Citation: Abdul-Hamid v R [2016] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 21 June 2016
Judges: Basten JA, Schmidt J, Wilson J
Background
The applicant was convicted after a judge-alone trial in the District Court of knowingly taking part in the supply of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence occurred over two days in July 2013 and involved the applicant funding and directing a co-offender, Ibrahim, who collected a package containing approximately 168 grams of methylamphetamine from a contact in Narwee, Sydney.
Police intercepted telephone calls between the applicant and Ibrahim during the operation. Those recordings captured the applicant speaking in a commanding and impatient tone, directing Ibrahim's movements and discussing the recovery of the drugs after Ibrahim threw the package from a moving vehicle to avoid surveillance. A subsequent search of the applicant's home uncovered cash, digital scales, resealable bags, counter-surveillance devices, and what appeared to be tick lists recording drug debts.
The applicant was sentenced to five years' imprisonment with a non-parole period of three years. He sought leave to appeal against sentence on a single ground: that the sentencing judge erred in assessing the objective gravity of the offence by incorrectly finding that he knew the quantity of drugs involved and that his role was more significant than Ibrahim's.
Legal Issues
- Whether the sentencing judge erred in finding that the applicant knew the quantity of methylamphetamine being purchased by Ibrahim
- Whether the sentencing judge erred in finding that the applicant played a more significant role in the offence than his co-offender Ibrahim
- Whether those factual findings, if erroneous, affected the proper assessment of the objective gravity of the offence for sentencing purposes
Decision
Wilson J (with whom Basten JA and Schmidt J agreed) rejected both limbs of the proposed ground of appeal. Her Honour held that the sentencing judge's findings were well open on the evidence before the court, and that the applicant had failed to demonstrate any appellable error.
On the question of knowledge of quantity, the Court noted that the intercepted calls showed the applicant asking whether the package was "hidden well," inquiring about its recovery, and discussing its location in specific terms. Those conversations strongly supported an inference that he knew what had been purchased and in what quantity. The Court also noted that the applicant, through counsel, had not objected to the Crown's summary of facts at sentencing, and that summary explicitly described the money handed to Ibrahim as being for the purchase of prohibited drugs the following day.
On the question of comparative role, the Court found the evidence supported the conclusion that the applicant directed the operation. He provided the funds, issued instructions using commanding language, and remained involved throughout both days. The fact that the applicant controlled the money used to purchase the drugs was itself indicative of both a superior role and knowledge of what was being acquired.
The Court also briefly addressed a drafting error in the indictment, which averred the offence occurred "between" 17 and 18 July 2013 rather than "on" those two dates. The point had not been raised at trial or on appeal. The Court confirmed the error did not vitiate the indictment, as time was not of the essence and the actual dates were clearly established by the evidence.
Orders Made
• Leave to appeal is not granted
Key Takeaways
- Leave to appeal against sentence was refused, with the Court of Criminal Appeal confirming that sentencing judges may make findings of fact from all available evidence, including intercepted communications, provided those findings are consistent with the verdict.
- Where an applicant expressly embraces the Crown's factual summary at a sentencing hearing without objection, that conduct weighs against later challenging those facts on appeal.
- A finding that an accused controlled the funds used to purchase prohibited drugs can support concurrent inferences of both knowledge of the quantity being acquired and a superior organisational role relative to a co-offender who physically collected the drugs.
- No error was established simply because the co-offender physically collected and handled the drugs. Relative culpability turns on the totality of each participant's conduct, not on who physically possessed the contraband.
- Under s 16(1) of the Criminal Procedure Act 1986 (NSW), a minor misdescription of dates in an indictment does not invalidate a conviction where time is not of the essence and the actual dates of the offence were clearly established on the evidence.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Criminal Procedure Act 1986 (NSW), s 16(1)
- Evidence Act 1995 (NSW), s 38
Cases
- R v Isaacs (1997) 41 NSWLR 374
- Mulato v R [2006] NSWCCA 282
- DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R 555
- R v Dossi (1918) 13 Cr App R 158
- R v VHP (1997) 4 Crim LN 44