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Court of Criminal Appeal 21 February 2020

Ghalbouni v R

[2020] NSWCCA 21

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL PLEAS OF GUILTY

Citation: Ghalbouni v R [2020] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 21 February 2020
Judges: Macfarlan JA, Davies J, Hidden AJ (judgment delivered by Hidden AJ)

Background

The appellant pleaded guilty in the Local Court to two principal offences: ongoing supply of cocaine under the Drug Misuse and Trafficking Act 1985 (NSW), and dealing with the proceeds of crime under the Crimes Act 1900 (NSW). He was committed to the District Court for sentence, where the sentencing judge also took into account seven further offences listed across two Form 1 documents attached to each principal offence.

The appellant was sentenced to an aggregate term of 2 years and 9 months imprisonment, with a non-parole period of 1 year and 2 months, commencing 4 July 2019. He was 24 years old at the time of the offences, had no relevant prior convictions, and presented evidence of a dysfunctional background, polysubstance abuse, financial hardship, and a psychological nexus between his mental health conditions and the offending.

The appellant sought leave to appeal against the sentence on five grounds. The first three concerned errors in the sentencing judge's treatment of Form 1 offences. The remaining two concerned the judge's approach to the possibility of an intensive correction order (ICO), particularly the assessment of reoffending risk.

  • Whether one of the Form 1 offences (supply of MDMA) was established on the agreed facts, or whether the facts supported only possession rather than supply
  • Whether certain Form 1 offences were improperly cross-listed, in that offences referable to one principal offence were placed on the Form 1 attached to the other principal offence
  • Whether the sentencing judge erred in his approach to the likelihood of reoffending when assessing suitability for an ICO

Decision

The Court found that the agreed facts did not establish a supply offence in respect of the MDMA found at the appellant's home. The facts disclosed possession of 4.71 grams of MDMA in a safe, without any material linking it to a supply transaction. Placing a supply charge on the Form 1 in those circumstances was an error, as the facts needed to actually establish each Form 1 offence.

The Court also identified an error in the cross-referencing of Form 1 offences. On each Form 1, one offence was referable to the other principal offence rather than the one to which the Form 1 was attached. This constituted a further irregularity in the sentencing process.

On the ICO grounds, the Court found that the sentencing judge's concern about the appellant's financial stability, and the consequent reservation about reoffending risk, had improperly influenced the refusal to impose an ICO. The Court considered that the relevant statutory purpose of reducing reoffending was better served by rehabilitation through an ICO rather than full-time custody, given the appellant's subjective case, psychological treatment history, and the support structures available to him.

Taking these errors together, the Court granted leave to appeal, allowed the appeal, and resentenced the appellant to a reduced aggregate term of 2 years imprisonment to be served by way of an intensive correction order.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant resentenced to an aggregate term of 2 years imprisonment, commencing on the day of imposition, to be served by way of intensive correction in the community
  • Standard conditions imposed: no commission of any offence; submission to supervision by a Community Corrections officer
  • Additional conditions imposed:
  • Community service work for 120 hours
  • Participation in a rehabilitation program or receipt of treatment for drug addiction
  • Receipt of psychological treatment
  • Abstention from drugs (other than medication prescribed by a doctor)

Key Takeaways

  • A Form 1 offence must be established on the agreed facts before a sentencing court can take it into account. Listing a supply offence when the facts disclose only possession is an error capable of vitiating the sentence.
  • Under the Form 1 procedure in New South Wales, offences placed on a Form 1 must be referable to the principal offence to which that Form 1 is attached. Cross-referencing offences between Form 1 documents attached to different principal offences constitutes a procedural irregularity.
  • The Court of Criminal Appeal confirmed that when assessing suitability for an ICO, the sentencing court must direct its mind to the statutory purposes of the order, including rehabilitation, rather than declining the order solely on the basis of speculative financial risk without adequate evidential foundation.
  • In allowing the appeal, the Court reduced the aggregate term and imposed an ICO with targeted conditions addressing drug rehabilitation, psychological treatment, and community service, reflecting the weight given to the appellant's subjective circumstances and prospects of rehabilitation.
  • No single error alone necessarily warrants a different sentence; here, the combination of the Form 1 irregularities and the error in the ICO assessment cumulatively justified appellate intervention and resentencing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Crimes Act 1900 (NSW), s 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 66, 73, 73A

Cases:
- Abbas & Ors v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- C-P v R [2009] NSWCCA 291
- Cullen v R [2014] NSWCCA 162
- Doumit v R [2011] NSWCCA 134
- R v Boag (1994) 73 A Crim R 35
- R v Felton [2002] NSWCCA 443; (2002) 135 A Crim R 328
- R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
- Woodward v R [2017] NSWCCA 44