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Court of Criminal Appeal 4 June 2021

Abousleiman v R

[2021] NSWCCA 110

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SINGLE GROUND MANIFEST EXCESS DRUG SUPPLY ONGOING SUPPLY OF COCAINE

Citation: Abousleiman v R [2021] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 4 June 2021
Judge(s): Davies J, Hamill J, Wilson J

Background

The applicant pleaded guilty in the Parramatta District Court to two drug offences: ongoing supply of cocaine (contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW)), and supply of not less than a commercial quantity of MDMA (193.86 grams, contrary to s 25(2)). Two further offences, dealing with the proceeds of crime and supplying 4.1 grams of cocaine, were taken into account on a Form 1.

The offending occurred in November 2017 and involved ten meetings with an undercover police officer, during which the applicant supplied cocaine on eight occasions (increasing in quantity) and MDMA on three occasions. The applicant described himself as a "middle person" with access to multiple suppliers. He was arrested on 30 November 2017 and had $20,000 concealed on his person, as well as further cash found during a subsequent search of his home.

Acting Judge Delaney sentenced the applicant to an aggregate term of 5 years and 6 months' imprisonment with a non-parole period of 3 years, backdated to 22 April 2019. A 25% discount was applied for early guilty pleas, and special circumstances were found, resulting in a non-parole period representing approximately 54% of the total sentence rather than the standard 75% ratio.

  • Whether the aggregate sentence of 5 years and 6 months was manifestly excessive, having regard to the applicant's compelling subjective circumstances.

Decision

The sole ground of appeal was manifest excess. The Court confirmed that to succeed on this ground, the applicant needed to establish that the sentence was unreasonable, plainly wrong, or unjust, following House v The King, Lowndes v R, and Dinsdale v R. An intermediate appellate court cannot interfere merely because it might have exercised the sentencing discretion differently.

The Court accepted that the applicant's personal circumstances warranted substantial weight. The deaths of his cousins had contributed to a downward spiral into serious drug dealing, he had no relevant criminal history, and he had made significant rehabilitative progress while on bail. The sentencing judge had addressed these matters carefully and comprehensively, and had already made a generous departure from the standard non-parole period ratio by finding special circumstances.

The Court found that the offending was objectively serious. The applicant was not a low-level street dealer. He had access to large and increasing quantities of drugs from multiple suppliers, accommodated escalating demands readily, and engaged in repetitive dealing over a sustained period. The sentencing judge's assessment of objective gravity was not challenged.

Hamill J concluded the aggregate sentence sat at the upper end of the legitimately available range given the compelling subjective case, but remained within the proper exercise of the sentencing discretion and was not unreasonable, plainly wrong, or unjust. Davies J and Wilson J each respectfully disagreed with that characterisation of the sentence as being at the upper end of the range, though both otherwise agreed with Hamill J's reasoning and proposed orders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence is manifestly excessive only if it is unreasonable, plainly wrong, or unjust; an appellate court will not intervene merely because it would have sentenced differently.
  • Sentencing courts retain considerable flexibility in weighting subjective factors, but a powerful subjective case cannot produce a sentence that fails to reflect the objective gravity of the offending, as confirmed by the Court of Criminal Appeal citing Edwards v R [2021] NSWCCA 57.
  • The applicant's role as a "middle person" with access to multiple suppliers and progressively increasing quantities placed him above a low-level street dealer, a characterisation that bore directly on the objective seriousness assessment.
  • A substantial departure from the standard non-parole period ratio (here, approximately 54% rather than the statutory 75%) represents a significant concession already built into a sentence, relevant to any manifest excess argument.
  • In dismissing the appeal, the Court demonstrated a readiness to accept minor internal disagreement among judges on whether a sentence sits at the upper end of an available range, without that disagreement affecting the outcome where all judges agree the sentence remained within the permissible exercise of discretion.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Crimes Act 1900 (NSW), s 193(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Edwards v R [2021] NSWCCA 57
- Glare v R [2015] NSWCCA 194
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25