Taybah v R

1. [1]

   BELL CJ: I agree with Davies J.

2. [2]

   DAVIES J: The applicant pleaded guilty in the Local Court to the following offences:

3. [3]

   There were two Form 1 offences attached to H71101740 as follows:

4. [4]

   On 25 August 2022 the applicant was sentenced by Judge Huggett (as her Honour then was) in the District Court to an aggregate sentence of imprisonment for 11 years commencing 15 December 2020 and expiring 14 December 2031 with a non-parole period of imprisonment for 7 years expiring 14 December 2027. It is convenient to identify the indicative sentences when the facts are summarised.

5. [5]

   The applicant seeks leave against his sentence on one ground as follows:

The offending

1. [6]

   Strike Force Pail was established in April 2020 to investigate the supply of prohibited drugs by Mohamad Mahfouz, Hai Dang Bui, Ali Noufl and Omar Atteya. Mahfouz was conducting a drug supply business from a unit on Shore Line Drive in Rhodes. The unit block had CCTV which captured persons coming and going, and listening devices were installed inside the unit which captured transactions as they took place.

2. [7]

   The applicant communicated with various people include Mahfouz, using devices that had the encrypted program Cyphr.

3. [8]

   On 9 July 2020 the applicant entered the unit, had a conversation with Mahfouz which suggested that he was on-supplying drugs provided to him by the applicant. The applicant supplied Mahfouz with 280 grams of cocaine before leaving the unit.

4. [9]

   On 24 July 2020 the applicant again arrived at the unit where Mahfouz was with Bui and another person. A discussion ensued about the look of some drugs, and the applicant then supplied 140 grams of cocaine to Mahfouz before leaving the unit.

5. [10]

   On 24 August 2020 the applicant again went to the unit and had a conversation with Mahfouz which again concerned the on-supply of drugs by Mahfouz. The applicant supplied him with 140 grams of cocaine before leaving the unit.

6. [11]

   These three supplies were rolled into one charge that became sequence 12 of H740.

7. [12]

   A separate operation, Operation Veerle, was established in September 2019 to investigate the supply of cocaine and firearms in South-West Sydney by Nabih Mouslmani. Between May and December 2020, Mouslmani was involved in the supply of a large commercial quantity of cocaine and prohibited firearms to a known witness. The applicant did not come to the attention of police until 23 November 2020, but there is no suggestion that he was involved at any time in the supply of firearms.

8. [13]

   On 18 November 2020 the witness asked Mouslmani if he could “sort 3 rack of oz for me for Monday”, but Mouslmani said a “5 pack” would be cheaper. Mouslmani provided the prices. The witness said he wanted three ounces on Monday afternoon (23 November 2020). Subsequently, Mouslmani sent the witness a message indicating an address and a time.

9. [14]

   At 2 pm on 23 November 2020 the witness drove to the address and met Mouslmani. A short time later the applicant drove up and stopped his vehicle. Mouslmani approached the applicant’s vehicle and the applicant handed him a brown bag containing 95.8 grams of cocaine.

10. [15]

    On 29 November 2020 the witness asked Mouslmani for another three ounces of “rack”. A similar arrangement was made for the parties to meet in Strickland Street, Bass Hill on 1 December 2020. The applicant arrived subsequently. Mouslmani walked over to the applicant’s car and the applicant handed him a freezer bag containing 84.2 grams of cocaine. That was then provided to the witness who paid Mouslmani. The applicant then drove to an address in Farrell Road, Bass Hill and subsequently returned to his residence in Orchard Road, Bass Hill.

11. [16]

    On 15 December 2020 a similar transaction occurred in Strickland Street. On that occasion the applicant provided to Mouslmani a plastic bag containing 280.4 grams of cocaine which was then provided to the witness who paid Mouslmani.

12. [17]

    Those three supplies were rolled into one count and constituted sequence 9 of H828.

13. [18]

    The applicant then left the scene but was stopped shortly after by the police who arrested him. They searched the car he was driving and in the glovebox found a McDonalds paper bag containing $88,200 in cash, being the money handed over by the witness for the 280.4 grams of cocaine, less $1,000 that Mouslmani had negotiated for himself. In the centre console a sum of cash totalling $24,050 was located.

14. [19]

    Also in the centre console of the car was 336.1 grams of cocaine distributed across four plastic bags. That constituted part of the total amount of cocaine, the subject of sequence 7 of H828. Two Samsung smart phones in a black backpack containing correspondence in the applicant’s name were also located in the car.

15. [20]

    A search warrant was executed at the Orchard Road address. The premises had been leased jointly by the applicant and his wife, and they and their children had resided at those premises until shortly before 15 December 2020 when they moved to a property in Farrell Road, Bass Hill. On 15 December 2020 the Orchard Road premises were unfurnished and appeared unoccupied. A concealed area within a sloped roof cavity was located upstairs. This area was behind a wardrobe and non-load bearing partition wall.

16. [21]

    In the concealed area a sum of cash totalling $1,315,170.00 was located inside a large cardboard box which the applicant knew was the proceeds of crime. Subsequent analysis of the banknotes revealed that notes to the value of $17,550 matched the purchase money for the transaction on 1 December 2020 (at [15] above). The $1,315,170, together with the amount of $24,050.00 located in the car, constituted sequence 8 of H828.

17. [22]

    A black Nike sports bag was also located within the concealed space. It contained ten packaged “bricks” of cocaine, each weighing approximately one kilogram. Subsequent analysis confirmed the bricks contained a total of 10.0111 kilograms of cocaine with a purity of each brick ranging from 70% to 83%. Those bricks formed the other constituent part of sequence 7 of H828.

18. [23]

    A search warrant was also executed at the Farrell Road premises where the applicant and his family were residing from 15 December 2020. In the garage, police located a money counting machine, resealable plastic bags, a heat-sealing machine and two sets of electronic scales, one with white residue on the top.

19. [24]

    Police also located the following items:

Submissions

1. [25]

   The applicant’s written submissions identified what were said to be critical matters urged at the hearing that were not the subject of any findings by the sentencing judge:

2. [26]

   In oral submissions the focus was on what had been identified by Senior Counsel at the sentence hearing as the “striking element”, which was that the applicant’s possession, particularly of the 10kg amount the subject of sequence 7 of H828 and the $1.3m in cash the subject of sequence 8 of H828, was said to be highly reluctant possession merely as a minder. It was said that that submission was not dealt with by the sentencing judge in terms of objective seriousness. It was submitted that possession was the gravamen of the thing in possession, but that was not dealt with by the sentencing judge.

3. [27]

   The applicant submitted that that the Crown did not contend that the factual findings urged on behalf of the applicant were not open. He submitted that his motivation, being an insignificant reward for labour and not profiteering from the significant fruits of the enterprise, was capable of, and relevant to, a downward impact in the assessment of objective seriousness.

4. [28]

   The applicant submitted that, ultimately the Crown concurred with the defence submission that the applicant's criminality was objectively to be assessed at a lower level than that identified in R v Ferguson [2022] NSWCCA 147.

Consideration

1. [29]

   In his oral evidence the applicant spoke of becoming involved to pay off debts and to maintain a supply of drugs for himself. His oral evidence was relevantly this:

2. [30]

   His evidence concerning the drugs and money left at the Orchard Road property was this:

3. [31]

   Dr Chew recorded this in his report:

4. [32]

   Senior Counsel for the applicant submitted to the sentencing judge:

5. [33]

   That submission differed from the somewhat confusing submissions made in writing on behalf of the applicant to the sentencing judge that,

6. [34]

   To a large extent, that submission about the “striking element” of the cocaine and money being stored to his considerable discomfiture was a flourish on evidence from the applicant which did not really provide a basis for it. When pressed at the appeal about what the “striking element” was, Mr Game SC described it as “highly reluctant possession”, but neither was there evidence to justify that description. Mr Game said also that the applicant was just a minder of the large amount of cocaine and cash, but said that that submission had not been dealt with by the sentencing judge. The applicant made no submission to the sentencing judge that he was just a minder of the large amount of cocaine and cash, but her Honour’s findings as to the applicant’s role encompassed that aspect of his role (see at [40]-[41] below).

7. [35]

   The applicant’s affidavit did not address the offending itself but set out matters relevant to his subjective features. Nothing in his oral evidence provides support for the submission made at [32] above, that the large amount of cocaine and money was stored to the applicant’s “considerable discomfiture”.

8. [36]

   The only evidence that might be relevant to the applicant’s relationship with those for whom he was working in the drug supply business was the following:

9. [37]

   He said that he had fallen into debt with “those guys”. When asked if he was prepared to name the people he said:

10. [38]

    It can be accepted that the applicant had placed himself in the position that he was required to do what those above him in the drug supply network demanded of him. That was no different from any other person working for others in a drug supply network. Nevertheless, as the applicant made clear in his evidence, it provided him with an income as well as the drugs he needed to feed his habit. The applicant accepted in submissions made to the sentencing judge, and the sentencing judge found, that the applicant was not operating under duress.

11. [39]

    Her Honour’s treatment of objective seriousness did not involve placing each of the offences at some point in a range, and this Court has made clear that there is no obligation to do so. What is required is for the sentencing judge to set out the facts from which the seriousness of the offending can be seen.

12. [40]

    The sentencing judge first discussed the applicant’s role, saying that it was difficult to determine reliably what his role was. Rather, her Honour made findings about what the applicant actually did. She said:

13. [41]

    Her Honour considered a number of aspects that informed objective seriousness including the quantity and purity of the drugs, whether the drugs were ultimately disseminated into the community, and the amounts of money. Her Honour then said:

14. [42]

    Her Honour’s ultimate conclusion was this:

15. [43]

    Contrary to the applicant’s written submissions in this Court, there was no evidence that he withdrew from the arrangement to keep the drugs and money. His evidence was that he was told to leave them at the Orchard Rd property till the person who directed him organised someone to pick it up. Although he told the psychologist, Ms Cullen, that he “tried to get out of the situation by moving house”, what was found at the new house in Farrell Road, on the execution of the search warrant (set out at [23] and [24] above) indicated his continued involvement at the new premises. That included a money counting machine, a heat-sealing machine, packaging consistent with what the bricks of cocaine were wrapped in, electronic scales, and significant amounts of drugs and money. Further, although “happy to move”, the applicant had no choice because the landlord wanted the Orchard Road property back.

16. [44]

    Although the applicant’s evidence was not entirely clear, his evidence was that he was told to leave the drugs and money in the attic till someone would be organised to pick them up. The evidence does not support the submission that he withdrew from the arrangement. Further, what was found at the Farrell Road property in the garage shows clearly that he was not abandoning his involvement in the drug supply but continued to be actively involved. No submission was made to the sentencing judge that the applicant had withdrawn from the arrangement or abandoned the drugs. Nor was any submission put that there was “no true meeting of the minds” regarding the drugs and cash at the Orchard Road property.

17. [45]

    The submissions made on the applicant’s behalf at the sentence hearing, including the “striking element” submission, were all directed to the assessment of objective seriousness that the sentencing judge should make. As can be seen from [40]-[41] above, the sentencing judge took into account the matters relevant to that consideration, including his role in the network and that he was acting at the direction of others, but also that he was entrusted with more serious tasks than had been the situation earlier in his involvement. The finding that he was acting at the direction of others but that he was not acting under duress is a sufficient response to what was said to be the “striking element” submission.

18. [46]

    It was no error on the part of the sentencing judge to relate the applicant’s motivation to his moral culpability, and the finding resulted in a small reduction in his moral culpability in any event.

19. [47]

    It was not submitted to the sentencing judge that the applicant had withdrawn from the arrangement nor that his reward was incommensurate with the risks he assumed nor that there was no “true meeting of the minds” regarding the drugs and case at the Orchard Rd property.

20. [48]

    There was no evidence that he had withdrawn from the arrangement. He moved from the Orchard Road premises because the landlord wanted those premises back, and it is clear from what was found in the garage of the Farrell Road premises, that the applicant moved his involvement in the drug network to those new premises.

21. [49]

    In my opinion, the sentencing judge did not fail to have regard to critical matters or to the submissions made about matters going to the objective seriousness of the applicant’s offending.

22. [50]

    The submission concerning a comparison between the present applicant and the offender in Ferguson is difficult to relate to the ground of appeal and the factors said to have been ignored by the sentencing judge. The sentencing judge was not obliged to accept the Crown’s submission that the applicant was on a “lower rung” than the offender in Ferguson. That offender was not charged with the same offences as the present applicant. In particular, he was not charged with two counts of knowingly deal with the proceeds of crime. Those two offences easily account for the slightly longer aggregate sentence the applicant received.

Conclusion

1. [51]

   The applicant requires an extension of time to make the application for leave to appeal. The Crown did not oppose the extension, and an order extending time should be made.

2. [52]

   I propose the following orders:

   1. (1)

      Extend time for filing the present application to 1 July 2024.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

3. [53]

   WRIGHT J: I agree with the orders proposed by Davies J for the reasons that his Honour has given.