Younan v R

Judgment 1HOEBEN JA : I agree with Latham J. 2LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Flannery SC DCJ on 17 November 2010 in respect of two counts of importing a marketable quantity of heroin, pursuant to s 307.2 (1) of the Criminal Code (Cth). The offence carries a maximum penalty of 25 years imprisonment. 3The applicant was convicted after trial. On the first count, her Honour imposed a term of 5 years and 9 months imprisonment. On the second count her Honour imposed a term of 6 years and 2 months imprisonment. The sentence on count two was accumulated on the sentence for count one to the extent of 3 months, resulting in an aggregate sentence of 7 years and 5 months. Her Honour set an aggregate non parole period of 4 years and 6 months. 4The applicant alleges error in the manner in which her Honour dealt with the application of what has come to be known as the Ellis discount (R v Ellis (1986) 6 NSWLR 603). Further, the applicant alleges error in her Honour's failure to find that the applicant was remorseful. Finally, the applicant complains that the sentence is manifestly excessive and that a lesser sentence is warranted in law. 5The circumstances of the applicant's offending fall within a short compass. The applicant travelled to Thailand on two occasions at the request of a co-offender, Sam Isaac, in January and March of 2009. On the first occasion, the applicant returned to Sydney, wearing a pair of shoes that were provided to him in Thailand and which concealed 537 g of pure heroin. 6On the second occasion, the applicant aided and abetted the importation by a co-offender, Akram Hanna, of 642 g of pure heroin, secreted within a pair of shoes worn by Mr Hanna, by recruiting Mr Hanna, making travel arrangements for himself and Mr Hanna, travelling to Thailand with Mr Hanna and Mr Isaac, and assisting Mr Hanna at Bangkok Airport for his return to Sydney. The applicant was also provided with shoes that contained a quantity of heroin. It was proposed that the applicant would return to Sydney on a separate flight. When it became apparent that Mr Hanna had been arrested at Sydney airport, the applicant refused to continue with the planned importation and returned the shoes to Mr Isaac while still in Thailand. When the applicant returned to Australia, he sought and received $10,000 from Mr Isaac in order to conceal his knowledge of the drug importation activities of Mr Isaac and others. 7Following a conversation with Mr Isaac, wherein it was intimated that the applicant might be in jeopardy, the applicant went to police on 12 May 2009. On that day, and again on 4 June and 2 July 2009, the applicant participated in a number of interviews. He disclosed his own involvement in those importations and the involvement of Isaac and a further co-offender, Vaga, in other importations, although the applicant insisted that at all times he believed he was importing diamonds. 8The applicant's trial was therefore conducted on the basis that he was not aware of a substantial risk that the substance secreted in the shoes was a border controlled drug. The jury having rejected that defence, her Honour sentenced the applicant on the basis that he was aware that there was a substantial risk. 9The extension of some leniency to the applicant, pursuant to the decision in Ellis, therefore arose in somewhat unusual circumstances. The Crown accepted that at the time of the applicant's disclosure to the police, his involvement in the importations had not, and was not likely to come to the attention of the authorities.