Citation: Ghossein v Regina [2006] NSWCCA 108
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2006 (judgment delivered 4 May 2006)
Judge(s): Howie J, Grove J, Simpson J
Background
The appellant was convicted after a judge-alone trial in the District Court of supplying methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Police stopped a vehicle travelling from Sydney toward Mudgee and later found a condom containing 13.3 grams of methylamphetamine at the police station. DNA evidence linked the condom to the appellant.
At trial, the appellant admitted the drug was his but claimed it was for personal use only. He acknowledged telling police multiple lies during his recorded interview, explaining he had done so out of fear. The single issue for the trial judge was whether the appellant had proved on the balance of probabilities that he possessed the drug for personal use rather than supply.
The appellant was sentenced to two years' imprisonment with a non-parole period of 18 months. He appealed both his conviction and sentence.
Legal Issues
- Whether the trial judge, sitting without a jury, failed to direct himself in accordance with s 133 of the Criminal Procedure Act 1986 regarding the use of lies as evidence of consciousness of guilt
- Whether the sentencing judge failed to give adequate weight to the appellant's mental disability when determining the appropriate sentence
- Whether the sentencing judge erred in declining to find special circumstances to justify a shorter non-parole period relative to the head sentence
Decision
Conviction appeal: self-direction on lies
The Court found no failure by the trial judge to comply with s 133 of the Criminal Procedure Act 1986. That section requires a judge in a judge-alone trial to apply any warning that would have been given to a jury. Both counsel had addressed the judge in detail on the proper use of lies evidence, including the principles drawn from Edwards v The Queen (1993) 178 CLR 193. The Court was satisfied the judge had adequately dealt with the lies in his judgment and the appeal against conviction was dismissed.
Sentence appeal: mental disability
The appellant relied on psychiatric evidence indicating he may have been suffering from depression and a possible emerging somatic mental illness at the time of sentencing. The Court found the evidence did not establish that the appellant's mental condition, at the time of the offending or sentencing, was of a character that would require the sentencing judge to reduce the weight given to general deterrence. The line of authority dealing with the relevance of mental disability to sentencing, including R v Engert (1989) 84 A Crim R 67, was held not to be applicable on the facts presented.
Sentence appeal: special circumstances
The appellant argued that his need for counselling, his mental condition, and the fact that it was his first custodial sentence collectively required a finding of special circumstances, which would have extended his parole period relative to the total sentence. The Court found this was a discretionary matter and the sentencing judge's refusal to find special circumstances was well within the available range. The Court described the sentence overall as relatively lenient and declined to intervene.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but the sentence appeal dismissed
Key Takeaways
- Under s 133 of the Criminal Procedure Act 1986, a judge sitting alone must take into account any warning that would have been required in a jury trial, but the requirement is satisfied where both parties have addressed the relevant principles and the judgment reflects adequate consideration of them.
- Where a defendant tells admitted lies to police, the trial judge in a judge-alone proceeding must address the proper use of those lies, but detailed submissions from both counsel on the applicable legal tests can inform the judge's self-direction.
- A finding that a defendant's mental condition does not reach the threshold required to reduce the weight of general deterrence is open to a sentencing court where the psychiatric evidence is inconclusive or indicates only a possible emerging condition.
- Declining to find special circumstances remains a discretionary decision; appellate intervention is not warranted simply because subjective factors such as a first custodial sentence or a need for counselling are present.
- In dismissing both grounds of the sentence appeal, the Court of Criminal Appeal confirmed that the overall sentence of two years with an 18-month non-parole period was within the acceptable range for the offence.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Procedure Act 1986 (NSW), s 133
- Criminal Appeal Act 1912 (NSW)
Cases
- Fleming v The Queen (1998) 197 CLR 250
- Edwards v The Queen (1993) 178 CLR 193
- R v Engert (1989) 84 A Crim R 67