R v Hermansson and Ali
[2021] QSC 152
•25 June 2021
SUPREME COURT OF QUEENSLAND
CITATION:
R v Hermansson & Ali [2021] QSC 152
PARTIES:
R
v
KERSTIN PLEIADES HERMANSSON
(first defendant)
HEGRAN ALI(second defendant)
FILE NO/S:
Indictment No 1978 of 2018
DIVISION:
Trial Division
PROCEEDING:
Contested Sentence
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
25 June 2021
DELIVERED AT:
Brisbane
HEARING DATE:
25, 26 May 2021
JUDGE:
Martin J
CATCHWORDS:
CRIMINAL LAW – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where both defendants pleaded guilty to trafficking in the dangerous drug methylamphetamine with a circumstance of aggravation – where the Crown does not accept numerous matters relied upon by both defendants as true – where Hermansson argues she should be sentenced on the basis that she acted entirely at the discretion of Sarhan and did not exert any influence over the management and direction of the business – where Hermansson argues she should be sentenced on the basis of her place within the family unit – where Hermansson argues she should be sentenced on the basis that she decided to commit the offence because she felt she had no choice due to the domestic violence – where Hermansson argues she should be sentenced on the basis that she travelled to Sydney on only five occasions – where Ali argues she should be sentenced on the basis that she was not involved in debt recovery – where Ali argues she should be sentenced on the basis that she did not benefit financially from her involvement – where Ali argues she should be sentenced on the basis that she only dealt with Brown only on occasion – where Ali argues she should be sentenced on the basis that she decided to commit the offence because she felt she had no choice due to the domestic violence – where Ali argues she should be sentenced on the basis that she protested against the offending and her involvement over the period of trafficking – whether the court is satisfied on the balance of probabilities that the allegations are true
Evidence Act 1977, s 132C
Migration Act 1958 (Cth), s 501
Penalties and Sentences Act 1992, s 9, s 161RBriginshaw v Briginshaw (1938) 60 CLR 336
Pearce v The Queen (1998) 194 CLR 610
R v Dwyer [2008] QCA 117
R v Feakes [2009] QCA 376
R v Field [2017] QCA 188
R v GBD [2018] QCA 340
R v Lowien [2020] QCA 186
R v UE [2016] QCA 58Strbak v R (2020) 267 CLR 494
COUNSEL:
C Marco for the Crown
S Lynch for the first defendantC Minnery for the second defendant
SOLICITORS:
Office of the Director of Public Prosecutions for the Crown
Aitken Whyte Lawyers for the first defendantFuller & White Solicitors for the second defendant
Each defendant has pleaded guilty to the offence of carrying on the business of unlawfully trafficking in the dangerous drug methylamphetamine, while being participants in a criminal organisation, and while knowing that the offence was being committed in association with one or more persons who were, at the time the offence was committed, participants in a criminal organisation.
The prosecution and each defendant are agreed upon most matters relating to the offence. But each defendant relies upon a psychologist’s report which, together with the written submissions advanced on behalf of each defendant, disclose some matters which are not accepted by the prosecution as true.
That non-admission by the prosecution engages s 132C of the Evidence Act 1977. The section provides:
“132C Fact finding on sentencing
(1)This section applies to any sentencing procedure in a criminal proceeding.
(2)The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.
(3)If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.
(4)For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.
(5)In this section—
allegation of fact includes the following—
(a)information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;
(b)information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;
(c)information given to the court under the Penalties and Sentences Act 1992, section 179K;
(d)other information or evidence.”
The operation of s 132C was considered by the Court of Appeal in R v Field[1] where it was an allegation by the prosecution which was not admitted. In this case, the allegation which is not admitted or is challenged is an allegation by each of the defendants. The premise of s 132C is that where an allegation of fact is not admitted, then the judge may, if satisfied on the balance of probabilities that the allegation is true, act on that allegation. Section 132C(4) imposes a sliding scale of satisfaction similar to that referred to in Briginshaw v Briginshaw[2], but that does not apply where the allegation of fact is made by a defendant. Section 132C(4) speaks of the degree of satisfaction varying according to the consequences (adverse to the person being sentenced) of finding the allegation to be true. That is only applicable to allegations made by the prosecution in the circumstances. It follows, then, that no matter how serious an allegation by a defendant, a judge need only be satisfied on the balance of probabilities that the allegation is true before acting upon it.
[1][2017] QCA 188.
[2](1938) 60 CLR 336 at 361-362 per Dixon J.
I will deal first with the broader family position and then with the antecedents of the defendants.
Kerstin Hermansson married Hussein Sarhan, in accordance with Australian law in November 2007. Sarhan had other “wives” whom he married under Muslim law. One of those was Talin Albayoch. They were married in January 2017.
Hegran Ali is the daughter of Sarhan and a woman who married Sarhan in Iraq.
Kerstin Hermansson
Hermansson was born in November 1965 in New Zealand. She was 51 to 52 years of age at the time of the offence and is presently 55 years old. She has a minor criminal history in Queensland for dishonesty and breaches of bail conditions which relate to undertakings entered into with respect to the matter before the court. She has a minor irrelevant offence in New Zealand.
Hermansson is a New Zealand citizen but not an Australian citizen. She holds a temporary visa. The evidence presented by the prosecution supports the conclusion that, if Hermansson were to be sentenced to a term of imprisonment of 12 months or more then she would be referred for visa cancellation consideration based on character grounds under s 501 Migration Act 1958 (Cth). If her visa were to be cancelled, then she would be liable for detention and removal from the country.
The possibility that deportation may be a result of a sentence may make the period of imprisonment more onerous and where, upon release, the fact of imprisonment will deprive the offender the opportunity of permanent residence in Australia.[3] A sentencing court cannot speculate about the prospect of or impact of deportation on the offender. Proof that deportation will in fact be a hardship for a particular offender will be required.[4] There was no submission to the effect that deportation would amount to a hardship for Hermansson.
[3]R v GBD [2018] QCA 340.
[4]R v UE [2016] QCA 58 at [16] per Philippides JA (Morrison JA and North J agreeing).
Hermansson has two children – aged nine and 10. Their father – Hussein Sarhan – about whom more will be said, may not be able to care for them. There was material to support the conclusion that arrangements are in place for their care.
Hegran Ali
Ali was born in February 1996 in Iraq. Shortly after her birth Sarhan abandoned her and her mother and her other siblings in Iraq and left the country to settle in Australia. In 2006, when Ali was 11 years old, Sarhan returned to Iraq and took her back to Australia. She has not seen her biological mother since then.
She was 21 years old at the time of the offence and is now 25. She has a minor criminal history in Queensland for unauthorised dealing with shop goods and a breach of bail condition. She is an Australian citizen.
Ali completed high school in Australia and commenced nursing studies. There was some debate about whether she was still engaged in those studies at the time of her arrest.
The uncontested facts
Ali, Sarhan and Albayoch lived in the same house in Sunnybank. Hermansson lived mostly in another house but was often at the Sunnybank house. Their offending was detected through a police operation that commenced in July 2017. The telephone service of Sarhan was intercepted and other surveillance was undertaken. The defendants were charged on 27 November 2017 when the operation was closed. After that, Albayoch approached the police and offered to cooperate. She and her daughter (Maya Alahmed Alissa) provided statements to the police which incriminated themselves, Sarhan and the defendants. Albayoch and Alissa have been granted use-derivative-use undertakings.
Hermansson, Ali, Sarhan and Albayoch carried on the business of drug trafficking for about six and a half months from May 2017 to November 2017. The methylamphetamine they purchased was predominantly from one supplier in Sydney, Mohammed Ghanem.
Sarhan and Albayoch travelled to Sydney by car on at least 12 occasions. On at least eight of those occasions they used a vehicle registered in the name of Hermansson. Hermansson travelled with them on at least five occasions. Ali accompanied them on three trips to Sydney. Of the remaining trips, it was either Hermansson or Ali who accompanied Sarhan and Albayoch. They were travelling to Sydney as often as up to three times a week.
On each trip the quantity of methylamphetamine obtained was either one or two kilograms. Each kilogram cost about $125,000 and was paid for in cash.
The final trip took place in late November 2017 when Sarhan, Albayoch and Ali travelled to Sydney. They stayed at a motel in Bankstown and Ghanem and another man came to the room with the methylamphetamine. Albayoch and Ali counted out the money which was paid to Ghanem and Ali secreted the methylamphetamine in Sarhan’s bag. They left the motel and headed back to Brisbane. They were stopped by police at Dundas. Sarhan was driving the car. When the car came to a halt, Sarhan spoke to Albayoch in Arabic and told her that his phone was on the floor and she should cover it. Albayoch put it in her pocket. Later, when Albayoch and Ali were seated by the road, Ali removed the telephone from Albayoch’s pocket and buried it. The police found the methylamphetamine. Upon analysis it was found to weigh 993.3 grams with a purity of 80 per cent.
The intercepted telephone calls for a number subscribed to Sarhan showed that 16 persons used that number to purchase the methylamphetamine obtained from Sydney.
According to Albayoch, Hermansson was involved in setting the sale price for the methylamphetamine in consultation with Sarhan.
The prosecution gave examples of purchases by four customers. They used, at various times, codewords such as cars, tyres, services, and handbags when referring to the quantity of drugs they were ordering. A brief description of the trading that took place with those four customers follows:
Gibbons and Hansberry
Gibbons and Hansberry purchased methylamphetamine from Sarhan on 16 occasions in amounts varying from a couple of ounces for $5000 and an ounce to a kilogram for $140,000. The total amount they purchased was between 4.2 and 5.3 kilograms. The transactions occurred at residences in Sunnybank and Acacia Ridge and at the motor mechanic shop conducted by Sarhan in Acacia Ridge. One or more of Hermansson, Albayoch or Ali would be present for the transactions and would count the money that they were receiving for the methylamphetamine and would retrieve the methylamphetamine.
On 20 July 2017, Hermansson spoke to Gibbons and advised her that they had “one” for her if she needed it. Gibbons said that she was having problems selling the last amount supplied because of the quality. Hermansson told Gibbons that they were returning to Sydney over the weekend and could look for another supplier to “keep our options open”.
Wright
Wright purchased methylamphetamine on at least 23 occasions over the period of the intercepted phone calls in quantities of one or two ounces on each occasion. She spoke to Sarhan, Hermansson and Ali at various times in relation to the supply of methylamphetamine.
On 24 July 2017, Hermansson spoke to Wright and said: “same deal as before so take two, give us for one and as soon as you get it, pay us off that’s no worries”. Hermansson then told Wright to attend the house at Sunnybank which was consistent with the practice whereby she would attend at one of the residences and either Hermansson or Ali would supply her with the drugs.
Albayoch says that Ali was responsible for looking after Wright’s orders and the intercepted telephone calls confirm that both Hermansson and Ali supplied or were involved in the supply of methylamphetamine on several occasions to Wright and that each of them had also spoken to her about the money she owed them.
On 6 August 2017, Ali supplied methylamphetamine to Wright who was then intercepted by police and found to be in possession of two bags containing 41.176 grams of pure methylamphetamine. Ali’s fingerprints were found on one of the bags.
Fuller
Fuller purchased methylamphetamine on at least 14 occasions in quantities of three ounces on each transaction. He dealt mostly with Sarhan but, on at least three occasions, he collected the drugs from Ali.
Hermansson spoke to Fuller on at least one occasion when she enquired about his health. It is likely, though, that they spoke at other times which were not captured by the surveillance methods.
Tyran Benson
Benson purchased methylamphetamine on at least 17 occasions in quantities of one or two ounces. He dealt mostly with Sarhan but met with Hermansson and others to conduct a drug transaction at a shopping centre in Buranda. Hermansson spoke to him on one occasion and asked him to “just endorse the cheque like you normally did [sic] and then will pick it up tomorrow”. She asked him if he “wanted something” and he said that he did. Hermansson said she would have to confirm that with Sarhan but asked him to bring the cheque and cash.
Other customers
The intercepted communications show that Sarhan had most of the contact with customers, but they also show that:
(a)Hermansson and Ali took orders from customers,
(b)Sarhan directed customers to meet with Hermansson and Ali to collect the drugs,
(c)Sarhan instructed Hermansson and Ali to prepare drugs for customers, and
(d)Ali asked Hermansson for instructions on how to use the scales to weigh the drugs.
Other intercepts
The intercepted telecommunications disclose discussions between Sarhan, Hermansson and Ali regarding other business matters such as pending sales, payments received, and debts owed. There are conversations recorded between Sarhan and Hermansson regarding the money earned by the business and the expansion of the business. For example:
(a)Hermansson said to Sarhan: “… our criminal mafia family is growing, no one’s gonna be able to escape from, if we want someone we’ll find them especially in Brisbane”.
(b)Hermansson told Sarhan that there is “someone on the north side who tests yours every time and it’s really good stuff, that’s why he keeps buying from there”. “He tests the stuff … like a pool testing thing”.
(c)Hermansson said to Sarhan that she is “doing the paperwork … I’ve got all the books on the table I’m still going through the bookwork … We’ve gotta get the kilos for one and I’ll just copy it into the other”.
There were also communications between Sarhan, Hermansson and Ali alerting each other to the presence of police on roads and near to their houses cautioning each other to take care and hide incriminating items.
The business engaged Mikayla Brown as a kind of “employee”. She was a customer of the business and was given methylamphetamine as payment. She says the customers would contact her seeking methylamphetamine and she would ask Sarhan to confirm the supply. She would then meet with Ali and Albayoch to obtain the drugs or travel with them to the customer for the transaction to take place. Brown would give Ali, Albayoch or Sarhan the money from the purchase of the drugs. There were 18 occasions when Brown supplied customers with quantities of an eight ball or less. The intercepts confirm that she dealt with Sarhan, Hermansson and Ali.
Brown says that she saw Hermansson counting the proceeds from the sale of methylamphetamine and maintaining the accounts in a black book. She also saw Albayoch, at various times, counting money with Hermansson in the company of Sarhan. She says that Hermansson was also responsible for chasing debts from customers after consultation with Sarhan. Ali told her that, on the final trip back from Sydney when they were intercepted by police, she had hidden Sarhan’s telephone from the police.
Unsourced income
The investigating police engaged a forensic accountant to conduct an investigation into the financial affairs of Sarhan, Hermansson, Albayoch and Ali over the period of the trafficking. The accountant found many instances where the finances were mixed across all individuals and their common addresses. The total unsourced income for all individuals was $574,948.05. That included the unsourced income of Sarhan’s third wife, Hyam Saleh. Of that amount, the unsourced income for each individual was:
Hermansson $311,749.30
Sarhan $159,656.80
Ali $67,390.00
Albayoch $35,801.95
Saleh $350.00
Various properties were registered in the name of Sarhan, Hermansson, Albayoch and a company as trustee. The director of the company was Sarhan with Ali being one of the beneficiaries. Unsourced income was used to pay the mortgages of two of the properties over the trafficking period.
Responsibility
Each of Sarhan, Hermansson and Ali had different roles in the operation of the business but would, from time to time, step into the role of another or assist another in the business of trafficking.
Sarhan was primarily responsible for liaising with the supplier in Sydney and providing the first point of contact for customers.
Hermansson was primarily responsible for the finances, including setting the prices in consultation with Sarhan, handling the money, and doing the bookkeeping.
Ali was primarily responsible for preparing and distributing the methylamphetamine.
Albayoch was primarily responsible for distributing the methylamphetamine and travelling to Sydney with Sarhan.
Matters relevant to the sentencing principles
Section 9 of the Penalties and Sentences Act 1992 sets out the matters which, if otherwise applicable, should be considered. In this case, both general and personal deterrence are relevant, as is community denunciation and protection.
Ms Marco submitted, and I accept, that the following matters should inform the exercise of the sentencing discretion:
(a)The maximum penalty for the offence of trafficking is 25 years imprisonment.
(b)The serious organised crime circumstance of aggravation applies and carries a mandatory sentence of seven years to be served cumulatively upon the base component and wholly within corrective services facility.
(c)The drug involved was a schedule 1 drug, namely, methylamphetamine or ice which is a particularly insidious drug responsible for causing widespread destruction to those that consume it and the broader community.
(d)The business was well structured and sophisticated involving four close working members of a criminal organisation each with individual roles but who nonetheless were prepared to step outside those roles when required to assist the business.
(e)The business was managed predominantly by Sarhan. Hermansson also had an influence on the direction and management of the business. Ali did not provide input into the management or direction of the business.
(f)The business had a reliable source of methylamphetamine, which it drew upon regularly and more than 12 times to source at least 12 kilograms of high purity methylamphetamine. Those estimates are conservatively set, and it is likely that true figures are greater.
(g)All the methylamphetamine purchased was distributed and it was a substantial quantity over the six-and-a-half-month period of the trafficking. Four of the regular 16 known customers of the business alone purchased a total of between 6.5 to 8.7 kilograms of the drug. The customers all purchased in wholesale amounts in quantities varying from one ounce to one kilogram per transaction.
(h)The business had established retail practices with regular customers and was well established by 10 May 2017 when the offence commenced.
(i)The business was highly profitable. The unsourced income and cash suggest a profit of about a million dollars. The income allowed the offenders to live very comfortably, to pay for real estate, to purchase luxury items and ponder future investment, well outside the grasp of people who otherwise claim their only source of income to be Centrelink benefits.
(j)The defendants were not drug users and motivated entirely by commercial gain.
(k)The defendants have minor and irrelevant criminal histories.
(l)Ali is a young person.
(m)The pleas of guilty were entered at a late stage of the proceedings.
For the defendants it was argued that the entry of the plea should not be regarded as late because of negotiations which had taken place in the preceding months. There was an offer to plead to trafficking without the circumstance of aggravation and the second count (of possession of a dangerous drug in excess of 200 grams) was not pursued. But that count would have been dealt with as a particular of the trafficking and would not have been of great consequence in these circumstances. The pleas were not entered until the first day of the trial, which was a Monday, after the prosecution was informed on the preceding Thursday. These are late pleas which saved the State some expenditure, but they should be regarded as evidencing limited cooperation. For example, the time reserved for this trial could not be used by the Court for other trials given the lateness of the plea.
Submissions for Hermansson
Unlike Ali, Hermansson did not give evidence. I bear in mind the admonition in Strbak v R[5] that when sentencing an offender, where there is a dispute as to the facts constituting the offence, a judge should not draw an adverse inference by reason of the offender’s failure to give evidence save in rare and exceptional circumstances.
[5](2020) 267 CLR 494.
On behalf of Hermansson, the following submissions were made:
(a)she was not the principal offender,
(b)she acted at the direction of Sarhan,
(c)it was Sarhan who had the connection for both the purchase and supply of methylamphetamine,
(d)she is not an Australian citizen and will be deported at the end of her period of incarceration, and
(e)she has two children with Sarhan and has been their primary carer since November 2017.
She also relied on a report from Ms Jeannette Brennan, a clinical psychologist who has been treating Hermansson. Her report followed the usual pattern of these kinds of reports tendered on a sentence hearing. It consists of a detailed exposition of the defendant’s personal history together with a set of conclusions or recommendations. The prosecution did not object to the report being tendered. Although it is mainly a record of what Ms Brennan was told it was taken as if the history recounted in the report was the evidence of Hermansson.
Her report includes the following:
(a)although Hermansson and Sarhan were married they did not live in the same house – this was due to Sarhan’s severe post-traumatic stress disorder which made his behaviour erratic,
(b)Hermansson said that a large reason for her staying in the relationship was because she wanted her children to “feel like they belong to somewhere”,
(c)she said that she had witnessed the violence that Sarhan was capable of and was scared for her life,
(d)Sarhan had been violent to her a number of times throughout the marriage,
(e)it was not only violent behaviour from Sarhan which was of concern it was the violent behaviour of other males in the family,
(f)she said that to say “no” would result in Sarhan becoming extremely hostile and angry,
(g)Sarhan would not allow her to have access to bank accounts,
(h)Sarhan would ask her to count money although that did not happen very often, and
(i)Sarhan would direct her to make deposits and payments.
Ms Brennan’s report contains little in the way of analysis or opinion. It consists mostly of the repetition of self-serving statements by Hermansson. It is presented without, it appears, a critical eye for assessment of its consistency or accuracy. Everything is accepted as being the unvarnished truth. It is not, nor does it purport to be, an expert report. Rather, it is little more than the recounting of a patient’s story.
Submissions for Ali
Ms Ali did give evidence and that will be considered when dealing with the issues in contest. On her behalf a number of submissions were made, including:
(a)she was brought up in a culture where women’s opinions and needs were secondary to that of the men of the family, and the rule of the male head of the household was absolute,
(b)from a young age she was exposed to domestic violence within the home in Australia,
(c)she was not allowed to live independently, keep money paid to her by way of government benefit, or participate in education or social activities unless approved by Sarhan,
(d)the proper characterisation of her role in the trafficking business was as a worker, with no autonomy,
(e)she has not used drugs and received nothing, or “financially went backwards” during the period of the trafficking,
(f)she is remorseful for her conduct, and
(g)she should be sentenced as a youthful offender and one who was offending in “fairly unique circumstances, where she had little or no support in Australia other than that offered by her father”.
Ms Brennan provided a report for Ms Ali. It is dated 7 May 2021. She has also been treating Ali. It is of the same nature as the Hermansson report and is consistent with the submissions made on Ali’s behalf.
The disputed issues
The prosecution does not accept as true the following matters which it understands are relied upon by Hermansson:
(a)that Hermansson acted entirely at the direction of Sarhan and did not exert any influence over the management and direction of the business,
(b)Hermansson’s place within the family unit,
(c)that Hermansson decided to commit the offence because she felt she had no choice due to the domestic violence, and
(d)the number of occasions that Hermansson travelled to Sydney to obtain drugs.
The prosecution does not accept as true the following matters which it understands are relied upon by Ali:
(a)that Ali was not involved in any debt recovery,
(b)that Ali did not benefit financially from her involvement,
(c)that Ali dealt with Brown only on occasion,
(d)that Ali decided to commit the offence because she felt she had no choice due to the domestic violence, and
(e)that Ali protested the offending and her involvement over the period of the trafficking.
The Hermansson issues
Did Hermansson act at the direction of Sarhan?
This arises from the difference between the agreed Statement of Facts (exhibit 13) and parts of Hermansson’s submissions and the report of Ms Brennan.
In the Statement of Facts the following appears:
“69.Hermansson and Ali are liable as principal offenders because they each did more than one act in a series that constitutes the offence.
…
72.Hermansson was responsible primarily for the finances, and that would include setting the prices in consultation with Sarhan, handling the money, and are doing the accounting.”
In Hermansson’s written submissions, the following appears:
“8.2Ms Hermansson was not the principal offender…
…
8.4Ms Hermansson acted at the direction of Sarhan.
8.5Ms Hermansson was not the protagonist.”
In Ms Brennan’s report, she records:
“Ms Hermansson reports that any activities she participated in regards to the trafficking including, answering calls, going to sydney (sic), going to the bank and accounting money was under Hussein’s instruction and she felt that she had to comply in order for her children to be safe and to be in a reduced domestic violence setting.”
The first observation which may be made is that the statements in the written submissions and Ms Brennan’s report are inconsistent with the agreed Statement of Facts. There was no evidence to explain this inconsistency.
The prosecution relies upon the evidence of Albayoch and the transcripts of the intercepted telephone calls. Albayoch gave evidence through an interpreter. The arrangements for this were not ideal. Albayoch gave evidence by video link and the interpreter (there were three of them used on the same day) had to interpret over a telephone line with the obvious disadvantage of not being able to see Albayoch. This created uncertainties from time to time with respect to both questions and answers.
Mr Lynch submitted that I should be satisfied that Hermansson did not exert any influence over management and direction of the business and that the evidence of Albayoch was not reliable. He pointed to some discontinuity in her evidence about the extent of domestic violence within the household and also the actions of Sarhan which he described as being those of a “control freak”. He submitted that I should be satisfied that Hermansson “acted under domestic violence, as did the others, including Albayoch, and that he was controlling, volatile, and financially controlling with them, as well.”
Albayoch’s evidence was not entirely consistent with respect to the level of violence which was perpetrated on her, Hermansson, and others. I must bear in mind that there were difficulties engendered through the interpretation process that sometimes made it unclear as to whom she was referring to and when a particular event or events took place. I am satisfied, though, that her evidence was, generally, truthful and accurately reflected the true position with respect to the relationship between Sarhan and Hermansson, as it is confirmed in a number of respects by various intercepts.
She said that Hermansson took decisions after reaching agreement with Sarhan and that decisions about matters concerning the business were made by both of them.
In cross-examination, Albayoch said that Hermansson was dealing with many customers coming to the house, that she was responsible for the financial issues, and that she was giving instructions to Sarhan about when to put the price up and when to put the price down.
The evidence from Albayoch and the conclusions I draw are consistent with the gist of the conversations which have been recorded and are contained in the transcripts of the telephone conversations Hermansson had with Sarhan and others. For example, in Call 3130 Hermansson is heard speaking to Sarhan. The conversation proceeds:
“Hermansson: Listen I was just gonna ring you an’ tell you before you hung up, you know what the way our family is growing there’s no one can, is gonna be able to escape us.
Sarhan: Sorry?
Hermansson: I said the way our family is growing no one is gonna be able to get away from Sarhan’s – laughs
Sarhan: Yeah I think so
Hermansson: But yeah, but if the old batteries, the old batteries have got out, our criminal mafia family is growing, no one’s gonna be able to escape from, if we want someone will find them especially in Brisbane
Sarhan: Yeah serious
Hermansson: (wd) but I’m laugh because the girls you know Ellie, ah (wd) an’ Hedra I see somebody else, I see somebody else a (wd) no one’s gonna be able to escape us soon”
In Call 3888 Hermansson is heard speaking to Sarhan and telling him about a new testing system (apparently for drugs) and going on to tell him that she had been given $5800 and he asked her to count it to make sure.
In Call 8743 Hermansson is heard speaking to Tyran Benson where she asks him to endorse a cheque like he normally does and then she will pick it up. There are then questions about how much he needed, whether he had cash with him, that he should bring the cash and get Sarhan to fix it up. The conversation was about the purchase of drugs.
In other recorded conversations, Hermansson is heard making arrangements about the “paperwork”, how debts should be dealt with, how money should be carried, and how much money was needed for the purposes of a drug purchase. These conversations were had with Sarhan and in none of them is there anything inconsistent with the conclusion that they were operating together and that Hermansson was engaged in the “bookkeeping” aspect as well as conferring with Sarhan about the particular actions which needed to be taken to fulfil transactions. There is nothing to suggest that anything that she was doing was the result of pressure, either physical or financial, by Sarhan. Rather, they were consistent with conversations between two people working together for the same end.
I have taken that finding into account as well as the original admission and I accept that to make a finding as advanced by the prosecution is a serious adverse finding. I am satisfied to an extent beyond the balance of probabilities that it is appropriate to do so.
What was her place within the family unit?
This issue arises out of, among other things, statements made in Ms Brennan’s report to the effect that:
(a)Hermansson felt that she was never welcomed into Sarhan’s family and that she was looked down upon, and
(b)other women in the family unit would pass comments about her, calling her “not clean” due to being a “Westerner” and making comments about her parenting abilities.
This hearsay statement was inconsistent with the evidence from Albayoch on this issue. She said that she became aware of the arrangements within the family with respect to the family finances and that Hermansson had some authority or power over that. She contrasted the number of times she saw Sarhan physically assault Hermansson – there were two occasions – compared to the more frequent abuse that Albayoch received at his hands. She said that Hermansson was the preferred wife and was treated better than the others.
That evidence is consistent with the other evidence from Albayoch about the responsibilities that Hermansson had within the business and that those responsibilities were of a higher level than any of the other wives. None of this evidence was challenged in cross-examination. I accept that Hermansson had a position superior to that of the other wives in the family unit.
Did Hermansson commit the offence because she felt she had no choice due to the domestic violence?
This arises out of statements recorded by Ms Brennan as having been made to her by Hermansson. There was no other evidence to support this contention. I accept that Hermansson did make the statements recorded by Ms Brennan. But, of course, that does not mean that those statements are true. In order to assess the weight (if any) I should give to those statements; I need to take into account the other evidence touching upon this topic. I have already referred to Albayoch’s evidence about the extent of violence visited upon Hermansson and other members of the family by Sarhan.
I am not satisfied that the evidence of the statements made to Ms Brennan is sufficient to make a finding that Hermansson felt that she had no choice but to commit the offence. Albayoch’s evidence was not challenged with respect to the extent of Hermansson’s involvement in the business. The transcript of the telephone intercepts is, as I have already observed, consistent with a person who is conducting herself in an unconstrained or unforced way.
The number of trips to Sydney
This issue arises out of the statement in Hermansson’s written submissions that Hermansson travelled to Sydney on only five occasions. There is evidence which supports a finding that she went on at least five trips. Albayoch said that after she had moved into the house, she travelled with her to Sydney with Sarhan to obtain drugs. She said this occurred on an average of two to three times a week but that on some weeks they went four times. Apart from the last trip, when they were apprehended by the police in New South Wales, Hermansson accompanied them each time.
The Ali issues
Was Ali involved in any debt recovery
Yes, Ali was involved in debt recovery. One of the intercepted telephone calls evidences that.
Did Ali benefit financially from her involvement?
Yes, but to a limited extent. The evidence concerning unsourced income was based upon an analysis of bank accounts, credit cards and the like. I accept that the regime within the family meant that Sarhan controlled all the money and distributed it as he saw fit and as was necessary to members of the family. That money included profits from the trafficking business and welfare payments made to members of the family. Although Ali had credit cards in her name, they were effectively under Sarhan’s control. But that does not mean that Ali received nothing from the trafficking business.
Although she might have wished for more, Ali was provided with housing, and all the ordinary requisites of life by Sarhan. There is no evidence to suggest that she was able to accumulate any wealth or that she possessed any great assets as a result of the trafficking business.
Did Ali deal with Brown only on occasion?
Conflict arises out of the statement in [45] of the Statement of Facts. It provides:
“There were 18 occasions when Brown supplied customers who contacted her with quantities of an eight ball or less. The intercepted telecommunications confirm her dealings with Sarhan, Hermansson and Ali. …”
In the written submissions for Ali it was her submitted that Ali dealt with Brown “on occasion”. This vague term gave rise to the perceived issue.
Brown was a regular customer of the trafficking business. Customers would ask her for methylamphetamine, and she would contact Sarhan to confirm the supply. Brown would then meet with Ali and Albayoch to obtain the drugs or travel with them to the customer for the transaction to take place. Brown would give Ali, Albayoch or Sarhan the money from the purchase of the drugs.
In her evidence Ali accepted that Brown purchased drugs from her, that this occurred several times, and that she did take money from Brown. Whether this amounts to dealing “on occasion” is unnecessary to resolve as the relevant point is that Ali did deal with Brown as part of the trafficking business.
Did Ali decide to commit the offence because she felt she had no choice due to the domestic violence?
The prosecution contends that there is an inconsistency in Ali’s evidence. It was argued that, in her evidence-in-chief, she said that there were more than two occasions that her father assaulted her. That is said to conflict with her concession in cross-examination that there were just two occasions. I do not accept that the concession was of the kind characterised by the prosecution. In her evidence-in-chief she recalled two occasions on which she was slapped by her father but neither of them were associated with trafficking. She did recall a third occasion when he slapped her because she revealed to Hermansson that he was having a relationship with another woman. I do not regard that as a matter which tells against Ali on this particular point. The case for Ali is that Sarhan inflicted mental and emotional hardship rather than physical violence.
She was asked in examination-in-chief about her involvement with the provision of drugs to customers. She said that she was told by Sarhan to do it, he would tell her who was coming and what to give them, and that, on occasion, she would take the money. She was asked in examination-in-chief:
“Why did you do those things? – – – Well, I had to. I was – I had to do what I had been told by my dad.
And can you explain that, please? Why did you have to? – – – Because I know if I said no, it wouldn’t go down very well with my dad.
And what does not go down very well mean? – – – He can get angry at me.
All right. Have you ever had your dad angry at you in relation to drugs before? – – – Yes, I have.”
She was asked to give some examples and she referred to a time when she told her father that she didn’t want to deal with “this” and he was “really angry, and just with his body language, I can see that he is just getting frustrated.” She was then asked: “What does your dad getting frustrated mean to you? – – – Well, he will hit.” But, when she was asked about whether he had ever hit her, the incidents that she related did not concern the provision of drugs or anything related to the trafficking business. Her evidence does not support a finding that it was physical violence which caused her to feel that she had “no choice” but to commit the offence.
Did Ali protest the offending and her involvement over the period of the trafficking?
Albayoch recalled Ali protesting in her presence on one occasion. Ali said that it happened about 10 times. The protestation was not intense. It amounted to her saying words to the effect: “You should stop. You should stop with the drugs.” While she may have made those protests, they were modest in their context and she did not refuse to engage. Her case, of course, is that she did not feel she was in a position to refuse.
I accept that she did make some form of protest but that she was easily fobbed off and continued to engage herself in the trafficking business.
Cases which inform the sentencing discretion
In considering the appropriate sentences to be imposed I bear in mind the warning in R v Dwyer[6] that:
“[37] … An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process. …”
[6][2008] QCA 117 per Keane JA (de Jersey CJ and Douglas J agreeing).
Notwithstanding that “sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision”[7] the analysis by the Court of Appeal in numerous cases provides guidelines for the level of sentence which can be appropriate. For example, in R v Feakes[8] McMurdo P, after a detailed consideration of other decisions, said:
“[33] … Absent extraordinary circumstances, in cases of trafficking in sch 1 drugs on a scale like the present offence, the sentence imposed on mature offenders who have pleaded guilty is ordinarily in the range of 10 to 12 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to a slightly lesser term of imprisonment in the range of eight to nine years …”
[7]Pearce v The Queen (1998) 194 CLR 610 at 624 [46] per McHugh, Hayne and Callinan JJ.
[8][2009] QCA 376.
Feakes had pleaded guilty to trafficking in a variety of schedule one drugs for a period of about six months. He was about 31 years old at the time of the offending and had a minor criminal history. He was trafficking at a wholesale level and was well removed from street level trafficking.
I have also taken into account the analysis by Philippides JA in R v Lowien[9] where her Honour considered a large number of comparative authorities and the range of sentences imposed in those cases assist in the formulation of a sentence for each of these defendants.
[9][2020] QCA 186.
The trafficking engaged in by the defendants was substantial. I have set it out in some detail. It was at a wholesale level. It was determined. It was continuing. While each of them has mitigating factors which I have taken into account, these were serious offences deserving of condign punishment.
I impose the following sentences:
(a)Hermansson – 10 years imprisonment with a cumulative seven years imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992. I declare that this is a serious violent offence with the consequence that parole eligibility does not arise until 26 May 2036.
(b)Ali – eight years imprisonment with a cumulative seven years imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992. I allow some benefit for the entry of a plea of guilty and I set the parole eligibility date at 26 May 2031.
With respect to each defendant I declare that the time served in custody from 26 May 2021 until 24 June 2021 be taken as time served under the sentence imposed.
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