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Court of Criminal Appeal 19 October 2005

REGINA v Mohamad ELLAZ

[2005] NSWCCA 350

Drugs
ONGOING SUPPLY OF HEROIN FINDING OF SPECIAL CIRCUMSTANCES

Citation: Regina v Mohamad Ellaz [2005] NSWCCA 350
Court: NSW Court of Criminal Appeal
Date: 19 October 2005
Judge(s): Sully J, Hidden J, Hall J

Background

The applicant pleaded guilty in the District Court to ongoing supply of heroin under s 25A of the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum of 20 years' imprisonment. On four occasions in July 2003, he sold small quantities of heroin (totalling 0.69 grams across the first three transactions) to an undercover police officer, receiving $590 in total. On the fourth occasion he was arrested after the substance he supplied contained no heroin at all.

The sentencing judge, Nicholson DCJ, imposed a total term of two years and ten months, comprising a non-parole period of one year and ten months with a balance of term of twelve months. A separate offence of goods in custody was taken into account on a Form 1. The sentence was ordered to commence at the expiration of the non-parole period the applicant was already serving for driving whilst disqualified.

The applicant sought leave to appeal, arguing the sentence was excessive on several grounds, including inadequate discounts for his plea and assistance, the treatment of his criminal history, and insufficient weight given to his psychiatric condition arising from a serious head injury.

  • Whether the sentencing judge gave adequate discount for the guilty plea and assistance to authorities
  • Whether comments made by the sentencing judge during final addresses were improperly factored into the sentence
  • Whether the finding of special circumstances and the resulting structure of the sentence were appropriate
  • Whether the criminal history was used as a double-counting aggravating factor
  • Whether adequate weight was given to the applicant's mental condition, including post-traumatic brain damage and cognitive impairment

Decision

Guilty plea and assistance: Hidden J found the sentencing judge's remarks during final addresses, while potentially in tension with the ultimate sentence, did not disclose error in the final reasoning. The judge had described the assistance as "meaningful and useful" and applied a 20 percent reduction. The Court of Criminal Appeal was satisfied this adequately reflected both the plea and the cooperation, noting the plea had limited utilitarian value given the overwhelming prosecution evidence.

Special circumstances and sentence structure: The sentencing judge found special circumstances on the basis of the applicant's rehabilitation needs arising from his drug history and residual mental health deficits. Hidden J accepted that this finding was open and that the resulting adjustment to the ratio between non-parole period and balance of term was appropriate in the circumstances.

Criminal history and double counting: The applicant argued the sentencing judge used the driving disqualification offences both to aggravate the present sentence and to establish the context of conditional liberty. Hidden J was satisfied the judge treated the criminal record as a discrete matter in accordance with established principles. The central concern was the commission of the offences while on a s 11 bond, a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999.

Mental condition: The Court found the psychiatric evidence did not engage the sentencing principles from R v Engert and R v Israel regarding the mitigation of moral culpability. The sentencing judge's scepticism about the severity of the impairment was open on the evidence. His Honour had accepted residual deficits existed but found they affected the efficiency of the drug dealing rather than the applicant's fundamental judgment about whether to offend. No further weight was required.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea carries reduced utilitarian value, and therefore attracts a more modest discount, where the prosecution case is overwhelmingly strong and conviction was effectively inevitable.
  • Assistance to authorities warranting a 20 percent reduction was not found to be inadequate in circumstances where the sentencing judge expressly characterised that assistance as "meaningful and useful."
  • Under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, committing an offence while on conditional liberty is a recognised statutory aggravating factor; treating it as such does not constitute impermissible double counting when the criminal record is also considered as a separate matter.
  • Psychiatric evidence of post-traumatic brain damage and cognitive impairment does not automatically engage the principles in R v Engert and R v Israel; those principles apply where mental condition meaningfully reduces moral culpability, not merely where impairment affects the offender's operational competence.
  • In dismissing the appeal, the Court confirmed that rehabilitation needs arising from drug abuse and residual mental health deficits can support a finding of special circumstances, justifying adjustment to the sentence structure even where those factors do not significantly reduce culpability.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 21A(2)(j)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Howard [2004] NSWCCA 348
- R v Thomson (2000) 49 NSWLR 383
- R v El Hani [2004] NSWCCA 162
- R v Way (2004) 60 NSWLR 168
- R v Tobar & Anor (2004) 150 A Crim R 104
- R v Johnson [2004] NSWCCA 76
- R v Engert (1995) 84 A Crim R 67
- R v Israel [2002] NSWCCA 255