El-Helou v R

THE DRUG IMPORTATION AND SUPPLY 6The drugs that were the subject of the appellant's offence formed part of a shipment of 3,698,131 tablets of pseudoephedrine which the Statement of Facts tendered in the sentence proceedings stated "is usually converted to Methylamphetamine (commonly known as 'Meth' or 'ice') via different reactions in illicit clandestine laboratories". The drugs were imported from Thailand in two shipping containers and comprised three consignments having a total gross weight of 839.4436 kilograms and 177.4434 kilograms pure weight. 7The first consignment, of about 582 kilograms gross weight and 117 kilograms pure weight, comprised 10 crates. The Statement of Facts stated that the consignment could have yielded between 66 and 108 kilograms of "Meth" with a possible street value of between $10,560,000 and $19,440,000. Prior to their delivery, the Australian Customs Service ascertained that the crates contained illegal drugs and the Australian Federal Police replaced them with inert material. 8About six months prior to the shipment's arrival, the co-offender instructed a customs broker to act on the importation. On about 25 June 2008 the broker notified the co-offender of the shipment's impending arrival and arranged for its clearance by Customs. In early July the co-offender sent a number of emails to the customs broker confirming payment for the delivery and the delivery address. After initial delivery of the first consignment to the premises of a transport company, the co-offender arranged for six of its crates to be delivered on 11 July 2008 to a garage at the appellant's residence. During that day, the co-offender and the appellant unloaded and unpacked the crates. 9Immediately before the police entered the garage and arrested them on the afternoon of 11 July 2008, the appellant and a person later identified as Craig Earnshaw had a conversation at about 2.35 pm that was recorded. The conversation included statements by the appellant as follows: "Yeah, fifteen million dollars worth here this morning". "He shit himself. I had five hundred kilo's it's all, it's all, it's all been changed". "It's all fake. All bullshit. Here taste that. Is that, is that, is that Sudafed?" "There was fifteen mill here this morning". "We've already been approved from Lebanon. I'm not ... (indistinct) ... today. Gaby's, Gaby's [the appellant's uncle], got one in the garage [the second consignment comprising four crates had been delivered to the appellant's uncle]. He's getting watched. His house is getting watched. They fucked it completely it's all been changed. Everything's been changed" "Listen, I stashed five kilos at my house, a hundred grand just for me by myself and then this ... (indistinct) ... "

The appellant's sentencing by Solomon DCJ on 10 July 2009 10The sentencing judge's remarks included the following: "As to the role played by the offender, I am satisfied on the evidence before me that he was a transporter of the drugs, that he was a warehouser of the drugs and that he was to be the deliverer of the drugs to persons within the organisation. I am not satisfied that the offender was involved in the planning of the importation or in the planning of the distribution. I am satisfied that the offender and his involvement with the drugs lasted two days. The offender has given evidence as to his involvement. He has given evidence that he believed the drugs with which he was to deal were steroids and that he was to be paid the sum of $2,000 to transport, warehouse and deliver the drugs to other persons. I reject that evidence. The drugs were of great value and I cannot accept the offender's evidence that he was merely to receive $2,000 for his involvement. Additionally, I do not accept the offender's evidence that he only shortly before conversations were recorded became aware that the drug in question was pseudoephedrine. The conversations as recorded indicate a deep knowledge by the offender of the drug's importation and the value of the drugs warehoused by him. On considering the drug, the quantity of the drug and the offender's role, I am satisfied that the objective criminality of the offender is above the midrange of seriousness for the offence". 11His Honour considered that the appellant was not frank with a forensic psychiatrist who interviewed him because the appellant told the psychiatrist that he believed the drugs were steroids. As the appellant had no drug or alcohol problems, his Honour concluded that he was involved in the offence purely for profit but his Honour did not have sufficient evidence before him to make a finding as to the appellant's likely reward. 12His Honour noted a number of favourable references tendered by the appellant, that the appellant had no criminal record of relevance and that he had pleaded guilty at the earliest opportunity. His Honour allowed a utilitarian discount of 25% for the early plea and made a finding of special circumstances based on the appellant's age (24 when arrested), the fact that this was to be his first custodial sentence and his good prospects for rehabilitation. As noted above, his Honour sentenced the appellant to a total term of imprisonment of 10 years and 6 months commencing on 11 July 2008, with a non-parole period of 6 years and 6 months.

The appellant's re-sentencing by the Court of Criminal Appeal on 21 May 2010 13The Court found that the sentencing judge had not had "any real regard to the standard non-parole period" (here, of 15 years) as required by R v Way and observed: "81 Whilst the mere quantity of the drug may not generally be the chief factor to be taken into account, it retains significance: Wong v The Queen [2001] HCA 64; 207 CLR 584. Here, the amount of the drug (whether calculated by its admixture - over 250 kgs or by its pure form - 50 kgs) called for a sentence that 'reflected that enormity': Woodgate v R [2009] NSWCCA 137 at [32]; Mirza v R [2007] NSWCCA 257. 82 It is to be recalled that in Wong, at [132] the Chief Justice said that the courts have consistently refused to treat couriers or others low in the hierarchy of organisation involved in drug importation with the leniency that is sometimes appropriate in the case of other offences. The same approach should apply to supply under s 25(2). It is also to be recognised that a clear earlier record has less significance in drug trafficking than other crimes ... ". 14Balancing the appellant's personal circumstances and his early plea of guilty against "the objective seriousness of the offence being above the mid-range and the statutory guideposts of a 15 year non-parole period for a mid-range offence and a maximum term of life imprisonment", this Court re-sentenced the appellant to a total term of imprisonment of 12 years commencing on 11 July 2008, with a non-parole period of 8 years.

The co-offender's sentencing by Hock DCJ on 16 December 2010 15Hock DCJ sentenced the co-offender for an offence of importing a commercial quantity of a border controlled precursor, namely, pseudoephedrine, contrary to s 307.11(1) of the Criminal Code (Cth) and an offence of dealing with the proceeds of crime, being money worth $100,000 or more (s 400.4(1) of the Criminal Code). 16In relation to the first offence, her Honour found, in summary, that between 15 January 2008 and 11 July 2008, the co-offender made arrangements for the importation of the first consignment to which I have referred above in [7], containing a pure weight of 117.70 kilograms of pseudoephedrine. The appellant's offence related to six of the ten crates of this consignment. The second offence for which Hock DCJ sentenced the co-offender related to a sum of approximately $230,000 found in the co-offender's home after his arrest. 17Her Honour allowed a 35% discount to reflect the co-offender's early plea of guilty and the assistance he provided to authorities. She then sentenced him to imprisonment for 11 years for the importation offence and 4 years and 6 months for the proceeds of crime offence, both dating from 11 July 2008. Her Honour set a single non-parole period of 6 years and 6 months.

The co-offender's sentencing by Solomon DCJ on 1 June 2012 18The co-offender was sentenced in respect of an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 of supplying 582 kilograms of pseudoephedrine, being the 10 crates of the first consignment to which I have referred in [7] above. The sentencing judge referred to two distinct acts of supply. The first was the supply on 10 July 2008 in four crates of 323 kilograms of the substance which the co-offender believed to be pseudoephedrine. The second was the supply to the appellant on 11 July 2008 of 259 kilograms of that substance in the remaining six crates of the shipment. 19His Honour concluded: "I find that on 11 July 2008 the offender assisted Gary Matthew El-Helou with the breaking open of the crates in order to access what he believed to be pseudoephedrine. I am satisfied that the offender played a crucial and necessary role in what can be described as a large-scale commercial supply. He was responsible within the operation for the warehousing and distribution of a very significant quantity of drugs, for which he was to receive a substantial payment. I find the offence to be above the mid-range of seriousness for the offence". 20His Honour found that the co-offender had no criminal record and was a person of good character, and allowed a 25% discount on sentence to reflect the co-offender's plea of guilty and his assistance to authorities. 21In considering the question of parity with the sentence imposed on the appellant by the Court of Criminal Appeal on 21 May 2010, his Honour observed that the Court's decision may have been different had it been made after the decision in Muldrock. In this context, his Honour also had regard to the fact that the co-offender was involved in two discrete acts of supply and found special circumstances justifying a variation of the ratio between the non-parole period and the head sentence. 22For these reasons, his Honour imposed a total sentence of 12 years and 9 months commencing on 11 July 2008, with a non-parole period of 8 years and 6 months. 23His Honour concluded that, because the offences were connected, the sentence to be imposed should be concurrent with those imposed by Hock DCJ on 16 December 2010 to the extent of those sentences. The additional sentence imposed by Solomon DCJ (not being concurrent with the lesser sentences imposed by Hock DCJ) was one year and nine months, with the additional non-parole period being two years.

GROUND 1: THE APPELLANT HAS A JUSTIFIABLE SENSE OF GRIEVANCE AS A RESULT OF THE SENTENCE IMPOSED ON THE CO-OFFENDER CONSTANTINE ANAGNOSTOPOULOS 24In Green v The Queen [2011] HCA 49; 244 CLR 462, French CJ, Crennan and Kiefel JJ referred as follows to the parity principle upon which the appellant relies: "28. ... Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. ... 32. A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive ... " (Citations omitted). 25Their Honours went on to say that whether or not a sentence can be reduced on the ground of disparity to a level which, had there been no disparity, would have been regarded as erroneously lenient, the court's discretion does not require it to consider reducing a sentence to a level which would be "an affront to the proper administration of justice" (at [33]; see also Rees v R [2012] NSWCCA 47 at [50] and [67]; Ngati v R [2013] NSWCCA 203 at [80]). 26As Mason J put it in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 613: "... [t]he justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander". 27Further, in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301, Dawson and Gaudron JJ observed that "[e]qual justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them". The Court may entertain a complaint based on the parity principle even though the co-offender was sentenced, as here, after the appellant (Jones v The Queen (1993) 67 ALJR 376 at 377). 28The total term of imprisonment to which the co-offender was sentenced for his supply offence exceeded that to which the appellant was sentenced by nine months, with the difference in the non-parole periods being six months. As the Crown submitted, these differences cannot be regarded as inconsequential. Nevertheless, they do not in my view reflect the following very significant differences between the appellant's and co-offender's offences and circumstances. 29First there is the feature, absent in the appellant's case, of the concurrence of the co-offender's supply offence sentence with that imposed upon him for his related importation offence. It is also concurrent with his sentence for the proceeds of crime offence. The co-offender's additional head sentence attributable to his conviction on the supply charge is 1 year and 9 months, as the remainder of that sentence is concurrent with that for the importation offence (and with the proceeds of crime offence). Likewise, his non-parole period was extended by only two years as a result of his supply offence. 30In comparing the sentences imposed upon the appellant and the co-offender regard must be had to the actual period that each is to serve by reason of his commission of the common offence (Postiglione at 301-2, 303 and 343). This does not mean that there should be a simple comparison between the appellant's head sentence of 12 years imprisonment and the additional period of 1 year and 9 months that the co-offender is required to serve by reason of the common offence. Such a "merely arithmetical comparison" would not be appropriate (Tran v The Queen [2006] NSWCCA 266 at [24] and see Ayik v R [2013] NSWCCA 119 at [33]). Nevertheless, the limited length of the additional sentence imposed upon the co-offender is a significant matter to consider in assessing whether the appellant would have a justifiable sense of grievance by reason of the sentences imposed upon him and the co-offender (see R v Freeman [2005] NSWCCA 460 at [20]-[23]; Bell v The Queen [2008] NSWCCA 206 at [37]-[40]). 31Another way of looking at the issue is that the co-offender's overall head sentence of 12 years and 9 months effectively reflected the co-offender's offence of importation as well as that of supply, whereas the applicant's head sentence of 12 years related only to his offence of supply. 32Secondly, the co-offender's supply offence involved two distinct acts of supply, both involving substantial quantities of drugs, whereas the appellant's involved only one. The co-offender's offence related to a gross weight of 582 kilograms of pseudoephedrine, whilst the appellant's related to a gross weight of 259 kilograms. 33The weight of drugs involved in an offence cannot generally be regarded as the chief factor to be taken into account in fixing a sentence for drug importation and supply (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [67]-[70]). However it may be of significance in particular cases and was so regarded by this Court when re-sentencing the appellant ([2010] NSWCCA 111 at [81] - see [13] above). This Court said in that context that it was necessary that the appellant's sentence "reflected that enormity", referring to the large quantity of drugs the subject of the appellant's offence. 34As the appellant submitted on this appeal, if the quantity of drugs involved in his offence was of such importance in the determination of his sentence, logically the much greater quantity involved in the co-offender's supply offence (more than double) should be reflected in the differences between their sentences. 35The third difference relates to the roles played by the appellant and the co-offender. I leave out of account for the present the additional evidence that the appellant relies upon under ground 2. I acknowledge and take into account that the matters to which I refer in relation to this difference overlap to some extent with matters to which I have referred in relation to the first difference. 36Solomon DCJ sentenced the appellant on the basis that the appellant had "deep knowledge ... of the drug's importation and the value of the drugs warehoused by him" (see [10] above). This Court did not interfere with that finding on appeal and it thus formed one of the bases upon which the Court re-sentenced the appellant. However, the finding did not involve any conclusion as to the source of the appellant's knowledge and the circumstances in which he acquired it. Thus there was no finding that the appellant obtained possession of the substance substituted for drugs in the context of a broader criminal enterprise in which he was also involved. In contrast, it is clear that the co-offender's possession was of that character because of his involvement in the importation of the drugs and the supply of another parcel of the substance substituted for them. 37Whilst the co-offender's criminality in relation to the supply offence could not be regarded as embracing the importation, for which a separate charge could be, and was, laid, it was permissible to have regard to it in considering the context in which his supply offence occurred. As Hall J observed in Tu v R [2011] NSWCCA 31; 205 A Crim R 566 at [74]: " ... the possession if obtained in the context of a criminal narcotic venture may be different from possession obtained in unplanned or unsophisticated circumstances. In this way, the overall context becomes pertinent to an assessment of the culpability of an accused for an offence of possession by seeing it in its context ... [so that] the circumstances relating to the process of importation may also be relevant to a charge of possession ...". 38Consistently with this, Adams J (with the concurrence of Hoeben CJ at CL and Hall J) concluded in Balloey v The Queen [2014] NSWCCA 165 at [31]: "In the present case, so far as the judge used the evidence as to the appellant's involvement in the overall transaction to identify the particular nature of the conduct constituting the offence of attempting to possess the drug to determine the degree of his moral culpability and conclude it was of a high order ... , his Honour committed no error".

Conclusion 39In my view, a reasonable bystander would consider that the appellant has a justifiable sense of grievance that the sentences imposed on him and the co-offender for their supply offences do not reflect the marked differences, to which I have referred, between their respective offences and circumstances particularly, as I have said, when the co-offender's sentence was made concurrent with that for his importation offence and the co-offender's supply offence sentence concerned two distinct acts of supply, whereas that of the appellant concerned only one. The fact that the difference between their supply offence sentences is only limited cannot rationally be explained by reference to the subjective cases of the appellant and the co-offender. No presently significant difference exists in that context. 40I do not consider that the co-offender's sentence was unduly lenient or that to reduce the appellant's sentence would be "an affront to the proper administration of justice" (see [25] above). In these circumstances, I do not see any reason why the Court should not intervene in relation to the appellant's sentence. As I have indicated, there are in fact good reasons why it should. 41Ground 1 accordingly succeeds and the appellant should be re-sentenced.

GROUND 2: A LESSER SENTENCE IS WARRANTED AT LAW BASED ON EVIDENCE OF THE APPELLANT'S ROLE THAT WAS NOT BEFORE THE SENTENCING JUDGE 42As noted earlier, before this Court the appellant tendered the transcript of a conversation between himself and the co-offender which was not before the sentencing judge. The Crown consented to its tender. Accordingly it is unnecessary to consider the appellant's submission that the ordinary rules concerning new or fresh evidence do not apply where a matter is referred to this Court under s 79 of the Crimes (Appeal and Review) Act, nor his submission that a miscarriage of justice would be occasioned if the further evidence were not considered. The absence of a need to do this is confirmed by the fact that the evidence is admissible in relation to the re-sentencing necessitated by the appellant's success on Ground 1. 43The conversation in question commenced at 10.52 am on 11 July 2008, that is, nearly four hours before the conversation referred to in [9] above. 44The appellant relied upon the following statements made by him in the course of the conversation with the co-offender: ● "In response to the question - What is this thing? - I don't know bro. I know nothing ... (indistinct) ... They just told me they would look after me. ● Do ya reckon - they'll look after me ya reckon? ● In response to the question - Oh it's all powder is it? - I don't know, yeah I, I, I'll tell ya I haven't stopped doin' it and I just was finished about five minutes before you came. ● ... Yeah, I, I don't know. I'm a dumb cunt, I, I, I know nothing. All I know is break up. That is it; and ● And, this could be worth millions and I'm here like a dumb cunt." 45The Crown relied upon the following further statements made by the appellant: ● "Hey, I'm taking the risk, all the risk ... (p 7.2) ● "Could get, could ... could get done for twenty years or something" (p 10.5). 46The appellant submitted that the evidence of this conversation indicates that it was not until after the conversation that he acquired what the sentencing judge described as "a deep knowledge ... of the drug's importation and the value of the drugs warehoused ... " (see [10] above). This was said to be significant because the level of the appellant's knowledge when he agreed to become involved in the venture (as distinct from that which he acquired in the course of it) impacted on the level of his criminality and his role in the offence. 47These statements of the appellant were made in circumstances in which he had no obvious reason to disguise the truth, and in my view they indicate that at the time of making them he had only limited relevant knowledge. In particular, he does not appear to have known at the time of this conversation what the shipment was worth (other than to speculate that it "could be worth millions"), was unaware of the form of the drugs (whether powder or pills or both) and did not know what he could expect by way of payment for his involvement (other than an expectation that he would be "looked after"). Certainly the conversation relied upon by the sentencing judge (see [9] above) suggested that he had greater knowledge by the 2.35 pm conversation but that is consistent with him having, as he said in evidence he did, acquired additional information in the four hour period between the two conversations. As the appellant submitted, acquisition of knowledge only at that time, rather than prior to his agreement to become involved, indicated a lower level of criminality on his part. 48The additional evidence points to a difference between the appellant's and co-offender's knowledge at the time they committed the supply offences as, through his involvement in the importation, the co-offender is likely to have been aware of the quantities of the drug involved, whilst such knowledge as the appellant had was only acquired in the midst of his involvement. 49The appellant's submissions in support of Ground 2 are accordingly well-founded and should be taken into account in his re-sentencing.

GROUND 3: THE SENTENCING OF THE APPELLANT MISCARRIED AS A RESULT OF THE MANNER IN WHICH THIS COURT HAD REGARD TO THE APPLICABLE STANDARD NON-PAROLE PERIOD 50As the appellant accepted, this ground does not arise for consideration if the first ground of appeal succeeds. As it has succeeded, I refrain from dealing with this further ground. Clearly the ground is arguable in light of the Court's professed, and understandable, reliance in its judgment of 21 May 2010 on the then current authority of R v Way. In the circumstances of this case, I see no benefit to the parties or to the administration of justice to add to the multiplicity of decisions scrutinising earlier decisions to determine whether an impermissible use was made of the applicable standard non-parole period.

RE-SENTENCING OF THE APPELLANT 51It is unnecessary to repeat the original sentencing judge's description on 10 July 2009 of the relevant subjective factors, nor this Court's description on 21 May 2010 of the considerable seriousness of the appellant's offence (see [12] and [13] above). The important event that has occurred since the appellant was re-sentenced by this Court is the sentencing of the co-offender. Regard is to be had to this as well as to the evidence of the further conversation to which the appellant was a party (see [44] to [45] above). 52Taking these matters into account and that the maximum sentence is life imprisonment and the standard non-parole period is 15 years, I conclude that the appellant's head sentence should be reduced by 2 years to imprisonment for 10 years commencing on 11 July 2008. Any lesser sentence would not in my view adequately reflect the gravity of the appellant's offence. The sentence reflects the same discount of 25% for the utilitarian value of the appellant's early plea as was previously afforded. Accepting and applying the previous finding of special circumstances, the non-parole period should represent two-thirds of the head sentence. As a result, it should be fixed at 6 years and 8 months. 53For these reasons, I propose the following orders: (1)Allow the appellant's appeal against sentence. (2)Set aside order 4 made by this Court on 21 May 2010 and in lieu thereof: (a)set aside the orders of the District Court made on 10 July 2009; and (b)sentence the appellant Mr Gary El-Helou to a term of 10 years imprisonment comprising a non-parole period of 6 years and 8 months commencing on 11 July 2008 and expiring on 10 March 2015, and a balance of term of 3 years and 4 months commencing on the expiration of the non-parole period and expiring on 10 July 2018. (c)Accordingly the appellant will become eligible for release on parole on 11 March 2015. 54HIDDEN J: I agree with Macfarlan JA. 55ADAMS J: I agree with Macfarlan JA.

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: 07 October 2014