Azzopardi v R

1. [1]

   BATHURST CJ: I have read the judgment of R A Hulme J in draft. I agree with the orders proposed by his Honour and with his Honour’s reasons.

2. [2]

   FULLERTON J: I agree with R A Hulme J

3. [3]

   R A HULME J: Mr Joseph Charles Azzopardi (the applicant) was sentenced by her Honour Judge Sweeney in the District Court at Sydney on 31 October 2018 in respect of three offences on an indictment. Her Honour imposed an aggregate sentence of imprisonment for 5 years with a non-parole period of 3 years, dating from the day it was imposed.

4. [4]

   Details of the offences and the sentences assessed for each of them are set out in the following table. Each of the sentences was specified to commence on 10 December 2014.

5. [5]

   The applicant asked that his guilt in respect of a further offence be taken into account in respect of sentencing for the offence in Count 1. [1] That was an offence of supplying amphetamine (61.49g) on 21 October 2014 at Kemps Creek.

6. [6]

   The applicant seeks leave to appeal on the following grounds:

7. [7]

   A statement of agreed facts tendered in the court below is the source of the following summary of the applicant's offences.

8. [8]

   A police investigation was being carried out in relation to the drug supply activities of Michael Malouf who was said to be responsible for the daily supply of drugs, namely amphetamine, methylamphetamine and cannabis leaf. An example was given of a telephone conversation between Mr Malouf and a Jamie Edwards on 3 October 2014 in which Edwards said that he would "drop off the home brew to ya". It emerged in evidence at the sentence hearing that Edwards was the applicant's brother-in-law.

9. [9]

   The agreed facts recount the various occasions on which Mr Malouf sold drugs to a police undercover operative from 8 October 2014 to 3 December 2014. Some of the drugs supplied were obtained by Mr Malouf from the applicant but not always.

10. [10]

    Mr Malouf supplied the undercover officer with amphetamine and cannabis on 10 October 2014. The applicant was not the source.

11. [11]

    On 13 October 2014, Mr Malouf agreed to supply the undercover operative with two ounces of amphetamine (and some cannabis leaf) on 15 October 2014. Mr Malouf rang the applicant and introduced himself, or reacquainted himself: "It's Mick, Mick, Mick Malouf with the dogs in Kemps Creek … I got your number off Alex …" He arranged to meet with the applicant and went to the applicant's home that evening. Mr Malouf supplied the requested drugs to the undercover operative on 15 October 2014, but the agreed facts state that the applicant was not the source.

12. [12]

    Form 1 offence. On 20 October 2014, Mr Malouf agreed to supply a police undercover operative with three ounces of amphetamine. Mr Malouf called the applicant and asked for "three loads of topsoil". The applicant replied, 'I'll check it out". The following day, Mr Malouf attended the applicant's home at Bringelly and the applicant supplied him with 61.49g of amphetamine. Mr Malouf supplied that to the undercover operative for $4600 the next day.

13. [13]

    On 3 November 2014, the undercover operative sought four ounces of amphetamine. Mr Malouf then spoke with the applicant on a number of occasions between 3 and 5 November 2014 in relation to the applicant supplying amphetamine. On 5 November 2014, he told Mr Malouf that he was unable to facilitate the request, telling Mr Malouf, "I [sic] fell through". Mr Malouf supplied the amphetamine to the undercover operative on 7 November, having obtained it from another source.

14. [14]

    Count 1. On 13 November 2014, the undercover operative asked Mr Malouf for five ounces of amphetamine. Mr Malouf called the applicant the following day and asked for "five truck-loads of topsoil … five or six", saying it was for a customer who was coming on 18 November 2014. On 17 November 2014, the applicant drove to Mr Malouf’s home at Kemps Creek and supplied him with 138.94 g of a substance. After it had been supplied to the undercover operative), the substance was later found to contain methylamphetamine (15.5% purity). Mr Malouf supplied it to the undercover operative the following day for $11,500.

15. [15]

    Count 2. On 1 December 2014, the undercover operative asked Mr Malouf for four ounces of amphetamine. Mr Malouf called the applicant the next day and told him that "a mate of his needs three loads of gravel". The applicant sent Mr Malouf a text message later that evening indicating he would meet him at 9.30am. They met at Mr Malouf's home the following morning when the applicant handed over a clear plastic bag he obtained from the glovebox of his car. It contained 82g of a substance that was later found to contain methylamphetamine (14% purity). Mr Malouf later supplied that, and another drug, to the undercover operative for $9200. There was evidence that 82g of methylamphetamine had a value of at least $7500. [2]

16. [16]

    On 3 December 2014, Mr Malouf supplied the undercover operative with 27g of amphetamine. This was not sourced from the applicant.

17. [17]

    Mr Malouf was arrested on 9 December 2014. Various drugs were found when his home was searched, but none were sourced from the applicant.

18. [18]

    Count 3. On 10 December 2014, the applicant was arrested and a search warrant was executed at his home. A quantity of 79.9g of methylamphetamine with a purity of 69% was found in a refrigerator in a garage. On top of the same refrigerator there was a resealable bag containing a white crystalline substance (4.07g of methylamphetamine) and a plastic container containing a white crystal paste (8.32g of methylamphetamine of 70.5% purity). The total amount of methylamphetamine was 92.29g.

19. [19]

    There was evidence that "92.9 g" [sic] of methylamphetamine had a value of at least $7500. [3]

20. [20]

    In the same garage, police also found an unopened bag labelled "MSM powder 1kg" near some gym equipment. There was evidence that MSM powder is commonly used by drug suppliers as a cutting agent to help increase the weight of drugs, in particular amphetamine and methylamphetamine-based substances. [4]

21. [21]

    None of the "pre-recorded buy money" provided by the undercover operative to Mr Malouf was found.

22. [22]

    The statement of agreed facts concludes as follows:

23. [23]

    The applicant's case was that he was simply "moving gear" to assist his brother-in-law, Jamie Edwards. Edwards would give him bags of drugs and he would provide them to Mr Malouf when Mr Malouf requested them. He received no financial reward; he was simply doing his brother-in-law a favour. The judge rejected this version and her rejection is the subject of Ground 1 of the proposed appeal.

24. [24]

    The judge referred to the quantities of drug; their value (either on the basis of the amount the undercover operative paid for them or otherwise based upon expert opinion); that the applicant was an "up line" supplier to Mr Malouf; and that the supplies occurred in a course of conduct. She noted that from the start, the applicant and Mr Malouf agreed on using a code. After referring to those matters, she said that she found the offence in Count 1 as "a moderately serious offence of its kind"; the offences in Counts 2 and 3 as "only moderately serious"; and the Form 1 offence as of "low to moderate seriousness.

The applicant's subjective case

1. [25]

   The applicant's subjective case comprised the tender of a report by Dr Kerri Eagle, forensic psychiatrist, and a substantial bundle of testimonials by his wife, family members, work colleagues, and friends. The applicant and his wife both gave evidence at the sentencing hearing.

2. [26]

   The applicant's case was summarised by the judge in a fashion that was not criticised. She said: [5]

3. [27]

   The applicant's pleas of guilty were entered on 24 April 2018, the day after a trial with a 5-week estimate was scheduled to commence. The judge reduced the sentences she would otherwise have assessed by 15% "for the utilitarian value of the pleas of guilty entered at the stage they were, not requiring the Crown to prepare for a trial given that the trial could have involved some complexity of evidence and some length". [6]

4. [28]

   A strong and detailed argument was presented to the judge on the applicant's behalf that a sentence of imprisonment should be imposed, but that it should be served by way of an intensive correction order. However, the judge concluded that "despite these offences being an aberration from his prior good character and his positive subjective circumstances I consider that a sentence of imprisonment to be served by way of custody is the only appropriate sentence". [7]

5. [29]

   Special circumstances were found upon the basis that it would be the applicant's first time in custody and his depression would make his time in custody more onerous. As a result, the non-parole period was reduced from the usual statutory ratio of 75% to 60%; in other words, it was one year less than it otherwise would have been.

Ground 1 – error in rejecting evidence that the applicant did not supply for financial reward

1. [30]

   The applicant submitted that it was not open to the sentencing judge to reject his evidence that he did not receive financial reward for the supply of drugs to Mr Malouf. A very detailed argument was presented on this subject, both in the written and oral submissions of counsel. In essence, the argument concerned two aspects of her Honour's reasoning.

2. [31]

   Her Honour erred in doing so by giving "substantial weight" to an issue that arose in cross-examination; namely that the applicant had an association with outlaw motorcycle gang (OMCG) members. It was submitted that the judge gave "too much weight to an irrelevant consideration". [8]

3. [32]

   Her Honour was also said to have erred in drawing an inference that the applicant was diluting or "cutting" the methylamphetamine to be supplied to Mr Malouf. Her Honour based this inference upon the high purity of the drug found at his home compared to the purity of the drug previously supplied to Mr Malouf, and the presence of the MSM powder in the garage.

4. [33]

   It was submitted that a number of matters supported the credibility of the applicant's evidence that he suffered from joint problems and that the MSM powder had been given to him by a bodybuilder friend. They were that the MSM powder was located near his home gym equipment; the packet was unopened; and there were no other bags of MSM, either opened or unopened. [9]

5. [34]

   In the applicant's written submissions, reference was made to R v O'Donoghue (1988) 34 A Crim R 397 and AB v R [2014] NSWCCA 339. It was submitted that, "it was not reasonably open to her Honour to make findings of fact which were contrary to the applicant's account". This included the finding "that the applicant was diluting drugs in order to supply them for profit". [10]

6. [35]

   During the hearing of the application, senior counsel for the applicant said that in addition to R v O'Donoghue, he relied upon the recent decision in Hordern v R [2019] NSWCCA 138. [11] Nothing was said to elaborate.

7. [36]

   In Hordern v R, and previously in Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150, Basten JA and Hamill J expressed a view that the Court should not adopt what was described as a "constrained approach" in determining a challenge to findings of fact by a sentencing judge: Hordern v R at [7] (Basten JA). Rather than it being a matter of determining whether the finding was open to be made, their Honours advocated an approach that involved the Court determining for itself whether a sentencing judge made a mistake in relation to a particular factual finding: Clarke v R at [34] (Basten JA).

8. [37]

   The approach advocated in Clarke v R and Hordern v R was one that was not the subject of submissions by the parties in those cases. It is not an approach that has been embraced by any other member of this Court.

9. [38]

   There have been appeals since Hordern v R in which disputed findings of fact have been considered. In each case, no party has sought to persuade the Court that Hordern v R should be followed (or not) and the Court has found it unnecessary to resolve the issue: TH v R [2019] NSWCCA 184 at [22]-[24] (Davies J, Leeming JA and Hidden AJ agreeing); Yin v R [2019] NSWCCA 217 at [26]-[28] (Bathurst CJ, Harrison and N Adams J agreeing); Gibson v R [2019] NSWCCA 221 at [2]-[6] (Bathurst CJ), and [61] (N Adams J, Beech-Jones J agreeing).

10. [39]

    The approach in relation to asserted errors of fact finding on sentence of Basten JA and Hamill J in Clarke v R and Hordern v R is contrary to AB v R [2014] NSWCCA 339 at [44]-[59], in which Simpson J (as her Honour then was) dealt with the issue definitively. That case, in contrast to aforementioned two cases, was one in which the issue was squarely raised for decision.

11. [40]

    In the present case, while senior counsel for the applicant said that he relied upon Hordern v R, no submission was made that called upon the Court as presently constituted to resolve the conflict. He took the position that the factual error could be made out regardless of which test was applied. [12]

12. [41]

    The applicant's account of how and why he supplied drugs to Mr Malouf has been referred to above (at [23]). The judge summarised it in some detail in her remarks on sentence. [13] She then gave a number of reasons for rejecting it.

13. [42]

    Her Honour commenced by saying: [14]

14. [43]

    Senior counsel for the applicant sought to characterise her Honour has having said that the applicant's evidence was plausible. [15] What she actually said was that it initially had that appearance. Her Honour then said, "However in cross-examination some facts emerged which detracted from Mr Azzopardi's account". [16]

15. [44]

    A matter that the judge did not comment on, but it is well apparent from the transcript, was that the applicant's manner of giving evidence in chief stood in sharp contrast to his evidence under cross-examination. In the former, his answers were general responsive and direct, whereas in the latter, he was often non-responsive, or answered with his own question, or claimed that he could not recall matters that one would expect him to recall.

16. [45]

    Dr Eagle's report included that, "He said he had never previously associated with antisocial peers. He denied associating with gangs". [17] The Crown representative cross-examined him about this claim. The judge referred to the evidence that emerged that the applicant had been dealt with for an offence of having custody of a knife in a public place in 2012. The facts in relation to the offence included that the applicant was riding in the company of six or seven members of the Rebels Outlaw Motor Cycle gang. Her Honour noted that the applicant took issue with this, saying that there were two, not six or seven. (In fact, the applicant initially said he was riding with friends, Denny, Tony, "and there was a couple of other people there". A little later, he said that there were "two others on the road … there was only two". [18] )

17. [46]

    The judge also noted that the applicant's cousin, Johnny Vella, was a member of the Rebels. In cross-examination, the applicant said that his firearms licence had been suspended when Mr Vella came to live with him after having been released from gaol. The Administrative Decisions Tribunal later returned the licence to the applicant, but with a condition that he was not to attend the clubhouse or premises of the Rebels or any other outlaw motorcycle gang.

18. [47]

    Her Honour referred to the evidence of the applicant's wife in which she said that her brother, Jamie Edwards, had been a member of the Nomads Outlaw Motor Cycle gang in 2014.

19. [48]

    The judge then referred to some of the occasions (and they were numerous) in the applicant's cross-examination in which he said he could not recall details of his version of the events relating to receiving drugs from Mr Edwards and giving them to Mr Malouf. Her Honour said that, having said that he received drugs from Mr Edwards twice, he could not remember how many bags he was given on each occasion. He could not remember how long he had a bag from Mr Edwards in the fridge before he gave it to Mr Malouf on the first occasion. He did not know the weight of the bags, saying that "one load of topsoil" equated to one bag. He could not remember how much was left in the fridge after he gave some to Mr Malouf on 3 December 2014. He did not know how long the two small quantities found on top of the fridge had been there. He did not separate them out (from the larger amount found inside the fridge).

20. [49]

    Her Honour observed in relation to such evidence: [19]

21. [50]

    Senior counsel in this Court attempted to provide a reason for the applicant's poor recollection: "he was being asked in 2018 about events that happened in 2014". In relation to the two small quantities found on top of the fridge, he submitted: "it's not at all surprising that he was unable to give detailed evidence about the time that these things had been sitting on the fridge. [20]

22. [51]

    It was well open to the judge to be sceptical about the applicant's purported poor memory of events. On his account, he had never engaged in drug dealing before in his life. It would be expected that he would have reflected on the detail of the events before giving evidence, particularly through the process leading up to him agreeing to the facts that were tendered by the prosecution.

23. [52]

    Returning to the association with gang members, her Honour said: [21]

24. [53]

    This appears to indicate that her Honour gave that issue little weight in the assessment of the applicant's credibility. It is not indicative of her giving "substantial weight" to it as the applicant's submissions contended.

25. [54]

    The judge then proceeded to discuss what she described as "other circumstances which are not consistent with, or do not support Mr Azzopardi's account". [22]

26. [55]

    The first circumstance was the inability of the applicant to explain the presence of the two small quantities of methylamphetamine found on top of the refrigerator. They did not fit with the applicant's account of receiving bags from Mr Edwards that he passed, unopened, to Mr Malouf, given the larger quantities known to be in those bags which were on-supplied by Mr Malouf to the undercover operative. [23]

27. [56]

    Another circumstance, which the judge described as having "greater significance", was the high purity of the methylamphetamine in the refrigerator, the presence of MSM co-located in the garage, and the lower purities of the drugs previously supplied to Mr Malouf. The purity of the drugs supplied to Mr Malouf in Counts 1 and 2 was 15.5% and 14% respectively, but the methylamphetamine found in the applicant's refrigerator was 69%. While accepting that MSM powder can be used to relieve joint pain, as the applicant had said, her Honour concluded: [24]

28. [57]

    This conclusion was available on the evidence for the reasons explained by the sentencing judge.

29. [58]

    On the question of whether the applicant received any financial reward, her Honour noted that none of the money given to Mr Malouf by the undercover operative was found at the applicant's home. Further, there was no recorded conversation about money. However, her Honour also observed that the applicant met with Mr Malouf personally on occasions that provided them with an opportunity to discuss money and for Mr Malouf to hand over money. Her Honour continued: [25]

30. [59]

    This conclusion of the sentencing judge was a measured one and it was well open to be made.

31. [60]

    It is a natural expectation that when a person receives drugs in significant quantities the person will be required to pay for them. Having rejected the applicant's version that the applicant was supplying on behalf of his brother-in-law and concluding that he was supplying on his own account, it followed that Mr Malouf must have been paying him something for the drugs.

32. [61]

    The applicant sought a finding that his culpability was reduced because of the unusual circumstance that he was not given any money by the purchaser. He bore the onus of proof in that respect: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. There is no suggestion that the judge failed to take into account the various matters that favoured the conclusion for which the applicant contended. In my view, it was well open to the judge to reject the applicant's contention despite those matters. Her rejection was soundly based upon available inferences.

33. [62]

    There was no error. This ground must be rejected.

Ground 2 – misapplication of the reasoning in Parente v R

1. [63]

   The written submissions for the applicant referred to this Court stating in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [114] that the correct approach in determining a sentence was to determine:

2. [64]

   It was submitted that her Honour had first determined that a sentence of imprisonment to be served by custody was appropriate and her Honour then set the length of the sentence. [26]

3. [65]

   It was further submitted that the sentencing judge erred by failing to give full fair and genuine consideration to the possibility of a non-custodial sentence, as required by the decision in Parente v R. [27] (This was, in fact, derived from Robertson v R [2017] NSWCCA 205 at [38] where Simpson JA (as her Honour then was) referred to EF v R [2015] NSWCCA 36 for the proposition that an intensive correction order may be imposed in drug supply cases and that this was something that "ought to be given full, fair and genuine consideration".)

4. [66]

   It was also submitted that the judge had erred by first ascertaining whether there had been drug dealing to a substantial degree before approaching the task of sentence. [28]

Consideration

1. [67]

   The submissions for the applicant correctly refer to the approach to sentencing referred to by this Court in Parente v R, but they then depart from them. The contention that the judge should have considered the possibility of a non-custodial sentence suggests that this should have been at the forefront of her approach to sentencing. However, having determined that no sentence other than imprisonment was required (and there was no dispute about that), and that the sentence should be one of five years in total, there was no non-custodial option available to be considered. The longest period for which an intensive correction order may be made is three years (in the case of aggregate sentences): Crimes (Sentencing Procedure) Act 1999 (NSW), s 68(2).

2. [68]

   The consideration of non-custodial options was a relevant matter in Robertson v R where there was an aggregate sentence of 20 months imprisonment and alternatives to full-time custody were available. They were also available in EF v R where there the sentence under consideration was one of 2 years. But once the judge in the present case determined to impose a sentence of 5 years, there was no occasion for her to be considering any alternative.

3. [69]

   The contention that the judge determined that there had been "drug dealing to a substantial degree" and this led to the imposition of a full-time custodial sentence without consideration of alternatives cannot be sustained. Her Honour did not say or even imply this. The only reference to "drug dealing to a substantial degree" is found in her Honour's reference to an observation made by Simpson JA in Robertson v R, quoted with approval in Parente v R at [112]:

4. [70]

   It does not arise from the sentencing judge's reference to that observation that she considered herself constrained by the prescriptive approach to sentencing in drug supply cases suggested in R v Peter Francis Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) that was overruled by Parente v R. On the page of the transcript preceding her reference to the observation of Simpson JA, the judge referred to counsel for the applicant’s submissions on "the Court of Criminal Appeal's decision in Robertson and Parente [having] removed the constraints of the Clark line of authority in sentencing people for drug supply offences". [29]

5. [71]

   Ground 2 must be rejected.

Ground 3 – manifest excess

1. [72]

   The written submissions for the applicant sought to challenge the finding by the primary judge that the offences were objectively "moderately serious". Much of what was put in support of this is the same as relied upon in relation to Ground 1.

2. [73]

   The submissions then listed various favourable aspects of the applicant's subjective case.

3. [74]

   It was submitted that there must have been some misapplication of principle, even if the remarks on sentence do not show where or how this occurred.

Consideration

1. [75]

   The applicant's challenge to the finding by the judge that each of the three substantive offences was moderately serious must follow the fate of Ground 1. Once it is concluded that her Honour's findings of fact were open to be made, it was also clearly open to her to make that assessment as well.

2. [76]

   Having regard to the maximum penalty of 15 years applying to each of the three offences, and the need to take into account a "low to moderately serious" offence in relation to Count 1, it is clear that the applicant's strong subjective case must have been given significant weight. The starting points for the indicative sentences before reduction on account of the pleas of guilty were about 4 years, 8 months (Count 1) and 3 years, 6 months (Counts 2 and 3).

3. [77]

   The degree of (notional) partial accumulation leading to an overall sentence of 5 years was modest in the circumstances. Although Counts 2 and 3 each attracted sentences of 3 years, the aggregate sentence is only one year longer than the indicative sentence for Count 1.

4. [78]

   The applicant needs to persuade the Court that the sentence was one that is unreasonable or plainly unjust in order to succeed on this ground: see Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] for a discussion of the principles. I am not persuaded that he has done so.

Orders

1. [79]

   I propose the following orders: