New South Wales Court of Criminal Appeal CITATION: REGINA v Mohamad ELLAZ [2005] NSWCCA 350 HEARING DATE(S): 23/08/2005 JUDGMENT DATE: 19 October 2005 JUDGMENT OF: Sully J at 1; Hidden J at 2; Hall J at 38 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - ongoing supply of heroin - whether adequate discount for plea of guilty, assistance to authorities - relevance of observations of sentencing judge during final addresses - finding of special circumstances - whether structure of sentence appropriate - whether adequate weight given to applicant's mental condition. Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 R v Howard [2004] NSWCCA 348 R v Thomson (2000) 49 NSWLR 383 R v El Hani [2004] NSWCCA 162 R v Way (2004) 60 NSWLR 168 CASES CITED: R v Tobar & Anor (2004) 150 A Crim R 104 R v Johnson [2004] NSWCCA 76 R v Engert (1995) 84 A Crim R 67 R v Israel [2002] NSWCCA 255 Regina (respondent) PARTIES: Mohamad Ellaz (applicant) FILE NUMBER(S): CCA 2005/987 Ms J Dwyer (respondent) COUNSEL: Ms G Bashir (applicant) S Kavanagh - Solicitor for Public Prosecutions SOLICITORS: S O'Connor - Solicitor for Legal Aid Commission LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3012 LOWER COURT JUDICIAL OFFICER: Nicholson DCJ IN THE COURT OF CRIMINAL APPEAL 2005/987 SULLY J HIDDEN J HALL J Wednesday 19 October 2005 REGINA v Mohamad ELLAZ JUDGMENT 1 SULLY J: I agree with Hidden J. 2 HIDDEN J: The applicant, Mohamad Ellaz, pleaded guilty in the District Court to a charge of ongoing supply of heroin, an offence under s25A of the Drug Misuse and Trafficking Act which carries a maximum sentence of imprisonment for twenty years. He also asked that a charge of goods in custody be taken into account on a Form 1. He was sentenced to imprisonment for two years and ten months, to commence on 24 April 2004, comprising a non-parole period of one year and ten months and a balance of term of twelve months. He seeks leave to appeal against that sentence. 3 At the time he was sentenced he was serving a term of imprisonment imposed in respect of a charge of driving whilst disqualified, and the present sentence was directed to commence at the expiration of the non-parole period imposed for that offence. It will be necessary later to examine the course of the proceedings and the applicant's criminal history generally. Facts 4 On three occasions in early July 2003 the applicant sold small amounts of heroin to an undercover police officer, on one occasion at Greenacre and on the other two occasions at Fairfield. On a fourth occasion later in that month, also at Fairfield, he purported to sell a deal of heroin to the same undercover officer. However, upon later analysis, that substance proved to contain no heroin. It was on that occasion that he was arrested. The total amount of substance sold on the four occasions was 0.69 grams, and the applicant was paid in all $590. 5 As to the charge of goods in custody, the Form 1 merely recites that he was found to be in possession of nine deadlock door knobs reasonably suspected to have been stolen or unlawfully obtained. 6 He made relevant admissions about the principal offence in an electronically recorded interview with police. He said that he had been out of work, and that he was trying to make money for living expenses and to support his wife and child. The learned sentencing judge found, on the whole of the evidence, that he was part of a "sophisticated" heroin dealing operation, that in the course of the first and third transactions there was at least one "support person" nearby, and that on the last occasion there were two such persons in attendance. His Honour also observed that, quite apart from the fact that that last deal contained no heroin and was worthless, a higher than usual price had been demanded for the other three deals, and he found that there was "a ruthlessness about the transactions" which transcended that which usually attends drug dealing. 7 His Honour saw the applicant as the "designated point of contact" for the sales and, while recognising that he stood for sentence for the charge as expressed, concluded that the four transactions represented only part of his wider involvement in drug dealing. His Honour treated the offence as having been motivated by commercial gain, noting that "most working men and women focus their incomes on family members" and that the applicant had chosen to derive his income from criminal activity. Subjective case 8 The applicant was thirty years old at the time of the offence and is now thirty-two. He has a criminal record, primarily for driving offences. He has been dealt with on a number of occasions for driving whilst disqualified and, as I have said, he was serving a term of imprisonment for such an offence at the time the present sentence was passed. That term was imposed by the same sentencing judge on an appeal to the District Court. Significantly, he was subject to a bond under s11 of the Crimes (Sentencing Procedure) Act in respect of that offence at the time of the present offences. There are no previous entries for drug offences. 9 He was born and brought up in Greenacre, one of a number of children of Syrian parents. He is married and is the father of a boy aged about four. His Honour found that he enjoyed the support of his wife, of his parents and of his older brother, whom his Honour described as "an impressive young man." 10 He had had a drug problem, including the abuse of heroin, for some years. He told a Probation and Parole officer, who provided a report, that he committed the offence to feed his addiction, and his evidence in the sentence proceedings was to the same effect. This, of course, was not consistent with the account he had given police in the recorded interview. Indeed, he told police in that interview that he had been taking naltraxone and had been "clean" for some months before the offence. His Honour was generally unimpressed with the credibility of his evidence and was not persuaded that drug addiction was available to him as a mitigating feature. Nevertheless, his Honour accepted that there had been a background of drug abuse and that drug rehabilitation was an issue which needed to be addressed. 11 Early in 2003 he suffered a head injury in what appears to have been a serious assault, after which his wife observed him to be forgetful and lacking concentration. In September 2003 he was assessed by Dr Olav Nielssen, psychiatrist, who also spoke to his wife. From the history provided to him and from his examination, Dr Nielssen concluded at that time that he had "psychological complications of the head injury in the form of significant and disabling cognitive impairment in the areas of concentration, information retrieval, planning and emotional regulation." The doctor added that he appeared "to have suffered psychiatric complications of brain damage, including auditory and visual hallucinations and persecutory beliefs… and also anxiety symptoms…". The doctor diagnosed post traumatic brain damage and post traumatic hallucinosis and anxiety state, as well as substance abuse disorder. 12 However, Dr Nielssen interviewed him again in April 2004. He then found that his "performance at interview was significantly better than at the previous interview, either because of further recovery from traumatic brain damage or because he was no longer attempting to exaggerate his disability". Nevertheless, he thought it "clear that he had brain damage affecting emotional regulation, information retrieval, planning and particularly social judgment". The doctor maintained the diagnoses of post traumatic brain damage and substance abuse disorder. He expressed the opinion that the applicant was "recovering from a significant head injury on the background of a pre-existing conduct disorder and a substance abuse disorder", adding that the head injury had left him "with impaired judgment as well as mild cognitive impairment". That impairment, he thought, "may have contributed to Mr Ellaz committing the offences and also to his being caught by the police". 13 The applicant also gave evidence about this aspect. His Honour expressed himself to be satisfied that he "suffers residual, intellectual and mental health deficits" as a result of the assault, but to be "far from satisfied that the disability is as great as the offender states". However, he thought that it was "not without significance" that the evidence disclosed that he "seemed to have trouble finding the location to deliver the drugs or to make a clear arrangement to arrive on time". 14 There was evidence, both documentary and oral, to the effect that the applicant had afforded assistance to the authorities. His Honour described this assistance as "meaningful and useful", and determined that it should earn him a 20 percent reduction of his sentence. 15 In his report of September 2003, Dr Nielssen expressed the view that the effects of the applicant's brain damage were such as to render him unfit to stand trial. In January 2004 he was committed for trial on the principal offence. However, the issue of his fitness was not tried because Dr Nielssen considered him fit at the time of his later report of April 2004. On the same day that that report was furnished, the applicant pleaded guilty on his arraignment (before a different judge). The sentencing judge concluded that, while the plea was not entered at the earliest opportunity, it still had a substantial utilitarian value. He determined that there should be an additional 15 percent reduction of sentence on that account. 16 His Honour also accepted that the applicant was remorseful. However, while noting that his progress towards drug rehabilitation in custody was being "oversighted by responsible people", he expressed some reservations about his rehabilitation generally. Among other things, he voiced concern about the applicant's "substantial intellectual and mental health deficits" and his associated "lack of judgment capacity." Given those matters, together with the background of drug dependence and the fact that the offences were committed whilst subject to conditional liberty, his Honour concluded that this was "clearly a case where personal deterrence is called for…". Nevertheless, he found special circumstances warranting a departure from the usual proportion between sentence and non-parole period. The application 17 The application was argued by Ms Bashir of counsel, who had not appeared in the District Court. The grounds of appeal are that his Honour had erred: (a) in assessing the reduction of sentence to which the applicant was entitled because of his plea of guilty and his assistance to the authorities; (b) in the manner in which he arrived at the sentence, including the effect given to the finding of special circumstances; (c) in assessing the applicant's culpability for the principal offence, in the light of the objective circumstances and his mental health. Plea of guilty/assistance 18 As I have said, his Honour allowed discrete discounts of fifteen percent and twenty percent for the plea of guilty and the assistance respectively, a global reduction of thirty-five percent. Ms Bashir pointed out that the plea of guilty was entered as soon as the question of the applicant's fitness to stand trial had been resolved, and submitted that it should have been treated as a plea entered at the earliest opportunity. Indeed, she relied upon a concession to that effect by the prosecutor in the District Court (who also did not appear in this Court) in final address to his Honour. She relied also upon some observations by his Honour in the course of the address of counsel then appearing for the applicant. His Honour said that he regarded the plea of guilty as "an early plea" and continued, "The early plea gets you 20 or 25 percent, I forget which it is now, for its utilitarian value…". 19 When he later came to pass sentence his Honour allowed a discount of only 15 percent, and Ms Bashir noted that he gave no reason for departing from the higher range of discount which he had mentioned during argument. As to that, the Crown prosecutor in this Court relied upon a passage from the judgment of Spigelman CJ in R v Howard [2004] NSWCCA 348. One of the grounds of appeal in that case arose from some observations adverse to the offender made by the sentencing judge in the course of submissions. Having recited that ground, the Chief Justice said (at [47]): This is a reference to some observations made by his Honour in the course of argument. Those particular observations are not repeated in his remarks on sentence. The particular matters do not appear to have been taken into account in any adverse way. A trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material. 20 Ms Bashir sought to distinguish that aspect of Howard upon the basis that, in the present case, the observation his Honour made about the discount during argument was favourable to the applicant and would have led counsel then appearing for him to believe that he need not put any further submission about that matter. While I understand that distinction, a fair reading of the transcript conveys to me that his Honour was doing no more than referring generally to the range of discount propounded in R v Thomson (2000) 49 NSWLR 383, and was not foreshadowing his determination of the reduction to which the applicant should be entitled. 21 That said, it is not necessary to examine further the discount allowed for the plea of guilty. The real question is the adequacy of the combined discount for the plea and the assistance. In R v El Hani [2004] NSWCCA 162 at [66] ff, Howie J examined authorities on assistance, including the appropriateness of a combined discount for assistance and a plea of guilty. Ms Bashir acknowledged as much but argued that in the present case, particularly in the light of the assistance, that combined discount should have been of the order of 50 percent. 22 For obvious reasons, his Honour's reference in the remarks to the applicant's assistance was laconic and oblique. For the same reasons I do not propose to set out the nature of it here, except to observe that it related to two discrete matters. There is no doubt that it was, as his Honour described it, meaningful and useful. That said, the assessment of an appropriate discount for a plea of guilty and assistance is very much a matter of discretionary judgment. The 35 percent reduction allowed to the applicant is a substantial benefit, and it could not be said that his Honour's discretion miscarried in that respect. 23 As to one of the matters in which he rendered assistance, the applicant had told an investigator that he was willing to provide further assistance should the opportunity arise. His Honour made no express reference to that matter in his remarks. Indeed, when counsel for the applicant raised it in submissions on sentence, his Honour said, "I'm not going to reward potential…". Ms Bashir argued that this was in error, and that the applicant's willingness to co-operate further with the authorities was relevant to the assessment of the leniency which his assistance earned him. However, there had not in fact been ongoing contact between the relevant authority and the applicant about that matter and the prospect of further assistance was entirely speculative. This is not a case in which there was an undertaking to provide assistance in the future of the kind envisaged in the cases and in s23(1) of the Crimes (Sentencing Procedure) Act. 24 Accordingly, I am not persuaded that any error has been shown in his Honour's approach to the applicant's plea of guilty and his assistance. Calculation of sentence/special circumstances 25 This ground is directed to the conclusion of the remarks on sentence, when his Honour expressed the manner in which the sentence was arrived at as follows: But for your plea of guilty and the assistance to which I have referred, I would have set a minimum term of three years for this offence. I have applied a thirty-five percent discount which on my calculations amounts to fourteen months rounded out. Thus the minimum term that I am going to impose upon you will be one of one year and ten months… I find special circumstances for the reasons that I said and I impose an additional term of twelve months… 26 In first setting the non-parole period and then specifying the balance of term, his Honour was complying with the procedure required by s44 of the Crimes (Sentencing Procedure) Act. However, it is well established that that procedure does not alter the fact that a sentencing court must determine the appropriate sentence for an offence and, where special circumstances are found, may reduce the non-parole period below the statutory norm in respect of that sentence. To determine a non-parole period without regard to the appropriate total sentence, and then to increase the balance of term because of special circumstances, is erroneous: R v Way (2004) 60 NSWLR 168 at [111] – [113]; R v Tobar & Anor (2004) 150 A Crim R 104, per Simpson J at [31] – [38]. 27 Ms Bashir submitted that his Honour fell into that error in the present case by focusing first upon the non-parole period and applying to it the discounts for the applicant's plea of guilty and assistance, and then specifying the balance of term in the light of his finding of special circumstances. The Crown prosecutor argued that what his Honour said should not be interpreted in that way and that he had not impermissibly increased the balance of term. Rather, he had determined the appropriate sentence but expressed himself as he did so as to expose how it was arrived at. 28 This ground has troubled me, and I can see the force of Ms Bashir's argument. Certainly, it would have been preferable for his Honour to have announced the appropriate undiscounted sentence, to have applied to it the reduction which he had determined for the plea of guilty and the assistance, and then to have announced the non-parole period. The sentence could then have been formally imposed in accordance with the procedure under s44 of the Act. Such an approach would have left no room for the suggestion of error. However, I find it unnecessary to determine this ground because, as will be seen, I am satisfied that the sentence is such that this Court should not intervene. Culpability 29 I have referred earlier to his Honour's findings that the principal offence was part of a sophisticated heroin dealing operation, and that there were "support persons" (also described by his Honour as "support thugs") with the applicant at the time of three of the transactions. His Honour went on to find that the offence was aggravated by having been committed in company, within the meaning of s21A(2)(e) of the Crimes (Sentencing Procedure) Act, "in the sense that the mechanism by which the heroin came to the offender and his delivery of the drug involved other associates…" Ms Bashir submitted that these findings were not supported by the evidence. 30 Before his Honour, apart from a summary of the facts, was a body of material from the Crown brief, including statements of the undercover officer and the transcript of the applicant's police interview. That material provides evidence of the following: (a) On the occasion of the first transaction the applicant was in company with several other men and appeared to be acting in concert with at least one of them, if not all of them. (b) On that occasion he supplied the undercover officer with his mobile phone number for future contact. (c) The drug he supplied on each occasion had been provided by someone else, to whom he accounted for the proceeds and from whom he received part of them. (d) On the occasion of the third transaction he took a member of his extended family with him, as he told the police, to ensure that he would not "get bashed." (e) On the last occasion he was accompanied by two men, one of them another member of his extended family. Again, he told police that he had asked those men to "keep a look out" for him in case he "got bashed." He added that he had told them he was involved in a transaction to buy tools, not to sell drugs. Those two men were arrested, along with applicant, on that occasion, but they were later released because there was insufficient evidence to charge them. 31 In my view, this evidence was sufficient to support his Honour's findings. It was open to his Honour to conclude that the men who accompanied the applicant on the third and fourth occasions were privy to the drug dealing, and to reject the applicant's claim that on the last occasion he told his two companions that he was buying tools. Clearly, on each occasion he was involved in a joint criminal enterprise. Reasonable minds might differ about whether the operation could be described as sophisticated, but nothing turns on that. 32 I have some misgivings about whether his Honour's findings could lead to the conclusion that the offence was committed in company, within the meaning of s21A(2)(e). However, that matter was not fully argued and I find it unnecessary to decide it. His Honour's assessment of the seriousness of the offence was based upon his findings of fact and it does not appear to me that, for the purpose of determining the appropriate sentence, anything was added by the characterisation of those findings as an aggravating feature under s21A. 33 Ms Bashir also argued that his Honour treated the applicant's criminal record as an aggravating feature for the purpose of s21A(2)(d), falling into the error exposed in R v Johnson [2004] NSWCCA 76 at [31] ff. His Honour did not mention that provision when referring to the criminal record, but Ms Bashir relied upon the fact that the criminal record was dealt with in the remarks on sentence during his consideration of aggravating features (indeed, immediately after his reference to the principal offence being committed in company). I would not draw the inference for which she contended. It appears to me that his Honour was dealing with the criminal record as a discrete issue, and in accordance with established common law principles. In any event, his primary concern about the record was that the offences were committed while the applicant was subject to conditional liberty by virtue of the s11 bond, a matter which has long been recognised as an aggravating factor and is expressed in the section as such: s21A(2)(j). 34 Finally, Ms Bashir submitted that his Honour failed to afford appropriate weight to the applicant's mental condition, referring to the familiar principles considered by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 70 – 71 and Spigelman CJ in R v Israel [2002] NSWCCA 255 at [21] ff. She relied upon that condition not only as a matter bearing upon the applicant's culpability for the principal offence, but also as a relevant part of his subjective case generally. In my view, the psychiatric evidence did not raise the sentencing principles considered in those two cases and his Honour gave it the weight it deserved. 35 I have already referred to his Honour's scepticism about the gravity of the applicant's mental condition and the extent to which he recognised it as bearing upon his commission of the principal offence. Put shortly, his Honour appears to have rejected the proposition that it affected his judgment in any significant way and saw it as bearing only upon the efficiency with which he carried out the drug deals. This was a conclusion fairly open on the whole of the evidence. On the other hand, his Honour referred to his residual mental health deficits as a matter which, along with his history of drug abuse, needed to be addressed in the interests of his rehabilitation. No further consideration of this issue was called for. No lesser sentence warranted 36 In any event, it appears to me that no lesser sentence than that passed by his Honour was warranted: s6(3) of the Criminal Appeal Act. In so saying, I am mindful of the favourable aspects of the applicant's subjective case, his plea of guilty and, particularly, his assistance to the authorities. Nevertheless, the principal offence was a serious one for the reasons his Honour gave. The sentence had to reflect the form 1 matter, although that offence itself appears to have been relatively minor. In addition, both offences were committed while the applicant was subject to conditional liberty. 37 I would grant leave to appeal but dismiss the appeal. 38 HALL J: I agree with Hidden 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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