Regina v Fred Nassif [2005] NSWCCA 38

New South Wales Court of Criminal Appeal

CITATION: Regina v Fred Nassif [2005] NSWCCA 38

HEARING DATE(S): 15/2/05

JUDGMENT DATE: 15 February 2005

JUDGMENT OF: Grove J at 1; Bell J at 2; Buddin J at 46

DECISION: Dismiss appeal against conviction; Grant leave to appeal against sentence; Dismiss the appeal

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

Fred Nassif (Appellant) PARTIES: Regina (Respondent)

FILE NUMBER(S): CCA 2004/2661

E Wilkins (Crown) COUNSEL: S Kluss (Appellant)

S Kavanagh SOLICITORS: Ross Hill & Assoc. (Appellant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1264

LOWER COURT JUDICIAL OFFICER: Andrew DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2661

GROVE J BELL J BUDDIN J

Tuesday 15 February 2005 Regina v Fred NASSIF Judgment 1 GROVE J: I will ask Bell J to give the first judgment. 2 BELL J: By notice of appeal dated 22 October 2004, Fred Nassif appealed against both conviction and sentence. He was convicted before Andrew ADCJ (the Judge) in the Sydney District Court on 5 March 2004 of an offence of attempting to receive for supply a large commercial quantity of the prohibited drug 3,4- methylenedioxymethylamphetamine, commonly known as ecstasy. The offence is provided by s 25(2) of the Drug Misuse and Trafficking Act 1985 (the DMTA). The maximum penalty for an offence involving not less than the large commercial quantity of the drug is imprisonment for life and/or a fine of five thousand penalty units: s 33(3)(a) DMTA. 3 The applicant was sentenced to a term of six years' imprisonment to date from 9 November 2003. A non parole period of three years was specified. 4 The grounds of appeal filed with the notice of appeal contended that there had been a miscarriage of justice in that the appellant had been convicted on the basis of a plea of guilty that, in the circumstances of the case, should have been rejected. No grounds with respect to the challenge to the sentence were filed. 5 Prior to the matter coming on for hearing, the Registry was notified that the applicant did not intend to pursue the challenge to his conviction. This was confirmed on the hearing of the appeal. Counsel informed the Court that the applicant only sought to pursue his application for leave to appeal against the severity of the sentence. 6 The applicant pleaded guilty before Blanch CJDC on 3 November 2003. 7 The sentence hearing came on before the Judge on 17 and 18 February 2004. His Honour sentenced the applicant on the basis of a set of facts (Exhibit A). Those facts may be briefly summarised as follows. 8 On 16 November 2001, a container of deep freezers arrived by ship in Brisbane. On 20 November, the container was searched by Customs officers who located approximately 123.5 kg of the drug ecstasy concealed within the freezers. Officers from the Australian Federal Police substituted all but approximately 3 kg of the ecstasy with an inert substance. 9 The container was transported to premises in Concord West, being the home of Louis Sukkar. 10 The Sukkar premises were the subject of police surveillance. Over the next several days the police monitored telephone calls between Louis Sukkar and the applicant. In a telephone call on 26 November 2001, Sukkar indicated his awareness that the drugs had been substituted and his belief that he had been "ripped off". In this telephone call, Sukkar said that he had lost $7,000,000 worth of stock. He said that there was a small amount of stuff they "could do", and the two men made arrangements to meet later that day. Calls were intercepted between Sukkar and the applicant, on 27, 28 and 29 November 2001. On the evening of 2 December 2001, the applicant met Sukkar at Sukkar's home. The conversation between the two men inside the house was transmitted by a listening device that had been installed under the authority of a warrant. A summary of the contents of the discussion is set out in Exhibit A. Briefly, the applicant told Sukkar that he would see his friends that night and see how many he needed. He asked for a sample to show others. Sukkar said that he could only give him ten. The applicant said he would take the ten. The applicant asked how many Sukkar had for him. Sukkar said that he had fourteen thousand and that the applicant could take the lot if he could sell them. Sukkar told the applicant that the price was "fifteen" and the applicant said that he might add a dollar to it. Sukkar said that he would require an initial sum of $50,000 to be paid to him about one week after the applicant took possession of the drugs with the remainder to be paid later. In total, Sukkar valued the drugs at approximately $200,000. 11 The applicant said he would see his mate the next day and give him the ten tablets. He said that he had two associates who would take the fourteen thousand and that he would get back to Sukkar the following day. He said that he would speak to a person named Harry about storage for the drugs, as did not want to leave anything at his own home. The applicant agreed to take the fourteen thousand ecstasy tablets, paying an initial payment of $50,000, and said that he would need about a month to get the rest of the money. 12 On 3 December 2001 a number of telephone calls were intercepted between Sukkar and the applicant. During the first call, Sukkar asked the applicant about his contact with his associates. The applicant confirmed that he would take the whole amount and that everything had been organised. He told Sukkar to telephone him later that afternoon to organise a time to meet. In a later call the two agreed to meet at the place of a person named Whitey. An associate of both the applicant and Sukkar, named White, was then living in Kingsgrove. Records relating to the applicant's mobile telephone service for 3 December 2001 establish that shortly before 6pm on that day he was in the Kingsgrove area. On 5 December 2001, Sukkar said to the applicant during an intercepted telephone discussion, "You know those things I gave you the other day?" to which the applicant replied, "Hm yep". 13 Sukkar was arrested on the afternoon of 5 December 2001 at his home in Concord. Only forty-five of the tablets that had formed part of the three kilograms left by the Australian Federal Police were located at that time. The estimated weight of fourteen thousand ecstasy tablets was said to be 3.2452 kilograms. 14 The large commercial quantity for the drug 3,4- methylenedioxymethylamphetamine is .05 kg. The estimated street value of 14,000 ecstasy tablets is between $700,000 and $980,000. 15 The applicant was arrested on 27 September 2002. He was interviewed by the police and admitted to knowing Sukkar and to having visited Sukkar's premises prior to his arrest. The telephone and listening device recordings were played to him and he declined to comment. 16 At the sentence hearing, the applicant gave evidence that in late 2001 he had been a heavy user of ecstasy and that he had spent a lot of time attending night clubs. He said of the incriminating telephone conversations with Sukkar that he had misled Sukkar to believe that he was something he was not. Generally, it was his account that he had been "big noting" himself in his dealings with Sukkar. He acknowledged receiving eight ecstasy tablets from Sukkar as a sample. He said he had swallowed them. The Judge rejected the applicant's evidence in these respects. 17 The applicant was aged thirty two years at the date of sentence. He has a record of criminal convictions, including for the supply of prohibited drugs. He was convicted before the Sutherland Local Court in July 1993 of the possession and the supply of prohibited drugs. For the latter offence he was sentenced to perform 250 hours of community service work. In November 1993 the applicant was again convicted of the possession and the supply of prohibited drug. Following a successful appeal against the severity of the sentences imposed in respect of these offences, the applicant was sentenced to a term of nine months' imprisonment to be served by way of periodic detention. 18 On 22 February 2001, the applicant was sentenced in respect of two counts of obtaining money by deception and two counts of making a false instrument. On one conviction for the offence of obtaining money by deception he was released on a bond conditioned that he be of good behaviour for a period of eighteen months. For the remaining three convictions he was sentenced to perform community service work. 19 A pre-sentence report dated 23 January 2004 was in evidence at the sentence hearing, together with a number of reports from Sam Borenstein, a clinical psychologist, and several references. 20 The Judge sentenced the applicant taking into account the following subjective circumstances. The applicant was a single man. Following his father's death in July 2002 he had been the main support both emotionally and financially for his mother. He had overcome a history of gambling and drug abuse. The Judge noted that the author of the pre-sentence report described the applicant in these terms: "At the time of the report preparation Mr Nassif presented as a stable man living in a positive domestic environment and involved in a stable relationship with his girlfriend."