Appeals Court Finds Sentence for Drug Offences to be Manifestly Excessive

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By Paul Gregoire and Ugur Nedim

On the evening of 26 May 2016, NSW police executed a search warrant at the Westmead home of Shahab Jawosh. During the search, officers seized a range of drugs, including 286 grams of opium, 30 grams of methamphetamine, 0.44 grams of MDMA and 173 grams of cannabis.

Police located two Tasers in a hallway cupboard, as well as a slingshot in a rear bedroom. Handwritten ledgers documenting drug transactions were found in the laundry, along with several electronic scales.

Officers also found a swag of prescription medicines, including 7 Fentanyl patches, 260 Oxycodone tablets, 4 vials of methadone and 4.63 grams of Alprazolam. Cash in the sum of $1,140 was also found, which police suspected of being the proceeds of drugs sales.

Mr Jawosh entered pleas of guilty in the Local Court to a range of offences. He was committed for sentencing in Parramatta District Court in July last year for five indictable offences and three summary offences.

A long list of charges

In respect of the opium and methamphetamine, Mr Jawosh pleaded guilty to two counts of supplying an indictable quantity of a prohibited drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (DMT Act).

The maximum penalty for the offence is 15 years in prison and/or a fine of $220,000.

For the Tasers and slingshot, he pleaded guilty to three counts of possessing a prohibited weapon without a permit contrary to section 7(1) of the Weapons Prohibition Act 1998, which attracts a maximum penalty of 14 years behind bars.

The offence also carries a standard non-parole period (SNPP) of 5 years. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

Mr Jawosh additionally pleaded guilty to one count of possessing a prohibited substance contrary to section 10(1) of the DMT Act, in relation to the cannabis in his possession. The offence carries a maximum 2 year prison sentence and/or a fine of $2,200.

Section 193C of the Crimes Act 1900 makes it a crime to deal with the suspected proceeds of crime. Mr Jawosh pleaded guilty to one count of this summary offence, the maximum penalty for which is 2 years imprisonment and/or a fine of $5,500.

He also pleaded to knowingly allowing his premises to be used as a drug premises contrary to section 36Y of the DMT Act. For a first offence, this offence carries a maximum penalty of 12 months imprisonment and/or a fine of $5,500.

The sentencing judge also took into account nine further offences on sentencing. Eight of these related to the possession of prescribed restricted substances and one to the possession of the MDMA.

The District Court proceedings

NSW District Court Judge Andrew Colefax heard that Mr Jawosh was born in Iraq and fled to Iran with his family as a refugee when he was just 4 years old. His early childhood was “highly confronting” and resulted in post-traumatic stress disorder.

A year after arriving in Australia in 1999, he suffered a back injury, which led to him being on the disability support pension. Both his psychological distress and physical pain caused him to develop a dependency upon prescription medicines.

A psychologist’s report explained that the opium in his possession was both for personal use, as well as for sale, which the sentencing judge accepted. But his Honour found no explanation for the Tasers, which led him to the conclusion that “their possession was connected with his dealing in drugs.”

Judge Colefax assessed the drug supply offences as “slightly below the midrange” of objective seriousness, while the Taser possession was “somewhere equidistant between the middle of the range and the bottom of the range”. He found that the slingshot possession was “at the bottom of the range.”

On 4 July last year, his Honour sentenced Mr Jawosh to 8 years imprisonment, with a non-parole period of 4 years. This was after a 25 percent discount had been applied due to his early guilty pleas.

The sentencing judge found ‘special circumstances’ in accordance with section 44 of the Crimes (Sentencing Procedure) Act 1999 and thereby allowed for a longer parole period, because of the offender’s conditions.

The first ground of appeal

Mr Jawosh appealed his sentence to the NSW Criminal Court of Appeal (NSWCCA) on 13 July this year on two grounds. The first ground was that the sentencing judge erred by finding that the “only rational inference” for the possession of the Tasers was they were linked to Jawosh’s drug dealing.

The offender’s criminal defence lawyer submitted there was no evidence to support this inference, and that Judge Colefax gave no reasons for drawing it. It was further submitted that his Honour gave no explanation as to the effect this finding had on the sentence.

NSWCCA Justice Robert Hulme rejected this ground for three reasons. The first was that an appeal is “not an opportunity to present a reformulated plea in mitigation.”

His Honour noted that the ground focused on the seriousness applied to the Taser possession, but did nothing to challenge the objective seriousness the judge ultimately found it to have.

According to Justice Hulme, if this error was established, its effect on the aggregate sentence would have been “quite minimal.”

Manifestly excessive

The second ground of appeal was that the sentence was manifestly excessive based upon the indicative sentences given for each separate offence, especially the offences relating to the supply of illegal drugs. Justice Hulme agreed this was the case.

His Honour noted the sentencing judge had found the objective seriousness of all the offences below the mid-range.

He outlined that prior to the discount being applied, Jawosh was sentenced to 8 years for the opium possession, which is quite high against a maximum penalty of 15 years. He also found the initial sentence of 6 years and 6 months for the methamphetamine charge to be high.

The appeals justice also noted that for the cannabis possession and the proceeds of crime offences, the sentencing judge imposed the maximum penalty prior to the discount, while the sentence for the drug premises offence actually exceeded the maximum penalty.

“An aggregate sentence of imprisonment for 8 years was, in all of the circumstances, an unreasonable outcome,” Justice Hulme determined. “I am satisfied that it is a sentence that is manifestly excessive.”

Resentencing

On 10 August this year, his Honour allowed the appeal and ordered the District Court sentence be quashed.

In regard to his new sentence, Justice Hulme agreed that Mr Jawosh should retain the 25 percent discount for his early guilty pleas. His Honour took into account several disciplinary infractions since his initial sentencing, to reach the conclusion that his rehabilitation prospects were only reasonable.

The indicative sentences imposed by the appeals court for each of the drug offences and the proceeds of crime offence were all reduced. The sentences for the taser possession remained the same, and the sentence for slingshot possession was increased from 3 months to 6 months.

Justice Hulme said that four years was still “the appropriate period of custody to reflect all of the relevant sentencing factors, particularly the applicant’s overall criminality.” He ordered that Mr Jawosh be sentenced to 6 years and 6 months imprisonment, with a non-parole period of 4 years.

NSWCCA Justices Anthony Payne and Richard Button agreed with the orders.

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