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Court of Criminal Appeal 24 June 2008

Yassine v R

[2008] NSWCCA 139

Drugs
CRIMINAL LAW SENTENCE APPEAL COURT ATTENDANCE NOTICE PARTICULARS PARITY

Citation: Yassine v R [2008] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 24 June 2008
Judges: Spigelman CJ, Price J, McCallum J

Background

The appellant pleaded guilty in the Local Court to one count of supplying a commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, and was committed to the District Court for sentence. The Court Attendance Notice (CAN) identified the quantity of cocaine as 383.1 grams. At sentencing, the Crown brief disclosed not only four completed supplies totalling 383.1 grams, but also a separate agreement to supply a further 112 grams of cocaine on 17 January 2006, where the actual supply did not proceed due to difficulties in sourcing the drug. The appellant also asked the sentencing judge to take into account six additional matters on a Form 1.

Ellis DCJ sentenced the appellant to a non-parole period of three years and six months, with an additional term of three years and six months. The co-accused, Hamid, who had a lesser role in the offending, received a shorter sentence. The appellant sought leave to appeal on two grounds: that the sentence was infected by error because the judge sentenced on a greater quantity than was specified in the CAN, and that the disparity between his sentence and Hamid's gave rise to a justifiable sense of grievance.

  • Whether the sentencing judge erred by taking into account the agreement to supply 112 grams of cocaine, given that the CAN specified only 383.1 grams as the quantity supplied
  • Whether the quantity stated in a CAN constitutes a binding limit on the facts available at sentencing, or merely a particular of the charge
  • Whether the difference between the appellant's sentence and that of co-accused Hamid gave rise to an impermissible sentencing disparity

Decision

Ground 2: Sentencing on facts beyond the CAN particulars

The Court rejected the argument that the CAN's reference to 383.1 grams capped the facts available at sentencing. Price J confirmed, following Boujaoude v R [2008] NSWCCA 35, that the quantity stated in a CAN is a particular rather than an element of the charge. Particulars do not define the outer boundary of the sentencing factual matrix; their function is to ensure the accused understands the case they must meet. Further particulars may be provided through the Crown brief or a statement of facts.

The Crown brief in this case, tendered and admitted without objection by experienced defence counsel, expressly included the agreement to supply 112 grams on 17 January 2006. The Court found that the agreement to supply fell squarely within the period and conduct charged, and the overall circumstances made the full extent of the appellant's criminality apparent from the documentation. Sentencing on the basis of approximately 495 grams of cocaine-related conduct was not an error. The principle in R v De Simoni (1981) 147 CLR 383, which prohibits sentencing on facts that would establish a more serious offence, was not breached because the agreement to supply a commercial quantity did not elevate the offending beyond s 25(2).

Ground 1: Parity

The Court found no justifiable sense of grievance arose from the difference in sentences. The appellant's involvement was materially greater than Hamid's: he dealt directly with the undercover operative on each occasion, sourced the cocaine, and received greater financial benefit. Hamid was not involved in either the 30 March 2006 supply or the 17 January 2006 agreement to supply. Additionally, the appellant faced six Form 1 matters (which Hamid did not), and his charge carried a standard non-parole period of ten years under s 54B of the Crimes (Sentencing Procedure) Act 1999. The Court held that these differences in culpability and charge fully explained the sentencing disparity.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A quantity of prohibited drug stated in a Court Attendance Notice is a particular of the charge, not an element that limits the factual basis available at sentencing.
  • Further particulars of an offence may be conveyed through the Crown brief or a facts sheet tendered at sentencing, and a court may sentence on those facts even if they extend beyond what the CAN expressly states, provided the accused has been made aware of the case against them.
  • The principle in R v De Simoni prohibits a sentencing court from taking into account conduct that would constitute a more serious offence, but does not prevent the court from considering the full scope of conduct falling within the charge already before it.
  • In dismissing the parity ground, the Court of Criminal Appeal reaffirmed that a sentencing disparity between co-offenders does not give rise to a justifiable sense of grievance where the difference in sentences is explained by material differences in culpability, charges faced, and the presence or absence of Form 1 matters.
  • Admission of the Crown brief without objection by experienced defence counsel was a relevant factor in the Court's conclusion that the full factual matrix was properly before the sentencing judge.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B

Cases
- Boujaoude v R [2008] NSWCCA 35
- Lowe v The Queen (1985) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v De Simoni (1981) 147 CLR 383
- R v Kerr [2003] NSWCCA 234
- R v Kollas & Mitchell [2002] NSWCCA 491