Factors are not ‘Aggravating’ if they are Implicit in the Offence

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By Paul Gregoire and Ugur Nedim

On 24 August 2006, a NSW police undercover operative spoke to Bilal Mansour on his mobile phone and arranged to purchase 3.5 grams of cocaine from him for $1,250. Mansour then drove from his place to his parent’s home, where the deal took place on the veranda.

The undercover and Mansour repeated the transaction on the veranda on 31 August. A week later, an undercover arranged to purchase 28 grams of cocaine for $6,500. The deal once again took place on the veranda.

Analysis of the substances found their total weight to be a little over 34 grams, which is an indictable amount of cocaine under state law.

On 15 September, NSW police executed a warrant at Mansour’s home, where he lived with his partner and her two children. They found 22.84 grams of cocaine in small plastic bags in the residence, which is also an indictable amount of the drug.

Between 14 September and 11 October 2006, undercover operatives organised five further drug deals with Mansour that involved smaller quantities of cocaine, which were handed over by the offender’s partner or one of his parents.

The charges

On 24 October 2007, Mansour pleaded guilty to seven drug charges in the NSW Local Court.

The main charge was one count of supplying prohibited drugs on an ongoing basis (or ‘ongoing supply’), contrary to section 25A of the Drugs Misuse and Trafficking Act 1985 (the DMT Act). The maximum penalty for this offence is 20 years behind bars and/or a fine of $385,000.

This offence involves an individual on three or more separate occasions over a 30 day period, supplying a prohibited drug other than cannabis “for financial or material reward.” In Mansour’s case, it applied to the initial three drug transactions that saw him handing over cocaine on his parent’s veranda.

Mr Mansour was also charged with five counts of drug supply, under section 25 of the DMT Act, as well as one count of ‘deemed supply’, which is contrary to both sections 25 and 29 of the Act.

Section 29 of the DMT Act stipulates that if a person is found with more than a traffickable amount of a prohibited drug, they can be found guilty of supply, even if there’s no evidence they were intending to provide the substance to another person. This is known as deemed supply.

The deemed supply charge related to the cocaine found during the search of Mansour’s home.

District Court considerations

During the sentencing hearing, the court heard that Mansour had a long criminal record, including a conviction for manslaughter. NSW District Court Judge James Bennett found that the defendant had not shown remorse, had poor prospects of rehabilitation, and expressed concerns about reoffending.

The judge took into account a number of aggravating factors as laid out in section 21A(2) of the Crime (Sentencing Procedure) Act 1999. An aggravating factor is one which increases the culpability of an offender.

These factors included that the crimes had been carried out in company, that they were committed in the presence of children, were perpetrated in a home, were carried out for financial gain, exhibited disregard for public safety and were part of planned or organised criminal activity.

Time behind bars

On 4 July 2008, his Honour imposed a total sentence of 9 years imprisonment, with a non-parole period of 6 years and 3 months. This included 8 years gaol time, with a non-parole period of 5 years and 3 months, for the ongoing supply.

Judge Bennett handed down multiple sentences for the six other drug supplies, which were served concurrently with each other and under partial concurrence with the sentence for ongoing drug supply. The sentences resulted in one year additional prison time.

The sentencing judge allowed for a 30 percent discount on the overall sentence due to the utilitarian value of Mansour’s guilty plea, as well as for the assistance he had given to authorities after the 2001 murder of his brother.

The grounds of appeal

Mansour appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA), and that appeal was heard on 23 November 2010. He did so on two grounds. The first was that the trial judge had made an error in the way he had taken into account the aggravating factors when determining the sentences.

The second was that the overall sentence was manifestly excessive.

In its written submissions, the Crown conceded that the sentencing judge had made an error by considering the presence of children and the fact the offences occurred in a home as aggravating factors, as well as the fact they were carried out for financial gain.

And during oral submissions, the Crown submitted that it no longer wished to argue there was no error in considering that the crime was carried out in company as an aggravating factor. The prosecution stated that this was because “it is impossible to knowingly take part in a supply by yourself.”

So, the disputed issue was whether Judge Bennett had made an error by considering disregard for public safety and planned or organised criminal activity as aggravating factors.

Without regard for public safety

NSWCCA Justice Derek Price noted that it’s well established that an aggravating factor should not be taken into sentencing consideration “if it is either an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence.”

And as failure to regard public safety is not an element of the offence of ongoing drug supply, then the question was whether it is inherent to the offence, his Honour outlined.

“It seems to me that a failure to have regard for public safety is an inherent characteristic of the offence of ongoing supply of cocaine,” Justice Price found. “I also think that it is an inherent characteristic of the offence of actual supply and deemed supply of that prohibited drug.”

The justice further stated that the sentencing judge couldn’t consider this an aggravating factor, unless he found something exceptional in the circumstances of the crime to warrant it so. However, the sentencing judge’s remarks didn’t suggest any exceptional circumstances.

The NSWCCA found that Mansour’s complaint that the judge had made an error when considering disregard for public safety as an aggravating factor had been made out.

Planned or organised criminal activity

In regard to Judge Bennett considering that the offences were part of a planned or organised criminal activity as an aggravating factor, the appeals court again found that an error had been made.

The court heard that the sentencing judge had stressed that planning and organising were an inherent characteristic of the offence of ongoing drug supply. But, the judge considered it an aggravating factor as he believed the level of planning and organising was exceptional in this case.

Judge Bennett said that this was due to the fact that Mansour had been using his parent’s home to sell the drugs, as well as to store various drug paraphernalia and small quantities of cocaine.

However, the NSWCCA found nothing in Mansour’s planning that was extraordinary. “It was not reasonably open to the sentencing judge to be satisfied beyond reasonable doubt on the evidence that the planning and organisation exceeded the norm,” Justice Price ruled.

And as the sentencing errors required that the offender be resentenced, there was no reason to consider whether the original sentence was manifestly excessive, his Honour continued.

The orders of the appeals court

The NSWCCA also found that the sentencing judge had failed to take into consideration that Mansour was serving an 18 month good behaviour bond at the time all but one of the current offences had been carried out. This was due to a conviction over an assault of a police officer.

In resentencing, the appeals court took into consideration the serious nature of the crimes, as well as that most of the offences were carried out whilst Mansour was on conditional liberty.

On 2 March 2011, the NSWCCA resentenced Mansour in regard to the first count. This reduced the original sentence to 7 years imprisonment, with a non-parole period of 4 years and 3 months. The sentences for the six other counts remained the same.

“The total effective sentence, I propose, is imprisonment for 8 years with a non-parole period of 5 years and 3 months,” Justice Price concluded.

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