R v Hijazi

[2018] NSWDC 416

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hijazi [2018] NSWDC 416
Hearing dates:	25 January 2018; 31 January 2018
Date of orders:	31 January 2018
Decision date:	31 January 2018
Jurisdiction:	Criminal
Before:	ML Williams SC DCJ
Decision:	At [35].
Catchwords:	SENTENCING — Commonwealth offence – import a marketable quantity of cocaine - Plea of guilty on lesser charge after the commencement of the trial – questions of parity with co-offenders – aider and abettor
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	R v Qutami (2001) 127 A Crim R 369 Wan v The Queen [2017] NSWCCA 261
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown CDPP)   Alack Hijazi (Offender)
Representation:	Mr D Petrushenko (Crown CDPP)   Mr G Stanton (Counsel for the Offender)
File Number(s):	2011/2226908

JUDGMENT 

1. Alack Hijazi who was born in 1991 has pleaded guilty to one count of aiding and abetting, counselling or procuring the commission of an offence by his mother Joumana Hijazi and his father Hamzi Hijazi, namely, importing a marketable quantity of cocaine. The charge relates to a single consignment sent from China which arrived on 26 April 2011.

2. As Mr Stanton of counsel points out, the indictment under s 307.2(1) and 11.2(1) of the Criminal Code (Cth) specifically relates to the period between 26 April and about 29 April 2011. The maximum penalty is 25 years imprisonment which is a yardstick for comparison against the present case and an indication of the seriousness with which the legislature regards such involvement in drug trafficking.

3. In short a strike force was established by New South Wales Police in 2011 and it emerged that from around January 2011 the offender and his father were living in Lebanon while his mother lived in Rockdale in Sydney. They were in regular phone contact. Phone calls were intercepted by police during this time. During April 2011 Hamzi arranged an importation of cocaine from China to Australia which was to be delivered to a residence in Bexley where the offender’s family had previously lived. Hamzi and Joumana made arrangements for the collection of the consignment and the offender, knowing about the importation of the cocaine, assisted his mother and father by passing information between them during the phone calls in the relevant period covered by the indictment.

4. Joumana arranged for her nephew Hassan Fakih and a friend of Fakih’s named Mohammad Kazan to collect the consignment from a FedEx depot when it arrived in Australia. They were both arrested shortly after collecting the consignment from the FedEx depot at Alexandria on 29 November. Joumana was arrested on 10 May and the offender was arrested on his return from Lebanon in February 2016. He has apparently been in custody on other matters which are to be the subject of sentence proceedings in May this year, but it is common ground that a term of imprisonment, if imposed in this case should commence on 22 January 2018.

5. The consignment that came into Australia on 26 April purported to contain ten clocks with a value of 80 USD. The consignee was a false identity. Police examined it and found 248 grams of cocaine secreted in the clocks. Analysis of the cocaine determined that 160 grams of pure cocaine with a street value of between $49,700 and $62,100 with a wholesale value of between $42,300 and $49,800 was contained within the consignment.

6. The FedEx courier tried to deliver the consignment on the afternoon of 27 April. There were phone calls between Joumana and Hamzi that evening, and a phone call between Joumana and the offender at about 8.16pm that evening when he said, “Send it. Send the stuff. Send it to the names that Baba gave you.” The courier tried to deliver it again the next day. The agreed facts go into the further communications between Joumana, Fakih and Kazan, and I will return to them where necessary in summarising the findings made by his Honour Judge Armitage in sentencing other offenders.

7. On the morning of 29 April the courier attended the Bexley residence, tried to deliver the parcel for the third time and, having been unsuccessful, he returned to the FedEx depot. That afternoon Joumana called a number in Lebanon and spoke to the offender. She said, “What address do we pick it up from?” He said, “Broadford” and she said, “Bye” and as the Crown says one can hear her then saying “Fakih”. Then, a minute later, “Fakih” called the FedEx depot to enquire about the consignment and he provided the Bexley address and arranged to collect it. Later that evening Fakih and Kazan went to the depot, picked it up and they were arrested shortly afterwards. Kazan was in the car and Fakih had gone into the FedEx to collect the consignment.

8. After that time, not knowing that these two had been arrested Joumana sent text messages asking “what happened” and her calls were unanswered. About 7.30pm Hamzi called Joumana and asked her to call him. A minute later she rang him back and said, “They still hadn’t come yet”. Hamzi replied “That means they took it already”. The phone was passed to the phone onto the offender and she said, “Talk to him”. In the course of that conversation the offender said, “It’s been picked up about four hours ago” and he went on to say “If they’ve taken it, I go I’m going to kidnap your mum and dad from here and I’m going to go tie them up”. A little later on Joumana then called Hamzi and said “The detectives have taken them to Redfern.” Joumana was arrested on 10 May and she declined to participate in an interview.

9. Joumana pleaded guilty to an offence importing a marketable quantity of border controlled drug and she was convicted and sentenced to five years imprisonment with a non-parole period of two years and six months.

10. Fakih pleaded guilty to possessing a marketable quantity of border controlled drug and Kazan pleaded guilty to aiding and abetting Fakih. Judge Armitage sentenced Fakih to three years imprisonment with 12 months served, and Kazan to 18 months imprisonment to be served on a recognizance release order

11. The plea of guilty was entered by the offender after a trial had been commenced on a different charge and Mr Stanton submits, correctly in my view, in these circumstances that although State sentencing principles do not apply for the reasons set out in the authorities in relation to Commonwealth offending, it would be appropriate to allow a discount of 10% on any term of imprisonment due to the plea of guilty indicating a willingness to facilitate the administration of the course of justice.

12. His record includes offences dealt with in June 2009 at the District Court of selling a pistol which lead to a 21 month term of imprisonment to be served in juvenile custody with a nine month non-parole period, and shortly after he was also dealt with at Parramatta Children’s Court for supplying drug offences and subject to a number of control orders which commenced on the same date as his juvenile detention for the earlier matter. There were apparently minor possess prohibited drug offences in September 2016 dealt with by a fine, there were some traffic offences on his record and he has been charged with, as I have said, supply prohibited drug and the offending apparently occurred on 10 May 2017. I understand that he has pleaded guilty and he will be sentenced in due course in relation to those matters.

13. There is a pre-sentence report and a history contained in a psychologist’s report prepared by Dr Chew, psychiatrist and there is also a letter written by the offender to the Court. As the Crown correctly points out in the absence of them being adopted and subject to testing the weight to be given to the histories is limited in the light of authorities such as R v Qutami (2001) 127 A Crim R 369, which remind the Courts of the caution with which such histories must be presented. However, as Mr Stanton points out they are to some extent a reasonable basis to proceed to sentencing on the subjective case, given that a number of findings made by Judge Armitage in sentencing other offenders illustrate aspects of the subjective case, in particular the alleged fear in which the father held at least for the mother and the circumstances in which the offender was raised.

14. It seems that he is one of five children. His parents separated in 2011 following his father’s move back to Lebanon. There is evidence that was accepted by Judge Armitage that the father was controlling and violent and that the family learnt to submit to him. It appears that the offender is now married with a young child and they are supportive of him.

15. There is a suggestion in two of the histories that the offender served some significant period in Lebanon, in custody of some sort as a result of the offending but Mr Stanton specifically disavows reliance upon any period of custody in Lebanon as being relative to the sentencing exercise.

16. It seems that he left school after Year 10 and had some unskilled employment for a few years and then while in Lebanon from 2011 to 2016 had no employment. There was a history of drug use starting in 2009 involving methylamphetamine and his custodial record shows at least two drug related disciplinary charges relating to his early use of buprenorphine while in custody. He acknowledged that although he said he was acting out fear of his father he could have gone for help possibly to the Australian Embassy, but he did not do so.

17. In his letter to the Court he expresses his sense of shame and humiliation and his determination to turn his life around. He does not provide any excuse at all for his actions which is in its self is a commendable approach.

18. Dr Chew expands upon the history that I have summarised and it is unnecessary for me to go into that in any great detail. He does suggest a number of psychiatric diagnosis, leading to what he says is a link between his conditions and the offending behaviour, namely, that the anxiety symptoms contributed to by his father, may have affected his judgment and may have made him more likely to comply with his father’s directions However, as I have said, in the absence of such history of opinion being tested I am not prepared to make any finding to the requisite standard that any condition which may have existed contributed in any meaningful way to his offending. That is not to say that the overbearing nature of his father cannot be taken into account in assessing his moral culpability.

19. As both the Crown and Mr Stanton have provided helpful written outlines of submissions it is convenient to deal with the relevant matters that need to be considered in the Commonwealth sentencing exercise under Pt 1B of the Crimes Act 1914 (Cth). Some debate has occurred as to a critical consideration, namely the role of the offender and Mr Stanton’s submission is that in a shorthand way he might be described as a conveyor of information but no more than that. A shorthand description should not obscure an assessment of the offender actually did. He undoubtedly played an essential role in the importation of the drugs in that he assisted in advising Joumana of the address that the cocaine was being delivered to, as I have indicated in the agreed facts, he monitored the collection of the consignment and he counselled and assisted both Hamzi and Joumana when the collectors Fakih and Kazan could not be reached by telephone after collecting the consignment.

20. I accept as the Crown concedes that his role was much lesser than that of his parents, but he was still trusted to relay vital information to facilitate the importation and was relied upon to advise his mother when plans went awry.

21. The amount of the drug is a matter to be taken into account in determining the seriousness of the offence and it was 80 times the marketable quantity threshold or 8% of the commercial quantity threshold.

22. I cannot infer that he had knowledge of the quantity of the drug within the consignment, but I accept the Crown’s alternative submission that even if he did not know the exact quantity that he knew that there was a valuable quantity, sufficient to warrant his mother’s considerable discretion and his own anger at the prospect of the consignment being taken by Fakih and Kazan. I accept the common sense inference, that in the absence of evidence to the contrary the offender must have been involved for financial reward.

23. I have dealt with the discount which I propose to apply in relation to the late plea of guilty. General and specific deterrence are matters which must be taken into account so as to send a signal to would be participants that drug trafficking, particularly for financial reward, is likely to be met with severe punishment.

24. Mr Stanton did not put any substantive submissions as to the prospects of rehabilitation and little is said in the subjective reports as to that, although with the relatively limited criminal record of such a young man there are at least reasonably guarded prospects of rehabilitation given the extent of the family support.

25. There is no suggestion that a term of imprisonment would involve exceptional hardship for any family members.

26. Questions of parity loom large, and it is convenient to refer to the summary of findings made by Judge Armitage in relation to the other offenders. His Honour found that Fakih, along with Joumana, was the organiser of the consignment collection, Fakih participated in the phone calls with Joumana and FedEx. Kazan who was juvenile at the time of the sentence was involved to the confined extent of being the driver for Fakih, and the plea of guilty was entered on the basis of recklessness.

27. Both Fakih and Kazan were of prior good character, they gave evidence and displayed significant remorse and contrition. Both had very good prospects of rehabilitation and both were given a 25% discount for their early pleas.

28. In relation to Joumana, his Honour found that Hamzi arranged the importation and used Joumana as an instrument to facilitate it, that she engaged her 18 year old nephew Fakih to collect the consignment for an amount of money, she arranged for her daughter to drive to the FedEx depot to check on Fakih once she could not reach him by phone, she used two falsely subscribed phones to facilitate the offending and remitted a quantity of money to China to pay for the cocaine. She had no prior convictions. His Honour accepted the evidence as to extreme domestic violence which led to her committing the offences as a result of a fear of her husband and the duress was a highly material, mitigating factor. His Honour regarded it as non exculpatory duress and she also received a 25% discount for the early plea.

29. As the Crown points out the Court of Criminal Appeal recently said in Wan v The Queen [2017] NSWCCA 261, at [41], that

“…the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences. The application of the principle is governed ‘by considerations of substance rather than form’”

30. As the Crown points out, given the maximum penalties applicable to the offences for which Joumana, Hamzi and Fakih were dealt with, considerations of substance rather than form demonstrate that parity must have a role to play here.

31. The Crown’s submission is that the culpability of the offender is lower than that of Joumana having regard to his more limited role in facilitating the importation but above that of Fakih who was more of a foot soldier.

32. Mr Stanton as I have said, and I say this with no criticism, attempts to minimise the role of the offender as he quite properly should in the course of his duty and described him as no more than a conveyor involved for a very short period of time. I do not think it could be said that the Crown greatly exaggerates and inflates the role carried out by him as an aider and abettor. The Crown accurately described the acts committed by the offender which led to the plea of guilty, but Mr Stanton is correct in submitting that there was no evidence that the phone calls undertaken by the offender involved any recruitment, planning or deliberation prior to their occurrence He concedes that it is most likely that the information as to the delivery address was something which he obtained from his father, and that is an inference which is open and I do draw that from the agreed facts. Although Hamzi could himself have conveyed the information, the agreed facts demonstrate that this offender became involved in the operation and performed the acts to which I have referred, so it matters little to say that someone else could have done what this offender did.

33. Mr Stanton points out that he was not being sentenced for his role in an hierarchical joint criminal enterprise or in common purpose but purely as an aider and abettor, and notes the Crown’s concession that there is a lack of statistical material in relation to the exclusive role of this offender.

34. I have referred earlier as to the Crown submission as to the minimum inference that could be drawn as to the offender’s knowledge of some valuable quantity of drugs being involved and I do not accept Mr Stanton’s characterisation of that as desperate reliance upon an alternative proposition. It is, in my view, a reasonable inference to draw from the agreed facts as to the offender’s conduct. Even accepting Mr Stanton’s description of the offender as a conveyor of significant pieces information which he had obtained, probably from his father, over a short period of a few days, the fact remains that this offender played a significant role in the operation to which I have referred.

35. There is in my view, as the Crown submits, no alternative to the imposition of a period of full-time custody. The orders that I make are:

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 3 years, 9 months, to commence on 22 January 2018 and expiring on 21 October 2021.

3. I impose a non-parole period of 2 years, expiring on 21 January 2020.

Note – This ex-tempore judgment was revised without access to the court file

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Amendments

15 March 2019 - Anonymised unique personal identifiers at [1], [3], [7].

Decision last updated: 15 March 2019