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Court of Criminal Appeal 23 June 2004

REGINA v. BARAKAT

[2004] NSWCCA 201

Drugs
CRIMINAL LAW SENTENCE LEAVE TO APPEAL NON PAROLE PERIOD SPECIAL CIRCUMSTANCES NECESSITY FOR NON

Citation: Regina v Barakat [2004] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 23 June 2004
Judge(s): Beazley JA, Dowd J, Greg James J

Background

The appellant was convicted of two counts of supplying prohibited drugs in indictable quantities: 120 grams of heroin and 120 grams of cocaine. The offences arose from a sustained drug distribution operation running from September to December 2001, in which the appellant played an oversight role, directing street-level runners using multiple mobile phones and coordinating daily sales across several inner-Sydney suburbs.

The appellant pleaded guilty at the earliest opportunity and provided significant assistance to the authorities. As a result, he faced the prospect of spending his entire custodial sentence in strict protective custody, with documented risks to his own safety and that of his family.

In the District Court, Dodd DCJ sentenced the appellant to four years' imprisonment on each count (concurrent), with a non-parole period of three years, commencing from 24 May 2002. The appellant sought leave to appeal, arguing the sentences were inadequate in light of the discounts applied and the hardship of his custody conditions.

  • Whether the sentencing judge erred in fixing the non-parole period, including whether special circumstances existed that warranted a reduction
  • Whether the sentencing judge gave sufficient weight to the harshness of the appellant's custody conditions (protective custody, personal danger, family risk) when setting the head sentence and non-parole period
  • Whether the sentencing judge was required to provide more detailed reasons when declining to find special circumstances
  • Whether the non-parole period adequately reflected the objective seriousness of the offences
  • Whether, even if an error in reasoning were identified, the Court of Criminal Appeal could nonetheless affirm the sentence in the result

Decision

Greg James J, with whom Beazley JA and Dowd J agreed, granted leave to appeal but dismissed the appeal. The court accepted that the sentencing judge had correctly identified the relevant principles: the plea attracted a 25% discount for its utilitarian value, and the assistance to authorities attracted a further 50% discount, producing the head sentences of four years from a starting point of 10 years (against a maximum of 15 years per count).

On the question of special circumstances, the court acknowledged that the conditions the appellant would face in custody (strict protection, danger to himself and his family) were relevant considerations. However, the court found that the sentencing judge had not ignored these matters. Rather, he had taken them into account when fixing the head sentence and the non-parole period, and it was open to him to determine the weight to be given to each factor.

The court accepted that, technically, it may have been preferable for the sentencing judge to articulate his reasoning on special circumstances more explicitly. Nonetheless, the court found no identifiable error of law that would empower appellate intervention. The objective gravity of the offences and the appellant's role as an overseer of a sustained, organised drug enterprise supported the starting point of 10 years and the non-parole period ultimately imposed.

The court confirmed the broader principle that even where a sentencing judge's reasoning contains some imperfection, an appellate court may affirm the sentence if it is appropriate in the result. The court concluded that the sentences were not manifestly excessive and that no different sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is not required to make a further downward adjustment to the non-parole period for factors that have already been taken into account in reducing the head sentence, provided those considerations are genuinely reflected in the overall sentence.
  • Where a sentencing judge declines to find special circumstances, adequate reasons are required, particularly where the circumstances of custody are unusually harsh. The Court of Criminal Appeal noted this as a matter of good sentencing practice, though it did not find error on the facts here.
  • The non-parole period must continue to reflect the objective gravity of the offence, even after significant discounts have been applied to the head sentence for factors such as an early guilty plea and substantial assistance to authorities.
  • No error was established merely because the sentencing judge may have described or weighted relevant factors differently from how an appellate court might. The weight to be given to subjective circumstances remains within the sentencing judge's discretion.
  • Under s 6(3) of the Criminal Appeal Act 1912, even where some error in reasoning is identified, the Court of Criminal Appeal may still affirm a sentence if it is sound in the result.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Olbrich (1999) 199 CLR 270
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen [2004] HCA 15
- Thomson & Houlton (2000) 49 NSWLR 383
- Huang (1995) 78 A Crim R 111
- X [2004] NSWCCA 93
- S [2000] 111 A Crim R 225
- Bugmy (1990) 169 CLR 525
- Simpson (2001) 53 NSWLR 704
- Henry & Barber (1999) NSWCCA 107
- Gittani [2002] NSWCCA 139
- O'Connor (2002) 129 A Crim R 505
- Burke [2002] NSWCCA 353
- Astill (No 2) (1992) 64 A Crim R 289
- AB (1999) 198 CLR 111
- Totten [2003] NSWCCA 207