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Court of Criminal Appeal 26 July 2019

Chamoun v R

[2019] NSWCCA 169

Drugs
CRIME SENTENCE APPEAL PAROLE PERIOD OF 18 MONTHS

Citation: Chamoun v R [2019] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 26 July 2019
Judges: Gleeson JA, Harrison J, Adams J

Background

The appellant pleaded guilty in the District Court to one count of supplying not less than a commercial quantity of a prohibited drug (cocaine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending occurred between November 2011 and March 2012, when the appellant operated a tyre franchise in Bondi Junction and allowed the premises to be used as a base for cocaine supply. He was also involved in some direct supply transactions.

The sentencing judge imposed a term of three years imprisonment with a non-parole period of 18 months, applying a 10 per cent discount for the utilitarian value of the guilty plea. The plea was entered two days after the matter was listed for trial in 2017, approximately six years after charging.

The appellant sought leave to appeal the sentence on three grounds, arguing errors in the assessment of his role relative to a co-offender, in the treatment of delay leading up to his plea, and in the size of the discount applied for that plea.

  • Whether the sentencing judge erred in placing the appellant's role only slightly below that of his co-offender, Mr Ward, who had conducted the majority of the actual drug supply transactions.
  • Whether the sentencing judge erred by declining to find that the delay in entering the guilty plea was caused by factors outside the appellant's or his legal representative's control.
  • Whether a discount of only 10 per cent for the utilitarian value of the guilty plea was erroneous, when the appellant contended that 17 per cent was appropriate.

Decision

Ground 1 (Role Assessment): The Court found no error in the sentencing judge's conclusion that the appellant's role was slightly below that of Mr Ward. The agreed facts established that the appellant, as the business owner and employer, had proposed using the premises to supply cocaine as a way to generate money, retained a significant portion of the drug proceeds at his home, and was aware of and facilitated the supply operation. The sentencing judge was not required to find the appellant's role was significantly lesser simply because Mr Ward conducted most of the actual transactions. The Court noted it is not uncommon for those more senior in a criminal enterprise to distance themselves from the direct transactions.

Ground 2 (Delay and Guilty Plea): The sentencing judge declined to accept that the delay in entering the plea was attributable to factors outside the appellant's or his legal representative's control. A key reason for the delay was the operation of a restraining order under the Criminal Assets Recovery Act 1990 (NSW), which had frozen the appellant's assets and affected his ability to fund legal representation. However, the Court found that this situation was not inevitable: the appellant's solicitor could have applied for reasonable legal expenses under s 10B(3)(b) of that Act at any point during a four-year window, and had not done so. The Court held it was entirely open to the sentencing judge to attribute the delay to the appellant's own circumstances and choices.

Ground 3 (Size of the Discount): The Court confirmed that reasons for any delay in entering a plea are generally irrelevant to assessing its utilitarian value, which is concerned with foreclosing the prospect of a trial rather than explaining the offender's motivation. Even accepting that a larger discount might theoretically have been available, the appellant could not establish that 10 per cent fell outside the range reasonably open to the sentencing judge on the circumstances. The ground was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court may find that a business owner who proposes drug dealing on their premises and retains proceeds holds a role comparable to, or only slightly below, the co-offender who personally conducted most of the transactions, even without direct proof of a hierarchy beyond reasonable doubt.
  • Where a defendant's delay in retaining legal representation stems from a frozen asset order, the utilitarian value of a late guilty plea is not automatically enhanced: the Court of Criminal Appeal confirmed that an application for legal expenses under the Criminal Assets Recovery Act 1990 could and should have been made, and the failure to do so was not a factor outside the defendant's control.
  • In dismissing the appeal on the plea discount, the Court reaffirmed the principle from R v Borkowski that reasons for delay in entering a plea are generally irrelevant to assessing utilitarian value.
  • No error is established merely by showing that a sentencing judge could have applied a larger discount; the appellant must demonstrate the discount actually applied fell outside the range reasonably open to the court.
  • Exceptional hardship to a defendant's partner and children, combined with evidence of full rehabilitation and very low likelihood of reoffending, may be taken into account in sentencing, but those factors did not displace the need for a full-time custodial sentence in this case.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Crimes Act 1900 (NSW), ss 93T(1), 193B(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Assets Recovery Act 1990 (NSW), ss 10A, 10B(3)(b)

Cases:
- Mulato v R [2006] NSWCCA 282
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102