R v Masoud Jaouhar [2003] NSWCCA 266

New South Wales Court of Criminal Appeal

CITATION : R v Masoud Jaouhar [2003] NSWCCA 266 HEARING DATE(S) : 15/9/03 JUDGMENT DATE : 15 September 2003

JUDGMENT OF : Hidden J at 35; Greg James J at 39; Newman AJ at 1 DECISION : Leave to appeal granted - appeal dismissed. Should it be necessary order that the whole of the non-parole period be served in a Juvenile Justice Centre.

CATCHWORDS : Criminal law - drug offences - sentence - parity - co-offender LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Postiglione (1996-1997) 189 CLR 295 CASES CITED : Lowe (1984) 154 CLR 606 R v Gordon (1994) 71 A Crom R 459 at 460 PARTIES : Regina - Respondent Masoud Jaouhar - Applicant FILE NUMBER(S) : CCA 60313/2002 COUNSEL : D Frearson - Crown M Buscombe - Applicant SOLICITORS : S E O'Connor - Crown D Humphreys - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/2110 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60313/02

HIDDEN J GREG JAMES J NEWMAN AJ

MONDAY 15 SEPTEMBER 2003 REGINA v MASOUD JAOUHAR Judgment 1 NEWMAN AJ: This is an application for leave to appeal against severity of a sentence imposed upon the applicant by his Honour, Goldring DCJ, in the District Court on 23 May 2002. 2 Before his Honour the applicant maintained a plea of guilty to a charge laid pursuant to s 24(2) of the Drug Misuse and Trafficking Act 1985, which I shall refer to hereinafter as the Act, which plea he had made earlier at Campbelltown Children's Court on 11 March 2002. 3 Section 24(2) of the Act creates an offence of knowingly take part in the manufacture of a commercial quantity of prohibited drugs, in this instance methylamphetamines. The maximum penalty set by the Act for this offence is 20 years imprisonment plus a fine of $385,000; plainly an offence standing high in the criminal calendar. 4 In any event his Honour sentenced the applicant to a term of imprisonment of six years dating from 28 November 2002, the day he was taken into custody, with a non-parole period of three years. His Honour further ordered that the sentence be served in a Juvenile Detention Centre. 5 It is important to note that His Honour in sentencing, as requested by the applicant, took into account two matters on a Form 1. They were: (1) supply 3.5 grams of methylamphetamine on 23 November 2001, and (2) an agreement to supply an unspecified amount of methylamphetamine to persons on 26 November 2001 at, I should say, a price of $30 each. Neither matter huge drug offences. 6 Furthermore the applicant's offence was aggravated by the fact that he was in breach of a bond imposed at the Bidura Children's Court on 7 February 2001 for robbery in company. 7 As the objective facts of the matter, to which I am about to return, reveal that the subject manufacture of methylamphetamine involved a number of persons other than the applicant, two of those persons were subsequently dealt with by his Honour. 8 On 19 December 2002 his Honour sentenced a co-offender, Mohamed Sefian, to a term of imprisonment for six years and nine months with a non-parole period of four years. Earlier, on 8 November 2002, his Honour passed the same sentence as he imposed on Sefian on another co-offender, Dani Khouri. 9 Khouri, it was suggested, played a more important part in the manufacturing process and organisation thereof, than either Sefian or the applicant. However, the evidence relating to exactly what position Khouri held was somewhat vague. No doubt, and there is no suggestion otherwise, that he was a very active participant. 10 I turn then to the uncontested objective facts. The apprehension of the applicant and his co-offenders came about as a result of a comprehensive police surveillance operation. The applicant's proved participation in the illicit manufacturing operation may be summarised as follows: 11 On 18 October 2001 the applicant purchased 11 500 gram containers of caustic soda at the Woolworths supermarket at Eagle Vale. The same store on 20 October 2001 he purchased six 500 gram packets of bicarbonate soda. These compounds are used in the manufacture of methylamphetamine. 12 An intercepted phone call between the applicant and his co-offender Khouri on 27 November 2001 revealed the pair discussing the colour of a liquid substance made up by the applicant and the need for this substance to be dried "for the job". Undoubtedly this conversation referred to the extraction of pseudoephedrine, an essential ingredient in the manufacture of methylamphetamine from cold and flu tablets. 13 Two integrated video and listening devises were lawfully installed by the police at premises known as 8/9 Swaffham Road, Minto. On 28 November 2001 these devises recorded the arrival of the applicant and Khouri at the premises. On arrival the applicant was recorded unloading bags and boxes from a motor vehicle and carrying the unloaded scientific glassware from there in to the bathroom of the premises and then assembled that equipment. At this time Khouri was recorded as preparing chemicals. 14 When the manufacturing process was underway the applicant and Khouri were recorded discussing what they were doing in relation to it. Earlier a co-offender called Fonofehi was recorded as assisting the applicant in removing the material from the vehicle and taking it to the bathroom. Exactly what Fonofehi's part was other than that in the process is not clear as he was not one of those sentenced by his Honour subsequent to the sentencing of the applicant. On the face of it Fonofehi would seem to be a type of "look out". 15 During the course of the manufacturing process smoke caused a temporary evacuation of the premises by the offenders. When the offenders re-entered the premises, following the addition of caustic soda by the applicant and Khouri to the mix, again heavy smoke was produced. 16 Later in the day the co-offender Sefian and another unidentified male arrived at the premises. Sefian took part in attending the premises and had a discussion with Khouri about it. At 6.25pm the police arrested the applicant and his co-accused. 17 The equipment was dismantled by specialist police who found - and again this is not or was not challenged before his Honour - the process was at a distillation stage. 536.93 grams of oily liquid removed from the equipment was analysed by the Australian Government Analytical Laboratories and found to contain methylamphetamine. This oily liquid in turn, so the unchallenged evidence was, would result in 10 kilograms of five per cent purity methylamphetamine substance. That, and again the evidence was not challenged, has a street value of $1 million. 18 I should add that the applicant's fingerprints were found on the only 5 litre glass beaker located at the premises. Later a search of the premises allegedly lived in by the applicant and Sefian at 46 Crozier Street, Eagle Vale disclosed materials used in the manufacture of methylamphetamine. 19 These facts revealed the active participation of the applicant in the process of manufacturing methylamphetamine. The estimated street value of the finished product demonstrates that it was an operation of magnitude involving a serious breach of the criminal law calling for condign punishment of all those involved in the process. 20 The main mitigating factor of importance in the applicant's favour was his age. He was 18 at the time he was sentenced, 17 at the time of the commission of the offence. He had pleaded guilty at the earliest opportunity. 21 His Honour gave the applicant a discount of two years for that plea. May I say that that could only be on the basis of the utilitarian factor because this was a case where the applicant was literally caught red-handed and actually filmed committing the crime. 22 Not only did that mitigating factor arise but also there was evidence before his Honour that the applicant had suffered head injuries which could have affected his general abilities. As already mentioned he was subject to a bond at the time of the offence and had the two minor drug related offences on the Form 1 taken into account. 23 The main argument which was mounted on the applicant's behalf was that when the applicant's role was compared with his co-accused, taking into account his age, that is the applicant's age, that he would have a legitimate sense of grievance at the sentence imposed upon him when compared to the sentences imposed upon Sefian and Khouri. 24 Reliance was properly placed upon what had fallen from the High Court in Postiglione which in turn considered the earlier High Court decision of Lowe. Lowe was reported at (1984) 154 CLR 606 and Postiglione at (1996-1997) 189 CLR 295. 25 While Gummow J was not absolutely in agreement with the principal judgment delivered by Dawson and Gaudron JJ, he, in my view, correctly observed at 323: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done."