AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
30
Court of Criminal Appeal 21 November 2005

R v HARMOUCHE

[2005] NSWCCA 398

Also reported as (2005) 158 A Crim R 357
Drugs

Citation: R v Harmouche [2005] NSWCCA 398
Court: New South Wales Court of Criminal Appeal
Date: 21 November 2005
Judge(s): Sully J, Hulme J, Latham J (Hulme J writing the principal judgment; Sully and Latham JJ agreeing)

Background

The respondent, a young man born in 1982, pleaded guilty in the District Court to supplying cocaine between January and February 2002. The agreed facts established that he was involved in obtaining cocaine from unknown parties and on-selling it, either directly or through others, dealing in ounce quantities at prices between $3,800 and $5,000 per ounce. The total quantity involved was agreed to be in the region of 200 grams, with an estimated street value of approximately $66,666.

The original charge had been supplying a commercial quantity. That charge was reduced to supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act following negotiations between the Crown and the defence, and the respondent pleaded guilty at the earliest opportunity. The offence carried a maximum penalty of 15 years' imprisonment.

On 31 May 2005, Judge Delaney of the District Court sentenced the respondent to two years and six months' imprisonment, with a non-parole period of one year and three months, to be served by way of periodic detention. The Crown appealed, contending that the sentence was manifestly inadequate.

  • Whether the sentence of two years and six months' periodic detention was manifestly inadequate for the supply of approximately 200 grams of cocaine under s 25(1) of the Drug Misuse and Trafficking Act.
  • Whether specific errors in the sentencing judge's reasoning contributed to the inadequacy of the sentence.
  • What sentence the Court of Criminal Appeal should substitute in the exercise of its own discretion, having regard to the respondent's mitigating circumstances and the time already spent in pre-sentence custody.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentence imposed by Judge Delaney was manifestly inadequate. The Court quashed the sentence and re-sentenced the respondent to a substantially longer term of actual imprisonment, removing the periodic detention order.

Hulme J observed that the sentencing judge had made a number of errors and that the sentence did not properly reflect either the seriousness of the offending as recognised by Parliament or the applicable sentencing principles. The respondent had been operating within an organised cocaine supply network in south-western Sydney, supplying ounce quantities over a sustained period. While genuine mitigating factors existed, including the early plea, personal background, and psychological evidence, these did not justify a sentence of the length and kind imposed.

The Court acknowledged that the respondent was entitled to credit for 134 days of pre-sentence custody, and backdated the commencement of his sentence accordingly. Hulme J was candid that the sentence substituted by the Court was itself less than what should have been imposed at first instance, given matters that should not have been permitted to occur in the proceedings below.

Hulme J also criticised the Director of Public Prosecutions for appealing in the respondent's case but not in the case of a co-offender, Ahmed Sayadi, who had been sentenced by the same judge approximately two weeks earlier. Both men had been arrested on the same day. The Court found no rational explanation for this inconsistency, noting it forced the Court to choose between unequal treatment of co-offenders and acquiescing in a second manifestly inadequate sentence.

Orders Made

  • The Crown appeal was allowed.
  • The sentence imposed by Judge Delaney on 31 May 2005 was quashed.
  • The respondent was sentenced to imprisonment for a non-parole period of 2 years and 134 days commencing on 11 July 2005, with a balance of term of 1 year commencing on 21 November 2007, on which date the respondent would become eligible for parole.

Key Takeaways

  • A sentence of periodic detention for the large-scale supply of approximately 200 grams of cocaine was held to be manifestly inadequate, even where the offender pleaded guilty at the earliest opportunity and had genuine mitigating circumstances.
  • Under s 25(1) of the Drug Misuse and Trafficking Act, the maximum penalty of 15 years' imprisonment reflects the seriousness Parliament has attributed to prohibited drug supply offences, and sentences must reflect that legislative intent.
  • Hulme J stated plainly that judges who fail to impose sentences properly reflecting the seriousness of the offending do no favour to offenders, who may later face the disruption of having a lenient sentence quashed on appeal.
  • Where a co-offender received an equivalent sentence that was not appealed, the Court of Criminal Appeal found itself constrained in the exercise of its discretion, ultimately imposing a sentence it acknowledged was less than what should have been imposed at first instance.
  • Inconsistency in the prosecution's decision to appeal in one co-offender's case but not another drew specific criticism, particularly where both offenders were sentenced by the same judge within a fortnight of each other.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply of prohibited drugs)

Cases:
- No specific cases were cited in the portions of the judgment provided.