Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Youssef v Regina [2014] NSWCCA 285 Hearing dates: 20 November 2014 Decision date: 28 November 2014 Before: Simpson J at [1] Price J at [2] McCallum J at [6] Decision: Leave to appeal granted; appeal allowed; sentence passed at first instance quashed and in substitution therefor applicant sentenced to a term of imprisonment with a non-parole period of 7 months commencing on 1 May 2014 and expiring on 30 November 2014 and a balance of term of 5 months expiring on 30 April 2015; parole order made. Catchwords: CRIMINAL LAW - appeal - appeal against sentence - possession of prohibited drug for supply - whether sentencing judge erred in determining that the applicant was substantially involved in supply - whether sentencing judge erred in failing to make a finding that the applicant was unlikely to reoffend - whether sentencing judge failed to give sufficient weight to the applicant's subjective features - whether the sentence imposed was unduly harsh and severe - discretion of the Court of Criminal Appeal - principles stated in Kentwell v R Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985 Cases Cited: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 House v The King [1936] HCA 40; (1936) 55 CLR 499 Kentwell v R [2014] HCA 37; (2014) 313 ALR 451 R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 R v Bardo (Supreme Court of New South Wales, Court of Criminal Appeal, 14 July 1992, unreported) R v Peter Michael Clark (Supreme Court of New South Wales, Court of Criminal Appeal, 15 March 1990, unreported) Category: Principal judgment Parties: Milad Youssef (Applicant)Regina (Respondent) Representation: Counsel: Ramage QC (Applicant)Girdham SC (Crown) Solicitors: Andrew Solicitors (Applicant)Solicitor for Public Prosecutions (Crown) File Number(s): 2013/270259 Publication restriction: None Decision under appeal Date of Decision: 2014-05-01 00:00:00 Before: King DCJ File Number(s): 2013/270259 Judgment 1SIMPSON J: I agree with McCallum J. 2PRICE J: I have had the benefit of reading the draft judgment of McCallum J. I agree for the reasons expressed by her Honour that Ground 1 of the appeal should be upheld and the remaining grounds dismissed. However, I do not agree with the sentence proposed by her Honour on re-sentence. 3As I am aware that Simpson J agrees with the orders proposed by McCallum J, my reasons for disagreement will be brief. 4The total quantity of 29.86 grams of cocaine was almost six times the indictable quantity specified in the Drug Misuse and Trafficking Act 1985 (NSW). The sentencing Judge was entitled to find that this amount of cocaine had substantial value, was entirely inconsistent with the appellant's lifestyle and was, at least in part, to be supplied to others for a substantial benefit. This was in my opinion, a significant offence of supply and there was no alternative to a term of full time imprisonment. General deterrence remains an important consideration when sentencing offenders for the dissemination of prohibited drugs to others. 5On re-sentence, I would propose an undiscounted starting point of two years six months imprisonment. After the utilitarian discount of 25 per cent for the pleas of guilty is applied and special circumstances found, the appellant would be sentenced to a term of imprisonment of 1 year 11 months consisting of a non-parole period of 1 year and a balance of term of 11 months. 6McCALLUM J: Milad Youssef seeks leave to appeal against the sentence passed on him in the District Court after he pleaded guilty to a single offence of possessing a prohibited drug for supply contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985. The charge was based on the deeming provision in s 29 of the Act, since the amount in question was not less than the trafficable quantity. The amount was 29.86 grams of cocaine, whereas the trafficable quantity of cocaine is 3 grams. The offence carries a maximum penalty of imprisonment for 15 years. There is no standard non-parole period prescribed. 7The applicant pleaded guilty at the earliest opportunity and was allowed a discount of 25 per cent to reflect the utilitarian value of the plea. He was sentenced to a term of imprisonment with a non-parole period of 1 year commencing on 1 May 2014 and expiring on 30 April 2015 and a balance of term of 1 year and 6 months expiring on 31 October 2016. In accordance with s 50 of the Crimes (Sentencing Procedure) Act 1999, the judge made a parole order directing that the applicant be released on parole on 30 April 2015 on conditions including a requirement to accept treatment and counselling in respect of the consumption of alcohol and drugs. 8The applicant was sentenced on the strength of a statement of agreed facts. He came to the attention of police after going through a red light, having driven around what I assume was an unmarked police car stationary at the light. Police asked him if he was a user of any illegal drugs. He said "I use cocaine". 9Police searched the car and found three small clear plastic bags containing drugs hidden under a plastic cover underneath the handbrake. A further search of the car revealed "a large white rock" in a clear plastic bag in a compartment in the ceiling of the car. The total weight was 29.86 grams of cocaine. The purity of the larger amount was analysed to be 54%. The purity of the three smaller bags was not tested. 10The applicant was taken to a police station but fell ill whilst in custody and so was taken to Canterbury Hospital. It was determined that he should be released from custody at that point and he was issued with a court attendance notice. 11The applicant was accordingly not interviewed by police at the time of his arrest. However, the material before the Court at the proceedings on sentence included a pre-sentence report prepared by the Department of Corrective Services. The applicant told the author of that report that he was using cocaine regularly at the time of the offence and that he had purchased a quantity of the drug for himself and his friends to be consumed at his birthday party the following evening. He gave the same account to a clinical psychologist who was retained to prepare a psychological assessment for the purpose of the proceedings on sentence. 12The applicant did not give evidence at the proceedings on sentence. 13The applicant was just 25 years of age at the time of the offence. The pre-sentence report recorded that he had led "a relatively straightforward life" until the time of a serious industrial accident in June 2012. He was the middle child of three. He came from "a good family" and enjoyed good relationships with both parents. He completed the HSC, leaving with excellent school references. He went straight to university to obtain a Bachelor of Construction Management and a Bachelor of Business and Commerce but left before completing those degrees and began working in the construction industry. In June 2012 his hand was crushed in a work accident and almost had to be amputated. Following that accident, he was unable to work and became depressed. It was during that period that he began using cocaine. 14The pre-sentence report assessed him as suitable for a community service order. However, notwithstanding that assessment, the report said "he is not eligible to participate in programmes provided by this service". The basis for the ineligibility was not stated in the report but this Court was told at the hearing of the appeal that it appears to have related to his physical condition following the workplace injury. 15The psychologist's report expanded upon the impact of the work injury on the applicant. The applicant told the psychologist that he was terrified his hand would be amputated but that, following a nine and a half hour operation, the surgeons had managed "to find and reattach every nerve and artery". After the operation he was prescribed a variety of medications for pain relief and to treat depression but he was reluctant to continue taking the antidepressant medication and turned instead to cocaine. The applicant told the psychologist that, following his arrest, he had recommenced taking antidepressant medication and stopped using cocaine. 16The psychologist expressed the opinion that, during the applicant's period of rehabilitation following his accident, he developed major depression which was triggered by the loss of his job, chronic pain and loss of functioning in his hand. The psychologist thought that the applicant had developed "psychological dependence on alcohol and cocaine" during that period. The report concluded: "Mr Youssef expressed remorse for the offence and relief that his arrest by police had shocked him into abstinence from cocaine and moderation of alcohol intake. His supportive family, stable history before his accident and commitment to return to work and a stable lifestyle reduce his risk of re-offending. He faces the challenges of finding suitable light duties employment and possibly another hand operation in August 2014. Given these factors, Mr Youssef would be psychologically sensitive to a mild sanction from the Court." 17The applicant had a significant history of traffic offences but no prior criminal offences. The judge accepted that he was entitled to be treated as a first offender. 18The first ground of appeal is: "The sentencing judge erred in determining that the applicant was substantially involved in supply." 19As already noted, the applicant told the author of the pre-sentence report and the psychologist that he had purchased the cocaine for the purpose of his own birthday party which was scheduled for the following evening (a Saturday night). It had in fact been his birthday during the week a few days earlier. The judge rejected that explanation. His Honour said: "As to the offender's explanation as to why he was in possession of a total of almost 30 grams of cocaine being for him to supply to various persons that he expected to attend his birthday party, I note that there is no support from any source as to the fact of any birthday party, and as to the explanation that the 30 grams was in his possession for the purposes of supplying to other persons at that party, I do not accept that explanation on the balance of probabilities. The quantity was a significant quantity. It was distributed between some four bags secreted in two different locations within the vehicle. There is no explanation, in the circumstances, why there were three small bags in the vicinity of the handbrake, or why there was a substantial portion hidden in the roof of the car." 20The judge also noted that 30 grams of cocaine has a substantial value, which was entirely inconsistent with the applicant's lifestyle, since he was unemployed (either on compensation payments or a Newstart allowance) and living with his parents. 21The judge accepted that the applicant was a cocaine user and that part of the drugs found were for his own use but concluded that otherwise, "that which was not for his own use would have been provided to others for a financial benefit". His Honour noted that, even if the explanation of buying the drug for provision to friends at a party were accepted (which it was not), that would still indicate an intention to supply a significant portion of the drug to others, albeit with no expectation of any financial benefit (counsel for the applicant had invited the judge to infer that the cost of the drugs for the party was to be shared amongst all party-goers who shared the drug). 22In reaching the conclusion that the drugs were possessed for provision to others for a financial benefit, the judge acknowledged that there were no other indicia of supply in the car (such as a collection of small resealable plastic bags, scales or any significant sum of money). However, his Honour was persuaded that the location of three small bags and one large bag in separate locations was "an indication that the offender was intending to supply to others for benefit at least some portion that which he then possessed". 23On the strength of that finding, the judge concluded that the applicant fell to be characterised as a person "substantially involved in supply" and so had to be sentenced to a term of imprisonment. His Honour said: "There is a long line of authority, commencing with the case of R v Peter Michael Clark (Supreme Court of New South Wales, Court of Criminal Appeal, 15 March 1990, unreported) which indicates that where an individual offender can be seen to have been substantially involved in supply, they must receive a full time custodial sentence unless there are exceptional circumstances." 24His Honour acknowledged that the applicant had been found only on the one occasion with a total quantity of cocaine rather than supplying to a number of individuals or over a period of time but nonetheless concluded that the amount of which the applicant was in possession indicated substantial involvement in supply. 25The judge said: "The authorities indicate in those circumstances that a period of full time custody must be imposed unless there are exceptional circumstances. While I have indicated the matters that have been accepted in the offender's behaviour, I do not accept that they are exceptional circumstances." 26The decision in Clark was a Crown appeal against the leniency of a suspended sentence. The offender had pleaded guilty to 2 charges of supplying amphetamine. The first was an offence of deemed supply contrary to s 25 of the Drug Misuse and Trafficking Act relating to 13.4 grams of amphetamine found in his possession. The second was based on his possession of a large amount of cash which was found to be the proceeds of other sales. The offender admitted to police that he "sold amphetamine to friends if they sought it". He said that he sold small plastic bags for $50 each, about three or four a week, and had been doing so for about a month. He had a record of dishonesty and had previously but not recently served terms of imprisonment. 27The sentencing judge had acknowledged that a custodial sentence would normally be appropriate but deferred passing sentence upon the offender's entering into a bond. By majority, the Court of Criminal Appeal allowed a Crown appeal against the lenience of that sentence. Hunt J said: "This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate." 28In the later decision of R v Bardo (wrongly title "Ibardo"), also a Crown appeal, Hunt CJ at CL said that the point made in Clark was that custodial sentences are normally required, whether or not a profit has been obtained, for "trafficking alone in any substantial degree". His Honour specifically clarified that the word "trafficking" in that context "clearly carries with it the connotation of supply on more than one occasion" (Supreme Court of New South Wales, Court of Criminal Appeal, 14 July 1992, unreported). 29I accept that the sentencing judge in the present case was not required to accept the applicant's account, which was not given on oath or affirmation, that the drugs were acquired for the purpose of the party the following evening. However, I do not think it was open to his Honour to be satisfied beyond reasonable doubt that the applicant was "substantially involved in supply" or that he was a trafficker in the sense understood in Clark. 30The principle stated in Clark (described in the headnote as "the policy laid down by the Court of Criminal Appeal) states the existence of a requirement, in the circumstances delineated by the Court, to establish exceptional circumstances in order to obtain a non-custodial sentence (per Hunt J, Sharpe J agreeing). Similarly in Bardo, the language of the judgment suggests that, where a person is involved in trafficking in any substantial degree, the court is "bound" to find exceptional circumstances before considering other than a custodial sentence (per Hunt CJ at CL, Sheller JA and Badgery-Parker J agreeing). 31Enderby J dissented in Clark, reiterating the importance of the sentencing judge's discretion. His Honour endorsed the remarks of King CJ in R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 that "prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges". 32The proposition approved by the majority in Clark, asserting as it does the existence of a constraint devised by the Court of Criminal Appeal on the exercise of the sentencing discretion of judges, may warrant reconsideration in light of the remarks of the High Court (in a different context) in Hili v R; Jones v R [2010] HCA 45 at [36] to [38]. However, the correctness of the decision in Clark was not raised in the present appeal and in any event need not be determined. 33In my respectful opinion, the sentencing judge erred in finding that the applicant was "substantially involved in supply" so as to attract the putative requirement of the principle stated in Clark that the judge was bound to find exceptional circumstances before he could consider non-custodial options. Ground 1 is made out. 34Ground 2 is that the sentencing judge erred in failing to make a finding that the applicant was unlikely to reoffend. Whilst it would certainly have been open to his Honour to make that finding, I do not accept that the failure to do so can be said to have entailed error. This ground must be rejected. 35Ground 3 is that the sentencing judge failed to give sufficient weight to the applicant's subjective features. This ground must also fail, in my view. As noted on behalf of the Crown, a ground that alleges the giving of insufficient weight to one or other of the many factors to be taken into account on sentence implicitly acknowledges that some weight was given to that issue. In that circumstance, it is difficult to establish error. 36Ground 4 is that the sentence imposed was unduly harsh and severe. But for the establishment of specific error in ground 1, although the sentence was stern, I would not have been persuaded that it was manifestly excessive. 37However, specific error has been established in ground 1. The High Court recently explained the role of this Court in that circumstance, which is "to exercise the discretion afresh: Kentwell v R [2014] HCA 37 at [38]. The High Court said: "A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence." 38In my view, this was a case in which it was well open to consider non-custodial options. It is the applicant's first criminal offence. He is a relatively young man with strong family support. He has a history of good education and regular employment which faltered only after a serious, painful and debilitating industrial accident. Unfortunately, the consequences of that very accident appear to mean that he is "ineligible", although suitable, for community service. But for that constraint, I would have referred him for assessment for an Intensive Correction Order before proceeding to sentence: see s 69 of the Crimes (Sentencing Procedure) Act 1999. However, it seems likely that the same difficulty would arise. 39In Kentwell, the High Court stated (at [43]), "after having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law." 40Since the sentence hearing, the applicant has served almost 7 months of the custodial sentence imposed at first instance. Having regard to the apparent likelihood that he would not be eligible for the community service component of an ICO even if assessed suitable for such an order, I consider that the appropriate sentence is a short term of imprisonment which will enable him to be released on parole almost immediately subject to the conditions specified by the sentencing judge. 41The orders I propose are: (1)That leave to appeal be granted. (2)That the appeal be allowed. (3)That the sentence passed at first instance be quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole period of 7 months commencing on 1 May 2014 and expiring on 30 November 2014 and a balance of term of 5 months expiring on 30 April 2015. (4)In accordance with s 50 of the Crimes (Sentencing Procedure) Act, an order directing that the applicant be released on parole on 30 November 2014, subject to the supervision of the community corrections service, to obey all reasonable directions in respect of treatment and counselling in respect of the consumption of alcohol and prohibited drugs, such supervision to include random urinalysis in respect of prohibited drugs. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2014