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Court of Criminal Appeal 5 April 2019

Mezher v R

[2019] NSWCCA 76

DrugsPublic order & justice offences
CRIME APPEAL AGAINST SENTENCE SENTENCE MENTAL HEALTH

Citation: Mezher v R [2019] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 5 April 2019
Judges: Hoeben CJ at CL, Price J, Adamson J

Background

The applicant pleaded guilty in the District Court to three counts of supplying prohibited drugs contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW): supply of a large commercial quantity of MDA, supply of a large commercial quantity of bromo (4-bromo-2,5-dimethoxy-phenethylamine), and supply of a commercial quantity of cocaine. He also pleaded guilty to one count of perverting the course of justice by producing a fabricated document during a bail application. Two additional offences, including supply of a commercial quantity of MDMA, were placed on a Form 1 to be taken into account on sentencing.

The offending arose from a sustained drug supply arrangement between the applicant and a co-offender known as "Alpha," which was uncovered by police through telecommunications interception and surveillance warrants beginning in 2013. The applicant supplied drugs over a period of months and received substantial cash payments in return.

The District Court sentenced the applicant to an aggregate term of 12 years imprisonment with a non-parole period of 8 years for the drug supply counts (commencing 26 January 2017), and a concurrent fixed term of 1 year for the perverting justice count. The applicant sought leave to appeal against the aggregate sentence.

  • Whether the sentencing judge erred by proceeding on an incorrect large commercial quantity threshold for bromo, resulting in a miscalculation of the objective seriousness of that offence.
  • Whether the sentencing judge impermissibly had regard to uncharged drug trafficking conduct when assessing the objective seriousness of the supply offences.
  • Whether the sentencing judge erred in finding that the applicant was making a profit from the drug supply.

Decision

The Court of Criminal Appeal found error on the first ground. The sentencing judge had been informed of an incorrect large commercial quantity for bromo. The correct large commercial quantity was 0.1 kilograms, and the judge worked from a different figure, which infected the assessment of the objective gravity of Count 2. This constituted a material error warranting resentence.

On the second ground, the Court found that the sentencing judge had impermissibly used uncharged drug trafficking conduct to aggravate the objective seriousness of the charged offences. While such conduct can be relevant in limited circumstances, using it to elevate the seriousness of the counts before the court, rather than treating it as additional context, exceeded the proper limits of the sentencing exercise.

On the third ground, the Court found error in the judge's finding that the applicant was making a profit. The agreed facts did not support that conclusion with sufficient certainty. The Court held that doubt about the profit finding should have been resolved in the applicant's favour.

Having identified error on all three grounds, the Court conducted an independent resentencing exercise. It reduced the aggregate sentence for Counts 1, 2 and 3, leaving the sentence for Count 4 and its commencement date unchanged. The Court also noted, in relation to the earlier decision in Assam v R [2019] NSWCCA 12, that its outcome was driven by complex parity considerations and has limited application beyond its own facts.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed in the District Court on 11 May 2018 for Counts 1, 2 and 3 is quashed.
  • For Counts 1, 2 and 3, the applicant is sentenced to imprisonment of 11 years 4 months commencing 26 January 2017 and expiring 25 May 2028, with a non-parole period of 7 years 6 months expiring 25 July 2024.
  • The earliest date the applicant is eligible for release on parole is 25 July 2024.
  • The fixed term of 1 year imprisonment for Count 4 and its commencement date remain unchanged.

Key Takeaways

  • A sentencing court proceeding on an incorrect statutory threshold quantity for a prohibited drug commits a material error that will ordinarily require the sentence to be set aside and the matter resentenced.
  • Where agreed facts do not clearly establish that an offender was making a profit from drug supply, doubt on that question must be resolved in the offender's favour rather than treated as an aggravating factor.
  • Uncharged drug trafficking conduct cannot properly be used to elevate the objective seriousness of the charged offences themselves, even where such conduct is otherwise before the court for contextual purposes.
  • In dismissing the broader significance of Assam v R [2019] NSWCCA 12, the Court of Criminal Appeal confirmed that the decision's utility is confined to its particular parity circumstances and does not lay down principles of general application.
  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985, supplying not less than the large commercial quantity of a prohibited drug carries a maximum of life imprisonment and a standard non-parole period of 15 years, reflecting the severity with which the legislature treats offending at that level.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), ss 93T, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Assam v R [2019] NSWCCA 12
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Kelly v R [2018] NSWCCA 44
- Lago v R [2015] NSWCCA 296
- Murray v R [2017] NSWCCA 262
- Jaafar v R [2017] NSWCCA 223
- Pham v R [2013] NSWCCA 217
- Melikian v R [2008] NSWCCA 156
- Aslan v R [2014] NSWCCA 114