R v Hermansson and Ali - [2021] QSC 152

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 161R

Briginshaw 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 58

Strbak v R (2020) 267 CLR 494

COUNSEL:

C Marco for the Crown
S Lynch for the first defendant

C Minnery for the second defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown
Aitken Whyte Lawyers for the first defendant

Fuller & 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hermansson and Ali

Details

AGLC: R v Hermansson and Ali [2021] QSC 152
Case: [2021] QSC 152
Decision Date: 25 June 2021

CaseChat Overview and Summary

Hermansson and Ali were convicted and sentenced in the District Court of Queensland for trafficking in a dangerous drug, methylamphetamine, under s 300 of the Criminal Code Act 1899 (Qld). Both defendants pleaded guilty to the charge with an aggravating circumstance that they were involved in the management and direction of a criminal organisation. The defendants submitted various arguments in mitigation of sentence. The court was required to determine whether the Crown had proved on the balance of probabilities that the mitigating matters relied upon by the defendants were not true. The court held that the Crown had discharged its burden of proof in relation to all of the mitigating matters submitted by both defendants. The court found that Hermansson did not act entirely at the discretion of Sarhan and exerted some influence over the management and direction of the business. The court found that Hermansson’s role within the family unit was not a mitigating factor. The court found that Hermansson’s claim that she was a victim of domestic violence and that she felt she had no choice but to commit the offence was not substantiated. The court found that Hermansson travelled to Sydney on more than five occasions. The court found that Ali’s claim that she was not involved in debt recovery was not substantiated. The court found that Ali’s claim that she did not benefit financially from her involvement was not substantiated. The court found that Ali’s claim that she only dealt with Brown on occasion was not substantiated. The court found that Ali’s claim that she felt she had no choice but to commit the offence due to domestic violence was not substantiated. The court found that Ali’s claim that she protested against the offending and her involvement over the period of trafficking was not substantiated. The court sentenced Hermansson to 10 years imprisonment and Ali to 6 years imprisonment. The sentences were to run concurrently with other sentences that the defendants were already serving.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 161R Briginshaw 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 58 Strbak v R (2020) 267 CLR 494
COUNSEL:	C Marco for the Crown S Lynch for the first defendant C Minnery for the second defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Aitken Whyte Lawyers for the first defendant Fuller & White Solicitors for the second defendant