New South Wales Court of Criminal Appeal CITATION: Regina v Farah [2005] NSWCCA 67 HEARING DATE(S): 01/03/05 JUDGMENT DATE: 1 March 2005 JUDGMENT OF: Grove J at 54; James J at 2; Barr J at 55 DECISION: Leave to appeal be granted. Appeal allowed. Sentences imposed by Sides DCJ quashed. Applicant re-sentenced. CATCHWORDS: CRIMINAL LAW - SENTENCING - supplying prohibited drugs on an ongoing basis - heroin and methylamphetamine - pleas of guilty had not been entered at the earliest opportunity - whether sentence manifestly excessive - whether sentencing judge erred in failing to make allowance for the applicant's medical condition - whether sentencing judge erred in failing to make a finding that the applicant had favourable prospects of rehabilitation - principle of totality - whether sentencing judge had sufficient regard to the punishment the applicant had already received from a penalty imposed under the Criminal Assets Recovery Act Crimes (Sentencing Procedure) Act LEGISLATION CITED: Criminal Assets Recovery Act Drug Misuse and Trafficking Act CASES CITED: NSW Crime Commission v Farah (2003) 142 A Crim R 108 PARTIES: Regina v Michael Farah FILE NUMBER(S): CCA 2004/2954 M Ramage QC - Applicant COUNSEL: Ms D Woodburne - Respondent V Havryliv - Applicant SOLICITORS: S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/3032 LOWER COURT JUDICIAL OFFICER: Moore DCJ & Sides DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2954 GROVE J JAMES J BARR J TUESDAY 1 MARCH 2005 REGINA v Michael FARAH Judgment 1 GROVE J: The court is in a position to give judgment and I will ask James J to give the first judgment. 2 JAMES J: Michael Farah has applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Sides QC on 19 December 2003. For an offence of supplying prohibited drugs, that is, heroin and methylamphetamine, on an ongoing basis, an offence under s 25A of the Drug Misuse and Trafficking Act, which was committed between 18 September 2000 and 17 October 2000, his Honour imposed a sentence of imprisonment for five years six months with a non-parole period of two years six months commencing on 23 May 2005. In sentencing the applicant for this offence Judge Sides took into account an offence of conspiring to supply heroin. For an offence of supplying a prohibited drug, heroin, an offence under s 25(1) of the Drug Misuse and Trafficking Act, which was committed on 14 November 2000, his Honour imposed a sentence of a fixed term of imprisonment of twelve months to commence on 23 May 2005. For an offence of supplying a prohibited drug, heroin, on 21 November 2000 his Honour imposed a sentence of imprisonment for four years with a non-parole period of two years commencing on 23 May 2005. It will be observed that his Honour made all the sentences he imposed commence from the same date, 23 May 2005. 3 In his remarks on sentence his Honour explained why he had chosen that date as the date of commencement of the sentences and I will refer to that explanation later in this judgment. 4 The applicant had been arrested on 21 November 2000 and he remained in custody until 21 September 2001 when he was released on bail. There was a committal hearing and the applicant was committed for trial on charges of the three offences for which he was ultimately sentenced by Judge Sides and another offence, that on 21 November 2000 he had supplied not less than a large commercial quantity of a prohibited drug, methylamphetamine. The date 18 August 2002 was fixed for the trial of all four charges. However, that trial date was vacated. 5 On 15 November 2002 the applicant was arraigned on an indictment containing all four charges. He pleaded guilty to the three charges of offences for which he was ultimately sentenced by Judge Sides and not guilty to the charge of supplying not less than a large commercial quantity of methylamphetamine. 6 In March 2003 the applicant was tried before Moore ADCJ in a judge alone trial on the charge of supplying not less than a large commercial quantity of methylamphetamine. On 25 March 2003 Judge Moore found the applicant guilty of the charge. The applicant was remanded in custody for sentence and he remained in custody until he was sentenced. The applicant was not sentenced by Judge Moore until 7 November 2003. 7 On 7 November 2003 Judge Moore sentenced the applicant for the offence of supplying not less than a large commercial quantity of methylamphetamine to a sentence of five and a half years with a non-parole period of three years to date from 8 June 2002. Judge Moore selected 8 June 2002 as the date from which the sentence should commence, on the grounds that the applicant had been in pre-sentence custody for two broken periods totalling one year four months twenty-two days. In fact, the two periods during which the applicant had been in custody, from 21 November 2000 to 21 September 2001 and from 25 March 2003 to 7 November 2003 the date of sentencing, totalled a period of more than one year four months twenty-two days. When Judge Sides came to sentence the applicant, Judge Sides made the sentences he imposed commence from 23 May 2005, that is from the date on which, according to Judge Sides' calculations, the non-parole period of the sentence imposed by Judge Moore would have expired, if Judge Moore, in imposing his sentence, had allowed for the total period, of the applicant's pre-sentence custody. 8 Judge Moore decided to disqualify himself from sentencing the applicant for the three offences to which he had pleaded guilty and the task of sentencing the applicant for those sentences devolved on Judge Sides. In his remarks on sentence Judge Sides summarised the facts of the offences and the following brief statement of the facts of the offences is derived from his Honour's statement of the facts of the offences in his remarks on sentence. 9 The offences were committed during an authorised controlled operation in which an undercover police officer with the assumed name Nik and an intermediary named Nasr participated. On 18 September 2000 Nik and Nasr travelled to the applicant's house where the applicant agreed to supply Nasr with drugs. The applicant supplied Nasr with 101 tablets weighing 26.1 grams, containing traces of methylamphetamine and ketamine. $5,800 provided by Nik was paid to the applicant. Later the same day the applicant supplied 50 tablets weighing 4.8 grams and containing 3.5 percent methylamphetamine to Nasr for a price of $750. Later again the same day the applicant, at a local show ground, supplied Nasr with three blocks of heroin weighing 27.8 grams and containing 56 percent heroin. 10 On 5 October 2000 the applicant supplied Nik directly with five tablets weighing 1.49 grams and containing four per cent methylamphetamine. Later the same day at the showground the applicant supplied Nasr with three blocks of heroin weighing eight-five grams and containing about fifty-nine per cent pure heroin for a price of $12,900, which was paid to the applicant. During this transaction the intermediary Nasr stole an amount of $2000 which Nik had provided to him for payment to the applicant and it was agreed by the applicant and Nik that in the future the applicant would deal directly with Nik. 11 On 17 October 2000 the applicant telephoned Nik and they agreed to meet again. At this meeting the applicant supplied Nik with 100 tablets weighing 30.2 grams and containing 4.5 per cent methylamphetamine, for which Nik paid the applicant $1500. The applicant supplied Nik with three bags of heroin weighing 74.5 grams and containing between fifty-two per cent and seventy-two per cent pure heroin, for which Nik paid the applicant $13,500. 12 The offences committed on 18 September 2000, 5 October 2000 and 17 October 2000 constituted the offence of supplying prohibited drugs on an ongoing basis. In total, the applicant supplied 256 tablets of methylamphetamine and 185 grams of heroin with a high degree of purity and the applicant was paid $34,450. 13 The further offences for which the applicant was sentenced by Sides DCJ were committed on 4 November 2000 by the applicant supplying to Nik a small foil containing .48 grams of heroin, the degree of purity being just under sixty per cent, and on 21 November 2000 by the applicant agreeing to supply Nik with a quantity of heroin in exchange for a payment of $25,000. The applicant was arrested before any heroin was actually supplied. 14 In sentencing the applicant for the offence of ongoing supply, Sides DCJ took into account an offence of conspiracy to supply heroin. The evidence that this offence had been committed consisted of legally intercepted telephone conversations. 15 In his remarks on sentence Sides DCJ said that he considered that the crimes were objectively serious. Over a period of two and a half months the applicant had been involved, to a very significant extent, in commercial drug trafficking. His Honour found that the applicant had done so to pay debts which the life style he had been living had generated. His Honour found that the applicant had been dealing in drugs at a wholesale level; he had not been selling to ultimate users. 16 In his remarks on sentence his Honour noted some of the subjective features of the applicant. At the time of being sentenced the applicant was forty-one years old. He had been born in Lebanon on 23 March 1962. He had come to Australia in 1985. He married in 1987 and there were four children of the marriage, whose ages at the time the applicant was sentenced were between three years and fourteen years. For a number of years down to the time of his arrest he had carried on his own concreting business, employing up to fifteen employees. Apart from a conviction in 1994 for playing an unlawful game, the applicant had no previous criminal convictions and hence no previous convictions for drug offences. His Honour remarked that the applicant was entitled to have his good character taken into account. 17 When the applicant was arrested one of his legs had been broken. Up to the time he was sentenced the applicant had had four operations on his leg, including a bone graft, and at least one further operation would be required. His Honour accepted that the applicant's mobility was restricted to some extent by the injury to his leg and that the applicant continued to experience pain from the injury. However, his Honour found that:- "There is no evidence of the injury causing him any greater hardship in a custodial setting than would be the case if he was at large in the community ." 18 In his remarks on sentence his Honour said that the applicant had no problem with alcohol or drugs. However, he had become addicted to gambling and had incurred significant gambling debts. While in custody he had received some counselling for his gambling addiction and the applicant was prepared to undertake appropriate therapy to address his gambling addiction. 19 As regards the applicant's pleas of guilty, his Honour found that the pleas had not been entered at the earliest opportunity. His Honour said that he would allow a discount of fifteen per cent for the utilitarian value of the pleas of guilty. 20 His Honour considered that expressions of remorse by the applicant were belated but were, nevertheless, genuine and should be reflected in the sentences his Honour would impose. 21 His Honour said in his remarks on sentence that he took into account in the applicant's favour the delay which had occurred in the sentencing of the applicant, especially the delay which had occurred after he had pleaded guilty, which had not been the applicant's fault. 22 His Honour said that he took into account in favour of the applicant that on 24 October 2003 Adams J of this Court had made an order against the applicant under the Criminal Assets Recovery Act that he pay to the New South Wales Treasury the sum of $32,200, which was approximately equivalent to the total amount of money the applicant had received from committing the three offences. Adams J's judgment is reported (New South Wales Crime Commission v Farah (2003) 142 A Crim R 108). 23 In his judgment Adams J said that he accepted that the applicant had not derived any benefit from the money he had received, which he had almost immediately paid over to someone else, and that the order his Honour would be making was to be regarded as part of the punishment for the applicant's offences. At par 21 of his judgment Adams J said:- "It seems to me that the consequence of the order that I make, which should fairly be regarded as taking from the defendant considerably more than the financial benefit he obtained from his crime, is not a mere expropriation of his ill-gotten gains but is a penalty visited upon him for engaging in criminal activity. In short, it is part of his punishment. The mere fact that the proceedings are stated to be civil proceedings is a description of their procedural character. That they are aimed at punishing and deterring criminals is clear beyond question and that they are part of the structure for enforcing the criminal law of the State is not to be disguised by procedural trappings. Accordingly, the penalty in this case should be taken into account in measuring the level of the additional punishment to which the defendant will be liable when he is sentenced for the crimes that produced the proceeds referred to in the present order". 24 In his remarks on sentence Sides DCJ said he had been influenced by Adam J's order in deciding to make the three sentences he imposed concurrent with each other and not, at least to some extent, cumulative. 25 A submission which was made on behalf of the applicant in the proceedings on sentence before Sides DCJ was that, because of the need to observe the sentencing principle of totality, his Honour should not, in sentencing the applicant, pass any sentence on the applicant such that the non-parole period of any sentence would extend beyond the non-parole period of the sentence set by Moore ADCJ. It was pointed out by counsel that the offence of supplying not less than a large commercial quantity of methylamphetamine for which the applicant had been sentenced by Moore ADCJ had been committed within the same comparatively short period of time in which the present offences had been committed. Sides DCJ rejected the particular submission which was made to him in the proceedings on sentence, on the basis that the criminality in the offence for which the applicant had been sentenced by Moore ADCJ was different from the criminality in the present offences. The criminality in the former offence had consisted of the applicant storing at his home a large quantity of methylamphetamine so as to give rise to a charge of deemed supply of the methylamphetamine. The criminality in the present offences consisted in the applicant actually selling or agreeing to sell prohibited drugs. 26 A number of grounds of appeal were relied on by counsel for the applicant, some more specific and some more general. 27 In counsel for the applicant's oral submissions counsel informed the Court that ultimately the principal ground of appeal relied on was that the sentences imposed by Sides DCJ were manifestly excessive, after taking into account the sentence imposed by Moore ADCJ, with the matters referred to in the other grounds of appeal being relied on as supporting a conclusion that the sentences were manifestly excessive. 28 I will firstly refer briefly to some of the more specific grounds of appeal. 29 One ground of appeal was that his Honour erred in failing to allow a sufficient reduction in sentence for the applicant's pleas of guilty. As I have recorded earlier in this judgment, his Honour found that the applicant's pleas of guilty had not been entered at the earliest opportunity and his Honour allowed a discount of fifteen per cent for the utilitarian value of the pleas. His Honour's finding that the applicant's pleas of guilty had not been entered at the earliest opportunity was clearly open to his Honour. The pleas had not been entered until after the applicant had been committed for trial and one trial date had been fixed and had been vacated. The discount of fifteen per cent which his Honour said he was allowing for the utilitarian value of the pleas was clearly within his Honour's discretion. 30 Another specific ground of appeal was that his Honour erred in failing to make an allowance in reduction of sentence for the applicant's medical condition. I have already referred to the part of his Honour's remarks on sentence in which his Honour discussed the injury the applicant had suffered to his leg when he was arrested. In his written submissions counsel for the applicant compared what Sides DCJ had said in his remarks on sentence with what Moore ADCJ had said in his remarks on sentence on 7 November 2003. Moore ADCJ said:- " The fact of his broken leg is relevant in that it shows that he has so far had and continues to have a much harsher effect of being in gaol than does the normal run of the prison population." 31 In his remarks Moore ADCJ said he had observed the applicant to be in pain from his leg when the applicant had appeared in court before his Honour. Moore ADCJ referred to the operations on the applicant's leg and to a brief report from the applicant's orthopaedic surgeon Doctor Jay Dave, which was also in evidence before Sides DCJ. In his report Doctor Jay Dave said that he had operated on the applicant's leg and that the applicant had extensive damage to the articular surface and had developed secondary osteoarthritis. Doctor Jay Dave said the applicant needed regular review by an orthopaedic surgeon and might require removal of the screws and plates which had been inserted in his leg. 32 Sides DCJ was not obliged to make the same findings as Moore ADCJ. Sides DCJ's task was to assess the evidence before him and to make his own findings. His Honour was clearly mindful of the applicant's leg injury and, in my opinion, the findings his Honour made, which I set out earlier in this judgment, were open to his Honour. 33 Another specific ground of appeal was based on the applicant's previous good character but it was accepted in oral submissions that this was really a matter to be relied on in support of the principal ground of appeal. As was pointed out by the Crown, in sentencing for offences involving dealing in substantial quantities of prohibited drugs previous good character, including a lack of any significant criminal history and even a good employment or business history, has been regarded as being of less significance than in the sentencing of offenders generally. 34 A further ground of appeal was that the sentencing judge had erred in failing to make a finding that the applicant had favourable prospects of rehabilitation and that the sentencing judge had, in fact, failed to make any finding about the applicant's prospects of rehabilitation. It was submitted on behalf of the applicant there was a considerable amount of evidence before Sides DCJ on the basis of which his Honour could, and should, have made a finding that the applicant had good prospects of rehabilitation. 35 In his remarks on sentence, his Honour did make findings about a number of matters which were relevant to the applicant's prospects of rehabilitation, including that he had evinced contrition, that he was a person of previous good character, that he had a good employment history and that he had an addiction to gambling but was undertaking counselling for his addiction. 36 In his remarks on sentence Sides DCJ said that he had taken into account the matters set out in s 21A of the Crimes (Sentencing Procedure) Act in the form applicable to sentencing for these offences, which included s 21A(2)(j) "the prospect of rehabilitation of the offender" and I would infer that Sides DCJ did not overlook taking into account the applicant's prospects of rehabilitation, so far as they could be determined by his Honour. 37 I turn to the ground of appeal that the sentences imposed by Sides DCJ, taking into account the sentence imposed by Moore ADCJ, were manifestly excessive. 38 It is convenient to consider this ground of appeal in conjunction with two other grounds of appeal, that his Honour did not have sufficient regard to the sentencing principle of totality and that his Honour did not have sufficient regard to the punishment the applicant had already suffered from the order made by Adams J. 39 It was submitted on behalf of the applicant that statistics of sentences imposed for offences under s 25A of the Drug Misuse and Trafficking Act showed that the sentence imposed on the applicant was substantially more severe than that imposed on the great majority of offenders. It was submitted that, while Sides DCJ had referred in his remarks on sentence to the sentencing principle of totality and had decided that, having regard to the principle of totality, the three sentences he was imposing should be ordered to be served concurrently with each other, his Honour had erred in not applying the principle of totality, as between the sentences he would be imposing and the sentence which had been imposed by Moore ADCJ. 40 As regards the order made by Adams J, it was submitted that it had been conceded by the New South Wales Crime Commission in the proceedings before Adams J that most, if not all, of the money the applicant had received in the commission of the present offences had been paid by him to someone else. Accordingly, as Adams J had stated in his judgment, the order made by his Honour was a penalty imposed on the applicant for having committed the crimes for which he was later sentenced by Sides DCJ and should, in accordance with Adams J's judgment, be taken into account in sentencing the applicant for those offences. In his remarks on sentence Sides DCJ had merely said that he had taken into account what Adams J had said and that his decision to make the sentences he imposed concurrent with each other had been influenced by Adams J's order and comments. 41 It was submitted by the Crown that the sentences, and in particular the sentence for the ongoing supply of prohibited drugs, were not manifestly excessive. The Crown pointed to the maximum penalty of imprisonment for twenty years for the offence of ongoing supply, the need for deterrence in sentencing for drug offences, the fact that the heroin the applicant had supplied was of a high degree of purity, the commercial nature of the transactions the applicant had entered into and that the transactions the applicant had entered into were at a level above street level. As regards totality, it was submitted by the Crown that Sides DCJ had correctly distinguished the different sorts of criminality in the offences for which he was sentencing the applicant and the offence for which Moore ADCJ had sentenced the applicant. 42 Having considered the objective and subjective circumstances and having considered the submissions of the parties, I have concluded that leave to appeal should be granted and that the appeal should be allowed. 43 As regards totality, I consider that Sides DCJ was correct in rejecting the submission that by reason of the principle of totality he should not pass any sentence on the applicant such that the non-parole period of the sentence would extend beyond the non-parole period of the sentence set by Moore ADCJ. 44 I also consider that his Honour was correct in holding that the criminality in the offences for which his Honour was sentencing the applicant was different from the criminality in the offence for which the applicant had been sentenced by Moore ADCJ and that his Honour was required to pass sentences which would impose some separate, additional punishment on the applicant for those offences. 45 However, the fact that the criminality in the offences for which Sides DCJ was sentencing the applicant could be distinguished from the criminality in the offence for which Moore ADCJ had sentenced the applicant did not mean that the sentencing principle of totality ceased to have any application. All of the offences were drug offences committed within the same relatively short period of time, between 18 September 2000 and 21 November 2000. The offence for which the applicant was sentenced by Moore ADCJ was committed on the same day, 21 November 2000, as the last of the offences for which Sides DCJ sentenced the applicant. Even if the offences had not been so closely related in nature and time of commission, it would still have been necessary to have regard to the principle of totality in sentencing. If Moore ADCJ had sentenced the applicant, not merely for the one offence for which he did sentence the applicant but for all of the offences, which would have happened if Moore ADCJ had not disqualified himself, then Moore ADCJ, in sentencing the applicant for all of the offences, would have had to have had regard to the principle of totality in sentencing. It was fortuitous that Moore ADCJ did not sentence the applicant for the three supply offences and that it fell to Sides DCJ to sentence the applicant for those offences. In my opinion, Sides DCJ was required by the principle of totality in sentencing to have greater regard than his Honour did to the sentence imposed by Moore ADCJ, notwithstanding that the kind of criminality exhibited in that offence could be distinguished from the kind of criminality exhibited in the supply offences. 46 I have already quoted par 21 of Adams J's judgment of 24 October 2003. 47 This application is not, of course an appeal from Adams J's decision and I do not consider that this Court should enter into any examination of the validity of his Honour's reasoning or conclusions. I consider that this Court should accept that his Honour concluded that the order made by his Honour was punitive and was part of the applicant's punishment for engaging in the criminal conduct comprised in the present three offences and should be taken into account in determining the additional punishment which should be imposed on the applicant for that criminal conduct. 48 Taking into account all of the objective facts of the offences, the subjective features of the applicant, the sentence imposed by Moore ADCJ, the principle of totality, the order and the judgment of Adams J, the statistics kept by the Judicial Commission, the plea of guilty, the injury to the applicant's leg and the applicant's previous good character, I would grant leave to appeal and I would allow the appeal against sentence. I would propose that the periods of the sentences imposed by Sides DCJ be retained but, particularly to allow for the principle of totality, the commencement date of the sentences should be back-dated by a period of twelve months so that all the sentences commence on 23 May 2004, in lieu of 23 May 2005. 49 I would propose the following formal orders. Leave to appeal granted. Appeal against sentences allowed. Sentences imposed by Sides DCJ quashed. In lieu thereof the following sentences should be imposed. 50 On count 1 a sentence of imprisonment for five years six months to commence on 23 May 2004, with a non-parole period of two years six months to commence on 23 May 2004 and to expire on 22 November 2006. 51 On count 2 a sentence of imprisonment for a fixed term of twelve months to commence on 23 May 2004 and expire on 22 May 2005. 52 On count 3 a sentence of imprisonment for four years to commence on 23 May 2004, with a non-parole period of two years to commence on 23 May 2004 and to expire on 22 May 2006. 53 The earliest date on which the applicant will be eligible for release on parole will be 22 November 2006. 54 GROVE J: I agree with the judgment of James J and the orders he proposes. 55 BARR J: I also agree. 56 GROVE J: The orders of the Court therefore are as proposed by James 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. 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