 121 A Crim R 177, Heydon JA (with whom Bell J and Smart AJ agreed) said that: The contention that a discretionary decision on sentencing should be set aside because "insufficient" weight was given to a particular factor is not an easy contention to succeed in. To fail to give any weight to a material matter is an error the evidence of which is relatively easy to demonstrate, and the consequence of which will usually be to cause the decision to be set aside. A contention that there was a failure to give sufficient weight to a particular factor involves a contention that some error occurred in a complex process of weighing that factor with others. However, an error of principle or a result which is plainly indicative of some error can be caused, and evidenced, by a failure to give sufficient weight to a relevant factor. (at 183-4) 17 I am not persuaded in all the circumstances, that his Honour did other than to give appropriate weight to the important issue of the applicant's medical condition. Not only did his Honour effectively say that he was doing so but the sentence at which he ultimately arrived, given all the other factors which were to be weighed in the balance and to which I have adverted, demonstrates the fact that it was significantly ameliorated on account of his ill-health. 18 Further material has been placed before the Court concerning the applicant's present medical condition. The Crown did not object to the court receiving that material. Indeed, it in turn, relied upon an affidavit of Dr Maguire who is employed by the Corrections Health Service at Long Bay Gaol. 19 The additional material demonstrates that the various matters which affect the applicant's health, and about which there was evidence before his Honour, continue to plague him. Nevertheless it is conceded that his condition has not deteriorated since he has been in custody. Furthermore the additional material reveals that every effort is being made by the prison medical authorities to meet his various health requirements including facilitating his attendance at outside medical facilities so that he may undergo all necessary tests and procedures. 20 Even upon the assumption that the material is admissible in respect of the application for leave to appeal, I am still not persuaded that there is a basis upon which the court should intervene particularly as there has been no material change in the applicant's overall condition. In those circumstances it is unnecessary to finally determine the issue of whether the further material is, in fact, admissible. 21 I would propose the following orders: