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Court of Criminal Appeal 23 September 2002

Regina v Bassam Turkmani

[2002] NSWCCA 388

Also reported as (2002) 133 A Crim R 328
DrugsFirearms & weapons
SENTENCE APPEAL AGAINST SEVERITY ERROR DEMONSTRATED.

Citation: Regina v Bassam Turkmani [2002] NSWCCA 388
Court: NSW Court of Criminal Appeal
Date: 23 September 2002
Judge(s): Buddin J; Smart AJ

Background

The applicant pleaded guilty in the District Court to two counts of knowingly taking part in the manufacture of MDMA, contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985. The first offence occurred in 1996 at Brookvale; the second in 1998 at Dural. Both pleas were entered to lesser charges after the Crown originally prosecuted more serious offences involving commercial or large commercial quantities of the drug.

In both matters, the original indictments charged the applicant with manufacturing a large commercial or commercial quantity of MDMA. The Crown ultimately accepted pleas in full satisfaction of those indictments. In the Dural matter, a Form 1 document included two firearms possession charges and a further drug possession charge that were taken into account on sentence. The Dural offence was committed while the applicant was on bail for the Brookvale matter.

The District Court sentenced the applicant to four years with a two-and-a-half-year non-parole period for the Brookvale matter, and seven years with a four-and-a-half-year non-parole period for the Dural matter. The Dural sentence was ordered to commence one year into the Brookvale sentence, producing an effective total of eight years with a non-parole period of five and a half years. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentences, individually and in totality, were manifestly excessive
  • Whether the sentencing judge properly assessed the applicant's role in the offences, given he stood for sentence on manufacture simpliciter rather than the more serious commercial quantity offences
  • Whether the sentencing judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by impermissibly taking into account facts that would have supported a more serious charge
  • Whether the sentencing judge gave sufficient weight to the guilty pleas, entered at the first reasonable opportunity to lesser charges, including the appropriate discount under R v Thomson & Houlton (2000) 49 NSWLR 383
  • Whether sufficient weight was given to mitigating factors, including the applicant's age (18 at the time of the first offence), his harsher than ordinary custodial circumstances following an assault by prison officers, and other subjective matters

Decision

The Court of Criminal Appeal found that error had been demonstrated in the sentencing of the applicant for the Dural matter. The principal source of error was the manner in which the sentencing judge approached the discount for the guilty plea. The applicant had pleaded guilty to a lesser offence than originally charged, and did so at the first reasonable opportunity once the Crown indicated it would accept the plea. The Court noted that any trial for the Dural matter was likely to have been lengthy and complex.

The Court accepted there was considerable force in the submission that the applicant was entitled to a more significant discount for facilitating the course of justice, particularly approaching the upper range identified in R v Thomson & Houlton. The Court noted that the discount as applied appeared to have bundled together the plea and other subjective factors without sufficiently distinguishing their respective weight.

On the question of comparing sentences across cases, the Court restated the principle from R v Morgan (1993) 70 A Crim R 368: it is wrong to compare sentences with those imposed on unrelated offenders simply because the offenders and offences appear similar. The assessment must be directed at all the specific factors in the case before the court.

The Court allowed the appeal in part, reducing the Dural sentence from seven years to six years and reducing the non-parole period from four and a half years to three and a half years. The Brookvale sentence was confirmed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The sentence for the Dural matter, imposed in the District Court, is quashed; in lieu thereof, the applicant is sentenced to six years' imprisonment commencing 5 September 2000 and expiring 4 September 2006, with a non-parole period of three and a half years commencing 5 September 2000 and expiring 4 March 2004
  • The sentence for the Brookvale matter is confirmed

Key Takeaways

  • A guilty plea entered at the first reasonable opportunity to a lesser charge, after the Crown indicated it would accept that plea in satisfaction of a more serious indictment, may warrant a discount approaching the upper range contemplated in R v Thomson & Houlton, particularly where any contested trial would have been lengthy and complex.
  • Where a sentencing court conflates the discount for a guilty plea with other subjective mitigating factors without adequately distinguishing their respective contributions, that approach may constitute a sentencing error.
  • Under the principle in The Queen v De Simoni, a sentencing court may not take into account facts that would have warranted conviction for a more serious offence than the one to which the offender pleaded guilty; the applicant's plea to manufacture simpliciter limited the factual basis on which the court could assess objective seriousness.
  • Harsher than ordinary custodial circumstances, including an assault on the applicant by prison officers, constituted a relevant mitigating factor to be weighed in the sentencing exercise.
  • Comparing sentences across different cases has clear limits as a sentencing tool; the critical inquiry remains a careful assessment of all factors specific to the offender and offences before the court, as confirmed by this Court applying R v Morgan.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Corrections Act 1952 (NSW), s 36
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- Pearce v The Queen (1998) 194 CLR 610
- R v Olbrich (1999) 199 CLR 270
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Solomons (2000) 114 A Crim R 89
- Cameron v R (2002) 187 ALR 65
- R v Morgan (1993) 70 A Crim R 368
- R v Fabian (1992) 64 A Crim R 365
- R v Laurentiu and Becheru (1992) 63 A Crim R 402
- R v Readman (1990) 47 A Crim R 181
- R v Le Cerf (1975) 13 SASR 237