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125
Court of Criminal Appeal 22 May 2013

Abbas, Bodiotis, Taleb and Amoun v R

[2013] NSWCCA 115

Also reported as (2013) 231 A Crim R 413
Drugs
CRIMINAL LAW APPLICATIONS TO APPEAL AGAINST SENTENCE FOUR APPLICANTS APPLICANTS PLEAD GUILTY SENTENCING PURPOSE OF FORM 1 PROCEDURE WHETHER SENTENCES LACKED PARITY

Citation: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Court: Court of Criminal Appeal
Date: 22 May 2013
Judge(s): Bathurst CJ, Basten JA, Hoeben CJ at CL, Garling J, Campbell J

Background

Four applicants each pleaded guilty to offences involving the supply of commercial quantities of prohibited drugs (primarily methylamphetamine), arising from a series of transactions conducted under the direction of a prisoner running a drug syndicate from inside Lithgow Correctional Centre. The offences spanned six separate drug transactions, with different applicants playing different roles: organising supply, sourcing drugs, transporting them interstate, and purchasing them for resale.

Three of the four applicants (Abbas, Bodiotis, and Amoun) also asked the sentencing judge to take into account additional uncharged offences under the "Form 1" procedure in the Crimes (Sentencing Procedure) Act 1999 (NSW). This procedure allows an offender to formally admit guilt to other charges, have those offences noted against the principal offence, and thereby obtain protection from future prosecution for those matters. The sentencing judge increased the sentence on the principal offences to reflect the additional criminality disclosed by the Form 1 matters.

Three of the applicants argued that this approach was legally wrong. They contended that the increase in sentence effectively punished them for offences of which they had not been convicted. Taleb was not party to that argument, but raised separate grounds concerning his own sentence.

Legal Issues

  • Whether a sentencing court errs by increasing the sentence for a principal offence to reflect the "additional criminality" disclosed in Form 1 offences, given that those offences have been admitted but not proven to conviction
  • Whether the guideline judgment in Attorney General's Application No 1 of 2002 [2002] NSWCCA 518 had been correctly applied or misapplied by the sentencing judge
  • Whether the approach of Adams J in Dionys v R [2011] NSWCCA 272 and R v Calcutt [2012] NSWCCA 40, limiting the role of Form 1 offences to informing the subjective character of the principal offence only, was correct
  • Whether sentences imposed on Abbas and Taleb were manifestly excessive or lacked parity with co-offenders
  • Whether Bodiotis's prospects of rehabilitation were correctly assessed
  • Whether the discount given to Amoun for assistance to authorities was adequate

Decision

Ground 1 (Abbas, Bodiotis, Amoun): Form 1 offences and the permissible basis for increasing sentence

The five-judge bench unanimously rejected the argument that the sentencing judge erred by increasing the sentence on the principal offence to reflect the additional criminality of the Form 1 matters. The majority confirmed the "bottom up" approach established in the guideline judgment: a court sentences only for the principal offence, but the existence of admitted further offences may justify a longer sentence for that offence by giving greater weight to personal deterrence and the community's entitlement to extract retribution.

Bathurst CJ (with whom Hoeben CJ at CL, Garling J, and Campbell J agreed) held that the approach favoured by Adams J in Dionys and Calcutt was incorrect to the extent it suggested a sentence cannot be increased to reflect an additional need for deterrence and retribution arising from the Form 1 offences. The court confirmed that taking Form 1 offences into account as part of an "instinctive synthesis" does not mean the offender is being sentenced for those offences; it means relevant sentencing factors bearing on the principal offence are weighted accordingly. The constraint is that the sentence must not exceed the statutory maximum for the principal offence.

Basten JA agreed that no error was established. His Honour noted the tension within the guideline judgment itself but concluded that what the guideline had clearly rejected was only the "top down" approach, which involves calculating sentences for all offences and then applying a discount. Taking Form 1 offences into account in a way that effectively increases the penalty for the principal offence is what the statute contemplates. Campbell J added that any meaningful engagement with the Form 1 offences necessarily requires some assessment of the criminality they involve, and that this is built into the legislative design.

Ground 2 (Abbas): Parity with Bodiotis

The court found no justifiable sense of grievance. Although Bodiotis received a shorter sentence on an equivalent count, the overall sentencing picture was materially different: Bodiotis faced four counts and three Form 1 matters, requiring careful application of the totality principle across a more complex matrix. The discrepancy was adequately explained and did not constitute a marked or clearly unjustifiable disparity warranting interference.

Ground 3 (Abbas): Manifest excess

The court found the sentences were within the sentencing judge's discretion and were not manifestly excessive. General deterrence is a significant consideration for those who play important roles in the supply of commercial quantities of prohibited drugs, and the sentences reflected that.

Taleb's grounds: Role, parity, family hardship, manifest excess

All of Taleb's grounds were rejected. The sentencing judge's assessment of Taleb as a courier performing a significant but limited role was well open on the facts. The 6-month difference in effective custody time between Taleb and Bodiotis did not produce a justifiable grievance, particularly given Bodiotis's greater criminality and the complexity of his sentencing exercise. The weight given to family hardship and the discount for a guilty plea (25%) were not demonstrated to be erroneous.

Bodiotis: Ground 1 (rehabilitation), Grounds 2 and 3 (parity and manifest excess)

The court rejected all grounds. The sentencing judge's conclusion that he could not make any meaningful prediction as to Bodiotis's rehabilitation prospects was supported by a guarded psychological prognosis and the offender's history of drug dependency, gambling addiction, and prior convictions. No manifest excess was established in respect of an effective sentence of 9 years and 3 months with a non-parole period of 6 years and 3 months. The comparison with the co-offender OS1 (who received a substantially greater starting point before discount) was not apt, given the significant differences in criminality, charges, and subjective circumstances.

Amoun: Ground 1 (discount for assistance to authorities)

This was the sole ground on which an appeal succeeded. Amoun had provided a statement in 2009 that the Crown acknowledged was an important factor in securing the guilty pleas of 16 co-accused. He also agreed to give evidence if required. The sentencing judge allowed only 12.5% for assistance to authorities (giving a combined discount of 25%), compared with the 60% combined discount allowed by the Court of Criminal Appeal on appeal to OS1, who also provided assistance. Garling J held that a discount of 12.5% for assistance significantly underestimated the value of Amoun's contribution, and assessed the appropriate combined discount at 35%. The sentence was quashed and the applicant re-sentenced accordingly.

Amoun: Ground 2 (duress and influence of older brother)

The court rejected this ground. The sentencing judge found Amoun had genuine reason to fear his brother Bassam Hamzy, but also found conduct inconsistent with acting purely out of fear, including tampering with drugs on one occasion and admitting to the psychologist that money was a factor. The conclusion that fear did not significantly reduce moral culpability was open and disclosed no error.

Orders Made

  • Abbas: Leave to appeal granted; appeal dismissed.
  • Taleb: Leave to appeal granted; appeal dismissed.
  • Bodiotis: Leave to appeal granted; appeal dismissed.
  • Amoun: Leave to appeal granted; appeal upheld; sentence quashed and re-sentenced as follows:
  • Count 1 (with Form 1 matters): non-parole period of 4 years and 4 months from 30 April 2012, balance of term 2 years and 7 months (total expires 29 March 2019)
  • Count 2: non-parole period of 3 years and 5 months from 30 January 2011, balance of term 1 year and 9 months (total expires 29 March 2016)
  • First eligible for release: 29 August 2016

Key Takeaways

  • A sentencing court applying the Form 1 procedure under the Crimes (Sentencing Procedure) Act 1999 (NSW) is permitted to increase the sentence for the principal offence to reflect the additional need for personal deterrence and retribution arising from admitted further offences, without this constituting punishment for offences not the subject of a conviction.
  • The Court of Criminal Appeal confirmed, by a five-judge bench, that the "bottom up" approach in the guideline judgment (Attorney General's Application No 1 of 2002) remains the correct framework: the focus stays on the principal offence, but Form 1 offences are a legitimate factor in an instinctive synthesis of the appropriate sentence for that offence.
  • The approach favoured by Adams J in Dionys and Calcutt, limiting Form 1 offences to informing only the subjective character of the principal offence and denying any role for retribution referrable to those matters, was rejected by the majority as inconsistent with both the statute and the guideline judgment.
  • Where the criminality disclosed by Form 1 offences is substantial, the resulting increase in the sentence for the principal offence may itself be substantial; proportionality is assessed by reference to the full range of factors including those arising from the Form 1 matters, not by reference to the range appropriate to the principal offence alone.
  • A discount for assistance to authorities must reflect the actual value and risk of the assistance provided; a 12.5% discount was held to significantly underestimate the contribution of an offender whose statement to police was acknowledged by the Crown to have secured guilty pleas from 16 co-accused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes Act 1900
- Criminal Code (WA)
- Criminal Procedure Act 1986
- Crimes (Sentencing Procedure Act) 1999
- Drug Misuse and Trafficking Act 1985

Cases
- Anderson v Director of Public Prosecutions (1978) AC 964;
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146;
- DGM v R [2006] NSWCCA 296;
- Dionys v The Queen [2011] NSWCCA 272; (2011) 217 A Crim R 280;
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1; 266 ALR 598;
- Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395;
- Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348;
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606;
- Markarin v The Queen [2005] HCA 25; (2005) 228 CLR 357;
- Metropolitan Water Board v Assessment Committee of the Metropolitan Burrough of St Marylebone (1923) 1 KB 86;
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120;
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295;
- R v AEM Senior [2002] NSWCCA 58;
- R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185;
- R v Calcutt [2012] NSWCCA 40;
- R v Grube [2005] NSWCCA 140;
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466;
- R v Jones (1978) Tas SR 126;
- R v Miles [2006] EWCA Crim 256;
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270;
- R v Syres (1908) 25 TLR 71;
- R v Toudevin [1996] 2 VR 402;
- Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252;
- The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383;
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465;
- Weininger v R [2003] HCA 14; (2003) 212 CLR 629