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39
Court of Criminal Appeal 18 October 2019

Karout v R

[2019] NSWCCA 253

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE OFFENCE NOT CARRYING STANDARD NON PAROLE PERIOD WHETHER DISPARITY ESTABLISHED

Citation: Karout v R [2019] NSWCCA 253
Court: Court of Criminal Appeal
Date: 18 October 2019
Judge(s): Hoeben CJ at CL, Brereton JA, Fullerton J

Background

The applicant pleaded guilty in the District Court to knowingly taking part in the supply of 140 grams of cocaine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending arose from a single visit to a factory in Kogarah where, under his father's direction, the applicant and others used a hydraulic press to re-block cocaine. Surveillance evidence showed the applicant had some prior knowledge of the process and brought the metal plates used in it.

The District Court sentenced the applicant to two years' imprisonment with a non-parole period of one year. The sentencing judge rejected a submission that the sentence be served by way of an Intensive Correction Order (ICO), citing the seriousness of the offence and principles of general deterrence. The judge also found special circumstances based on good rehabilitation prospects, and granted bail pending appeal.

The applicant sought leave to appeal on four grounds: that the sentencing judge erred in assessing objective seriousness; failed to properly consider community safety under section 66 when declining to impose an ICO; imposed a sentence manifestly disproportionate to that of his brother; and imposed a manifestly excessive sentence overall.

Legal Issues

  • Whether the sentencing judge was entitled to find, beyond reasonable doubt, that the applicant had supplied the metal plates used in the drug-blocking process, and to use that finding to elevate the objective seriousness of the offence
  • Whether the sentencing judge erred by failing to address the paramount consideration of community safety under section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when rejecting the application for an ICO
  • Whether an unjustifiable sentencing disparity arose from the difference between the applicant's sentence and that imposed on his brother
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Objective seriousness and the plates finding

The majority held that the sentencing judge was entitled to infer, beyond reasonable doubt, that the applicant had supplied the metal plates used in the re-blocking process (at [43]-[44]). The inference arose from words the applicant spoke during the recorded conversation, in context, about "professional" plates that someone had given him as a present, immediately after a co-participant raised the topic of plates snapping. No alternative hypothesis was identified (at [44]). While Brereton JA noted he would personally have placed the offence closer to the low range, the conclusion that it fell in the mid-range was not unreasonable or unavailable on the material (at [50]). Ground 1 was dismissed.

Ground 2: Section 66 and community safety

This ground divided the Court. Brereton JA (with whom Hoeben CJ at CL agreed on this ground) held that the sentencing judge's reasons did not permit the Court to discern how, if at all, his Honour had addressed the paramount consideration of community safety, and specifically whether an ICO would more likely address the risk of reoffending than full-time custody (at [60]). On resentencing, Brereton JA found that the applicant's compliance with bail conditions, engagement with psychological treatment, sustained drug abstinence, and family circumstances persuaded him that an ICO would much more likely address the risk of reoffending than full-time custody (at [75]). Brereton JA proposed resentencing to an ICO of 18 months (at [77]-[78]).

Fullerton J reached the opposite conclusion. Her Honour held that section 66 does not impose on a sentencing judge a freestanding obligation to give paramount consideration to community safety in a way that overrides broader sentencing principles (at [88]). Properly read, the sentencing judge's ex tempore reasons demonstrated that community protection was given appropriate weight as one discretionary consideration, and the objective seriousness of the offence and general deterrence legitimately overwhelmed other factors (at [93]-[94]). Her Honour found no error in the sentencing judge's approach to section 66 (at [91]).

The formal result, by majority (Hoeben CJ at CL and Fullerton J), was that the appeal was dismissed and the original sentence confirmed. The formal orders reflect Fullerton J's proposed disposition, including an adjustment to the commencement date to account for time served before appeal bail was granted.

Ground 3: Disparity with the brother's sentence

The Court held that the disparity between the applicant's sentence (two years, full-time) and his brother Ali Karout's sentence (18 months, wholly suspended) was justified by material differences between them (at [64]-[65]). Ali had no criminal record and played a very minimal, somewhat spontaneous role. The applicant, by contrast, had prior knowledge of the process, supplied the plates, and was subject to two section 10 good behaviour bonds at the time of the offence. Ground 3 failed (at [67]).

Ground 4: Manifest excess

For an offence carrying a maximum of 15 years' imprisonment, with a late guilty plea receiving a 20% discount, and in circumstances including a criminal history and commission of the offence while on two section 10 bonds, a non-parole period of one year and a balance term of one year was not unreasonable or plainly unjust (at [69]-[70]). Ground 4 failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Bail granted on 16 November 2018 revoked
  • The sentence of two years' imprisonment with a non-parole period of one year, imposed in the District Court on 6 November 2018, confirmed
  • The non-parole period adjusted to expire on 5 October 2020 and the balance of term to expire on 5 October 2021, to account for time served in custody prior to the grant of appeal bail

Key Takeaways

  • Under section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), community safety, including whether an ICO or full-time detention is more likely to address the offender's risk of reoffending, is the paramount consideration when a court decides whether to make an ICO, but the Court of Criminal Appeal was divided on whether a failure to explicitly address that question in sentencing reasons constitutes an error of law (at [60], at [88]-[91]).

  • Sufficient evidence existed for a sentencing judge to infer, beyond reasonable doubt, that an offender supplied equipment used in a drug re-blocking operation, even where this was not an expressly agreed fact, provided the inference was the obvious one from the agreed words spoken in context and no alternative hypothesis was identified (at [43]-[44]).

  • A sentencing disparity between co-offenders does not give rise to a justifiable sense of grievance where the difference is explained by material distinctions, including the absence of any prior criminal record for one offender, the gravity of each offender's individual role, and whether the more leniently sentenced offender was subject to existing good behaviour obligations (at [64]-[65]).

  • In dismissing the manifest excess ground, the Court confirmed that a non-parole period of one year and a total sentence of two years for a section 25(1) Drug Misuse and Trafficking Act offence (maximum 15 years), entered on a late guilty plea and committed while on two section 10 bonds, does not meet the threshold of being unreasonable or plainly unjust (at [69]-[70]).

  • Where an offence does not carry a standard non-parole period, a sentencing judge is still required to form a view on the objective gravity of the offending, but the strict Muldrock framework for comparing objective seriousness against the mid-range does not apply in its full rigour (at [39]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 66
- Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), (2)

Cases
- Ali v R [2010] NSWCCA 35
- Casella v R [2019] NSWCCA 201
- Gommeson v R [2012] NSWCCA 226
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2018] NSWCCA 2
- Hunter v R [2011] NSWCCA 141
- Khoury v R [2011] NSWCCA 118
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Fangaloka [2019] NSWCCA 173
- R v Georgopoulos [2010] NSWCCA 246
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Prasad, Krishnan, Prakash & Milford [2000] NSWCCA 539
- R v Pullen [2018] NSWCCA 264
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Zamagias [2002] NSWCCA 17
- Salafia v R [2015] NSWCCA 141
- Thomas v R [2019] NSWCCA 88