Abousleiman v R

1. [1]

   DAVIES J: Subject to what follows, I agree with Hamill J and the orders he proposes.

2. [2]

   I respectfully do not agree with his Honour's observation at [41] that the aggregate sentence imposed was at the upper end of the range of sentences that could legitimately be imposed for the offences. Whilst the applicant had a compelling subjective case, the applicant had involved himself in serious drug dealing at a higher level than simply street-dealing, not on one occasion, but over a period of time which, according to the Agreed Facts, likely extended beyond the time of the identified supplies that constituted the offences. The supplies which made up Sequence 2 amounted to supplying a commercial quantity of MDMA, albeit not greatly exceeding the threshold, for which the maximum penalty is 20 years' imprisonment with a standard non-parole period of 10 years. Further, as Hamill J noted, the sentencing judge accorded a generous reduction of the statutory ratio so that the non-parole period amounted to approximately 54% of the total sentence.

3. [3]

   HAMILL J: Robert Abousleiman applies for leave to appeal against the sentence imposed on him by Acting Judge Delaney in the Parramatta District Court on 22 May 2019. His Honour imposed an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years for a number of charges arising from the applicant’s drug dealing. The sentence was backdated to commence on 22 April 2019 to reflect the one-month period the applicant spent in custody before his release on bail. The applicant will be eligible to release on parole on 21 April 2022.

4. [4]

   On 23 November 2018, the applicant pleaded guilty at Burwood Local Court to two offences as follows:

   1. (1)

      Ongoing supply prohibited drug, contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMTA”); and

   2. (2)

      Supply not less than a commercial quantity of a prohibited drug (193.86 grams of 3,4-Methylenedioxymethylamphetamine (MDMA)), contrary to s 25(2) of the DMTA.

5. [5]

   A further two offences were taken into account in sentencing for the commercial supply: Crimes (Sentencing Procedure) Act 1999 (NSW), s 32. These offences were placed on a Form 1 and described as follows:

   1. (1)

      Deal with the proceeds of crime ($29,690); and

   2. (2)

      Supply a prohibited drug (4.1 grams of cocaine).

6. [6]

   There was also a back-up charge relating to the possession of the 4.1 grams of cocaine that was brought up to the District Court under s 166 of the Criminal Procedure Act 1986 (NSW). This charge was withdrawn and dismissed.

7. [7]

   The applicant received a 25% discount for his early pleas of guilty. In accordance with authority, this discount was applied to the indicative sentences: see, for example, PG v R [2017] NSWCCA 179 at [72]-[92] (Button and N Adams JJ, Basten JA dissenting); Elsaj v R [2017] NSWCCA 124 at [56] (Hoeben CJ at CL, Bathurst CJ and McCallum J (as her Honour then was) agreeing); Glare v R [2015] NSWCCA 194 at [12] (Hamill J, Leeming JA and Fagan J agreeing).

8. [8]

   The maximum penalties applicable to each offence and the indicative sentences specified by the sentencing judge are set out in the table below:

9. [9]

   The applicant relies on a single ground of appeal, that the aggregate sentence is manifestly excessive.

The facts of the offending

1. [10]

   As detailed in an agreed statement of facts, the applicant met with an undercover police officer (UCO) on 10 occasions between 1 and 30 November 2017. He supplied cocaine and MDMA to the UCO in exchange for cash. In the relevant period, the applicant supplied drugs on eight occasions. This involved six supplies involving increasing quantities of cocaine and two supplies of MDMA. Arrangements were made via text messages between the applicant and the UCO. The exchanges took place at various places including Pyrmont, Woolloomooloo, Balmain, Rozelle and Croydon Park. Initially, the transactions took place in the applicant’s car parked in various locations and later they occurred during meetings at various parks across Sydney.

2. [11]

   In relation to the ongoing supply offence (which became Sequence 1) the applicant supplied a total of 148.53g cocaine to the UCO in exchange for money in the following amounts of money:

   1. (1)

      On 1 November 2017, the applicant supplied 1.17 grams of cocaine (with a purity of 85%) in exchange for $600.

   2. (2)

      On 2 November 2017, the applicant supplied 1.38 grams of cocaine (with a purity of 51%) in exchange for $600.

   3. (3)

      On 8 November 2017, the applicant supplied 1.33 grams of cocaine (with a purity of 49%) in exchange for $600.

   4. (4)

      On 15 November 2017, the applicant supplied 1.30 grams of cocaine (with a purity of 57%) in exchange for $600.

   5. (5)

      On 16 November 2017, the applicant supplied 6.65 grams of cocaine (with a purity of 60.5%) in exchange of $2,400.

   6. (6)

      On 21 November 2017, the applicant supplied 55.15 grams (2 ounces) of cocaine (with a purity of 63%) in exchange for $14,000.

   7. (7)

      On 23 November 2017, the applicant supplied 27.50 grams (1 ounce) of cocaine (with a purity of 61.5%) in exchange for $7,000.

   8. (8)

      On 30 November 2017, the applicant supplied 54.1 grams of cocaine in exchange for $20,000. This payment covered the supply of cocaine and MDMA on this occasion (see [14(3)] below).

3. [12]

   During their meeting on 23 November, the applicant asked to see the UCO’s licence and the following exchange took place:

4. [13]

   Following this exchange, the UCO showed the applicant their licence.

5. [14]

   During a text exchange that took place from 22-24 November, the UCO asked if the applicant could get 2 ounces of “m”, referring to MDMA. The applicant responded that he was “sweet” and over the course of the next week, the applicant supplied the UCO with MDMA on three occasions. These became the subject of the supply not less than a commercial quantity charge (Sequence 2). In total the applicant supplied 193.86g of MDMA to the UCO:

   1. (1)

      On 25 November 2017, the applicant supplied 55.5 grams of MDMA (with a purity of 72.5%) in exchange for $4,000.

   2. (2)

      On 28 November 2017, the applicant supplied 55.7 grams of MDMA (with a purity of 74%) in exchange for $4,000.

   3. (3)

      On 30 November 2017, the applicant supplied 82.4 grams of MDMA in exchange for $20,000. This covered the supply of both cocaine and MDMA on this occasion.

6. [15]

   The applicant was arrested on 30 November 2017. The police searched his person and found four bundles of $50 notes totalling $20,000 down the front of the applicant’s pants, [1] an additional $440 in cash in his shorts pocket, along with an Apple iPhone and Nokia mobile ‘phone. The applicant told police that there was a “small amount of cocaine” in his car. The police found six clear resealable bags in the centre console totalling 4.1 grams of cocaine. This (deemed) supply offence was taken into account on a Form 1.

7. [16]

   Police executed search warrants at the home of the applicant. Inside a locked box in the applicant’s bedside table was a book with the pages hollowed out. In that book, police found $9,750. Inside a cupboard in the applicant’s bedroom, the police located an additional $19,500. These amounts, along with the $440 found on the applicant when he was arrested, became the subject of the proceeds of crime offence, taken into account on a Form 1. The total proceeds of crime were said to be $29,690.

Objective seriousness

1. [17]

   Acting Judge Delaney determined that the objective seriousness of the offending in relation to Count 1 was “just below [the] midrange” taking into account the number of supplies, the quantity of the drug supplied, the ready availability of the drugs to the applicant and the fact that he was able to obtain those drugs from other sources (as he confirmed in text message correspondence with the officer). His Honour found that the applicant was “not necessarily the principal overall but nevertheless a person who had a significant ability to be able to supply drugs”. His Honour took into account the fact that the supplies increased over time, in response to the requests of the UCO.

2. [18]

   In relation to Count 2, his Honour found that the offence was “below [the] midrange of objective criminality” as the total supply of MDMA was at the lower end of the commercial range and the three supplies involved were, individually, less than a commercial quantity (125 grams) of MDMA. His Honour said he did not find it necessary to increase the principal sentence taking into account the two offences on the Form 1.

3. [19]

   Having assessed the facts globally, his Honour said that the “this was a significantly serious offence both for the supply on a continuing basis and also the supply prohibited drug on a commercial basis”.

4. [20]

   The applicant does not contend that there was any error in his Honour’s assessment of the objective seriousness of the applicant’s offending.

The applicant’s personal circumstances

1. [21]

   The applicant relied on a letter of apology to the sentencing Court, two reports of a psychologist, Mr Watson-Munro, and read affidavits of two of his three brothers. A series of character references written by clients of the applicant’s personal training business (operated by the applicant and his brother) and members of the community who knew the applicant through his volunteer work, were also tendered.

2. [22]

   The applicant was 31 years of age at the time of the offending. The sentencing Judge made positive findings as to his good character and criminal history, which consisted of minor traffic offences. His Honour was optimistic about the applicant’s capacity for rehabilitation and ability to obtain and retain employment upon his release.

3. [23]

   The sentencing Judge determined that a sentence of imprisonment was the only option appropriate in the circumstances, particularly having in mind the need for the sentence to act as a deterrent to others and despite the significant evidence of the applicant’s rehabilitation. His Honour (putatively) accumulated the sentences for Counts 1 and 2 to a “modest” degree, due to the differences in drug type, the amounts of the drugs supplied, the purity of those drugs and “the readiness with which he was able to obtain those drugs”.

4. [24]

   His Honour made a finding of special circumstances and made a substantial adjustment to the ratio between the head sentence and non-parole period accordingly. His Honour found that there was ample evidence demonstrating that the offender was remorseful and contrite; that he had family and community support and appreciated the extent of his criminality and its effect on the community. His Honour also determined that the applicant was already rehabilitated to a significant degree, although felt that the applicant may still require “some assistance” to avoid further involvement with drugs and in his transition back into meaningful employment after his release from custody.

5. [25]

   The evidence suggests that the applicant is from “an exceptionally close” family and lived at the family home to provide support to his mother and father. His father has mental health issues and an alcohol addiction which now prevents him from working.

6. [26]

   The evidence also recounts the events that unfolded at a family christening in September 2017 when the applicant was told two of his first cousins were involved in an horrific car accident and died tragically. The tragic details of the accident are set out in the evidence and were well-publicised at the time. The applicant, his brothers and the entire family were affected significantly by this incident.

7. [27]

   The applicant was especially close to one of the cousins who died in the accident to the extent that the applicant said he had lost “the closest person in [his] life”. Following the accident, the applicant withdrew from his family, stopped coming home at nights, rarely spent time at the family home and lost interest in the activities he used to enjoy and the gym project he had embarked on with his brother, Daniel. The applicant stopped attending meetings related to the project and was often uncontactable for long periods of time. The applicant’s other brother, Andrew, described this behaviour as “uncharacteristic”.

8. [28]

   In his letter of apology to the sentencing Court, the applicant wrote:

9. [29]

   The letter articulates clearly the effect that the death of the applicant’s cousins had on him and the shame he felt at having become involved with drugs and letting this behaviour influence his relationships with his family. The applicant feels guilty and recognises that he put his “well respected and hardworking” family through “avoidable heartache”.

10. [30]

    The report of Mr Watson-Munro dated 19 December 2017 referred to the applicant’s depression disorder whilst on remand. Mr Watson-Munro states that the applicant was:

11. [31]

    In his second report of 24 April 2019, Mr Watson-Munro found that the applicant:

12. [32]

    The psychological reports and affidavits tendered also suggest that the applicant had gone to some length to get his life back on track whilst on bail. In his apology letter, the applicant referred to the benefits of him returning to his faith and the assistance provided to him by his brother, Daniel. Daniel introduced him “to people who helped [him] to get involved in volunteer work and [use his] professional skills for people struggling with mental illness and disabilities”. The applicant provides personal training to people with disabilities and he intends to return to this work as soon as he can.

13. [33]

    The applicant’s letter concluded:

14. [34]

    Delaney ADCJ set out the relevant parts of the material tendered by the applicant and his Honour considered that material in some detail. His Honour made positive findings of the applicant’s rehabilitation and remorse and as to the low probability of his re-offending. His Honour took into account the impact that the applicant’s cousin’s death had on him, and the change in the applicant’s behaviour around that time in accordance with the evidence.

Disposition: Is the sentence manifestly excessive?

1. [35]

   The respondent submitted that the applicant sought to persuade the Court that the sentencing Judge placed insufficient weight on the applicant’s subjective case. Such a ground would be destined to fail. The sentencing judgment does not support that contention and the question of the weight to be afforded to relevant factors on sentence is a matter for the sentencing Judge. In Edwards v R [2021] NSWCCA 57, Bellew J said at [64]-[65], that “…[t]his Court has observed on a number of occasions that [the] attribution of weight to a particular factor is a matter for a sentencing judge” and that:

2. [36]

   However, while the applicant inevitably placed significant emphasis on his compelling personal circumstances, it was acknowledged that to succeed on his single ground of appeal, he was required to establish that the sentence imposed was unreasonable, manifestly wrong or plainly unjust: see, for example, House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, Lowndes v R (1999) 195 CLR 665; [1999] HCA 29, and Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54.

3. [37]

   In considering the question of manifest excess, the Court must proceed on the basis that the law allows sentencing judges as much flexibility as is “consonant with consistency of approach” and applicable sentencing principles: Markarian v The Queen (2005) 228 CLR 357 at [25]-[27]; [2005] HCA 25. An intermediate appellate court may not interfere with the penalty imposed merely because it may have exercised the sentencing discretion differently.

4. [38]

   The applicant’s subjective case deserved considerable weight. The impact of the death of his cousins, and its contribution to the applicant’s life spiralling into serious drug dealing and criminality cannot be underestimated. It led him to withdraw from his family and community. He had no relevant criminal past and had made significant advances towards rehabilitation whilst on bail. However, the sentencing Judge’s assessment of the applicant’s subjective case was careful and comprehensive. His Honour assessed all the relevant considerations in detail and set out, at length, the relevant aspects of the applicant’s subjective case in the materials tendered and the way in which he took these into account.

5. [39]

   His Honour made a substantial adjustment to the standard non-parole period, following a finding of special circumstances. The non-parole period amounted to about 54% of the total sentence. This was a generous departure from the statutory ratio of 75%: see Crimes (Sentencing Procedure) Act, s 44(2). His Honour also took into account the need for general deterrence but concluded correctly that there was “a much lesser part to play on any question of specific deterrence having regard to the finding I have made for the fact that [the applicant] has significantly rehabilitated himself”.

6. [40]

   As I have said, no issue was taken with the sentencing Judge’s assessment of the objective gravity of the applicant’s offending. The offences were serious, involved quite substantial amounts of drugs, and the dealing was repetitive (albeit that was an inherent feature of the ongoing supply offence). While there was no previous indication that the applicant was involved with illegal drugs, he was able to access large and increasing amounts of drugs of various kinds and readily accommodated the demands of the UCO. The applicant alluded to having multiple suppliers and different avenues of accessing the drugs. He referred to himself as the “middle person”, which shows he was more than a low-level street dealer.

7. [41]

   As Gleeson CJ and Hayne J said in Dinsdale v The Queen at [6], whether a sentence is manifestly excessive is a conclusion; a sentence is either manifestly excessive or it is not. In the applicant’s case, the aggregate sentence was at the upper end of the range of sentences that could legitimately be imposed for the offences given the compelling subjective circumstances. However, the sentencing judgment was principled and legally correct, and the sentence imposed was within the bounds of the proper exercise of the sentencing discretion. I am unable to conclude that it was unreasonable, plainly wrong or unjust.

8. [42]

   It follows that the ground of appeal is not made out.

9. [43]

   Accordingly, the orders I propose are these:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

10. [44]

    WILSON J: Although, like Davies J, I would not assess the sentence imposed upon the applicant as one at the upper end of the range of sentences that could legitimately be imposed, I otherwise agree with Hamill J, and with the orders his Honour proposes.