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Court of Criminal Appeal 22 July 2005

R v Kairouz

[2005] NSWCCA 247

Drugs
CRIMINAL LAW WHETHER SENTENCES MANIFESTLY EXCESSIVE PARITY MAXIMUM SENTENCE FOR OFFENCE LEGITIMATE SENTENCING RANGE

Citation: R v Kairouz [2005] NSWCCA 247
Court: New South Wales Court of Criminal Appeal
Date: 22 July 2005
Judge(s): Wood CJ at CL, Grove J, Rothman J

Background

Two brothers, referred to here as the first and second applicants, pleaded guilty to three drug offences arising from their involvement in a methylamphetamine and cannabis supply syndicate operating out of a residential property in Ashfield, Sydney. The syndicate used intercepted mobile phones, coded language, and a network of associates to conduct street-level drug sales across the Ashfield and Campsie areas. Police conducted 33 controlled buys as part of the investigation.

Both applicants were sentenced in the Sydney District Court in August 2004. The first applicant received a head sentence of 6 years and 6 months with a non-parole period of 4 years and 4 months. The second applicant received a head sentence of 6 years with a non-parole period of 4 years. Each sought leave to appeal against his sentence.

  • Whether the sentencing judge erred in finding that the first applicant held a position of influence over his brothers within the syndicate
  • Whether the first applicant's educational attainments were impermissibly used as an aggravating factor
  • Whether the sentences imposed on each applicant were manifestly excessive
  • Whether there was an unjustifiable sentencing disparity between the applicants and their co-offenders, giving rise to a parity grievance
  • Whether the sentencing judge applied the correct maximum penalty for the ongoing supply offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985
  • Whether sufficient weight was given to each applicant's subjective circumstances, including rehabilitation, remorse, and contrition

Decision

The Court of Criminal Appeal, with all three judges in agreement, dismissed both appeals.

On the question of the first applicant's position of influence, the Court found no error in the sentencing judge's characterisation. The Court also found no basis to conclude that educational attainment had been treated as an aggravating factor; rather, it was relevant to the assessment of his relative culpability within the syndicate context.

Regarding manifest excess and parity, the Court was not persuaded that the sentences fell outside the legitimate sentencing range when assessed against comparable cases and the nature of the offending. Any differences between the applicants' sentences and those of co-offenders were explicable by differences in culpability and individual circumstances, and did not give rise to a justifiable sense of grievance.

On the maximum penalty point, the Court addressed whether the sentencing judge had incorrectly applied a 25-year maximum rather than a 20-year maximum for the s 25A(1) offence. The Court reached the same conclusion on this ground for both applicants and found no error that warranted interference. As to subjective features, the Court accepted that the sentencing judge had given full credit for the applicants' pleas, contrition, remorse, and rehabilitation progress, including by setting non-parole periods more favourable than the statutory default under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Charbel Kairouz: leave to appeal granted; appeal dismissed
  • John Kairouz: leave to appeal granted; appeal dismissed

Key Takeaways

  • In dismissing both appeals, the Court of Criminal Appeal confirmed that differences in sentences among co-offenders do not automatically give rise to a parity grievance; such differences must be explicable by reference to individually relevant factors, including relative culpability within a joint criminal enterprise.
  • A finding that an offender held a position of influence within a drug supply syndicate is a legitimate sentencing consideration, and the Court found no error where that finding was supported by the facts.
  • Rehabilitation, remorse, and contrition, even when substantial, do not compel sentencing outcomes beyond the credit otherwise recognised for a guilty plea and demonstrated reform; the authority in R v Klein was confined to its specific facts concerning unused assistance to police.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a non-parole period set more favourably than the legislative default can reflect appropriate weight given to subjective features, and the Court treated this as confirmation the sentencing judge had not overlooked those matters.
  • A custodial sentence remains the norm for drug trafficking offences of any substantial degree, and drug dependency on its own does not excuse participation in a supply syndicate, consistent with the principles stated in R v Henry (1999) 46 NSWLR 346.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999, ss 21A(1), 44(2)
- Criminal Appeal Act 1912, s 6(1)
- Drug Misuse and Trafficking Act 1985, ss 25A(1), 25(1), 32(1)(g), 32(1)(h)

Cases
- Chow v DPP (1992) 28 NSWLR 593
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Henry (1999) 46 NSWLR 346
- R v Klein (2001) 121 A Crim R 90
- R v Jurisic (1998) 45 NSWLR 209
- R v Zamagias [2002] NSWCCA 17
- R v Cheikh and Hoete [2004] NSWCCA 448
- R v Kipic and Elias [2004] NSWCCA 452
- R v Nasr [2004] NSWCCA 441
- R v Le [2005] NSWCCA 162
- R v Preston [2005] NSWCCA 177
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Various other NSWCCA decisions as listed in the judgment metadata