New South Wales Court of Criminal Appeal CITATION: Regina v Abdul-Kader [2005] NSWCCA 205 HEARING DATE(S): 01/06/2005 JUDGMENT DATE: 1 June 2005 JUDGMENT OF: Studdert J at 14, 16; Howie J at 1; Latham J at 15 DECISION: The application for leave to appeal is granted but the appeal is dismissed. CATCHWORDS: Criminal Law - Sentencing - No point of principle. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25 CASES CITED: R v Clarke (NSWCCA 15 March 1990, unreported) PARTIES: Regina v Mostafa Abdul-Kader FILE NUMBER(S): CCA 2005/399 V. Lydiard - Crown COUNSEL: A. Hallas - Applicant S. Kavanagh - Crown SOLICITORS: E. Younan - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0010 LOWER COURT JUDICIAL OFFICER: Sorby J IN THE COURT OF CRIMINAL APPEAL 2005/399 CCAP STUDDERT J HOWIE J LATHAM J WEDNESDAY 1 JUNE 2005 REGINA v MOSTAFA ABDUL-KADER Judgment 1 HOWIE J: The applicant was convicted by a jury of a charge of supplying methylamphetamine contrary to s 25 of the Drugs Misuse and Trafficking Act. That offence carries a maximum penalty of imprisonment for 15 years. The applicant was sentenced by Judge Sorby (the Judge) to a term of imprisonment of 2 years and 8 months made up of a non-parole period of 20 months with the balance of the term being 12 months. The sentence commenced on 11 May 2004 and the applicant is eligible to be released to parole on 11 January 2006. The applicant contends that the sentence was manifestly excessive. 2 The applicant was also before the Judge on a charge of possessing a small quantity of cannabis leaf. In respect of that offence the applicant was sentenced to the rising of the court and there is no appeal against that sentence. 3 The offence for which the applicant was convicted was based upon an allegation that he had in his possession a quantity of methylamphetamine greater than the trafficable quantity specified for that drug. The facts upon which the Judge sentenced the applicant can be briefly stated. On 18 June 2003 the applicant checked into a room at a hotel at the Quay. He was later joined by other persons and they held a party during which drugs were consumed. The activity of the other persons over the next 24 hours led to a complaint being made to police who as a result obtained a search warrant for the hotel room. The Crown case was that, as the police entered the room, the applicant threw on the floor a sum of money and a plastic bag containing a white substance. The contents of the plastic bag were later analysed and found to be 27.9 grams of methylamphetamine with a purity rate of just under 80 per cent. The issue before the jury was whether the applicant was in possession of that drug. The applicant maintained that he was not a user of methylamphetamine and denied having had possession of the plastic bag containing the drug. 4 The jury's verdict of guilty meant that the applicant had to be sentenced on the basis that he was in possession of that drug for the purposes of supplying it. During the course of his sentencing remarks, the Judge stated the following: The facts revealed the amount of methylamphetamine was 27.9 grams with a purity of 79.5 percent. Its street value was $13,950. These facts strongly indicate the drug was not in possession of the prisoner for his use and the use of his friends at a party in room 1309. Resealable plastic bags commonly used in supply of drugs were located in a jacket belonging to the accused. Although no other paraphernalia of drugs for sale, such as scales were found. There is no suggestion the prisoner was some sort of small cog in a big operation or any operation at all of drug dealing, that (sic) he operated alone. 5 The applicant was aged 21 years at the date that sentence was imposed in June 2004. He has a criminal record but no prior offences involving prohibited drugs. The previous convictions of the applicant are concerned mainly with traffic matters of varying degrees of seriousness and minor offences of dishonesty. In December 2003 he was sentenced in the Local Court to a fixed term of 6 months for offences of driving under the influence and using a false instrument. At the time of the commission of the offence for which he was sentenced the applicant was subject to a good behaviour bond for dishonesty offences. He had also served a period of one month in custody on remand for the supply offence. 6 There was before the Judge a pre-sentence report. It disclosed that the applicant was born in Australia and had a happy childhood with his adopted parents until they separated in 1994. The applicant went to live with his mother. He travelled to Lebanon on a number of occasions with her so that his mother could seek medical treatment. On one of these occasions, when the applicant was aged 16, his mother died. The death of his mother had a very significant impact upon the applicant and he told the probation officer that he commenced using cannabis as a means of coping with it. A psychological assessment of the applicant conducted in April 2002 found that he suffered from depression. The applicant has had suicidal thoughts from time to time and on one occasion inflicted injuries to himself. The applicant's father gave evidence before the sentencing judge during which he indicated that the period that the applicant had served in custody appeared to have had an impact upon him. There were references tendered on the applicant's behalf as to his general good character in the community. 7 The applicant's submissions in this Court concede that a sentence of imprisonment was required in light of the authoritative statements of this Court in relation to sentencing for offences of supplying drugs: see for example R v Clarke NSWCCA 15 March 1990 unreported. However, it is argued that the sentence was excessive due, in part at least, to his Honour's finding that the applicant was not in possession of the drug for gratuitous supply to his friends. It was submitted that it was not open to his Honour to find, as he did, that the applicant was not intending to supply the drugs to his associates at the party. 8 As I have already indicated, the Judge was required to sentence the applicant on the basis that he had the drugs in his possession for the purposes of supply. The nature of that supply, if known, might have been relevant to an assessment of the objective seriousness of the offence. Clearly the applicant had the onus of establishing on the balance of probabilities that the intended supply was gratuitous; that is, it was for the use of those persons at the party. The applicant did not give evidence on sentence and had always maintained that he was not in possession of the methylamphetamine. His stance was that the only drug he used was cannabis. In those circumstances he started from a somewhat disadvantageous position in satisfying the judge that the offence was mitigated by the gratuitous nature of the intended supply. 9 It was submitted on behalf of the applicant that it was not open for the Judge to conclude that the drug was not for the use of the applicant and the persons who had been in the hotel room relying upon simply the quantity and quality of the drug and the finding of small plastic bags in the possession of the applicant. It was argued that the plastic bags were as capable of being used for holding cannabis as for holding amphetamine and that the high purity of the drug did not mean that it could not be used without being further broken down. Reliance was placed upon the fact that there were no other indicia of supply found such as scales, telephone records or cutting agents. 10 But the applicant's submissions are based upon an unjustified assumption that the drugs were in the possession of the applicant for supply at that time or to the persons at the hotel. The only conclusion that the Judge came to was that the drug was not going to be used by the applicant and the persons who were with him in the hotel room. He made no other finding about the nature of the intended supply. In light of the high purity of the drug, its value at nearly $14,000, the presence of the plastic bags and the fact that the applicant was not a user of the drug, it was clearly open to his Honour to reject a submission that the drug was in the applicant's possession merely for the benefit of those who were present with him. That was simply a finding that a potentially mitigating factor was not present, or to put it more precisely, that his Honour was not satisfied of the presence of that mitigating factor. 11 In any event the applicant was in possession of almost ten times the trafficable quantity of high purity amphetamine. There was the potential for the dissemination of a not insignificant amount of a dangerous drug to other persons in the community. The criminality of the offence was substantial regardless of the purpose or nature of the intended supply of that drug. As the trial judge noted, the applicant had pleaded not guilty and, therefore, was not entitled to any discount of the sentence for contrition or remorse. The offence was objectively serious and general deterrence was an important, if not the most important, consideration in determining the appropriate sentence. There was the aggravating factor that the applicant was on conditional liberty at the time of offending. 12 Apart from the applicant's age there was little by way of significant subjective mitigation and it would have been difficult for the Judge to have had any confidence in the applicant's prospects of rehabilitation in the absence of any acceptance of criminal responsibility and remorse for his criminal conduct. His criminal record did nothing to encourage a merciful approach. Although the applicant wrote a letter to the Court indicating his intention to change his ways, he blamed his offence on the "crowd that I was with". His expressions of contrition could have been given little weight. The applicant had the benefit of a finding of special circumstances. 13 In my view the sentence imposed was well within the discretion of the Judge. I propose that the application for leave to appeal be granted but the appeal be dismissed. 14 STUDDERT J: I agree. 15 LATHAM J: I also agree. 16 STUDDERT J: The orders of the Court then will be those proposed by Howie J. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.