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[2025] NSWCCA 207
Court of Criminal Appeal (NSW)
2025-12-03
Ward P at [1]Adamson JA at [2]Weinstein J at [3]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hadid v R; Singh v R [2025] NSWCCA 207
Hearing dates: 15 October 2025
Date of orders: 3 December 2025
Decision date: 03 December 2025
Before: Ward P at [1]
Adamson JA at [2]
Weinstein J at [3]
Decision: (1) In proceedings 2022/00193490:-
(a) Extend the time for filing of the notice of appeal to 23 June 2025.
(b) Grant leave to appeal.
(c) Dismiss the appeal.
(2) In proceedings 2022/00193498:-
(a) Extend the time for filing of the notice of appeal to 23 June 2025.
(b) Grant leave to appeal.
(c) Dismiss the appeal.
Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal out of time — offence of attempt to possess commercial quantity of border-controlled drug — manifest excess — parity with sentence of co-offenders, one sentenced separately — appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth) s 16A Criminal Appeal Act 1912 (NSW) ss 5, 10 Criminal Code Act 1995 (Cth) ss 11.1, 307.5 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5
Cases Cited: Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162
Chan, Lo and Nguyen v Regina [2010] NSWCCA 153
Dao v R [2011] NSWCCA 183
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Keen v R [2024] NSWCCA 157; (2024) 389 FLR 9
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lai v R [2021] NSWCCA 217
Lu v R; Huang v R [2021] NSWCCA 68
Mohr v R [2024] NSWCCA 197; (2024) 390 FLR 293
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Ozgen v R (Cth) [2025] NSWCCA 65
PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
Piao v R [2019] NSWCCA 154
R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309
R v Clinch (1994) 72 A Crim R 301
R v M.A.K., R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Pham, Tran & Dang; ex parte Director of Public Prosecutions (Cth) [2017] QCA 46
R v Thompson [2025] NSWCCA 133
R v Zeng [2008] NSWCCA 183
Saab v R [2025] NSWCCA 58; (2025) 394 FLR 410
Shakhanov v R [2019] VSCA 38
Su v R [2023] NSWCCA 207
Udanna v R (Cth) [2020] NSWCCA 304
Vujinovic v R [2024] NSWCCA 10
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Proceedings 2022/00193490
Omar Hadid (Applicant)
Rex (Respondent)
Proceedings 2022/00193498
Teghveer Singh (Applicant)
Rex (Respondent)
Representation: Counsel:
Proceedings 2022/00193490
K H Averre (Applicant)
A McGrath (Respondent)
Proceedings 2022/00193498
H Thomas-Dubler (Applicant)
A McGrath (Respondent)
Solicitors:
Proceedings 2022/00193490
Lyons Law Group (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
Proceedings 2022/00193498
Lyons Law Group (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2022/00193490
2022/00193498
[This headnote is not to be read as part of the judgment]
Mr Hadid and Mr Singh (together, the applicants) pleaded guilty in the District Court to one offence of attempting to possess a commercial quantity of a border-controlled drug contrary to ss 11.1 and 307(5) of the Criminal Code Act 1995 (Cth).
The offence related to the applicants’ involvement in the attempted importation of 179.12 kilograms of pure methamphetamine and 972 grams of pure cocaine. The applicants were involved in the criminal enterprise for approximately 24 hours. Their role included using tools to dismantle the machine in which the drugs were hidden. Mr Singh had the additional role of purchasing tools from Bunnings and organising the use of the garage in which the machine was to be dismantled.
The applicants were sentenced together by Hanley SC DCJ. Mr Singh was sentenced to a term of imprisonment of 9 years 6 months with a non-parole period of 5 years 8 months after a 25% discount for his plea of guilty. Mr Hadid was sentenced to a term of imprisonment of 9 years with a non-parole period of 5 years 3 months after a 25% discount for his plea of guilty.
The applicants sought leave to appeal against the sentences imposed on them pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The applicants advanced the same two grounds of appeal. First, that the sentences imposed on them were manifestly excessive, and second, that each applicant had a justifiable sense of grievance arising from the sentence imposed upon the co-offender Mr El-Halbouni. Mr Singh advanced an additional ground of appeal that he had a justifiable sense of grievance arising from the sentence imposed on Mr Hadid.
The Court held (Weinstein J, Ward P and Adamson JA agreeing) granting leave to appeal and dismissing the appeal:
As to manifest excess
The applicants’ sentences were not manifestly excessive. The trial judge’s reasons indicate that he was alive to the specific features of the applicants' cases and that he determined their sentences in accordance with established sentencing principle. The sentences imposed were well within the legitimate range of sentences that were available to his Honour in the exercise of his discretion: at [103].
As to parity with the sentence imposed on Mr El-Halbouni
The differentiation between the applicants’ and Mr El-Halbouni’s sentences was reasonably justified in light of their objective and subjective cases. The applicants have failed to establish a justifiable sense of grievance in relation to the sentence imposed on Mr El-Halbouni: at [134].
As to parity between the sentences imposed on Mr Singh and Mr Hadid
The criminality of the applicants’ conduct was not the same. The trial judge’s finding that Mr Singh played a slightly more prominent role in the participation and preparation of the offence was open to him on the evidence and is reflected in the variation of the penalties imposed. Mr Singh has failed to establish a justifiable sense of grievance in relation to the sentence imposed on Mr Hadid: at [137].
WARD P: I agree with Weinstein J.
ADAMSON JA: I agree with Weinstein J.
WEINSTEIN J: On 9 October 2023, the applicants Teghveer Singh and Omar Hadid were sentenced by Hanley SC DCJ (“the sentencing judge”) following their pleas of guilty to one offence of attempt to possess a commercial quantity of a border-controlled drug contrary to ss 11.1 and 307.5(1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”).
Mr Singh was sentenced to a term of imprisonment of 9 years 6 months with a non-parole period of 5 years 8 months after a 25% discount for his plea of guilty. His undiscounted sentence was therefore 12 years 8 months. Mr Hadid was sentenced to a term of imprisonment of 9 years with a non-parole period of 5 years 3 months after a 25% discount for his plea of guilty. His undiscounted sentence was therefore 12 years.
Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) the applicants seek leave to appeal against the sentence imposed on them. Each applicant advances the same two grounds of appeal:-
The sentence imposed on the applicant is manifestly excessive in the circumstances of the case; and
The applicant has a justifiable sense of grievance arising from the sentence imposed upon the co-offender Ahmad El-Halbouni.
Mr Singh’s second ground of appeal includes a second aspect – that Mr Singh also has a justifiable sense of grievance arising from the sentence imposed upon Mr Hadid.
Mr El-Halbouni was sentenced by Herbert DCJ in the District Court at Parramatta on 18 December 2024. He was sentenced to a term of imprisonment of 13 years 3 months with a non-parole period of 8 years after a 5% discount for his plea of guilty. His undiscounted sentence was therefore 14 years.
The Notices to Appeal were filed outside the time limit prescribed by r 3.5(2)(a) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicants therefore require leave to file their Notices of Appeal out of time.
The Court has a discretion to extend time for the filing of a notice of appeal: s 10(1)(b) of the Criminal Appeal Act. The key consideration is whether it is in the interests of justice to grant an extension: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [32]. This consideration involves an assessment of the prospects of success of the appeal and any explanation for why the appeal was not brought in time: Ozgen v R (Cth) [2025] NSWCCA 65 at [10]; Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 (“Baladjam”) at [92]; Kentwell at [32]-[33].
Both applicants rely on an affidavit of their solicitor Hirjan Al Khaldi affirmed on 23 June 2025 which explains the delay in filing the Notices of Appeal. The affidavit states that it was not until 23 April 2025 that Mr Al Khaldi received the transcript of the sentence of the co-offender Mr El-Halbouni. The Crown conceded that the delay was not unreasonable but submitted that having regard to the appellants’ prospects of success on their appeals, this Court should refuse the appellants’ leave to appeal out of time.
Although I have ultimately concluded that the appeals should be dismissed, I do not consider that the applicants’ grounds were unarguable: see Baladjam at [95]. In my opinion the applicants have provided a reasonable explanation for the delay, and I observe that they are not to blame for the belated provision of material essential to ground two of their appeals. I would grant leave to both applicants to file their Notices of Appeal out of time.
Both applicants were sentenced on the same agreed statement of facts, tendered as part of the Crown bundles on sentence before Hanley SC DCJ. The following summary is taken from that statement and his Honour’s judgment.
On 9 June 2022, United States Customs located 220 clear plastic bags containing methamphetamine with a pure weight of 179.12 kilograms and one brick-shaped package containing cocaine with a pure weight of 972 grams concealed within the hollow base of a large piece of machinery. The consignment was bound for Prestons, NSW.
US officials seized the border-controlled drugs and sent the machinery to Australia for a controlled delivery. The consignee of the machinery was Top Import Pty Ltd, a company owned and operated by Mr El-Halbouni.
On 19 June 2022, the machinery arrived in Sydney, Australia. It was seized by NSW Police, who placed inert material where the border-controlled drugs had previously been located. Two days before, NSW Police had obtained a telephone warrant for Mr El-Halbouni’s mobile number which had been listed on the contact details for the consignment.
On 27 June 2022, Mr El-Halbouni rang a customs broker and arranged for the release of the machinery from customs. On 29 June 2022, Mr El-Halbouni spoke to the customs broker who confirmed that the machinery would be delivered to the address in Prestons the following morning. Mr El-Halbouni agreed to pay the outstanding invoice and transferred $8,000 into the custom broker’s account.
On 30 June 2022, the machinery was delivered to Top Import Pty Ltd’s address in Prestons. Mr El-Halbouni accepted the delivery and subsequently used a forklift to move the machine to an adjacent factory complex which was owned by his family.
On 1 July 2022, a group chat was created on Wickr which included the applicants Singh and Hadid and two persons using the handles “bobbyh098” and “haich79”. The following relevant exchanges occurred:-
“Haich79: Boys tomorrow
I need a mission done
Dior [being a reference to Mr Singh]
I need you to organise your friends garage please
Use are gonna open a machine
And take gear out of it
Use are gonna get paid 10k each for this
And 3k for you mates garage on this one
Singh: Alright my bro no dramas I will organise it
What time did u wanna do it my bro?
Hadid: Salams boys
Yes that’s easy
Singh: Salams gelatoz [being a reference to Mr Hadid]
Hadid: H give us a time when your ready and let us know if you want anything done in a certain way
Haich79: Easy cuzin
I’ll get use a time
Singh: Thanks Haich my bro
Haich79: 10am boys
Its heavy as fuck
Hadid: Yh so am i
Haich79: hahaha
Your gonna need a grinder
Do you have that stuff
Singh: Yeah I got my grinder bro
Just bought it yesterday actually ahahaa
Perfect timing
Haich79: Nice
Sounds good
…”
At approximately 10pm on 1 July 2022, Mr Singh arranged with an associate to disassemble the machinery at the associate’s garage in Parramatta. On 2 July 2022, Mr Singh purchased cutting blades for an angle grinder from Bunnings.
At approximately 2:15pm on 2 July 2022, Mr El-Halbouni used a forklift to transport the machinery down the driveway of the factory and into the back of a truck. The truck containing the machinery was then escorted by four cars to Mr Singh’s associate’s address in Parramatta.
When the truck arrived at the address, the applicants guided it in through the back of a unit complex to a garage. Between 3pm and 4:20pm, the applicants attempted to disassemble the machinery to access the drugs they believed were contained within it.
While the applicants were attempting to cut into the machine, Mr Hadid had a number of exchanges on a Wickr chat with users haich79 and bobbyh098. He updated them on the applicants’ progress and difficulties cutting into the machine. Bobbyh098 asked them “you can see the kgs? Pls make surr use don’t cut them”. Mr Hadid replied “haven’t went near them yet so theyre safe”.
At approximately 4:10pm, Mr Singh sent a message to the associate who lived at the unit complex requesting that he purchase some Allen keys from Bunnings to assist with the dismantling of the machinery.
At 4:20pm, investigators approached the truck and arrested the applicants who were still attempting to disassemble the machinery. Police conducted a search of Mr Hadid’s car which was parked nearby and located 240 resealable plastic bags, rolls of black plastic, drop sheets, gloves and a heavy-duty chain. Receipts indicated that the plastic bags had been purchased the previous day.
The sentencing judge noted that the applicants had been made aware that the machine contained a considerable amount of drugs and that they were to receive substantial remuneration for a relatively short period of work.
The sentencing judge found that the role of both applicants included meeting the truck, assisting to bring the truck into the driveway and using tools in an attempt to disassemble the machine. His Honour found that Mr Singh had the additional role of organising a friend to provide a garage in exchange for $3000, providing a grinder and a cordless drill and purchasing grinder blades from Bunnings.
His Honour accepted that the applicants agreed to use their own tools to retrieve the drugs and that they had agreed to move the drugs to their “stash” after they had retrieved them. However, he could not be satisfied beyond reasonable doubt that the applicants were to be involved in stashing the drugs in the packaging located in Mr Hadid’s car.
The sentencing judge noted that the communications on Wickr suggested that the applicants knew that their associates were taking serious measures to avoid police detection, which would have brought home to the offenders that they were dealing with serious criminal activity.
His Honour found that the offenders were not aware of the exact amounts involved but were aware it was a very large and very valuable quantity of illegal drugs. However, his Honour considered that the applicants were “low down” in the criminal hierarchy and that their knowledge of the criminal operation “appear[ed] to be relatively limited”.
The sentencing judge found that the objective seriousness of the applicants’ offending was “below the mid-range of objective seriousness but certainly not towards the lower end”.
The sentencing judge noted that Mr Singh was 21 years old at the time of the offending and observed that his youth entitled him to a “significant degree of leniency”. Despite four driving offences on the applicant’s record, his Honour proposed to deal with the applicant as if he was a person of prior good character.
The sentencing judge described Mr Singh as being raised in a pro-social and supportive family. He was provided with a good education.
His Honour noted a psychological report. It was the psychologist’s opinion that Mr Singh’s mental health was impaired at the time of the offending, which impacted his judgment and behavioural choices. His Honour considered however that Mr Singh’s impaired mental health had a “somewhat limited” effect on his moral culpability. His Honour was not satisfied that there were any underlying matters which would have substantially impacted Mr Singh’s moral culpability relative to the commission of the offence.
The sentencing judge noted that Mr Hadid was 22 years old at the time of the offending and took his youth into account, saying that he was “entitled to the same degree of leniency that is normally extended to young offenders to ensure they are directed away from a life of crime”.
He found the applicant to be a person of prior good character with no criminal history. Like Mr Singh, Mr Hadid came from a supportive family.
His Honour noted that Mr Hadid commenced using cannabis when he was 13 years of age and crystal methamphetamine when he was about 18 and 19 years of age. His Honour further noted that Mr Hadid had reported to a psychologist that he became involved in the offending because of a debt of $35,000 which had accrued due to his drug use.
His Honour noted that a psychologist had diagnosed Mr Hadid with, inter alia, persistent depressive disorder, adjustment disorder and polysubstance use disorder. His Honour stated that he would take the psychologist’s findings into account as part of Mr Hadid’s mental health history and personal makeup in the “general mix of subjective factors” but he did not consider that Mr Hadid’s mental health had any significant nexus to the commission of the offences. Rather, his Honour found that the offending was associated more with Mr Hadid’s immaturity and “the need to make money quickly”.
His Honour acknowledged that both applicants had pleaded guilty in the Local Court and allowed a reduction of 25% to reflect the utilitarian benefit of their pleas.
His Honour was satisfied that the applicants’ pleas of guilty and the statements that they had made to their respective psychologists and families indicated a degree of contrition, and he found that both applicants had come to appreciate the significance and seriousness of their offending.
“The Crown submits in relation to the two offenders Mr Singh had a more prominent role in comparison between the two, by reference to the fact he obtained access to the garage to be used in the disassembling of the drugs from the machine.
Mr Brady SC who appears on behalf of Mr Hadid says on his client’s behalf that there is a distinction between the two, but it is relatively minor. I accept that is an appropriate submission. I am satisfied on the facts that Mr Singh played a slightly more prominent role in the participation and preparation for the offence than did Mr Hadid and on that basis, I will make a slight variation in the penalty imposed to reflect that finding.”
The sentencing judge considered the Crown’s submission that L**ai v R [2021] NSWCCA 217 was a similar case to that of the applicants. However, his Honour ultimately concluded that the offenders in that case had greater knowledge of the criminal enterprise and had specifically come to Australia for the purpose of possessing the imported drugs.
His Honour also considered counsel for Mr Hadid’s submission that the sentence imposed in R v Zeng [2008] NSWCCA 183 should be used as a starting point before the 25% reduction in sentence was imposed. His Honour considered that the case provided “some assistance” but noted that the offender in that case had been involved in the criminal enterprise for a matter of hours while the applicants’ involvement was both more prolonged and deliberate.
The sentencing judge found that specific deterrence was not a factor relevant to the sentencing of either applicant. His Honour considered that both applicants “need no further dissuading from committing offences in the future”.
His Honour considered that “rehabilitation should be a primary consideration” in sentencing both applicants but accepted that their behaviour needed to be denounced. His Honour also noted that, had the drugs been distributed, the effect on the community would have been “adversely significant”.
The following facts are taken from her Honour’s judgment in which she says that she has relied upon a lengthy statement of agreed facts.
On 4 June 2022 (noting that the date referred to by Hanley SC DCJ was 9 June 2022), United States Customs located 220 clear plastic bags containing a white crystalline substance concealed within a machine. Later testing revealed that the bags contained methamphetamine with a pure weight of 170.74 kilograms and cocaine with a pure weight of 850 grams. (I observe also that the weight referred to by her Honour is slightly less than that referred to by Hanley SC DCJ.) US officials seized the border-controlled drugs and sent the machinery to Australia for a controlled delivery.
The consignment details included the address of the consignee, being Top Imports Pty Ltd in Prestons NSW and the description “Metrology Machinery”. The contact for the consignee was Mr El-Halbouni, with a phone number ending in 444. From 17 June 2022, the mobile service associated with the number ending 444 was subject to lawful interception by NSW Police. Mr El-Halbouni was in control of that mobile service at all relevant times.
On 19 June 2022, the machinery arrived in Sydney, Australia. It was seized by NSW Police, who placed inert material where the border-controlled drugs had previously been located.
On 25 June 2022, the offender received a series of WhatsApp messages from a person identified as “Lucas”, with a prefix for Mexico. The same day, the offender sent messages to the phone number of a Mr Eliwa, and met with Mr Eliwa on two occasions that day. After his first meeting with Mr Eliwa, Mr El-Halbouni sent a message to his partner saying “next week party for us nonstop baby”. That evening, the offender received a message from Mr Ahmed Eid, which included the Master Air Waybill for the consignment.
On 27 June 2022, Mr El-Halbouni called a customs broker and said “Brother, I have one shipment in the airport. Can you do the papers and everything for it please?”. He then sent a text message to the customs broker with a screenshot of the machine and the consignment note containing the shipping details for the machine.
Mr El-Halbouni and Mr Eid participated in a series of phone calls with the customs broker on 27 June 2022. During one of those phone calls, Mr El-Halbouni asked the broker if delivery was an option, and told him that he was keen to get the delivery done that day. The customs broker asked Mr El-Halbouni what the consignment was. Mr El-Halbouni told the broker that it was an “aluminium machine, for the forklift”. The customs broker said to Mr El-Halbouni and Mr Eid:
“If you work with customs, you make one wrong step, you’re in big trouble. You have to know exactly what it is. Do you have photos of when you bought it?”
The offender said that he did have a photo, and Mr Eid later sent a photograph of a metrology machine to the broker via email. At approximately 4pm that day, Mr El-Halbouni again called the customs broker to enquire how long it would take for customs to get back to him. After a meeting with two other associates in his home, Mr El-Halbouni rang his partner and said “Pray for me that God eases my affairs tomorrow.” On 28 June 2022, the same two associates again attended a meeting at Mr El-Halbouni’s home.
On 29 June 2022, Mr El-Halbouni spoke with a customs broker who enquired whether all outstanding payments had been made. The broker advised him that all outstanding invoices had not been paid. Mr El-Halbouni then contacted Mr Eliwa and instructed him to look at another mobile phone that was being used by Mr El-Halbouni.
At 3:36pm that day, the machine was onboard for delivery. Mr El-Halbouni called his partner and told her: “I am no, it’s coming. Ah, the thing.”
When the delivery arrived, Mr El-Halbouni met the driver, accepted delivery of the machine and removed the machine from the van using a forklift. Later, after providing delivery updates to his partner and telling her that he had cause to celebrate, Mr El-Halbouni used the forklift to move the machine to an adjoining factory complex in Prestons. He unloaded the machine towards the rear of the complex. Soon after, Mr El-Halbouni left the factory complex.
Mr El-Halbouni returned to the factory complex at about 7:28pm that evening. He lowered the forklift’s tines on top of the machine to secure it at the location, before leaving again. He again called his partner, who asked him if the day had gone well. He replied “Of course! For the love of God, see how beautiful it is.”
On 2 July 2022, Mr El-Halbouni asked his brother to provide him with a pallet jack and a forklift. He returned to the factory at about 2:15pm, after receiving instructions from an unknown male. Mr El-Halbouni used a forklift to load the machine into the back of a truck. He then took a video of the machine with his mobile phone.
The truck carrying the machine travelled to a unit complex in Parramatta, in convoy with a number of other vehicles. When the truck arrived at the unit complex, Mr Singh and Mr Hadid attempted to deconstruct the machine. Mr Singh and Mr Hadid were arrested in the unit complex soon afterwards.
A search warrant at Mr El-Halbouni’s home revealed an iPhone in which the number 444 had been used until 2 July 2022. Mr El-Halbouni was arrested on 7 July 2022 in a hotel room in Cabramatta. He had in his possession the SIM card for the 444 phone service.
Herbert DCJ found the involvement of the offender to be significant. He was the contact person nominated on the consignment and the sole director of the company named as the consignee. The premises used for the delivery of the consignment was a related family business. The contact number for the consignment was a number he was using. Mr El-Halbouni received the Waybill documents and he was personally involved in calls arranging for the release of the consignment from the control of customs.
When the consignment was delivered, the offender took possession of it using a false name at the premises of the related family business. He used a forklift to take the consignment from the delivery vehicle and moved the consignment to a second premises. The next day, the offender returned to the second premises and used the forklift to load the consignment onto a truck. Her Honour found that there was no basis to find that the offender would have had any role after these events or that he was to be involved in the dissemination of the drugs.
Her Honour found that the quantity of the methamphetamine involved was more than 170 kilograms, where a commercial quantity is 750 grams. This is more than 220 times the commercial quantity threshold and had a minimum value of $17,000,000. The cocaine was less than a commercial quantity but had a value of more than $127,000. Her Honour accepted that it could not be established that the offender knew the actual quantity of the border-controlled drug being imported, but she was satisfied that he knew that it was a large quantity and that it was of high value. He was expecting financial gain for his involvement.
Her Honour found that the offender performed an invaluable role assisting uncharged co-offenders in the attempt to possess the border-controlled drug. His involvement spanned 25 June 2022 to 2 July 2022. She found that the offender was in a position of trust within the criminal operation as he had control of the mobile phone used as the contact for the release of the consignment and that the consignment was under his sole control for a period of time. She observed that as the offender first took delivery of the consignment, he was exposed to a greater risk of detection and arrest than his uncharged co-offenders, which was consistent with him not being a principal. This was conceded by the Crown. Her Honour found the objective seriousness of the offending to be one of “significant criminality”.
Her Honour noted that the offender was 43 years of age, and aged 41 at the time of the offending. His criminal history was insignificant, and she accepted that he was otherwise a person of good character. Her Honour noted a report from Dr Gerald Chew, forensic psychiatrist, to whom the offender reported that he had lifelong depressive and trauma-related symptoms. He used cocaine and gambled in response to the death of his mother in 2016, and then after the breakdown of his marriage in 2018.
The offender described a childhood in Lebanon marred by war and exposure to traumatic events and poverty. He was 20 years of age when he migrated to Australia with the assistance of his brothers. The offender also set out this history in a letter to the Court, in which he apologised for his offending and promised to be a good father and return to work upon his release.
In Dr Chew’s opinion, the offender suffered from significant depression and had a substance use disorder and a gambling disorder, both in remission, but both extant at the time of the offending. In the offender’s letter to the Court, he spoke of his traumatic childhood, his addictions and the impact of custody on his mental health. His brothers and his partner provided character references. A Sentencing Assessment Report found the offender to be at a low-medium risk of reoffending.
Her Honour found that the offender was genuinely remorseful, that he had good prospects of rehabilitation and that he was unlikely to commit further offences.
Her Honour observed that it was a significant matter of aggravation that the offender was on conditional liberty at the time of the offending, having been placed on a Community Corrections Order on 9 May 2022.
However, her Honour found that there was a nexus between the offender’s exposure to childhood trauma, his experience of grief, his abuse of prohibited drugs and gambling and his psychological state, and she found that the offender’s moral culpability was reduced. She accepted that the offender had experienced hardship in custody as a result of the COVID-19 restrictions and his mental health condition. She also accepted that the offender’s loved ones would suffer hardship whilst he was in custody.
“There are two co-offenders who have already been sentenced, being Omar Hadid and Teghveer Singh. They entered early pleas and received discounts of 25%. They were both in their early twenties at the time of the offence and this was taken into consideration that they were young men. Both men had mental health issues at the time of the offences. Both of them have performed well in custody and have no custodial infractions. Relatively similar findings have been made as to their prospects of rehabilitation as for the present offender.
I find that these two men had much lesser roles than the offender. They were involved over a period of two days when they were hired. Singh had a slightly greater role as he was to arrange for premises to unpack the drugs, and to have the equipment to dismantle the consignment to access the border-controlled drugs. On the second day they both were engaged in dismantling the consignment to access the border-controlled drugs. They were effectively under surveillance and control of the uncharged co-offenders at the time, so they did not occupy a position of trust comparable to the offender. It was not accepted on sentence that they would have any ongoing role in the distribution of the border-controlled drug.
The finding by Judge Hanley SC as to their level of knowledge as to the nature
of the border-controlled drug is similar to that for the present offender.
Unlike the present offender, they were not on conditional liberty at the time of the offence.
The undiscounted starting point for Mr Hadid was 12 years, and for Mr Singh about 12 years three [eight] months. The ratio of the non-parole period was about 60% and a similar ratio should be afforded the offender.”
The applicants each advance a ground of appeal that their sentence was manifestly excessive. The applicants’ submissions on this ground are substantially similar. Indeed each relied on the submissions of the other. It is therefore appropriate to consider them together.
There was no dispute between the parties as to the principles relating to manifest excess. In written and oral submissions, each party cited Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) where R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) stated at [443]:-
“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles…:
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”
The applicants did not challenge any findings of the sentencing judge. Rather, the applicants relied on the following findings of the sentencing judge to support the proposition that their sentences were manifestly excessive:-
The applicants were “low down” in the criminal enterprise and were described as “workers” with little knowledge of the criminal operation;
The applicants only became involved in the enterprise on the evening prior to the offending, meaning that their involvement was limited to a period of less than 24 hours;
The applicants were youthful (being aged 21 and 22 years) at the time of the offending and were therefore entitled to leniency; and
The applicants had excellent prospects of rehabilitation and were unlikely to reoffend, so that specific deterrence played no role in the sentencing exercise.
The applicants contended that in light of these findings by the sentencing judge, their sentences were plainly unjust, so that it can be inferred by this Court that there must have been a misapplication of principle: Obeid at [443].
The applicants cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, where Gleeson CJ stated at [12]:-
“Both in argument, and in reasons for judgment, inadequacy or excessiveness is often demonstrated by a process of comparison. Such a process is a legitimate forensic tool for advocates and judges; and has been employed for many years.”
The Crown contended that the findings relied on by the applicants fail to recognise the sentencing judge’s findings relating to the objective seriousness of the offending. The Crown drew attention to the following findings by the sentencing judge:-
The pure quantity of border-controlled drugs that the applicants attempted to possess was 239.5 times the commercial quantity threshold for the combination of these border-controlled drugs;
The applicants each knew (as opposed to being reckless) that the substances they were dealing with were border controlled drugs and they were aware that it was a very large and very valuable quantity; and
His Honour found that general deterrence “must have some significant impact to ensure that others attracted to this type of offending will be dissuaded from doing so by the risk of severe punishment”.
The Crown contended that his Honour’s findings relating to objective seriousness and general deterrence meant that the sentences imposed were warranted, despite the findings in the applicants’ favour. He submitted that neither applicant had established that there had been any latent misapplication of principle.
The Crown also contended that the cases relied upon by the applicants do not establish that the sentences imposed in this case were so far out of the range of available sentences that there must have been error.
In oral submissions, the Crown relied on several cases which he submitted demonstrated that the sentences imposed by the sentencing judge were within the range of sentences imposed in like cases. The Crown thus contended that manifest excess could not be established either by a latent misapplication of principle or by sentences which were beyond the applicable range.
“As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that ‘the sentence imposed in these matters is so far outside the range of sentences available that there must have been error’.”
(footnotes omitted)
“To this oft-cited summary of principles may be added the following:-
(1) Sentencing is an “exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions” – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].
(2) Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61].
(3) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61].
(4) An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” – R v Elemes [2000] NSWCCA 235 at [22]-[23].
(5) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59].
(6) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68].
(7) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30].
(8) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39].
(9) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] 4 HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].
(10) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”
It is well established that appellate intervention will only be warranted if the sentence is such that it may be concluded that there must have been some misapplication of principle, or where the sentence imposed sits so far outside the range of available sentences that there must have been error: Obeid at [443].
For the reasons that follow, I do not consider that any misapplication of principle occurred in the applicants’ sentences. Neither do I consider that the sentences imposed are so far outside the range of available sentence that error must have been occasioned.
I accept the Crown’s submission that the sentencing judge’s findings of the applicants’ limited involvement in the criminal enterprise and their positive subjective cases must be balanced against the findings that his Honour made about the objective seriousness of the offending.
It is true that the applicants were found to be low down in the criminal hierarchy, and that their involvement in the criminal enterprise was limited to about 24 hours over two days. It is also true that his Honour made a number of positive findings about the applicants’ youth, their contrition and their prospects of rehabilitation.
However, his Honour also found that both applicants knew (as opposed to being reckless) that they were dealing with a very large and very valuable quantity of border-controlled drugs. The quantity that the applicants attempted to possess was 239.5 times the commercial threshold for those border-controlled drugs.
The remarks on sentence reveal that the sentencing judge had regard to the relevant factors in s 16A of the Crimes Act, as he was obliged to do, and that he synthesised those factors to arrive at sentences he deemed appropriate in all the circumstances.
His Honour’s findings in the applicants’ favour were necessarily and appropriately balanced with the objective seriousness of the offending and his finding that general deterrence must have a “significant impact”. Thus in my view, on the basis of his Honour’s findings, the applicants have failed to demonstrate that the sentence arrived at was unreasonable or plainly unjust.
The applicants also submit that error has been established because the sentences sit beyond the range of sentences that were available to the sentencing judge, and they rely on sentences imposed in cases concerning like offending.
The use of comparative sentences to establish manifest excess or inadequacy was recently discussed in R v Thompson [2025] NSWCCA 133 (“Thompson*”*). Bell CJ (with whom Huggett and Rigg JJ agreed) stated at [40]:-
“Although in Wong at [12], Gleeson CJ observed that "inadequacy or excessiveness is often demonstrated by a process of comparison", there are well established caveats to the use of comparative sentences to test the adequacy (or excessiveness) of any given sentence: see, for example, Merkel v R [2019] NSWCCA 212 at [80]; McFarland v R [2021] NSWCCA 79 at [57]-[58]; McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542 at [77]-[81]; Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [130]; Perkins at [60]-[64]. These include that:
consistency in sentencing is not demonstrated by, and does not require, numerical equivalence;
the consistency required is consistency in the application of relevant legal principles; and
the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion, or necessarily disclose the correct range.”
With these principles in mind, I have carefully considered the comparative cases provided by the applicants. In my opinion, the exercise of comparison does not demonstrate error in the applicants’ sentences. I summarise these cases briefly as follows:-
In R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309 the respondents were convicted of attempting to possess 149.3kg of pure cocaine. The sentencing judge was neither satisfied that the respondents held any significant role in the criminal syndicate nor that they were to be involved in the future distribution of the drugs. The respondents each had criminal records. They were found to have good prospects of rehabilitation. Each respondent had expressed remorse to the Court and those close to them. The impact of the respondents’ incarceration on their families was significant – two of the respondents had caring responsibilities for parents who would likely die while they were in prison. For the offence of attempting to possess a commercial quantity of border-controlled drugs, the respondents were sentenced to terms of imprisonment of 6 years, 7 years and 7 years (undiscounted sentences of 8 years, 9 years 4 months and 9 years 4 months). The Court dismissed the Crown’s appeal against sentence on the ground of manifest inadequacy.
In Su v R [2023] NSWCCA 207 the applicant was sentenced to a term of imprisonment of 9 years 10 months (undiscounted sentence of 10 years 11 months) for one count of attempting to possess 349.9kg of methamphetamine. The applicant’s role comprised two occasions of observed conduct. On the first occasion, the applicant met a co-offender and provided him with $20,000 in cash and a SIM card to communicate with a logistics company about the consignment containing the drugs. Approximately one week later, the applicant met a second co-offender and provided him with $600 to buy tools for the disassembly of the product. The sentencing judge considered that, apart from the applicant’s guilty plea, there was limited evidence of remorse. While the sentencing judge extended leniency to the applicant on the basis of his youth, his Honour noted that there was very little evidence before him that permitted definitive conclusions about the applicant’s circumstances or his prospects of rehabilitation. The Court dismissed the applicant’s ground of appeal of manifest excess.
In Lu v R; Huang v R [2021] NSWCCA 68 the applicants were each sentenced to a term of imprisonment of 10 years (undiscounted sentence of 13 years 4 months) for attempting to possess 33.057kg of methamphetamine. Both applicants had travelled to Australia from Taiwan with an intent to possess the drug when it arrived in Australia. When the consignment containing the drugs was delivered to a storage unit, the applicants went to the unit and spent three hours removing the substituted substance. The sentencing judge determined that their roles reflected a “considerable degree of planning and sophistication” although neither applicant performed a managerial role. Both applicants had shown genuine contrition and had good prospects of rehabilitation. Error was demonstrated, but on re-sentence the Court found that no lesser sentence was warranted and dismissed the appeal.
In Udanna v R (Cth) [2020] NSWCCA 304 the applicant was found guilty at trial of one count of aiding and abetting an offence of attempting to possess 114kg of pure methamphetamine. The applicant had been involved in numerous meetings with his co-offenders over an approximately 6 week period. He had also organised the lease of a property where the consignment was to be delivered, but was not present during the extraction of the substituted substance. The sentencing judge found that the applicant was entitled to “some mitigation” because of his good character and limited criminal history. The applicant was sentenced to a term of imprisonment of 10 years. The appeal on the ground of manifest excess was dismissed.
In Shakhanov v R [2019] VSCA 38 the applicant pleaded guilty to attempting to possess 107.87kg of pure methylamphetamine. The applicant’s role in the criminal enterprise involved observing a co-offender loading boxes into his car before driving to a location where both men unloaded the boxes into a shopping trolley. The applicant was found to be in possession of a Blackberry phone used to communicate with his co-offenders. The applicant had no criminal record, and he was found to have had a difficult upbringing. The applicant had shown genuine remorse and contrition and had good prospects of rehabilitation. The sentencing judge sentenced the applicant to a term of imprisonment of 9 years (undiscounted sentence of 12 years). The Court upheld the applicant’s appeal (on parity) and re-sentenced him to a term of imprisonment of 8 years (undiscounted sentence of 11 years).
In R v Pham*, Tran & Dang**; Ex* parte Director of Public Prosecutions (Cth) [2017] QCA 46 the respondents were convicted of attempting to possess 33.667kg of pure heroin. All three respondents had been apprehended attempting to access the drugs that they believed were hidden in two wooden altars. The respondents Pham and Tran had previously conveyed the altars to a shed for disassembly. Pham and Tran were convicted after trial, whilst Dang entered a plea the day before his trial. Pham had a previous conviction for trafficking heroin, while Tran had no criminal history and had made significant steps towards rehabilitation. The respondents Pham, Tran and Dang were sentenced to terms of imprisonment of 12 years, 10 years and 10 years respectively. The Crown’s appeal on the ground of manifest inadequacy was dismissed.
In Dao v R [2011] NSWCCA 183, the offender was sentenced to a term of imprisonment of 10 years (undiscounted sentence of 13 years 4 months) for attempting to possess 22.3 kilograms of pure methamphetamine. The applicant’s co-offender had driven what he believed to be the drugs to premises, where the applicant met him. The applicant and the co-offender attempted to unpack the consignment, before they were arrested by police. The applicant’s involvement was assessed as being at the lower end of the criminal organisation. He had two prior convictions for drug related offences, and his prospects of rehabilitation were referred to as guarded. The Court dismissed the applicant’s appeal on parity.
In Chan, Lo and Nguyen v Regina [2010] NSWCCA 153 the applicants Chan and Lo were sentenced for attempting to possess 10.01kg of pure methamphetamine. Nguyen was sentenced for aiding and abetting the importation. The border-controlled drugs had been imported from Canada in three suitcases. The applicants Chan and Lo arrived at the premises where the suitcases were delivered, and Chan received instructions about the suitcases from a point of contact in Canada. After approximately 20 minutes, Chan and Lo left with the suitcases in a taxi. They were arrested soon after and found to be in possession of an electric saw, grinder and disks. The sentencing judge found that the applicants Lo and Chan demonstrated genuine remorse and had reasonable prospects of rehabilitation. Neither applicant had any criminal convictions. Lo’s involvement in the enterprise was found to be limited to one day. Lo was sentenced to a term of imprisonment of 7 years 6 months (undiscounted sentence of 10 years), and Chan was sentenced to a term of imprisonment of 12 years 6 months (undiscounted sentence of approximately 17 years 10 months). The applicants’ complaints of manifest excess were dismissed.
The Crown relied on other cases which were said to be comparable, and which inevitably included cases in which higher or similar sentences were imposed for what was submitted to be similar offending to that of the applicants. I briefly summarise those as follows:-
In Ozgen v R (Cth) [2025] NSWCCA 65 the applicant was re-sentenced on appeal for his participation in a criminal enterprise which unlawfully imported 655kg of pure methamphetamine and 1.3 tonnes of pure ecstasy into Australia. After the drugs arrived in Australia, the applicant and five co-offenders accessed the premises of a logistics company where the drugs had been delivered. They then transferred the boxes containing what they believed were the drugs and took those boxes to an industrial unit. The applicant was arrested by police while unpacking the boxes in that unit. His role was characterised by the sentencing judge as “limited”, spanning a period of approximately 24-48 hours. The sentencing judge took into account the applicant’s youth (23 years at the time of the offending) and his Honour determined that the applicant demonstrated good prospects of rehabilitation. There was no finding of reduced moral culpability. After being convicted at trial, the applicant was sentenced to a term of imprisonment of 16 years. The Court of Criminal Appeal allowed the appeal, but found that no lesser sentence was warranted.
In Lai v R [2021] NSWCCA 217 the applicant was sentenced to a term of imprisonment of 12 years for attempting to possess 160.7 kg of pure methamphetamine. The drugs had been concealed inside a consignment bound for Sydney from Malaysia. The consignment was intercepted by police and the drugs were substituted for an inert substance. The drugs were then delivered to their intended address – a warehouse leased by a co-offender. The applicant had arrived in Australia from Taiwan approximately 15 days prior to the consignment being delivered to the warehouse. After the consignment was delivered, the applicant and a co-offender attended Bunnings to purchase a welder, two welding electrodes and cutting fluid solution. Two days later, the applicant again attended the warehouse with a co-offender, carrying three large suitcases. The applicant used tools to open the lathes contained in the consignment, while two co-offenders removed packages hidden within the lathes and placed them in the suitcases. The applicant and a co-offender then left the premises with the suitcases, and were arrested soon afterwards. The sentencing judge characterised the applicant’s role as “essential but more confined” than his co-offender’s. His Honour found that there was “nothing remarkable” about the applicant’s upbringing. His Honour accepted the applicant’s expressions of remorse and applied a 25% discount for his early guilty plea and imposed a term of imprisonment of 12 years (undiscounted sentence of 16 years). The Court dismissed the applicant’s parity appeal.
The exercise of considering the cases relied on by the applicants and the Crown, as Bell CJ said in Thompson at [49], “only confirm[s] a number of verities in sentencing jurisprudence, namely that there is no one correct sentence, that sentencing judges have a broad discretion and that meaningful comparison of sentences is difficult”. To that I would add that the significant variations of objective and subjective features (and their emphasis) also make any true comparison difficult.
Indeed, the cases relied upon do no more than provide examples of broadly similar offenders who received slightly lesser or slightly greater sentences than the applicants. They do not, in my view, establish the outer bounds of the permissible sentencing discretion for offending of this type. Far from establishing the limits of the range of available sentences for offending of this kind, the cases demonstrate that sentences vary so that the unique circumstances of an offence and an offender are considered, and account is made for individualised justice.
In my view, his Honour’s reasons indicate that he was alive to the specific features of the applicants’ cases and that he determined their sentences in accordance with established sentencing principle. The sentences imposed were well within the legitimate range of sentences that were available to his Honour in the exercise of his discretion.
Accordingly, ground 1 is not made out.
The applicants noted that Mr El-Halbouni was sentenced to a term of imprisonment of 13 years 3 months with a non-parole period of 8 years, after a 5% discount for a late plea of guilty.
The applicants compared Mr El-Halbouni’s sentence before the discount (14 years) with their own undiscounted sentences (12 years 8 months for Mr Singh and 12 years for Mr Hadid). Mr El-Halbouni’s sentence was thus 1 year 4 months longer than Mr Singh’s and 2 years longer than Mr Hadid’s.
The applicants contended that they have a justifiable sense of grievance with respect to the sentence imposed on Mr El-Halbouni. They relied on the following facts found by Herbert DCJ:-
Mr El-Halbouni was involved in the criminal enterprise from 25 June 2022 to 2 July 2022 (about 1 week), while the applicants’ involvement was limited to less than 24 hours (over 2 days);
Mr El-Halbouni was found to be “in a position of trust” in the criminal enterprise. He was responsible for liaising with and paying the customs broker to deliver the machine, and facilitated the delivery of the machine to his warehouse. The machine was under his sole control for a period of time. The applicants were not found to be in positions of trust;
Mr El-Halbouni was 41 years old at the time of the offending, approximately 20 years older than the applicants, who were entitled to leniency on account of their youth; and
Mr El-Halbouni was on conditional liberty at the time of the offending, having been sentenced to a two year Community Corrections Order approximately one month prior to the offending. In contrast, Mr Hadid had no criminal record and Mr Singh had an insignificant criminal history.
It was submitted by the applicants that despite the more substantial and serious offending by Mr El-Halbouni, there was a marked disparity between his sentence and their sentences.
The Crown contended that the difference between the applicants’ and Mr El-Halbouni’s cases was appropriately reflected in their respective undiscounted sentences of imprisonment. The Crown drew attention to several factors which mitigated Mr El-Halbouni’s sentence and reduced the disparity between the three sentences. These factors included, relevantly:-
Herbert DCJ found that Mr El-Halbouni was not a “principal” in the criminal enterprise. Her Honour was not satisfied that he knew the actual quantity of the border-controlled drugs, but rather, like the applicants, he was aware that it was a large quantity of high value;
Herbert DCJ found that Mr El-Halbouni’s moral culpability was diminished due to a nexus between his exposure to trauma during his childhood, his experience of grief and his abuse of prohibited drugs and gambling. Her Honour accepted that Mr El-Halbouni had lifelong depressive and trauma-related symptoms. There was no finding of reduced moral culpability in the applicants’ cases; and
Herbert DCJ found that Mr El-Halbouni’s offending was out of character, that he had a very short criminal record, that he was genuinely remorseful, that he had good prospects of rehabilitation and was unlikely to commit further offences and that he had suffered hardship in custody due to the COVID-19 pandemic and his mental health condition.
The Crown submitted that when these subjective matters are balanced with his greater role in the criminal enterprise, the applicants could not establish that there was a “marked” disparity between their sentences and Mr El-Halbouni’s that would justify appellate intervention in the circumstances.
Mr Singh observed that his undiscounted sentence was 8 months longer than that of Mr Hadid.
In written and oral submissions in these proceedings, counsel for Mr Singh accepted that Mr Singh’s role in the criminal enterprise included arranging the use of an associate’s garage, providing tools to dismantle the machinery and arranging for an associate to purchase Allen keys which were to be used in the disassembly, and that these factors were in addition to those found on the part of Mr Hadid. However, it was submitted that Mr Singh’s additional conduct did not warrant a longer sentence than Mr Hadid’s.
Mr Singh submitted that offenders in a criminal enterprise will inevitably perform different roles. The real issue, it was submitted, was whether his additional conduct evidenced a more serious level of criminality such that a different sentence was warranted.
It was further submitted that both Mr Singh and Mr Hadid were acting at the direction of those higher up in the criminal hierarchy. It was contended that both applicants occupied the same position in the criminal enterprise and thus the criminality of their conduct was the same, notwithstanding that they performed different acts in the course of the criminal enterprise.
With respect to Mr Singh organising the garage, it was submitted that this was at the specific direction by the user of the handle haitch79. It was not the case that Mr Singh offered to source the garage. It was also noted by Mr Singh that in the course of the applicants’ difficulties disassembling the machine, Mr Hadid had sent a message offering to go to Bunnings. It was submitted that Mr Singh’s request for his associate to obtain Allen keys was linked to Mr Hadid’s offer to go to Bunnings and was therefore not a relevant point of difference in the offending.
Mr Singh ultimately submitted that his criminality was indistinguishable from that of Mr Hadid. On that basis, Mr Singh submitted that he has a justifiable sense of grievance with respect to the sentence imposed on Mr Hadid.
The Crown drew attention to the sentencing judge’s finding that Mr Singh played “a slightly more prominent role in the participation and preparation for the offence than did Mr Hadid”. I observe that there is no appeal from that finding.
The Crown emphasised that as Mr Singh had engaged in additional conduct during the course of the criminal enterprise, his conduct warranted additional sanction.
The Crown submitted that the fact that Mr Singh provided the garage at the request of haitch79 did not mitigate his conduct. The fact that Mr Singh was acting under the direction of a criminal associate does not detract from the fact that he recruited another person into the criminal enterprise and provided his criminal associates with premises to carry out their operation. The Crown contended that Mr Hadid’s offer to purchase Allen keys from Bunnings also did not detract from Mr Singh’s conduct in requesting his associate to do so.
The Crown submitted that as the applicants’ roles in the operation were different, the criminality of their conduct was in fact distinguishable. It was submitted that Mr Singh had not demonstrated “marked disparity” between his and Mr Hadid’s sentences such that appellate intervention was warranted.
“The principles with respect to parity are well-established and need not be repeated at length. There must not be a marked disparity between the sentences imposed on co-offenders such as to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 – 610 per Gibbs CJ.
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28], French CJ, Crennan and Kiefel JJ said:-
“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.”
(Citations removed)
In DS v R [2014] NSWCCA 267 at [39], the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted in addressing a complaint of parity:-
“The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be "gross", "marked" or "glaring" (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]).”
In Jaafar v R [2022] NSWCCA 254, Yehia J (with whom Harrison and Fagan JJ agreed) said at [42] that:-
“Merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance. Ultimately, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed the first instance: Moran v R [2022] NSWCCA 217 at [29].”
I accept, as was submitted by the Crown, that the question for an appellate Court is whether the degree of disparity is unreasonable or irrational in some way so as to indicate that the sentencing discretion miscarried. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (with whom Payne JA and Garling J agreed) said at [97]:-
“In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see *Lowndes v The Queen (*1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?”
“In Hung v R [2023] NSWCCA 172 at [32] Leeming JA (Rothman and McNaughton JJ agreeing) stated the appropriate test to be applied in determining a justifiable sense of grievance and expressly rejected the necessity of finding a “gross, marked or glaring” discrepancy:
“The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge: C v R [2022] NSWCCA 285 at [33]; Z v R [2022] NSWCCA 286 at [31]-[32]; Labban v R [2022] NSWCCA 275 at [24]. It is not necessary to find a "gross, marked or glaring" discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, "marked disparity" or "marked and unjustified disparity": Fenech v R [2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89].”
“More recently, in the decision of Mohr v R [2024] NSWCCA 197, Bell CJ (with Davies and Wright JJ agreeing) emphasised that while the disparity in question must be “marked”, it need not be “gross” or “glaring” to attract appellate intervention: at [15], citing Miles v R [2017] NSWCCA 266 at [9]; Cameron v R [2017] NSWCCA 229 at [79]-[90]; Daw v R [2017] NSWCCA 327 at [19]; Fenech v R [2018] NSWCCA 160 at [30]; Borg v R [2019] NSWCCA 129 at [90]-[91]; Downes v R [2020] NSWCCA 167 at [40], [57]; Weiss v R [2020] NSWCCA 188 at [89]-[90] cf. Afu v R [2017] NSWCCA 246 at [15]; Tuivaga v R [2015] NSWCCA 145 at [56].
Bell CJ went on to say:
“[21] The parity principle does not and should not involve a mechanical or mere mathematical process of comparison: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49]. It is necessarily far more nuanced: see, for example, Adams v R [2018] NSWCCA 139 at [85], citing Tran v R [2017] VSCA 346 at [24]. Both logic and reality are at play: Lowe at 613; Green at [32]. More is involved than a simple comparison of head sentences: Postiglione at 302. A comparison of all relevant factors, including antecedents, may support a difference in terms of the sentences imposed, although it may not support the extent of the difference in the sentences under consideration.”
What is important, therefore, is an assessment of the similarities and dissimilarities, in determining the appropriate proportionate sentence in each case. Simply because there is a difference in the sentences imposed between co-offenders, does not mean that that difference is unjustified.”
This is a case in which offenders involved in the same criminal enterprise were sentenced by different judges. It is well recognised that in such cases the evidence, submissions and findings made in relation to each offender must be scrutinised in order to determine whether their sense of grievance is justified: PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [23]-[24], [48]; Piao v R [2019] NSWCCA 154 [3]-[6], [45]-[46].
The necessary comparison is between the offenders’ respective sentences before the relevant discounts were imposed. The undiscounted sentence for Mr El-Halbouni was 1 year 4 months longer than the undiscounted sentence for Mr Singh and 2 years longer than the undiscounted sentence for Mr Hadid.
For the following reasons, I do not consider that the differences in the applicants’ sentences are such that the intervention of this Court is warranted.
Turning first to the differences in the offenders’ roles in the criminal enterprise, it is clear that Mr El-Halbouni had a more “trusted” role in the criminal enterprise than the applicants and for a longer period. Herbert DCJ, an experienced trial judge, recognised the significance of the fact that it was Mr El-Halbouni who first received the consignment, and that the machine was in his sole control for a period of time. This increased the objective seriousness of his offending and certainly contributed to the differences between Mr El-Halbouni’s sentence and the applicants’ sentences. Her Honour was well aware of, and addressed parity.
However, it is also of some significance that Herbert DCJ found that Mr El-Halbouni was not a principal in the criminal enterprise, and that he exposed himself to a risk of detection and arrest greater than his uncharged co-offenders. As in the case of the applicants, Herbert DCJ found that it could not be established that Mr El-Halbouni knew the actual quantity of border-controlled drugs, although he was aware that it was a large quantity of high value. It was not established that he would be involved in dissemination of the drugs. Furthermore, the quantity of drugs for which Mr El-Halbouni was sentenced was less than the amount for which the applicants were sentenced. All of these factors affected Mr El-Halbouni’s undiscounted head sentence.
Turning next to the respective subjective cases, I observe that comparison is a notoriously difficult exercise. Whilst the applicants had the benefit of a finding of youth, Mr El-Halbouni had the benefit of findings of diminished moral culpability and hardship in custody. Hanley SC DCJ found that the applicants’ pleas of guilty and statements to their psychologists demonstrated a “degree of contrition”, while Herbert DCJ was satisfied that Mr El-Halbouni was “genuinely remorseful for his conduct”. While the difference in Mr El-Halbouni’s and the applicants’ undiscounted sentences was largely due to his more prominent role in the enterprise, her Honour’s subjective findings had a bearing on the ultimate sentence imposed and thus the difference between the undiscounted sentences of Mr El-Halbouni and the applicants. This was open to her Honour in the exercise of her sentencing discretion.
I observe also that the difference between the undiscounted sentences of the applicants and that of Mr El-Halbouni cannot be described as trivial. Mr El-Halbouni’s undiscounted sentence exceeded Mr Hadid’s by two years and Mr Singh’s by one year four months. It is well recognised that the severity of a sentence is not the product of a linear relationship. In R v Clinch (1994) 72 A Crim R 301, Malcolm CJ said at 306:
“… [T]he severity of a sentence increases exponentially as it increases in length… In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year.”
“…[A]n extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform.”
While the exponential relationship between the severity of a sentence and its length is usually discussed in the context of totality, it is clear that it is equally relevant to parity. It is partly for that reason that parity requires more than a “mere mathematical process of comparison”: see Mohr v R [2024] NSWCCA 197; (2024) 390 FLR 293 at [21].
In my opinion, the difference between the applicants’ and Mr El-Halbouni’s sentences was reasonably justified in light of their objective and subjective cases, so that in the circumstances the applicants have failed to establish a justifiable sense of grievance in relation to the sentence imposed on Mr El-Halbouni.
This ground of appeal is not made out.
As to Mr Singh’s additional ground of appeal that he has a justifiable sense of grievance in relation to the sentence imposed on Mr Hadid, it is of some significance that Mr Singh does not challenge any of the findings made by his Honour with respect to their respective roles.
Whilst Mr Singh and Mr Hadid were both found to be “low down” in the criminal hierarchy, the criminality of their conduct was not the same. His Honour was alive to the differences between the roles played by Mr Singh and Mr Hadid, although he accepted that they were similar in many respects. His finding that Mr Singh played a slightly more prominent role in the participation and preparation of the offence was open to him on the evidence and is appropriately reflected in the variation of the penalties imposed. In those circumstances, Mr Singh has failed to establish a justifiable sense of grievance in relation to the sentence imposed on Mr Hadid.
Mr Singh's additional ground of appeal is not made out.
I propose the following orders:-
In proceedings 2022/00193490:-
(a) Extend the time for filing of the notice of appeal to 23 June 2025. (b) Grant leave to appeal. (c) Dismiss the appeal.
(a) Extend the time for filing of the notice of appeal to 23 June 2025. (b) Grant leave to appeal. (c) Dismiss the appeal.
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(2018) 341 FLR 162
(2021) 104 NSWLR 518
(2010) 242 CLR 520
(2024) 389 FLR 9
(2014) 252 CLR 601
(2024) 390 FLR 293
(2017) 96 NSWLR 155
(2025) 394 FLR 410
(2001) 207 CLR 584
(2005) 228 CLR 357
(1936) 55 CLR 499
(2020) 103 NSWLR 806
(1984) 154 CLR 606
(2011) 244 CLR 462