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6
Court of Criminal Appeal 15 June 2011

Morrie Paul DOUMIT v R

[2011] NSWCCA 134

Drugs
SENTENCE ONGOING SUPPLY OF ILLICIT DRUGS DEEMED SUPPLY OF ILLICIT DRUGS DEFECT IN FORM 1 PROCEDURE CUMULATION OF ENTIRE TERM ON ONE COUNT TOTALITY

Citation: Doumit v R [2011] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 15 June 2011
Judges: Hodgson JA, Hoeben J, Grove AJ (judgment by Grove AJ, with whom the others agreed)

Background

The appellant pleaded guilty in the Sydney District Court to three counts: ongoing supply of prohibited drugs (involving four supplies of cocaine and one supply of methylamphetamine between February 5 and 21, 2008), possession of MDMA for supply, and possession of GBL for supply. Three additional charges were listed on a Form 1 document, meaning the appellant admitted to those offences and asked that they be taken into account at sentencing without separate convictions being recorded.

The sentencing judge imposed fixed terms of 12 months each on the possession counts (counts 2 and 3), then a non-parole period of 2 years plus a balance term of 22 months on the ongoing supply count (count 1), with count 1 running entirely after the other two sentences. The overall effective sentence was a non-parole period of 3 years 6 months and a total term of 5 years 4 months. A combined discount of 37 percent was applied, reflecting both a delayed guilty plea and substantial assistance to authorities.

The appellant, then 48, had demonstrated genuine rehabilitation since his arrest, including confirmed cessation of drug use and an extensive history of charitable activity. He appealed on five grounds, arguing the sentence was manifestly excessive and that the sentencing judge had made specific legal errors in handling the Form 1, assessing remorse, and structuring cumulative sentences.

  • Whether the sentencing judge correctly applied the Form 1 procedure under sections 32 and 33 of the Crimes (Sentencing Procedure) Act 1999, including whether the Form 1 offences were attached to an eligible "principal offence"
  • Whether the sentencing judge erred in rejecting the appellant's remorse by implying that oral evidence was required to establish it
  • Whether making count 1 wholly cumulative on counts 2 and 3 violated totality principles
  • Whether the overall sentence was manifestly excessive

Decision

Ground 2: Form 1 procedure. The Court found two errors in the handling of the Form 1. First, the sentencing judge initially purported to take the Form 1 offences into account across the total term for all three counts, rather than in respect of a single identified "principal offence" as the legislation requires. Second, the judge then attached the Form 1 offences to count 1 (the ongoing supply), but the Form 1 document itself specified an offence of supply on 28 February 2008, which could only correspond to count 2 or count 3, not count 1. The judge therefore lacked power to make that attachment, and the error was likely to have had some elevating effect on the sentence.

Ground 5: Remorse. The sentencing judge rejected the appellant's remorse in part because the appellant had not given evidence at the sentencing hearing. The Court held this was an error of law, citing Butters v R [2010] NSWCCA 1, which confirms that a defendant is not required to give evidence to establish remorse. The Court also found the judge applied an overly narrow reading of the statutory remorse provision in section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, focusing on whether the expressions of remorse addressed victim harm rather than the offending itself.

Grounds 1, 3 and 4: Totality and cumulation. The Court found that making the entirety of count 1 cumulative on counts 2 and 3, without any concurrency, produced an aggregate sentence that failed to adequately reflect the totality principle. Citing Pearce v The Queen (1998) 194 CLR 610 and related authority, the Court noted that some degree of concurrency was required. When combined with the two errors already identified, the Court was satisfied the sentence warranted intervention and proceeded to resentence the appellant.

On resentencing, the Court advanced the commencement date of count 1 by approximately nine months (from 28 February 2011 to 31 May 2010), introducing a period of partial concurrency. The Court also reassigned the Form 1 offences to count 2, attaching them as required to an eligible principal offence. Rehabilitative factors, including sustained cessation of drug use and the extensive testimonial evidence of charitable activity, were given significant weight.

Orders Made

  • Application for extension of time to lodge leave to appeal granted
  • Leave to appeal against sentence granted; appeal allowed
  • Original sentences quashed and the appellant resentenced as follows:
  • Count 2 (MDMA possession for supply): fixed term of imprisonment from 31 August 2009 to 30 August 2010, with Form 1 offences taken into account on this count
  • Count 3 (GBL possession for supply): fixed term of imprisonment from 28 February 2010 to 27 February 2011
  • Count 1 (ongoing supply): non-parole period of 2 years from 31 May 2010 to 30 May 2012, with a balance term of 1 year 10 months commencing 31 May 2012
  • Earliest parole eligibility date set at 30 May 2012

Key Takeaways

  • Under sections 32 and 33 of the Crimes (Sentencing Procedure) Act 1999, Form 1 offences must be taken into account in sentencing for a specific "principal offence" identified in the Form itself. A sentencing court has no power to attach Form 1 matters to an offence that does not match the principal offence nominated in the document, and cannot spread the effect of Form 1 matters across a global sentence for multiple counts.
  • A defendant is not required to give evidence at a sentencing hearing to establish remorse. Rejecting a claim of remorse solely on the basis that no such evidence was given constitutes a legal error, as confirmed in Butters v R [2010] NSWCCA 1.
  • The totality principle requires a sentencing court to consider the overall effect of cumulative sentences. Making one sentence run entirely after another, without any concurrency, can produce an aggregate term that disproportionately exceeds the overall criminality.
  • Where multiple sentencing errors are established and each is likely to have had some effect on the outcome, the Court of Criminal Appeal will intervene and resentence, even where individual errors might not individually have been decisive.
  • Demonstrated post-offence rehabilitation, including verified cessation of drug use and consistent community involvement supported by testimonial evidence, can carry significant weight at the resentencing stage.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 21A(3)(i), 32, 33

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Butters v R [2010] NSWCCA 1
- Hili v The Queen [2010] HCA 45
- Pearce v The Queen (1998) 194 CLR 610
- R v Hammond (2000) 118 A Crim R 66
- Regina v MMK (2006) 164 A Crim R 481