Ghossein v Regina [2006] NSWCCA 108

New South Wales Court of Criminal Appeal

CITATION: Ghossein v Regina [2006] NSWCCA 108

HEARING DATE(S): 05/04/2006 JUDGMENT OF: Grove J at 26, 28; Simpson J at 27; Howie J at 1

EX TEMPORE JUDGMENT DATE: 04/05/2006

DECISION: Appeal against conviction is dismissed. Leave to appeal against sentence granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Trial by judge alone - whether should have directed himself on lies - sentence appeal - whether judge failed to take into account mental disability of appellant and whether judge should have found special circumstances.

Drug Misuse and Trafficking Act 1985 - s 25(1) LEGISLATION CITED: Criminal Procedure Act 1986 - s 133 Criminal Appeal Act 1912

Fleming v The Queen (1998) CLR 250 CASES CITED: Edwards v The Queen (1993) 178 CLR 193 R v Engert (1989) 84 A Crim R 67

PARTIES: Mathew Luke Ghossein v Regina

FILE NUMBER(S): CCA 2006/335

COUNSEL: V. Lydiard - Crown S. Kluss - Applicant

SOLICITORS: S. Kavanagh - Crown Ross Hill & Associates - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 0/61/0023

LOWER COURT JUDICIAL OFFICER: Woods DCJ

IN THE COURT OF CRIMINAL APPEAL 2006/335

GROVE J SIMPSON J HOWIE J

WEDNESDAY 5 APRIL 2006 Mathew Luke GHOSSEIN v REGINA Judgment 1 HOWIE J: The appellant was convicted after trial by judge alone of an offence of supplying a prohibited drug, namely methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty for an offence under that section is relevantly imprisonment for 15 years. The appellant was sentenced to imprisonment for two years to date from 12 June 2005 with a non-parole period of 18 months to expire on 11 December 2006, the date upon which the appellant is to be released to parole. The appellant appeals against both his conviction and sentence. 2 The facts can be very briefly stated. On the evening of 26 September 2003 police acting on intelligence stopped a vehicle heading towards Mudgee from Sydney. The appellant was travelling in the vehicle with other persons. Police took the appellant back to a police station and searched him. No drugs were found and he was allowed to leave the police station. Later a condom containing what was analysed as being 13.3gms of methylamphetamine was found behind a rubbish bag in the police station. The purity of the drug was seven per cent, approximately twice the purity of amphetamine usually located in the Mudgee area. DNA tests revealed that the condom had been in the possession of the appellant. The appellant was interviewed by police about the condom and its contents and but denied knowing anything about them. 3 The appellant gave evidence at the trial admitting that the condom was his. He said that he had bought the amphetamine in Sydney and he had paid $500 for half an ounce. He said that he was unemployed and had received a loan from his parents to use as bond money for a place he was looking to rent in Mudgee. However the appellant had used the money to purchase the drugs. He said he bought the amount he did it because of the expense of the drug in Mudgee. He was using about half a gram to a gram everyday. He had bought as much amphetamine as he could with the $500 and was intending to use it himself. The appellant admitted that he had told lies to the police in the course of his interview. His mother gave evidence to the effect that she had given the appellant about $600 on 25 August 2003. 4 The amount of drug that the appellant had in his possession at the time of his arrest was more than the trafficable quantity specified for methylamphetamine. The only issue, therefore, to be determined by the trial judge was whether the appellant had proved on the balance of probabilities that he had the drug in his possession for a purpose other than supply. 5 There is a single ground of appeal relied on for the appeal against conviction. It is to the effect that the trial judge did not comply with what is now s 133 of the Criminal Procedure Act. That section is as follows: