Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abdul-Hamid v R [2016] NSWCCA 118 Hearing dates: 18 May 2016 Decision date: 21 June 2016 Before: Basten JA at [1] Schmidt J at [2] Wilson J at [3] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW – appeal against sentence – knowingly take part in the supply of a prohibited drug – question of objective gravity of offence – asserted error in fact finding at sentence following trial – question of applicant's knowledge of quantity of prohibited drug – question of his role compared to that of a co-offender Legislation Cited: Criminal Procedure Act 1986 (NSW), s 16(1) Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29 Evidence Act 1995 (NSW), s 38 Cases Cited: DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R 555 Mulato v R [2006] NSWCCA 282 R v Dossi (1918) 13 Cr App R 158 R v Isaacs (1997) 41 NSWLR 374 R v VHP (1997) 4 Crim LN 44 Category: Principal judgment Parties: Feras Abdul-Hamid (Applicant) Crown (Respondent) Representation: Counsel: Mr P Lange (Applicant) Mr H Baker (Respondent) Solicitors: Lawyerscorp (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/00256546 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 5 June 2015 Before: Arnott SC DCJ File Number(s): 2013/00256546 Judgment 1. BASTEN JA: I agree with Wilson J that the Court should refuse leave to appeal against the sentence imposed in the District Court on 5 June 2015. 2. SCHMIDT J: I agree with Wilson J. 3. WILSON J: On 5 February 2015 the applicant was arraigned before his Honour Judge Arnott SC, sitting without a jury, upon an indictment charging him with an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) that, between 17 and 18 July 2013 [1] at Narwee in this State, he knowingly took part in the supply of a prohibited drug, being methylamphetamine. Section 29 of that Act was relied upon by the Crown in proof of the charge. 4. The applicant entered a plea of not guilty. On 11 February 2015 at the conclusion of the trial, his Honour returned a verdict of guilty. The offence of which the applicant was found guilty carries a maximum penalty of 15 years imprisonment, a fine of 2000 penalty units, or both. 5. The applicant was convicted on 5 June 2015 and a sentence of imprisonment for 5 years was imposed upon him. The sentence commenced on 11 December 2014 and expires on 10 December 2019; a non-parole period of 3 years imprisonment was fixed, which expires on 10 December 2017. 6. The applicant seeks to appeal against that sentence. He advances a single ground: 1. "The learned sentencing judge erred in the assessment of objective gravity of the offence, in particular by finding that: 1. The applicant knew the quantity of drugs, which were to be purchased by Ibrahim; and 2. The applicant played a more significant role than Ibrahim." 1. There is no appeal against conviction. The Facts of the Applicant's Crime 1. The matter having proceeded as a trial, it was for the sentencing judge to find the facts of the applicant's crime consistent with the verdict: R v Isaacs (1997) 41 NSWLR 374. Some of the facts of the offence were not in dispute. His Honour found the facts against the applicant as follows. 2. In July 2013 a police operation investigating the supply of prohibited drugs in the Wollongong area was underway. A number of warrants were obtained to permit the police to intercept various telephone services. In the course of that electronic surveillance, conversations between the applicant and his co-offender, Ali Ibrahim, were monitored. 3. Shortly before 4 pm on 17 July 2013, a telephone call between the applicant and Ibrahim was intercepted in which the applicant inquired of Ibrahim in an angry and impatient tone why he was "playing games." He told his co-offender that he was waiting for him at a park in Wollongong. Soon after that call, Ibrahim was observed to leave his home and drive towards Wollongong. 4. There were further telephone exchanges between the two as to the applicant's precise location. The applicant was waiting for Ibrahim in his car parked near a Wollongong park. Ibrahim left the vehicle he had travelled in and joined the applicant in his car. He remained in the applicant's car for about five minutes. 5. When he got out of the car he was seen by police, who were conducting surveillance of the pair, to place a white coloured package down the front of his pants. He returned to his car and drove home. There was no dispute at trial that the package contained money, although there was a dispute as to whether the applicant had given the package to Ibrahim and how much money it contained. The sentencing judge concluded that the package contained money, and that the applicant had given it to Ibrahim in a brief exchange in his car. His Honour was not able to determine whether the applicant supplied the whole of the monies used the following day to purchase drugs or only a part of it, nor was he able to conclude the amount of money involved. 6. The following day, 18 July 2013, there were a number of telephone calls between the applicant and Ibrahim. In one call shortly before 9.30am the applicant demanded that Ibrahim come to his house immediately ("Oy, come to my house right now bro'"), and Ibrahim said he would. The applicant, speaking in Arabic, told him, "Okay, come and bring the other thing." 7. Soon after, Ibrahim left his home and travelled as a passenger in a car driven by his cousin to the applicant's house. He went inside and remained there for a matter of minutes. 8. On leaving, Ibrahim was driven by his cousin to Narwee where he collected a package containing methylamphetamine from another person. On the return journey he became concerned that he was being followed by undercover police officers and threw the package of drugs from the car window at a location in Narwee. 9. A short distance away Ibrahim got out of the car, which drove off, and walked back to look for the package. Having found it, he secreted it under the fence of a house. He was observed by surveillance police as these events unfolded. 10. The co-offender walked around the streets of Narwee for almost an hour before being picked up by his cousin and driven to Arncliffe. At Arncliffe, Ibrahim left the car and went to a hairdressing salon. From that location he made a number of telephone calls (using the salon phone) to the applicant. In one call, partly in English and partly in Arabic, Ibrahim told the applicant, "The police have followed me three cars." The applicant asked him what he did and Ibrahim replied: "I threw it and when I'm fuckin' [unintelligible] jumped out of the car. They've been following me all day. […] I threw it in a house but it's kind of covered but not covered, you know what I mean." 1. When Ibrahim asked the accused, "How am I going to get it," the applicant responded: "Ah, now you will go and think of something, you know what I mean?" 1. Further discussions followed about the recovery of the package with the applicant telling Ibrahim he would use a different car and go to Narwee. In a call at 1.03pm he asked of the co-offender, "Tell me, is it, is it hidden well or not?" Soon after he told Ibrahim he would not come to Narwee as "we're gonna get done if I come up." 2. The package was retrieved by police around 4.30 that afternoon. It contained two smaller packages of methylamphetamine, one of which contained 27.9 grams with a purity of 9.5%, and another which contained 139.9 grams with a purity of 73%. The sentencing judge found that the applicant was aware of the amount of methylamphetamine deposited by the co-offender in Narwee. 3. On 23 August 2013 a search warrant was executed at the applicant's Berkeley home. A sum of $1600 in cash was found with two identification cards in the applicant's name, and a notebook ledger with a number of entries consistent with a "tick" book, being a list of monies owed for drugs supplied. 4. Two devices designed to detect electronic signals or intercept devices were found, together with a further item consistent in appearance with a tick list, and another sum of $615 in cash in a wallet belonging to the applicant. Two sets of digital scales and a quantity of resealable plastic bags were also located. 5. The mobile phone service used by the applicant in calls with Ibrahim had been connected about two weeks before these events, and was registered to a false address in a different name. Other Evidence before the Sentencing Judge 1. Since the focus of the proposed appeal is on the facts found by the sentencing judge and the assessment of the objective gravity of the offence, it is unnecessary to give more than brief details of other evidence considered by his Honour in imposing sentence upon the applicant. 2. The applicant was 31 years old at the time of the commission of the offence and 33 when he appeared for sentence. 3. His criminal history commenced in 2000 and contained entries for driving offences, drug offences and offences of dishonesty. Of particular relevance, in 2006 the applicant was sentenced for an offence of possess prohibited drug. In 2008 he was sentenced to a term of imprisonment for supplying a prohibited drug. There was another offence of possess prohibited drug, in respect of which the applicant was placed on a bond for 12 months on 30 July 2013. The applicant had been on bail for this offence at the time he committed the present offence. 4. A number of offences of receiving were dealt with in May 2014 in the District Court by way of suspended sentences of imprisonment and community service orders and, in August 2014 the applicant was sentenced to a further term of imprisonment for 20 months with a non-parole period of 8 months for a supply offence. He had served the non-parole period of that sentence when he appeared before his Honour in relation to this matter. 5. A pre-sentence report prepared for an earlier sentence matter (in August 2014) set out the applicant's personal circumstances, noting that the applicant grew up in a stable and supportive environment and had been married for some four years as at mid-2014. To the author of the pre-sentence report, the applicant presented as having little insight into his drug use or offending behaviour. He was assessed as having a medium level risk of re-offending. The applicant's dependency on illicit drugs was identified as his principal challenge. 6. Information as to the applicant's health and mental state was also before his Honour. That evidence indicated that the applicant suffered from sleep apnoea and diabetes, and had a substance abuse disorder with some depressive symptoms. 7. The co-offender was sentenced on 3 October 2013 having pleaded guilty to supplying a prohibited drug and another unrelated offence. For the offence in common with the applicant, he was sentenced to imprisonment for 28 months with a non–parole period of 14 months. Ibrahim was given the benefit of a 25% reduction on the sentence that would otherwise have been imposed in recognition of the utilitarian value of his early plea, and a finding of special circumstances. The Application for Leave to Appeal 1. As noted, the applicant's complaint against the sentence imposed upon him is confined to asserting error by the sentencing judge in the fact finding exercise. 2. The proposed ground asserts that his Honour erred in finding that the applicant knew the quantity of drugs which were to be purchased by Ibrahim, and in concluding that the applicant played a more significant role than his co-offender. 3. The applicant's task in making good that complaint is a difficult one. 4. Firstly, as the applicant conceded in his written submissions to this Court, the assessment of the objective seriousness of an offence is a matter very much for the sentencing judge. In Mulato v R [2006] NSWCCA 282, Spigelman CJ said, at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 1. Here, the sentencing judge had the significant advantage over this Court of having heard the applicant's trial. His Honour heard evidence called from witnesses including the applicant and the co-offender (who was cross-examined by the Crown with leave pursuant to s 38 of the Evidence Act 1995 (NSW)) and, of particular importance, the telephone intercepts that were played to the court at trial. His Honour was able to consider and assess the tone of voice and manner of speech used by the applicant and the co-offender during relevant calls, and it is apparent that those aspects of the evidence, opaque to this Court, significantly informed his Honour's factual findings. 2. In concluding that the applicant was aware of the quantity of drug to be collected by Ibrahim in Narwee, and in finding that the applicant's role was greater than that of his co-offender, his Honour drew inferences from the whole of the evidence before him and from the presentation before him of the applicant and Ibrahim in evidence as witnesses. 3. His Honour referred to the tone of authority and command used by the applicant in his telephone discussions with the co-offender, such as in the calls of 17 July 2013 when demanding that Ibrahim meet him immediately, and those of 18 July 2013, ("Oy, come to my house right now, bro"). 4. The meeting of 17 July 2013 (of very brief duration) was held not at the home of either man but in a car, at a park. Having regard to all of the circumstances of the meeting, the sentencing judge concluded that the applicant was in control of the situation and the meeting was for the purpose of the applicant providing some or all of the funds to make the following day's purchase of methylamphetamine. Provision of funds for the purchase was a feature his Honour was entitled to rely upon to infer a greater role for the applicant. 5. After the drugs had been discarded on 18 July 2013 and thereafter hidden by the co-offender, the applicant referred to the discarded object in conversation with Ibrahim as "it" without need for explanation or clarification. He chastised Ibrahim that he had "fucked up" and reminded him that the "number one rule is to come straight home. Don't go driving around man." 6. The applicant's concern about using a different car to come to Narwee, his anxiety to retrieve the package without inquiry as to its contents or size, and his caution about the possibility of "getting done," all bespeak knowledge of the contents of the package, and it was open to his Honour to so find. The actual finding, "that the offender understood the amount of drug Ibrahim was purchasing" (Judgment, p 6), was not precise as to quantity. 7. That assessment was additionally informed by the evidence of the drug connected items – cash, digital scales, resealable plastic bags, likely tick lists - found at the applicant's home by police the following month, and by the evidence of the false subscriber details of the mobile telephone used by the applicant. 8. Having considered the evidence relied upon by the sentencing judge in reaching the factual findings he made, I consider that it was entirely open to his Honour to find that the applicant was aware of the quantity of the drug to be collected at Narwee, and that his role was greater than that of his co-offender, in that he supplied at least part of the purchase monies and was able to direct the co-offender. 9. That conclusion is supported by the second feature which adds to the applicant's task in persuading this Court otherwise, and that is the concession he appears to have made as to the facts during the sentence proceedings. 10. During the proceedings on sentence of 20 March 2015, the Crown sought to tender a summary of the facts it contended had been established at trial. Referring to that summary, counsel for the applicant (not the counsel who appeared in this Court) said: "I note that my friend has very helpfully prepared a summary of the facts in relation to the trial." (AB 80; T2:11) 1. It is apparent that the applicant through his counsel not only took no issue with the Crown's statement of facts, but embraced the document as helpful. 2. The statement of facts referred to the applicant using language of command when speaking with the applicant (pars [3] and [4] for example), and said explicitly that the package the co-offender was seen to put into his pants after meeting the applicant "contained a quantity of cash to be used for the purchase of prohibited drugs the following day" (at par [8]). 3. Control of the funds used to purchase prohibited drugs is a feature indicative of both knowledge of what was being purchased (its nature and quantity) and of a superior role to that of Ibrahim. 4. Having reached the conclusions he did as to these features of the facts, the sentencing judge referred to them and to the quantity and purity of the drugs, the planned nature of the offence, and its commercial nature, in determining that a sentence of 5 years imprisonment with a non-parole period of 3 years (special circumstances having been found) was required to adequately reflect the objective gravity of the applicant's crime. Conclusion 1. In my view, it was well open to his Honour to find the facts as he did, and to assess the objective gravity of the applicant's offence having regard to the facts as he found them to be. 2. The applicant has failed to make good the proposed ground of appeal. 3. I would not grant leave to him to advance it. ********** Endnote 1. The indictment avers that the offence occurred between 17 July 2013 and 18 July 2013, a timeframe that does not exist. This appears to be an error. The Crown case was that the offence was committed over both of those dates, rather than between them. The point was not taken at trial, and nor was it raised by the parties before this Court. Nothing turns on the mis-statement as to date and, since time was not of the essence in proof of the offence, and the actual dates of the offence were clearly established on the evidence, the error does not vitiate the indictment or invalidate the conviction: see generally s 16(1) of the Criminal Procedure Act 1986 (NSW); R v Dossi (1918) 13 Cr App R 158; R v VHP (1997) 4 Crim LN 44; DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R 555. 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: 21 June 2016