R v El Hassan

[2003] NSWCCA 139

Reported Decision: 141 A Crim R 346

New South Wales

Court of Criminal Appeal

CITATION:	Regina v El Hassan [2003] NSWCCA 139
HEARING DATE(S):	5 February 2003
JUDGMENT DATE:	21 May 2003
JUDGMENT OF:	Santow JA at 1; Simpson J at 2; Smart AJ at 3
DECISION:	(1) Appeal against conviction dismissed (2) Crown appeal against sentence allowed; sentence quashed (3) In lieu of the sentence imposed Radwin El Hassan is sentenced to imprisonment for a period of 9 years 7 months commencing on 2 August 2002 with a non-parole period of 5 years 7 months expiring on 1 March 2008.
CATCHWORDS:	Attempting to possess cocaine - degree of involvement of offender - his role was critical in the intended distribution in the Austalian community - sentence imposed manifestly inadequate.
LEGISLATION CITED:	Crimes Act 1914 (Cth)
CASES CITED:	Radwin El Hassan (2001) 126 A Crim R 477
PARTIES :	Regina v Radwin El Hassan
FILE NUMBER(S):	CCA 60434/02
COUNSEL:	(A) A Bellanto QC (C) G A Farmer
SOLICITORS:	(A) Watsons (C) Commonwealth DPP

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0293
LOWER COURT JUDICIAL OFFICER :	Murrell DCJ

60434/02
60013/02

SANTOW JA

SIMPSON J

SMART AJ

Wednesday, 21 May 2003

REGINA (COMMONWEALTH) v RADWIN EL HASSAN

JUDGMENT

1 SANTOW JA: I agree with Smart AJ.

2 SIMPSON J: I agree with Smart AJ.

3 SMART AJ:

Conviction

Radwin El Hassan has appealed against his conviction of, without reasonable excuse, attempting to possess a prohibited import, namely, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine. A formal submission was made that the conviction was erroneous and should be set aside. Otherwise the appeal was not argued. The formal submission was made to preserve the offender’s rights in the event of him seeking special leave to appeal to the High Court of Australia.

4 In October 2001, the trial judge (McGuire DCJ) made a pre-trial ruling that although the Crown was required to prove that the drug imported was not less than a commercial quantity, the accused’s state of mind as to the quantity of the drug of which he attempted to obtain possession was not a question for the jury. It was not an element of the offence. The defence (or partial defence) was that he attempted to obtain possession of a quantity of cocaine for his own personal use. An appeal against the judge’s ruling was dismissed: Radwin El Hassan (2001) 126 A Crim R 477.

5 The appeal against conviction should be dismissed.

Sentence

6 Consequently, on 7 May 2002, the offender appeared at the District Court before Hosking DCJ and pleaded as follows:

“I plead guilty to the count alleging that on 12 May 2000 at Sydney New South Wales I did without reasonable excuse, attempt to obtain possession of prohibited imports to which s233B of the Customs Act applied, namely, narcotic goods consisting of a quantity of cocaine which had been imported into Australia in contravention of the said Act. To the extent that the count alleges that I attempted to obtain possession of not less than the commercial quantity applicable to cocaine, I plead not guilty and dispute those particulars.”

7 The matter came before Judge Murrell on 29 July 2002 for sentence. She gave a number of rulings as to the admissibility of various listening device tapes. The offender gave evidence to the effect that he only intended to possess enough cocaine for his personal use. He was disbelieved. Thus he suffered an adverse finding on the factual issue he litigated.

8 The Crown has appealed against the asserted inadequacy of the sentence imposed, namely, 7 years 1 month (taking into account 5 months already served) with a non-parole period of 4 years 7 months (again taking into account 5 months already served).

9 The applicant filed a Notice of Intention to apply for leave to appeal but did not proceed further.

10 At the sentence hearing, the Crown alleged that the offender was part of a joint criminal enterprise involving the importation of seventeen kilograms of pure cocaine. Twenty-eight kilograms of adulterated cocaine had been imported into Australia in a large autoclave machine contained in a crate. The offender, his brother Mark and Troy Chatman were involved in removing material which they believed was cocaine from the machine. The offender’s involvement was alleged to have been in taking the material believed to be cocaine from the machine and its storage and handling prior to its distribution.

11 The offender contended that he was not part of the joint criminal enterprise in which his brother was involved. He became aware that a large quantity of cocaine was contained in the autoclave machine and arranged with his brother to obtain ten ounces of the drug allegedly for his personal use.

12 At the conclusion of the tender of the Crown materials the offender asked the Court to determine at that stage that it could not be satisfied beyond reasonable doubt that he intended to possess not less than the commercial quantity of cocaine. The judge gave convincing reasons for declining to do so. However, in case she was wrong, she reviewed the evidence and declined to hold that the Court could not be satisfied beyond reasonable doubt that the offender intended to possess not less than a commercial quantity of cocaine.

13 The offender entered the witness box and gave evidence. He was cross-examined by the Crown for about two hours.

14 After all the evidence was complete, counsel first argued whether the judge should be satisfied that the offender intended to possess not less than a commercial quantity. The offender submitted that the judge should have some doubt about that in light of his assertion that his intention attached to a much smaller quantity. The judge undertook a careful assessment of the evidence. She took the view that the offender was neither a truthful or reliable witness. The judge found, “the offender was very much part of the operation in which his brother Mark was involved, was well aware of what Mark was up to on 11 May and was to play a role himself, as indicated by his conduct on 11th and particularly 12 May”. The judge continued:

“It is clear to me that the offender (in association with his brother Mark) was intending to take possession of the whole of the contents of the autoclave machine. I am satisfied that the Crown has proved that matter beyond reasonable doubt.”

15 There was ample material to support those findings

The Co-Offenders

16 In addition to the offender, four other men have been charged:

(a) Ali Chami has been indicted on one charge of attempting to possess not less than the commercial quantity of cocaine. His trial had not taken place at the date of sentencing.

(b) Michele Mazzitelli has been found guilty on one count of being knowingly concerned in the importation of not less than a commercial quantity of cocaine. He was sentenced to imprisonment for 19 years 8 months with a non-parole period of 12 years 4 months. He had pleaded not guilty. His appeal against conviction and sentence was dismissed by this Court on 31 October 2002.

(c) Troy Chatman pleaded guilty to one count of attempting to possess not less than the commercial quantity of cocaine (17 kilograms pure) and was sentenced on 8 September 2000 to 3½ years imprisonment with a non-parole period of 2 years. Chatman was initially prevailed upon to take part in carrying out electrical work on the autoclave machine not knowing that it was supposed to contain a prohibited drug. When he realised what was afoot he did not withdraw. Amongst other matters, he held fears for his safety. He gave an undertaking under s 21E of the Crimes Act, 1914 (Cth) and received a discount for his past and future assistance.

(d) Marouf El Hassan (Mark), the offender’s twin brother, pleaded guilty on 3 October 2001 to one count of attempting to possess not less than the commercial quantity of cocaine (17 kilograms pure) and was sentenced on 5 October 2001 to 15 years imprisonment with a non-parole period of 10 years. He entered a plea of guilty before the magistrate. His application for leave to appeal against sentence has not yet been heard.

Plea of Guilty

17 The offender initially pleaded not guilty. A two-week committal hearing took place following a request by the offender to cross-examine some 35 witnesses. He was committed for trial. In October 2001, the offender spoke to members of the Australian Federal Police. In imprecise terms, he stated that he was aware that there was cocaine at the place where he was arrested and that he intended to steal some of it. A precise amount was not specified, but it was indicated that it was less than the commercial quantity for cocaine. In evidence, the offender told the judge that the amount he was to receive was 10 ounces, which, he agreed, was worth about $28,000.

18 In October 2001, the applicant unsuccessfully asserted before the trial judge that he was entitled to have the quantity issue decided by a jury. As earlier mentioned, after he had lost his appeal to this Court he entered a plea of guilty on 7 May 2002 in the terms previously set out.

The Facts

19 During January 2000, Mazzitelli prevailed upon his brother-in-law, Christakis Anastasiou to allow him to use Anastasiou’s company, CMP Auto Electrical Engineers Limited (“CMP”) to import a cleaning machine and to provide him with CMP letterhead and business cards. About four months later, Mazzitelli told Anastasiou that the machine would be arriving, that he should not touch it or open it, that he (Mazzitelli) would arrange for an electrician to work on the machine before it was set up as a demo and that he intended to import further machines.

20 On 25 April 2000, the machine arrived at Sydney Airport having been shipped from Panama City. The airway bill nominated CMP as the consignee and specified its address. On Anastasiou being notified that the consignment had arrived, he told Mazzitelli who asked Anastasiou to arrange for a customs broker to clear the machine through Customs and pay for this out of CMP’s account. Anastasiou retained a customs broker to clear the machine.

21 On 1 May 2000, officers of the Australian Customs, on examining the consignment, ascertained that the machine contained cocaine. The Australian Federal Police seized the consignment and, upon examination, found that it contained about 28 kilograms of material containing cocaine. That material was replaced with an inert substance and the autoclave machine was reconstructed for the purpose of proceeding with a controlled delivery.

22 On 1 May 2000, Mazzitelli delivered a folder to the customs broker which contained two DHL World Wide Express envelopes in which there were operating instructions for the autoclave. On 5 May 2000, Mazzitelli provided Anastasiou with AUS$6,120 in cash for payment of the customs duty and transport fees. On 9 May 2000, Anastasiou paid the customs broker a little under $6,000 cash for the customs duty and transport fees.

23 On 10 May 2000, the consignment was delivered to CMP in Greenacre. About 9.30pm that evening, Chatman received a telephone call from Ronny Helou (an acquaintance) asking if he, Helou, could come around as he had “someone who needs you to do a job for them”. About 20 minutes later, Helou and Marouf El Hassan arrived at Chatman’s home at Liverpool. Helou told Chatman, “A guy out the front wants you to do some electrical work on a machine”. Chatman accompanied Helou to the driveway of the premises where Marouf El Hassan told Chatman that he had a machine the size of a Hyundai which needed electrical work done on it, that he would pay Chatman $5,000 and that the work would need to take place in Chatman’s driveway. Chatman agreed.

24 About 2.00pm on 11 May 2000, Marouf El Hassan arrived at CMP to collect the consignment with a tilt tow truck and driver. While at CMP Marouf El Hassan requested and obtained a black spray can and proceeded to paint over the letters ‘USA’ stencilled on the crate containing the consignment. He then borrowed a hose and watered down the crate, stating that it made it “easier to take off”. After the consignment was loaded onto the tilt tow truck, Marouf El Hassan directed that it be taken to Chatman’s premises. While at CMP, Marouf El Hassan telephoned the offender and said, “Hello, we’re here”. The offender’s initial response was, “Where the fuck’s here, man?” The conversation moved on to refer to the purchase of a Calais “diff”. Marouf El Hassan said, “When I go up I’m going to the same area”. He then said, “You’re going to laugh” and repeated that comment three times.

25 About 3.00pm that afternoon, Marouf El Hassan and the tow truck driver delivered the consignment to Chatman’s premises. The crate was unloaded. Marouf El Hassan told Chatman that the crate was to be opened. Chatman removed one side of the crate, revealing the machine. Marouf El Hassan received a mobile telephone call and told the caller to meet him at Ali’s at 3.45pm and, “We got the part”. Marouf El Hassan and Chatman put the crate back together. The former was to return the following morning. On Marouf leaving (about 3.09pm), Chatman, but a short time later, moved the crate into his garage.

26 About 6.00pm that evening, Marouf El Hassan telephoned Chatman and told him that he had his brother with him and wanted to show his brother the machine. Some minutes later, Marouf El Hassan and the offender arrived at Chatman’s premises with the former saying, “He wants to have a look at the machine”. They all went to the garage. To gain access to the machine, the offender pulled the machine and trolley away from the wall by holding the machine with his hand, pulling his sleeve down over his hand to pull the machine. Part of the crate was removed exposing one side of the machine. Chatman asked whether they should cut the machine, to which the offender replied, “We have to … just pull these pipes and stuff off”. Chatman commented that it was a sterilising machine but Marouf El Hassan said that he thought that it was for engine parts. Chatman commented that part of the machine had “been off before”, to which the offender responded, “Don’t worry about it. It’s hollow. Drill here”. The offender indicated a part of the outside of the machine which should be drilled.

27 About this stage, a man by the name of Marouet, a friend of Chatman, arrived and the conversation changed from one concerning the gaining of access to the machine to a discussion of the features of the machine. This was an attempt to conceal from Marouet the purpose of the gathering.

28 The offender told Chatman that “the cheque” for him would be brought the following day. Referring to a mobile telephone which he had provided to Chatman, Marouf El Hassan said, “we’ll take that money off the labour for the phone if you want”. The offender disputed that it was reasonable to deduct money for the phone. An arrangement was made whereby Marouf El Hassan would return the following morning to assist with dismantling the machine. The offender and his brother left.

29 On the following morning, Chatman recommenced disassembling the machine. Marouf El Hassan came to Chatman’s premises and gave him $5,000 saying, “Here’s your gorillas, told you we don’t muck around”. He requested $100 for the mobile telephone. He re-assured Chatman saying, “you’re part of the syndicate now”. He added, “my brother hasn’t slept for three or four days”.

30 The tapes of the conversations between Marouf El Hassan and Chatman reveal that access was gained to the interiors of the autoclave machine. There is virtually a “ball by ball” description as bags of cocaine material were removed from the machine. Some of the bags apparently tore as they were removed and had to be put inside other bags. Care was taken as bags were removed so as not to lose any of the material and to prevent it from being contaminated. Chatman asked Marouf El Hassan about the value of the drugs. He replied, “half is going straight away and we’re going to keep ten, going to do it slowly till the next batch comes back. You want coke, we’ll look after you”. There was a lot of bravura talk on the part of Marouf El Hassan.

31 He removed three sports bags from his car to take the bags of cocaine removed from the machine. As the two men were removing the contents of the machine, Chatman asked Marouf El Hassan where the offender was meeting them. The latter replied, “He’ll come straight, he’ll come straight here mate. You know fucking unsus Saab”.

32 About 10.45am, the offender arrived at Chatman’s premises with his employee, Ali Chami, in a white Saab. The offender and Chami went to the garage. Marouf El Hassan explained that a couple of bags ripped on the way out. They had been packed in very tightly and were hard to extract.

33 The offender’s tone of voice became authoritative as he raised the question of how they knew what the bags weighed. The offender became worried about the garage door being open and had it closed. This conversation occurred:

“Marouf: … Look that bag’s opened here.
Offender: Yeah, alright.

Chatman: They’re fucked to get out, man. It’s the hardest.
Offender: How do we know Mark … how we gunna do them all?

Marouf (Mark): You’re gunna have to get that fucking museum of your cousin to know what’s what.

Chatman: You should have smelt it when I cut the end open

…

Chatman: The whole garage smelt like it.
Offender: … (indistinct) … Is that how they are brother?

Marouf: Huh?
Offender: You sure?

Marouf: What do you mean?
Offender: Is that how they are?

Marouf: What do you mean?
Offender: Fuck. You don’t put it in like that.

Chatman: Some are in big bags. Some are in little bags.
Offender: … Do you reckon you could taste it?

Marouf: No. Not really.”

About this time, the offender tasted some of the material. The conversation continued:


“Offender: That’s not gear, man.

Marouf: What do you reckon it is?
Offender: Taste it. That’s not gear eh? No.

Marouf: It’s got junk.
Offender: That’s not – that’s not gear.

…

Offender: Mark, that’s not gear. There’s nothing bloody there.”

34 The conversation reveals mounting concern and alarm on the part of the offender as he repeated, “That’s not gear”. Chami tested the substance and said “That’s sugar”. The offender told his brother to put the bags back in the machine, stating that the substance was sugar. The offender stated, “I reckon they’ve opened them and taken them out”. While the four men in the garage were coming to grips with what had happened, the Federal Police entered.

35 Chatman immediately elected to assist the police. The offender, as was his right, declined to be interviewed.

36 The police estimated that the material seized had a street value of about AUS$7million.

37 On 22 October 2001 the offender in company with his solicitor attended the offices of the Australian Federal Police and was interviewed by the police. It was an “in confidence” interview. He stated that on the evening of 11 May 2000, his brother told him that he was going to Liverpool to see an engine cleaning machine. The offender expressed interest, believing the machine to be relevant to his car business. While at Chatman’s house he became interested in a boat there. After Marouf and he left the house his brother told the offender of the true contents of the machine. The brothers agreed that on the following day they would “pinch a bit of cocaine”, possibly ten ounces which Marouf would sell to make a bit of money on the side. The offender would keep about half an ounce for his personal use, as he was a recreational cocaine user. During the interview (Q&A 149), the offender asserted, “I wasn’t involved in the distribution of it … We weren’t the distributors. Mark was basically going to drop it off to the distributors”.

38 The judge said:

“31. In evidence, the offender said that the telephone conversation which took place at about 2pm on 11 May merely concerned a car differential. He said that when he first attended Chapman’s premises (sic) he had no idea that there were drugs in the machine. On 12 May, Mark rang the offender to say that he was at Chapman’s residence and would be leaving soon. The offender said that he was surprised when he arrived to see such a large quantity of drugs. He exclaimed, ‘What are yous doing here, do you realise what yous are doing?’ He adhered to the version of events given in the record of interview.
32. As I indicated yesterday, in my view the offender was a most unimpressive witness. He was telling the truth neither in his record of interview nor in the witness box. His version of events is inherently highly improbable. More importantly, his evidence is contradicted by the listening device evidence and that of Mr Chapman, whom I found to be a truthful, careful and most reliable witness in every significant respect. For example, there is no indication whatsoever on the tapes that the offender expressed surprise when the contents of the machine were revealed on 12 May. There is no support for his evidence concerning interest in the boat. It is clear that he was unconcerned at the revelation that the machine was a sterilising machine, not one for cleaning engines.
33. As I indicated yesterday, the offender’s direct involvement in relation to the telephone call at 2pm on 11 May, when taken with the attendances on 11 and 12 May at Chapman’s premises, is clear evidence that the offender knew that the autoclave machine contained a large quantity of cocaine, and that the offender intended to assist his brother in dealing with the whole of the contents. A very clear picture indeed emerges when all the conversations involving Marouf El Hassan and Chapman, including those in the absence of the offender, are considered.
34. I am satisfied beyond reasonable doubt that the offender attempted to possess a commercial quantity of cocaine in that he intended to exercise dominion and control over the whole of the contents of the autoclave machine. The offender intended to assist his brother in relation to delivery of the cocaine to the next person or group in the chain, which would ultimately result in street distribution of the cocaine.
35. Although the roles of the brothers were very similar, Marouf was considerably more active in progressing the importation towards ultimate distribution. He recruited Chapman, had most of the dealings with Chapman, and organised the delivery of the crate to Chapman’s premises. There is no specific evidence of the offender’s involvement beyond the dates of 11 and 12 May, in contrast, for example, to the situation of Mazzitelli, who became involved four months earlier.
36. While the role of the El Hassan brothers was critical, the listening device tapes portray them as big talkers fulfilling a limited role, rather than as highly organised master minds. Obviously, the motivation for the offender’s involvement must have been financial gain. He was not as active as his brother, who, according to the offender, was to be paid $20,000. The principals in the transaction would have expected to benefit by a vastly greater sum. On the other hand, the part played by the El Hassan brothers was far more serious than that of Chapman, although the offender’s participation was less active.”

39 At the hearing of the Crown appeal, the offender did not dispute the judge’s findings of fact.

Assistance

40 The assistance provided by the offender in relation to the subject importation and its distribution was belated and of limited value. However, the assistance provided as to an unrelated matter was described as very valuable although limited in its scope. The judge allowed a discount of 25 per cent for the plea of guilty and the assistance. The judge regarded the plea of guilty as being of very limited value. The judge recognised that any trial would have taken weeks and substantial resources. A discount of 10 per cent for the late plea and 15 per cent for the assistance were correct. The total discount of 25 per cent which allowed for the plea and the assistance was within the sound exercise of the judge’s sentencing discretion. Further, it was correct.

41 The offender was born on 23 September 1969 and had no prior relevant criminal history. He resides with his parents and younger sister. He is one of seven children. He had a financially deprived upbringing and worked part-time from ten years of age. He left school half way through Year 9, leaving school when he was 14½ years old. He has worked in numerous positions since leaving school. At various stages, he has had his own business. Both of his parents suffered work injuries and have been on pensions for many years.

42 He was drug free in July 2002 and claimed that he had stopped taking drugs in mid-2000. Within his family, he had adopted the role of eldest son providing material and emotional support for various family members.

43 Former employers, business associates and friends speak well of his character, his hard work and his willingness to help others.

44 Ms M. F. McDonald, Clinical Psychologist, provided a detailed report. She set out the family history and that of the offender in considerable detail, noting the burdens which had been imposed on the offender, especially by members of his family. The psychologist thought that the offender was suffering from an Adjustment Disorder with both anxiety and depression. He had been distressed over his considerable material and emotional losses since his arrest and over going to gaol when his family responsibilities had increased. He felt manipulated by his twin brother. He felt resourceless for the first time in his life at a time when immediate and extended family members relied upon him. The psychologist recommended that he receive psychological counselling to assist him with resolving personal conflicts and managing his considerable stress.

45 The judge’s starting point was a period of 15 years. She reduced this by one-third for the absence of remissions. Applying a discount of 25 per cent, she arrived at a sentence of 7½ years and fixed a non-parole period of 5 years. She adjusted these sentences to take into account the periods already spent in custody.

46 A major argument advanced on behalf of the Crown was that the sentence lacked parity or proportionality with that imposed on Marouf El Hassan and that this was unjustifiable in view of the judge’s findings as to the respective roles of the offender and his brother.

47 This Court pointed out in argument that the principle of parity had never been and could not be used to increase a sentence on one of two co-offenders. The principle of parity or proportionality is called into operation where an applicant has a justifiable sense of grievance in that a lower sentence has been imposed upon a co-offender and the difference between the sentence imposed upon a co-offender and that upon the offender is unwarranted or the sentence imposed upon an offender when compared with that imposed upon the co-offender lacks due proportion in that the former is too high. The principle does not operate to increase a sentence.

48 The Court re-directed the submissions of counsel for the Crown. In the end, the Crown submission was that on the facts as found by the judge, the sentence which she imposed was so low as to be unreasonable. It fell outside the sound exercise of the judge’s discretion.

49 The Crown relied on these findings:

(a) the offender “was very much part of the operation in which his brother, Mark, was involved, was well aware of what Mark was up to on 11 May and was to play a role himself as indicated by his conduct on 11th and particularly 12th May … the offender (in association with his brother Mark) was intending to take possession of the whole contents of the autoclave machine …”

(b) “… the offender attempted to possess a commercial quantity of cocaine in that he intended to exercise dominion and control over the whole of the contents of the autoclave machine. The offender intended to assist his brother in relation to the delivery of the cocaine to the next person or group in the chain, which would ultimately result in street distribution of the cocaine. … the roles of the brothers were very similar.”

50 The Crown submitted that while, correctly, the judge had regard to the sentence imposed on Marouf El Hassan she erred in holding that he should receive a higher sentence because of his more overt actions (recruiting Chatman and organising the delivery of the crate to Chatman’s premises). The Crown submitted that the offender was aware of Chatman’s recruitment and that the drugs had been delivered and that the offender had lent his services to this importation (or distribution) in the same way as his brother.

51 The Crown submitted that the offender was, like his brother, a major member of the organisation with an important part to play and highly placed in the hierarchy. The Crown contended that the evidence established that the offender:

(a) attended the scene on the first day the consignment was delivered to inspect it and directed where it should be cut open to extract the drugs

(b) after receiving a call from his brother, immediately attended at Chatman’s premises

(c) had his car reversed into the driveway (not a potent fact) and entered the garage where the cocaine was situated

(d) queried his brother about the manner in which the cocaine was packaged, and

(e) tasted the materials in the packages and determined that they did not contain cocaine; and instructed his brother to put the materials back in the machine

and that the offender had an important role to play in the distribution of cocaine. It was submitted that a sentence in the range of that imposed upon the offender’s brother was appropriate.

52 The offender submitted that the Crown had been selective in its quotations from the judge’s remarks. For example, the comment that the roles of the brothers were very similar was within a passage which emphasised that the role of Marouf was considerably more active in progressing the importation towards ultimate distribution. Further, while the judge found that the offender and Marouf had a critical role it was a limited one. She found that the offender intended to assist Marouf in relation to the delivery of cocaine to the next person or group in the chain.

53 The offender contended that the Crown submissions that the respondent was clearly aware of the recruitment of Chatman, that the drugs had been delivered and that the offender had the same knowledge of those actions as his brother were not open on the evidence. The offender became aware of the recruitment of Chatman at least as early as shortly before he resolved to go to Chatman’s premises. The offender was aware of the delivery of the drugs when he attended Chatman’s premises and it should be inferred that he became aware about 1403 hours on 11 May 2000 when he was telephoned by his brother. The evidence does not enable an earlier point of time to be fixed. Nor does it enable a Court to hold that the offender had the same knowledge of those actions as his brother.

54 The offender pressed upon this Court that considerations of proportionality required the imposition of a lesser sentence on him than on his brother.

55 The correct approach is to look at exactly what the offender did and determine the extent of his criminality and consequently the sentence. Before finally determining the sentence it is necessary to look at questions of parity and proportionality and make any necessary adjustment. Of course, this Court, as a Court of error, asks whether the evidence entitled the judge to make the findings which she did and whether the sentence imposed was within the permissible range.

56 The involvement of the offender was as follows:

(a) He was telephoned by his brother about 2.03pm on 11 May 2000 and the words used by the brother would have conveyed to the offender that the brother had possession of the drugs which had been imported. The tenor of the conversations suggests that the offender was aware that cocaine was being imported.

(b) About 6pm that evening the brother telephoned Chatman and said he had the offender with him and wanted to show the machine to the offender. About 6:05pm the offender and his brother arrived at Chatman’s premises. The three men went to the garage. The offender pulled the machine away from the wall, pulling his sleeve down over his hand to do so. The offender was involved in removing part of the crate. When Chatman enquired whether they should cut the machine the offender said that they had to “just pull down these pipes”. When Chatman commented that part of the machine had been off before, the offender told him not to worry about it.

(c) The offender ascertained which part of the machine was hollow and instructed Chatman where to drill. The offender told Chatman that the cheque would be brought the following day. The offender disputed with his brother that it was reasonable to charge Chatman for the mobile phone. In the offender’s presence arrangements were made for his brother to assist in the dismantling. The offender was present in the garage for about 23 minutes while all this took place.

(d) The fact that the offender examined the machine to find the hollow parts and directed Chatman where to drill established that the offender was playing an important part in the extraction of the cocaine from the machine so it could be delivered to the distributor. This evidence also establishes that the offender knew the drugs were coming. In his record of interview of 22 October 2001 the offender stated that his brother told him that the machine contained cocaine on the night of 11 May 2000.

(e) During the morning of 12 May 2000 while Chatman and the offender’s brother were removing the cocaine from the machine the latter spoke with the offender on the telephone and pressed him to attend at Chatman’s premises promptly. The offender did so. He was worried about the garage door being open.

(f) He regarded the way in which the “material” had been packed into the machine as incorrect. His suspicions were aroused. On tasting the material he said that it was not gear (several times). It was sugar. The offender instructed his brother to put the material back in the machine. The offender realised that “they” (the authorities) had removed the cocaine. At that stage the police entered. The offender had been in the premises about four minutes.

(g) the offender in his record of interview of 22 October 2001 said that he and his brother were not the distributors. His brother was going to drop the material off at the distributors.

57 It is apparent that the offender had some skills of value to the enterprise. He was able to locate where the machine was hollow and thus where the material was likely to be stored and where the machine should be drilled. He also realised from the manner in which the material had been stored in the machine that something was amiss. He tasted the material, concluded that it was not cocaine and deduced that the cocaine had been removed.

58 The offender’s role although limited was critical in that he was involved in the removal of cocaine from the machine so that it could be distributed in the Australian community. A very large quantity of cocaine with an estimated street value of $7 million was involved. It must be accepted that on the evidence the offender was not a principal, not an organiser and not a financier. His role was important in facilitating the release of the material (believed to be cocaine) into the community.

59 The offender was well aware of what he was doing. We do not know what reward he was to receive. The gravity of the crime cannot be denied. A starting point of 15 years was manifestly inadequate for a crime of the seriousness in question. The lowest permissible starting point was 20 years. Applying the former s.16G of the Crimes Act 1914 (Cth) and allowing for the lack of remissions, there is a reduction to 13 years 4 months. I agree with the judge that the appropriate discount for the plea of guilty and the assistance was 25%. That reduces the head sentence to 10 years. I would fix a non-parole period of 6 years. The usual range is 60% to 66 2/3 percent and there is nothing which would take this case out of that range. Bearing in mind the restraint which this Court exercises as to Crown appeals I would fix a non-parole period at the lower end of the usual range, that is, 6 years. In the formal orders it will be necessary to make deductions to take into account the period previously spent in custody.

60 The offender submitted that his sentence should be appreciably less than that of his brother for the following reasons;

(a) the offender played a considerably less active role in the importation than his brother
(b) apart from evidence of the offender being told by his brother that the machine contained cocaine the offender’s role was limited to the periods of 23 minutes and 4 minutes on 11 and 12 May 2000 respectively. There was insufficient evidence of the offender’s involvement beyond these periods
(c) The brother’s greater involvement included -

(a) He arranged to pick up the consignment; this included engaging a tilt tray truck and driver

(b) He recruited Chatman when Helou pulled out thereby ensuring that there was a suitable place where the consignment could be unpacked, the machine dis-assembled and the cocaine obtained

(c) The brother instigated and progressed most of the dealings with Chatman

(d) The brother was to be paid $20,000 for his involvement

61 There is material in the present case which entitled the judge (and this Court) to take the view that the offender’s role and involvement was significantly less than that proved against the brother. I have earlier indicated what is the correct sentence for the offender. This is appreciably less than that imposed on the brother. Considerations of parity and proportionality would not, on the evidence, before this Court lead to a lesser sentence than that proposed being imposed on the offender.

62 The Crown withdrew a submission that s.16G of the Crimes Act 1914(Cth) (as it previously was) did not apply to any sentence which this Court might, on appeal, impose on the offender. I have had regard to all the considerations referred to in s.16A of the Act. I propose the following orders:

1. Appeal against conviction dismissed.
2. Crown appeal against sentence allowed; sentence quashed.
3. In lieu of the sentence imposed Radwin El Hassan is sentenced to imprisonment for a period of nine years 7 months commencing on 2 August 2002 with a non parole period of five years 7 months expiring on 1 March 2008.

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TO: Radwan El Hassan:

Explanation Under s.16F – Commonwealth Crimes Act

This Court has allowed an appeal by the Crown and increased your sentence.

You have been sentenced to imprisonment for 9 years 7 months with a non-parole period of 5 years 7 months.

This means that you must serve a minimum period in prison of 5 years 7 months. If your behaviour in prison is good it is likely, but not mandatory, that a parole order will be made enabling you to serve the balance of your sentence, namely 4 years in the community,

If a parole order is made the order will be subject to conditions governing your activities and behaviour. A parole order may be amended or revoked. If you fail, without reasonable cause, to comply with the conditions of your parole, it may be revoked and you may be returned to prison to serve the balance of your sentence.

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Last Modified: 05/26/2003