Tamer v R

1. [1]

   BRERETON JA: I agree with Bellew J.

2. [2]

   BELLEW J: Ayman Tamer (the applicant) pleaded guilty to an indictment presented against him in the District Court in the following terms: [1]

3. [3]

   That offending is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of life imprisonment. A standard non-parole period of 15 years’ imprisonment is prescribed.

4. [4]

   The applicant also asked the sentencing judge to take into account the following additional matters on a Form 1:

5. [5]

   On 13 December 2019 the applicant was sentenced to imprisonment for 7 years and 10 months with a non-parole period of 4 years and 9 months.

6. [6]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully discussed below.

THE FACTS OF THE OFFENDING

1. [7]

   On 29 November 2016 police commenced the lawful interception of a telephone used by the applicant, from it which became clear that he was in regular contact with a co-offender, Somphop Khetkan (Khetkan) to whom (along with other persons) he was supplying methylamphetamine. [2]

2. [8]

   The applicant's modus operandi [3] was that a prospective drug purchaser would contact him via a telephone call or text message in the course of which the amount of the drug to be supplied (referred to in code), and the price, would be discussed. The purchaser would then attend a location nominated by the applicant where the supply would take place. There were some occasions on which the applicant attended a purchaser's residence to conduct the transaction. The applicant charged between $3,100.00 and $3,800.00 per ounce of methylamphetamine.

3. [9]

   The applicant’s offending encompassed 22 separate occasions between 3 December 2016 and 23 February 2017 on which he supplied quantities of methylamphetamine totalling 1,060g. [4] The total financial benefit from the sale of the methylamphetamine during the period was approximately $137,000.00. [5]

4. [10]

   The majority of matters on the Form 1 were of a generally similar nature, and involved the applicant’s supply of prohibited drugs to Khetkan as well as to an undercover operative. [6]

5. [11]

   When the applicant was arrested he made partial admissions in an electronically recorded interview but did not reveal the entirety of the nature and extent of his drug supply activities. [7] He significantly understated the occasions on which he had supplied methylamphetamine and told police that he did not make any money from those activities. [8]

The evidence on sentence

1. [12]

   The applicant was born on 1 November 1995. [9] He was therefore 21 years of age at the time of the offending, and 24 years of age at the time of sentence.

2. [13]

   On 15 April 2016 the applicant appeared before the Bankstown Local Court in respect of a charge of driving whilst disqualified. He was released on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act (1999) (NSW) (the Sentencing Act) for a period of 18 months. The offending to which the applicant pleaded guilty before the District Court was therefore committed within the period of that bond. [10]

The reasons of the sentencing judge

1. [14]

   In sentencing the applicant, his Honour said the following: [11]

2. [15]

   Subsequently, his Honour said: [12]

Submissions of the applicant

1. [16]

   It was accepted on behalf of the applicant that he was subject to the s 9 bond at the time of this offending. However, counsel for the applicant pointed out that it was in fact Khetkan who was on bail at the time of his offending, and not the applicant. [13] It was submitted that in taking into account, as an aggravating circumstance, that the applicant was on bail at the time of his offending, his Honour had erred.

2. [17]

   Counsel for the applicant further submitted that his Honour had erred in stating that the applicant was aged 23 at the time of the offending, when he was in fact aged 21.

Submissions of the Crown

1. [18]

   The Crown accepted that the sentencing judge had erred in each of the respects relied upon by the applicant. However, the Crown submitted that the error in relation to the applicant's age was immaterial, and did not have the capacity to influence the exercise of the sentencing discretion. The Crown also pointed out that the conclusion of the sentencing judge that the applicant was subject to a bond at the time of his offending was clearly correct.

2. [19]

   Nonetheless, the Crown accepted that in all of the circumstances it would be open to this Court to conclude that the erroneous finding that the applicant was on bail at the time of the offending had the capacity to influence the exercise of the sentencing judge’s sentencing discretion.

Consideration

1. [20]

   The issue raised by this ground is whether either of the identified errors had the capacity to influence the sentence which was imposed. [14] Whilst I have some doubt as to whether the error as to the applicant’s age had that capacity, it is not necessary for me to express any final view in relation to that issue. The conclusion of the sentencing judge that the applicant was on bail at the time of the offending was clearly an error. That error not only had the capacity to influence the sentence, it did so. So much is clear from the fact that the sentencing judge took it into account as an aggravating factor. [15]

2. [21]

   It follows that this ground has been made out, as a consequence of which it is necessary for this Court to re-sentence the applicant in the fresh exercise of the sentencing discretion. In these circumstances it is not necessary to consider the second ground of appeal, namely that the sentence imposed was manifestly excessive. To the extent that the parties made submissions in support of their respective positions on that ground, I have taken those submissions into account in re-sentencing the applicant.

The objective seriousness of the offending

1. [22]

   The maximum penalty for this offending, and the prescribed standard non-parole period, represent important sentencing yardsticks. They are a reflection of the seriousness with which offending of this kind is viewed by the Parliament.

2. [23]

   Put simply, the applicant was part of a planned and well-organised system of drug supply in which he played a pivotal role. Without the applicant performing that role, the system of supply could not have been put into effect. The consequence of the applicant’s offending was that more than twice the large commercial quantity of methylamphetamine was released into the community over a significant period of time. The amount of money derived from the offending was also significant, although I accept that there is no evidence of how much of that money was retained by the applicant, as opposed to being passed on to others.

3. [24]

   As against that, the supplies made, though repeated, were predominantly, if not exclusively, to a single purchaser. Although, when accumulated, they amount to more than twice the large commercial quantity, they are far from the very large quantities captured at the upper end of the scale of this offence. The applicant appears to have been an intermediary, towards the lower end of the supply chain. In all of those circumstances, the offending, while of considerable gravity, was below the mid-range for this offence when one has regard to the very much more serious offending that it also captures.

4. [25]

   A report of Dr Richard Furst, Forensic Psychiatrist, was tendered before the sentencing judge without objection. The majority of information pertaining to the applicant's background is drawn from that report.

5. [26]

   The applicant was 21 years of age at the time of his offending. He is now 25 years of age.

6. [27]

   The applicant was educated to year 12. He commenced smoking cannabis at the age of 15 and reported to Dr Furst that he had developed a heavy drinking habit, and a cocaine habit, around the age of 18 to 19 which continued to the time of his offending. [16] As a consequence of his drug and alcohol abuse, the applicant did not work between the time he left school and the time of his arrest. [17]

7. [28]

   The applicant told Dr Furst and that his addiction to drugs resulted in his leaving home prematurely and becoming estranged from family, following which he began to sell drugs to support his addiction. [18] The applicant also told Dr Furst that he progressively became involved with “more serious people" which led to his offending. [19] He told Dr Furst that he regretted his actions which he described as “ugly”, and acknowledged that he had “harmed everyone” including himself. [20] The applicant described his incarceration as the “worst thing that had ever happened to [him]”. [21]

8. [29]

   Dr Furst was asked to specifically consider the issue of the applicant's vulnerability in light of his age and the people with whom he was associating at the time of the offending, and to assess any impact this would have had on the applicant’s mental health. Dr Furst expressed the view that the applicant's drug addiction and social circumstances, including the estrangement from his family, were probably the main factors which contributed towards his ongoing drug use and related offending. [22] Notwithstanding the question that was asked of him, Dr Furst made no specific comment about the applicant’s age, and expressed no view as to the existence of any causative link between the applicant's age and his offending.

9. [30]

   Dr Furst did not diagnose the applicant as suffering from any specific mental disorder or mental illness at the time of the offending, other than his substance abuse disorder constituted by his addiction to cocaine and alcohol. [23] He expressed the view that the applicant regretted his actions, that he had taken responsibility for them, and that he was remorseful. [24]

10. [31]

    Dr Furst assessed the applicant's risk of re-offending as moderate and considered that future treatment needs would include structured drug and alcohol counselling, and associated rehabilitation to address his addiction. [25] He described the applicant's expressions of commitment to engage in structured drug and alcohol counselling and rehabilitation as “encouraging", and expressed the view that the applicant had reasonable prospects of being successfully rehabilitated. [26]

11. [32]

    A sentencing assessment report of Kay Menemenios, Community Corrections Officer, dated 18 June 2019 was also tendered before the sentencing judge. In addressing the applicant's attitudes, Ms Menemenios said: [27]

12. [33]

    In terms of the applicant's insight into the impact of his offending, Ms Menemenios said: [28]

13. [34]

    The applicant swore an affidavit which was read in the sentence proceedings without objection. [29] The Crown in the court below did not seek to cross-examine the applicant on its contents. A letter written by the applicant was also tendered to the sentencing judge without objection by the Crown. [30]

14. [35]

    In his affidavit the applicant spoke about the difficulties he has experienced in custody. [31] He said that he had told the truth to Dr Furst and had done his best to accurately recall the chronology of events in his life when he spoke with him. [32]

15. [36]

    The applicant took specific issue with the observation of Ms Menemenios that he had failed to make a connection between his actions and what she described as a “negative ripple effect on the wider community". [33] In this regard the applicant said: [34]

16. [37]

    In his letter to the Court the applicant said (inter alia): [35]

17. [38]

    The applicant's mother provided a testimonial [36] in which she expressed her ongoing support for the applicant, and her view that he had “learnt his lesson" and was not likely to commit the offence again. Testimonials from Rajeevan Gnanendra [37] and Sahar Dib [38] expressed confidence in the applicant's successful rehabilitation.

18. [39]

    The applicant's criminal history dates back to 2014 when he was given the benefit of a Community Service Order for an offence of supplying a prohibited drug and dealing with property suspected to be the proceeds of crime. There are other counts of possessing a prohibited drug and numerous counts of driving whilst disqualified.

Consideration

1. [40]

   Consistent with the concession made by the Crown before the sentencing judge, [39] I propose to apply a discount of 25% to reflect the utilitarian value of the applicant’s plea of guilty.

2. [41]

   I have made reference to the applicant’s criminal history, which includes offences of a similar kind. Although that previous offending was far less serious, it remains the case that the applicant’s criminal history disentitles him to leniency.

3. [42]

   I am satisfied that the applicant is genuinely remorseful for his offending. His remorse is evident, not only from the fact of his plea but from his statements to Dr Furst, the contents of his affidavit and the contents of his accompanying letter. I accept that this Court has said on numerous occasions that untested statements made by offenders to third parties should be approached with considerable caution. [40] I also accept that this Court has expressed its disapproval of the practice of tendering statements made by an offender in the absence of any cross-examination on their contents. [41] However in the present case, the applicant swore an affidavit in which he said he told Dr Furst the truth, and in which he took issue with the conclusions expressed by Ms Menemenios as to his level of insight into his offending. When that affidavit was read, the Crown Prosecutor in the court below took no objection to it, and did not seek to cross-examine the applicant on its contents. He also took no objection to the tender of the applicant’s letter, and made no submission to the sentencing judge as to what weight ought to be attached to its contents. In circumstances where the applicant’s evidence of remorse is unchallenged, and in the absence of any other evidence which causes me to doubt its truthfulness, I accept it.

4. [43]

   The report of Dr Furst supports the conclusion that the applicant's prospects of rehabilitation are generally favourable and that his risk of re-offending is limited. Those prospects are dependent, at least in part, on the applicant's willingness to undertake appropriate rehabilitative programs to overcome his drug addiction. However I am satisfied in the light of the contents of his affidavit that he is committed in that respect. I am therefore satisfied that his prospects of rehabilitation are favourable and that he is at a generally low risk of reoffending. I am fortified in those views by the fact that the applicant is supported by his family and friends, in circumstances where Dr Furst expressed the view that his previous estrangement from his family contributed to his offending.

5. [44]

   The applicant's need for rehabilitation is such that he is likely to benefit from a longer period on parole. That justifies a finding of special circumstances and I propose to apply the same ratio as that applied by the sentencing judge, namely one of 60%.

6. [45]

   As I have previously noted, Dr Furst did not specifically address the issue of the applicant’s age in terms of the offending. There was no evidence before the sentencing judge, nor is there any evidence before this Court, which directly establishes any causal connection between the applicant’s youth and his offending. However, that is not to say that the applicant’s youth is an irrelevant consideration on sentence.

7. [46]

   The principles which apply to sentencing youthful offenders were cited by McClellan CJ at CL in KT v R [42] and may be summarised as follows:

8. [47]

   In BP v R [50] Hodgson JA accepted the correctness of those principles. In doing so, his Honour emphasised that Courts should not be “over-ready” to discount the relevance of an offender’s youth on the basis that the offender acted like an adult. [51] In the same case Johnson J, having set out the principles in KT, said: [52]

9. [48]

   Finally, in JM v R [53] Simpson J (as her Honour then was), having reviewed the authorities, said:

10. [49]

    As I have pointed out, there is no direct evidence that the applicant’s immaturity significantly contributed to his offending, in circumstances where such offending is properly regarded as adult-like. I accept that the applicant’s youth is a relevant factor on sentence and I have taken it into account. However in doing so, I am also mindful of the observations of Sully J in R v Mastronardi: [54]

11. [50]

    Finally, it is necessary to take into account the additional offences on the Form 1. All of those offences obviously stem from the applicant’s engagement in drug supply. Two of the offences relate to the supply of a further 168.6g of methylamphetamine. The maximum penalties for the offences on the Form 1 range from 3 years’ imprisonment to 15 years’ imprisonment. Those matters are of obvious significance. I have taken the additional offences on the Form 1 into account in accordance with the decision of this Court in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002. [55]

CONCLUSION

1. [51]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed in the District Court is quashed.

   4. (4)

      In lieu thereof, the applicant is sentenced to imprisonment for a period of 7 years and 6 months commencing on 17 March 2017 and ending on 16 September 2024.

   5. (5)

      I specify a non-parole period of 4 years and 6 months’ imprisonment commencing on 17 March 2017 and expiring on 16 September 2021.

2. [52]

   CAMPBELL J: I agree with Bellew J.