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[2025] NSWCCA 120
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-08-15
Wright J at [1]Hamill J at [2]Chen J at [72]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Al-Hassan v R [2025] NSWCCA 120
Hearing dates: 16 April 2025
Date of orders: 15 August 2025
Decision date: 15 August 2025
Before: Wright J at [1]
Hamill J at [2]
Chen J at [72]
Decision: (1) Leave to appeal granted.
(2) Allow the appeal for the limited purpose of adjusting the commencement date of the sentence imposed on sequence 1 but otherwise dismiss the appeal.
(3) Quash the sentence imposed on sequence 1 and in lieu thereof, the applicant is sentenced to imprisonment for 14 months commencing on 26 July 2023 and expiring on 25 September 2024.
(4) Confirm the single non-parole period of 5 years for sequences 1 and 11 commencing on 26 July 2023 and expiring on 25 July 2028.
Catchwords: CRIMINAL APPEALS – appeal against sentence – fact finding – importation of marketable quantity of cocaine – “rolled up” charge involving three consignments – where co-offender disposes of one consignment – threat to kill co-offender – act to influence witness – whether Judge erred in calculating quantity of missing consignment – where offender referred to quantity in intercepted call – no evidence of purity of drug – where offender referred to “pure coke” – whether Judge made finding of exact quantity – whether error (if established) material – whether safe to act on offender’s disclosures – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 319
Crimes Act 1914 (Cth), Pt IB
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
Criminal Code Act 1995 (Cth), ss 307.2(1), 474.15(1)
Cases Cited: Aiga v R [2024] NSWCCA 175
Bidner v R [2024] NSWCCA 204
Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Gibson v Regina [2019] NSWCCA 221
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kim v R [2018] NSWCCA 68
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McLaughlin v R [2025] NSWCCA 13
Newman v R [2021] NSWCCA 101
Ocek v R [2023] NSWCCA 308
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Bui [2025] NSWCCA 114
Texts Cited: N/A
Category: Principal judgment
Parties: Almed Al-Hassan (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
Representation: Counsel:
K Conte-Mills (Applicant)
A Chhabra with D Wilcox (Respondent)
Solicitors:
Raihani Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2022/00220483
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
The applicant sought leave to appeal against the sentences imposed on him in the District Court on 17 May 2024 for using a carriage service to threaten to kill, importing a border controlled drug exceeding the marketable quantity, and doing an act with intent to pervert the course of justice. The applicant received a 25% sentencing discount for entering pleas of guilty in the Local Court and his willingness to facilitate the course of justice. The total effective sentence for the three offences was 9 years imprisonment with a non-parole period of 6 years.
The applicant was the principal of a criminal group that imported three consignments from France, each containing a marketable quantity of cocaine. They were referred to as the “Anthony Barlowe” consignment, the “Adele Margo” consignment and the “Gabrielle Jade” consignment. The Adele Margo and Gabrielle Jade consignments were intercepted by the Australian Border Force and the contents and exact amount of pure cocaine within the packages was not in issue. The factual dispute concerned the quantity of drugs in the Anthony Barlowe consignment which was thrown out by a co-offender when it was delivered to her address.
The applicant sought leave to appeal against the sentence imposed on two grounds:
(1) The Learned Judge erred in finding the Anthony Barlowe consignment was close to 425 grams (or 15 ounces).
(2) The sentence imposed in relation to sequence 11, importing a marketable quantity of border controlled drug, was excessive and unjust.
The Court held, granting leave to appeal, allowing the appeal for the limited purpose of adjusting the commencement date for sequence 1 but otherwise dismissing the appeal (per Hamill J, Wright and Chen JJ agreeing):
House v The King (1936) 55 CLR 499; [1936] HCA 40 applied.
2. The second ground of appeal largely turns on the first ground being established. However, the sentence imposed was not so severe that it was manifestly unreasonable or plainly unjust having regard to the applicant’s criminal history, the quantity of drugs, his role in the importation of those drugs and the repetitive nature of the conduct: [60]-[66] per Hamill J (Wright J agreeing at [1] and Chen J agreeing at [72]).
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, House v The King (1936) 55 CLR 499; [1936] HCA 40, Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 applied.
Kim v R [2018] NSWCCA 68 cited.
4. There is a question as to the appropriate test to be applied to a ground of appeal challenging a factual finding. The respondent submitted that the correct test was whether it was “reasonably open” on the evidence and the applicant did not argue to the contrary. However, this has been the subject of discussion, and it has been suggested that the correctness standard should be applied. This issue has not been resolved, and may best be determined by a bench of five judges: [51]-[55] per Hamill J (Wright and Chen JJ not deciding at [1] and [73] respectively).
Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150, Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353, Ocek v R [2023] NSWCCA 308, Bidner v R [2024] NSWCCA 204, Gibson v Regina [2019] NSWCCA 221, Newman v R [2021] NSWCCA 101, Aiga v R [2024] NSWCCA 175, McLaughlin v R [2025] NSWCCA 13 and R v Bui [2025] NSWCCA 114 considered.
WRIGHT J: I agree with the orders proposed by Hamill J for the reasons his Honour gives but I do not propose to express a view on what is contained in [52]-[54] of his Honour’s judgment. As Hamill J noted, the question of the appropriate standard to be applied in dealing with a ground of appeal challenging a factual finding by a sentencing judge was not the subject of submissions. Both parties accepted that the test was whether the factual finding was “not open”. Further and in any event, in the present case whether the “not open” standard or the correctness standard is applied, the result is the same. The sentencing judge did not make a precise finding as to the quantity of cocaine involved and the finding that was made was well supported by the evidence.
HAMILL J: Almed Al-Hassan (“the applicant”) seeks leave to appeal against sentences imposed on him by Judge Arnott SC in the District Court sitting at Campbelltown on 17 May 2024.
The sentences related to two commonwealth offences and one state offence and arose out of the applicant’s involvement with a group which imported marketable quantities of cocaine into Australia. The specific offences were using a carriage service to make a threat to kill, importing a marketable quantity of cocaine and doing an act to pervert the course of justice. Those offences carried maximum prison sentences of 10, 25 and 14 years respectively. The applicant received a 25% sentencing discount for his early pleas of guilty and willingness to facilitate the course of justice. The total effective sentence for the three offences was 9 years with a non-parole period of 6 years.
By notice of appeal filed on 6 December 2024, the applicant advanced the following grounds of appeal:
“Ground 1: The Learned Judge erred in finding the ‘Anthony Barlowe’ consignment was close to 425 grams (or 15 ounces).
Ground 2: The sentence imposed in relation to Sequence 11, importing a marketable quantity of border-controlled drug, was excessive and unjust.”
The applicant was arrested on 27 July 2022 and has remained in custody since that date. He pleaded guilty in the Local Court and was committed for sentence on 20 December 2023 in relation to the following offences:
Sequence 1: Using a carriage service to threaten to kill. This was an offence under s 474.15(1) of the Criminal Code Act 1995 (Cth) (“the Code”) carrying a maximum penalty of 10 years imprisonment.
Sequence 11: Importation of a border controlled drug, namely cocaine, in a quantity exceeding the marketable quantity. This was an offence against s 307.2(1) of the Code which has a maximum penalty of 25 years imprisonment.
Sequence 13: Doing an act, being to ask another person to influence a witness to provide false information to police, with intent to pervert the course of justice. This was an offence under s 319 of the Crimes Act 1900 (NSW) which prescribes a maximum penalty of 14 years imprisonment.
The somewhat complex interaction between state and federal sentencing provisions meant that the sentencing Judge was required to impose a separate sentence for the state charge and a single non-parole period for the two federal offences. Giving effect to the principle of totality, and considering the connection between the three offences, his Honour was also called upon to determine the commencement date of the sentences and, in doing so, the extent of any notional concurrence and cumulation. His Honour imposed a fixed term for the state offences (“the fixed term”), separate sentences for the two commonwealth offences, one of which commenced part way through the fixed term, and a single non-parole period for the commonwealth offences which commenced at the conclusion of the fixed term. Neither party suggested that his Honour erred in his approach to these matters.
After correcting a “slip with some dates”, the formal sentencing orders were as follows:
Sequence 13: a fixed term of 12 months imprisonment commencing on 27 July 2022 and expiring on 26 July 2023.
Sequence 1: a sentence of 14 months imprisonment commencing on 26 January 2023 and expiring on 25 March 2024.
Sequence 11: a sentence of 8 years imprisonment commencing on 26 July 2023 and expiring on 25 July 2031.
A single non-parole period of 5 years for sequences 1 and 11 commencing on 26 July 2023 and expiring on 25 July 2028.
As Judge Arnott explained, this resulted in:
“[a]n overall sentence to be imposed of 9 years commencing 27 July 2022 and expiring on 26 July 2031 with a non-parole period of 6 years commencing 27 July 2022 and expiring on 26 July 2028. The earliest release date will be 26 July 2028”.
With one significant exception, the facts of the offences were agreed between the parties. I will deal first with the undisputed facts.
Along with five other people, the applicant was involved in a criminal group which imported three consignments, each containing a marketable quantity of cocaine. By reference to the addressees on each package, the consignments were referred to as the “Anthony Barlowe” consignment, the “Adele Margo” consignment and the “Gabrielle Jade” consignment. Each consignment contained a package which was posted, or sent by courier, from France to separate addresses in Sydney. The consignments were sent separately in around July 2022. The Australian Border Force intercepted the Adele Margo and Gabrielle Jade consignments and there was no dispute as to their contents or the amount of pure cocaine hidden within the packages. The factual dispute, and ground 1 of the appeal, concerned the quantity of drugs in the Anthony Barlowe consignment. That package, on the prosecution case, was thrown out by the person to whose address it was delivered, that is, Ms Tenaj Mitchell. Ms Mitchell attended the Liverpool Police Station on 20 July 2022 and confessed her involvement in the importation.
The applicant “personally posted the [Anthony Barlowe] consignment to Australia while he was in France”.
Ms Mitchell admitted that, early in 2022, she agreed with Caitlin Hyett and Caitlyn Laycock to receive a package in return for a payment of $4,000 (later reduced to $1,500). A French courier received the consignment on 15 June 2022, and the package arrived in Australia on 24 June 2022. It was delivered on 27 June 2022.
The package was addressed to “Anthony Barlowe” with a label describing its contents as “skincare and biscuits”. Ms Mitchell told police that she assumed it was intended for a man named Anthony who used to live at her address. She attempted to contact the email address and ‘phone number on the package but was unsuccessful. Later that night she opened the package, which contained two packets of biscuits and four one-litre bottles of conditioner. Ms Mitchell said she threw the package away, and did not realise it was the consignment she had agreed to receive.
On 6 July 2022, Ms Mitchell sent Ms Hyett a message asking to whom the package would be addressed. Ms Hyett sent a screenshot of messages between herself and Ms Laycock in which Ms Laycock provided the names “Gabrielle Jade” and “Jason Mumbler”. On 19 July 2022, Ms Hyett contacted Ms Mitchell about the package because the tracking information indicated it had been delivered, and Ms Mitchell explained what had happened. Ms Laycock later called Ms Mitchell and asked to whom the package was addressed and where it came from. Ms Laycock told Ms Mitchell that “they got the names wrong” and she would call her back as she had to speak to the “big boss”. Later, Ms Mitchell told Ms Laycock that she had returned the package. Ms Laycock said she would need to provide proof and explained that the conditioner bottles contained cocaine wrapped in condoms. That was the context in which Ms Mitchell spoke to the police at Liverpool.
“I don’t want to give you my number because I’m probably gunna kill you, cuz. You don’t understand what I want to do to you … you fuckin’ ripped me 300 grand”.
“Some slut, a mum of four kids, she stole off me three hundred thousand dollars Mum. My stuff I received, sent to Australia, remember I told you about? She stole it off me”.
The applicant posted the Gabrielle Jade consignment from France and it arrived in Australia on 8 July 2022. It was examined by the Australian Border Force on 11 July 2022 and found to contain various children’s toys and three bottles of hair products. One of the bottles of hair product was cut open. It was concealing two quantities of a white powdery substance wrapped in condoms. On forensic examination, the white powder was identified as cocaine.
The total pure weight of the cocaine was 235.684 grams.
The applicant was arrested and charged on 27 July 2022. He participated in an interview in which he denied his involvement in the offending. He denied that he was a member of any syndicate or criminal group as alleged and said it was not his voice in the recorded call to Ms Mitchell. The applicant admitted that he was in Europe for a period of two months and visited France during this time.
On 27 July 2022, police intercepted a ‘phone call made by the applicant to his mother. The applicant said the following words (with my emphasis) which were relied on as the “act” founding the charge in sequence 13:
“Do you remember I told you two days ago there is a story going on, alright there is someone in charge of that story that someone is responsible, that someone got me under the bus and got me to that story. Mum now now, that girl, go talk to her because if this girl tells the police that she was lying I’ll get out, but if she doesn’t do that, I’m gonna be fucked. I told her speak with my mum and my mum will help you because she is a girl mum. She’s a little shit little bitch but she doesn’t know what to do with it, I know you know the situation very well I know you can get me out of here is a sec”.
Early in the sentencing hearing, Judge Arnott asked whether it was agreed that the Anthony Barlowe consignment contained the “equivalent to 15 ounces, namely, 425 grams?”. Counsel then appearing for the applicant said that was not agreed and disputed that the prosecution could prove beyond reasonable doubt that such a quantity was contained within the relevant consignment. She noted that the “consignment was never located and it was gotten rid of by one of the parties who made the report to the police”.
In assessing the objective seriousness of the importation offence, and relevant to both grounds of appeal, the sentencing Judge said:
“The amount of cocaine imported was a total of at least 453 grams (pure weight) in two consignments, plus another $300,000 worth of cocaine in the Anthony Barlowe consignment. The Anthony Barlowe consignment clearly involved a significant amount of cocaine and I find it was close to 425 grams (or 15 ounces) having regard to what the offender said to his mother in a telephone call on 15 July 2022. He told his mother on this date in a telephone call that, ‘She’s [Ms Mitchell’s] got 300 grand worth of stuff … pure coke. It’s all rock … 15 ounces.’ A marketable quantity of cocaine is two grams”.
The applicant was born in Australia and experienced an unstable upbringing characterised by domestic violence and emotional abuse. He started using drugs at an early age. He reported that his parents separated when he was a newborn because of his mother’s struggles with gambling and alcohol consumption. The applicant does not have regular contact with his mother, who was at times abusive. He only sees her once every four to five years. The applicant had a positive relationship with his father until he was around 15 years of age when he started to engage in disruptive and troublesome behaviours. When a paternity test revealed that his father was not his biological parent, he was asked to leave the family home permanently. He experienced feelings of neglect and abandonment and began to seek support from deviant peer influences. He started staying with them, sleeping rough or living in refuges.
The applicant attended Granville Public School and Granville Boys High School where he completed Year 7. He reported being a poor student academically and was placed in a behavioural school but left after two years. The applicant said he was illiterate, and his employment history was poor. He said his attempt to start a printing business in around 2017 did not work out. Otherwise, he had worked for a very short time with a removalist truck driver.
The applicant is currently in a relationship and has a 3-year-old daughter and a 1-year-old son who was born while he was in custody on remand for the present offences. The applicant’s immediate family lives in Perth, and he has only seen his children twice in the last two years.
The applicant was in receipt of assistance from the National Disability Insurance Scheme. A “Functional Capacity Assessment” report prepared by psychologists with Bloom Healthcare noted that the applicant was diagnosed with an intellectual disability in 2013. The assessment concluded that the applicant’s full-scale IQ was higher than only 1% of his peers placing him in the extremely low to borderline range. He met the criteria for a mild intellectual disability. Similarly, the applicant outperformed only 1% of individuals in his age range in terms of behavioural and emotional regulation.
Tim Watson-Munro, a consultant psychologist, described the applicant as a “psychologically troubled man”, noting diagnoses of attention deficit hyperactivity disorder (“ADHD”), anxiety, depression, and substance use disorder referable to cannabis, cocaine and alcohol with some experimental use of MDMA and crystal methylamphetamines. Mr Watson-Munro believed the applicant suffered from low self-esteem. Mr Watson-Munro also referred to a diagnosis of schizophrenia in 2012, and said that the applicant was not currently receiving medication for that condition. However, there were no further details of this diagnosis, and the sentencing Judge was not satisfied on balance that the applicant had schizophrenia in the past, at the time of the offences, or since that time.
A psychological report obtained by the Legal Aid Commission for Children’s Court proceedings in 2012 confirmed the applicant’s troubled background and his intellectual and psychological challenges. This included a diagnosis of ADHD by a psychiatrist when the applicant was in primary school and symptoms consistent with that condition when the applicant was aged 15 years.
The sentencing Judge accepted the evidence of the applicant’s reduced intellectual functioning, ADHD and difficult childhood upbringing and said:
“I consider his moral culpability [for] the offences is reduced by reason of these factors and the weight to be given to general deterrence [is] reduced. His time in custody will be more difficult as a result”.
The applicant has a criminal record as a juvenile for which he spent time in custody under a control order for aggravated break and enters and resisting arrest. There are no matters of great significance on his adult record although he has a bad driving record including a police pursuit for which he was sentenced to an intensive correction order (“ICO”) for 12 months. He was convicted of dishonestly obtaining financial advantage by deception in 2016 for which he received a 12-month ICO. He was also convicted of drug possession in 2018 and received a $550 fine.
Most recently the applicant was convicted of an offence of knowingly allowing his premises to be used as drug premises. That offence was finalised on 26 August 2021 and resulted in an 18-month community correction order. The applicant was subject to that bond at the time he committed the present offences. While that does not increase the objective seriousness of the present offences, it is an aggravating feature pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant has committed several infractions while on remand. He was placed in segregation in November 2022 after offering an inmate 50 buprenorphine strips to assault a female staff member. He failed a prescribed drug test in October 2023. His custodial record also records that between November 2022 and November 2023 he was involved in “fight[ing] or other physical combat”, possessing an offensive weapon or instrument, assaults, intimidation and failing to comply with a correctional centre routine.
The applicant has experienced traumatising events while in custody. He was bashed and sexually abused when he was at the Cobham Juvenile Detention Centre when he was approximately 10 years of age. A letter from Parker Simmonds Solicitors and Lawyers confirmed that they will be commencing civil proceedings for compensation on the applicant’s behalf.
In the period of remand before the present sentence was imposed, the applicant’s cell mate, who was a friend, committed suicide by hanging in 2023. After that incident, the applicant developed symptoms of post-traumatic stress disorder and escalating symptoms of depression and anxiety. During the same year, the applicant was bashed and stabbed at Clarence Correctional Centre. He sustained fractured ribs and reported that he was living in a state of hypervigilance in custody as a result of these events.
The applicant wrote a letter to the sentencing Judge in which he expressed his “sincere remorse for [his] actions and the harm they may have caused”. He said he took full responsibility and had learned from his poor choices. There were similar expressions of contrition in the reports, including the report of Mr Watson-Munro. The letter said reconnecting with his partner and children would help him to “stay on a positive path” in the future.
Judge Arnott was not convinced by this material and made the following observations and findings:
“Notwithstanding the remorse expressed in his letter and for example to Mr Watson-Munro, I am unable to make a finding whether the offender is remorseful and contrite or not. I do accept the separation from his children due to being in custody has caused him to deeply reflect upon his actions.
I find his prospects of rehabilitation and not reoffending are guarded. This is not simply because of his custodial history, but also his subjective features which, as mentioned earlier, are relevant to prospects of rehabilitation. The Crown with good reason questioned whether he did have waiting for him a good support system having regard to the fact that he turned to his mother to have Ms Mitchell change her evidence. He also noted the offender’s custodial history is poor including entries as recently as November 2023 of fight or other combat, intimidation and fail prescribed drug test”.
Ms Conte-Mills, counsel for the applicant on the appeal, submitted that there was “no objective evidence as to the actual weight” of cocaine contained within the Anthony Barlowe consignment because the package had gone missing. Counsel submitted that there was no evidence of the quality (that is, purity) of the drug and no clear evidence of the gross weight of the drug. It was submitted that reliance on the applicant’s words in his intercepted telephone call with his mother on 25 July 2022 was “problematic for several reasons”. Ms Conte-Mills submitted that those words – “She’s got 300 grand worth of stuff … pure coke. It’s 100% all rock … 15 ounces” – amounted to “very subjective and unreliable evidence”.
The written submissions continued:
“The finding by the Learned Judge as to the weight of the consignment is problematic because:
(a) The Applicant also says in the same conversation, ‘…she’s got like fourteen or fifteen occas…’. This is indicative that the Applicant himself was not actually sure as to the weight;
(b) The possibility the Applicant was exaggerating to his mother and trying to impress his mother with the extent of the loss of this consignment should have been considered. The likelihood the Applicant was trying to impress his mother and thus exaggerating the weight can be inferred from other comments he made to his mother, such as,
(i) ‘It’s fucking pure coke. It’s 100%, all rock’. The Crown submitted this claim by the offender was unlikely to be correct: ‘He does say in the conversation with his mother that it was 100% all rock. Now, based on my experience and I dare say the experience of the courts generally, it’s not likely it would’ve been 100% purity. It may have been high.’
(ii) ‘Each ounce is worth like $14,500 on the street, $15,000 right now, each one. $15,000 times fifteen.’ This is in the context where the Applicant has also stated ‘And the stuff is worth 300 grand’. These two statements by the Applicant to his mother are inconsistent as $15,000 times 15 is $225,000. The proposition by the Applicant that it is worth $300,000 is thus an exaggeration.
(iii) The witness MITCHELL tells police she was told ‘she would only be paid $1,500 for receiving the package’, having previously been told ‘she could make $4,000 if she had the package delivered to her address’. The claim by the Applicant to his mother that he gave ‘$5,000 for each address’ appears to be further evidence of the Applicant’s tendency to exaggerate.
(iv) ‘I trusted $800,000, $900,000 with this one slut’ suggests an exaggeration of the value of the consignments overall, noting the already exaggerated value attributed to the ‘Anthony Barlowe’ consignment by the offender of $300,000 and the known weights of the other two consignments being much less than the weight attributed to the ‘Anthony Barlowe’ consignment.
(v) ‘This was supposed to help me buy a house mum. Mum this was supposed to help me to buy another 10…then I would be a millionaire. I’d be worth 4 or 5 million. You think [I] won’t fucking give you a million’. These comments by the Applicant to his mother in the context of the lost consignment being worth about $300,000 demonstrate a further and significant exaggeration. Such an amount, even if the offender is referring to the $800,000 or $900,000 he had mentioned previously, was not going to help him buy another 10 houses or likely to make him ‘worth 4 or 5 million’.
The Applicant has therefore demonstrated a tendency to exaggerate in the conversation to his mother, which was relied upon by the Learned Judge to make the finding as to weight. It is likely that this tendency to exaggerate extended to the estimate of the weight of the ‘Anthony Barlow’ consignment and thus in establishing this as being ‘close to 425 grams’ was flawed.
(c) The actual weight of the other two consignments was known to the Court. Given what appears to be similarities in the consignments, the Court should have erred on the side of caution in its finding as to the weight of the ‘Anthony Barlowe’ consignment and found the weight to have some similarity to the known weights of the other two consignments. The first known as the ‘Gabrielle Jade’ consignment, being 235 grams and the second known as the ‘Adele Margo’ consignment, being 217 grams. There was no reason (apart from the grandiose comments made by the Applicant to his mother) to assume the ‘Anthony Barlowe’ consignment would have significantly departed from the weight of the other two packages. This is in circumstances where the following similarities existed:
(i) All three packages had been posted to Australia by the Applicant from France;
(ii) All three packages were posted by the offender in the period June - July 2022;
(iii) The ‘Gabrielle Jade’ and ‘Adele Margo’ consignments contained bottles of soap/hair product with the cocaine concealed in condoms inside the product bottles. The ‘Gabrielle Jade’ consignment contained three bottles of hair product and toys. The ‘Adele Margo’ consignment contained two bottles of liquid soap and children’s toys. This is similar to the ‘Anthony Barlowe’ consignment which was described by the witness MITCHELL as containing four one-litre conditioner bottles and two packets of biscuits. It is unknown how many bottles in this consignment contained product or cocaine, or indeed how many bottles there actually were or the nature of the biscuits”.
It was submitted in conclusion that “the finding as to the weight of the ‘Anthony Barlowe’ consignment was flawed and could not have been made beyond reasonable doubt”.
Ms Conte-Mills developed these submissions on the hearing of the appeal. She said the finding was “not reasonably open” and that the line of reasoning using the telephone intercept was flawed.
Mr Chhabra and Mr Wilcox, appearing for the respondent, submitted to the contrary.
The respondent raised an issue as to the materiality of the error noting that the weight of the drug was only one feature of the offending relevant to a reasoned evaluation of the objective seriousness of an importation offence. This echoed the submissions made by the Director’s representative at first instance where it was emphasised that the rolled-up importation charge far exceeded the marketable quantity of the drug (2 grams) in any event, and that the offender’s belief as to the quantity was more significant than the actual pure weight. Mr Chhabra’s oral submissions were somewhat different to the submission made in writing that:
“the quantity of drug the subject of the relevant offence is a significant consideration in sentencing for offending involving the importation of border controlled drugs, albeit not a determinative one”.
However, the respondent’s major submission in response to this ground was that the finding of the sentencing Judge was “reasonably open” on the evidence. As well as the direct evidence of what the applicant said to his mother, the respondent relied on the other importations and the purity of the cocaine contained in those consignments. In short form, the respondent submitted:
The amount of compensation that Ms Mitchell was to receive suggested the consignment was of considerable value.
The co-offenders told Ms Mitchell that the package would contain four one-litre bottles and that is what she said the box contained.
In the telephone call on 20 July 2022, the applicant told his mother that the package contained “$300,000 worth of stuff” and repeated this value more than once.
In the intercepted call on 25 July 2022, the applicant told his mother that Ms Mitchell stole $300,000 from him and referred to “14 or 15 ounces” of “pure coke”.
The other consignments contained two or three bottles whereas the Anthony Barlowe consignment contained (on the only evidence available) four one-litre bottles. The bottles in the Adele Margo consignment were 500 ml bottles.
Because of the number of bottles in the Anthony Barlowe consignment and their larger volume, there was a logical flaw in the applicant’s submission that “there was no reason … to assume the ‘Anthony Barlowe’ consignment would have significantly departed from the weight of the other two packages”.
Despite the submissions advanced by counsel on both sides of the present appeal, there is a question as to the appropriate test when considering a ground of this nature. Counsel proceeded on the basis that the question the Court must address is whether it was “open” or “reasonably open” to the sentencing Judge to make the finding of fact that he did.
In Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150, the majority concluded that this was not the correct test: see Basten JA at [34]-[36] and Hamill J at [129]-[136] (Garling J dissenting on the issue at [99]). The majority reached the same conclusion in Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353: see Basten JA at [20] and Hamill J at [82] (Lonergan J not deciding on the issue at [86] and [91]). As the respondent submitted in writing, in both Ocek v R [2023] NSWCCA 308 and Bidner v R [2024] NSWCCA 204, the Court accepted that the “test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence”: Ocek v R at [116] (N Adams J). In Clarke v R, at [134] I acknowledged that the “reasonably open” test was the approach taken by most Judges who regularly sit in this Court. The issue has been discussed, but not resolved, in a number of cases since: see, for example, Gibson v Regina [2019] NSWCCA 221 at [61] (N Adams J), Newman v R [2021] NSWCCA 101 at [63]-[67] (N Adams J), Aiga v R [2024] NSWCCA 175 at [57]-[59] (N Adams J), and McLaughlin v R [2025] NSWCCA 13 at [1] (Hamill J) and [142]-[145] (N Adams J).
Most recently, Leeming JA raised the issue in R v Bui [2025] NSWCCA 114 saying at [3]-[7]:
“[3] There was no argument in this Court concerning the circumstances when error may be found in a ground of appeal challenging a finding of fact, such as Ground 1A, and thus there is no occasion to revisit the conflict on this point between what was said in AB v R [2014] NSWCCA 339 at [44]-[61], disapproving what had been said in Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19 and Aoun v R [2011] NSWCCA 284, but which was reiterated (albeit without submissions on the point) in Clarke v R [2015] NSWCCA 232; 254 A Crim R 150 (“Clarke”) and Hordern v R [2019] NSWCCA 138; 278 A Crim R 353 (“Hordern”), but thereafter again disapproved (again, without submissions on the point) in Azzopardi v R [2019] NSWCCA 306 at [34]-[40] and Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18; 278 A Crim R 564 at [125].
[4] There will come a time when the point will be argued and determined. There would be much to be said in favour of sitting an enlarged bench when that occasion arises. That is because the question is a basal one, and there are respectable arguments available to both sides. And, despite the forcefulness with which some of the reasons have been expressed, there is a deal of common ground. So far as I can see, no one disputes that before this Court can intervene under s 5(1)(c) of the Criminal Appeal Act, there must first be ‘error’. The issue is whether those errors are limited in the ways enunciated by Hunt J refusing leave to appeal in *O’*Donoghue v R (1988) 34 A Crim R 397 (“O’Donoghue”). That was an ex tempore decision of this Court which relied upon two earlier decisions where it had been said that it was not open to the appellate court to depart from a finding that a confession was voluntary (Merritt & Roso v R (1985) 19 A Crim R 360 and *Kyriakou, D’*Agosto & Lombardo v R (1987) 29 A Crim R 50). In both of those cases the issue was whether the primary judge erred in finding that a confession was given voluntarily where both the police officers and the accused had given evidence about it. O’Donoghue was significant because the reasoning treated the limitations applicable to appellate review where there had been testimonial evidence at first instance to all cases. It is not, to say the least, self-apparent that the same level of deference applies where the judge at first instance does not enjoy the advantage of seeing testimonial evidence.
[5] What was there said in O’Donoghue about the limitations upon making factual findings which bear upon evidentiary rulings may also need to be reconciled with more recent decisions on evidentiary rulings. In particular on one view the generality of what was said in O’Donoghue may sit uneasily with the application of what has come to be known as the ‘correctness standard’ in its application to the evidentiary ruling in Steven Moore (a pseudonym) v The King [2024] HCA 30; 308 A Crim R 592. Error is not mentioned in s 5(1)(c), but the preceding paragraph makes it clear that appeals against conviction extend to ‘any ground of appeal which involves a question of fact alone, or question of mixed law and fact’, which is general in its wording.
[6] On the other hand, there is the fact that many, many sentence appeals challenging findings of fact have proceeded on the more limited basis stated in O’Donoghue, which in turn engages the considerations in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [52]; see also State of New South Wales v Culhana [2025] NSWCA 157 at [86]-[89].
[7] Nothing turns on the point in the present appeal, because irrespective of whether the sentencing judge was right or wrong as to where precisely the applicant was in the hierarchy does not materially affect the sentence which must be imposed by this Court. It may well be that in many cases nothing will turn on the precise scope of this Court’s appellate function. But in some cases it will matter, and the preceding paragraphs may assist the preparation of submissions on the point when that occasion arises”.
In none of these cases was this “basal” question, to adopt the language of Leeming JA, the subject of full argument. In the present case, the respondent submitted that the “reasonably open” on the evidence test was the correct test and the applicant did not argue to the contrary. I maintain the view I expressed in Clarke v R at [129]-[136] and adopt the reasons of Basten JA in both Clarke v R and Hordern v R. As I said in Clarke v R at [136], the issue might best be determined by a bench of five judges: see also R v Bui at [4] (Leeming JA).
In the present case, there was ample evidence upon which the sentencing Judge was able to make the finding that he did. Counsel for the applicant was correct to submit that there were flaws in the reasoning if his Honour intended to convey that he was satisfied of the pure weight of cocaine to any degree of precision. However, that is not what his Honour did.
Putting aside the decimal points contained in the agreed facts, his Honour stated a precise combined quantity – 453 grams – in respect of the two consignments that were seized. When it came to the missing package in the Anthony Barlowe consignment, his Honour’s language was far less precise. His Honour said it was “close to 425 grams (or 15 ounces) having regard to what the offender said to his mother”. His Honour said nothing of the purity of the cocaine. Nor did the sentencing Judge add the assumed quantity of the cocaine in the Anthony Barlowe consignment to the total of 453 grams to make a finding as to the exact quantity of pure cocaine imported in the three consignments which formed the basis of the rolled up charge in sequence 11.
It was an agreed fact that the applicant personally sent the packages from France and his Honour found that the applicant was the Australian “principal” of the enterprise. The best evidence of the quantity was what Ms Mitchell said she saw when she opened the box and what the applicant told his mother. The fact that the applicant exaggerated his profits to his mother in venting his anger at Ms Mitchell did not undermine his assertion that “14 or 15 ounces” of “pure coke” had been lost. The number of bottles in the package and the volume of those bottles supported the proposition that the Anthony Barlowe consignment contained substantially more product than the other two consignments.
Without re-visiting the debate referred to at [52]-[54], and to adopt the uncontroversial language of House v The King (1936) 55 CLR 499; [1936] HCA 40, I do not accept that Judge Arnott “mis[took] the facts”.
Ground 1 is not established.
Ms Conte-Mills submitted that if the sentencing Judge erred in determining the weight of the Anthony Barlowe consignment, the sentence imposed was likely to be manifestly excessive because this was one of three key factors considered in determining the objective seriousness of the offending. Accordingly, this ground of appeal largely turns on the first ground being established. Because I am unable to accept that Judge Arnott erred in the way asserted under ground 1, it is not necessary to consider ground 2 in great detail. However, I will provide brief reasons as to why this ground should also be rejected.
The principles that apply in relation to a ground of appeal asserting that a sentence is manifestly excessive are well established. In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], Gleeson CJ and Hayne J said that whether a sentence is manifestly excessive is a conclusion and in Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15], it was held that an appellate court may not intervene simply because it “would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion”. In other words, it is not sufficient that the appellate court would have “taken a different course” because there is no “single correct sentence”: House v The King at 505 and Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46]. Rather, it must be demonstrated that the sentencing Judge made some error leading them to sentence outside of an appropriate range when exercising the broad discretion: cf House v The King at 505. Sentencing judges are “allowed as much flexibility in sentencing as is consonant with consistency of approach”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27].
The applicant must establish that the sentence imposed was manifestly “unreasonable or plainly unjust”: Dinsdale v The Queen at [22] (Gaudron and Gummow JJ) and [59] (Kirby J). Where no patent legal error is established, but the sentence is unreasonable or plainly unjust upon the facts, the appellate court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King at 505.
Having regard to the applicant’s criminal history, the quantity of drugs, his role in the importation of those drugs and the repetitive nature of the conduct, the applicant has not established that the sentence imposed was so severe that it was manifestly unreasonable or plainly unjust. While the applicant does not have an extensive criminal history, he has committed several offences over his young life, some of which have resulted in custodial sentences. His record did not entitle him to very much leniency and he was on a community correction order for drug offences when he committed the current offences.
The offences involved the importation of three packages containing quantities of cocaine that exceeded the marketable quantity by a substantial margin. It is clear both from those quantities and from the things he told his mother that the applicant sought to make a substantial financial profit from the enterprise. He was heavily involved in the importation of the consignments having been the one who sourced the drugs and packaged the boxes in a way designed to avoid detection. It was not the most sophisticated operation, but it was not without some deviousness. The nature of the package was calculated to deceive, with the cocaine concealed in bottles of hair products, soap and children’s toys and sent to different addresses. The applicant also made the threats to Ms Mitchell and spoke to his mother about attempting to influence what Ms Mitchell told authorities.
The applicant referred to three comparable cases to support the argument that the sentence was excessive and unjust. The respondent pointed out the limited utility in the comparisons made and argued that the cases were distinguishable on their facts. In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, it was said at [54] (with citations omitted):
“In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’. When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned’”.
A curiosity in the structure of the sentence, which was raised by counsel for the respondent in his written submissions, is that the single non-parole period for the commonwealth offences commenced on 26 July 2023, that is 6 months after the commencement date of the individual sentence for sequence 1 (26 January 2023). Mr Chhabra submitted that this was erroneous, referring to the judgment of Basten JA in Kim v R [2018] NSWCCA 68 at [5]-[6] and the absence of any provision in Part IB of the Crimes Act 1914 (Cth) which allows for a single non-parole period commencing after the commencement date of the relevant sentences to which it applies.
The respondent submitted that the commencement date of the sentence imposed for sequence 1 could be adjusted to commence on 26 July 2023, thereby giving effect to the clear intention of the sentencing Judge. It was submitted that to achieve this it would be necessary to allow the appeal for that limited purpose. Counsel for the applicant said, “I understand that my learned friend is going to be requesting a sentencing correction, an error that was possibly made and I don’t dispute that”.
I accept the sentencing Judge made a technical error in this regard and that the solution agreed to by both parties should be adopted even though it results in the commonwealth sentences being entirely accumulated on the sentence for the state offence.
I would make the following orders:
Leave to appeal granted.
Allow the appeal for the limited purpose of adjusting the commencement date of the sentence imposed on sequence 1 but otherwise dismiss the appeal.
Quash the sentence imposed on sequence 1 and in lieu thereof, the applicant is sentenced to imprisonment for 14 months commencing on 26 July 2023 and expiring on 25 September 2024.
Confirm the single non-parole period of 5 years for sequences 1 and 11 commencing on 26 July 2023 and expiring on 25 July 2028.
CHEN J: I agree with the orders of Hamill J and with his Honour’s reasons, save as follows.
The nature of the test to be applied in determining whether an error of fact has occurred in the sentencing process was not raised as an issue on appeal. Given those circumstances, and as no arguments were made on that topic, I prefer to express no view on any question about the correct test to be applied.
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Al-Hassan
R [2025] NSWCCA 120
(2000) 202 CLR 321
(2010) 242 CLR 520
(1936) 55 CLR 499
(1999) 195 CLR 665
(2005) 228 CLR 357
(1998) 194 CLR 610
(2018) 264 CLR 1