Citation: Regina v Fakhreddine; Regina v Doudar [2004] NSWCCA 354
Court: New South Wales Court of Criminal Appeal
Date: 13 October 2004
Judge(s): Spigelman CJ, Grove J, Smart AJ
Background
Two men pleaded guilty in the District Court to supplying not less than a commercial quantity of heroin, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. Police intercepted more than 9,000 telephone calls during a surveillance operation targeting drug distribution across the St George suburbs of Sydney, including Bexley, Kogarah, Arncliffe, Rockdale, Carlton, and Hurstville.
The two offenders were not street-level dealers. They functioned as managers and controllers of the syndicate, purchasing and packaging heroin and directing a network of "runners" to sell it in the community. One offender continued to co-manage the operation by telephone while in custody on an unrelated charge of malicious wounding.
The first offender was sentenced to 12 years imprisonment with an 8-year non-parole period. The second received 9 years and 9 months with a non-parole period of 6 years and 6 months on the drug supply charge. Both sought leave to appeal against the severity of their sentences.
Legal Issues
- Whether the sentencing judge's starting point of 16 years (before a 25% guilty plea discount) was excessive relative to the statutory maximum of 20 years and compared with published sentencing statistics
- Whether the sentences were excessive given the sentences imposed on co-offenders and others in comparable cases, raising questions of parity
- Whether the second offender's role, personal circumstances (including youth, first time in custody, contrition, and potential rehabilitation), and the characterisation of the operation as "street-level dealing" warranted a reduced sentence
- Whether the sentencing judge erred in his factual findings or overall assessment
Decision
The Court of Criminal Appeal dismissed both appeals, with Grove J delivering the principal judgment and Spigelman CJ and Smart AJ agreeing.
On the first offender's appeal, the Court held that the 16-year starting point was high but remained within the range of sound sentencing discretion. The sentencing judge was correct to consider the statutory maximum and was not bound by statistical comparisons alone. The Court noted that the first offender had been released on parole less than 12 months before the offending began and was still on parole throughout. His earlier imprisonment had plainly failed to deter him, the enterprise was carefully organised rather than impulsive, and he actively recruited runners to circulate heroin through the community.
On parity, the Court found the disparity between the two sentences was readily explained by their differing criminal histories and different levels of culpability. The claim that the operation should be treated as modest because only one runner operated at a time was rejected: the capacity to recruit people sequentially into the criminal enterprise was itself a significant aggravating feature.
On the second offender's appeal, the Court rejected the characterisation of his role as equivalent to street-level dealing. An organiser who directs runners to perform street sales is not equated in culpability with those runners. The Court also noted that the operation continued even after police began arresting runners, and that the second offender had persisted in his managerial role while in custody. While the sentencing judge acknowledged some effort toward rehabilitation, the circumstances did not compel a more lenient approach.
Orders Made
- Leave to appeal granted for both applicants.
- Both appeals dismissed.
Key Takeaways
- Sentencing statistics and comparative cases are useful guides but do not set a ceiling: the sentencing court's primary task is to assess an appropriate penalty for the particular offender and offence in light of the statutory maximum.
- A sentence lying at the upper range of published statistics provokes scrutiny but does not by itself establish error.
- Organising and supervising street-level drug distribution attracts significantly greater culpability than performing street deals directly: the Court of Criminal Appeal expressly rejected the proposition that managing runners equates to street dealing.
- Committing serious offences while on parole for prior offending is a substantial aggravating factor, particularly where the prior imprisonment demonstrably failed to deter further deliberate crime.
- No error was established in the sentencing judge's assessment of a 16-year starting point for the principal organiser of a sustained, geographically broad heroin distribution network, even though the quantity involved (421.3 grams) was above the commercial threshold but below the large commercial threshold.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases
- R v Barakat [2004] NSWCCA 201
- R v Bayeh [2000] NSWCCA 473
- R v Kalache (2000) 111 A Crim R 152
- R v Markarian [2003] NSWCCA 8
- R v Mitchell [2002] NSWCCA 270
- R v Pham [2001] NSWCCA 307