Ahmad v R

1. The sentences imposed imported a degree of accumulation. The overall sentence was one of 7 years imprisonment, to date from 9 June 2016 and expiring on 8 June 2023, with a non-parole period of 5 years expiring on 8 June 2021.
2. The applicant seeks leave to appeal against the sentences imposed in the District Court, proposing two grounds: 1. "The sentence imposed upon the applicant for the offence of Possession of a Prohibited Drug is manifestly excessive; and 2. There is disparity between the sentences imposed upon the applicant and the sentences imposed upon the co-offender El-Khair, such as to leave the applicant with a legitimate sense of grievance".

The Facts of the Offences

1. A statement of facts formed part of the material tendered to the sentencing court in the Crown case on sentence. It related to the two offenders before the court, and also to a third offender, Alfred Manukyan, who was to be sentenced at some later time. Although the applicant took objection to some aspects of the facts, it was only insofar as material contained within them (which related to earlier consignments not intercepted by authorities, and principally relevant to Manukyan only, or to Manukyan and El-Khair) might be relied upon by the Crown to suggest involvement by the applicant in offences not charged against him, or to suggest a tendency on his part to be involved in similar offending conduct. The disputed evidence was admitted, for the limited purposes of placing the charged counts in a broader context, and to establish the nature of the relationships between those involved.
2. No issue is taken in this Court with the facts as found by the sentencing judge relating to the offences. What follows is a brief summary of them, broadly in chronological order of their commission.

Sequence 4

1. On 22 September 2015 the applicant contacted another person to try to secure assistance in obtaining finance. Later, on 28 November 2015 a loan application was submitted to a car dealership in the name of a property services company, for the purpose of financing the purchase of a motor vehicle. The loan was processed and approved in an amount of $59,458.60, with a vehicle purchased for the applicant with the loan monies.

Sequence 11 (taken into account against sequence 4)

1. On 24 September 2015 the applicant lodged a loan application for the amount of $177.426.60 to finance the purchase of a Mercedes Benz C63. The applicant recorded information on the application document which was false, including false information as to his employment and income, and residential address. The loan was refused by the financier.

Evidence admitted by the sentencing judge as contextual evidence and evidence of relationship; or evidence relevant to El-Khair

1. Between 3 February 2015 and 30 November 2015 seventeen separate consignments were dispatched from the United States of America to a number of different consignees at varying western Sydney addresses. The first fifteen consignments were not intercepted and there is no evidence any contained a border controlled drug. Delivery of the last two of the seventeen consignments, which were intercepted, was taken in each instance by the co-offender El-Khair, and he subsequently met with the applicant on both occasions, together viewing the packages received. Neither of these consignments contained a drug, although the last of the seventeen contained a quantity of white powder.
2. Other consignments from the USA dispatched by Manukyan were intercepted, and both Manukyan and El-Khair faced charges relevant to those consignments. On 2 September 2015 Manukyan sent a package to a Silverwater address, with El-Khair taking numerous steps in an attempt to take delivery of the package. It was intercepted by the authorities, and found to contain a quantity of cocaine, giving a pure weight of 637.6 grams. El-Khair was charged with and faced sentence for an offence of attempting to receive a marketable quantity of an unlawfully imported border controlled drug (sequence 2 for El-Khair).
3. During this period the applicant, El-Khair, and Manukyan were associating with each other, and there were numerous telephone calls between the applicant and El-Khair that were intercepted by authorities. In July 2015 Manukyan travelled from the USA to Sydney, where he met with the applicant and El-Khair, and the applicant travelled to the USA in November 2015, and met with Manukyan there.

Sequence 5

1. On 12 December 2015 a consignment containing border controlled drugs arrived in Sydney. It contained 99 grams of a substance later determined to be cocaine, secreted within a toner cartridge. The pure weight of cocaine was 74 grams, with a street value of between $24,275 and $48,550.
2. El-Khair attempted to collect the package, addressed to "Daniel Lackey", from Toongabbie Post Office, but could not do so. After a meeting between El-Khair and the applicant, the applicant contacted the Post Office by telephone, purporting to be Daniel Lackey, and advised postal staff that he was working interstate and had sent his "colleague Mohammed" with a "consent paper" to collect the package. Despite that, the package could not be collected, and it was seized by police. Both men were charged and faced sentence.

Sequence 6

1. On 25 January 2016 a consignment containing drugs was dispatched from the USA to a Sydney address. It was intercepted by authorities in Los Angeles, and three bags containing a white substance later determined to be cocaine were found. The gross weight of the drug was 528 grams with purity of 77%; the pure weight was 367 grams. The estimated street value was between about $91,000 and $183,000. The drug was removed, and substituted with bags of wood.
2. On 29 January 2016 the consignment arrived in Sydney and was collected by El-Khair. He took it to an address in Bankstown. After the applicant arrived at the address, the package was opened. On discovering the wooden blocks, the applicant said, "Can you believe this shit? Can you fuckin' believe it?" He asked El-Khair to "see if it's in the box or not". The applicant took photographs of the package on his mobile telephone and sent the pictures to another individual.

Sequence 12

1. On 9 June 2016 a search warrant was executed at the applicant's home, and he was arrested. Found during the search, hidden in a cushion in the garage, was cocaine in an amount of 3.81 grams. A number of items typically associated with drug activity were also found, including three encrypted Blackberry devices, electronic scales, a money counter, heat sealing bags, and a heat sealer. The mobile telephone used by the applicant to photograph the consignment containing the blocks of wood placed in it by Los Angeles police was also located and seized.

Other Findings of the Sentencing Judge

1. By reference to the evidence of telephone contact between the applicant and El-Khair, the sentencing judge found that El-Khair held a subservient role to the applicant, and took direction from him. His Honour concluded that the applicant, […] appears to be at least the supervising receiver of the imported drugs, tasked with arranging for their collection and retrieval and distribution, hence his possession of the encrypted Blackberry device, the drug paraphernalia including electronic scales, a money counter, and heat sealing bags together with heat sealer.
2. He later described the applicant as "the senior member of the syndicate".
3. The co-offender El-Khair was found to be something "substantially more than a courier". His role included leasing premises as a "safe house" at which drugs could be unpacked, "active participation in arranging to take delivery clandestinely of packages after they arrived and making inquiries of the appropriate businesses and authorities to determine when they might arrive", and taking part in the unpacking of consignments. The sentencing judge found that El-Khair was both a close associate of, and a highly trusted lieutenant to, at least, Mr Ahmad.
4. His Honour concluded that El-Khair was also an associate of Manukyan when the latter was present in Australia, and trusted with knowledge of the overall scheme. Although El-Khair was not "simply a participant carrying out directed tasks", he was "beholden enough to his co-offender Ahmad to carry out what appear […] to be entirely menial tasks".
5. Referring to the quantities of drugs involved, his Honour observed that, whilst weight was not the most significant consideration on sentence, it was a feature relevant to the assessment of the seriousness of the offences. The purity of the drugs seized was high, and the street value considerable. His Honour was satisfied to the requisite standard that both offenders were aware of the quantities of drugs involved with respect to each offence.
6. The concession made by both the applicant and his co-offender that the motivation of each was, at least in part, financial gain to support a drug addiction was noted, with the sentencing judge observing that each was "involved for profit".
7. His Honour assessed each federal drug offence as serious, and difficult of detection. Each required a significant measure of general deterrence to be imported into the sentences.
8. As to the dishonesty offences, the sentencing judge concluded that neither was a particularly sophisticated example of the offence although each was, notwithstanding, a serious crime involving a significant amount of money, and a significant degree of dishonesty. The applicant enlisted others in the commission of the offences. The offences involved "considerable planning", and were "premeditated, considered and deliberate". The offences were committed from a desire to "obtain an inflated lifestyle". There was, however, no evidence of loss, and his Honour was prepared to accept that the applicant intended to meet repayments on the finance, and not to cause loss to the financiers.
9. A measure of accumulation between the discrete sentences was required. A reduction in sentence of 25% was allowed to recognise the applicant's willingness to facilitate the course of justice with respect to the federal offences, and the utilitarian value of the pleas of guilty to the state offences.
10. The applicant's criminal history was before the sentencing judge. It contained entries against the applicant commencing with offences of using an unauthorised firearm, and possessing a prohibited drug when he was aged 17 years (both of which his Honour disregarded), followed by convictions for having a knife in a public place (2008), possessing a prohibited drug (also 2008), and three counts of possessing or attempting to possess an anabolic or steroidal agent in January 2009. A bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for 12 months, and fines, were imposed for the 2009 offences.
11. His Honour found that the applicant's criminal history was not of particular significance.
12. The sentencing judge summarised the subjective cases presented by both the applicant and El-Khair. He noted that the applicant had been 27 years of age at the time of the offending conduct, and 29 at the time of sentence. The applicant did not give evidence on sentence, but relied upon a report prepared for the proceedings by psychologist John Macklin, together with a number of letters and testimonials from friends and relatives.
13. The applicant is one of 11 children born in Australia to Lebanese parents. Whilst his parents were hard-working and provided the applicant with a stable home life, a number of his older brothers are criminals, and from the age of 7 or 8 years the applicant saw several of his brothers incarcerated from time to time. One of his brothers was murdered in April 2016, just before the applicant's arrest for the present offences. The sentencing judge accepted that the involvement of a number of the applicant's brothers in crime would have had an adverse impact upon his attitudes to the law, but that did not amount to a circumstance that would lower the applicant's moral culpability, in accordance with the principles enunciated in R v Fernando (1992) 76 A Crim R 58 at [63]-[64] and Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43]-[44].
14. The applicant was educated locally in the Punchbowl area, and he had an unremarkable education, concluding with an unfinished TAFE course in small business management. He worked occasionally in unskilled jobs, such as furniture delivery, although for most of the applicant's adult years he has been unemployed.
15. The applicant left the family home at age 22 when he married. He and his wife have two sons, and the applicant's family visit him on a weekly basis.
16. The applicant attributed his failure to find employment in part to the drug addiction he reported to Mr Macklin. The applicant said that he began using cannabis at about the age of 15 years, and cocaine at 21 years. He is an occasional user of MDMA (or ecstasy). At the time of his arrest the applicant told Mr Macklin that he was using cocaine "all day every day". He managed a period of three weeks of abstinence, but returned to heavy cocaine use after the murder of his brother. He said he had not used drugs since being admitted into custody, and was resolved to remain drug free.
17. His Honour recounted what the applicant had told Mr Macklin as to his involvement in these offences, being that he became involved at a time when he had no money, and a young family and a cocaine habit to support. He did not think anyone would be hurt. The applicant referred to the money to be made as "fast cash", in circumstances where he was worried about his finances and his children's upbringing.
18. Mr Macklin reported that the applicant said he was sorry for what he had done, and his Honour accepted both that he was remorseful, and had reasonable prospects of rehabilitation.
19. His Honour could not accept without reservation the various testimonials provided by friends and family for the applicant. He observed that a reference from the applicant's wife, Princess Laalaa, described the applicant as having no negative qualities, being "well balanced", with "an abundance of positive qualities". In assessing that evidence, his Honour referred to the applicant's assertion to Mr Macklin that he had been a long term heavy user of cocaine, something his Honour could not accept would go unobserved by those closest to him.
20. Other references were provided by individuals who were not close to the applicant, and apparently unaware of his drug use. His Honour gave that evidence limited weight as a consequence.
21. Specific deterrence was required.
22. In all of the circumstances, the sentencing judge concluded that no sentence other than a sentence of imprisonment could properly be imposed.

Ground 1: "The sentence imposed upon the applicant for the offence of Possession of a Prohibited Drug is manifestly excessive"

1. The applicant complains that, having regard to the facts of this offence and the conclusions reached by the sentencing judge with respect to it, there was no proper basis for his Honour to have found that no sentence other than a sentence of imprisonment was appropriate (s 5(1) Crimes (Sentencing Procedure) Act). He relies upon statistics held by the Judicial Commission that demonstrate that, of 31,059 cases for possession of a prohibited drug dealt with in the Local Court following a plea of guilty in the four year period to June 2018, 97% received a sentence other than one involving a custodial term. He contends that the only proper sentence was for a conviction to be imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act, with no further penalty.
2. The sentence imposed for this offence was one of 6 months imprisonment, dating from the date of the applicant's arrest. As the applicant points out, this sentence allowed for a 25% discount on sentence to reflect the utilitarian value of the early plea of guilty.
3. There was some level of accumulation inherent in the structure of the sentences imposed, such that the applicant served a discrete term of 3 months imprisonment referable to this offence alone. The balance of the 6 month term was served concurrently with the sentence imposed for the other State offence.
4. When the sentence imposed upon the applicant is viewed in its proper context, the submission that it is manifestly excessive must be rejected.
5. The available range of sentence for an offence of this nature commences with a monetary penalty and concludes with a term of 2 years imprisonment. Where within that range any given sentence should fall is a matter determined not by comparison with statistics, but by reference to the facts of the offence, and the circumstances of the offender, and in compliance with sentencing law and principle.
6. Manifest excess cannot be established by pointing to a statistical range of sentence and arguing that the particular sentence falls at or near the top of that range. After all, within any given range of sentence, someone must be at its higher end. That fact alone cannot establish that the sentencing discretion miscarried in that instance by the imposition of an excessive sentence; any more than can a sentence at the lowest end of the statistical range of itself establish manifest inadequacy.
7. That the sentence imposed upon the applicant compares to those imposed upon the statistically small number of individuals sentenced to terms of imprisonment, of any length, in the Local Court, says nothing about whether or not the sentencing judge erred. The circumstances applying to offenders dealt with in the Local Court, and those applying to the applicant sentenced in the District Court, will necessarily be very different. Persons sentenced summarily in the Local Court could not have simultaneously faced sentence for related serious indictable drug offending, as the applicant did. Such persons were unlikely to be in the position of the applicant, who faced the inevitability of a custodial sentence for much more serious related offences. The quantity and probable purity of drug relevant to persons dealt with summarily was likely to have been different, particularly in circumstances where the quantity the applicant had in his possession was more than three times the small quantity (of 1 gram), and exceeded the traffickable quantity (of 3 grams) specified for cocaine by Schedule 1 to the DMTA.
8. Although the general pattern of sentence is a relevant consideration, statistics are of very limited assistance in determining whether a sentencing discretion has miscarried: SS v R [2016] NSWCCA 197 at [62]-[63] per Bathurst CJ; Windle v R [2011] NSWCCA 277 at [62]-[63].
9. The question of manifest excess falls to be determined in light of the relevant statutory maximum sentence, by considering the facts and gravity of the crime, the applicant's subjective circumstances, and by the application to those features of relevant sentencing principles. Only if it can be concluded that the sentence is unreasonable or plainly unjust is intervention by this Court to correct a manifestly excessive (or inadequate) sentence required: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6], 325; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [59].
10. In this instance, the facts surrounding the applicant's possession of cocaine made it a relatively serious example of such an offence. It is not correct to say, as the applicant did, that the sentencing judge concluded that the offence fell at the "lower end of seriousness". It is clear from the overall context in which his Honour made that remark that he (correctly) regarded the possession offence as of lesser seriousness than the other crimes charged against the applicant; it was not an assessment of the gravity of the offence.
11. His Honour made no specific assessment of the objective gravity of this offence, although his conclusion that only a sentence of six months imprisonment was appropriate to reflect its criminality demonstrates that he regarded it as a serious example of such an offence. That assessment was open in my view.
12. With respect to a crime where many such offences relate to the possession of a small quantity of a prohibited drug, to possess an amount in excess of the traffickable quantity, and to do so in the context of broader drug offending, must elevate the seriousness of this offence.
13. Also of relevance to the penalty imposed was the applicant's criminal history which, containing as it did earlier drug convictions, operated to deny the applicant the leniency that might otherwise have been extended to him, and to raise for consideration the need for the sentence to incorporate an element of specific deterrence, and to protect the community. It did not, contrary to the applicant's submissions in this Court, evidence an addiction that could mitigate the applicant's crime.
14. Drug addiction is not ordinarily a mitigating factor on sentence; it is a choice: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149, at [197]-[198]; [200]; [206], per Spigelman CJ. Only in the rare cases referred to by Wood CJ at CL in R v Henry at [238] and [273] may it be considered in that way. This is not such a case. The applicant's addiction to MDMA commenced in his adult years, and seems to have been a lifestyle choice. That cannot ameliorate the penalty imposed upon him.
15. There was also a need for the sentence to punish the specific crime, separate as it was to the other offences of which the applicant was convicted. His Honour's conclusion that a discrete period of three months imprisonment was required in circumstances where neither the penalty imposed for the fraud offence, or those imposed for the importation offences, could comprehend the criminality of the applicant's possession of over 3 grams of cocaine, was not inappropriate.
16. Those features taken together clearly indicated the need for a custodial sentence, thus meeting the s 5 Crimes (Sentencing Procedure) Act threshold.
17. There was nothing of significance in the applicant's subjective case which derogated from that conclusion. The applicant did not give evidence, but relied upon a psychologist's report, prepared for the purpose of sentencing, and a number of character testimonials. As noted, the latter were given limited weight by the sentencing judge.
18. Whilst a sentence of six months imprisonment for a possession offence may be regarded as a stern sentence, it is not one which has been shown to be unreasonable or plainly unjust in the circumstances of this case. It is not, in my conclusion, manifestly excessive.
19. This proposed ground must fail.

Ground 2: "There is disparity between the sentences imposed upon the applicant and the sentences imposed upon the co-offender El-Khair, such as to leave the applicant with a legitimate sense of grievance"

1. At the time sentence was imposed upon the applicant, sentence was also imposed upon Mohammed El-Khair. The latter was dealt with for two offences, both being offences of attempting to possess a marketable quantity of a border controlled drug. The first related to a quantity of 975 grams of cocaine, or 637.6 grams pure weight; the second related to a quantity of 528 grams of cocaine, or 367 grams pure weight. Both of these offences carry a maximum penalty of 25 years imprisonment and / or a fine. A further similar offence relating to an amount of 99 grams gross weight of cocaine, or 74 grams pure weight, was taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) when sentence was imposed upon El-Khair for the first offence.
2. Only the second of the sentence offences against El-Khair had some commonality with the offences charged against the applicant, it being sequence 6 of the charges against him. Even so there were differences, with the applicant sentenced for attempting to import a marketable quantity of a border controlled drug, and El-Khair sentenced for attempting to possess a marketable quantity of a border controlled drug.
3. Further, the applicant was sentenced for an offence of attempting to possess a border controlled drug (74 grams pure weight); an offence in these terms against El-Khair referable to this importation was before the sentencing court on the s 16BA schedule.
4. El-Khair was sentenced to an overall term of imprisonment of 7 years, with an overall non-parole period of 4 years and 6 months. The applicant complains that he is justifiably aggrieved by the fact that he received a non-parole period which exceeds that imposed on the co-offender by six months, even though El-Khair was sentenced for another serious drug offence, being attempt to possess a marketable quantity of a border controlled drug (637.6 grams pure weight cocaine).
5. Whilst maintaining that he has received unequal treatment before the sentencing court, the applicant acknowledged that his case was not directly comparable with that of El-Khair. There were differences in the charges that proceeded to sentence against each, and in the respective roles of each, with El-Khair found to be subservient to and taking direction from the applicant. He contends, however, that there were a number of features demanding equivalence, including the ages of the two men (27 for the applicant, 29 for El-Khair); their comparable criminal histories; the pleas of guilty entered by each; and their reasonable prospects of rehabilitation.
6. The parity principle requires that, "[…] so far as the law permits, like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."": Green v The Queen [2011] HCA 49; 244 CLR 462 at [28].
7. Whilst it is not necessary for there to be direct correspondence of charges faced by co-offenders for the parity principle to apply, "[…] there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant": Green v The Queen at [30].
8. Here, it is in the differences between the cases of the applicant and El-Khair respectively, that the answer to the applicant's complaint may be found.
9. An offence common to both the applicant and El-Khair was before the sentencing court but by different means: an offence of attempting to possess a marketable quantity of a border controlled drug was prosecuted as an indictable offence for sentence for the applicant, but placed on a s 16BA schedule for El-Khair. The significance of that difference was fundamental: Dunn v R [2018] NSWCCA 108 at [16] per Adamson J, with whom Macfarlan JA and Johnson J agreed. It removes from consideration under the parity principle the penalty imposed upon the applicant for that offence, and affects the application of the principle to the sentences imposed as a whole.
10. Each offender faced charges that the other did not. In the applicant's case he was sentenced for State fraud offences, offences which represent wholly distinct criminality to the separate drug offending, incapable of comprehension by the sentences imposed for the federal offences. The differences in charges bring in to play considerations of concurrency and accumulation, and totality, such as to compound the difficulty in comparing the outcomes on sentence for each.
11. Another difference was in the respective roles played by the applicant, and El-Khair. It was the applicant who, in the conclusion of the sentencing judge, held the supervisory role in relation to the overall scheme to import drugs in consignments mailed from the United States. El-Khair, whilst a "trusted lieutenant" to the applicant, did as he was directed by him, even to performing the most menial of tasks. That difference is of such significance as to, of itself, account for the difference in penalty between the applicant and El-Khair, insofar as a comparison can legitimately be made.
12. Those features pointed to by the applicant as demanding equivalence were not in fact of great significance. A two year age gap, except in the case of child offenders, is ordinarily of very limited relevance. That is particularly so where the younger offender has the commanding role over the elder. Although the applicant contends that his upbringing was more difficult than that of El-Khair, the sentencing judge did not accept that growing up with older, criminal, brothers, was a mitigating feature. In other respects, the applicant's background circumstances were unremarkable; his parents had been hardworking people who provided adequately for him, and he had an average education. El-Khair had breached prison discipline since his incarceration whilst the applicant had not, but El-Khair had been penalised institutionally for those infringements, and the impact on sentence of those breaches must have been limited in circumstances where the sentencing judge found El-Khair had good prospects of rehabilitation.
13. Although both offenders had limited criminal histories, the applicant had been largely unemployed in his adult life. El-Khair had lived a relatively productive life, with an extensive employment history to his credit.
14. The applicant and El-Khair were co-offenders with respect to one specific offence and, in relation to the other Commonwealth drug offences, they were co-offenders in the sense of having been involved in the same criminal enterprise. Beyond that, they could not be termed co-offenders. The application of the parity principle was correspondingly ameliorated. Insofar as the principle applied, the sentencing judge was cognisant of it.
15. There is no justifiable basis for the applicant to feel aggrieved at the six month difference in the sentence imposed upon him, to that imposed upon El-Khair. This ground has not been made good.

Conclusion

1. Having concluded that neither proposed ground has been established, although I would grant leave to appeal, the appeal must be dismissed. The orders I propose are: 1. Grant leave to appeal; 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2019