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Court of Criminal Appeal 11 April 2001

R v REFAI

[2001] NSWCCA 190

Drugs

Citation: REFAI v R [2001] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 11 April 2001
Judge(s): Hulme J; Smart AJ

Background

The appellant pleaded guilty in October 2000 to knowingly taking part in the supply of cocaine between February and July 1994. The offending involved assisting a principal named Daher in running a commercial cocaine-selling operation from a Kings Cross hotel. The appellant's role included acting as a messenger between Daher and those directly involved in sales, providing personal security, helping to prepare cocaine capsules, and on a few occasions selling cocaine directly. He was paid in money and cocaine.

On 24 January 2001, Flannery ADCJ (an Acting District Court Judge) sentenced the appellant to 18 months' imprisonment with a non-parole period of nine months. A subsequent application to serve that sentence by way of home detention was refused. The appellant was 20 years old at the time of the offending and had led a productive life in the intervening years, operating a successful business with his brother.

The appellant sought leave to appeal the sentence on three grounds, contending it was excessive given the delay between offending and sentence, his youth at the time of the offending, his demonstrated rehabilitation, and the failure to give adequate consideration to home detention.

  • Whether the sentencing judge erred in applying the parity principle (that is, the principle that co-offenders in similar positions should receive comparable sentences).
  • Whether the sentencing judge gave insufficient weight to the lengthy delay between the offending and sentencing.
  • Whether the sentencing judge gave insufficient weight to the appellant's youth at the time of the offending and his subsequent rehabilitation.
  • Whether the sentencing judge failed to give adequate consideration to home detention as a sentencing option.

Decision

On the questions of delay, youth, and rehabilitation, the Court acknowledged that the delay was significant and that the court system bore considerable responsibility for it. However, the Court noted that the appellant had given no indication of willingness to plead guilty until October 2000, which it found somewhat diminished the weight that delay would otherwise carry in his favour.

On the question of youth, the Court accepted that it was a relevant mitigating factor but found it carried limited weight in circumstances where the appellant's conduct was deliberate, sustained over several months, and consistent with how an adult would act. The occasional ongoing use of ecstasy and marijuana, and recent traffic convictions, also limited the weight attributable to rehabilitation.

Hulme J concluded that the range of available sentencing options extended no lower than the sentence actually imposed. He went further, expressing the view that, absent the mitigating factors of delay and rehabilitation, the sentence would have been manifestly inadequate for deliberate participation over several months in a significant commercial drug operation. Smart AJ agreed that the sentence was exceedingly lenient and inadequate, and that it was not open to the judge to have imposed a lesser sentence.

The parity ground was addressed in the context of co-offenders, including a person referred to as Ms Kurene, whose sentence the Court described as manifestly and grossly inadequate. The Court noted that sentencing judges in related proceedings appeared to have felt improperly constrained by sentences imposed on other co-offenders, and clarified that on a proper understanding of the parity principle, they should not have been so constrained.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal made clear that an 18-month sentence for sustained participation in a commercial cocaine supply operation was, if anything, inadequate rather than excessive.
  • Lengthy pre-sentence delay will be a mitigating factor, but its weight is reduced where an offender gave no prior indication of willingness to plead guilty.
  • A defendant's youth at the time of offending is a mitigating consideration, but its significance is diminished where the conduct was deliberate, sustained, and not attributable to immaturity.
  • Parity between co-offenders is a relevant sentencing principle, but it does not justify reducing a sentence to match an inadequate sentence imposed on another co-offender.
  • The Court cited Regina v Wong (1999) 48 NSWLR 340 as a useful reference point when sentencing persons who occupy lower positions in the hierarchy of a drug supply operation.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act (NSW)

Cases:
- Regina v Wong (1999) 48 NSWLR 340
- Regina v Doan (not further identified in the provided text)
- Regina v Steele and Reardon (not further identified in the provided text)
- TR (1996) CCA, 1 November 1996, unreported