R v Abbas

District Court of NSW|2023-12-12

JUDGMENT

Abrar Sohel Abbas appears for sentence having entered a plea of guilty to one count of importing a commercial quantity of a border‑controlled drug, namely, 7.7 kilograms of methamphetamine. The commercial quantity applicable to methamphetamine is 0.75 kilograms. Such an offence contravenes s 307.1(i) of the Commonwealth Criminal Code and carries a maximum penalty of life imprisonment and/or 7,500 penalty units which equates to a maximum fine of $1.665 million.

FACTS

On 28 October 2022, the offender arrived at Kingsford Smith International Airport in Sydney on his return from a two-day trip to Fiji. At the time he was a lawful non-citizen who was living in Australia on a student visa. He had travelled to Fiji from Sydney on 26 October 2022. After presenting his Incoming Passenger Card to an Australian Border Force officer and passing through Immigration, the offender collected his suitcase from the baggage carousel. After proceeding towards the Secondary Examination Area, he was approached by a Border Force officer and escorted to the baggage examination area. Anomalies were displayed in an X-ray of his suitcase and a physical examination revealed a bottle of yellow liquid in the suitcase which appeared to be leaking.

THE OFFENDER'S ROLE IN THE IMPORTATION

Border Force officers took possession of a mobile phone in the possession of the offender. Forensic examination of the phone revealed communications sent by text message between the offender and a number of other persons, both in the immediate lead-up to his departure for Fiji and in the preceding months.
The detail of messages exchanged between the offender and other persons during the period between July and October 2021 are set out in detail in the Agreed Facts.
Portions of those conversations were initially objected to as indicating other uncharged criminal offences relating to the offender's involvement in the supply of drugs.
In the Crown's submission, the uncharged drug transactions did not aggravate the objective seriousness of the charged offence. The Crown sought to rely upon the offender's involvement in previous transactions as being relevant to the nature of his relationship with the person identified as '007Mic', his familiarity with illicit substances and consequently his state of mind at the time of the importation. The Crown referred in this regard to Harriman v R [1989] HCA 50; (1989) 167 CLR 590; (1989) 88 ALR 161.
In light of the Crown's position regarding relevance, Mr Lloyd KC did not press his objection to the evidence of the uncharged acts. In my view, he was right to adopt that course.
In the immediate period leading up to his departure from Australia to travel to Fiji, a number of messages passed between the offender Abbas and the person identified as "007Mic".
On 25 October 2022, "007Mic" asked the offender if he had made his mind up and said, "It's 7K." The offender asked, "What day did you want me to go?" and "007Mic" later responded, "Bro, I'll pay you 9K." In further conversation between the offender and "007Mic", the offender asked, "What are we bringing" and was advised by "007Mic" :"oil."
"007Mic" also sent a message stating: "Nothing to do with drugs! The Boys been doing it for a while. It's safer."
The offender was advised that he would be bringing a suitcase and "007Mic" said, "We'll get the flights and accommodation." Abbas asked when he would be paid and he was advised that he would be paid when he got back, "straight away". In further conversation, "007Mic" stated that it would be "just one bottle of oil."
The following day, 26 October 2022, the offender confirmed with "007Mic" that he had booked his tickets and accommodation. Later that day he sent a message confirming that he had arrived in Fiji. "007Mic" later told the offender that "the boys" would meet him tomorrow and that he would let Abbas know when they wanted to meet.
On 28 October, the offender sent a message to "007Mic" confirming that he had landed at Sydney airport, but that he was stuck at the immigration part.
Subsequent further analysis of the offender's mobile phone revealed text messages with other persons on 27 October 2022. In those messages the offender asserted that this was "the second time" and that after doing the "big one" it was his "last one" and that after this he is "out." He also said in those messages that he had "hit a lick" which was said to refer to a large sum of money in a short time. He also messaged that he was bringing "body lotion back".

RELEVANT FACTORS REGARDING DRUG IMPORTATION OFFENCES

The relevant propositions with respect to sentencing for drug importation offences were conveniently listed by Johnson J, (McFarlan JA and RA Hulme J agreeing), in R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72]: "…(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27]; (b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court: R v Olbrich [1999] HCA 54 ; 199 CLR 270 at 279 [19]; R v Lee at [25]; (c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]; (d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v R; Leung v R at 607-608 [64]; R v Lee at [23]-[24]; (e) the statements by the High Court in Wong v R; Leung v R do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362 ; 157 A Crim R 80 at 102 [110]; Sukkar v R (No 2) [2008] WASCA 2 ; 178 A Crim R 433 at 447-448 [46]; (f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425 ; 150 A Crim R 271 at 297 [104]; R v Lee at [32]; (g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v R; Leung v R at 607-608 [64]; (h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen [2002] NSWCCA 174 ; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355 ; 141 A Crim R 531 at 552-553 [114]; (i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4 ; 105 A Crim R 474 at 476 [6]; (j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221 ; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238 ; 234 FLR 377 at [49]; (k) where offenders are not young …, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247 ; 173 A Crim R 458 at 474 [98]; …"
The list enumerated by Johnson J has more recently been endorsed in R v Kassir [2020] NSWCCA 88 per Bathurst CJ (Fullerton and RA Hulme JJ agreeing). The Chief Justice added at [100]: "I would only add what was said by Bell and Gaegler JJ in R v Pham (2015) 256 CLR 550 at [45] that "the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness", but will usually be a relevant and in some cases the most significant consideration."
Amongst relevant matters, a critical consideration is a determination of what an offender actually did with respect to the importation of drugs. As the High Court clearly stated in Olbrich v The Queen (1999) 199 CLR 270 at [279], the use of a shorthand description of a person's role (e.g. 'courier or intermediary') should not obscure an assessment of what an offender actually did.
There is no doubt however, that a person properly classified as a 'courier' will generally attract a more lenient sentence than an identified principal within a criminal drug hierarchy (see: Tyler v R (2007)173 A Crim R 458 at [79] - [80]; cf. Bellew J in Gwardys v R [2019] NSWCCA 62 at [42] - [43] and Klomfar v R [2019] NSWCCA 61 at [40]]).
Whilst the fact that somebody is utilised as effectively a 'mule' or 'courier' may result in an assessment of a lesser level of criminality than an organiser or principal, a consideration of such a person's degree of criminality still requires an understanding of the importance of such a person in accomplishing the criminal purpose.
In determining the level of objective seriousness, a courier with actual knowledge, that is, that they know that they are importing a border-controlled drug, or with actual knowledge of the nature of the drug and the quantity involved, will be assessed at a higher level of objective seriousness than a person who lacks such specific knowledge.
In the present matter, the Crown's submission was that the Court would be satisfied of an inference beyond a reasonable doubt that the offender actually knew that he was carrying drugs. In the alternative, the Crown submits that the offender displayed such a high degree of recklessness as to not make any significant difference in moral culpability than if he actually possessed that knowledge.
I should make it clear at the outset that the nature of the conversations with "007Mic" are such, in my view, as to at least raise the question, and hence a reasonable doubt, as to whether the offender had actual knowledge.
I do, however, accept, particularly in circumstances of his previous involvement with drugs, that his degree of recklessness as to the nature of what he was going to carry back into Australia, reflects a very high degree of recklessness and hence moral culpability.
It is clear that the weight of the drug is a relevant factor and the quantity of more than 10 times the threshold for a commercial quantity of methamphetamine elevates the objective seriousness above cases involving substantially less quantities. The total gross weight of the liquid in the bottles was in excess of 17 kilograms, which would provide more than a passing indication to a person carrying a suitcase with such a quantity inside, that they were bringing a not insubstantial weight of an illicit substance.
The motivation for commission of the offence was clearly for monetary reward, as indicated by the offer of $9,000 and flights and accommodation also being paid. The objective seriousness of the offending, considering all of these various factors, falls, in my view, towards the lower end of the mid-range of objective seriousness.

SUBJECTIVE FACTORS

As I have indicated earlier, the offender elected to exercise his right to silence and provided no information to police. That fact is not held against him. He has not given any oral evidence in the course of the sentencing proceedings. Information regarding his subjective background has been provided to the Court through the medium of a detailed report from Ms Amanda Georges, clinical psychologist, dated 17 October 2023. Additional information regarding the offender has been provided through a letter of apology from him which was tendered without objection, material produced from within Corrective Services and a Sentencing Assessment Report prepared for the assistance of the Court.
In circumstances where relevant factors which are relied on in mitigation of offending behaviour are advanced via third parties, the reserve and caution with which such out of court statements made to third parties should be treated has been repeatedly emphasised by the Court of Criminal Appeal.
In Imbornone v R [2017] NSWCCA 144 Wilson J (Hoeben CJ at CL and R A Hulme J agreeing) said at [57]: "This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities: (1) Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58]-[59]. (2) Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381 ; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25]. (3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. (4) If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19]. (5) Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, "to treat this evidence with anything but scepticism represents a triumph of hope over experience": R v Harrison [2001] NSWCCA 79 ; (2002) 121 A Crim R 380 at [44]."
It is to be observed that in some particular cases, the Court of Criminal Appeal has been even more emphatic in seeking to discourage the receipt of unsworn and untested statements. In Lai v R [2021] NSWCCA 217, Bellew J, with whom Bathurst CJ and Adamson J agreed, made specific reference to each of the relevant offenders in that matter having tendered statements to the sentencing judge in the absence of giving sworn evidence. Bellew J referred to the circumstance that such a practice seemed to be increasingly adopted in sentence proceedings in the District Court.
His Honour reiterated the observations of Whealy J in R v Elfar [2003] NSWCCA 358 at [25] in which Whealy J had himself re-emphasised the matters of principle stated in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369.
Whealy J had said that the principle extended not only to statements in psychological reports but also to statements by offenders in pre-sentence reports. His Honour went on to say: "In addition the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment."
Bellew J went so far as to remark at [80] in Lai: "Those observations have since been consistently reiterated by this Court. There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged."
I will bear in mind the appropriate caution with regard to untested and uncorroborated assertions relied upon in mitigation.
From material which has been provided to the Court, I do not see the necessity of setting out the fine detail of the letter of apology from the offender himself. In his letter he described his motivation for committing the offence as deriving from a need for money. He also described the circumstance of him taking drugs and having lost his sense of reality as a consequence of his desperation to survive what he described as his addiction. He stated that he had stayed drug-free in gaol and expressed his shame and remorse. In the absence of any testimony from him, I indicate a level of reserve, not with respect to his motivation to commit the offence, but with his more expansive explanation regarding reasons for his realisation of the evils of drugs.
The clinical psychological report, comprising some 16 closely typed pages, is derived from a single session conducted via audiovisual link consisting of 2 hours of clinical interview and half an hour of psychometric testing. In his description of the offending in the interview with the psychologist, the offender described being 'misled' by a friend at a time when he was vulnerable and needed money. The inference that he did not know whether it was drugs or anything dangerous is, in my view, to some extent at odds with the objective evidence in the Agreed Facts. His personal history is described in the report which might be properly accepted at face value.
The offender was born in Saudi Arabia to Bangladeshi parents in 1998. He was the elder of two boys. He has a younger brother who is now 20 years old who is reported to have suffered with neurocognitive deficits.
The offender described a difficult upbringing in Saudi Arabia where his father worked as a travel agent. His mother was a stay-at-home mother. He described being "quite strictly supervised" by his parents who would discipline him physically in what he described as "old school and traditional."
The offender claimed to have witnessed domestic violence between his parents and expressed concern for his parents who he now described as 'old.' His father is said to be approximately 60 and his mother approximately 50 and suffering from diabetes.
The offender claimed to have been touched inappropriately by a taxi driver when he was about 15 years of age and claimed to have been scarred by the incident. The psychologist noted "it was somewhat difficult to establish any further details about this incident."
The offender is said to have arrived in Australia in early 2018 when he was 19 years of age. His parents apparently paid for him to come to Australia to pursue studies in this country. He initially resided with an Uncle before moving in with a childhood friend from Saudi Arabia.
The detail of his rental expenses were set out, but it is unclear how much financial support he was receiving from his parents. It would appear that at some stage he had a falling out with them and had no contact with them for some 12 months prior to the present offending.
The psychologist reported the detail of alleged significant bullying throughout his school years in Saudi Arabia. He described having only a few good friends.
The offender told the psychologist that his parents had decided which country he would go to to attend university and in due course they decided he would come to Sydney because his maternal Uncle lived here. The offender said that he had completed an 8-month course. Although no supporting documents have been produced, his description of completing an IT course at the Sydney Institute of Business and Technology and then commencing a Bachelor's degree at Western Sydney University is consistent with the Court's understanding of the nature of that particular college.
The offender stated that he had continued to study until COVID‑19 interfered with his attendances from 2020. He described being financially supported by his parents until 2019, following which time he obtained a number of positions of casual employment.
The offender described having become significantly involved in drugs and alcohol during his time in Sydney. He described smoking marijuana daily and engaging in a range of other substance abuse, including cocaine and MDMA on weekends and binge drinking every night from Thursday to Sunday. He said nothing to the psychologist regarding his apparent involvement in drug supply, as revealed in the uncharged material in the Agreed Facts.
The psychologist undertook detailed psychological assessment with respect to deception, personality, depression, anxiety, trauma and also risk assessment. I do not set out the full detail of the conclusions. However, the responses obtained included the potential for problems with acting out. The psychologist thought it was very likely to be impulsive and sensation seeking. Drug abuse would also frequently be involved with such a personality.
His responses indicated a marked potential for difficulties within the alcohol problem domain. He was also found to have marked potential for problems within the psychotic features domain. A similar potential was indicated within the suicidal thinking domain. The psychologist reached a similar conclusion regarding problems in the alienation domain, the social withdrawal domain, the health problems domain, and the anger control domain.
On questionnaires, including self-reporting measures, the presence of depressive symptoms at a severe level were indicated. The psychologist opined that he had symptoms of PTSD exceeding the clinical cut‑off level. An assessment of his level of risk and recidivism and criminogenic needs was assessed as low-moderate, which was described as equating to approximately a 31.1% chance of recidivism.
The clinical psychologist concluded that the offender was likely to do things that he believed would be pleasing to others for fear of rejection and that this was likely to have been impacted by his early years of repeated physical abuse by his parents and persistent bullying. A decision had been taken by the offender to pause from studying for approximately one year, following which his abuse of illicit substances increased and he became engaged in what was described as the 'party and drug lifestyle'.
However, notwithstanding a suggested nexus between the offending behaviour which brings him before this Court and his various psychological and personality features, the clinical psychologist described the offender suffering the financial burden of feeding his drug and lifestyle habits. He was described as finding himself in a situation where he was offered financial reprieve. Ms Georges expressed the opinion: "This appears to be the most explicit contributing factor to Mr Abbas' offending behaviour but complicated by the complexity of prior psychological vulnerabilities."
The psychologist also expressed the opinion that another important consideration in contributing to his offending conduct was the influence of chronic substance abuse.
The psychologist's report also described the extent of the offender's evinced remorse and his development whilst in custody of insight into aspects of his life that he needs to work on. The description of the offender's acceptance of responsibility for his actions must be tempered by the reserve which must be entertained in the absence of sworn evidence.
I should also note that the offender described to the psychologist having had no prior criminal history in Australia and having had no involvement with police in the past.
Whilst not at the pinnacle of criminal conduct, it is to be observed that he in fact had been before a court after presumably being arrested for high range drink driving and had been placed on a Community Corrections Order to be of good behaviour for a period of 12 months. He was in breach of the undertakings in that Court order at the time of his travel to Fiji.
A number of additional reports demonstrating the offender's attendance at various programs conducted within Corrective Services were tendered. I accept that they clearly indicate his continued participation in educational and vocational programs during his time in custody and that there are no recorded disciplinary breaches since the time of his arrest.
The Sentencing Assessment Report, consistent with his explanation to the psychologist, appears to be somewhat inconsistent with his plea of guilty. The Sentencing Assessment Report includes the assertion that, "he claimed he genuinely believed he was being a courier of sauces, rather than disguised methamphetamine". However, he also stated that he became involved in the index offence due to his association with a pro‑drug and pro‑criminal subculture. He told the Community Corrections Officer that the motivation for the involvement in the importation was to derive a financial benefit and support his lifestyle. He was described as presenting limited insight into the potential impact of his offending. This impression by the author of the Sentencing Assessment Report appears at odds with the conclusion by the psychologist.
The offender was not able to be assessed for Community Service which Mr Abbas expressed a desire to engage in. However, his pattern of polysubstance use indicative of daily dependence with no demonstrated period of abstinence in the community setting rendered him unsuitable for assessment for community service work.
He was nonetheless assessed as a low to medium risk of offending according to the Level of Service Inventory - Revised (LSI-R).

COMPARATIVE CASES

The Crown handed up a schedule of comparative cases consisting of dot point summaries with respect to three cases. I will refer to those cases shortly.
On behalf of the offender, Mr Lloyd of King's Counsel tendered the JIRS statistical tables with respect to offences under s 307.1(1) of the Criminal Code (Cth).
I have undertaken the task of accessing the specific tables referred to by Mr Lloyd, and by means of the hyperlinks provided by the Judicial Commission have been able to go to the detail of some of the cases which have been reported on Caselaw for offences pursuant to that section.
The first case referred to chronologically by the Crown is Van Zwam v R [2017] NSWCCA 127. Van Zwam and another man, Niko, had each been recruited to carry a suitcase to Australia. They were promised $3,000 USD each and were provided with the suitcases in Abidjan on the Ivory Coast. They were advised that the suitcases contained 1 kilogram of gold which was already sealed.
They each departed from Gambia in early March 2013. The two men flew with the suitcases to Casablanca in Morocco and then via Paris and Singapore, before arriving in Sydney on 22 March 2013. Van Zwam was arrested and charged after Border Control officers discovered packages which were glued to the interior of the shell of his suitcase. The total of six packages contained off‑white crystalline material with a total gross weight of approximately 3.97 kilograms. On analysis it was found to be between 78.7% and 80.3% pure methamphetamine, which led to a calculated pure quantity of the border-controlled drug of approximately 3.166 kilograms.
The detail of the offender's entering of a plea of guilty, evidence given at the trial of another offender which was said to possibly traverse his plea, and a subsequent attempt to reverse his plea of guilty was the subject of examination in detail in the Court of Criminal Appeal. It suffices to observe that the application for a reversal of plea was rejected.
At first instance in the District Court the offender had received a combined discount of 25% for his plea of guilty and for his assistance to authorities. In the District Court a sentence of 9 years with a non‑parole period of 5 years and 6 months had been imposed by King SC DCJ.
Error was found by the Court of Criminal Appeal as the consequence of the receipt of an affidavit sworn by the offender in which he had provided evidence of his expressed remorse. The offender was not called, and the affidavit was neither objected to by the Crown nor cross‑examined upon. The sentencing judge had said that he was unable to find any genuine evidence of remorse or contrition.
The Court of Criminal Appeal distinguished the circumstances in Qutami ([2001] NSWCCA 353; (2001) 127 A Crim R 369) and similar cases on the basis that the affidavit was in fact sworn testimony which had been admitted into evidence without objection.
Although the evidence of remorse and contrition in the affidavit were untested and hence the sentencing judge might have been entitled to treat it with less weight than evidence given orally, in the circumstances, he was not entitled to disregard it altogether.
The Court of Criminal appeal, by majority, consequently proceeded to resentence. Adamson JA would not have interfered with the sentence at first instance. However, Campbell J, with Macfarlan JA agreeing as to the error, proceeded to sentence afresh pursuant to Kentwell v The Queen ( [2014] HCA 37; (2015) 252 CLR 601) and imposed a sentence of 8 years and 3 months with a non-parole period of 4 years and 6 months.
Such a result was expressed to have a starting point of 11 years with the same discount allowed by the Judge at first instance of 25%. The difference in starting point is that the notional starting point by King DCJ had been 12 years. The non-parole period was also reduced by 12 months from 5 years 6 months to 4 years 6 months.
I should note in passing that despite what was clearly expressed in his reasons by Campbell J, namely a starting point of 11 years and a discount of 25%, which of course would yield a sentence of 8 years 3 months, the orders at the conclusion of the judgment appear to have imposed a sentence of eight years and six months. Such figure would also appear to have been erroneously entered into JusticeLink.
Given that the offender was presumably released to parole in 2017 and the total sentence expired in 2021, this observation by me may be viewed as somewhat academic.
At the time of re-sentence in the Court of Criminal Appeal, the offender, Van Zwam, was 60 or 61 years of age. Originally born in the Netherlands, he had moved to Turkey following his first marriage in 1996. He subsequently returned to the Netherlands in 2004 after his divorce in 2002, and subsequently moved to China where he remarried and worked at a university. He subsequently divorced his second wife and ultimately moved to Gambia. He would appear to have been of prior good character and had been motivated to commit the offence due to the promise of financial reward.
The second case to which the Crown brought the Court's specific attention was Zaugg v R [2020] NSWCCA 53. The offender was a 51-year-old Swiss citizen who arrived at Sydney International Airport on 11 December 2013 on a flight from Shanghai, China. An examination of her suitcase revealed 10 clutch‑style handbags which revealed possible anomalies in their lining when X-rayed. In due course, a crystalline substance was found in the lining of the 10 handbags, which on analysis turned out to be slightly in excess of 3 kilograms of pure methamphetamine. The gross weight of the substance concealed was approximately 4.375 kilograms. The estimated wholesale value was in excess of $1 million and the estimated street value in excess of $3.5 million.
The offender did not give evidence at the sentence hearing nor was any psychological or other report tendered with respect to her subjective circumstances. A document prepared on the instructions of the applicant was tendered, which permitted the sentencing judge to accept the uncontroversial aspects of the document touching on her personal history.
At the time of sentence in 2015 the sentencing judge adopted the then approach regarding the utilitarian value of the plea of guilty. At the hearing of the sentence appeal in 2020 the Crown accepted that in light of the decision in Xiao v R [2018] NSWCCA 4; (2018) NSWLR 1 , the sentencing judge had erred in that respect. At first instance King SC DCJ had imposed a sentence of 11 years, with a non‑parole period of 6 years and 6 months.
In undertaking the resentencing process Johnson J, with Bathurst CJ and Ierace J agreeing, commenced with a head sentence of 12 years. It was then discounted by 10% for the utilitarian value of the plea of guilty, which it should be noted had been entered late, some 5 days before the trial was due to commence.
The matter was further delayed when an application to traverse the plea of guilty was fixed for hearing. The offender subsequently withdrew that application and the sentence proceeding ultimately took place in 2015. After applying the 10% discount, together with some rounding, the sentence imposed in the Court of Criminal Appeal was 10 years 9 months, with a non‑parole period of 6 years 4 months. This, of course, was a reduction of 3 months on the original head sentence and 2 months on the original non‑parole period.
The third case to which the Crown referred was Kemal v R [2022] NSWCCA 83. The offender in that matter was similarly a courier who carried a suitcase from Cyprus to Australia for an asserted reward of $3,000 USD. He was arrested at Sydney Airport on 7 October 2018 and was booked to leave Sydney for Cyprus some five days later. The suitcase he was carrying contained two packages of white crystalline substance inside the lining, which was on subsequent analysis found to be methamphetamine. The gross weight was 2.793 kilograms with a purity of 80.3%. The calculated pure quantity was 2.243 kilograms.
The applicant gave evidence at the sentence proceedings and was dealt with by the sentencing judge, Tupman DCJ, on the basis that, consistent with his plea, he was reckless as to the presence of drugs being in the bag he was paid to bring into Australia, rather than having actual knowledge of the contents.
A challenge to the sentence based on an asserted error by the sentencing judge in referring to the 'possibility' of drugs being in the suitcase and hence referring to the common law test rather than the requirement of a 'substantial risk' as required under the Commonwealth Code was rejected. Whilst not made completely clear, the sentence imposed of 7 years 6 months would appear to reflect a 25% discount from a starting point of 10 years. The non‑parole period was four years. The challenge to the sentence in the Court of Criminal Appeal was dismissed.
Various other cases dealing with the same provision under s 307.1 of the Criminal Code (Cth) relating to a commercial quantity of a border-controlled drug, differ from the factual circumstances regarding Mr Abbas. In the circumstance of Mr Lloyd KC having provided the statistics, I will make reference to some of the factual circumstances in some of the cases which are able to be accessed as to their reasons.
R v Toafa [2019] NSWDC related to a 27-year-old offender who had imported a number of consignments under the guise of a legitimate business from the Netherlands. Various of the consigned packages were ultimately found to contain a gross quantity of 32 kilograms of MDMA with a purity of 77.9%. This would yield a calculated quantity of the pure drug of a little under 25 kilograms. After a discount of 25% a sentence was imposed of 7 years imprisonment with a non-parole period of 3 years and 6 months.
In R v Fu [2022] NSWDC 381 the offender pleaded guilty to what appears to have been a rolled-up charge of importing a commercial quantity of border-controlled drugs during an extended period between December 2020 and May 2021. The drugs were imported through the post and involved 249 grams of pure heroin, 500 grams of methamphetamine of an unknown purity (both quantities of which individually fell under the commercial quantity for heroin and methamphetamine respectively) and 7.7 kilograms of pure ketamine.
The offender was 18 years of age at the time of the offences and had been sent to Australia at the age of 15 where he had been expected to fend for himself. The sentencing judge found that his immaturity and lack of awareness of the consequences of his actions was a significant factor in the commission of the offences and that his moral culpability for the offences was thereby reduced.
Scotting DCJ specifically said that general deterrence, retribution and denunciation should be afforded lesser weight and more substantial weight should be placed on rehabilitation given his age. With respect to the single rolled-up federal offence his Honour imposed a term of imprisonment of 6 years with a non-parole period of 3 years.
In Martinez v R [2020] NSWCCA 250, a courier arrived at Sydney airport in November 2018 having flown from Santiago, Chile. An ion scan for the presence of drugs conducted at the airport on his person and clothing returned a positive presumptive result for cocaine. The ion scan did not reveal the presence of any actual quantity of cocaine and was consistent with cocaine either having been handled or at some stage being in the vicinity of his carryon bags or clothes.
The offender told the authorities that his suitcase had not arrived and he filed a lost baggage claim before leaving the airport and checking into a hotel.
The suitcase was ascertained to have arrived at the airport the following day. It was found to contain 3 kilograms of cocaine which had been concealed within the lining of the suitcase. On analysis it was ascertained to be approximately 85% pure, hence yielding a pure quantity of 2.565 kilograms. The commercial quantity for cocaine is 1.5 kilograms.
The offender pleaded guilty and gave evidence that he agreed to carry the suitcase into Australia in order to discharge a significant gambling debt. He gave evidence at sentence that he had been given €5,000 for expenses and that he suspected that the suitcase would contain drugs or money and that he had been told that it would be exactly the amount to clear his debt. He said that he did not expect there to be the amount of cocaine there was, and said that he only became aware of the actual quantity when he was charged.
The sentencing judge, Beckett DCJ allowed a discount of 25% and imposed a head sentence of 7 years with a non-parole period of 4 years and 8 months. The challenge which was brought to the sentence in the Court of Criminal Appeal conceded that the head sentence was within an appropriate exercise of discretion and an available range. However, by reference to sentences in cases involving what was said to be similar offending it was submitted that the non-parole period was markedly higher than indicated in those cases and hence was manifestly excessive.
In granting leave to appeal but proceeding to dismiss the appeal against sentence, Bellew J (Hoeben CJ at CL and Rothman J agreeing) highlighted the degree of planning which saw the offender travel from Ibiza to Barcelona, then to Buenos Aires and Sao Paulo where he collected the suitcase containing the drugs. His Honour described the offences as 'not an opportunistic or impulsive endeavour.' His Honour described it as carefully planned and pre-meditated for the purposes of financial gain.
Bellew J also pointed out at [35] - [37]: "Further, the fact that her Honour found that the role played by the applicant was less than that played by others involved in the enterprise did not (as her Honour correctly pointed out) lead to a conclusion that the applicant was entitled to any special degree of leniency. In cases of this kind there is no inevitable correlation between an offender who is found to have been in the lower echelon of a hierarchy, and the severity of the punishment that he or she can expect to, and will, receive. [33] In Gwardys v R [34] I observed: [42] [T]he applicant's criminality must be assessed by a consideration of his involvement in the steps which were taken to effect the importation. Importantly, it is his criminality which must be assessed. The fact that another person may be characterised as the "mastermind" does not mean that a person in the applicant's position, who was responsible for effecting the actual importation into Australia, is properly described as having only a middle (or indeed, lower) level of responsibility. The relevant inquiry must centre upon what the applicant actually did. [43] Put simply, the applicant imported a significant quantity of a prohibited drug into Australia. In doing so, he helped to facilitate and promote large scale international drug trafficking. Even if it is accepted that his place in some notional hierarchy was low, that does not mean that his role was insignificant. On the contrary, without him performing the role that he did, the importation could not have been effected. I also said the following in Klomfar v R: [35] It has been observed on numerous occasions that those who act as the applicant did in this case perform an essential role in the process of organised drug trafficking. If an organisation is starved of such recruits, it will collapse. That demonstrates the significance of the role undertaken by the applicant. The role undertaken by the applicant was, for the same reasons as those expressed in Gwardys and Klomfar, a significant one. That significance stems from the fact that without the applicant playing the role that he did, the importation could not have been effected. All of these observations are particularly relevant in a case such as the present, where the quantity of cocaine imported was substantially in excess of the commercial quantity."
After referring to the categorisation and extensive review of cases involving sentences imposed in respect of the importation of narcotics which had been undertaken by McClellan J at CL in Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 his Honour granted leave to appeal but dismissed the appeal.
A further case involving a courier being intercepted at Sydney Airport is Estevez v R [2020] NSWCCA 184. The offender travelled from the United States to Australia and carried a suitcase containing approximately 3.8 kilograms gross of cocaine. The pure quantity was ascertained to be in excess of 2.53 kilograms with a wholesale value of $750,000. Following a plea of guilty, Tupman DCJ imposed a sentence of 9 years with a non-parole period of 6 years. The notational starting point of 12 years was clearly discounted by 25%. The offender gave evidence on sentence in which he described being a drug user himself and agreeing to import the cocaine into Australia to clear a drug debt of about $10,000.
In the course of the sentence proceedings the judge at first instance had indicated an intention to apply a discount of somewhere between 30% and 35% to reflect the combination of the guilty plea and assistance to authorities. As a consequence of Xiao the Court of Criminal Appeal found error in the judge having followed the previously accepted law, namely that the utilitarian value was not to be taken into account. The Court additionally found error in the sentencing judge not applying the discount which she had articulated that she intended to do.
Wright J (Johnson and Wilson JJ agreeing) was of the opinion that the discount should have been 33.3%, or one third, and after consideration of additional subjective factors concluded that the starting point for the head sentence should be 10 years and 6 months rather than 12 years. After the discount of one third, the head sentence imposed by the Court of Criminal Appeal was 7 years with a non-parole period of 4 years 8 months.
In R v Luiz Diego Mouzinho de Lima [2020] NSWDC 249 a single offence of importing a border-controlled drug related to a marketable quantity of cocaine, namely 504.3 grams. The offender had agreed to receive two packages of books which contained cocaine secreted within the packages. He was to be paid $5,000 for each of the two consignments. Each consignment contained slightly less than 750 grams of cocaine but with a purity of under 60% with respect to one package and just over 65% with the second. Accordingly, the total calculated amount was 904.3 grams of pure cocaine. The maximum penalty for offending with respect to a marketable quantity is 25 years rather than life imprisonment which of course is applicable to a commercial quantity. The offender was 31 years of age and was a Brazilian National.
Her Honour Judge Noman SC made specific reference to a number of comparative cases which were provided to her. These are referred to between [40] - [46] of her Honour's remarks on sentence. A sentence of 7 years was imposed with a non-parole period of 4 years.
Before leaving references to other Commonwealth sentences it is important to note that consistency in sentencing for Commonwealth matters as between different States is a matter of considerable importance. A brief reference to tables with respect to offences committed interstate of importing a commercial quantity of a border-controlled drug contrary to s 307.1 reveals the following examples.
In R v Thathiah [2012] QCA 195, 1.45 kilograms of methamphetamine were carried into Australia in a suitcase. Following a guilty verdict after trial a sentence of 10 years with a non-parole period of 5 years was imposed.
In DPP v Peng [2014] VSCA 128, drugs were imported inside three crates. The ultimate quantity of 23.15 kilograms of methamphetamine resulted in a sentence of 11 years with a non-parole period of 7 years and 6 months after a verdict of guilty. Following a Crown appeal the sentence was increased to 13 years with a non-parole period of 10 years.
An additional NSW case of Legult v R [2014] NSWCCA 271 involved 2.033 kilograms of methamphetamine concealed in the false bottom of a suitcase. Following a 25% discount for a plea of guilty, a sentence of 9 years, 4 months with a non-parole period of 6 years was not interfered with on appeal.
A further matter involving a courier carrying drugs in a suitcase was R v Agboti [2014] QCA 280. The 23-year-old courier imported 2.32 kilograms of methamphetamine. Following a plea of guilty a sentence was imposed at first instance of 11 years with a non-parole period of 5 years and 6 months. An appeal against severity was allowed and the sentence reduced to 9 years and 6 months with a non-parole period of 4 years, 6 months.
A further Queensland case was R v Banker [2016] QCA 74. A 71-year-old United States citizen carried 4.177 kilograms of methylamphetamine in a suitcase from Fiji. He was sentenced to 12 years imprisonment with a non-parole period of 8 years. An appeal against severity was dismissed.

SUBMISSIONS ON BEHALF OF THE OFFENDER

On behalf of the offender Senior Counsel reminded the Court of the effective 'checklist' set out in s 16A of Part 1B of the Crimes Act 1914 (Cth). In both his written and oral submissions Mr Lloyd KC also reminded the Court of relevant statements of principle with respect to the state of knowledge of the offender about what he was carrying and his role as a 'trusted courier'. With respect to the quantity of drug it was submitted that his role in the participation in the criminal enterprise was a more important factor than what was described as the 'mere quantity and purity' of the drugs. It was submitted that the amount of drug carried in the offender's suitcase (7.7 kilograms pure) was "at a lower level of weights that go to make up a commercial quantity." Against these submissions learned senior counsel submitted that the objective seriousness fell "below the mid-range".
For the reasons that I have indicated earlier I have come to the view that an assessment of objective seriousness places this offender towards the lower end of a broad mid-range.
With respect to contrition and remorse it was submitted that these factors were evinced by the fact of the guilty plea together with the utilitarian value of the plea. It was submitted, in the written submissions, that a 25% discount on sentence was appropriate. Reliance was also placed on the letter of apology and the expressions of remorse to the psychologist and also to the Court as justifying "an additional discount on sentence".
It was further submitted that his "relatively prior good character", non-offending since his arrest and subjective circumstances set out in the material tendered would lead the Court to a conclusion that he was unlikely to reoffend and had good prospects of rehabilitation. It was submitted that these factors, together with the findings of the psychologist would render the offender as a less appropriate vehicle for general deterrence. Reliance was placed on the decision of the Court of Criminal Appeal in DPP v De La Rosa.
It was also submitted that the offender's mental state at the time of the offending reduced his moral culpability.
The offender's age, 24 years at the time of the offending, rendered the need for rehabilitation to be given greater prominence.
Mr Lloyd KC also submitted that the offender's parents, who reside in Saudi Arabia, have suffered emotionally from their son's arrest and separation from them. It was submitted that the Court would reflect the hardship experienced by the family "by way of some modest reduction to an otherwise appropriate sentence" (see Totaan v R [2022] NSWCCA 75 at [78] - [93]).
With respect to the difficulties perceived by the offender in his upbringing, including being disciplined by his parents, and having said to have witnessed domestic violence, senior counsel relied upon Bugmy-type principles as relevant factors which should mitigate the sentence because of lessened moral culpability (see Bugmy v The Queen [2013] HCA 7).
Senior Counsel also made specific reference to the case of Lloyd v R [2022] NSWCCA 18. A perusal of the Bugmy circumstances in that case stands in stark contrast to the background described by Mr Abbas. In the matter of Lloyd, McCallum JA (Hamill and Cavanagh JJ agreeing) made reference to the sentencing judge's failure to adequately consider the offender's deprived upbringing. His Honour Judge Grant had described a "home invasion", a broad description of the offence before him, as "the first step to anarchy and the destruction of society." At para 40 McCallum JA said: "If the spectre of anarchy was the concern, consideration should have been given to the anarchy that prevailed in the applicant's home during his formative years or the destruction through a combination of mistreatment and neglect, of any real opportunity for him to develop the skills required for a healthy, functional life."
The precise factual detail to which her Honour was referring is to be found in her judgment at [22] - [23].
It is appropriate to observe, as I did during Mr Lloyd KC's oral submissions, that the present matter is substantially removed from the factual circumstances upon which the Bugmy-type principles were derived from in Bugmy itself and similar cases such as R v Fernando (1992) 76 A Crim R 58.
Learned senior counsel also referred to the restrictions in place in NSW gaols as a result of the COVID pandemic. The hardship in custody that such restrictions have created is a relevant factor to be taken into account as part of the instinctive synthesis and I will do so.
Against the above factors it was submitted on behalf of the offender that "for all the reasons stated above" a term of imprisonment should be imposed "with a non-parole period of around 2 years".

SUBMISSIONS ON BEHALF OF THE CROWN

I should note, having referred to the specification of a numerical figure by senior counsel for the offender, that the learned Crown Prosecutor appropriately submitted that, in the Crown's view, an acceptance of that specific submission would lead this Court into appellable error.
In the Crown's submission the Court would find beyond reasonable doubt that the offender had actual knowledge of what he was in fact importing. His role was described as "crucial to the enterprise" and "essential in facilitating the importation of methamphetamine into Australia".
The Crown in due course conceded that the evidence did not establish that the offender actually knew the quantity of the drug he was importing.
The Crown submitted that the significance of the principles of general deterrence and denunciation supported the need for an appropriate sentence to be of such a severity that it would act to deter others from engaging in activities to import illegal drugs. The Crown's written submissions appropriately reminded the Court of relevant statements of principle in a substantial number and variety of cases.
The Crown acknowledged the significance of the plea of guilty and the utilitarian benefit of such a plea.
The Crown's submissions noted that the offender had been subject to a Community Corrections Order at the time of his offending. The Crown also pointed to the previous uncharged drug transactions which demonstrated that the offending was not an aberration or isolated conduct.
The Crown reminded the Court that the prospect of deportation is entirely a matter for the executive government and has no role to play in the determination of the non-parole period.

DETERMINATION

I have indicated my findings with respect to a number of relevant factors in the course of these Remarks. I find that the offender was a trusted courier who had developed an involvement in the so-called drug world during his time in Australia preceding his trip to Fiji. He undertook an illegal importation requiring him to carry a suitcase containing illicit substances back into Australia. He did so for reward.
The uncharged acts which demonstrate involvement with drugs and his assertions variously that this was the "second time' and also that this would be the 'last one', do not operate to aggravate the otherwise appropriate sentence but do contextualise his relationship with the person "007Mic" and provides material which might justify a conclusion that his state of knowledge must, at least, have been a very high suspicion that drugs were involved.
As I have already indicated, despite the Crown's submission to the contrary, I fall short of satisfaction beyond reasonable doubt that Mr Abbas had actual knowledge that it was drugs. However, all of the surrounding circumstances clearly demonstrate a very high degree of recklessness with respect to the substantial risk that he was actually carrying drugs. I have already referred to the weight of the pure drug which was in excess of 10 times the threshold for a commercial quantity.
I take into account the subjective background of the offender, albeit that some aspects of the narrative provided to the clinical psychologist are unsworn and untested. I draw a distinction between the unchallenged factual background described in Lloyd by McCallum JA and the apparent rejection by the sentencing judge in that matter of the opinion evidence regarding moral culpability which had not been sought to be rebutted by the Crown.
Whilst I note the expressions of opinion by Ms Georges in the present matter, I accept that the offender's involvement in, as I have described it, the "drug world" and the financial incentive offered to him would appear to have been the primary cause and motivation for his commission of the offence.
While I take cognisance of his subjective background as described, I am not satisfied that Bugmy-type considerations have any significant role to play in the determination of an appropriate sentence.
Whilst exercising some degree of reserve regarding the level of his remorse and contrition, I do take the entering of a guilty plea and his expressed remorse in his letter to the Court, albeit unsworn, and his description to the psychologist, into account. An appropriate discount on the sentence should accordingly be 25%.
I take into account his relative youth and his dislocation from his family. The effects upon his family and also their inability to have ready access with him is an inevitable consequence of drug trafficking into Australia by a foreign national.
I am satisfied there is no alternative to a term of imprisonment.
An appropriate starting point, taking into account all relevant factors, is a sentence of 11 years. A discount of 25% accordingly leads to a head sentence of 8 years and 3 months.
Such a sentence will commence on 28 October 2022 and expire on 27 January 2031. The non-parole period will be a period of 4 years and 6 months. That will of course commence on 28 October 2022 and accordingly will expire on 27 April 2027.
The legislative provisions require the explanation in simple terms of the effect of a parole order. On occasion in the Court of Criminal Appeal that has been determined to be not necessary given the inevitability of deportation.
However, I should say this Mr Abbas, if the executive government determines that you can stay in Australia following your release you will be subject, upon release to parole, to conditions which will include a requirement that you be of good behaviour. Should you breach the conditions of such a parole order you may be required to serve the balance or some part of the outstanding sentence.
It is likely, I must say, that the executive government, unless circumstances change dramatically, are likely to revoke any visa that you are eligible for and to order your deportation which would mean inevitably that on your release you would likely go into an immigration facility. They are matters for the executive government and not for me.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2024

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