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Court of Criminal Appeal 17 February 2005

Regina v Taouk

[2005] NSWCCA 53

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE DRUG TRAFFICKING CONSTRUCTING SUPPLY LARGE CRIMINAL NETWORK PARITY

Citation: Regina v Taouk [2005] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 17 February 2005
Judge(s): Grove J (presiding), Bell J, Buddin J

Background

The applicant pleaded guilty in the Sydney District Court to two counts of supplying cocaine. The first count arose from possession of 28 grams (a traffickable quantity, triggering deemed supply provisions) on 7 September 2001. The second count, more serious, involved an agreement to supply one kilogram of cocaine valued at approximately $130,000, with the applicant acting as a broker and taking a commission, evidenced through intercepted telephone calls between 5 and 8 January 2001. No actual kilogram was supplied beyond a small sample.

Nicholson DCJ also took into account, under the Form 1 procedure, seven additional offences. These included further cocaine supply offences, supply of a large commercial quantity of methylamphetamine, cannabis supply, possession of a knife in a public place, and goods in custody. The total effective sentence was eight years and three months imprisonment, with a non-parole period of four years and six months.

The applicant sought leave to appeal, contending the sentence was excessive, that the sentences were wrongly accumulated, and that the outcome was disproportionate compared with sentences imposed on others connected to the same drug network.

  • Whether the sentencing judge erred in assessing the objective seriousness of the second count, given that no kilogram of cocaine was actually supplied
  • Whether the two sentences should not have been wholly accumulated
  • Whether the overall sentence was manifestly excessive
  • Whether the sentences were disproportionate to those imposed on co-participants in the network, raising parity considerations

Decision

The Court of Criminal Appeal rejected the argument that a collection of past cocaine supply decisions constituted binding authority fixing a sentencing range. Grove J emphasised that each sentencing exercise involves the exercise of a judicial discretion. Critically, the second count in the indictment carried a maximum of life imprisonment, and the Form 1 offence involving commercial supply of methylamphetamine also carried a prescribed maximum of life imprisonment. A Form 1 offence carrying that maximum must, the Court confirmed, be treated as lying towards the upper limits of seriousness.

The Court applied established authority holding that the sentence for the foundational offence should not be only slightly increased where the Form 1 offences are themselves serious. On the facts, which included ongoing multi-drug supply across an extended period to numerous persons, generating tens of thousands of dollars in proceeds, no error was found in the sentencing judge's assessment of objective criminality or in the accumulation of the sentences.

On the parity ground, the Court clarified that the principle arises where a co-offender has a justifiable sense of grievance at the harshness of their own treatment compared with another. It does not apply broadly across all participants in a large criminal network. Different roles in drug dealing almost inevitably produce different assessments of objective seriousness, and individual subjective factors must also be weighed. The applicant's counsel conceded a strict parity claim could not be maintained, and the broader argument advanced was rejected.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Individual sentencing decisions in drug supply cases do not constitute "authority" fixing a sentencing range; each sentence reflects a discretionary exercise on its own facts.
  • A Form 1 offence carrying a prescribed maximum of life imprisonment must, as a matter of principle, be treated as lying at the upper end of any scale of seriousness, and the foundational sentence should not be increased only marginally to account for it.
  • The parity principle, as confirmed by the High Court in Lowe v The Queen and Postiglione v The Queen, applies to co-offenders whose circumstances are broadly comparable, not across all participants in a large criminal network with differing roles and different subjective circumstances.
  • In dismissing the appeal, the Court of Criminal Appeal found no error in Nicholson DCJ's accumulation of the two sentences or in his assessment that the applicant's conduct placed him at the upper end of drug suppliers in the Sydney metropolitan region.
  • Where an agreement to supply a large commercial quantity of drugs is proven through telephone intercepts but no actual supply occurred, this does not necessarily diminish objective seriousness to the extent of removing the matter from the upper sentencing range, particularly where serious Form 1 offences are taken into account.

Legislation and Cases Referenced

Cases:
- AG's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Barton [2001] NSWCCA 63
- R v Perese (2001) 126 A Crim R 508

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37 (Form 1 procedure)