Citation: R v Kaddour [2005] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 2 September 2005
Judge(s): Hulme J, Barr J, Buddin J
Background
The appellant was tried in the District Court alongside two co-accused on charges arising from the discovery of a clandestine MDMA (ecstasy) laboratory at a factory unit in Brookvale in August 1996. Police surveillance captured the premises catching fire in the early hours of 25 August 1996. Officers found a laboratory fitted out for drug manufacture, along with an excavated underground area constructed beneath a shower recess in the facility.
The jury acquitted the appellant on the three more serious counts, including charges of taking part in the manufacture of MDMA at large commercial and commercial quantities, and harbouring an escaped prisoner. However, the jury convicted him on the fourth count of malicious damage to the Brookvale unit and also returned a guilty verdict on a statutory alternative charge of taking part in the manufacture of some quantity of MDMA.
Judge Woods sentenced the appellant in the District Court to 5½ years imprisonment with a non-parole period of 3 years and 5 months for the drug conviction, and a concurrent 1-year term for the malicious damage, both commencing 2 March 2003. The appellant appealed both conviction and sentence to the Court of Criminal Appeal.
Legal Issues
The court was asked to resolve the following questions:
- Whether the trial judge misdirected the jury on the meaning of "taking part in the manufacture" of a prohibited drug
- Whether evidence that the appellant concealed keys and then denied it to police was wrongly admitted, and whether the directions on that evidence were adequate
- Whether the trial judge's directions on "impossibility or incompetence" (whether the process could actually produce MDMA) were erroneous
- Whether directions on joint criminal enterprise were inadequate
- Whether the verdict on the malicious damage count was unreasonable on the evidence
- Whether the trial miscarried due to adverse media publicity concerning the appellant's barrister during the trial
- Whether the trial miscarried because a juror knew the appellant and held adverse information about his character
- Whether the sentence was manifestly excessive or otherwise infected by error, including whether the sentencing judge gave adequate weight to the harsh conditions of the appellant's custody and classification within the prison system
Decision
The Court of Criminal Appeal dismissed all grounds of appeal against conviction. The court examined each of the eight grounds advanced, including the directions on participation in drug manufacture, the admission and treatment of the keys evidence, directions on impossibility, joint criminal enterprise, the reasonableness of the malicious damage verdict, and the two grounds concerning trial miscarriage. None were made good.
On the question of the media publicity and the juror, the court found that neither ground established that the trial miscarried. The various directions challenged were either found to be adequate or the alleged errors were not established on the material before the court.
On sentence, the court considered grounds concerning the conditions of the appellant's custody. Evidence placed before the sentencing judge indicated the appellant had been classified as extreme high risk within the prison system and that he and a co-accused may have been subjected to excessive force while in custody in early 1999. The sentencing judge treated those custodial conditions as special circumstances under the relevant sentencing legislation, adjusting the ratio between the non-parole period and head sentence accordingly.
The Court of Criminal Appeal found that the sentencing judge had given substantial weight to the custody conditions and that the resulting sentences were appropriate. The ground of appeal against sentence was not made out, and leave to appeal against sentence was granted but the appeal itself dismissed.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that none of the eight grounds advanced, spanning jury directions, evidence admission, verdict reasonableness, and trial miscarriage, were sufficient to disturb the verdicts.
- Adverse media publicity about a defendant's legal representative during trial does not automatically constitute a miscarriage of justice; the ground must be established on the evidence before the court.
- Harsh conditions of actual custody, including an onerous security classification and evidence of excessive force, can constitute special circumstances under sentencing legislation, warranting adjustment of the non-parole period to head sentence ratio.
- A sentencing court's consideration of custodial conditions is a factual matter; where the sentencing judge had material not before the Court of Criminal Appeal, the appellate court afforded that finding appropriate weight.
- No error was established in the sentencing judge's approach where substantial weight had been given to the burdensome nature of the appellant's incarceration when fixing the sentence structure.
Legislation and Cases Referenced
Legislation:
- Drug (Misuse and Trafficking) Act (NSW), ss 24(1), 32
- Crimes Act 1900 (NSW), s 195(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases: No specific cases were identified in the provided text of the judgment.