Vossos v R

1. [1]

   MACFARLAN JA: I agree with Bellew J

2. [2]

   R A HULME J: I agree with Bellew J.

3. [3]

   BELLEW J: Nicholas Vossos (“the applicant”) pleaded guilty before the District Court to two counts of supplying a prohibited drug, contrary to s. 21(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant asked the sentencing judge to take into account two further offences on a Form 1, namely:

4. [4]

   On 18 September 2015 the applicant was sentenced by His Honour Judge Colefax SC to an aggregate sentence of 5 years imprisonment, with a non-parole period of 3 years and 9 months. The applicant now seeks leave to appeal against that sentence.

THE FACTS

1. [5]

   The sentencing judge found the facts to be as follows (commencing at ROS 2):

2. [6]

   In March 2012, New South Wales Police attached to the Middle Eastern Organised Crime Squad started investigating the street level distribution of heroin by a drug syndicate operating in the south-west suburbs of Sydney.

3. [7]

   The main members of that syndicate were Mr Mark Younes, his brother Carlos Younes, Mr Vossos and Ms Melissa Pleasance (whom I sentenced on 24 October 2014). There were other people also involved.

4. [8]

   The group operated out of a granny flat connected with the premises at 44 Richmond Street, South Wentworthville. The Younes brothers' parents lived at that address in the main residence.

5. [9]

   Mr Carlos Younes and his brother also lived at the main premises at Richmond Street. Mr Vossos stayed at a number of places, including the granny flat to which I have just referred.

6. [10]

   The syndicate had a large and established client base. In the agreedstatement of facts concerning Mr Carlos Younes, it is agreed that his brother Mark managed the syndicate but that he (Mr Carlos Younes) from time-to-time provided direction to the other members, including whether to proceed with a supply, the price for the deal, the delivery location and who would make the delivery. In the statement of agreed facts for Mr Vossos, however, it is asserted that Messrs Mark and Carlos Younes "managed the syndicate and provided direction to the other members". However, those facts also assert that it was Mr Mark Younes who was prominently in charge. I do not regard the distinction as being a matter of material significance but I shall sentence each offender taking into account the relevant different version.

7. [11]

   Mr Vossos, in addition to his other functions in the syndicate, regularly took the role of "runner" and would deliver heroin to buyers at other locations using a motor vehicle.

8. [12]

   Each member of the syndicate, however, took orders for heroin through a mobile phone number and directed the relevant customer (or should I say victim) to a specified location for the exchange to occur. Taking orders involved negotiating about and agreeing and offering to supply heroin. Each syndicate member knew that the other members were performing this role; However the Crown does not allege that each syndicate member knew of the individual supply transactions carried out by the other members. This suggests that any hierarchical structure of the syndicate, subject to the slightly more dominant role of Mr Mark Younes, was not that pronounced - and that indeed a degree of autonomy was exercised by the individual members of the syndicate.

9. [13]

   The primary drop-off and exchange locations were: a large steel gate at the Richmond Street premises which was secured by padlocks, chains and barbed wire; a park at Pendle Hill; and public railway stations. I pause to observe that it is the participation in this criminal group which constitutes the matter on the Form 1 for Mr Younes and one of the two matters on the Form 1 for Mr Vossos. It was also the matter on the Form 1 which I took into account in sentencing Ms Pleasance.

10. [14]

    On 15 June 2012 Mr Mark Younes and Mr Vossos spoke on the telephone with an inmate at Emu Plains Women's Correctional Facility, Ms Bartholomew. She had made five telephone calls to the mobile phone connected with the syndicate. These telephone calls were recorded by the gaol officials. Ms Bartholomew asked Mr Younes and Mr Vossos to bring her some heroin, to which Mr Younes agreed. It was arranged that Mr Vossos and another female - not Ms Pleasance - would drive to the gaol and pass the heroin and some syringes to Ms Bartholomew through the boundary fence at night.

11. [15]

    Accordingly, on the evening of 15 June 2012 Mr Vossos and the other female travelled to the correctional facility. At about 10pm they met Ms Bartholomew and another inmate at the boundary fence and handed an unknown quantity of heroin and syringes to her through the fence. They left a short time later and returned to Richmond Street. This is the supply prohibited drug offence involving Mr Vossos.

12. [16]

    On 16 June 2012 a warrant was issued for the telephone interception of the mobile phone being used by the syndicate. The monitoring which then occurred disclosed hundreds of drug-related calls being made to that device each day.

13. [17]

    As a result, the police commenced both physical and electronic surveillance of 44 Richmond Street and the other locations to which the heroin was regularly delivered.

14. [18]

    Between 16 June and 25 July 2012 approximately 6,000 calls were made to and from the syndicate's mobile phone.

15. [19]

    As I have already said, members of the syndicate, including each of these offenders, entered into negotiations about, and agreements and offers for, the supply of heroin. Their customers were directed to one of the pick-up locations I have already identified. The average price paid by the customers for the heroin ranged from $30 to $1,200.

16. [20]

    In this period (16 June to 25 July 2012) Mr Younes supplied heroin on 90 separate occasions. The total quantity of the heroin supplied was 34.80 grams. This is the supply prohibited drug greater than the indictable quantity matter for Mr Younes.

17. [21]

    During the same period Mr Vossos supplied heroin on 50 separate occasions. The total quantity of the heroin supplied was not less than 12.60 grams. This is the supply prohibited drug greater than the indictable matter for Mr Vossos.

18. [22]

    And by way of comparison, Ms Pleasance (who was also sentenced for the same supply offence) engaged in supplying heroin on 75 occasions. The total quantity of the heroin supplied was not less than 28.80 grams.

19. [23]

    On 25 July 2012 police went to the Richmond Street premises. The side gate was secured in the usual manner with a padlock, chains and barbed wire. Mr Mark Younes, Mr Vossos and Ms Pleasance were in the granny flat, which was covered with a steel sheet and the doors had large bolts fixed to them. They were arrested and searched. In this regard, Constable May approached Mr Vossos in order to handcuff him. Mr Vossos started to swing his arms at the officer. Constable May directed Mr Vossos to stop resisting but the matter resulted in a wrestle. Mr Vossos then punched Constable May to his left shoulder. This is the assault police officer in execution of duty matter on the Form 1 for Mr Vossos. Ultimately, following a further struggle which involved Mr Vossos spitting a mixture of blood and saliva at the police, he was restrained and all three offenders were then taken to the Merrylands Police Station.

20. [24]

    It is necessary for me to make findings about the objective seriousness of these matters for offences of those types.

21. [25]

    However, before doing so I need to note that each offender was sentenced in 2008 to terms of imprisonment for the offence in 2005 of supplying a prohibited drug (heroin) on an ongoing basis and, in Mr Younes' case, for an additional offence of supply prohibited drug greater than the indictable quantity. These offenders were co-offenders in that regard and the nature of their offending conduct was broadly the same as the matters with which I am concerned today.

22. [26]

    In the sentencing hearing before me, the Crown submitted that these prior convictions would affect the assessment of that objective seriousness in the manner considered in Veen (No 2). I do not agree. The offences were committed as long ago as 2005 and although there has been other offending behaviour (both before and after that date which will be considered on the question of the prospects of rehabilitation) none of it has been drug-related. I therefore do not consider this to be a Veen (No 2) situation.

23. [27]

    In relation to Mr Younes, I regard his offence of supply prohibited drug greater than the indictable quantity as being just below a mid-range offence.

24. [28]

    In relation to Mr Vossos, I regard his offence of supply prohibited drug greater than the indictable quantity as being closer to the mid-range than the bottom of the range. But it is below that mid-range.

25. [29]

    In relation to his offence of supply, involving as it did the introduction of an unknown quantity of heroin into the custodial setting, I regard that as hovering somewhere equidistant between the mid-range and the bottom of the range.

26. [30]

    In Mr Vossos' case, his offences are aggravated by the fact that he was onconditional liberty, namely bail for the offence of goods in custody. However, there must be some amelioration of that circumstance of aggravation because it was Mr Vossos, through his solicitor, who informed the Court that he was on that bail. That fact was not otherwise known to the Crown appearing in these proceedings for some unexplained reason.

THE APPLICANT’S CASE ON SENTENCE

1. [31]

   Tendered on behalf of the applicant in the sentence proceedings was a report of Kathryn Wakely, Forensic Psychologist. Ms Wakely administered psychometric testing, the results of which indicated (inter alia) that the applicant’s composite IQ score was between 69 and 80, which placed him within the below average range, and at the fourth percentile. That score indicated that 96% of people within the applicant’s age range would be expected to outperform him on similar measures of intelligence. Ms Wakely also reported that the applicant’s scores on testing across the verbal and non-verbal domains were “roughly commensurate” with his IQ testing.

2. [32]

   Ms Wakely’s opinions included the following:

3. [33]

   [44] Nicolas appears to be someone who is easily led and somewhat socially naïve. His associates and particularly those involved in the current offending, have not been a positive influence for this client and have had considerable influence on him with regard to the current matters, along with some past offending.

4. [34]

   [45] The client’s below average level of intelligence, which is indicated to fall at the fourth percentile when compared to his peers, likely contributes to his vulnerability. This level of intelligence would typically suggest slowed learning abilities and cognitive functioning well below the average level. Adding to this his use and dependence upon substances would only increase his vulnerability and susceptibility as well as to further impair cognitive functioning.

5. [35]

   …

6. [36]

   [51] Engagement in individual counselling to address the areas listed above is recommended for Nicolas. In addition participation in a Seasons for Growth program (for grief and loss) and a substance dependence program is recommended. Both of these programs are typically available within a custodial setting as well as within the community. Throughout the delivery of any group or individual treatments Nicolas’ low level of intelligence will need to be considered. Treatments may need to be altered and treatment providers will need to be mindful of this to ensure Nicolas receives the maximum benefits of treatments delivered.

7. [37]

   [52] Nicolas would benefit from consistent monitoring and support within the community.

8. [38]

   Also tendered in the applicant’s case was a testimonial of Natalie Halime, a Director of the company for which the applicant has worked since 2012. Ms Halime stated (inter alia):

9. [39]

   (The Applicant’s) role is that (sic) one of the great importance and responsibility, he is the tradesmen team leader and the companies (sic) go to when staff updates or appraisals are required.

10. [40]

    Mr Vossos has always been professional at his workplace and upholds his position with pride, dignity and passion, his work ethic is sort (sic) after by all and works in a team environment with a mature approach, he is considered to be one of the most positive, constructive and pro-active figure (sic) and an important asset to the company.

11. [41]

    Rosette Utah, who has known the applicant for more than 20 years also provided a testimonial. She described observing the applicant having “become much more mature in his judgment” and having “commenced rationalising with all aspects of his decision making”.

12. [42]

    Written submissions were provided to the sentencing judge by the solicitor who appeared for the applicant on sentence. Those submissions included the following (at p.6-7):

13. [43]

    Under the heading “General deterrence” the submissions stated (inter alia) the following (at p. 3):

14. [44]

    Finally, having made reference to other paragraphs of Ms Wakely’s report, the submissions stated (at p.11):

THE FINDINGS OF THE SENTENCING JUDGE

1. [45]

   Commencing at ROS 11 the sentencing judge said the following:

2. [46]

   The sentencing judge did not refer to the report of Ms Wakely generally, nor did he refer to the results of the psychometric testing. Similarly, his Honour made no specific reference to the question of the applicant’s moral culpability.

THE GROUND OF APPEAL

1. [47]

   The single ground of appeal upon which the applicant relies is that the sentencing judge erred in failing to take into account the applicant’s limited intellectual capacity and impaired cognitive functioning.

Submissions of the applicant

1. [48]

   Counsel for the applicant submitted that notwithstanding Ms Wakely’s report, the submissions made on the applicant’s behalf before the sentencing judge, and the finding that the applicant had no history of mental illness, the sentencing judge had made no reference to the applicant’s limited intellectual capacity and impaired cognitive functioning. It was submitted that the only available inference in these circumstances was that his Honour had paid no regard to those matters.

2. [49]

   Counsel submitted that the applicant’s intellectual capacity and cognitive functioning were relevant to the exercise of the sentencing discretion in a number of ways. In particular, it was submitted that an offender’s impaired intellectual functioning:

3. [50]

   It was submitted that in light of these matters, the sentencing judge had erred in failing to consider the contents of Ms Wakely’s report, and failing to assess the applicant’s moral culpability. In advancing that submission, counsel conceded that there was no evidence which established a causal connection between the applicant’s impaired cognitive function and the offending. However, it was submitted that error had nevertheless been established, and that this Court should proceed to re-sentence the applicant, exercising the sentencing discretion afresh.

Submissions of the Crown

1. [51]

   The Crown submitted that an offender’s reduced intellectual functioning does not automatically lead to a conclusion that such offender should be treated leniently, but that it is a matter to be assessed by a sentencing judge on a case by case basis. The Crown submitted that the circumstances of the applicant’s offending, and the applicant’s employment history, demonstrated that his intellectual functioning was not a matter of any real significance in the sentencing exercise.

2. [52]

   To the extent that the applicant’s reduced intellectual functioning was said to bear upon, and lessen, his moral culpability for the offending, and accepting that the matter was not referred to by the sentencing judge, the Crown submitted that in light of the absence of any causal connection between such reduced function and the offending, no error had been made out.

3. [53]

   Finally, the Crown submitted that a number of the submissions advanced by counsel for the applicant amounted to an attempt to agitate matters before this Court which had not been the subject of submissions before the sentencing judge. The Crown submitted that in these circumstances, argument in respect of these matters should not be entertained.

Consideration

1. [54]

   The sentencing judge did not specifically refer to the report of Ms Wakely, nor did he refer to the issue of moral culpability, in circumstances where that issue was referred to in the written submissions with which he was provided. However, those matters do not lead to the conclusion that error has been established. In determining that question, a number of issues need to be considered.

2. [55]

   The applicant relied upon the report of Ms Wakely to establish his reduced level of intelligence. At its highest, Ms Wakely’s opinion was that the applicant’s reduced level of intelligence was a “likely” contributor to his vulnerability. The range in which she placed the applicant’s composite IQ score was wide, and was unaccompanied by any indication of precisely where, within that range, the applicant fell. Further, the statements of Ms Halime and Ms Utah tended completely against the results of the psychometric testing, as did the role played by the applicant in the offending. In all of these circumstances, the issue of the applicant’s intellectual functioning assumed limited significance in the sentencing exercise.

3. [56]

   Fundamental to the applicant’s position before this Court was the proposition that an offender’s mental state, including his or her impaired intelligence, is a matter relevant to an assessment of moral culpability. In advancing that submission, counsel for the applicant relied on a number of authorities including Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [58]; Ngati v R [2014] NSWCCA 125 at [41]-[44]; McLaren v R [2012] NSWCCA 284 at [29]; Elturk v R [2014] NSWCCA 61 at [34].

4. [57]

   In Muldrock the Court (at [53]) cited the principle that general deterrence should often by given very little weight in the case of an offender suffering from a mental disorder or abnormality because such offender is not an appropriate medium for making an example to others. Their Honours went on to say (at [54] citations omitted):

5. [58]

   Their Honours proceeded to note (at [55]) that in that case, there was unchallenged evidence of the causal connection between the appellants retardation and his offending. As counsel for the applicant properly conceded, there was no such evidence in the present case. In particular, Ms Wakely expressed no view at all about that issue.

6. [59]

   Whether an offender’s impaired intelligence is relevant to an assessment of moral culpability, and if not, whether it is relevant in some other way to the determination of an appropriate sentence, will depend upon the circumstances of the case. In Aslan v R [2014] NSWCCA 114 Simpson J (as her Honour then was) made reference (at [33]) to the principles governing the effect of an offender’s mental illness on sentence:

7. [60]

   Her Honour went on to say (commencing at [34]):

8. [61]

   If an offender’s moral culpability is to be reduced on the grounds of impaired intelligence, some causal connection between that impairment and the offending must be established. In the present case, there was no evidence of any such causal connection. It follows that even though there was no specific reference to the issue by the sentencing judge, the evidence before him did not support a finding that the applicant’s moral culpability should be reduced on that basis.

9. [62]

   In the absence of such causal connection, an offender’s mental state may still be relevant on sentence in the various respects to which Simpson J referred. The difficulty for the applicant in the present case is that none of those matters were raised before the sentencing judge. In particular, it was not put to the sentencing judge that the applicant was an inappropriate vehicle for general deterrence. On the contrary, the submission made by the applicant’s then solicitor expressly acknowledged that there was a high need for general deterrence in cases of this nature. Further, it was not put to the sentencing judge that the applicant was suffering from any mental impairment which had the capacity to impact adversely on his conditions of custody. Contrary to the submission of counsel for the applicant before this Court, the proposition put to the sentencing judge (at [12] above) fell substantially short of a submission that the applicant’s conditions of custody were materially affected by his mental state. Finally, it was not put to the sentencing judge that the applicant’s impaired intelligence was a factor relevant to the assessment of his prospects of rehabilitation.

10. [63]

    The reliance on these matters by counsel for the applicant before this Court amounted to an attempt to litigate issues which had not been the subject of submissions to the sentencing judge. It is appropriate to reiterate that in determining an application for leave to appeal against sentence, this Court is not re-hearing a plea in mitigation. An application for leave to appeal against sentence is not the occasion for the revision and reformulation of the case presented below, and this Court will not lightly entertain arguments that could have been, but were not, advanced at first instance: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [79]-[81].

11. [64]

    For all of these reasons there is no merit in the ground of appeal relied upon. I propose the following order:

    1. (1)

       Leave to appeal is refused.