R v El Hani

Court of Criminal Appeal (NSW)|2004-05-21|Before: Simpson J, Bell J, Howie J

The applicant ought to have received a lower sentence than a co-accused Maurice Charles Shepherd, sentenced by his Honour Judge J.X. Gibson [on] 8 November 2002 and appeal heard by this court on 16.10.2003; R v Shepherd [2003] NSWCCA 287.

Ground 1 Effect of assistance on the family 55 Section 16A(2)(p) of the Crimes Act (Cth) requires the court to take into account when passing sentence:

the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

It has been held that this requirement must be read in accordance with the common law limit placed upon the relevance of the effect of a sentence on persons other than the offender, so that the effect of a prison sentence on the family of the offender can be taken into account as a mitigating factor only in exceptional, very special or extraordinary circumstances; R v Herrera (NSWCCA, unreported, 6 June 1997). There has been no consistency in the epithet used to describe the nature of circumstances that would permit this factor to be taken into account. 56 During the course of his remarks on sentence, his Honour said:

Senior Counsel has called the offender's wife and his daughter who had flown from Lebanon to speak of his background and character. I accept their evidence. The Court acknowledges that they will be left in a difficult, if not parlous situation both physically and financially if the prisoner gives evidence against the Sukkars whose clan, it appears, still lives nearby. But it has to be borne in mind that for this to in some way mitigate the sentence, circumstances must be so extraordinary as to warrant a reduction, and I am not of a view that their evidence, individually or in combination, reaches that point. 57 It is submitted by Mr Byrne SC for the applicant that this statement reveals an error because his Honour misunderstood the relevance of the evidence of the wife and daughter and the effect to which it could be given when determining the sentence to be imposed upon the applicant. It was conceded that his Honour could not take into account the effect of the sentence upon the family for the purposes of s 16A(2)(p) because of the unchallenged finding that "his wife and children will of course suffer but to no greater degree than the family of any other criminal". But it was submitted that s 16A(2)(p) did not govern the situation in respect of the effect upon the family of the assistance given by the applicant to the authorities. It was submitted that in such a case there was no requirement that the circumstances be "extraordinary". 58 It should be noted that s 16A(2)(p) is only concerned with the impact of the sentence upon the offender's family; that is the impact of the offender being imprisoned for a specific term, or at all. The provision, and the limit placed upon it, is not concerned with some other relevant consideration arising in the course of sentencing the offender that has some bearing upon his or her family and may impact upon the sentence to be imposed. In particular, there is no principle that limits the court's consideration of the effect upon the offender's family of the fact that the offender has co-operated with the investigating or prosecuting authorities. 59 The Crown has not suggested that a court could not take into account the impact upon the offender's family as a consequence of the assistance given. The opening words of s 16A(2) make it clear that the list of matters contained in that subsection are not the only matters a court can take into account in determining the appropriate sentence. Rather they are matters that the court is required to take into account if relevant and known to the court. 60 I note that one of the matters the court is to take into account when applying the provisions of s 23 of the Crimes (Sentencing Procedure) Act when exercising state jurisdiction, is by s 23(2)(h):

any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist. I cannot see any reason why such a consideration should not be taken into account in determining the discount to be granted to a federal prisoner by reason of his or her assistance to the authorities. The fact that such a matter is not referred to in 16A(2) does not prevent a court exercising federal jurisdiction from having regard to it. 61 His Honour was in my view in error in holding that he could not take into account as a matter of mitigation the effects upon the applicant's family of his assistance to the authorities because it was not sufficiently exceptional or extraordinary. However, whether that error is material depends upon a consideration of the next ground of appeal.

Ground 2 - Discount for assistance 62 Judge Shadbolt indicated that he was giving the applicant a discount of 12½ per cent on account of the assistance that he had given to the authorities. In that regard his Honour stated:

His assistance to the Crown has been limited in the way which has been expressed by Detective (sic) Watt. Nevertheless, despite his dishonesty in relation to his own involvement, he has made himself available to assist the Crown in the cases against Sukkar and others. The Crown does not intend to use him but nevertheless, this will of course result in his sentence being served under strict protection and that will be taken into consideration. 63 It is submitted that the discount was inadequate having regard to the following: the assistance had been given early in the investigation; it involved both the present and a past offence committed by his co-offenders; the assistance was useful in that it supported other material that the investigators had in their possession; it placed the applicant in jeopardy from other prisoners and resulted in his being placed in protection; it impacted upon the applicant's family. 64 Although the applicant had offered to give evidence for the prosecution against Sukkar and others, the Crown did not take up that offer. The reason for the Crown's disinclination is clear when regard is had both to the applicant's statement made to police and his evidence before Judge Shadbolt: he was a dishonest witness in regard to the events surrounding the importation, at least so far as his own involvement in it was concerned. It was the quintessential example of the unreliability of the evidence of an accomplice who seeks to downplay his part in an offence possibly at the expense of others. 65 In this case there was no discount appropriate for future assistance based upon the fulfilment of a promise or undertaking to give evidence. In that circumstance there was no need for the judge to specify separate and distinct discounts for the plea and the assistance. In many, if not most, cases it will be inappropriate to do so because there is the real possibility that an element of double counting will arise so that the overall discount will be inappropriately high. 66 Prior to R v Thomson and Houlton (2000) 49 NSWLR 383 it was the almost invariable practice for a sentencing judge to indicate that a single discount was being given for both the plea and the assistance. This was because there is a significant overlap between the factors reflected by the plea, contrition, rehabilitation and assistance. In R v Gallagher (1991) 23 NSWLR 220 at 227-228 Gleeson CJ said:

…………..It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. 67 After referring to a number of authorities concerned with the specification and quantification of a discount for assistance and the requirements of s 21E of the Crimes Act, the Chief Justice stated, at 230:

A judge who extends leniency on the ground here in question should say that this is being done and why. However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice. 68 A situation where it might not be appropriate or possible to specify the discount is a case where the assistance cannot be identified as a discrete matter, distinguishable and quantifiable, without regard to other mitigating subjective factors. This will generally be so where the assistance follows a plea of guilty and is part of the process of remorse, reform and rehabilitation. 69 The guideline judgment in Thomson and Houlton was not intended to change the established practice in that regard. The guideline specifically recognised at [160(ii)] that, in cases involving assistance to the authorities, a single combined quantification of a discount for both the plea and assistance "will often be appropriate". 70 However, in the present case his Honour found that there was no remorse and that the applicant had not acknowledged, even in evidence, that what he had done was wrong. His Honour concluded that the applicant "might well be rehabilitated". In those circumstances, which will be relatively rare, it was not necessarily inappropriate for the sentencing judge to indicate the discount for assistance as separate and distinct from the purely utilitarian value of the plea. However, as was indicated in R v NP [2003] NSWCCA 195, in a case where it is appropriate to specify individual discounts for the plea and assistance, the discount for the latter is not added to the discount for the former. The discount for assistance is applied to the balance of the sentence after the discount for the plea has been taken into account. In this regard his Honour erred in favour of the applicant. 71 The range of discount normally appropriate for assistance has been held to be 20 per cent to 50 per cent. The cases usually cited for support for such a range include Cartwright (1989) 17 NSWLR 243 and R v Chu (NSWCCA, unreported, 16 October 1998). In Chu the Chief Justice noted that English authorities supporting a range up to two-thirds had not apparently been followed in this State. It should be noted that Cartwright and Chu were both decided before Thomson and Houlton and were cases where the discount for assistance included the benefit to be received for a plea of guilty. 72 In his submissions Mr Byrne suggested that a discrete discount for assistance could amount to 50 per cent or more, in addition to a discount for the plea. I doubt the validity of that submission. However, I am aware, from a matter coming before me at first instance, that a District Court Judge awarded, in a case of an armed robbery in company of a building society, a discount amounting to 70 percent for an early plea and assistance by cumulating the discounts. It seems to me that on its face the discount for assistance in that case must have resulted in a sentence that infringed s 23(3) of the Crimes (Sentencing Procedure) Act, regardless of the extent or importance of the assistance given. 73 I am not persuaded that it was not within his Honour's discretion to determine a discount of 12½ per cent was appropriate for what was, in effect, very limited intelligence provided to the police about the present and past criminality of his co-offenders. The applicant had despoiled the value that his assistance might have had in proof of any offence against his accomplices by his steadfastness in denying his own guilt. It is obvious that he had a much greater involvement in, not only the present offence, but also past criminal activity of the organisation in which he was involved than he was prepared to admit. The effectiveness of the assistance and its value to the authorities is a relevant consideration in assessing the extent of the discount to be given to federal offenders: R v Barrientos [1999] NSWCCA 1 at [47]. 74 In Chu the Chief Justice indicated that a guideline judgment might be appropriate in respect of the quantification of a discount for assistance. It seems to me, with respect, that, if sentencing courts are going to regularly depart from what was considered to be the range of appropriate discount for assistance, including a plea of guilty, of not more than 50 per cent, the time is now ripe for a reconsideration by the Directors of Public Prosecutions of the need for a guideline judgment to determine the appropriate range in the light of Thomson and Houlton. 75 Although the applicant was to spend his sentence in protection, there was no admissible evidence placed before the sentencing judge as to the nature of that imprisonment, even though the applicant gave evidence. It cannot be assumed that he is to spend his period in custody in such onerous conditions that there should be a marked diminution of the otherwise appropriate sentence; R v Mostyn [2004] NSWCCA 97, R v Way [2004] NSWCCA 131. 76 The applicant's wife and daughter gave evidence of their fears if the applicant gave evidence against the Sukkars. But he was not going to give any such evidence, as the Crown did not intend to call him. Although his Honour was in error in refusing to take into account the impact upon the family of the assistance given by the applicant, that error was not such that it made a significant difference to his Honour's assessment of the appropriate discount for the applicant's assistance. I acknowledge that it is a discount at the very lowest point in the range but I am not satisfied that Judge Shadbolt's discretion miscarried. As I have noted, the discount was made cumulative to the discount for the plea and to that extent was overly generous. 77 At the hearing of the appeal Mr Byrne tendered an affidavit as to further assistance offered by the applicant to Dutch investigators who are considering prosecution of the principals of the importation. Initially the document was tendered for the purpose of it being taken into account if this Court came to resentence the applicant. Later, Mr Byrne sought to have it received as evidence on the hearing of the appeal itself, being by way of amplification of the evidence of assistance proffered by the applicant prior to his being sentenced. On whatever basis it is received, it does not, in my opinion, avail the applicant. Again the assistance is of limited value because the applicant has not been truthful as to his own involvement. A letter from the Public Prosecutor in the Netherlands, which is part of the material now relied upon, contains the following paragraph:

With the knowledge of the situation I have at this moment, I have the impression that [the applicant] has not spoken the whole truth - apparently to conceal his own role. In all I had expected more from [the applicant's] statements. But because of his repetition, to a large extent, of what he had stated earlier his statements were nevertheless of some significance for the criminal trial in the Netherlands.

Ground 3 - Discount for the plea 78 In the course of his remarks and in reference to the discount for the plea of guilty, his Honour stated:

It is difficult to know on what basis the prisoner should have his sentence discounted for his plea of guilty. It demonstrates no show of contrition; he does not acknowledge that what he has done was wrong. It cannot be said that it saved the State a long trial nor that he has sought to assist in the process of criminal justice in this state. Four days have been required to hear this plea. Not a great deal more time would have been required for a trial on indictment. 79 It seems to be accepted by the Crown that the last sentence of this quote was an under-estimation of the time required to deal with a trial of the applicant, at least if the trials of two co-accused were to provide any guide: one trial lasted 33 days, the other 48 days. However that might be, the sentencing judge gave the applicant a discount of 12½ per cent for the plea of guilty where there was no contrition and a hearing on the disputed facts which took some part, or the whole, of four days hearing time. The issue is whether the discount was insufficient to such a degree that it fell outside his Honour's available discretion. 80 The applicant entered the plea of guilty in the Local Court but not until some six months after his arrest. Although the District Court was saved the time and expense of a lengthy trial, the applicant chose to dispute the fact of his involvement in the offence charged, notwithstanding the plea of guilty. This required a sentencing hearing, entailing the calling of two witnesses as to the accuracy of the translation of the recorded conversations. The evidence given by the applicant was appropriately rejected by his Honour and findings of fact made against him. The value of the plea was significantly diminished by the dispute as to the basis upon which the applicant was to be sentenced and it was open to his Honour to decrease the discount for the plea accordingly. 81 I am not persuaded that the discount allowed in all the circumstances of this case was inadequate to the point of error. The court is entitled to take account of the whole of the proceedings when determining the value of the plea as representing the applicant's intention to facilitate the course of justice, and it does not follow that, because the plea was entered in the Local Court, a discount of 25 per cent must be given: R v Newman [2004] NSWCCA 113. At the end of the day the applicant had the otherwise appropriate sentence reduced by 25 per cent by reason of his plea and assistance. I am far from convinced that such a discount was inadequate in the circumstances of this case.

The applicant's role 82 The sentencing judge found that the applicant was a "senior person in the organisation who played an important managerial role when the drugs had been substituted". It is contended that, because the applicant had a role to perform only after the importation of the drug, his position in the organisational hierarchy was not at a senior level. The argument is in my view without merit. 83 The applicant's plea at least acknowledged, contrary to his evidence, that he was knowingly concerned in the importation. It may be that, as Agent Watt acknowledged, the applicant would have had no active role to play had the drugs not been substituted. But that fact alone does not mean that it was not open for his Honour to find that the applicant had a senior role in the organisation involved in the importation. It is clear that the applicant's involvement with Sukkar and the importation existed before the drugs arrived in Australia. Hence Sukkar informed him, while the applicant was in Brazil, of the fact that the drugs had been shipped. It is also significant that the applicant was at the meeting in the Netherlands where the importation was planned, even if it be accepted that his role at that time was merely to make coffee. He was informed of the result of the meeting and was generally aware of the importation prior to the drugs being shipped. 84 The applicant played an active and substantial role in discussions with those persons who were clearly the overseas principals and with Sukkar, the Australian principal, after the drugs were found to be missing. He travelled to the Netherlands for that purpose and was to come to Australia at Sukkar's expense to attempt to find out what had happened and advise him as to what had to be done to retrieve the situation. The conversations with Sukkar show that the applicant was speaking to him as at least an equal rather than as a mere underling or minion. He gave Sukkar directions and advice as to what he was to do pending the applicant's arrival. It is clear that the applicant came to Australia because the drugs had gone missing and that Sukkar was under his general authority and direction at this time. 85 In my view his Honour's assessment of the applicant's position in the organisation involved in the importation was justified having regard, firstly, to the evidence of Agent Watt as to the applicant's role, and, secondly, to the evidence of the applicant which his Honour found to be dishonest and unreliable in relation to his role in the importation. It matters little, in my opinion, whether the applicant was to receive a share of the profits of this particular importation or not. 86 It was submitted by Mr Byrne that the applicant's role was both less than a courier and less than the co-offender Shepherd's. I reject the first submission and the second brings me to a consideration of the ground of appeal concerned with the alleged disparity between the sentence imposed upon Shepherd and that imposed upon the applicant.

Disparity with Shepherd 87 It will be recalled that Shepherd had a role in transporting the container in which the drugs had been shipped from Brisbane to a garage where the contents were to be stored. He helped to unpack the container and took some of its contents to Concord West. He also had previously assisted by preparing false documentation to have the cargo cleared through Customs. Judge Gibson, who sentenced Shepherd, found that, although he did not know the nature or amount of the drugs involved, he was a key figure in the importation and vital to its success. 88 It seems to me that there is little value in undertaking a detailed comparison of the roles played by Shepherd and the applicant, as they were so different. Although Shepherd was involved directly in the importation of the goods, he clearly did not have any role in the organisation behind the importation. For example, he did not have access to the persons who were the principals in the organisation either in Australia or in the Netherlands, as did the applicant. In any event the starting sentence chosen by Judge Shadbolt before the application of any discounts was 30 years and that chosen by Judge Gibson in respect of Shepherd was 32 years. 89 The major disparity between the sentence imposed upon the applicant and that imposed upon Shepherd derives from the discount accorded to the latter for his plea and assistance. Shepherd was given an overall discount by Judge Gibson of 33 per cent and that, together with the s 16G discount, resulted in a sentence of 14 years with a non-parole period of 9 years. However, after a successful appeal to this Court on the ground that the discount for plea and assistance was inadequate, Shepherd was sentenced to imprisonment for 11½ years with a non-parole period of 7 years and 4 months. This sentence was calculated on the basis of a discount for the plea and assistance of 45 per cent. The Court indicated that had it not been for the offer of future assistance, the sentence would have been one of 16 years 9 months with a non-parole period of 10 years 9 months. 90 At the hearing of Shepherd's appeal the Crown conceded both that Shepherd might have expected a higher discount for the plea and assistance he had given to investigating police and that the starting sentence chosen by Judge Gibson was at the very top of the range. The assistance given by Shepherd was described by investigating police as "moderate". Not only was he prepared to give evidence against other participants in the importation with whom he had contact, but he also gave detailed information to the police that extended past the offence with which he was charged. Unlike the applicant, he had made full and frank disclosure of his involvement in the importation, and, therefore, his offer to give evidence for the Crown was of real value. Further, there was fresh evidence admitted on the hearing of the appeal and after the Court had reserved as to Shepherd's continuing assistance to the authorities. 91 In my opinion there is no basis for the assertion that the applicant could have any justifiable sense of grievance by reason of the sentence imposed upon Shepherd. The difference in their respective sentences was due largely to the difference in the superior quality of the assistance, both given and offered, by Shepherd. It should be noted that the assessment of both the value of assistance and the appropriate discount fall within the general sentencing discretion exercised by a sentencing judge. This Court's power to interfere with those assessments is constrained by the normal limitation imposed upon appeals from discretionary judgments. 92 As I believe there is insufficient merit in any of the grounds of appeal to warrant this Court's intervention. I would grant leave to appeal but dismiss the appeal. **********

Last Modified: 05/27/2004 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.

CITATION : R v El Hani [2004] NSWCCA 162 HEARING DATE(S) : 23/04/2004 JUDGMENT DATE : 21 May 2004

CATCHWORDS : Criminal Law and Procedure - Sentencing - Discounts for plea and assistance - impact of assistance on family of offender - whether disparity with sentence for co-offender. Justices Act 1902 - s 51A (now repealed) LEGISLATION CITED : Customs Act 1901 - s 233B(1)(d) Crimes Act (Cth) 1914 - ss 16A(2)(p), 21E Crimes (Sentencing Procedure) Act 1999 - s 23 R v Shepherd [2003] NSWCCA 287 R v Herrera (NSWCCA, unreported, 6 June 1997) R v Thomson and Houlton (2000) 49 NSWLR 383 R v Gallagher (1991) 23 NSWLR 220 R v NP [2003] NSWCCA 195 CASES CITED : R v Cartwright (1989) 17 NSWLR 243 R v Chu (NSWCCA, unreported 16 October, 1998) R v Barrientos [1999] NSWCCA 1 R v Mostyn [2004] NSWCCA 97 R v Way [2004] NSWCCA 131 R v Newman [2004] NSWCCA 113 PARTIES : Regina v Antoun El Hani FILE NUMBER(S) : CCA 060461/03 COUNSEL : R. Bromwich - Crown P. Byrne SC with M. Thangaraj - Applicant SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Leary and Company - Applicant

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