Mirza v R [2007] NSWCCA 248

New South Wales Court of Criminal Appeal

CITATION: Mirza v R [2007] NSWCCA 248

HEARING DATE(S): 08/08/2007

JUDGMENT DATE: 14 August 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Harrison J at 20

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Ongoing drug supply of cocaine - whether manifestly excessive.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25A(1)

R v Sukkar [2006] NSWCCA 92 R v Smiraldo (2000) 112 A Crim R 47 Smith v R [2007] NSWCCA 138 Wong v The Queen (2001) 207 CLR 584 CASES CITED: Truong v R [2006] NSWCCA 318 R v Sciberras (2006) 165 A Crim R 532 R v CBK [2002] NSWCCA 457 Mulato v R [2006] NSWCCA 282 Dang v R [2005] NSWCCA 430

PARTIES: David Ghous Mirza v Regina

FILE NUMBER(S): CCA 2007/1077

COUNSEL: N. Adams - Crown A. Cook - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0163

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 27/10/2006

IN THE COURT OF CRIMINAL APPEAL 2007/1077

McCLELLAN CJ at CL HOWIE J HARRISON J

TUESDAY 14 AUGUST 2007 David Ghous MIRZA v REGINA Judgment 1 McCLELLAN CJ AT CL: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court on a charge of ongoing supply of cocaine contrary to s 25A(1) of the Drug Misuse and Trafficking Act. The maximum penalty prescribed for that offence is relevantly 20 years imprisonment. He had pleaded guilty in the Local Court and adhered to that plea before Judge Marien (the Judge). He was sentenced on 27 October 2006 to a term of imprisonment comprising a non-parole period of 3½ years and a balance of term of 2½ years. The sentence dated from 26 October 2006 and he is eligible to be released to parole on 25 April 2010. 3 The applicant initially relied upon two grounds of appeal, but the first was abandoned at the hearing of the application. The remaining ground is that the sentence is manifestly excessive. 4 The facts can be stated briefly. The applicant was subject to a police undercover operation whereby he supplied cocaine on three occasions between the 27 July and 12 August 2005. The supplies took place in Double Bay on 28 July, 4 August and 11 August. On each occasion the same procedure was adopted. The undercover officer contacted the applicant and arranged to purchase an ounce of cocaine at a price of $7,500. The officer attended a coffee shop in a hotel and spoke to the applicant. He left and returned a short time later. He then placed a package into the officer's handbag and removed an envelope containing the money. The first supply involved 29.8 grams of cocaine with a purity of 49 per cent, the second involved 28.7 grams with a purity of 47 per cent and the third 28.4 grams with a purity of 27 per cent. 5 The applicant had told a psychiatrist who prepared a report for the sentencing proceedings that he had agreed to place a person who wanted to purchase cocaine in contact with a supplier he knew. He was willing to assist in the supply of the drug for a reward of $250 on each occasion. He said that he had never been involved in drug dealing and committed the offences as a favour to a friend and to obtain money to renew his security licence in order to obtain work. The applicant had given a similar account to the officer preparing a pre-sentence report and in a statement to police, 6 The applicant was aged 47 years at the time of offending and had no prior criminal record. A pre-sentence report revealed that the applicant was born in Pakistan. He married in 1980 but divorced his wife in 1987. He came to Australia in 1998 with his four children and his former wife. A son aged 17 was killed in a motor vehicle accident in 2001. Thereafter the applicant left the family home to live by himself but remained in daily contact with his surviving children. After coming to Australia the applicant worked in various positions but had been receiving Centrelink benefits since 2002 because he was suffering from depression as a result of the death of his son. He has never used illegal drugs. The officer preparing the report did not believe that there was any problem that needed to be addressed by supervision or assistance from the Service. 7 There was in evidence a report from the applicant's treating psychiatrist. The applicant reported that since the death of his son he had been depressed and unable to work. His security licence expired in July 2004 and he did not at that time renew it. He reapplied for the licence in May 2005 but found that he had to undergo a course in order to obtain his licence that was to cost him $900. He did not have the money and hence agreed to assist in the supply of the drugs. The applicant had first seen the psychiatrist on 7 November 2005 after he had been charged with the drug offence and because he was again depressed. The psychiatrist was of the opinion that he was at risk of further depressive episodes if he were to receive a full-time custodial sentence. 8 The Judge, relying upon what was stated by me, with the concurrence of McClellan CJ at CL, in R v Sukkar [2006] NSWCCA 92, determined that the appropriate discount to give for both the utilitarian value of the plea and assistance was 40 per cent. There was no evidence that the applicant would serve his sentence more harshly by reason of the assistance he proffered. With respect that was an overly generous discount. Although the applicant agreed to give evidence against persons who were involved in the supply to the undercover officer, there was no suggestion that any person was likely to be prosecuted based upon the information supplied by the applicant. The Judge accepted that what the applicant told police was of little more than intelligence value at the time of sentence and in my view that is how the matter ought to have been assessed at the date of sentence, that is more than 12 months after the applicant had been arrested. 9 If there were a need to re-sentence the applicant, I could not award him a discount of that magnitude. It was submitted on behalf of the applicant that the Court should deal with this issue by simply considering the sentence imposed upon the applicant in light of the plea of guilty and the assistance given and determine whether it was excessive. That is the way in which I intend to determine the fate of the application. 10 The Judge treated the matter as one of above mid-range of seriousness for an offence falling within s 25A principally because of the following facts: the amount of drug involved overall; the role of the applicant in setting up the transactions; the fact that the offences were committed through greed; and that at the time of the offending the applicant had recovered from his depressive illness caused by the death of his child. It was submitted on the part of the applicant that this was an over-estimation of the seriousness of the offending and that the Judge must have relied too much on the amount of drug and exaggerated the applicant's involvement in the supplies. 11 As the Judge pointed out, it is unusual to find an offence under s 25A involving such a large amount of drug. The offence was enacted to target dealers who were involved in the ongoing supply of drugs for profit where the amounts supplied on any particular occasion were small and any one instance of supply did not fairly represent the involvement of the supplier in the distribution of drugs: see R v Smiraldo (2000) 112 A Crim R 47. Although the amount of the drug is not the only relevant factor in sentencing for this offence, or any offence of supplying drugs for that matter, it remains a significant factor: Smith v R [2007] NSWCCA 138 at [53]. It may well be the case that the seriousness of this type of offence will not be diminished simply because the overall amount of drug supplied is small. But it does not follow that the amount of drug supplied is an irrelevant matter in determining the seriousness of the particular offence. 12 I have cautioned before about placing too much reliance on what was said about the relevance of the amount of the drug in Wong v The Queen (2001) 207 CLR 584 in relation to a State offence where the seriousness of the offence is not based upon the purity of the drug: see Truong v R [2006] NSWCCA 318. See also R v Sciberras (2006) 165 A Crim R 532 at [41]. There will clearly be cases where the amount of the drug supplied is determinate of the sentence. The amount of the drug supplied was very significant in this case because the applicant knew that he was involved in the supply of an ounce of the drug on each occasion. In my opinion that was an important fact in determining the seriousness of the crime committed by the applicant in the range of criminal activity that could be encompassed by the section. 13 It was well open to the Judge to find that the applicant was "highly instrumental in setting up the various meetings where the drug supplies occurred". He arranged the meetings with the officer on his mobile telephone. The applicant may not have been at the top of the organizational tree in this business of supplying drugs but he was not in the position of a mere courier of the drug or a runner. Nor was he a street dealer. There may have been no person under him in the organisation in which he was involved, but that is because he was supplying on behalf of a wholesaler of the drug. It would have been obvious to the applicant by the amount sold and the frequency of the sales that the officer was purporting to be a trafficker who would on-supply the drug received. 14 It has been made clear that a person who is to be sentenced for an offence under s 25A can expect to receive a more severe sentence than a person who falls to be sentenced for the same conduct under s 25 of the Act, not the least because the maximum penalty is greater than for an offence of supply simpliciter: R v CBK [2002] NSWCCA 457 at [57]. The amount here supplied was 86.9 grams overall. The indictable quantity for cocaine is 5 grams. Each of the offences, if charged as a separate supply, would have been dealt with in the District Court and the applicant have been liable to a maximum term of imprisonment of 15 years. I do not mean by this observation to suggest that some comparison should be made between the sentence imposed for an offence under s 25A and what would have been imposed had the applicant been before the court for three offences of supply arising from the one course of conduct. I am simply observing that, unlike the vast majority of cases prosecuted under this section, each of the supplies was itself a significant criminal act warranting a significant sentence. 15 I appreciate that the applicant had a strong subjective case arising from his good character but taking into account the level of his involvement in the offences, his knowledge of the amount of drugs being supplied, the nature of the drug and the fact that he was acting purely for profit, there was little mitigation in his subjective circumstances. It may be the case that there is a risk that he will serve some part of his sentence while suffering acute depression, but it is difficult to feel sympathetic when this disorder is a direct result of his involvement in such serious criminal conduct. His previous depressive illness was in remission and there is no suggestion, as the Judge rightly pointed out, that he was suffering from any mental abnormality at the time of the offending. 16 It has been held by this Court that a sentencing judge's assessment of where in a range of criminal conduct encompassed by an offence a particular instance of offending stands is a matter of fact upon which minds might reasonably differ. Generally this Court would not interfere in that assessment unless it was clearly erroneous: Mulato v R [2006] NSWCCA 282. Here the assessment was supported by adequate reasons: cf Dang v R [2005] NSWCCA 430. 17 The only matter that causes me to hesitate about accepting the Judge's finding that the offence was above midrange of seriousness was that there were only three occasions when the supply took place. The number of supplies is clearly a relevant factor in accessing the criminality of the offender under s 25A as is any material that suggests that the supplies were not isolated incidents. But this is not a case where there was to be a limited number of supplies to the undercover police officer and it is clear, even on the applicant's account given to police, that she was considered to be an ongoing customer. When she complained of the quality of the last supply, the applicant accused the supplier of debasing its quality and suggested that she should receive some sort of a refund. He clearly saw her as his client and was concerned to look after her interests. 18 The applicant's account was that he was only to receive $250 per supply even though the amount of drug supplied on each occasion was worth $7,500. The Judge indicated that he was loath to accept this assertion, especially as it was not supported by evidence from the applicant. In my opinion little weight should be given to the amount of reward received by an offender for his participation in serious criminal activity. If accepted, the fact that a person was to receive little recompense might reveal something of the offender's status in the organisation and the nature of his role in the ongoing business. But beyond that I do not consider that it is a matter of mitigation that a person is prepared to involve himself in serious criminal activity for little reward, particularly where the consequence of his actions is to significantly assist in the dissemination of large quantity of drugs into the community. 19 In my opinion it was open to the Judge to come to the conclusion that he did. In any event I am not persuaded that the sentence imposed, however it was derived was manifestly excessive. I propose that leave to appeal be granted but the appeal be dismissed. 20 HARRISON J: I agree with Howie J. **********