Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Pak v R [2015] NSWCCA 45 Hearing dates: 23 March 2015 Date of orders: 27 March 2015 Decision date: 27 March 2015 Before: R A Hulme J at [1] Davies J at [2] Bellew J at [44] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentencing – supply of prohibited drugs – two offences - whether applicant involved in trafficking to a substantial degree – decision based not solely on quantity of drugs but other indicia of supply – whether decision open to sentencing judge – whether sentence manifestly excessive – no exceptional circumstances where finding of trafficking to a substantial degree - sentences entirely concurrent – appeal dismissed Cases Cited: House v The King (1936) 55 CLR 499 Kendall v R [2015] NSWCCA 13 R v Gu [2006] NSWCCA 104 Youssef v R [2014] NSWCCA 285 Category: Principal judgment Parties: Mohammad Baghir Haidari Pak (Applicant) Crown (Respondent) Representation: Counsel: M Avenall (Applicant) N Williams (Crown) Solicitors: Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/287362 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 24 July 2014 Before: Lerve DCJ File Number(s): 2012/287362 Judgment 1. R A HULME J: I agree with Davies J. 2. DAVIES J: On 6 February 2014 the Applicant pleaded guilty to two offences as follows: Count 1: Supply a prohibited drug namely 6.17g of N,N dimethylamphetamine. Count 2: Supply a prohibited drug namely 6.48g of amphetamine. 1. The maximum penalty for each offence was 15 years imprisonment. 2. Three offences were included on a s 166 Certificate as follows: 1. Possess prohibited drug being 10mg of methadone; 2. Possess prohibited drug being 5.74g of opium; and 3. Drive under the influence of drugs. 1. He was sentenced by Judge Lerve in the District Court on 24 July 2014 as follows: Counts 1 and 2: On each count a non-parole period of 12 months commencing 22 July 2014 and expiring 21 July 2015 with an additional term of 9 months expiring 21 April 2016. On each of the two charges of possess a prohibited drug, a fixed term of 2 months commencing 24 July 2014 and expiring 23 September 2014. In respect of driving under the influence of drugs, a fine of $200 and a disqualification of 12 months. 1. The Applicant now seeks leave to appeal from the sentence imposed on two grounds: Ground 1: Lerve DCJ erred in finding Mr Haidari Pak was "involved in trafficking … involved to a substantial degree"; Ground 2: The sentences were manifestly excessive. Facts 1. The police observed the Applicant driving erratically and required him to stop his vehicle. He complained of back pain. He was disoriented, his eyes were glazed and watery. He was subjected to a road side breath test which returned a negative result. 2. He was asked where he was going but he could not provide a clear answer. The police therefore conducted a search of him and the vehicle. They found four empty packets of Oxycontin. Each had been prescribed by a different doctor within the previous month. They also found ten Physeptone Methadone tablets and a blister pack of four Oxycontin tablets. He was asked about the Physeptone Methadone. He said that he got them from a friend and that he took two tablets day. He refused to name the friend. 3. The Applicant was placed under arrest and cautioned for possession of prohibited drugs. The Applicant was taken to the Auburn Police Station where he was entered into custody. 4. Because of the manner of his driving, his appearance, demeanour and behaviour, he was then taken to Auburn Hospital where blood and urine were obtained. Subsequent testing of his blood and urine revealed the following substances in his blood and urine: 1. (a) 0.004mg/L of Alprazolam; 2. (b) 0.02mg/L of Amphetamine; 3. (c) 0.08mg/L of Methylamphetamine; 4. (d) 0.03mg/l of Oxycodone; 5. (e) 0.04mg/L of Methadone. 1. A search warrant was applied for to search the Applicant's home address. During the execution of the warrant, the police located and seized: a. Drug scales, a glass pipe for smoking drugs and a portable gas burner b. A blank prescription c. Numerous empty resealable plastic bags d. A plastic specimen container containing clear crystal rock e. 1 clear plastic bag containing foil and a smaller clear plastic bag containing white powder f. 4 small resealable bags containing clear crystals g. 1 small resealable bag containing white powder h. 1 resealable bag with 6 resealable bags containing black liquid substance. i. A small exercise book containing the contact numbers and addresses for several doctors along with a page of names, addresses, dates and quantity of tablets recorded. 1. All of the above drugs were located in the lounge room in the centre of the floor. The plastic bag containing the drugs was next to two other plastic bags containing numerous packets of medication in the Applicant's name. The drugs were also next to a gas burner that was lined with foil. There were numerous plastic resealable bags present. 2. Subsequent analysis revealed that the above bags contained: a. 6.48 grams of amphetamine in 7 separate plastic bags or containers (Count 2 - Supply Prohibited Drug - 6.48g of amphetamine) b. 5.74 grams of opium in 6 resealable plastic bags (S166 Offence - Seq 005 - Possess prohibited drug - 5.74g of opium) and c. 6.17 grams of N,N-dimethylamphetamine in a resealable plastic bag (Count 1 - Supply prohibited drug - 6.17g of N,N- dimethylamphetamine). 1. The Applicant was subsequently charged with the offences of supplying prohibited drugs. Remarks on Sentence 1. Judge Lerve said that as with any charge in relation to the supply of prohibited drugs, the issue that fell to be determined was whether the Court was satisfied beyond reasonable doubt that the offender was trafficking to a substantial degree. The Applicant had submitted that, given the small quantity of the drugs, it could be found that the Applicant was involved to a very small degree at street level. 2. The Sentencing Judge noted that the quantities of the drug involved were only slightly more than the indictable quantity and about twice the trafficable quantity. His Honour said that if it were merely the quantity of the drugs, he would not be able to find beyond reasonable doubt that the offender was involved in trafficking to a substantial degree. 3. The Sentencing Judge went on to note, however, the other items that were found which he enumerated as scales, a blank prescription, numerous empty resealable bags, the container containing clear crystal rock, a plastic bag containing foil and a smaller clear plastic bag containing white powder, four resealable bags containing clear crystals, one small resealable bag containing white powder, one resealable bag with six resealable bags containing a black liquid. 4. By reason of those matters his Honour said that he was satisfied beyond reasonable doubt that the Applicant was involved in an enterprise that envisaged supply on more than one occasion and when those matters were taken into account with the quantity of the drugs, he was satisfied beyond reasonable doubt that the Applicant was involved in trafficking to a substantial degree. Subjective factors 1. No evidence was called by or on behalf of the Applicant and the only information concerning him was obtained from the pre-sentence report. 2. The Applicant was 58 years of age at the time of the offending. The report disclosed that he had migrated to Australia in 2004 after absconding from custody in Iran due to political issues. 3. At the time of the offending he was unemployed and had been since 2004. He was receiving the disability pension, it would seem, because of a disc problem in his lower back. 4. The Applicant lived with his second wife and a son and had a daughter from a previous marriage who resided with her mother. 5. The pre-sentence report referred to a letter from the Applicant's psychiatrist indicating that the Applicant had been diagnosed with depression, insomnia and anxiety disorder. The Sentencing Judge noted that the letter from the psychiatrist was not put before him at the sentencing hearing. 6. In addition, the Sentencing Judge found that the Applicant had a driving record that entitled him to no particular leniency as far as the offence of driving under the influence of drugs was concerned. There were no offences apart from driving offences on his record. Ground 1: Finding that the Applicant was involved to a substantial degree in trafficking 1. The Applicant submitted that, given the quantity of drugs did not prove trafficking to a substantial degree, the other indicia were not of a quality such as to elevate the Applicant's supplying to that level beyond reasonable doubt. The Applicant submitted that the finding was of significance to the sentencing process because, absent exceptional circumstances, the Sentencing Judge considered himself compelled by authority to impose a sentence of full-time imprisonment. 2. The Applicant noted that the Sentencing Judge ignored the exercise book because that simply recorded the doctors from whom the Applicant obtained prescription drugs. The Applicant submitted that the glass pipe was for personal use and suggested that the scales and the resealable plastic bags may have been for the Applicant's own use but accepted that they could be used in connection with supply. 3. The Applicant submitted that the position in the present matter was similar to that in Youssef v R [2014] NSWCCA 285. In that case the applicant had been stopped by police for the manner of his driving. He was asked if he used illegal drugs and he said "I use cocaine". Police 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. 4. The applicant in that case asserted that he had the drugs for the purposes of a party the following evening. McCallum J (with whom Simpson and Price JJ agreed) held at [29] and [33] that it was not open to the sentencing judge to be satisfied beyond reasonable doubt that the applicant was substantially involved in supply. 5. It does not seem to me that Youssef assists the present Applicant. A determination of whether an offender is substantially involved in supply is ultimately a question of fact in each case. The Applicant would need to demonstrate, as he accepted, that the finding beyond reasonable doubt was not open to the Sentencing Judge. 6. The amount of cocaine in Youssef may have exceeded the amounts of the drugs in the present case but there were no other indicia of supply as there are in the present case. Although the Sentencing Judge said that if he were only concerned with the quantity of the drugs he would not be able to make the finding beyond reasonable doubt, here there were three different drugs and a number of indicia of supply. It cannot be said, in those circumstances, that the finding was not open to his Honour. 7. It is not sufficient that this Court might have come to a different conclusion or have made a different finding in that regard. The matter was one for the Sentencing Judge and it has not been shown that he has gone about his task in any erroneous way. Indeed, there was ample basis for the conclusion he reached for the reasons he gave. 8. I would reject this ground of appeal. Ground 2: The sentences are manifestly excessive 1. The Applicant in his written submissions argued that, apart from the finding that the Applicant was trafficking to a substantial degree, the Sentencing Judge did not make an express finding about the objective seriousness of the offences. He submitted that the quantities of drugs were small, being about twice the trafficable quantity and just over the indictable quantity. The evidence was said to suggest a low-level, unsophisticated supply with no evidence of actual supply. There should have been a finding, it was submitted, of low objective seriousness. 2. The Applicant pointed also to the subjective matters which have been mentioned earlier. The Applicant submitted that when the objective seriousness and the subjective factors were taken into account, the sentences should have been towards the bottom of the range but were not. 3. The Applicant, although noting this Court's repeated warning about statistics, submitted that the statistics showed that of all offenders only 53% were sentenced to full-time imprisonment. For those the head sentences ranged between about 6 months and five to six years with the mid-point being at about two years. The non-parole period ranged between about six months and three years six months, with the mid-point at about 12 months. 4. The Applicant said that the statistics showed further that for offenders like the Applicant who had no prior criminal history and pleaded guilty only 29% were sentenced to full-time imprisonment with head sentences ranging between 12 months and four years six months to six years with the mid-point at about two years. The non-parole periods ranged between six months and two years six months with a mid-point at about 12 months. About 30% in each group were said to have received suspended sentences. 5. The Sentencing Judge accorded a discount of 12.5% for the utilitarian value of a plea shortly before the trial was listed to start. That meant that the starting point for the sentences imposed was a sentence of two years imprisonment. 6. His Honour made the sentences entirely concurrent and found special circumstances to a significant degree with the non-parole period representing approximately 57% of the total sentence. The two drug offences on the s 166 Certificate were made entirely concurrent. 7. His Honour had almost no subjective material on the part of the Applicant, no evidence of remorse apart from the plea nor any evidence suggesting good prospects of rehabilitation or that he was unlikely to reoffend. 8. In Kendall v R [2015] NSWCCA 13 Hoeben CJ at CL (with whom Johnson and Hamill JJ agreed) said: [47] As has been often stated by this Court "to establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust". This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge." (Vuni v R [2006] NSWCCA 171 at [33].) 1. Although the Sentencing Judge did not make a finding of objective seriousness, the starting point for the sentences imposed when viewed against the maximum penalty and even the sentences relied upon from the statistics, suggests that his Honour considered the offending was at a relatively low level of seriousness. However, the finding that the Applicant was substantially involved in supply meant that, unless there were exceptional circumstances, a fulltime custodial sentence would ordinarily be imposed: R v Gu [2006] NSWCCA 104 at [27]. 2. When all of the sentences for drug offences were to be served concurrently and where there was a substantial reduction in the non-parole period, it cannot be said that the sentences imposed are reflective of any error of a House v The King (1936) 55 CLR 499 type. The sentence both as to its non-parole period and total sentence is consistent with the ranges that the statistics disclose. I would reject this ground of appeal. Conclusion 1. I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed. 1. BELLEW J: I agree with Davies J. ********** 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: 27 March 2015