R v Zahran[2023] QCA 169

SUPREME COURT OF QUEENSLAND

HENRY J:  The applicant was for five months the principal of a syndicate of offenders that trafficked in cannabis at a predominately wholesale level.  He pleaded guilty to trafficking in cannabis, supplying cocaine, and possessing a mobile phone used in connection with trafficking.  For the trafficking, he was sentenced to three and a-half years’ imprisonment suspended after 12 months, for an operational period of three and a-half years.  He received a concurrent 10 month imprisonment for the supply and was convicted but not further punished for possession of a phone.

He seeks leave to appeal his apparently moderate sentence on the ground it was manifestly excessive.  He argues the severity of the sentence compels the inference the learned sentencing Judge did not give sufficient weight to the matters of mitigation in the applicant’s favour, particularly, the delay in resolution of the proceeding, the rehabilitation in the meantime and the circumstance that the applicant desisted offending of his own volition.

He submits the leave application should be granted and that on the appeal this Court should reduce the period of imprisonment to be served before suspension from 12 down to six months.  Put another way, he hopes to reduce that period, which is already less than one-third of a moderate head sentence, down to a mere one-seventh of it.  Leave should be refused because there is no prospect of such an appeal succeeding.

The applicant organised and directed the supply of the syndicate members, including leaving stock for collection by them and approving their requests for approval to supply others in the group.  Members would supply others on behalf of the applicant, as well as sell to their own customer bases.  The applicant set trading and communication rules for them to comply with in dealing with customers and each other.  The business advertised stock, set prices and enforced payment.  The intercepted evidence also revealed the applicant supplied an unknown amount of cocaine on one occasion.

The intercepted communications of the group did not expose particulars of exact sale quantities and prices and the applicant chose not to answer police questions about his offending when arrested.  Nonetheless, the wholesale scale of the business was at least generally apparent from the gathered evidence and was conceded by the defence on sentence.  It was also illustrated by two police seizures.

In January 2020, the applicant directed Ian Rolfe to collect money from interstate, arranging to communicate with him by cipher phone.  Rolfe was later intercepted by police in possession of $76,400 in cash.  On 21 March 2020, police searched the workplace of Kane Treloar, which the applicant would use to store stock and, on occasion, would direct others to attend at to collect cannabis and or money.  The police search found 13.56 kilograms of cannabis and $39,150 in cash.

There was no suggestion the applicant offended in this serious way because of his own drug use.  He did not even have a relevant drug habit.  His motivation was financial gain, purportedly to provide monetary assistance to his indebted brother.  It is well-established that offenders who traffick in dangerous drugs for financial gain, must receive sufficiently substantial punishment to demonstrate to others tempted to engage in such offending that, on a cost benefit analysis, such gain would be far outweighed by the penalty which will imposed – see R v Nabhan; R v Kostopolous [2007] QCA 266, R v McAway [2008] QCA 401.

The learned sentencing Judge observed that need for general deterrence would have justified a higher head sentence, but allowing for the matters in mitigation, he was imposing a reduced head sentence of three and a-half years, as well as reducing the period of actual jail to be served to lower than one-third of that, to 12 months.  Such a head sentence was moderate and within the range of a sound exercise of the sentencing discretion – see, for example, R v Cairns [2011] QCA 145.  The applicant does not contend otherwise and rather, complains on account of matters personal to the applicant, that the period of imprisonment to be served before suspension of the balance gives rise to a manifestly excessive sentence.

Turning to those matters, the applicant was 27 at the time of offending, and 30 at the time of sentence.  He had a minor criminal history.

It was asserted on the applicant’s behalf that he had decided to desist offending of his own volition.  The information before the Court suggests various possible reasons for that decision.  He told psychiatrist, Dr Ian Curtis, it was in guilty reaction to a lecture by a religious leader.  His counsel informed the Court the applicant’s expectation to make him money was not realised, and in discussions with his Imam, he decided to cease.  There was also evidence of him directing a group member to collect two bags from another address and bring them to him, because he became suspicious police were aware of his activity.

In any event, whatever motivated it, that he desisted of his own volition was a matter the learned sentencing Judge expressly took into account, in his favour.  Nonetheless, it was scarcely a determinative consideration.  It remained necessary for the learned sentencing Judge to maintain a sense of proportion in weighing such a consideration, as against the cynically commercial motivation and the prolonged and organised nature of the offending.  His Honour evidently did so.

Reliance was also placed in mitigation upon the delay of nearly three years between arrest and sentence.  The applicant was arrested on 7 April 2020 and pleaded guilty when arraigned on 12 September 2022.  The sentence was adjourned to 12 December 2022.  The sentence was delisted on 28 November 2022, when the applicant’s new solicitor appeared, and his former solicitor withdrew.  He was eventually sentenced on 24 March 2023.

It is difficult to understand how it could take so long to advance such a case to sentence and the reasons were not explained.  In any event, the applicant’s counsel submitted the delay was not the applicant’s fault and the learned sentencing Judge evidently accepted as much, noting the applicant had been on bail for three or so years and in the interim made considerable efforts to turn his life around.  Delay of prosecution not caused by a defendant may be relevant by reason of the state of uncertainty offenders are left in as to their fate and by reason of it allowing the Court to know of material, rehabilitated progress – see R v L; Ex parte Attorney-General [1996] 2 Qd R 63.

In the present case, it is not suggested the applicant ended up pleading guilty to charges materially different from those which were first brought.  Given his evident awareness of his own guilt, the toll upon him of any uncertainty in the interim as to his fate would weigh more heavily as a mitigating consideration if it was shown he made concerted efforts to bring his sentence on as soon as possible.  There is no evidence of that here.

There is, however, some evidence of rehabilitative progress.  By the time of sentence, the applicant had taken over his father’s tree lopping business which employed a number of persons.  That business was said to be in jeopardy if the applicant was in prison.  Reference material was exhibited in support of the applicant, speaking to admirable personal qualities he had exhibited to others, including those he had charitably assisted.  Some of the references also spoke of the regret and remorse he had exhibited for having offending.  The applicant also wrote a letter of apology to the Court.

His Honour indicated he took all such material into account.  There was evidence that after the applicant’s sentence was delisted, he saw a psychologist for a pre-sentence report to be prepared.  That report was exhibited but was of no particular assistance, its opinions going beyond those of the better qualified author of another exhibited report, namely, psychiatrist Dr Ian Curtis.  The applicant had started seeing Dr Curtis on 18 November 2020, presenting with personal distress amidst a situational crisis described as a continuing stress disorder.  He responded well after a number of attendances and there was no ongoing psychiatric illness diagnosis.

The upshot is that the material relevant to the applicant’s rehabilitation, as with the other mitigating considerations, was helpful but not exceptional.  The suspension of a moderate head sentence after only 12 months was an appropriate sentencing response to them.

I would order: Application for leave to appeal sentence refused.

DALTON JA:  I agree.

FLANAGAN JA:  I agree.