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Court of Criminal Appeal 11 August 2011

Charbaji v R

[2011] NSWCCA 181

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENCE OF SUPPLYING COCAINE

Citation: Charbaji v R [2011] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 11 August 2011
Judge(s): Whealy JA, Buddin J, Harrison J

Background

The appellant pleaded guilty in the District Court to supplying cocaine, dealing with property suspected of being the proceeds of crime, and possessing a prescribed restricted substance (a steroid). The supply offence carries a maximum penalty of 15 years imprisonment. Police had executed a search warrant on the appellant's Bankstown premises and found 73.49 grams of cocaine at a purity of 57.5 to 60.5 per cent, over $13,000 in cash, electronic scales, resealable bags, mobile phones, and a document resembling a drug ledger.

The appellant was 25 years old at the time of the offence and had a criminal history dating to 1999, including prior convictions for drug supply and armed robbery. He had experienced significant personal trauma, including serious head injuries from an assault and the death of his fiancee in a car accident shortly thereafter. Expert evidence attributed a depressive illness, traumatic brain injury, and substance abuse disorder to him.

The District Court sentenced the appellant to an overall term of 5 years 6 months imprisonment with a non-parole period of 3 years for the supply offence. The appellant sought leave to appeal, contending the sentence was affected by several errors and was manifestly excessive.

  • Whether the sentencing judge erred in failing to assess the objective gravity of the offence
  • Whether the judge erred in failing to explain how the appellant's prior convictions would be taken into account
  • Whether the judge erred in treating a section 10 bond (a non-conviction order) as a prior conviction
  • Whether the judge placed excessive weight on the fact the offence was committed while the appellant was on conditional liberty (under a section 10 bond)
  • Whether the judge erred in failing to identify aggravating and mitigating factors
  • Whether the sentence was manifestly excessive

Decision

Objective gravity: The Court found the sentencing judge had adequately addressed the objective gravity of the offence. His Honour identified the organised nature of the supply, the substantial quantity and high purity of the cocaine, the presence of drug-supply paraphernalia, and the drug ledger as indicators of a significant ongoing enterprise. The Court was satisfied this assessment was open on the evidence.

Prior criminal record: The Court rejected the submission that the judge failed to explain how prior convictions would be taken into account. His Honour had used the record to deny leniency that might otherwise have been available if the conduct had appeared to be an aberration, which is a recognised and permissible sentencing approach.

Conditional liberty and the section 10 bond: The Court acknowledged that a section 10 bond does not constitute a conviction, so it cannot be treated as a prior conviction. However, the fact that the current offence was committed while the appellant was subject to that bond remained a legitimate sentencing consideration. Committing an offence while on conditional liberty is an aggravating factor, regardless of whether the instrument of that liberty is a conviction-based order or a non-conviction bond. The Court found his Honour had not impermissibly treated the bond as a conviction.

Manifest excess: Although the Court accepted the total term was towards the upper end of the range, it was not persuaded the sentence was manifestly excessive. The quantity and purity of cocaine were substantial (well above the 5-gram indictable threshold), the drug ledger strongly suggested an ongoing commercial enterprise, the appellant was on conditional liberty at the time, and he had prior convictions for drug supply. Statistical data from the Judicial Commission was of limited assistance given the small and anomalous cohorts involved. All six grounds of appeal were dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Committing an offence while subject to a section 10 bond (a non-conviction order) can properly be treated as an aggravating factor because the offence was committed on conditional liberty, even though the bond itself does not constitute a conviction.
  • A prior criminal record need not be exhaustively analysed in sentencing remarks; using it to deny leniency that might otherwise apply where the offence appears aberrant is a recognised and sufficient approach.
  • In assessing objective gravity for drug supply, indicators such as the presence of scales, resealable bags, mobile phones, cash, and a drug ledger can properly support a finding of a significant ongoing commercial enterprise.
  • Statistical sentencing data from the Judicial Commission is a blunt instrument and carries limited weight, particularly where the relevant cohort is small or produces anomalous results.
  • A sentence at the upper end of the range for commercial cocaine supply is not manifestly excessive where the quantity is substantial, purity is high, the enterprise is organised, and the offender has prior drug supply convictions and was on conditional liberty.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10

Cases
- R v Cage [2006] NSWCCA 304
- Corby v R [2010] NSWCCA 146
- Khoury v R [2011] NSWCCA 118
- Sivell v R [2009] NSWCCA 286
- Locke v R [2010] NSWCCA 296
- Mansour v R [2011] NSWCCA 28
- R v Walker [2005] NSWCCA 109
- Doolan v R (2006) 160 A Crim R 54
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Price [2005] NSWCCA 285
- R v McNaughton (2006) 66 NSWLR 566
- Frigiani v R [2007] NSWCCA 81
- Chaplin v R (2006) 160 A Crim R 85
- Lee v R [2011] NSWCCA 169
- R v Mills (2005) 154 A Crim R 40
- Van Can Ha v R [2008] NSWCCA 141