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Court of Criminal Appeal 2 October 2002

R v Yaghi [2002] NSWCCA 396 revised - 14

[2002] NSWCCA 396

Also reported as (2002) 133 A Crim R 490
Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE GUILTY PLEA TAKE PART IN SUPPLY OF COCAINE FORM 1 PARITY OF SENTENCE WITH CO OFFENDER.

Citation: R v Yaghi [2002] NSWCCA 396; (2002) 133 A Crim R 490
Court: NSW Court of Criminal Appeal
Date: 2 October 2002
Judge(s): Wood CJ at CL; Smart AJ

Background

The appellant was a serving police officer who pleaded guilty in the District Court to conspiracy to supply not less than a large commercial quantity of heroin. A separate offence of knowingly taking part in the supply of a commercial quantity of cocaine was taken into account on a Form 1 (a document listing additional offences to be considered at sentencing without a separate conviction being recorded).

The heroin conspiracy involved negotiations between May and June 1999 to supply approximately 1,400 grams of heroin to a buyer known as "Brian" for around $240,000. Crucially, the transaction was in fact a planned "rip-off": the conspirators never intended to supply the drugs, but rather intended to steal the purchase money by force if necessary. The cocaine offence, by contrast, involved a genuine intended transaction for around 450 grams of cocaine. As a police officer, the appellant exploited his professional knowledge during the operation, detecting surveillance and using false identities and phones obtained in false names.

The District Court sentenced the appellant to 10 years imprisonment with a non-parole period of 6 years and 6 months. The appellant sought leave to appeal on the grounds that the heroin offence was miscategorised, that the sentence was manifestly excessive, and that it lacked parity with the sentence imposed on his co-offender, Ned Hammoud.

  • Whether the sentencing judge correctly characterised the heroin conspiracy as a "major drug crime" given that it was a rip-off with no actual intention or ability to supply
  • Whether the head sentence of 10 years was manifestly excessive in the circumstances
  • Whether the sentence lacked appropriate parity with the sentence imposed on co-offender Hammoud

Decision

The Court of Criminal Appeal accepted that the rip-off character of the heroin conspiracy was a mitigating factor, drawing on the earlier decision in Regina v Kalpaxis, which had placed offences involving no genuine intention or ability to supply at the less serious end of the spectrum. However, the Court distinguished the appellant's case from Kalpaxis on the basis that the present operation was organised, systematic, and conducted by people with real connections to the drug trade. The intended theft was to be achieved by force if necessary, with a co-conspirator found in possession of a firearm and bulletproof vest.

The Court found that the original 10-year sentence was excessive and out of proportion when compared with Hammoud's sentence. For a well-planned rip-off of this kind, involving persons embedded in the drug trade and significant quantities of drugs, the Court considered an appropriate head sentence would ordinarily fall in the range of 5 to 6 years. Given the aggravating features of the appellant's case, specifically the Form 1 cocaine offence and his serious abuse of his position as a police officer, a somewhat higher sentence was warranted.

The Court also upheld a finding of special circumstances justifying a longer-than-standard parole period, noting the appellant's vulnerability as a former police officer in custody, the need for long-term supervision following release, and the importance of rehabilitation given the loss of what had been a worthwhile career.

Orders Made

  • Leave to appeal granted
  • Sentence below quashed
  • In lieu thereof, the appellant sentenced to imprisonment for 7 years and 6 months, commencing 15 December 1999 and expiring 14 June 2007
  • Non-parole period of 5 years set, commencing 15 December 1999 and expiring 14 December 2004

Key Takeaways

  • Where a drug conspiracy is structured as a "rip-off" with no genuine intention or ability to supply, the offence falls toward the less serious end of the spectrum under the Drug Misuse and Trafficking Act 1985, even though the statutory offence is technically made out.
  • The rip-off character of an offence does not automatically produce a low sentence: the Court of Criminal Appeal confirmed that organisation, planning, links to the actual drug trade, and the involvement of threatened force remain significant aggravating features.
  • A substantial abuse of a position of public trust, such as a police officer exploiting professional skills to evade detection during criminal activity, warrants an uplift in sentence beyond what would otherwise be appropriate.
  • Parity principles require that co-offenders with materially similar culpability not receive sentences so divergent as to create a justifiable sense of grievance; the disparity between the appellant's original sentence and Hammoud's sentence contributed to the finding of error below.
  • Special circumstances justifying a longer parole period than the statutory norm can be established where a former law enforcement officer faces ongoing vulnerability in custody and requires extended supervision and rehabilitation support after release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 71 ALJR 875
- Regina v Kalpaxis (2001) 122 A Crim R 320
- Regina v Hammoud [2000] NSWCCA 540
- R v Droubi [2002] NSWCCA 269
- R v Glasby [2000] NSWCCA 83
- Regina v Harris [2001] NSWCCA 332
- Regina v Ilbay [2000] NSWCCA 251
- Regina v Lemene (1999) 118 A Crim R 131
- Regina v Scognamiglio (1991) 56 A Crim R 81
- R v Reid [2000] NSWCCA 166
- Ryan v The Queen (2001) 75 ALJR
- R v Addison (1993) 70 A Crim R 213
- R v Dessdic and Mazzeo (1987) 34 A Crim R 40
- R v Diamond NSWCCA 18 February 1993
- R v Draper NSWCCA 12 December 1986
- Regina v Letteri NSWCCA 18 March 1992
- R v Hopper NSWCCA 19 November 1998
- R v Salem NSWCCA 3 October 1997