El Jamal v R

Case •

[2021] NSWCCA 105

•

26 May 2021

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: El Jamal v R [2021] NSWCCA 105
Hearing dates: 7 May 2021
Date of orders: 26 May 2021
Decision date: 26 May 2021
Before: Payne JA at [1];
Garling J at [62];
Wright J at [67].
Decision:

(1) Leave to appeal granted;

(2) Appeal allowed;

(3) Sentence imposed on 1 May 2019 quashed and in lieu thereof the applicant is sentenced to imprisonment for 11 years and 2 months to commence on 31 March 2016 with a non-parole period of 7 years and 3 months.  The applicant will first be eligible for parole on 29 June 2023.

Catchwords:

SENTENCING – appeal against sentence – where applicant pleaded guilty to offence of attempting to possess a border controlled drug – where Crown relied on facts which it said proved applicant was running a drug importation operation – where sentencing judge made findings that applicant was running the collection phase of a drug importation operation – whether sentencing judge impermissibly took into account the applicant’s complicity in importation by way of aggravation

Legislation Cited:

Crimes Act 1914 (Cth), Part IB, ss 16A(1), 16A(2), 16BA, 17A

Criminal Code Act 1995 (Cth), ss 11.1, 307.5(1), 307.6(1)

Cases Cited:

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Balloey v R [2014] NSWCCA 165

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208

Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

R v Bousehjin [2003] NSWCCA 86; (2003) 140 A Crim R 310

R v Ferrer-Esis (1991) 55 A Crim R 231

R v Guiu [2002] NSWCCA 181; (2002) 129 A Crim R 387

R v Lamella [2014] NSWCCA 122

R v Laurentiu (1992) 63 A Crim R 402

R v Lawless (Court of Criminal Appeal (NSW), 24 June 1994, unrep)

R v Phelps [2018] NSWCCA 191

R v Tranter (No 2) (2014) 119 SASR 480; [2014] SASCFC 66

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Tu v R [2011] NSWCCA 31; (2011) 205 A Crim R 566

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:Principal judgment
Parties: Fadi El Jamal (Applicant)
Crown (Respondent)
Representation:

Counsel:
T Game SC with P Lange (Applicant)
S Buchen SC with G Westgarth (Crown)

Solicitors:
Colin Daley Quinn Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2016/98482
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the disclosure of the contents of the envelope described as “Confidential” and marked as “Exhibit A” in the appeal proceedings and the publication of [6(4)], [7], the first line of the first sentence in [8], [40], [50]-[52] (together with headings to those paragraphs), the last sentence of [56], the second sentence of [59] and [61] of this judgment is prohibited.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:

[2019] NSWDC 153

Date of Decision:
01 May 2019
Before:
Haesler SC DCJ
File Number(s):
2016/98482

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug; methamphetamine, with a pure weight of 3,771.5 grams. A further charge was taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth), namely attempting to possess a marketable quantity of an unlawfully imported border controlled drug; cocaine, with a pure weight of 643 grams.

At the sentencing hearing, the Crown relied on facts which it said proved that the applicant was running a drug importation operation. The sentencing judge made findings that the applicant was running the collection phase of a drug importation operation. The applicant sought leave to appeal against sentence on the ground that the sentencing judge erred in sentencing the applicant on the basis that he had been involved in the importation of the border controlled drug, notwithstanding that he had pleaded guilty only to the attempted possession of the drug.

The Court held (per Payne JA, Garling J and Wright J agreeing), granting leave to appeal and allowing the appeal:

  1. The facts and circumstances in which an offender commits the offence of possession (or attempted possession) of a border controlled drug may, where known, be relevant to determining the level of culpability of the offender. But the identification of the precise nature of an offender’s involvement is not an essential aspect of the sentencing process: [24] (Payne JA), [64] (Garling J), [67] (Wright J).

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, discussed and applied.

  1. To the extent that evidence relevant to the process of importation may also be relevant to the charge of possession, there is no inconsistency with Olbrich in taking it into account. However, a number of the earlier authorities which permit the sentencing judge to take into account the entire transaction need to be treated with caution following Olbrich: [30] (Payne JA), [62] (Garling J), [67] Wright J.

El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208, applied.

  1. Care must be taken when dealing with an offence of attempt to possess prohibited imports not to make findings of fact constituting proof of importation, a distinct and different charge: [31] (Payne JA), [64] (Garling J), [67] (Wright J).

Tu v R [2011] NSWCCA 31; Balloey v R [2014] NSWCCA 165; El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208, discussed and applied.

  1. The Crown’s focus upon the applicant’s role in the importation brought into consideration the applicant’s complicity in the importation by way of aggravation. The conduct asserted by the Crown and relied upon by the sentencing judge could plainly have been made the subject of a distinct charge. Accordingly, it ought not to have been taken into account in the way that it was: [37] (Payne JA), [62] (Garling J), [67] (Wright J).

  2. Error having been found the Court is required to resentence the applicant: [39]. The appropriate head sentence is 11 years and 2 months. The appropriate non-parole period is 7 years and 3 months. The applicant will first be eligible for parole on 29 June 2023: [59] (Payne JA), [62] (Garling J), [67] (Wright J).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

Judgment

  1. PAYNE JA: The applicant pleaded guilty and was sentenced in the District Court on one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug; methamphetamine, with a pure weight of 3,771.5 grams: Criminal Code Act 1995 (Cth), ss 11.1 and 307.5(1). The offence carried a maximum penalty of life imprisonment and/or a fine of $1.35 million. A further charge was taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth), namely, attempting to possess a marketable quantity of an unlawfully imported border controlled drug; cocaine, with a pure weight of 643 grams: Criminal Code, ss 11.1 and 307.6(1). The offence had a maximum penalty of 25 years’ imprisonment and/or a fine of $1,050,000.

  2. The brief facts in relation to the principal charge were that, on 17 March 2016, Thai authorities intercepted two large boxes containing 3,771.5 grams of methamphetamine concealed in showerheads which had been consigned to LS Technical Consulting Pty Ltd in Sydney. The drugs were removed and replaced with an inert substance. The consignment was forwarded to Australia. Between 16 and 18 March 2016, the applicant contacted the logistics company clearing the shipment by telephone using the name “Anthony Harris”. The applicant was told that the consignment was being cleared by Customs.

  3. On 30 March 2016, the consignment was delivered to an address in Sussex Street, Sydney by Australian Federal Police (“AFP”) officers. A Mr Stanmore collected the consignment from Sussex Street. Early the next morning Mr Stanmore was arrested with the showerheads, a number of which had been dismantled. On 31 March 2016, an AFP member spoke with the applicant by telephone and told him that he would need to attend the AFP Sydney Headquarters as soon as possible or an arrest warrant would be sought. On 31 March 2016, the applicant sought to fly to Singapore and was arrested at the airport.

  4. The brief facts in relation to the s 16BA schedule were that on 8 February 2016, the Australian Border Force intercepted a consignment of one clock consigned to Christian Dallas. 643 grams of cocaine was concealed inside the clock. The drugs were removed and the consignment was then delivered in a controlled delivery operation. On 18 February 2016, the applicant using the name “Christian” rang the consignee and requested the consignment be redirected to an address in North Sydney. On 23 February 2016, an AFP officer telephoned the applicant purporting to be the consignee and told him the consignment had been delivered. On the same day, Mr Stanmore attended the North Sydney office and collected the consignment.

The sentencing judgment

  1. The sentencing judge found that it had been established beyond reasonable doubt that:

  1. the applicant was “involved in running the collection phase of a drug importation operation, which included the importation of the LS Technical consignment”;

  2. the applicant was assisted by Mr Stanmore and recruited another man in the attempted possession of the consignment. That second man was tasked with supervising Mr Stanmore in relation to collecting the consignment;

  3. the applicant took considered steps to avoid detection;

  4. he used others in this endeavour;

  5. he was expecting to recover the drugs from the consignment;

  6. his motivation was purely financial; and

  7. if distributed, sums of over $1,000,000 would have been generated.

  1. The sentencing judge took the following additional matters into account when sentencing the applicant:

  1. the scheduled matter, which required a substantial increase in sentence: at [91] of the sentencing judgment;

  2. the maximum penalty, noting that “anyone criminally involved to the degree proved here must be subject to a significant and telling penalty, and that penalty must involve imprisonment for some time”: at [93];

  3. the utilitarian value of the guilty plea, which supported a 20% reduction of the sentence: at [94]-[95];

  4. [Redacted by order of the Court];

  5. hardship experienced in custody: at [100]-[105];

  6. parity and proportionality as compared to Mr Stanmore’s sentence, noting that there can be reasons why one offender is less objectively culpable than others involved, and role and position in the hierarchy are often determinative of penalty in “importation matters”: at [106]-[107]; and

  7. the applicant’s criminal history, which warranted a more severe penalty with additional focus on retribution, deterrence and the protection of society: at [108].

  1. [Redacted by order of the Court]

  2. [Redacted by order of the Court] [T]he sentencing judge imposed a sentence of 14 years’ imprisonment to commence on 31 March 2016 with a non-parole period of 9 years and 8 months to expire on 30 November 2025.

  3. The applicant sought leave to appeal against sentence on two grounds:

  1. his Honour erred in sentencing the applicant on the basis that he had been involved in the importation of the border controlled drug, notwithstanding the fact that he had pleaded guilty only to the attempted possession of the drug; and

  2. the sentence imposed was manifestly excessive.

Ground 1

  1. The essence of the applicant’s submission was that, although the applicant had been charged with the offence of attempting to possess a border controlled drug, the sentencing judge sentenced the applicant as if he had also been found guilty of the offence of attempting to import a border controlled drug.

  2. The applicant submitted that so much could be seen from a number of references made by the sentencing judge:

  1. after having recited the charge to which the applicant had pleaded guilty, the sentencing judge characterised the offence as a “commercial importation offence”;

  2. when referring to the sentence of the co-accused, Mr Stanmore, the sentencing judge said that he had been sentenced “for his role in the commercial importation of methamphetamine” whereas Mr Stanmore had in fact pleaded guilty to the same offence as the applicant;

  3. when noting that “the Prosecution case is that in March 2016 [the applicant] was involved in organising and facilitating the importation of the drug”; and

  4. in relation to the matter on the s 16BA schedule, when stating that “it is alleged that [the applicant] was a principal in this importation”.

  1. The applicant submitted that the sentencing judge’s descriptions of the prosecution case were consistent with what were noted to be areas of dispute, indicated by the colour blue in the agreed statement of facts. For example, it was noted in the agreed statement of facts that the applicant disputed that he was “involved in organising and facilitating the importation of the LS Technical consignment”.

  2. The applicant submitted that these findings made clear that the sentencing judge was proceeding on the basis that the applicant had been involved in the importation, and his involvement was not limited to the “collection phase”.

  3. The applicant also submitted that the sentencing judge’s misapprehension was demonstrated when taking into account considerations relevant to sentencing. For example, the sentencing judge said:

“[107]   Different personal and criminal histories may justify a real difference in the time each will serve in prison. There can be reasons why one offender is less objectively culpable than others involved: Johnson v R [2010] NSWCCA 124. This case provides an example. Role and position in the hierarchy are often determinative of penalty in importation matters. Proper application of the parity principle does not necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality. In Postiglione v The Queen (1997) 189 CLR 295, Dawson and Gaudron JJ pointed out that disparity is not simply the imposition of different sentences for the same offence but a question of disproportion between them.

…

[113]   It bears repeating that the importation of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that illicit drug use causes.

[114]   I am not here to give this offender or anyone else a lecture about the use of illicit drugs but it must be made perfectly clear that those who involve themselves in any way in the importation into Australia of such drugs for profit will almost inevitably end up in gaol if caught. That is how the courts are directed to deal with the significant social problems caused by illicit drug distribution into our community. It must however be recognised that not every problem can be solved by arresting or gaoling our way to a solution.” (Emphases added.)

  1. The applicant submitted that a reading of the entire sentencing judgment gives rise to the inference that the sentencing judge focused on the applicant’s role in the importation, rather than the seriousness of his attempt to possess the drug.

  2. The applicant submitted that there was no discernment of the distinction between the role of the applicant as an importer of a border controlled drug and one who attempted to possess a border controlled drug.

  3. The Crown submitted that a particular circumstance relevant to both importation and possession offences may be taken into account when sentencing for the possession offence notwithstanding that it could also have been taken into account in relation to an importation offence (with which the offender has not been charged). The following authorities were said to support the Crown’s approach: R v Ferrer-Esis (1991) 55 A Crim R 231 at 239, cited with approval in R v Lawless (Court of Criminal Appeal (NSW), 24 June 1994, unrep); El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208 at [22]; R v Tranter (No 2) (2014) 119 SASR 480; [2014] SASCFC 66 at [39].

  4. It was submitted that evidence relating to an offender’s role in the importation is relevant to the determination of the nature of the possession offence and the circumstances in which it occurred. Authority for those propositions was said to be R v Laurentiu (1992) 63 A Crim R 402 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [255]. The Crown submitted that without the wider context of the possession, the sentencing judge is unable to make an assessment of where the offence falls in terms of objective seriousness: Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46; R v Guiu [2002] NSWCCA 181; (2002) 129 A Crim R 387 at [36] per Greg James J.

  5. The Crown cited R v Phelps [2018] NSWCCA 191 in which Hoeben CJ at CL (with whom Bathurst CJ and Fagan J agreed) considered the (non-existent) role of the offender in the importation to be relevant to the assessment of the level of his culpability in relation to the offence of attempting to possess an unlawfully imported border controlled drug, in circumstances where the offender had not been charged with an offence of importation.

  6. However, the Crown conceded that error has been found in circumstances where a sentencing judge has treated the offence as aggravated by the conduct of the offender which, in fact, constituted a different and distinct but uncharged offence: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 and The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [18] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. However, it was submitted that Spigelman CJ held in El-Ghourani that insofar as Lawless, Ferrer-Esis and Laurentiu accept that the circumstances relating to the process of importation may also be relevant to a charge of possession, there is no inconsistency with Olbrich (see at [30]).

  7. The Crown submitted that the imposition of a more severe sentence by reason of the sentencing judge’s assessment of the higher culpability of the offender does not offend the principle in De Simoni.

  8. The Crown submitted that there was no error revealed in the sentencing judge’s assessment of the applicant’s role. The sentencing judge was, it submitted, bound to consider the entirety of the applicant’s involvement in the “criminal enterprise”, including his role in the importation, in order to properly assess the seriousness of the charged offence of attempted possession. The Crown submitted that the sentencing judge’s approach to consideration of the nature and circumstances of the offence, including the applicant’s role, was entirely appropriate and in accordance with the legal principles.

  9. The Crown further submitted that the sentencing judge made explicit reference to the offence for which the applicant had been convicted as an offence of attempting to possess an unlawfully imported border controlled drug and that the references to the “importation offence” must be examined in their context.

Consideration

  1. The starting point is the decision of the High Court in Olbrich. There, the High Court explained in a case where the offender had pleaded guilty to the importation of narcotics, that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Critically, the High Court explained:

“[18]   … The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged: R v De Simoni (1981) 147 CLR 383.

…

[22]   … It would have been wrong for the primary judge to sentence the respondent on the basis that he was the mastermind (or even an important member) of some larger criminal enterprise.”

  1. The Crown in the present case relied heavily on an earlier authority in this Court, Lawless, where Hunt CJ at CL (with whom Gleeson CJ and Blanch J agreed) said:

“In determining the nature of the applicant’s possession offence for the purpose of sentencing the applicant, it was appropriate for the judge to have regard to the entire transaction: Regina v Laurentiu & Becheru (at 415); including what he expected to take possession of and what he was going to do with it when he obtained possession – whether, for example, the drugs were for his own use, or whether he was in possession of them in the course of a commercial narcotic venture in which he was taking part as a middleman attached to an organized distribution chain: ibid (at 415-416); In other words, whether the possession related to that of an intermediary or principal in the course of an enterprise or whether it was merely that of an end user: ibid (at 418).”

  1. In R v Guiu, in a passage with resonance in the present case, Hodgson JA said:

“[2]   The sentencing judge noted that it would offend against the principle in R v. De Simoni (1981) 147 CLR 383 to have regard to criminality involved in crimes with which the applicant had not been charged, and undertook a very careful evaluation of the culpability of the applicant. Accordingly, when the sentencing judge found that the applicant’s ‘role in this importation’ was ‘of considerably more importance than that of Ferrer’, that should not be understood as suggesting that the judge was proceeding on the basis that the applicant could be sentenced for her role in the importation: rather, ‘importation’ there must, in the light of the judge’s reference to De Simoni, be understood as referring to the overall enterprise which included both importation and initial disposal within Australia. 

[3]   But even so, it seems to me that there was error in the sentencing judge’s analysis.  In this case, it was important to have firmly in view that the applicant was not being sentenced in respect of any role whatsoever in the actual importation of drugs, so that any finding as to knowledge or even involvement in the importation could only be used to assess her culpability in relation to the limited involvement with which she was charged, namely her attempt to obtain possession of drugs already brought to Australia.”

  1. In R v Bousehjin [2003] NSWCCA 86; (2003) 140 A Crim R 310, Spigelman CJ (with whom Buddin J agreed) emphasised at [26] that a failure to focus on the particular offence with which an offender has been charged may be inconsistent with the reasoning of the High Court in Olbrich.

  2. In El-Ghourani at [33] Spigelman CJ (with whom James J and Simpson J (as her Honour then was) agreed) said:

“[33]   … the act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of the possession itself.”

  1. It is important not to overstate what Lawless or El-Ghourani decide. Lawless is authority for a relatively narrow proposition; namely, that a particular circumstance relevant to both an importation offence and a possession offence may be taken into account upon the possession offence, notwithstanding that it could also have been taken into account upon an importation offence. The “entire transaction” and the “enterprise” referred to by the Court was the “organized distribution chain” by which the drugs, once possessed, were sought to be used. In El-Ghourani, the sentencing judge stated that she had firmly kept in mind the fact that the offender was to be sentenced only for attempting to possess the drugs:

“It is to be kept firmly in mind that the offender is not charged with importing the drugs either in this instance or at any other time. He was first charged with importation and attempt to possess the drugs. The importation charge was withdrawn because, apparently, the evidence could not support it. That the offender is not charged with importation shall mean his statement cannot be used to impose a penalty on him greater than is appropriate to the matter with which he has been charged.”

  1. Spigelman CJ at [30]-[37] of El-Ghourani was careful to explain that to the extent that evidence relevant to the process of importation may also be relevant to a charge of possession, there is no inconsistency with Olbrich in taking it into account. The Chief Justice, however, made clear at [30] that a number of the earlier authorities, again relied on by the Crown here, needed to be treated with caution following the decision of the High Court in Olbrich. Further, his Honour warned against sentencing judges shifting their focus in cases such as the present from possession.

  2. In Tu v R [2011] NSWCCA 31; (2011) 205 A Crim R 566, another case with particular resonance here, McCallum J (with whom McClellan CJ at CL agreed) held that:

“[142]   The Crown submitted that it was appropriate for the Judge to have regard to ‘the entire transaction’. As correctly noted on behalf of the applicant, however, that approach must yield to the principle stated in De Simoni. To the extent that the entire transaction brought into consideration complicity in the importation by way of aggravation, such conduct could plainly have been made the subject of a distinct charge and accordingly ought not to have been taken into account.”

  1. In Balloey v R [2014] NSWCCA 165, Adams J (with whom Hoeben CJ at CL and Hall J agreed) surveyed the relevant authorities and explained that the distinction between permissible and impermissible uses of evidence regarding an offender’s role in an importation when only possession is charged “is not always an easy one to make”. What was critical in finding error in Balloey was that the sentencing judge referred to the offending as involving a massive importation:

“[24]   … However, the emphatic inclusion as incident of the offence for which the appellant was facing sentence of the fact that it ‘involved a massive importation’ to my mind mandates the conclusion that, indeed, his Honour regarded the importation of the drugs as part and parcel of the criminality of the offence with which the appellant was charged and for which he was being sentenced.” (Emphasis in original.)

  1. In the present case, the Crown sought factual findings, in terms, that the applicant “was running a drug importation operation”:

  1. “EL JAMAL was involved in organising and facilitating the importation of the LS Technical consignment. EL JAMAL utilised DOHERTY and STANMORE to collect the consignment after it arrived in Sydney”;

  2. “STANMORE had been issued instructions by a person known as COSMO on behalf of EL JAMAL. STANMORE then delivered the consignment to EL JAMAL. EL JAMAL opened the package to reveal a clock. He opened the clock, and the clock was empty”;

  3. “EL JAMAL was the person who made these calls. The number 0405 xxx was used by the person to communicate with A-Sonic Logistics. This is the number EL JAMAL used to call DHL on 18 February 201[6]”;

  4. “The person who sent the email was EL JAMAL. The contents of the email included the number 0405 xxx. This is the number EL JAMAL used to call DHL on 18 February 2016”; and

  5. “EL JAMAL was running a drug importation operation which included the importation of the L.S Technical Consulting consignment”.

  1. It is thus unsurprising that in his remarks on sentence the sentencing judge repeatedly referred to the offences as being a “commercial importation offence”. In his dispositive reasoning, the sentencing judge stated:

“Determination – conflict of evidence

[88]   Reviewing what was said against the objectively established or admitted evidence what I am left with is this. I do not accept the offender’s version of events. I can accept Stanmore’s evidence but my focus must be on the evidence relating to charges before me for sentence. Other possible crimes and matters relating to the funding of a lavish lifestyle was not led to show other than that this offending was not isolated and to rebut suggestions El Jamal was an innocent dupe of others.

[89]   It cannot be shown beyond reasonable doubt, nor was it seriously suggested, that El Jamal was responsible for running the entire importation operation. He was involved with others and his exact role in relation to them is unknown.

[90]   It has been established beyond reasonable doubt that:

(1)   El Jamal was involved in running the collection phase of a drug importation operation, which included the importation of the L.S Technical consignment.

(2)   El Jamal was assisted by Stanmore and recruited Doherty in the attempted possession of the L.S Technical consignment. Doherty was tasked with supervising Stanmore in relation to collecting the LS Technical consignment.

(3)   El Jamal took considered steps to avoid detection.

(4)   He used others in this endeavour.

(5)   He was expecting to recover the drugs from the consignment.

(6)   His motivation was purely financial.

(7)   If distributed considerable sums would have been generated – over $1,000,000.” (Emphases added.)

  1. I reject the Crown’s submission that paragraph 88 is a statement of a limiting principle referring to the attempted possession offence of the kind made by the sentencing judge in El-Ghourani. The paragraph refers in terms to other crimes relating to the funding of a lavish lifestyle, which is a clear reference to earlier findings by the sentencing judge relating to unexplained sources of wealth.

  2. Paragraph 89 addressed the repeated contentions of the Crown that the applicant was responsible for the importation operation. Paragraph 90 contains a dispositive finding making clear that the applicant was being sentenced on the basis that he was running the collection phase of a drug importation operation, which included the importation of the LS Technical consignment; that is, the “entire transaction” urged as relevant by the Crown brought into consideration complicity in the uncharged importation by way of aggravation.

  3. In fairness, as I have explained, the sentencing judge was responding to the repeated urgings of the Crown to make findings about the applicant’s complicity in an importation offence. I have concluded that the Crown’s focus upon the applicant’s role in the importation, with which he was not charged, under the guise of considering “the entire transaction”, brought into consideration the applicant’s complicity in the importation by way of aggravation. Considering the sentencing judgment as a whole leads me to infer that the sentencing judge focused impermissibly on the applicant’s role in the importation, rather than the seriousness of his attempt to possess the drug. The conduct asserted by the Crown and ultimately relied upon by the sentencing judge could plainly have been made the subject of a distinct charge. Accordingly, it ought not to have been taken into account in the way that it was.

  4. Whilst the distinction required to be drawn by the authorities is not always an easy one to make, I have concluded that the sentencing judge fell into error on this ground. Whilst it is true, as the Crown submits, that in some places in the judgment the sentencing judge made explicit reference to the offence for which the applicant had been convicted, the frequency with which his Honour referred to the “importation offence” and the importance given to the findings about the applicant’s role in the importation in the judgment have persuaded me that error has been established.

  5. Error having been found, Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 requires this Court to resentence the applicant and, unless it is concluded that no lesser sentence is warranted in law, to pronounce that new sentence. In those circumstances it is unnecessary and undesirable to address ground 2 of the appeal which relates only to the length of the sentence which must be quashed. Since writing this judgment I have read the additional observations of Garling J. I agree with his Honour’s remarks.

Resentence

  1. [Redacted by order of the Court]

  2. Bearing in mind the decision of the High Court in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32, I will adopt the sentencing judge’s findings save where expressly identified.

  3. The applicant is to be sentenced for an offence against Commonwealth law and the Court is required to apply the terms of Part IB of the Crimes Act. The governing principle under s 16A(1) of the Crimes Act is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. The Court must consider the matters identified in s 16A(2) of the Crimes Act, to the extent that they are relevant.

  4. The maximum penalty serves as a yardstick: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]. I take the maximum penalty into account as an important guidepost.

  5. I turn now to the list of factors I must take into account under s 16A(2) of the Crimes Act, insofar as they are relevant here.

Section 16A(2)(a): the nature and circumstances of the offence

  1. Leaving to one side the error in taking into account complicity in the importation by way of aggravation, I make the same findings as the sentencing judge about the nature and circumstances of the offence:

  1. the applicant was involved in running the drug collection operation. The quantity of the drug was significant – methamphetamine, with a pure weight of 3,771.5 grams;

  2. the applicant was assisted by Mr Stanmore and another man in the attempted possession of the consignment. That second man was tasked with supervising Mr Stanmore in relation to collecting the consignment;

  3. the applicant took considered steps to avoid detection;

  4. the applicant used others in this endeavour;

  5. the applicant was expecting to recover the drugs from the consignment;

  6. the applicant’s motivation was purely financial; and

  7. if distributed, sums of over $1,000,000 would have been generated.

Section 16A(2)(b): other offences (if any) that are required or permitted to be taken into account

  1. The existence of the admitted offending to be taken into account means that the Court should give greater weight to the need for personal deterrence and the community’s entitlement to extract retribution in the form of punishment for the admitted offending: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]. These principles were stated in relation to New South Wales legislation but have been held to be equally applicable to s 16BA of the Crimes Act: R v Lamella [2014] NSWCCA 122 at [48]; Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244.

  2. In this case, the admitted offending identified in the s 16BA schedule represents significant additional criminality which I take into account.

Sections 16A(2)(f) and (g): the degree to which the person has shown contrition for the offence and the offender’s plea of guilty

  1. A significant factor relevant to the extent of any discount or reduction in sentence is the timing of the guilty plea, and whether it was entered at the first reasonable opportunity. Here there was an early plea of guilty before the Local Court, and accordingly, the applicant should be afforded a significant discount to acknowledge his willingness to facilitate the course of justice, as well as the utilitarian value of the plea: Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [269]-[278]. The utilitarian value of the applicant’s plea of guilty is significant, given the size of the brief of evidence, the complexity of the issues and the likely length of the trial. I propose to apply the same 20% discount on the sentence which the sentencing judge applied.

  2. I take into account the applicant’s contrition, expressed in the evidence of Dr Allnutt and, I infer, from the contents of Exhibit A which also demonstrate remorse. In Xiao at [272] it is noted that “contrition and remorse are factors that are separately required to be taken into account under s 16A(2)(f). The fact that the various factors in s 16A(2) will from time to time overlap does not lessen the force of this consideration.”

[Redacted by order of the Court]

  1. [Redacted by order of the Court]

  2. [Redacted by order of the Court]

  3. [Redacted by order of the Court]

Sections 16A(2)(j) and (ja): the deterrent effect that any sentence or order under consideration may have on the person or on other persons

  1. It was common ground that general and personal deterrence are fundamental considerations in the present sentencing exercise. I take them into account.

Section 16A(2)(k): the need to ensure that the person is adequately punished for the offence

  1. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. Sentences for offences of the present kind should have both a deterrent and punitive effect.

  2. I have concluded that a sentence of full-time imprisonment is the only appropriate sentence to impose in this case. Given the gravity and objective seriousness of the offending, a significant sentence of full-time imprisonment should be the starting point before the application of relevant discounts.

Section 16A(2)(m) and (n): the character, antecedents, age, means and physical or mental condition of the person and the prospects of rehabilitation of the person

  1. The sentencing judge accepted that the applicant has Post Traumatic Stress Disorder (PTSD), an illness that will make gaol more onerous for him than others without such a condition. I too make that finding. [Redacted by order of the Court]

  2. I take into account the applicant’s prior criminal history. I find that the contents of Exhibit A are relevant to the applicant’s prospects of rehabilitation, which I find are guardedly reasonable. Those contents are consistent with the applicant seeking to change the associations and habits that have led him to his present incarceration.

Section 16A(2)(p): the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents

  1. In the absence of exceptional circumstances, potential hardship to the applicant’s family does not effect any substantial reduction in a sentence of imprisonment. I find that no exceptional circumstances exist. Accordingly, this principle was not enlivened.

Instinctive synthesis

  1. I take as a starting point 16 years’ imprisonment. [Redacted by order of the Court] [T]he head sentence is, with some rounding, 11 years and 2 months. The appropriate non-parole period is 7 years and 3 months. The applicant will first be eligible for parole on 29 June 2023. This is the minimum period in custody that offending of this gravity requires. The length of the period on parole will allow the applicant to continue to take steps towards rehabilitation.

Conclusion and proposed orders

  1. For the foregoing reasons I propose the following orders:

  1. Leave to appeal granted;

  2. Appeal allowed;

  3. Sentence imposed on 1 May 2019 quashed and in lieu thereof the applicant is sentenced to imprisonment for 11 years and 2 months to commence on 31 March 2016 with a non-parole period of 7 years and 3 months. The applicant will first be eligible for parole on 29 June 2023.

  1. [Redacted by order of the Court]

  2. GARLING J: I agree with orders proposed by Payne JA and with his reasons.

  3. These remarks are in addition to His Honour’s reasons.

  4. The authorities to which Payne JA refers make (at least) these principles clear:

  1. No one is to be sentenced for an offence with which they have not been charged: The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383;

  2. The facts and circumstances in which an offender commits the offence of possession (or attempted possession) of a border-controlled drug may, where known, be relevant to determining the level of culpability of the offender. But the identification of the precise nature of an offender’s involvement it is not an essential aspect of the sentencing process: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270;

  3. Care must be taken by prosecuting authorities in order to avoid leading a court into error when dealing with an offence, such as the one charged here, not to seek or rely on findings of fact which constitute proof of a distinct and different charge, such as facts which constitute the “entire importation transaction”, by way of aggravation of the charged offence: Tu v R [2011] NSWCCA 31; Balloey v R [2014] NSWCCA 165; El-Ghourani v R [2009] NSWCCA 140.

  1. In this case, the prosecution relied on facts which they said proved that the applicant was running a drug importation operation. His Honour was thereby led into error and sentenced the applicant on the erroneous basis that he was the principal in a phase of an operation which included the importation of an identified consignment in which it was believed there were border controlled drugs (although an inert substance had been substituted).

  2. The sentencing judge, on the urging of the prosecution, thereby fell into error. The appeal must be upheld, and the applicant resentenced as proposed by Payne JA.

  3. WRIGHT J: I agree with Payne JA and with the additional remarks of Garling J.

**********

Amendments

22 June 2023 - Coversheet, headnote and paragraphs [59] and [60]: Orders amended pursuant to s 19AHA of the Crimes Act 1914 (Cth), changing 30 June 2023 to 29 June 2023.

Decision last updated: 22 June 2023

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