(2013) 230 A Crim R 134
Gedeon v NSW Crime Commission (2008) 236 CLR 120
[2008] HCA 43
Gedeon v The Queen [2013] NSWCCA 257
237 A Crim R 326
Giang v R [2017] NSWCCA 25
Hanania v R [2012] NSWCCA 220
Hili v The Queen
Jones v The Queen (2010) 242 CLR 520
Source
Original judgment source is linked above.
Catchwords
(2013) 230 A Crim R 134
Gedeon v NSW Crime Commission (2008) 236 CLR 120[2008] HCA 43
Gedeon v The Queen [2013] NSWCCA 257237 A Crim R 326
Giang v R [2017] NSWCCA 25
Hanania v R [2012] NSWCCA 220
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
Kada v The Queen [2017] VSCA 339(2017) 270 A Crim R 197
Kane v R [2021] NSWCCA 250
Kentwell v The Queen (2014) 252 CLR 101[2014] HCA 37
Markarian v R (2006) 228 CLR 357[1995] HCA 66
Taha v R [2022] NSWCCA 46
Wong v The Queen (2001) 207 CLR 584
Judgment (11 paragraphs)
[1]
Judgment
BEECH-JONES CJ at CL: The background facts and the sentencing judge's reasons are described in the judgment of Cavanagh J. The agreed facts indicate that the applicant met the Undercover Operative ("UCO") in Thailand and they arranged for the importation of 200kg of MDMA into Australia. Following that meeting the applicant, who was principally based in Dubai, arranged or at least participated in the arrangements that led to the delivery of the drugs by a criminal syndicate of which he was a member to a prearranged location in Rotterdam in the Netherlands. At that point it was collected by Dutch authorities acting in conjunction with the Australian Federal Police. Rotterdam is one of busiest shipping ports in the world.
In assessing the objective seriousness of the applicant's offending the sentencing judge found as follows:
"Whilst the decision by the offender to become involved in the attempted importation was at the initiation of the UCO, the offender embraced the opportunity and played an active role. The offender played a substantial role in the attempted importation. In March 2017 it was the offender who suggested to the UCO they meet in Thailand. The offender told the UCO that he would source the drug; that '…we have doors from Rotterdam if your good to receive from there. Very good M'. He was able to oversee the sourcing and procuring of a substantial quantity of MDMA. The offender was able to negotiate terms with the UCO, including payment. The offender was involved in the enterprise over a lengthy period of time, some eight months. He played a close organising and supervisory role. The offender engaged in many steps in the attempted importation. When looked at as a whole, the enterprise evidences a level of complexity involving steps both in the Netherlands and in Australia. Whilst the number of persons involved cannot be determined with precision, it is clear the offender adopted an overall organisational and supervisory role over others. The attempt involved such a large quantity of drug of substantial value that it follows that the sourcing, procuring, financing, movement, collection and storage involved a high level of organisation. The offender occupied a very senior and prominent role in that organisation He played a central role from the initial planning stages through to the execution of the attempted importation. The offender had clear knowledge of the substantial amount of Border Controlled Drug involved and expected a significant financial return.
The offender was involved in the attempted importation which, if successful, had the potential to cause significant harm to the Australian community. Whilst the MDMA procured from the Netherlands was not ultimately disseminated into the Australian community, and would never have been, that is what the offender understood to be the outcome of a successful importation of the MDMA into Australia.
The offending is objectively serious and of a very high order. A strong element of deterrence must be reflected in the sentence to be imposed." (emphasis added)
The first ground of appeal is that the sentencing judge failed to "meaningfully apply" the "Taouk principles" in assessing the objective seriousness of the offence. The reference to the "Taouk principles" is to the statement in R v Taouk (1992) 65 A Crim R 387 at 404 that where "there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability".
Irrespective of what is meant by the phrase "meaningfully apply", the first ground of appeal is untenable. To engage the principle stated in Taouk, there still has to be something about the relevant "assistance, encouragement or inducement" proffered by the UCO which diminishes or is capable of diminishing the culpability of the offender. Nothing in the UCO's conduct in the context of this case was capable of having that effect. The agreed facts and the sentencing judge's assessment make it clear that the applicant was a significant figure in a sophisticated criminal syndicate. The only significance of the role of the UCO was that he provided the opportunity for this particular importation to take place at this particular time. The UCO simply accessed the sophisticated criminal network that the applicant played a supervisory role in. The capacity and willingness of that network and the applicant to deliver 200kg of MDMA to a rendezvous point in Rotterdam for import into Australia if an opening emerged existed irrespective of the UCO's conduct.
Ground 2 contends that the sentencing judge erred in failing to identify how it was that the role of the UCO was relevant to the application of sentencing principle including specific and general deterrence. The short answer to this ground is that, once it is appreciated that the role of the UCO was not capable of diminishing the applicant's culpability, then the UCO's role was irrelevant to any consideration of general and specific deterrence so far as the applicant was concerned. It followed inexorably from the sentencing judge's assessment set out above, that general and specific deterrence were as much as were engaged in the applicant's case as they would have been if he dealt with someone who genuinely had the means to import such a large quantity of illegal drugs into Australia.
In relation to third ground, the relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):
"As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; "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 [at [58]], '[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."
The sentencing judge's findings of objective seriousness and his subjective case are set out in the judgement of Cavanagh J. The maximum penalty for the offence was life imprisonment. The starting point for his Honour's sentence prior to the allowance of any discount for his plea of guilty was 28 years imprisonment. While I accept that the sentence imposed was stern, I do not accept that it was manifestly excessive.
I would grant leave to appeal but dismiss the appeal.
HAMILL J: I have read the draft judgments circulated by the Chief Judge at Common Law and Cavanagh J. I agree with the orders proposed by Cavanagh J. As their Honours are divided as to the correct disposition of the appeal, I will explain the basis upon which I would intervene and reduce the sentence imposed on the applicant. Except where it is necessary to expose my reasoning, I will not repeat the factual analysis undertaken by Cavanagh J and the references to the remarks of the sentencing Judge cited by his Honour and the Chief Judge.
At its heart, the application concerns the role of the undercover operative in facilitating the offence and the impact of that circumstance on the appropriate sentence. I am unable to accept that either of the specific grounds relied on by the applicant have been established. The late Judge Zahra SC was aware of the issue, which was ventilated at length in the sentencing proceedings, and correctly set out the relevant principles in his carefully crafted and comprehensive judgment. I am not satisfied that his Honour fell into patent legal error in his application of the relevant principles. However, when those principles are applied to the factual circumstances of the case, I am driven to the conclusion that the sentence was far too severe and is properly categorised as manifestly excessive, plainly unjust and unreasonable.
The sentencing principles that apply when police encourage or facilitate a criminal offence are well established and have been enunciated with clarity in the authorities. However, the application of those principles to the facts of individual cases appears to be somewhat haphazard. In some cases, appellate courts appear to proceed on the basis that the fact that an offender is willing and able to commit the offence, and either does so or attempts to do so, is sufficient to deny the principles of any real impact. [1] I do not understand that to be the import (or impact) of the principles established in cases going back some decades. Badgery-Parker J surveyed the authorities comprehensively in R v Taouk (1992) 65 A Crim R 387 and the Victorian Court of Appeal re-stated the principles with clarity in Kada v The Queen [2017] VSCA 339.
There are several cases where, despite the involvement of the police or undercover operatives, the appellate court has rejected the proposition that there should be any mitigatory impact or reduction in the sentence. For example:
In Bou-Antoun v R, Grove J said "there was not the slightest reason" to reduce the otherwise appropriate sentence in circumstances where the offender had already decided to assist his son to have a witness killed before the undercover operative approached him. [2]
In R v Mandica, King CJ rejected the proposition that the case should be treated as one where an innocent person was encouraged to a commit an offence they would not have committed because the facts showed the applicants went to a car park possessing a large quantity of cannabis and the police conduct, in playing the role of a purchaser, merely provided the evidence of the drug dealing. [3]
In Giang v R, Latham J considered a ground based on entrapment to be "wholly without merit" where it had not been raised at first instance and where the applicant was already dealing in drugs. The undercover officer did no more than engage in negotiations to purchase drugs from him. [4]
In Assi v R; Jomaa v R, Beech-Jones J (as the Chief Judge at Common Law then was) rejected an appeal ground based on the decision of R v Taouk because the sentencing Judge had "positively found that the offenders were not entrapped by the UCO into doing something they would not otherwise do" but did find that they "participat[ed] in a conspiracy to import a larger amount of tobacco [than] they might otherwise have by reason of the UCO's conduct." His Honour noted that the offenders "committed other offences without the involvement of the UCO" and that this "exclude[ed] the possibility of their being entrapped into a conspiracy to dishonestly cause a loss [by evading excise tax on tobacco imports]." His Honour also noted that the appellant under consideration did not raise a separate ground that the moral culpability was diminished. [5]
In Mihelic v R, the applicant was lured back into drug trafficking having made a brief attempt to stop dealing. The request for drugs by an undercover officer "was not accompanied by any threat, coercion or incentive, other than the profit that would flow from the transaction … the fact that it was an undercover operative, as distinct from some other purchaser of drugs" did not "reduce the culpability associated with the drug supply into which the applicant was drawn." [6]
On the other hand, the mitigatory impact of these considerations can be seen in cases such as R v Romeo (1987) 45 SASR 212, R v Campanella (2004) 90 SASR 1; [2004] SASC 99, and several others. For example,
In R v Romeo, there was "no improper conduct on the part of the arresting detectives", but White J held that in considering whether the sentence was "excessive, it cannot be denied that there are some of the faint hallmarks of entrapment and incitement in the exercise which led to the commission of the crime." Taking that into account, and the fact that the conduct of the prosecution led to an extremely lenient disposition of a co-offender's case, the applicant's 10-year sentence was reduced to 7 years. [7]
In R v Campanella, a majority of the South Australian Court of Appeal (Doyle CJ and Perry J) reduced the sentence of a drug supplier from seven years to five years because of the involvement of the police, through an intermediary, in committing an offence that would otherwise not have been committed. [8] The third member of the Court (Mullighan J) would have commenced with a lower starting point (6 years) reduced by 25% for the appellant's guilty plea and a further "18 months on account of the entrapment". [9] Perry J said the reduction in the sentence reflected the sentencing Judge's stated intention to pay "limited regard" to the role of the police, an intention that his Honour held was not reflected in the sentence. [10] Mullighan J held the sentencing Judge erred "in having only 'limited regard' to the entrapment of the appellant by police." [11] Doyle CJ said he agreed with both Perry and Mullighan JJ that "the reasons of the sentencing Judge suggests that inadequate allowance" was given to the issue. [12] The facts were that an intermediary, at the behest of police, contacted the appellant telling him "he had somebody who was interested in buying 1,000 ecstasy tablets and the offender would make some money if he was involved." [13] The appellant was reluctant at first but made some inquiries about obtaining the drugs because he was in "financial difficulty". [14] When he was contacted again, the appellant met with an undercover police officer and provided a lesser quantity by way of a sample. The appellant's offending occurred some weeks later and involved the supply of tablets with a resale value of about $50,000 if sold in nightclubs or discos. The appellant played no further role. [I note in passing that the mathematical reduction or discount employed by the Court in the Campanella case is unlikely to comply with more recent decisions of the High Court requiring such matters to inform the instinctive synthesis, rather than by a multi-stage process of increments and reductions from the otherwise appropriate sentence. [15] ]
In DPP (Cth) v Haidari, Harper JA upheld a sentencing Judge's decision that "[h]ad this been other than a sting operation, I would have sentenced you to a greater sentence than the mandatory minimum". [16] The respondent was involved in people smuggling and had committed three previous offences of that kind. However, the police operation was not part of an "evidence gathering exercise" as may occur when police "inveigle themselves into (for example) a drug-running ring"; rather, if not for the involvement of the police, "the particular, discrete, events which resulted in charge 4 would not have happened." [17] It was held:
"The issue, it seems to me, is whether the sentencing judge was wrong in holding that the involvement of the police in the commission of the crime was such as to diminish the culpability of the respondent. I do not think that his Honour was." [18]
In Parris v R (in which the appeal based on another ground was dismissed), this Court held the sentencing Judge "was entitled to regard the objective seriousness of the offences … as being diminished by the actions of the undercover police officer who brought them about" where the applicant was "lured into a different league of drug-dealing than that with which he had previously been involved". [19]
Returning to the general principles by which the decisions referred to in the last two paragraphs are decided, the leading cases in Australia appear to be Taouk and Kada. These cases concern the impact of the issue on sentence, rather than on criminal liability or the admissibility of the evidence. In earlier English cases it was made clear that the issue may be relevant to sentence. For example, in R v Sang [1980] AC 402, Lord Salmon said at 443 that a judge:
"… has no discretion to exclude the evidence which proves that the young man has committed the offence. [They] may, however, according to the circumstances of the case, impose a mild punishment or him or even give him an absolute or conditional discharge".
Not much is gained by a consideration of the authorities directed to the circumstances in which a prosecution might be stayed, or relevant evidence excluded on the basis that it was illegally obtained: see, for example, Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66, Gedeon v NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 and Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 326. Ridgeway established that, unlike the United States, there is no "defence" of "entrapment" in Australia. Gedeon v The Queen is a notorious case where the NSW Crime Commission acquired and distributed large quantities of cocaine into the community in order to ensnare various offenders into committing supply offences. Even in those circumstances, where there was no control over the ultimate destiny of the drugs, this Court determined that the discretion under s 138 of the Evidence Act 1995 (NSW) to admit illegally obtained evidence should be exercised in favour of its admissibility. Neither Ridgeway nor Gedeon was concerned with the impact of the use of undercover operatives on the question of sentence. The issue for decision in such cases is different and the factors informing the resolution of that issue are given different weight.
The question in cases like the applicant's is not whether he should be prosecuted or subject to conviction at all, but rather whether there should be some amelioration of his sentence because, for example, his culpability is less or he has been importuned to commit an offence - or more serious offence - than he might otherwise have committed. I agree with the approach adopted by Perry J in R v Campanella where his Honour said that a sentencing court's response may range from cases where the evidence is excluded altogether to those where the issue "may be of no consequence in determining the appropriate penalty." [20] His Honour went on:
"In some cases, it is said that the offending conduct would not have occurred were it not for the activities of an informer or undercover police officer.
But to put the matter in that way tends to obscure the fact that, when a relevant drug dealing takes place, that very fact proves that, given the right combination of circumstances, the defendant is prepared to offend." [21]
That must be correct. If it is not, the principles referred to in Taouk and Kada would never have any role to play. For the issue to be considered at all, it must be the case that the offender has committed, or attempted to commit, the subject offence.
Taouk is the leading authority in New South Wales and has been cited in this State and elsewhere for its statement of the relevant principles. Badgery-Parker J made the following observations as to the role of entrapment in sentencing (with my emphasis throughout):
"A helpful discussion of the relevance to sentence of the fact that a crime was committed as the result of the setting of a police trap is to be found in Mandica (1980) 24 SASR 394; 4 A Crim R 34. King CJ said (at 402; 40-41), after referring to Birtles: [22]
'This ground for leniency does not exist, however, where the effect of the police trap is not to encourage a person to commit an offence which he would not have otherwise committed, but merely to detect and obtain evidence against an offender who is only too ready to commit the offence.'" [23]
…
"In several of these cases, there are hints that impropriety on the part of the police is the factor which leads to mitigation of sentence; but in my view that is not the substance of what the courts were saying. As it seems to me, the real thrust of the decisions is that even where the conduct of the police was regarded by the court as within the bounds of acceptable police procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender. In my view, the point at which, if at all, the court will intervene to mark its disapproval of conduct by police which goes beyond that which the community regards as acceptable is the point where an application is made to exclude evidence obtained by improper means. Such considerations have, in my view, little to do with sentencing where the fundamental task of the court is always to evaluate the criminality involved. The sentencing process is concerned with the level of culpability of the offender who, whether as a result of police incitement, inducement or encouragement or otherwise embarks upon criminal conduct. See also Dugan [1984] 2 NSWLR 554 where this Court rejected the submission that in a case where conduct by police facilitated but did not incite the commission of a crime, the sentence should be reduced to mark the court's disapproval of the police conduct." [24]
…
"However, when it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability." [25]
…
"There remains to consider what counsel referred to as the elements of entrapment present in this case. It is clear that this is not a case where any conduct on the part of the police led the applicant to commit an offence which otherwise he would not have been disposed to commit. It may be accepted here that Hani Taouk was not just willing but anxious to bribe the judge, if that could be achieved; the fact remains that until the police officers made known to him a way in which, according to them, the judge might be bribed, and made themselves available as the means whereby the bribe offer and the bribe money might be conveyed to the judge, the accused had no way of carrying his wishes into effect. Had they acted otherwise, the crime may never have been committed. Certainly, it would not have been committed as and when it was. I find it impossible not to say that that is a circumstance relevant to the level of the criminality of the appellant. When the approach was first made to him, Kennedy could have firmly rejected it. Had he done so that would have been an end of the matter at least so far as the particular offence of which the accused was convicted. Whether he would have pursued his attempt in another direction can never be known. It is very likely that he would have tried. Be that as it may, I find it impossible to ignore, in assessing the level of his criminality, the fact that it was only because of the expressed willingness of the police officers to assist him that he was able to convert his wish to bribe the judge into the criminal offence of attempting to do so. I would myself give a great deal of weight to that factor." [26]
Badgery-Parker J (at 416-417) found it unnecessary to specify the sentence he would have imposed, but repeated he would have given "substantial weight to the possibility that the applicant would not have committed the crime but for the facilitation thereof by police officers." It was unnecessary because his Honour was satisfied that any sentence he would choose would not be any less than that selected by the sentencing Judge.
Cavanagh J has set out the principles as summarised by the Victorian Court of Appeal in Kada v The Queen at [88] of his judgment.
In the present case, the investigation appears, initially at least, to have been focused upon the tobacco smuggling business of the applicant's brothers. [27] There was no evidence of any existing plan to import large quantities of MDMA into Australia. There was no evidence as to who first raised the possibility of importing border control drugs, but it seems that it was either the undercover police officer or one of the applicant's brothers in the absence of the applicant. The undercover officer first contacted the applicant by Blackberry message on the 24th of November 2016. The contents of this communication are not known. The next communication between the undercover officer and the applicant was a Blackberry message sent by the police officer who referred to having a "reliable way of moving jeans" to Australia on the 3rd of January 2017. It was agreed that "jeans" was a coded reference to drugs. True it is that the applicant entered the criminal venture with alacrity and showed himself to have a capacity to acquire a massive quantity of the drug once given the task. His criminal connections were obviously extensive. However, it was not established that he or his existing confederates initiated the scheme to import the drugs and the entire exercise was destined to result in the seizure of the drugs in the Netherlands. It was the police who provided the means to import the drugs into Australia and, while the applicant travelled around the world to meet with the undercover operative on several occasions, he was not responsible for moving the drugs out of the Netherlands and to Australia. There was nothing to suggest he could do so without the assistance of the fictitious criminal organisation fronted by the agent provocateur.
The sentencing Judge found that there was "no evidence this offender has/had been involved in border controlled drugs (importation or supply) other than the present offence" and that his "involvement in the attempted importation of Border Controlled drug[s] was isolated". [28] That finding was important in the context of the present appeal and distinguishes it from cases like Mandica, Giang, Bou-Antoun, Assi & Jomaa and Mihelic v R where the Court held that the crime for which the offender was to be sentenced was already in contemplation, or in the process of being committed, or where the offender was an established drug dealer. [29]
The sentencing Judge correctly and inevitably found that the applicant was operating at a very senior level in the enterprise. However, the "particular, discrete, events" [30] which formed the offence for which he was sentenced were not in contemplation at the time of his brother's interactions with the undercover operative, all of which seemed to pre-date the first known contact with the applicant. It was not a case of the investigators merely seizing drugs already destined for import into Australia and allowing the enterprise to continue until evidence was gathered proving the applicant's criminal involvement. This was not an evidence-gathering exercise. Rather, it was a calculated - albeit lawful, authorised and entirely appropriate - plan to have the applicant and his associates enter into a scheme to import massive quantities of drugs for the purpose of exposing their criminal operation, arresting them, and having them punished. The circumstances plainly fit within the kind of circumstances referred to by the Courts in Taouk, Kada and Campanella and the other cases referred to at [13] above.
Considering the sentencing Judge's careful reasons, and enunciation of the relevant principles and authorities, I am unable to find that his Honour fell into specific legal error of the kind the applicant attempted to articulate under Grounds 1 and 2.
Ground 1, asserting that Judge Zahra "failed to meaningfully apply the Taouk principles in the assessment of the objective seriousness of the offence", is quite opaque in its formulation and appears to be a suggestion that insufficient weight was given to the role played by the law enforcement authorities in an assessment of objective gravity. The factual findings, and inferences to be drawn from the agreed facts, were matters for the sentencing Judge. Further, as acknowledged by counsel for the applicant, this Court has repeatedly said that the assessment of objective criminality is a matter largely to be left to the sentencing Judge. It is only if the finding made by the sentencing Judge is not "open on the evidence" that the Court is inclined to interfere with such a finding. The weight to be given to particular aspects of the evidence in reaching that finding will rarely be a matter that will form the foundation of a successful ground asserting patent legal error. It is to be noted that Judge Zahra declined to find that the applicant was a principal in the enterprise and did not find the objective criminality to be at the top of the range. The findings as to objective seriousness, set out by Beech-Jones CJ at CL at [2] above and otherwise scattered through the sentencing judgment, were open on the evidence assessed as a whole.
Ground 2 asserts that the Judge erred in failing to identify how the role of the undercover operative was relevant to the assessment of principles of general and specific deterrence. The short answer to this ground is that it was not relevant to those matters. No authority was cited in support of an argument that it was, and there is no reason in logic or legal principle why it should be. The sentence to be imposed for such serious drug offences must always strongly reflect considerations of deterrence.
While no specific error has been identified, I agree with Cavanagh J that the role of the police in facilitating the fictitious importation is such that - notwithstanding the massive quantity of MDMA involved and the high level at which the applicant was involved in a substantial criminal enterprise which aimed to import drugs into Australia by sophisticated and nefarious means - a starting point of 28 years, before the application of a 25% discount for the plea of guilty, was manifestly excessive. The applicant's culpability was diminished to some limited degree by the role of the police which I have explained in the course of this judgment. I have considered the evidence relied on in re-sentence and agree with Cavanagh J's assessment of relevant factors and with his Honour's assessment that a starting point of 24 years, a discounted head sentence of 18 years and a non-parole period of 12 years (an outcome which reflects the proportion of 66% settled on by Judge Zahra) represents an appropriate exercise of the sentencing discretion.
Accordingly, I agree with the orders proposed by Cavanagh J.
CAVANAGH J: The applicant seeks leave to appeal against the sentence of imprisonment imposed upon him by the late Judge Zahra SC (the sentencing judge) on 22 November 2019 in the District Court following his plea of guilty to one offence of attempting to import a commercial quantity of a border-controlled drug, namely, 200 kilograms (154 kilograms pure weight) of 3,4-methylenedioxymethamphetamine or "MDMA", contrary to ss 307.1(1) and 11.1(1) of the Criminal Code 1995 (Cth).
The arrest of the applicant followed an extensive police investigation, including the use of an undercover operative (the UCO), who had contacted the applicant and suggested to him that he had a method of importation which would avoid the authorities.
The applicant was sentenced to a period of imprisonment of 21 years commencing on 8 August 2017 and expiring on 7 August 2038 with a non-parole period of 14 years, thus making him eligible for parole on 7 August 2031. The sentence was imposed after a discount of 25% on account of the utility of the early guilty plea. The sentence thus reflects a starting point of 28 years imprisonment but for the discount.
The applicant relies on three grounds of appeal, being:
1. The sentencing judge failed to meaningfully apply the Taouk principles in an assessment of the objective seriousness of the offence;
2. The sentencing judge erred in failing to identify how it was the role of the UCO was relevant to the application of sentencing principle including specific and general deterrence; and
3. The sentence is manifestly excessive.
The first two grounds of appeal relate to the significance of the involvement of the UCO as well as the sentencing judge's assessment of the role played by the applicant. The third ground (manifest excess) may be a reflection of the sentencing judge's assessment of these factors on the exercise of the sentencing discretion.
The applicant requires an extension of time.
[2]
Background facts
There were agreed facts on sentence which the sentencing judge adopted.
In November 2016, a Police operation was established to investigate the alleged criminal activities of individuals involved in the large-scale importation and distribution of drugs and tobacco into Australia. The applicant and his brothers, Ali Jomaa and Abbas Jomaa, were identified as persons of interest.
As part of the investigation, Police used physical and electronic surveillance and the deployment of a UCO as well as interception of telecommunication services and tracking and data surveillance services.
The UCO initially made contact with the applicant's brother, Ali Jomaa. In November 2016, Ali Jomaa provided the UCO with the applicant's Blackberry handle. Thereafter, the UCO made preliminary contact with the applicant.
On 29 November 2016, the applicant's brothers met the UCO in Brighton-Le-Sands and suggested setting up a meeting with the applicant and the UCO in either Lebanon or Dubai.
On 7 December 2016, the UCO met with Abbas Jomaa and others at a hotel in Thailand where they discussed the plan to meet the applicant in Dubai. Thereafter, the applicant and the UCO exchanged coded Blackberry messages (describing drugs as "jeans") including messages from the UCO suggesting that he had a very reliable way of moving "jeans" into Australia which involved getting past the Port Authorities, with the drugs then being collected by him in Australia and handed over. The discussions included suggestions of possible source destinations and the packing of the "jeans".
On 18 March 2017, the applicant contacted the UCO and suggested they meet in Thailand. There was a further exchange of Blackberry messages during which they agreed to meet in Thailand and the applicant enquired as to whether there was "any work with jeans your way". The UCO responded suggesting that any drugs which the applicant might be able to source could be packed on top of other drugs which the UCO would be moving in any event.
The UCO raised the cost of moving drugs on behalf of the applicant with another load but ended up suggesting that he would be happy to do a run just for the applicant.
The applicant arrived in Thailand on 25 March 2017. On 30 March 2017, he sent a further message using a Blackberry device to the UCO stating:
"…we have doors from Rotterdam if [you're] good to receive from there. Very good M."
The UCO replied:
"That's v good news brother. We can work that area. I have a company that can be used with good history for it. We can talk more in person. This is good."
The applicant and another person then met the UCO in a hotel in Thailand, during which time:
1. The applicant told the UCO he could arrange 100 kilograms of MDMA from Europe to Australia using the method proposed by the UCO;
2. The applicant agreed that the UCO would be paid $400,000 plus a percentage of profits to use the UCO's proposed concealment and importation method; and
3. The UCO would be paid an additional $40,000 for broker's fees as well as the purchase costs of the shipping containers.
Following the meeting, the applicant and the UCO left Thailand. The applicant then stayed around Dubai before returning to Sydney. He remained in contact with the UCO.
During April 2017, there were further Blackberry messages, including relating to the process, mechanics and size of the import.
On 1 May 2017, the UCO met with Abbas Jomaa in Brighton-Le-Sands. Abbas Jomaa gave the UCO a bag containing $52,000.
Then on 12 May 2017, the UCO and the applicant again exchanged messages relating to the packaging of the drugs.
On 17 May 2017, the applicant sent the UCO a message confirming that from his end all was good and the drugs would be in 10 kilogram heat-sealed bags.
On 31 May 2017, the UCO told the applicant he had arrived in the Netherlands. There were further regular communications up to the delivery on 1 June 2017.
On 1 June 2017, authorities delivered an empty van to their pre-arranged location in Rotterdam, Netherlands. Police saw an unidentified person enter the van and drive it to a nearby residential area where it was parked next to another vehicle. Twenty cardboard boxes containing 200 kilograms of MDMA in heat-sealed bags were loaded from the parked vehicle into the van. The van was returned to the agreed location and collected by authorities.
At 8.30pm, the UCO contacted the applicant asking how much was meant to be there. The applicant said there should be 200 kilograms. He explained that there was less than the 250 kilograms initially agreed to. The UCO sent pictures of the MDMA to the applicant.
The Australian Federal Police and Dutch National Police then seized the 20 cardboard boxes containing a total weight of 200 kilograms of MDMA. The purity was assessed as between 77% and 78%. The pure weight of the MDMA seized was approximately 154 kilograms.
It was an agreed fact that the bulk or wholesale value of 200 kilograms of MDMA in 2017 was between $7.4 and $8.8 million.
The Australian Federal Police and Dutch National Police substituted the MDMA with an inert substance. The assignment was concealed in a shipping container and sent to Australia.
On 19 July 2017, the applicant's brothers, Ali Jomaa and Abbas Jomaa, met the UCO at a restaurant in Alexandria in Sydney. That conversation was recorded. They told the UCO that the applicant had instructed them to deliver $200,000 to the UCO.
There were further meetings between the UCO and Ali Jomaa regarding payment. There followed further messaging between the UCO and the applicant during which they discussed the details of collection of the MDMA.
The Police delivered a rental van containing the substituted MDMA to an address in Mascot, Sydney. A co-offender, Keith Finlay, approached the van. There followed further messaging between the applicant and the UCO regarding the keys. Mr Finlay ultimately took the van and unloaded the boxes containing the substituted MDMA into a residential house at Rosebery. Mr Finlay was subsequently arrested whilst still in the driver's seat of the rental van.
On 8 August 2017, Ali Jomaa, Abbas Jomaa and another co-accused, David Reda, were arrested and charged with offences relating to the attempted importation of MDMA. On 8 August 2017, the applicant was arrested in Dubai. He was extradited to Australia on 17 December 2017. He did not contest his extradition.
[3]
Remarks on sentence
In assessing the objective seriousness of the offending the sentencing judge had regard to a number of factors. His Honour noted that the weight of the narcotic drug imported was not the most important factor to be considered when fixing a sentence but the size of the importation is a relevant factor. [31]
His Honour paid particular attention to role of the applicant and the involvement of the UCO, considering the content of the Blackberry messaging between the applicant and the UCO in some detail.
His Honour observed that it was necessary to determine the role of the offender in the criminal enterprise in order to further determine the degree of culpability.
The Crown had submitted that the applicant's role in the enterprise was that of a principal, albeit the Crown acknowledged that the agreed facts did not explicitly identify the genesis of the operation.
The applicant had accepted that he became actively involved in arranging crucial steps and the sourcing of the drug and payment of money through his brothers but submitted that the importation was significantly encouraged by the UCO.
The Crown submitted that the opportunity having presented itself, the applicant embraced the opportunity and then took an active role in sourcing the drugs. The Crown submitted that the applicant was a principal in the importation scheme and played an active and very senior role throughout. The applicant disagreed, suggesting that there was insufficient evidence to attribute a particular label to the offender's role.
The sentencing judge considered there was a danger in using the label "principal" in the particular circumstances. His Honour identified the applicant's role as being "a very senior role". His Honour accepted that, having regard to the conduct of the applicant throughout the eight months of the investigation, he at all times adopted the role of overall organiser or overseer of the operation. He operated at a very senior level within the enterprise.
His Honour accepted that the role of the applicant was substantial. He also accepted that there was no evidence that the applicant intended to play a further role in the distribution of the MDMA after it had been stored at the safehouse.
The applicant had submitted (and submits in this Court) that the encouragement of the UCO was such that the applicant would not have become involved in the offending but for the involvement of the UCO.
His Honour accepted that the UCO offered encouragement to the offender particularly by instilling confidence in the reliability of the importation method but also observed that this was one of the many factors to consider when assessing objective seriousness.
His Honour also found that the applicant was motivated by financial gain and that this was an aggravating factor. Further, he was satisfied that the applicant was aware of both the quantity and value of the drugs.
His Honour found that the objective seriousness of the offending was "of a very high order" and further that a strong element of deterrence must be reflected in the sentence to be imposed.
It is not necessary to say anything about the applicant's subjective case at this stage.
[4]
Grounds 1 and 2
I will consider Grounds 1 and 2 together as they both relate to the role of the UCO and the impact on the exercise of the sentencing discretion.
[5]
The applicant's contentions
The applicant submits that the sentencing judge should have found that the culpability of the applicant was significantly diminished having regard to the role of the UCO in inducing the applicant to become involved in the importation.
The applicant further submits that again having regard to the role of the UCO, the sentencing judge erred in his findings on general and specific deterrence.
The applicant maintains that the culpability of an offender may be diminished if there is a real possibility that, but for the assistance, encouragement and incitement by Police, the offender would not have committed the crime. The so-called Taouk principle referred to in Ground 1 is a reference to the decision of this Court in R v Taouk (1992) 65 A Crim R 387. [32]
The applicant submits that the sentencing judge failed to undertake any analysis of how that relevant principle should be applied to the facts of the case, including the nature and extent of the encouragement by the UCO. It is said that, whilst the analysis of the facts was extensive, the sentencing judge failed to apply the principle in his assessment of objective seriousness. This is said to be evident, in part, from the finding that the objective seriousness was "of a very high order".
The applicant maintains that this is a case which falls within the fourth category of those matters referred to by McHugh J in Ridgeway v The Queen as follows:
"I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters:
(1) Whether conduct of the law enforcement authorities induced the offence.
(2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged.
(3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.
(4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence." [33]
The applicant's point is that on a proper analysis of the communications between the UCO and the applicant, the sentencing judge understated the role of the UCO. It was not merely that the applicant was given encouragement to participate and embraced the idea but also that he was positively induced by the offers made by the UCO.
The applicant suggests that the gravamen of his criminality was sourcing the drugs once he was induced to do so by the UCO. He was vulnerable to manipulation by the Police and he was so manipulated. The importation was always doomed to fail because of the role of the UCO and the applicant submits that this is also a relevant sentencing factor.
According to the applicant, the result is that there should have been a significant reduction on sentence, and it is not apparent from the judgment that there was any reduction at all.
Finally, the applicant submits that, as the offending was very much encouraged and induced by the conduct of the UCO, matters of both general and specific deterrence have little role to play in the sentencing process.
[6]
The Crown position
The Crown submits that the points raised by the applicant are really to the effect that the sentencing judge failed to give sufficient weight to the involvement of the UCO in assessing the objective seriousness of the offence and in considering general and specific deterrence. The Crown submits that a failure to give sufficient weight is not a ground of appeal that falls within the type of error required for a severity appeal. [34]
Rather, the Crown submits that the alleged failure to give proper weight is more a factor which might be considered under a manifest excess ground of appeal. [35]
The Crown further submits that it is a matter for a sentencing judge to assess how the circumstances of the Police involvement in a particular case bear on the culpability of the offender and each case must be judged on its own facts. Here, the sentencing judge assessed the role of both the applicant and the UCO and assessed that the UCO offered encouragement to the applicant. His Honour acknowledged that this is one of the many factors to be taken into account when assessing the overall seriousness of the offender's conduct. No error has been demonstrated in those findings or approach.
[7]
Consideration
The involvement of the Police in the commission of a trafficking offence is a relevant sentencing consideration and the particular weight to be given to the Police involvement depends on the circumstances of the case. That was recognised by the sentencing judge. The issues raised on appeal are whether the sentencing judge erred in his findings as to the role of the UCO, that is in understating the significance of his role, and whether the sentencing judge placed any weight at all on the role of the UCO.
I do not consider that the sentencing judge erred in his findings as to the role of the UCO but erred in not placing any weight at all, having regard to his findings, on the role of the UCO.
The principles to be applied when the police are involved in a relevant trafficking offence are set out in Kada v The Queen as follows:
"…
(a) The involvement of police in the commission of a trafficking offence is a relevant sentencing consideration.
(b) The weight to be given to police involvement will depend on the circumstances of each case.
(c) The fact that there is a real possibility that the specific offending would not have occurred but for the involvement of the police may carry some weight. As this causation element will be present in many cases, considered in isolation, it will not necessarily be an important sentencing consideration.
(d) The primary focus will usually be on how the circumstances of the police involvement in a particular case bear upon the culpability of the offender. Police involvement does not have a predetermined or uniform impact on culpability. Rather, there is a spectrum along which that impact is to be assessed, ranging from very little impact to substantial impact.
(e) Factors that affect the impact of police involvement on culpability include the following:
(i) The manner in which the involvement of the police contributed to the offending, including the nature and degree of any pressure or coercion applied, or encouragement or inducement offered, by the police to secure the commission of the offence.
(ii) The extent to which the involvement of the police contributed to the offending.
(iii) Whether the police dealt with the offender directly or through an intermediary. Ordinarily, the more remote the police involvement - including any pressure, coercion, encouragement or inducement by them - is to the offender, the less weight it will have on the sentencing synthesis.
(iv) The readiness with which the offender responded to any requests for drugs by the police. The involvement of the police will carry greater weight if the will of the offender is overborne by them, compared to a situation where the offender regards the requests for drugs from the police as a welcome expansion to his or her trafficking operation. Conversely, police involvement will carry less weight if the offender, rather than the police, instigated the relevant trafficking transaction.
(v) Whether the police became involved at a time when the offender was already trafficking in the relevant drug and, if so, the scale of his or her operation at that time and the scale of operation resulting from the police involvement. The involvement of the police will carry less weight if their requests for a drug can be accommodated within the offender's existing supply lines, compared to a situation where those requests can only be accommodated by material changes to the offender's scale of operation and supply lines.
(f) The fact that no actual harm arises because the involvement of the police prevents the drugs from being distributed to the community is a relevant consideration. However, ordinarily, this fact will be accorded little, if any, weight as a mitigating circumstance. This is because it would be anomalous for the offender to receive a more favourable sentencing disposition due to a circumstance which, from his or her perspective, is fortuitous, namely, the involvement of the police." [36]
On the sentencing hearing, the applicant directed the sentencing judge to the ways in which the UCO operative encouraged the offender's participation as follows:
" …
• Assuring the offender that he had a 'very reliable' way of moving drugs into Australia: [13] of the Facts - messages on 3 January 2017.
• Ensuring that the offender had confidence in his ability to move drugs into Australia: [13] of the Facts - messages on 3 January 2017.
• Ensuring that the offender had confidence in his legitimacy and bona fides: [15] and [17] of the Facts. At [15] - messages on 20 March 2017 re the yachts being 'picked up' after Christmas. At [17] - having a 'company' and experience in the Netherlands.
• Ensuring that the offender believed that he was experienced and active in the industry/trade (having recently completed importations and having various importations on foot: [15] of the Facts - messages on 20 March 2017 'I'm working with 2 crews'; 'I can ask some of the guys I do work with'; 'that last job that came …') and messages on 30 March 2017 at [17] re a company in the Netherlands with a 'good history'.
• Encouraged the offender to believe that he had implemented measures to make the import look 'professional': see messages on 7 August 2017 at [41] 'so it's all professional'.
• Providing the offender was [sic] advice as to how to go about the importation: see [13], [15], [22], [41]."
The applicant says that on a fair reading of the remarks on sentence, the sentencing judge took no issue with these factors but merely suggested that this was one of many factors to consider. That appears to be so.
Further, according to the applicant, despite the extensive analysis of both the role of the UCO and the applicant, it is not apparent that his Honour gave any weight to the role of the UCO at all. That also appears to be so, having regard to the finding that the objective seriousness was of a very high order.
Whilst, as identified by his Honour, there were a number of factors to which he was entitled to have regard in elevating the objective seriousness of the offending, it is difficult to understand how the sentencing judge could have given any real weight in mitigation to the role of the UCO and still find that the offending was not just in the high range but of a very high order.
The weight to be given to any sentencing factor is not capable of some mathematical or precise calculation. Generally, an appeal based on the weight that a sentencing judge gave to any particular factor would be difficult. [37] As was said in Wong v The Queen at [76] (per Gaudron, Gummow and Hayne JJ):
"So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform." (Emphasis in original)
However, in some cases the remarks on sentence and findings on objective seriousness may of themselves demonstrate that the sentencing judge has either not given any weight at all to a relevant sentencing factor or given so little weight as to demonstrate error. As was said in Kane v R, the critical question is whether it may be inferred that the sentence imposed involved some misapplication of principle, even though none appears on the face of what was said by the sentencing judge. [38] In this case the sentencing judge made findings about the role of the UCO and identified the role of the UCO as one of the relevant factors but the finding of objective seriousness of a very high order does not reflect that.
As I have already observed, the sentencing judge made a number of findings which informed the ultimate finding on objective seriousness. For example, he accepted that the applicant engaged in many steps of the attempted importation and that the applicant adopted an overall organisational and supervisory role over others. He occupied a very senior and prominent role in the organisation and played an essential role from the initial planning stages through to the execution of the attempted importation. The applicant had clear knowledge of the substantial amount of the border controlled drug and expected to receive a significant financial return. If successful, the importation had the potential to cause significant harm to the Australian community.
No error has been established in respect of these findings. Indeed the applicant does not challenge the findings as to his role.
Further, no error has been demonstrated on the findings as to the role of the UCO. He initiated the scheme to import and encouraged the applicant to become involved. There were many communications between the UCO and the applicant. The UCO presented the applicant with an opportunity to import drugs using the transport and method proposed by the UCO. The applicant embraced the opportunity presented to him.
I do not consider that this case falls into the fourth category referred to by McHugh J in Ridgeway v The Queen. The offence was not "induced as a result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence." [39]
The UCO did not offer rewards and inducements which would not otherwise be available to a drug importer. The UCO proposed a scheme with financial benefits for the participants. That does not elevate his conduct to a level of putting pressure on the applicant with inducements which could not be resisted.
Nor do I consider that this is a case in which the administration of justice would be brought into disrepute because the processes of the Court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. The UCO was put in touch with the applicant by his brothers whilst the applicant was overseas. Meetings were arranged in different places around the world. The applicant was offered an opportunity but the UCO did not induce him to source drugs that he would otherwise not have been able to source. The applicant arranged for the large quantity of drugs to be delivered at Rotterdam.
The applicant was hardly a naïve individual tricked into committing this serious offending by rewards and inducements from the UCO. It must be said that most members of the community are not in a position to organise a large-scale importation of drugs as a result of any encouragement or invitation by the authorities to do so. How the applicant sourced the drugs is not known but source them he did.
Further, the authorities did not merely stumble across the applicant as a person willing to become involved in the importation of the drugs. The applicant's brothers set up a meeting between the UCO which was to be in either Lebanon or Dubai but was then in Thailand.
Having said that and whilst I do not consider that this is a case in which the offence was induced as a result of persistent threats or inducements or offers of reward, the involvement of the UCO is a relevant sentencing consideration.
There is no evidence that the UCO became involved when the applicant was already trafficking the relevant drug. Further, the UCO dealt directly with the applicant, plainly offering him encouragement. The UCO initiated the scheme. These are relevant matters which should be given some weight in the assessment of the applicant's culpability and the objective seriousness of the offending.
The problem which arises is that, having regard to the finding that the offending was of a very high order, it is not apparent from the judgment how the sentencing judge took account of the involvement of the UCO.
Even though I do not accept some of the applicant's submissions as to the additional findings that should have been made by the sentencing judge, I accept that the role of the UCO was a factor which impacted on the objective seriousness of the offending (that is by lessening rather than elevating). The sentencing judge did not explain how he took account of this factor and still considered that the offending was of a very high order. He said it was one of many factors to consider but it had a degree of prominence in the offending. Other factors may have pointed to the offending being in the very high range but a finding in that range does not suggest any allowance at all based on the role of the UCO.
In my view, this is a case in which, despite the extensive analysis of the sentencing judge as to the role of the UCO and the statement that his role was a relevant sentencing factor, the finding of objective seriousness indicates that the sentencing judge must have given that factor no weight or so little weight so as to demonstrate error.
In these circumstances, I accept that the applicant succeeds on Ground 1.
The ambit of Ground 2 is unclear. As for the findings on deterrence that are referred to as part of Ground 2, I agree with the sentencing judge's observations. A sentence must be imposed which reflects a strong element of general deterrence. The role of the UCO does not lessen that need. Specific deterrence has less of a role to play in the circumstances of this matter but there is no merit in Ground 2 as it appears only to challenge the weight given to these factors (as distinct from Ground 1 which asserts error in not having regard to the role of the UCO in assessing objective seriousness).
As the applicant has succeeded it is not necessary that I consider Ground 3 (manifest excess).
[8]
Re-sentence
It is necessary to exercise the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen (2014) 252 CLR 101; [2014] HCA 37. If a different, less severe, sentence is warranted, that sentence should now be imposed.
For the purposes of re-sentencing, the applicant relied on additional material, including an affidavit of his solicitor, Abbas Soukie, dated 23 February 2022, and an affidavit of his daughter, Khadija Jomaa, sworn 22 February 2022.
Annexed to the affidavit of his solicitor are notes and records from the Prince of Wales Hospital relating to the treatment of the applicant for a cardiac arrest which he suffered on 6 July 2020 whilst in the South Coast Correctional Centre. After undergoing CPR and apparently having a down-time of almost 10 minutes, he was transferred to the Prince of Wales Hospital. He underwent coronary artery bypass surgery. The treatment was successful and he was discharged on 22 July 2020.
He appears not to have suffered any neurological consequences as a result of the cardiac arrest.
In her affidavit, the applicant's daughter refers to the difficulties the applicant had been experiencing in custody because of COVID-19 and the fact that he remained in his cell and did not have visitors.
Further, the applicant's mother died whilst he was in custody and the applicant's daughter refers to the difficulties in communicating with the prison in that regard and the inability to arrange a video link. She also refers to what she described as his awful treatment in hospital following his cardiac arrest. He was handcuffed to the bed.
I take account of the difficulties that the applicant has experienced due to COVID-19.
In Taha v R, Walton J discussed the impact of COVID-19 on questions of additional unanticipated hardship in custody:
"The COVID-19 pandemic and its implications for conditions of incarceration including hardships occasioned by restrictions put in place by custodial authorities to contain the spread of the virus and the consequential risks for prisoners may be taken into account in resentencing the applicant: Doudar v R [2021] NSWCCA 37 at [72] (per Hoeben CJ at CL, with whom Bellew and Wright JJ agreed) and Toller v R [2021] NSWCCA 204 ("Toller") at [25] (per Beech-Jones J, with whom Macfarlan JA and Davies J agreed). (That situation may be contrasted with an application brought on appeal where the offender's conditions in custody are being rendered more onerous because of the imposition of restrictions by prison authorities in response to the threat posed by the pandemic: Cabezuela v R [2020] NSWCCA 107 at [131]-[132] (per Walton J, with whom Hoeben CJ at CL and Harrison J agreed) and Toller at [25]).
The evidence before the Court, and notwithstanding the increased vaccination rates of inmates, prison workers and visitors, is that remains the need for custodial authorities to impose restrictions and limitations including lockdowns to retain the spread of the virus and ameliorate its effects. With different strains of the virus impacting the prison system these circumstances may not be described as merely temporary hardships but appear to be ongoing, even with some apparent abatement." [40]
However, it is a sad and unfortunate reality that being in prison may prevent a person from attending the funeral of a close relative. Similarly, any external treatment necessitated by an illness or injury in hospital will be made more difficult because of the required security arrangements.
I would adopt the sentencing judge's findings (about which there is no complaint) other than in respect of objective seriousness and specific deterrence.
I accept that the applicant has demonstrated remorse and insight into the harm that his offending could have done to the community. I accept that by agreeing to voluntary extradition from Dubai, he has cooperated with the authorities and this must be taken account of as a mitigating factor.
As the sentencing judge did, I have regard to the fact that the conditions under which the applicant will serve his sentence are likely to be more arduous than within the general prison population and I take that into account in assessing the applicant's subjective circumstances. I have regard to the fact that the applicant has a limited criminal history of previous drug convictions.
I have regard to the material from the psychologist, Dr Woods, which, as the sentencing judge observed, tends to suggest that the applicant has changed his attitude towards drugs, that he has experienced quite a profound level of guilt, shame and remorse in response to his offending behaviour and that his risk of re-offending is moderate to low.
I accept that the applicant has insight as to the effect of drugs on his community and his own family and, in particular, his son's difficulties with drugs.
I adopt the sentencing judge's assessment that with continuing treatment, his prospects of rehabilitation will be significantly enhanced.
Having regard to his prospects of rehabilitation, his remorse and other matters pointing to a strong subjective case such as his limited criminal history, growing up in an environment where criminal activity was considered the norm, childhood and education difficulties and the difficulties he has experienced in custody, particularly in Dubai, I do not consider that specific deterrence is of significance. However, any sentence must reflect the importance of general deterrence, that is, the need for the community to understand that attempts to import drugs of this type and quantity will most often lead to a significant custodial sentence.
The amount of the MDMA which the applicant intended to import was 200 kilograms. Bearing in mind that a commercial quantity of a border controlled drug of MDMA is 0.5 kilograms or more, [41] this is a very high quantity. Thus, the weight of the drugs and the offender's knowledge of the weight are relevant factors in assessing objective seriousness, [42] although the weight is not necessarily the most significant factor. [43]
In this case, the applicant was well aware that he was involved in the importation of importing a very large quantity of drugs.
Further, the applicant does not challenge the sentencing judge's findings as to his role and I adopt them. The sentencing judge declined to identify the applicant as a "principal" but accepted that the applicant played a very senior role with a high level of involvement and high level of organising and I adopt that description.
I also accept that there is no evidence that the applicant was involved in any wider operation in the importation of drugs. This was his first and only attempt.
In the end, I would adopt all of the factors as assessed by the sentencing judge in determining objective seriousness except that, as I have already referred to when considering Grounds 1 and 2, it is necessary to give some weight to the role of the UCO as a mitigating factor.
In my view the objective seriousness of the offending is below the highest level, albeit not significantly so. The role of the UCO is such that the objective seriousness of the offending is less than at the highest level but still well above middle of the range for this type of offending.
Further, as I have identified, the applicant has a relatively strong subjective case.
The applicant is entitled to a 25% discount on account of his early plea of guilty. If not for that discount, I would have imposed a total sentence of 24 years. Having regard to the discount, the total sentence is 18 years.
I have adopted the sentencing judge's findings on the prospects of rehabilitation and the need for a greater than normal parole period to provide him the opportunity for long supervision in the community. I would impose a non-parole period of 12 years.
The orders I propose are as follows:
1. The time for filing of the notice of appeal is extended until 22 June 2021;
2. Leave to appeal is granted;
3. Appeal allowed;
4. The sentence of Judge Zahra SC of the District Court imposed on 22 November 2019 is set aside;
5. In lieu thereof, the applicant is sentenced to a term of imprisonment of 18 years commencing on 8 August 2017 and expiring on 7 August 2035; and
6. I impose a non-parole period of 12 years to commence on 8 August 2017. The applicant will be eligible for parole on 7 August 2029.
[9]
Endnotes
Contra R v Campanella (2004) 90 SASR 1; [2004] SASC 99 at [14].
Bou-Antoun v R [2008] NSWCCA 1 at [26]-[27].
R v Mantica (1980) 24 SASR 394 at 404.
Giang v R [2017] NSWCCA 25 at [18]-[22].
Assi v R; Jomaa v R [2021] NSWCCA 181 at [35]-[38].
Mihelic v R [2019] NSWCCA 2 at [79]-[81] (Rothman J, with whom Hoeben CJ at CL and Price J agreed).
R v Romeo (1987) 45 SASR 212 at 224-225 (White J) and 239 (Johnston J); contra O'Loughlin J at 240.
R v Campanella at [3]-[6] (Doyle CJ) and [38]-[40] (Perry J).
Ibid at [75].
Ibid at [37].
Ibid at [70].
Ibid at [6].
Ibid at [52].
Ibid.
See, for example, Markarian v R (2006) 228 CLR 357; [2005] HCA 25 at [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ) and [50]-[59] and [70] (McHugh J).
DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134 at [35] (Harper JA, Weinberg and Priest JJA agreeing).
Ibid at [36].
Ibid.
Parris v R [2013] NSWCCA 5 at [26]-[28].
R v Campanella at [11]-[12].
Ibid at [13]-[14].
This is a reference to the decision of the English Court of Appeal in Birtles (1969) 53 Cr App R 469.
R v Taouk at 400.
R v Taouk at 403.
Ibid at 404.
Ibid at 416.
Judgment on sentence (22 November 2019) at p 22.
Ibid at pp 22-23.
See cases discussed at [12] above.
See Haidari at [13] above.
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64.
See also Bou-Antoun v R [2008] NSWCCA 1 at [26] (Grove J); R v Anderson (1987) 32 A Crim R 146; Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197.
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 at 92.
House v R (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
Hanania v R [2012] NSWCCA 220 at [13] (Button J, with Hoeben JA and Johnson J agreeing).
Kada v The Queen at [72] (Tate and Kyrou JJ).
You v R [2020] NSWCCA 71 at [103] (Cavanagh J).
Kane v R [2021] NSWCCA 250 at [11]-[15] (Leeming JA and R A Hulme J).
Ridgeway v The Queen at 92 (McHugh J).
Taha v R [2022] NSWCCA 46 at [68]-[69].
Criminal Code 1995 (Cth) s 301.10; Criminal Code Regulations 2019 (Cth) Sch 2, Item 134 of the Table.
Wong v The Queen at [67]-[69] (Gaudron, Gummow and Hayne JJ).
Ibid at [70] (Gaudron, Gummow and Hayne JJ).
[10]
Amendments
03 June 2022 - Coversheet:
"Decision" at (4): Date changed from 17 December 2021 to 22 November 2019.
"Date of decision": Date changed from 2 November 2019 to 22 November 2019.
[11]
Body:
Para [29]: Date changed from 2 November 2019 to 22 November 2019.
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Decision last updated: 03 June 2022