Youkhana, Jerome v R

BEAZLEY JA: I agree with R A Hulme J.

HIDDEN J: I agree with R A Hulme J.

R A HULME J: The applicant, Jerome Youkhana, pleaded guilty to three charges arising from his dealing in the drug commonly known as ecstasy. They were as follows: (1) Ongoing supply of the drug, an offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of 20 years imprisonment and/or a fine of $385,000. (2) Supplying an indictable quantity of the drug, an offence under s 25(1) of that Act, carrying a maximum sentence of 15 years imprisonment and/or a fine of $220,000. (3) Supplying a commercial quantity of the drug, an offence under s 25(2) of the Act, carrying a maximum sentence of 20 years imprisonment and/or a fine of $385,000 and a standard non-parole period of 10 years.

He was sentenced in the District Court as follows: On the second charge (supply of an indictable quantity), a fixed term of imprisonment for 12 months to commence on 2 October 2008, the day of his arrest. On the first charge (ongoing supply), a fixed term of imprisonment for 2 years to commence on 1 April 2009. On the third charge (supply of a commercial quantity), imprisonment for 7 years with a non-parole period of 3 years, to commence on 2 October 2009. The aggregate sentence is imprisonment for 8 years with an effective non-parole period of 4 years. He is eligible for parole on 1 October 2012. Of course, the fixed term of 12 months imprisonment on the second charge has now expired. It is to be observed as well that the sentence for the ongoing supply offence is wholly subsumed by the sentences for the other offences.

The applicant seeks leave to appeal upon a sole ground that there is an unacceptable disparity between his sentences and those which were passed upon a related offender, Hai Hong Ta.

The charges arose from the applicant supplying ecstasy to an undercover police officer during 2008. The charge of ongoing supply concerned him doing so on four occasions between 18 June and 4 August 2008. On the first occasion, 18 June, he met the officer at a cafe in Oxford Street, Darlinghurst. The supply of 100 ecstasy tablets was negotiated. The applicant obtained the tablets from Mr Ta, who was parked in a car nearby, and returned to the cafe. He delivered them to the officer, who paid $2500 for them.

The three subsequent occasions were on 24 July, 31 July and 4 August, on each occasion in a street at North Bondi. On the second occasion, the applicant again supplied 100 tablets for $2500. On the third occasion, 500 tablets were supplied for $8500, and on the last occasion, 500 tablets for $8000. In all, 1200 tablets were sold for $21,500. The total weight was just under 328 grams, and the purity ranged between 21.5 and 28 per cent.

Numerous text messages were exchanged between the applicant and the officer in early August concerning the price for supplying a larger quantity of tablets. On 6 August 2008 the applicant sent the officer a text advising that he had "found out a number from the boys they said they could do it at 14.5 each let me know if you want to get them" .

The officer met the applicant and Ta at a cafe at Bronte on 1 September 2008. Ta was introduced as the applicant's supplier. A conversation ensued concerning a supply of between 1000 and 2000 tablets to the officer.

On 7 September 2008 the officer contacted the applicant and negotiated the supply of 1000 tablets for $17,000. The applicant confirmed that the tablets would be sourced from Ta.

Arrangements were made for the three men to meet at a McDonalds Restaurant at Stanmore on 9 September 2008 where Ta agreed to sell the officer 1000 tablets. He did not have the tablets with him, however, and attempted to coax the officer to go to an address in Glebe to collect them. The agreed facts state that the transaction did not take place "due to a high police presence in the area".

The officer contacted the applicant on 30 September 2008 and arranged to meet him in order to buy 1000 tablets. They met in a carpark at North Bondi on 2 October 2008 where the applicant provided the officer with 1000 tablets in exchange for $17,000.

The applicant was arrested immediately following the exchange. His backpack was searched and a plastic bag containing 10 ecstasy tablets was found. It was this which led to the second charge of supply of an indictable quantity (possession for the purpose of supply). The 1000 tablets were found to contain a little under 284 grams of ecstasy of a purity of 17.5 per cent.

Ta was sentenced by a different judge (his Honour Judge Blackmore SC) before the applicant was dealt with. He pleaded guilty to a charge of supplying an indictable quantity of ecstasy and a further charge of supplying a commercial quantity of the drug. The first arose from his part in the transaction with the undercover officer at the Darlinghurst cafe on 18 July 2008, and the second from his offer to supply 1000 tablets to the officer at the meeting at Stanmore on 9 September 2008. On the first charge, he was sentenced to imprisonment for a fixed term of 8 months, to date from 2 October 2008. On the second charge, he was sentenced to imprisonment for 2 years and 3 months, with a non-parole period of 1 year and 3 months, to date from 2 January 2009. The aggregate sentence was imprisonment for 2 years, with an effective non-parole period of 18 months.

The applicant was aged 19 at the time of the offences and had no previous criminal convictions. The sentencing judge regarded his youth and prior good character as two of three significant mitigating factors to be taken into account.

The third mitigating factor his Honour considered was that the applicant had been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") in the mid-1990s. He had been treated by a number of practitioners including a speech pathologist and a developmental paediatrician. Various reports which were tendered in the sentence proceedings led the judge to accept that the applicant had experienced a delay in his educational, emotional and social development.

There was evidence, which the judge accepted, that the applicant was addicted to cocaine at the time of the offences. He had commenced using cannabis at the age of 14 and progressed to cocaine at the age of 16. He was also using other drugs, including amphetamines, and anabolic steroids to assist his physical development.

A forensic psychologist, Mr Tim Watson-Munro, provided an opinion that a combination of the applicant's addiction to cocaine and his immaturity was a significant causative influence upon his criminal behaviour.

The applicant's mother gave evidence that as a consequence of his ADHD he had limited capacity to concentrate on any given task; he was almost always in a rage; and he was impossible to manage. Reports by a developmental paediatrician indicated that such behaviour had been exhibited by the applicant for many years.

The judge found these reports and conclusions difficult to reconcile with the facts concerning the applicant's involvement in drug supply activity. He noted that the commission of the offences "required a degree of sangfroid, planning and persistence".

The judge accepted, however, that the applicant's emotional and intellectual maturity were both affected and delayed by his ADHD. He also found there to be an "interplay between the consequence of his Attention Deficit Hyperactivity Disorder and drug abuse". In this context, he referred to the well known passage in the judgment of Wood CJ at CL in R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273] concerning the circumstances in which a drug addiction may be a mitigating factor.

The judge concluded that he would reduce the sentences he would otherwise have imposed on account of the applicant's age, prior good character and the interrelated effects of his ADHD and drug addiction.

Other favourable findings made by the judge were that there were good prospects of rehabilitation (there had been a marked improvement in his behaviour, maturity and literacy skills whilst in gaol); genuine remorse; and early pleas of guilty which warranted a 25 per cent reduction of sentence for their utilitarian value.

I have already noted that Ta was sentenced for his involvement in the first of the four transactions which constituted the applicant's ongoing supply offence. Accordingly, Ta was charged in respect of the sale of 100 tablets (22 grams) of ecstasy for $2500. His offence was against s 25(1) of the Act which exposed him to a maximum penalty of 15 years imprisonment. On the other hand, in the four transactions in the ongoing supply offence, the applicant sold a total of 1200 tablets (about 328 grams) of ecstasy for $21,500. Pursuant to s 25A(1), he was exposed to a maximum penalty of 20 years imprisonment.

Clearly, on those facts alone a significantly more severe sentence in the applicant's case was warranted. The sentences imposed were 8months (Ta) and 2 years (applicant). Obviously there were differences in the subjective cases of each offender but there was nothing that would justify the imposition of a lesser sentence in the applicant's case for this offence on account of the sentence imposed upon Ta.

For the commercial supply offence, Ta was sentenced to imprisonment for 2 years and 3 months. In assessing the seriousness of this offence, Blackmore DCJ took into account that: