Preca v R [2023] NSWCCA 122
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Lee v R [2016] NSWCCA 146
R v Abbas [2023] NSWDC 644
Xiao v R (2018) 96 NSWLR 1
Source
Original judgment source is linked above.
Catchwords
[2022] NSWCCA 81
Giles-Adams v RPreca v R [2023] NSWCCA 122
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Lee v R [2016] NSWCCA 146
R v Abbas [2023] NSWDC 644
Xiao v R (2018) 96 NSWLR 1
Judgment (7 paragraphs)
[1]
The applicant's subjective case
The applicant's subjective features were summarised by the sentencing judge at [31]-[63]. It was not submitted on this appeal that his Honour failed to take any matters into account insofar as that subjective material is concerned so I propose to summarise the subjective case from the remarks on sentence supplemented by some relevant extracts from the source documents. This summary includes some of the findings made by his Honour in relation to the applicant's subjective case.
The applicant did not give evidence at his proceedings on sentence. His subjective case was put before the Court by way of the documents tendered on his behalf. Although the sentencing judge expressed reservations about aspects of the applicant's out of court statements during his remarks on sentence, he did not expressly reject any of the material put before him.
The applicant was born in Saudi Arabia to Bangladeshi parents in 1998. He is the elder of two boys. He has a younger brother who is now 20 years old who is reported to have suffered from neurocognitive deficits. He described a difficult upbringing in Saudi Arabia where his father worked as a travel agent. His mother was a "stay-at-home" mother. His parents were strict, and he was disciplined physically. He claimed to have witnessed domestic violence between his parents and expressed concern for his parents who he now described as "old". His father is said to be approximately 60 and his mother approximately 50 and suffering from diabetes.
The applicant alleged that he had been touched inappropriately by a taxi driver when he was about 15 years of age and claimed to have been scarred by the incident. The psychologist noted "it was somewhat difficult to establish any further details about this incident." The psychologist also reported the detail of alleged significant bullying throughout his school years in Saudi Arabia. The applicant described having only a few good friends.
The applicant arrived in Australia in early 2018 when he was 19 years of age. The applicant's parents decided that he would attend university in Sydney, and they apparently paid for him to come to Australia to do so. He initially resided with an uncle before moving in with a childhood friend from Saudi Arabia. He completed an eight-month IT course at the Sydney Institute of Business and Technology and then commenced a bachelor's degree at Western Sydney University. The COVID‑19 pandemic interfered with his attendance at university from 2020.
As the sentencing judge observed, it is unclear how much financial support the applicant was receiving from his parents prior to his offending. At some stage, he had a falling out with them and had no contact with them for some 12 months prior to the present offending. He described being financially supported by his parents until 2019, following which time he obtained a number of positions of casual employment.
The applicant described having become significantly involved in drugs and alcohol during his time in Sydney. He described smoking marijuana daily and engaging in a range of other substance abuse, including cocaine and MDMA on weekends and binge drinking every night from Thursday to Sunday.
Standardised psychological assessment inventories (the Paulhus Deception Scale and the Personality Assessment Screener) were used by the applicant's psychologist, Ms Georges, in assessing the applicant in a number of areas including on the deception scale, personality scale, depression scale, anxiety scale, trauma scale, and risk assessment.
The areas where the applicant's responses indicated a marked potential for problems were identified by Ms Georges as including: the applicant "Acting Out" and being "very likely to be impulsive and sensation seeking"; his alcohol "use, abuse, and dependence"; his problems with psychotic features that indicate a potential for persecutory or delusional thinking that is more likely consistent with his fear of being harmed than with a psychotic disorder; his suicidal thinking suggesting that he is experiencing thoughts of death or suicide; his problems with alienation indicating that he very likely feels unsupported and unfairly treated by others; his moderate potential for problems with social withdrawal indicating problems with social detachment and discomfort in close relationships where the applicant may be perceived by others as "cold, unfeeling, and unable to display affection"; his possible health problems given the applicant's concerns about his somatic functioning; and his potential problems with a very low score in anger control indicating his difficulties with the direct expression of anger.
In Ms Georges' opinion the applicant's elevation on those scales indicates:
"[S]omeone who is unassertive in interpersonal situations. He is also likely to keep people at a distance due to difficulties in forming close relationships and anxiety in interpersonal situations. He is unlikely to be confrontational, choosing to alienate himself and engage in avoidance behaviours instead. Mr Abbas may not be able to express his unhappiness to others and in turn deals with his frustrations by internalising and/or suppressing them until his attempts to do so are ineffective, resorting to maladaptive means or regulating, such as ongoing substance use."
Ms Georges also opined that the applicant had symptoms of PTSD exceeding the clinical cut‑off level. She assessed his level of risk and recidivism and criminogenic needs as low-moderate, which was described as equating to approximately a 31.1% chance of recidivism.
Ms Georges concluded that the applicant was likely to do things that he believed would be pleasing to others, for fear of rejection, and that this was likely to have been impacted by his early years of repeated physical abuse by his parents and persistent bullying.
Notwithstanding a suggested nexus between the offending behaviour and his various psychological and personality features, Ms Georges described the applicant as suffering the financial burden of feeding his drug and lifestyle habits. He found himself in a situation where he was offered financial reprieve. Ms Georges expressed the opinion: "This appears to be the most explicit contributing factor to Mr Abbas' offending behaviour but complicated by the complexity of prior psychological vulnerabilities." She also expressed the opinion that another important consideration in contributing to his offending conduct was the influence of chronic substance abuse.
Ms Georges' report also described the extent of the applicant's remorse and his developed insight whilst in custody into aspects of his life that he needs to work on. His Honour noted that the description of the applicant's acceptance of responsibility for his actions "must be tempered by the reserve which must be entertained in the absence of sworn evidence".
Although the applicant told the psychologist that he had no prior criminal history in Australia, he was in fact on a Community Corrections Order to be of good behaviour for a period of 12 months for a High Range PCA at the time of the offending. He was in breach of the undertakings in that court order at the time of his travel to Fiji.
Reports showed that he attended various programs conducted within Corrective Services. It was noted that there were no recorded disciplinary breaches since the time of his arrest (as at the date of sentence).
The SAR notes the following in relation to the applicant's "attitudes":
"Mr Abbas consistently denied having any knowledge of his role as drug courier at the time of the offending behaviour.
He claimed he genuinely believed he was acting as a courier for sauces, rather than disguised methamphetamine.
Mr Abbas advised upon reflection, he had not critically considered his circumstances or the potential ramifications of becoming involved in the carrying packages (sic) into Australia for others."
With respect to the applicant's insight into impact of offending the SAR notes that:
"Mr Abbas presented with limited insight into the potential impact of his offending. He appeared largely incapable of comprehending the possible impact of his offences upon potential victims in the community."
His Honour noted that the SAR was somewhat inconsistent with his plea of guilty. The applicant "claimed he genuinely believed he was being a courier of sauces, rather than disguised methamphetamine" but also stated that he became involved in the index offence due to his association with a pro‑drug and pro‑criminal subculture. The applicant told the Community Corrections officer that the motivation for the involvement in the importation was to derive a financial benefit and support his lifestyle. Significantly, he was described as presenting limited insight into the potential impact of his offending. His Honour noted that the impression of the author of the SAR "appears at odds with the conclusion by the psychologist".
The applicant was assessed as a low to medium risk of offending according to the Level of Service Inventory - Revised (LSI-R).
[2]
Submissions on sentence
Written submissions on sentence were provided to the sentencing judge on behalf of the applicant. They included the following submissions on the question of rehabilitation at [15]-[17]:
"15. Given the age of the offender (25), his relatively prior good character, his non-offending since his arrest on 28 October 2022 and his subjective circumstances as outlined in the subjective material tendered to the Court together with the offender's Letter of Apology, it is submitted that the Court would have confidence in concluding that the offender is both unlikely to reoffend and has good prospects or rehabilitation.
16. It is submitted that the subjective material tendered to the Court allows the Court to find that the offender is a long way down the path towards rehabilitation. Rehabilitation undertaken by an offender during a period of delay may affect the sentencing exercise by lessening the significance of general deterrence (PH v R [2009] NSWCCA 161 at [32]).
17. The offender is now aged 25. He was 24 years old at the time of the offending. Youth is recognised as a mitigating factor and, generally, the younger the offender, the greater the weight that should be given to the element of youth (R v Hearne (2001) 124 A Crim R 451 at [27]). The rehabilitation of youthful offenders will for the most part take precedence over deterrence and and retribution in the sentencing exercise (see R v GDP (1991) 5 A Crim R 112, R v DM [2005] NSWCA 181 and [61] and Sarhene v R [2022] NSWCCA 79 at [24]-[25]). It is submitted that the Court would take into account the offender's age when assessing an appropriate overall sentence."
Thus, it was submitted on behalf of the applicant that he was unlikely to reoffend, had good prospects of rehabilitation and was "a long way down the path towards rehabilitation".
These written submissions were supplemented orally as follows:
"LLOYD: Your Honour, then I think turning to character, antecedents, age and prospects of rehabilitation, 16A(2)(m) and (n), my paras 15 and 16, in relation to his age, he was 24 at the time and your Honour has seen in recent years dozens of cases with psychological reports that say that the young adult, the brain doesn't really mature to 25. Well, he's a bit younger than that. … but clearly he was young and dumb.
Risk or reoffending, we now have the SAR which assesses him as low to medium risk, which pretty well matches the psychological report we've tendered where the author assesses him as low to moderate risk of reoffending. I've covered age."
In response, the Crown submitted that:
"….. And finally, your Honour, I just turn to the moral culpability and the offender's prospects of rehabilitation. As acknowledged, the offender was plainly motivated by the financial reward and drug addiction is not a mitigating factor. The Crown submits that the Court would be cautious about finding that the offender has good prospects of rehabilitation. As per the sentencing assessment report the offender presented with limited insight into the potential impact of his offending and he appeared largely incapable of comprehending the possible impact of his offences upon potential victims in the community. In the psych report at para 10.14, the offender's feelings of contrition and remorse appear to be linked to the impact of the offence on himself and his family, and he does not fully seem to take responsibility for his actions, stating that he was overly trusting and that this was the issue. And although there is some acknowledgement in his letter of apology to the Court about the harm drugs cause to the community, he states that he has only indirectly contributed to this. There also appears to be no reference to any steps taken by the offender in relation to the rehabilitation for his drug addiction, merely an untested statement that he stated that he has stayed drug-free."
As for the relevance of the applicant's plea of guilty, it was submitted on behalf of the applicant that a discount of 25% was appropriate to recognise the utilitarian value of the plea and that the subjective value of the plea, as an indication of contrition and willingness to facilitate the course of justice, could be taken into account as well in an unspecified way. Reference was made to the decisions in Giles-Adams v R; Preca v R [2023] NSWCCA 122. The sentencing judge indicated that he had read [76]-[79] of that judgment.
Senior counsel for the applicant then referred the court to Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 and his Honour indicated the following:
"HIS HONOUR: All right. I'll have a look at that. I must confess that I used to struggle at the intellectual difference between facilitating the course of justice and the utilitarian value, which, to my mind, to a very considerable degree overlapped.
LLOYD: Yeah. Sure, well -
HIS HONOUR: If you've saved the State the cost of a six-week trial and you've pleaded guilty you're both facilitating the course of justice and there's a utilitarian value in the plea. And, bluntly, it's greater intellect than mine that see those separate concepts."
[3]
Relevant findings on sentence
The sentencing judge found that the applicant was a courier who did not have actual knowledge that he was carrying drugs but had a high degree of recklessness in that regard: at [27]-[28]. His Honour found that the motive for the offending was monetary. There was evidence of an offer of a $9,000 reward as well as the payment of flights and accommodation. His Honour also expressly had regard to the weight of the drugs. Ultimately, his Honour found that the offence fell "towards the lower end of the mid-range".
His Honour summarised the applicant's subjective case in the manner I have set out above.
Relevant to the grounds of appeal, under a heading of "Submissions on behalf of the offender" his Honour summarised the following submissions at [113] and [114]:
"With respect to contrition and remorse it was submitted that these factors were evinced by the fact of the guilty plea together with the utilitarian value of the plea. It was submitted, in the written submissions, that a 25% discount on sentence was appropriate. Reliance was also placed on the letter of apology and the expressions of remorse to the psychologist and also to the Court as justifying 'an additional discount on sentence'.
It was further submitted that his 'relatively prior good character', non-offending since his arrest and subjective circumstances set out in the material tendered would lead the Court to a conclusion that he was unlikely to reoffend and had good prospects of rehabilitation. It was submitted that these factors, together with the findings of the psychologist would render the offender as a less appropriate vehicle for general deterrence. Reliance was placed on the decision of the Court of Criminal Appeal in DPP v De La Rosa." (emphasis in original)
Under the heading of "Determination" his Honour noted the following at [137]-[138]:
"Whilst exercising some degree of reserve regarding the level of his remorse and contrition, I do take the entering of a guilty plea and his expressed remorse in his letter to the Court, albeit unsworn, and his description to the psychologist, into account. An appropriate discount on the sentence should accordingly be 25%.
I take into account his relative youth and his dislocation from his family. The effects upon his family and also their inability to have ready access with him is an inevitable consequence of drug trafficking into Australia by a foreign national."
His Honour did not expressly address nor make any findings about the applicant's prospects of rehabilitation nor the value of the plea beyond the utilitarian value of it.
[4]
Consideration: Ground 1
The applicant's complaint under Ground 1 was that the sentencing judge erred in failing to take into account the applicant's prospects of rehabilitation or in failing to explain in his reasons how his prospects of rehabilitation had been taken into account. Reliance was placed upon the decision of Basten JA and McCallum J (as her Honour then was) in Lee v R [2016] NSWCCA 146 at [20] to the effect that in the absence of any clear finding, any uncertainty demonstrates error.
The Crown conceded that this Court could not be satisfied that the sentencing judge considered the applicant's prospects of rehabilitation as the remarks on sentence do not adequately identify if and how this consideration informed the sentencing exercise. Accordingly, the Crown accepted that error was established, and this Court was required to resentence.
I have considered the Crown's submissions in support of its concession that this ground should be upheld, and I am satisfied that it was properly made.
Section 16A(2) of the Crimes Act 1914 (Cth) provides that in determining the sentence to be imposed on a federal offender:
In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(n) the prospect of rehabilitation of the person;
(Emphasis added.)
Although the sentencing judge had regard to the submissions and material advanced on behalf of the applicant, his reasons do not disclose how he evaluated that material and the submissions regarding rehabilitation. As was conceded by the Crown, the mere fact that his Honour summarised the relevant material is not enough to conclude that these matters were considered, and findings made.
Although the sentencing judge indicated a level of reserve about some of the applicant's out of court statements, he did not expressly reject any of them relevant to his prospects of rehabilitation. It could not thus be said that there was no evidentiary basis to make a finding that the applicant had positive prospects of rehabilitation.
Consistent with the approach taken by the Crown before the sentencing judge, the position of the Crown on this appeal was that the material in support of the applicant's submission that he had favourable prospects of rehabilitation was "fairly unimpressive". But, as the Crown accepted, this fact does not justify the conclusion that the sentencing judge made the same finding in the absence of any reasons on this issue.
Given that "the prospect of rehabilitation" is a mandatory relevant consideration, to the extent that it is relevant and known to the sentencing court, a failure to refer to and make findings about that matter establishes error.
[5]
Ground 2
The applicant's complaint under Ground 2 was that the sentencing judge erred in failing to consider remorse as a mitigating factor on sentence. Although it was accepted that his Honour acknowledged the utilitarian value of the plea, the complaint was that he failed to consider the contrition and other subjective factors associated with the plea: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, Giles-Adams v R ; Preca v R [2023] NSWCCA 122.
At the hearing of this appeal, it was common ground that the Crown concession on Ground 1 meant that it was not strictly necessary for this Court to make a finding in relation to Ground 2. Accordingly, I propose to instead have regard to the subjective value of the plea when resentencing the applicant.
[6]
Resentence
Error having been established in the sentencing process, the decision in Kentwell makes clear that the duty of this Court is to exercise the sentencing discretion afresh. The applicant's appeal is to be dismissed unless this Court is satisfied that "some other sentence, whether more or less severe is warranted in law and should have been passed": s 6(3) of the Criminal Appeal Act 1912 (NSW). The Crown contended that the appeal should be dismissed on the basis that no lesser sentence is warranted.
The applicant submitted that this Court would adopt the factual and evaluative findings of the sentencing judge, except in relation to three matters: the finding of objective seriousness, the subjective value of the guilty plea (including remorse), and the applicant's prospects of rehabilitation.
The applicant relied on an affidavit affirmed by him on 19 September 2024 in the event of resentence. The applicant adverted therein to two disciplinary matters in custody that he anticipated the Crown may raise in the event of resentence.
The Crown tendered two bundles of material pertaining to these two incidents. The first incident, in April 2024, related to the applicant taking a bag with a fan and socks in it from one of the office rooms without asking for permission. The second incident, in July 2024, related to the applicant taking a drink bottle and football from one of the office rooms without asking for permission. On each occasion, upon getting caught, the applicant accepted his wrongdoing.
In his affidavit the applicant explained that he was "extremely embarrassed and ashamed about" these incidents of custodial misbehaviour. The April incident occurred in circumstances where he was short of his "buy up" funds and he needed an extra pair of socks. He described it as "nothing more than a plain stupidity" and he owned up to it when the items were found. He also accepted responsibility for the July incident.
The applicant further deposed that he "can proudly say that I have not touched any drugs since entering custody and I feel like a refreshed man ready to restart life again when I am eventually released". He described how he has kept himself busy by participating in as many programmes and classes that are available to him. He annexed completion certificates for two courses he undertook as well as two extracts from his Corrective Services file showing his history in attending and completing programs as well as his employment history in custody.
I have had regard to this material in arriving at the applicant's sentence.
I turn first to consider whether I would depart from the sentencing judge's assessment of mid-range objective seriousness, as the Court was invited to on the applicant's behalf in the event of resentence.
It is to be accepted that the applicant was a courier and thus towards the bottom of the chain, but I do not accept that he performed a "very limited" function when he brought the drugs into Australia. By his conduct, the applicant exposed himself to a high degree of risk and, consistent with the submission made in this Court on his behalf, I adopt the sentencing judge's finding that the applicant displayed a high degree of recklessness as to what it was that he was importing.
The applicant's motivation was financial reward. Although there was no evidence that he stood to gain any profits that may have been generated by the offence, he was paid $9,000 plus his airfares and accommodation. The fact that there was no evidence that he was a "shareholder" or "investor" in a criminal organisation does not diminish the significance of his motivation for becoming involved being a financial one.
The Agreed Statement of Facts showed that the applicant was following detailed instructions, and it is accepted that the applicant was not observed to make any attempt himself to access the secreted illegal narcotics. Despite this, I accept the Crown submission that the applicant should not be characterised as "a hapless individual who was dispatched to Fiji". The Agreed Facts disclose that the applicant made a calculated "cost-benefit judgment" about whether the trip to Fiji was worth his time. The fact that his role was one of a courier, while less serious than other roles, did not mean that his conduct was necessarily not serious.
Ultimately, I accept the Crown submission that in resentencing the applicant I would make the same finding as the sentencing judge on this issue notwithstanding the inherent limitations of placing objective seriousness on a notional range.
The second finding I am required to make regards the applicant's prospects of rehabilitation, given that the sentencing judge failed to make any finding on this issue.
The applicant submitted that his young age was relevant to his likelihood of reoffending. Reliance was placed on the applicant's good behaviour in custody and his limited prior criminal history which were said to demonstrate that the applicant has good prospects of rehabilitation.
The Crown submitted that the Court may make favourable findings in relation to the applicant's prospects of rehabilitation and likelihood of reoffending, but that it would not, on the sparse material before it, go as far as to make a finding that the applicant had good prospects nor that he was unlikely to reoffend. It was accepted that there were some reasons to be optimistic about the applicant's prospects of rehabilitation, but it was submitted that this optimism should be balanced against medical evidence which suggests that the applicant has personality traits rendering him vulnerable to similar kinds of offending. In particular, the Crown submitted that there is limited information before the court regarding the steps, if any, the applicant has taken to deal with those personality traits.
The applicant has had two incidents whilst in custody (referred to above) which may justify a cautious approach by this Court. Further, the applicant was on a Community Corrections Order at the time of the offending.
I have considered this material, and I am satisfied that the applicant has moderate prospects of rehabilitation.
Thirdly, the applicant submitted that this Court would make a finding that the sentence was ameliorated due to the subjective aspect of the plea. Reliance was placed on the applicant's letter apologising to the court, in which he expressed contrition as well as pride that he had stayed drug-free whilst incarcerated.
The Crown acknowledged that Ms Georges expressed the view that the applicant "appears to accept responsibility for his actions and the associated consequences of the same" but submitted that this observation should be tempered by the SAR wherein the officer expressed the view that the applicant "presented with limited insight into the potential impact of his offending. He appeared largely incapable of comprehending the possible impact of his offences upon potential victims in the community".
Further, the Crown noted that the sentencing judge had expressed his reservations about hearsay expressions regarding the applicant's remorse. His Honour observed at [57]:
"The psychologist's report also described the extent of the applicant's evinced remorse and his development whilst in custody of insight into aspects of his life that he needs to work on. The description of the applicant's acceptance of responsibility for his actions must be tempered by the reserve which must be entertained in the absence of sworn evidence."
I have considered this material, and I am satisfied that the applicant has expressed remorse. In making this finding I accept that he did not give sworn evidence and he was unable to express insight to the author of the SAR, but I am satisfied nonetheless that there is sufficient material to make a finding of remorse.
I have adopted these findings as well as the other findings made by the sentencing judge. I have had regard to the nature and circumstances of the offence (s 16A(2)(a) of the Crimes Act), the guilty plea (s 16A(2)(g)), the applicant's contrition (s 16A(2)(f)), specific and general deterrence (s 16A(2) (j), (ja) and (k)), the need to ensure the applicant is adequately punished (s 16A(2)(k)), the applicant's character and antecedents (s 16A(2)(m)), and the applicant's prospects of rehabilitation and likelihood of reoffending (s 16A(2)(n)).
The applicant submitted that this Court would arrive at a starting point lower than the 11 years which the sentencing judge did. In support of this submission, it was noted that none of the comparative cases considered by the sentencing judge were "on fours" with this case. The Crown submitted that the comparative cases do not suggest that the starting point of 11 years is too severe and that this Court should not adopt a substantially lower starting point as to do so would fail to achieve the sentencing purposes of general and specific deterrence.
Having exercised the sentencing discretion afresh, I have arrived at a starting point of 10 years imprisonment. Applying a discount of 25% (as did the sentencing judge), I would arrive at a sentence of 7 years and 6 months. Applying a similar ratio between the head sentence and the non-parole period as the sentencing judge, I would arrive at a non-parole period of 4 years.
Accordingly, I would propose the following orders:
1. Leave to appeal allowed.
2. Appeal allowed.
3. Quash the sentence imposed by Sutherland SC DCJ on 15 December 2023 and in lieu thereof sentence the applicant to a term of imprisonment of 7 years and 6 months commencing on 28 October 2022 and expiring on 27 April 2030 with a non-parole period of 4 years commencing on 28 October 2022 and expiring on 27 October 2026. The applicant will be eligible for parole on 27 October 2026.
CHEN J: I agree with N Adams J.
RIGG J: I agree with N Adams J.
[7]
Amendments
06 December 2024 - Minor typographical corrections
10 December 2024 - Coversheet, [1], [53] and [81] legislation citation correction
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Decision last updated: 10 December 2024
N ADAMS J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the severity of the sentence imposed on him by Judge Sutherland SC in the District Court at Sydney on 15 December 2023. The applicant was sentenced following an early plea of guilty to one count of importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) being 17 bottles of body oil which concealed 7747.4 grams of methamphetamine.
The applicant was 24 years old at the time of the offending. He was arrested at Sydney Airport on 28 October 2022 and has remained in custody since that date. He was sentenced to a term of imprisonment of 8 years and 3 months commencing on 28 October 2022 and expiring on 27 January 2031 with a non-parole period of 4 years and 6 months commencing on 28 October 2022 and expiring on 27 April 2027. He will be eligible for parole on 27 April 2027.
The applicant relies on two grounds of appeal:
Ground 1: The sentencing judge erred in (a) failing to take into account the applicant's prospects of rehabilitation, or (b) failing to explain in the reasons for judgment how his prospects of rehabilitation had been taken into account.
Ground 2: The sentencing judge erred in failing to apply correct principle concerning the distinction between the objective and subjective value of a plea of guilty.
The Crown conceded that Ground 1 was made out and that this Court would proceed to sentence the applicant afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell").
The Agreed Facts
The reasons for sentence are published on Caselaw: R v Abbas [2023] NSWDC 644. I have taken the facts from [2]-[19] of that decision (and reworded them slightly).
On 28 October 2022, the applicant arrived at Kingsford Smith International Airport in Sydney on his return from a two-day trip to Fiji. At the time, he was a lawful non-citizen residing in Australia on a student visa. He had travelled to Fiji from Sydney on 26 October 2022. After presenting his incoming passenger card to an Australian Border Force officer and passing through Immigration, the applicant collected his suitcase from the baggage carousel. After proceeding towards the Secondary Examination Area, he was approached by a Border Force officer and escorted to the baggage examination area. Anomalies were displayed in an X-ray of his suitcase and a physical examination revealed a bottle of yellow liquid in the suitcase which appeared to be leaking.
The bottle was labelled "PURE FIJI Nourishing exotic oil". The applicant told the examining officer that it was, "just some body lotion stuff" which he used for his eczema. A further 16 bottles, similarly labelled, were located in the suitcase. The applicant claimed to have purchased the 17 bottles of the "exotic oil" from a general shop in Fiji for AUD$15 each.
A presumptive test of the yellow liquid returned a positive result for methamphetamine. The applicant was arrested and advised of his rights. He declined to be interviewed.
Subsequent forensic examination of the contents of the 17 bottles revealed a total gross weight of the yellow liquid as 17.293 kilograms. The liquid contained methamphetamine which was analysed at a purity of 44.8%. The calculated pure weight of methamphetamine was 7.747 kilograms. The commercial quantity of methamphetamine is 0.75 kilograms.
Border Force officers took possession of a mobile phone in the applicant's possession. Forensic examination of the phone revealed communications sent by text message between the applicant and a number of other persons, both in the immediate lead-up to his departure for Fiji and in the preceding months. The details of these messages during the period between July and October 2021 are set out in detail in the Agreed Facts. They were included to establish the relationship with the person identified as "007Mic", his familiarity with illicit substances and the applicant's state of mind at the time of the importation. The Crown did not rely on these conversations as an aggravating factor.
On 25 October 2022, "007Mic" asked the applicant if he had made his mind up and said, "it's 7K." The applicant asked, "what day did you want me to go?" and "007Mic" later responded, "[b]ro, I'll pay you 9K." In further conversation between the applicant and "007Mic", the applicant asked, "[w]hat are we bringing" and was advised by "007Mic": "oil."
"007Mic" also sent a message stating: "Nothing to do with drugs! The Boys been doing it for awhile. It's safer."
The applicant was advised that he would be bringing a suitcase and "007Mic" said, "will get the flights and accommodation." The applicant asked when he would be paid and he was advised that he would be paid when he got back, "straight away". Although his Honour noted that in further conversation, "007Mic" stated that it would be "just one bottle of oil", it was in fact the applicant asking "007Mic" "[j]ust confirming again its just one bottle of oil" and "007Mic" responding, "[i]t's what the boys got over there".
The following day, 26 October 2022, the applicant confirmed with "007Mic" that he had booked his tickets and accommodation. Later that day, he sent a message confirming that he had arrived in Fiji. "007Mic" later told the applicant that "the boys" would meet him tomorrow and that he would let the applicant know when they wanted to meet.
On 28 October, the applicant sent a message to "007Mic" confirming that he had landed at Sydney Airport, but that he was "stuck" at the immigration part.
Subsequent further analysis of the applicant's mobile phone revealed text messages with other persons on 27 October 2022. In those messages, the applicant asserted that this was "the second time" and that after doing the "big one" it was his "last one" and that after this he is "out." He also said in those messages that he had "hit a lick" which was said to refer to a large sum of money in a short time. He also messaged that he was bringing "body lotion back".