New South Wales Court of Criminal Appeal CITATION: Regina v Saba [2006] NSWCCA 214 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 12 July 2006 JUDGMENT DATE: 12 July 2006 JUDGMENT OF: Handley JA at 1; Kirby J at 32; Hoeben J at 42 EX TEMPORE JUDGMENT DATE: 07/12/2006 DECISION: (1) Appeal allowed.; (2) Sentences imposed by McGuire DCJ quashed.; (3) In lieu thereof the prisoner is sentenced on the first count, taking into account the matters on the Form 1, to a sentence of three years to commence on 24 June 2005 and expire on 23 June 2008 with a non-parole period of 18 months to commence on 24 June 2005, and expire on 23 December 2006.; (4) On counts 2, 3, 4 and 5 the prisoner is sentenced to two years imprisonment to commence on 24 June 2005 and expire on 23 June 2007, with a non-parole period of 12 months to commence on 24 June 2005 and expire on 23 June 2006.; (5) All sentences are to be concurrent with each other and with the sentence imposed on the first count. CATCHWORDS: CRIMINAL APPEAL – sentencing – Crown appeal – wholesale drug dealer – rehabilitation – full-time custody on remand – sentence of periodic detention – appeal allowed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Pearce v The Queen (1998) 194 CLR 610 R v Betwell (NSWCCA, 4 December 1990, unreported) CASES CITED: R v Cacciola (1998) 104 A Crim R 178 R v Carrion (2002) 49 NSWLR 149 R v Clarke (NSWCCA, 15 March 1990, unreported) R v Thompson (NSWCCA, 4 April 1991, unreported) PARTIES: Regina Ronnie Saba FILE NUMBER(S): CCA 2006/746 COUNSEL: P Ingram - Crown P Dailly - Respondent S Kavanagh (Solicitor for Public Prosecutions) - Crown SOLICITORS: Shad Partners - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0857 LOWER COURT JUDICIAL OFFICER: McGuire DCJ LOWER COURT DATE OF DECISION: 16 March 2006 IN THE COURT OF CRIMINAL APPEAL 2006/746 CCAP HANDLEY JA KIRBY J HOEBEN J 12 JULY 2006 REGINA v RONNIE SABA CATCHWORDS CRIMINAL APPEAL – sentencing – Crown appeal – wholesale drug dealer – rehabilitation – full-time custody on remand – sentence of periodic detention – appeal allowed FACTS The prisoner pleaded guilty to all five counts on the indictment of supplying illegal drugs and another five matters on a Form 1. He had been engaged in the supply of substantial quantities of several illegal drugs of considerable value over a number of suburbs in Sydney. The trial Judge imposed concurrent sentences of 18 months on each count with non-parole periods of 12 months to be served by way of periodic detention. In his reasons for judgment, the Judge noted the prisoner had promptly submitted to rehabilitation and this had been successful. His Honour further noted the matters on the Form 1 and said that he had taken these matters into consideration on the first count. The prisoner had 9 months full-time custody while on remand. The Crown appealed. HELD: (1) Offences of drug trafficking require the imposition of a sentence of full-time custody unless there are exceptional circumstances; (2) Rehabilitation by itself is not an exceptional circumstance: R v Thompson (NSWCCA, 4 April 1991, unreported); (3) The objective criminality of these offences excluded a finding of exceptional circumstances on objective grounds; (4) The Judge had imposed the same sentence on the first count as the others, and the sentences were all concurrent; (5) In doing so he had manifestly failed to take into account the matters on the Form 1 in sentencing the prisoner; (6) The Judge failed to apply the instruction in Pearce v The Queen (1998) 194 CLR 610, 623 requiring the imposition of separate sentences in respect of each substantive offence before considering questions of cumulation, concurrency and totality; (7) The prisoner's family background and good education were not, in the circumstances of the case, factors mitigating the overall criminality of his offences; (8) General deterrence was a most important consideration; (9) The Crown appeal was allowed, and (10) By majority the prisoner was sentenced to a period of further full-time custody. ORDERS (1) Appeal allowed. (2) Sentences imposed by McGuire DCJ quashed. (3) In lieu thereof the prisoner is sentenced on the first count, taking into account the matters on the Form 1, to a sentence of three years to commence on 24 June 2005 and expire on 23 June 2008 with a non-parole period of 18 months to commence on 24 June 2005, and expire on 23 December 2006. (4) On counts 2, 3, 4 and 5 the prisoner is sentenced to two years imprisonment to commence on 24 June 2005 and expire on 23 June 2007, with a non-parole period of 12 months to commence on 24 June 2005 and expire on 23 June 2006. (5) All sentences are to be concurrent with each other and with the sentence imposed on the first count. IN THE COURT OF CRIMINAL APPEAL 2006/746 CCAP HANDLEY JA KIRBY J HOEBEN J 12 JULY 2006 REGINA v RONNIE SABA Judgment 1 HANDLEY JA: This is an appeal by the Crown under s 5D of the Criminal Appeal Act 1912 against the sentences imposed on the prisoner by McGuire DCJ on 16 March 2006. 2 The Crown filed its notice of appeal on 20 March and served it on 22 March and thus there has been no delay. 3 The prisoner pleaded guilty to all five counts in the indictment and there were another five matters on a Form 1. Count 1 was that the prisoner had between 1 August 2004 and 12 September 2004 at Sydney supplied a prohibited drug, namely MDMA (ecstasy). It involved the actual supply of 500 tablets containing MDMA. 4 This was an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (the Act) for which the maximum penalty was imprisonment for a term of 15 years: s 32(1)(g). 5 Count 2 was that the prisoner had between 22 September 2004 and 29 September 2004 at Sydney supplied a prohibited drug, namely MDMA. It involved the actual supply of 350 tablets over that period and the deemed supply on 28 September 2004 (the day of arrest) of 234 tablets. 6 This was an offence contrary to s 25(1) of the Act for which the maximum penalty was imprisonment for a term of 15 years: s 32(1)(g). 7 Count 3 was that the prisoner had between 29 August 2004 and 29 September 2004 at Sydney supplied a prohibited drug, namely cocaine. It involved the actual supply of 23.9 grams. 8 This was an offence contrary to s 25(1) of the Act for which the maximum penalty was imprisonment for a term of 15 years: s 32(1)(g). 9 Count 4 was that the prisoner had between 21 August 2004 and 29 September 2004 at Sydney supplied a prohibited drug, namely cannabis. It involved the actual supply of 8252.8 grams of cannabis over that period and the deemed supply of a further 1017.8 grams on 28 September 2004. 10 This was an offence contrary to s 25(1) of the Act for which the maximum penalty was imprisonment for a term of 10 years: s 32(1)(h). 11 Count 5 was that the prisoner had between 29 August 2004 and 29 September 2004 at Sydney supplied a prohibited drug, namely ketamine. It involved the actual supply of 500 tablets over that period and the deemed supply of 234 tablets on 28 September 2004. 12 This was an offence contrary to s 25(1) of the Act for which the maximum penalty was imprisonment for a term of 15 years: s 32(1)(g). 13 Five further offences were taken into account pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 on a Form 1 document. Four of these offences carried a maximum term of imprisonment of six months and have only marginal relevance. 14 The fifth offence is in a different position. It was for the deemed supply of a prohibited drug, namely 3.45 grams of heroin, on 28 September 2004, contrary to s 25 of the Act. This offence carried a maximum penalty of 15 years. 15 The Judge imposed sentences of periodic detention. In relation to each conviction the prisoner was sentenced to imprisonment for a term of 18 months, he fixed a non-parole period of 12 months, and ordered that the sentence be served by way of periodic detention. The sentence and non-parole period were fixed to commence on 24 March this year and the overall sentence was to expire on 23 September 2007. The non-parole period was to expire on 23 March 2007. 16 As the charges, the statement of facts and the Form 1 demonstrate the prisoner was involved in the supply of a number of drugs at the wholesale level involving substantial quantities, of a substantial value, over a substantial area, involving at least three suburbs of Sydney. 17 This Court has consistently held that drug trafficking requires the imposition of a sentence of full time custody unless there are exceptional circumstances. Although this principle predates the decision in R v Clarke (NSWCCA, 15 March 1990, unreported), that case is commonly cited for this proposition. As Priestley JA pointed out in R v Cacciola (1998) 104 A Crim R 178, this Court has not undertaken an exhaustive definition of what does and does not constitute exceptional circumstances. Nevertheless there are some clear guidelines. 18 Rehabilitation by itself is not an exceptional circumstance. That was established in R v Thompson (NSWCCA, 4 April 1991, unreported), particularly in the judgment of Hunt J at pp 9 and 10. His Honour referred to the case of R v Betwell (NSWCCA, 4 December 1990, unreported) where two Judges of this Court held that a combination of a period of full time custody, in that case seven months, and rehabilitation did constitute exceptional circumstances. 19 Further consideration was given to this question in R v Carrion (2002) 49 NSWLR 149 in the judgment of Grove J at 153-155, concurred in by other members of the Court. His Honour distinguished between matters he categorised as commonplace and matters he categorised as exceptional. 20 The objective criminality of these offences, the period over which they were committed, the area over which the selling activities impacted on the community, and the level of organisation involved, in my judgment, exclude a finding of exceptional circumstances based on objective considerations. 21 The Judge relied on the prisoner's strong subjective case, particularly his prompt and apparently successful efforts to rehabilitate himself, and the period of nine months spent in full-time custody that he served while on remand. 22 In this case the rehabilitation relied on was substantially undertaken during the same period of full time custody, so there is potential for some element of double counting. 23 The Crown submitted that rehabilitation was itself not an exceptional circumstance and there is clear authority for that proposition. It also submitted that it could not be an exceptional circumstance when combined with a period of nine months full-time custody. In my judgment that is correct in the circumstances of this case because the prisoner would have faced a much longer period of full-time custody if he had not had that full-time custody before being sentenced. This seems to me to reduce the significance for present purposes of that full-time custody. 24 The Judge said that he took into account the matters on the Form 1 when sentencing the prisoner on the first count, but he manifestly failed to do so because he imposed the same sentence on this count as he imposed on the other four and he made all the sentences fully concurrent. This error, without more, requires this Court to set aside the sentence passed on count 1 and re-sentence the prisoner. 25 His Honour committed further errors in failing to apply the instruction in Pearce v The Queen (1998) 194 CLR 610, 623 and following that judges who have to sentence for multiple offences must impose separate sentences in respect of each substantive offence before considering questions of cumulation, concurrency and totality. His Honour manifestly failed to sentence in accordance with these principles. 26 His failure to do so requires this Court to allow the appeal, to set aside the sentences imposed by the sentencing Judge, and re-sentence the prisoner on all counts. This being a Crown appeal the prisoner has been exposed to double jeopardy and any sentence imposed by this Court must be set towards the bottom end of the range. 27 In my judgment the period of nine months in full-time custody with an appropriate period of periodic detention would not sufficiently mark the objective gravity of the prisoner's criminality nor, in my judgment, would such a sentence sufficiently reflect the need for general deterrence in cases of this kind particularly when the prisoner is a member of what appears to be a close-knit community. 28 As I have said he was engaged in a major commercial drug operation conducted for profit. A person who involves himself in such operations should not expect to avoid a proper sentence of full-time custody by appropriate remorse and rehabilitation. 29 The prisoner's favourable family background and good education are not mitigating factors. If anything they are aggravating factors in a case such as this. In my judgment without a further period of full time custody the prisoner will not have paid his proper debt to society for his actions in running a wholesale drug business. 30 I would, therefore, propose the following orders: (1) Appeal allowed. (2) Sentences imposed by McGuire DCJ quashed. (3) In lieu thereof the prisoner is sentenced on the first count, taking into account the matters on the Form 1, to a sentence of three years to commence on 24 June 2005 and expire on 23 June 2008 with a non-parole period of 18 months to commence on 24 June 2005, and expire on 23 December 2006. (4) On counts 2, 3, 4 and 5 the prisoner is sentenced to two years imprisonment to commence on 24 June 2005 and expire on 23 June 2007, with a non-parole period of 12 months to commence on 24 June 2005 and expire on 23 June 2006. (5) All sentences are to be concurrent with each other and with the sentence imposed on the first count. 31 They are the orders I would propose. 32 KIRBY J: I agree with much of the judgment of the learned presiding Judge but I do not with respect agree with the orders proposed. There is no doubt that there were errors on the part of the sentencing Judge which have been identified. There is also no doubt that the crimes for which Mr Saba was arrested and in respect of which he was being sentenced were most serious. Indeed, as his Honour said, he set about a calculated and determined course of serious criminal conduct. 33 The appropriate authority guiding the sentencing Judge should have been R v Clarke, that is, a full-time custodial sentence was required except in exceptional circumstances, notwithstanding the youth of Mr Saba, he being 21 years old at the time of these offences, and notwithstanding his previous good character. 34 However, Mr Saba did serve nine months full-time custody on remand. Indeed he deliberately chose not to apply for bail, as the sentencing Judge pointed out, in order that he might address the issue of his own rehabilitation. There was convincing evidence, as his Honour accepted, that almost from the moment of arrest Mr Saba recognised his errors and began to change the course of his life. 35 He used his time in custody well. He undertook a number of courses. He gave up drugs, something which some prisoners, notwithstanding the theory that drugs are not available, do not manage to do. He showed contrition. He undertook counselling and the reports of the counselling officer testified as to the extraordinary progress that he made. 36 Once released on bail again he took steps, in his own interests no doubt, but important steps in his own rehabilitation. He undertook charity work, he continued with counselling and received a glowing report from his counsellor. He sought and obtained full-time employment. His employer, in a letter which is before this Court, spoke of him very highly. He exhibited all the hallmarks of a person who had successfully addressed the problem which had landed him in such trouble. 37 The sentencing task which his Honour was required to undertake was a difficult one. On the one hand he was confronted with serious crimes which, except in exceptional circumstances, required a full-time custodial sentence. On the other hand, he had to recognise and take account of the full-time custodial sentence which Mr Saba had served whilst on remand. He also had to take account of his rehabilitation and the steps in rehabilitation which had been achieved and the public interest in ensuring that this young man remained free of crime in the future. 38 His Honour was obviously concerned that to send him back to gaol may jeopardise that important progress. Ultimately he sentenced him to a term of 18 months imprisonment to be served by way of periodic detention. Unquestionably, that was a lenient sentence. 39 However, this is a Crown appeal. The fact that sentence is lenient is not determinative. Other issues arise, including the issue of double jeopardy. Indeed, notwithstanding the errors that were made by the sentencing Judge, there is the question of whether or not this Court should intervene, and whether it should increase the sentence. 40 For my part I believe the Crown has demonstrated that there was error and, more than that, I believe the Crown has demonstrated that the sentence was unacceptably lenient. However, the Crown in an alternative submission said this [para 94]: "Alternatively, the appellant submits that the Court would uphold the Crown appeal and re-sentence the prisoner to appropriate increased individual and aggregate sentences of periodic detention." 41 For my part I believe there is much to commend that course in the special circumstances of this case, it being a Crown appeal. I would propose the following orders: 1. That the appeal be allowed. 2. That the sentence in respect of count 1 be quashed. 3. That in respect of count 1, including the matters on the Form 1, that the prisoner be re-sentenced to a period of periodic detention of three years commencing on 24 March 2006 and expiring on 23 March 2009 with a non-parole period of two years commencing on 24 March 2006 and expiring on 23 March 2008. 4. I would otherwise confirm the orders for periodic detention which were made in respect of the remaining counts by his Honour. 42 HOEBEN J: I agree with the reasons of Handley JA and with the orders which he proposes. ********** 19/07/2006 - typographical error - Paragraph(s) Coversheet - Decision (4): expiration date of non-parole period amended from 23 June 2007 to 23 June 2006. 19/07/2006 - typographical error - Paragraph(s) Order (4) and [30](4) - expiration date of non-parole period amended from 23 June 2007 to 23 June 2006. 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