New South Wales Court of Criminal Appeal CITATION: SADEK, Robert v R [2010] NSWCCA 99 HEARING DATE(S): 22 March 2010 JUDGMENT DATE: 13 May 2010 JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 3 (i) Leave to appeal be granted; DECISION: (ii) Appeal be dismissed. CATCHWORDS: CRIMINAL LAW – sentence appeal – totality – alleged error in categorisation of role of applicant in criminal enterprise – use of impermissible material – no error disclosed – no manifest excess – appeal dismissed CATEGORY: Principal judgment PARTIES: Robert Sadek (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2008/12676 COUNSEL: R Sutherland SC (Applicant) J Girdham (Respondent) SOLICITORS: Penelope Purcell Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/0872 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 23 January 2009 IN THE COURT OF CRIMINAL APPEAL 2008/12676 McCLELLAN CJ at CL JAMES J ROTHMAN J 13 MAY 2010 SADEK, Robert v R Judgment 1 McCLELLAN CJ at CL: I agree with Rothman J. 2 JAMES J: I agree with Rothman J. 3 ROTHMAN J: Robert Sadek seeks leave to appeal sentence imposed upon him by the Sydney District Court on 23 January 2009. On that date, Mr Sadek, the applicant, was sentenced in relation to two charges, to each of which he had pleaded guilty. The first charge was for ongoing supply of a prohibited drug, for which the maximum sentence is 20 years' imprisonment and/or a fine of 3,500 penalty units, and the District Court sentenced Mr Sadek to a fixed term of imprisonment of 2½ years commencing on 18 December 2007 and expiring on 17 June 2010. Charge 2, supply of a commercial quantity of a prohibited drug (methylamphetamine, the same drug as in Charge 1), was the subject of a term of imprisonment, the District Court imposing a non-parole period of 4 years' imprisonment commencing 18 December 2008 and expiring 17 December 2012 as part of a total sentence of 7 years' imprisonment expiring 17 December 2015. The sentence in relation to Charge 2 included a Form 1 offence of suppling a prohibited drug (benzylpiperazine). 4 The first offence for which Mr Sadek was sentenced was said to have occurred between 4 December 2007 and 10 December 2007 and the second offence was said to have been committed between 10 December 2007 and 18 December 2007. The Form 1 offence occurred on 22 November 2007. Facts 5 A set of Agreed Facts were provided to the sentencing judge and those facts, because of their brevity, may be repeated: " AGREED FACTS One Count of Ongoing Supply Prohibited drug s25A(1) Drug Misuse and Trafficking Act 1985 One Count Supply Prohibited Drug >Commercial Quantity (offer) S25 (2) Drug Misuse and Trafficking Act 1985 One count of Supply Prohibited drug s25 (1) on a form one FACTS: In October 2007 investigators attached to State Crime Command, Middle Eastern Organised Crime Squad commenced Strike Force 'Salway' investigating the offender and his associates involved in the manufacture and supply of prohibited drugs. To support the investigation on 12 November 2007, Controlled Operation Authority, reference CO 07/363 was granted. To further support the operation Listening Device Warrants 07/528 (a), (b), (c), (d), (e), 07/567 (a), (b), (c), (d), (e), and 07/588 (a), (b) were also approved. During the investigation a New South Wales Police Undercover Operative UCO-451 was introduced to Sadek as a person capable of purchasing quantities of illegal drugs in particular amphetamine based substances. H 34573581/ 2 Offence placed on Form One Supply Prohibited Drug (1 gram of Benzylpepirazine) On 21 November 2007, Sadek contacted UCO-451 and an order (using the pre-established code) was placed for 1 oz (28.4gms) of Methylamphetamine Hydrochloride for Thursday, 22 November 2007. On 22 November 2007, UCO-451 met Sadek at his home. Sadek requested the operative drive him to Kay Street Old Guildford where they met the co-accused Ghostine Jabour and a sample of 0.78gram of Benzylpiperazine (an illegal amphetamine based drug utilised as a substitute for 3,4 methylenedyoxymethylamphetamme 'MDMA') was supplied to the operative at no cost. H34573581/9 Supply Prohibited Drug on an Ongoing Basis (4 / 6/ 10 December 2007) Supply Prohibited Drug (l ounce / 28.4grams of methylamphetamine) On 4 December 2007 UCO-451 met Sadek at his home. Following this meeting the two travelled to Brunker Road, Chullora where a controlled purchase of l ounce (28.4grams) of methylamphetamine at a cost of $8000 took place. The drug was analysed and was found to have a purity of 68%. Supply Prohibited Drug (l ounce / 28.4grams of methylamphetamine) On 6 December 2007 UCO-451 met Sadek and a controlled purchase of 1 ounce (27 4grams) of methylamphetamine at a cost of $6500 took place. The drug was analysed and was found to have a purity of 33%. During this meeting, the co-accused Ghostine Jabour, assisted Sadek in the supply of the drugs. Supply Prohibited Drug (3 ounces / 85.2grams of methylamphetamine) On 10 December 2007, UCO-451 met with Sadek at 1 Ruby Street, Yagoona and travelled to the McDonalds Restaurant, Hume Hwy, Bass Hill. There the two were met by the co-accused Ghostine Jabour. Sadek and Jabour supplied UCO-451 with 2 ounces (57.3grams) of methylamphetamine and 1 ounce (27.9grams) of Methylamphetamine in a crystalline form at a combined cost of $9000.00. The rugs were analysed and were found to have a purity of 5.5% (base amphetamine) and 31.4% (Methylamphetamine Hydrochloride). During this meeting negotiations took place between Sadek, Jabour and UCO-451 for the supply of 10 ounces (284grams) of 'base' amphetamine and 10 ounces (284grams) of methylamphetamine hydrochloride at a combined cost of $85,000.00. On the 4 th , 6 th and 10 th of December 2007 the offender supplied various quantities of prohibited drugs (methylamphetamine) to NSW Police Undercover Operative UCO-451. H 34573581/ 10 Supply (Offer) Prohibited Drug (commercial quantity) (20 ounces / 568grams of methylamphetamine) On 10 December 2007, the offender Robert Sadek, the co-accused Ghostine Jabour and the NSW Police Undercover Operative UCO-451 negotiated the supply of 20 ounces of methylamphetamine at a cost of $85,000.00. These negotiations included quantity (10 ounces (284grams) 'base' amphetamine) and (10 ounces of methylamphetamine hydrochloride 'ice' at a combined cost of $85,000.00. timings and location for the supply to take place (The Rydges Hotel Bass Hill). Between the10 th of December 2007 and the 17 December 2007 the offender contacted UCO-451on a number of occasions confirming the supply of the 20 ounces of methylamphetamine. During these conversations the offender claimed to be in possession of the drugs and being capable of supplying the drugs to the operative. On 18 December 2007 a number of further conversations took place between UCO-451 and the offender and negotiations broke down. The supply of the drugs did not take place. At 2.45pm on 18 December 2007 a Search warrant was executed at the offenders home where he was arrested. On 18 December 2007 the offender was arrested and conveyed to Bankstown Police Station. " 6 One issue of contention is the degree to which Mr Sadek received money for his role in the supply operation. He maintains that no money was received. Further, not withstanding the reference to Mr Sadek being involved in negotiations at the meeting that occurred on 10 December 2007, he submits that his role was confined to introducing the undercover police operative to the actual supplier of the drugs. Grounds of Appeal 7 The Notice of Appeal (filed 26 November 2009) relies upon two grounds: "1. The totality of the accumulated sentences is manifestly excessive. 2. The sentencing Judge fell into specific error in a number of regards:- i) His Honour erred in the manner in which he utilised the statements by the undercover police officer (Exhibit 6); ii) His Honour erred in the manner in which he utilised the psychologist's report (Exhibit 1); iii) His Honour erred in his interpretation of the applicant's evidence; iv) His Honour erred in being satisfied beyond reasonable doubt on the evidence before him that the applicant received profits from his offending." 8 The second ground, with which I will deal first, essentially complains of the findings of fact upon which the sentencing judge relied and of a process adopted by the sentencing judge that was unfair to the applicant. 9 Over and above the Agreed Facts, which have been recited above, Mr Sadek's counsel, at the sentencing hearing, tendered a statement by the undercover police officer. This was tendered without objection. 10 The applicant complains that the Crown did not cross-examine the applicant as to his version, suggesting to him that the version given by the undercover police officer was correct, which version was inconsistent with the description of events of the applicant himself. 11 The applicant gave a version that the $1,500 received from the undercover officer was "a rip-off", was not for the purposes of the payment of the drugs and the payment for drugs was otherwise effected. 12 The difficulty with this version of events and the alleged unfairness is that, at least in some significant respects, it is inconsistent with the Agreed Facts and inconsistent with the statement of the undercover operative which was admitted without objection. These statements were, of course, available to the applicant and his legal representatives well before their tender. Further, even though Mr Sadek, the applicant, tendered the statement, there was no attempt or application to cross-examine the undercover police officer. Indeed, the undercover operative's statements were tendered by the applicant's legal representatives, albeit for a limited purpose. 13 Notwithstanding the submission that there was no examination, or cross-examination, on the difference in versions, his Honour asked a number of pointed questions as to the content of the psychologist's report and the contents of the Agreed Facts. At page 16 of the Transcript of 5 December 2009, his Honour asked the question of Mr Sadek as to the content of page 2 of the report and, in particular, as to the receipt of money. The evidence (continuing to page 17 of the Transcript) makes clear that Mr Sadek was present during the supply of the drugs in question, having brought the undercover agent to the allegedly more senior co-offender. 14 As to the allegation by the applicant that he never received money, his own evidence is inconsistent with that proposition. Exhibit 5, the letter from the applicant to the Court, tendered by counsel for the applicant, and referred to in the examination-in-chief at page 4 of the Transcript of 5 December 2009, recites that the applicant received $1,500 from the undercover operative. Counsel for the applicant makes clear to the sentencing judge that the amount was received and referred to in the Agreed Facts during the transaction relating to the Form 1 offence. Again at page 8 of the Transcript, the applicant makes clear that he received the $1,500 from the undercover operative. And at page 13, the applicant makes clear that the remaining three purchases of drugs were reduced in price to the undercover police officer by $500 each, by which process $1,500 of the amount used for the purchase of the drugs was allocated to the applicant by Mr Jabour, the co-offender. 15 The finding of the sentencing judge that the applicant received $1,500 from the drug transaction was a finding that was not only open to the sentencing judge, but was the only finding open to the sentencing judge and, at least in part, was based upon the applicant's own evidence. 16 More generally, the evidence upon which the sentencing judge relied was evidence adduced by the applicant, or on his behalf, and no unfairness arrises because the sentencing judge relied upon that evidence. 17 The sentencing judge, in his remarks on sentence at page 13, noted the inconsistencies between the different versions of the applicant and the undercover operative and came to the finding that the applicant had "acted as a middleman between the undercover officer and the supplier". This finding was open to his Honour and not arrived at by a process that was in any way unfair. His Honour found that the role played by the applicant was crucial in the establishment of the relationship between the undercover police officer and the supplier, Mr Jabour. Further, his Honour found that there were no large or substantial profits made by the applicant. 18 It is appropriate for me to trace, more fully, the manner in which his Honour raised, squarely, with the applicant and his legal representatives, the problems that the applicant confronted. 19 As already stated, there was an Agreed Facts document and a number of other exhibits, including the statement of the undercover police operative and the psychologist's report, each of which were tendered by the applicant, or, in the case of the Agreed Facts, tendered without objection from the applicant. The hand-written letter (Exhibit 5), tendered by the applicant, gave as a reason for the applicant's involvement in the supply of drugs that he had taken $1,500 from the undercover police officer on the pretence of supplying drugs and he thereafter became embroiled in the process. He alleges, in that letter, a lack of intention to be involved and an avoidance of the police officer. That allegation does not withstand scrutiny. 20 In relation to the $1,500, according to the psychologist's report (Exhibit 1), there is no mention of that which is recited in the handwritten letter. Instead, the applicant told the psychologist that he became involved in drug supply to finance his own addiction. Further in that report, the psychologist repeats that Mr Sadek did no more than put buyers in contact with the dealer and that he never held the drugs or took any money. Mr Sadek is quoted as saying that he was never present when the transactions occurred. His payment, according to that which he told the psychologist, was the obtaining of drugs for his personal use. 21 The evidence of the applicant was inconsistent with each of these stories and, partially consistent with both of them. Initially he made clear that he had sought to "rip-off" the undercover police officer of $1,500, which amount was then deducted from the payments required of the police officer to the other drug supplier. Further, in his evidence, the applicant makes clear that he was present at the transactions, but initially alleged that he did not handle any money or drugs and received no payment. 22 It was only in cross-examination that it became clear that the $1,500 was, effectively, paid to him from the cost of the drugs by Mr Jabour, discounting the price to the police operative by $500 on each transaction. 23 Further, during the course of his evidence, Mr Sadek made clear that he had not only handled money but had handled the drugs, from time-to-time. Further, he was present, notwithstanding his earlier denial, when the drug transactions occurred. 24 The sentencing judge, in his remarks on sentencing, drew attention to the inconsistency between the different versions given by Mr Sadek. Further, the sentencing judge drew attention to the inconsistencies between that which was alleged by Mr Sadek and the version given in the evidence, adduced by or on behalf of Mr Sadek, being the undercover police operative's statement (Exhibit 6). The sentencing judge came to the view that the applicant's role was "crucial", with which description I agree, and which description was plainly open on the evidence before his Honour. 25 The sentencing judge (at page 17 of the Transcript) asked a series of questions relating to, and purporting to test, the veracity of the comment to the psychologist that Mr Sadek had never handled the money or the drugs. It is beyond doubt that Mr Sadek did, in fact, handle the money and/or the drugs, the sentencing judge did not misunderstand (as was claimed by the applicant) this issue and, before this Court, Mr Sadek, through his counsel, accepted that the claim that the money had never been handled, or that money had never been received, were an "overstatement" and/or an "exaggeration". 26 In short, the evidence upon which the sentencing judge relied was evidence adduced by the applicant and it was neither unfair nor inappropriate for the sentencing judge to rely on the evidence in the manner in which he did. Ground 1: Manifest excess 27 As has been stated on a number of occasions, and authoritatively determined by the High Court of Australia, sentencing is a process of intuitive synthesis. A ground of appeal that relies on manifest excess, more than most, calls for an intuitive response. 28 The applicant was involved in a relatively sophisticated drug-dealing operation. While the applicant was not anywhere near the highest level in that operation, he was involved, over a four-week period, in arranging for the supply of drugs and delivering persons to the drug supplier and/or introducing them to the drug supplier. The drug supply involved a commercial quantity of methylamphetamine and the offence involved in Charge 2 has a standard non-parole period of 10 years' imprisonment. The overall effective sentence imposed was a non-parole period of 5 years, as part of a head sentence of 8 years. As such, the overall head sentence for two charges (including Form 1) is less than the standard non-parole period for the more serious of the charges. 29 While it is true that the applicant's involvement is at the lower end of the criminal offence, it is difficult to conceive how such a sentence would be manifestly excessive, even accounting for the degree to which it is necessary to impose sentences that take account of the totality of the offending in question. 30 I would propose that the Court make the following orders: (i) Leave to appeal be granted; (ii) Appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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