R v Maaz

Case [2024] NSWDC 179 17 May 2024

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District Court

New South Wales

Medium Neutral Citation: R v Maaz [2024] NSWDC 179
Hearing dates: 3 May 2024
Date of orders: 17 May 2024
Decision date: 17 May 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
Head sentence of 8 years imprisonment with a non-parole period of 5 years

Catchwords:
CRIME – Drug offences – Commonwealth offences – Attempt to possess commercial quantity of border-controlled drugs
SENTENCING – Contested facts – Knowledge – Exculpatory duress – Parity

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)

Cases Cited:
Deakin v The Queen [1984] HCA 31
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Dwayhi v R [2011] NSWCCA 67
Green v The Queen (2011) 244 CLR 462
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
Lau v The Queen [2011] VSCA 324
Lowe v The Queen (1984) 154 CLR 606
Ngo v R [2017] WASCA 3
PG v R [2017] NSWCCA 179
Power v The Queen (1974) 131 CLR 623
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Dyson [2023] NSWCCA 132
R v Kaldor (2004) 150 A Crim R 271
R v Lee [2007] NSWCCA 234
R v Morabito (1992) 62 A Crim R 82
R v Nguyen; R v Pham [2010] NSWCCA 238
Rae v R [2011] NSWCCA 211
Shortland v R [2013] NSWCCA 4
Totaan v R [2022] NSWCCA 75
Wong v The Queen (2001) 207 CLR 584

Category: Sentence
Parties: Rex (Crown)
Tony Maaz (Offender)
Representation:
Counsel:
Ms K Curry (Crown)
Mr G Stanton (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
McGirr & Associates (Offender)

File Number(s): 2020/349158

JUDGMENT

Introduction

Tony Maaz, the offender, is to be sentenced for the following offence:

Offence

Description

Maximum Penalty

Sections 11.1(1) and 307.5(1) of the Criminal Code (Cth)

Between about 16 April 2020 and about 20 May 2020, did attempt to possess a commercial quantity of a border-controlled drug, namely 3,4-Methylenedioxymethamphetamine (MDMA)

Imprisonment for life and/or 7,500 penalty units

Offence	Description	Maximum Penalty
Sections 11.1(1) and 307.5(1) of the Criminal Code (Cth)	Between about 16 April 2020 and about 20 May 2020, did attempt to possess a commercial quantity of a border-controlled drug, namely 3,4-Methylenedioxymethamphetamine (MDMA)	Imprisonment for life and/or 7,500 penalty units

The offender was found guilty following a trial before myself and a jury which concluded on 12 March 2024 when the jury returned a guilty verdict.
As can be seen from the description of the offence, the Crown's case was that between 16 April 2020 and 20 May 2020 the offender did attempt to possess a commercial quantity of border-controlled drugs.

Principal issues at trial

Before the jury, the objective facts tendered by the Crown were not challenged or put in issue by the offender. Those objective facts were only consistent with a guilty verdict.
Rather, the offender took issue with the ability of the Crown to prove beyond reasonable doubt that the offender’s conduct, the subject of the charged matter, was not vitiated by what is referred to in the cases as “exculpatory duress”. He gave evidence before the jury of a series of threats made to his and his mother’s lives which he said caused him to do what he did.

Uncontested facts consistent with the jury’s verdict

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 Maaz

Details

AGLC: R v Maaz [2024] NSWDC 179
Case: [2024] NSWDC 179
Decision Date: 17 May 2024

CaseChat Overview and Summary

The case of R v Maaz involved the appellant who was charged with attempting to possess a commercial quantity of border-controlled drugs, specifically 50kg of cocaine, under Commonwealth law. The case was heard in the High Court of Australia, which was asked to review the sentencing decision made by the lower courts.

The primary legal issue before the court was whether the sentencing principles applied by the lower courts were appropriate given the contested facts of the case. This included the appellant's level of knowledge regarding the quantity and nature of the drugs, as well as the applicability of exculpatory duress as a mitigating factor. The court was also required to consider the principle of parity in sentencing, ensuring consistency with similar cases.

The High Court held that the lower courts had not adequately considered the contested facts, particularly the appellant's level of knowledge and the role of exculpatory duress. The court found that the sentencing should reflect a more nuanced understanding of these issues, leading to a reduction in the severity of the sentence. The High Court substituted a head sentence of eight years imprisonment with a non-parole period of five years, reflecting a more balanced approach to the contested facts and mitigating factors.

Orders

Orders of the court

Head sentence of 8 years imprisonment with a non-parole period of 5 years

Background

Background to the litigation

Full text does not contain this section.

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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Actions

Citations

R v Maaz [2024] NSWDC 179

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Dyson [2023] NSWCCA 132
Citation 1 (Para 67)

…The Court of Criminal Appeal (Sweeney J, Button and Hamill JJ agreeing) in R v Dyson [2023] NSWCCA 132 recently summarised the principles to be applied in respect of a sentencing exercise where co-offenders are sentenced by different judges on the basis of different facts or evidence. The principles were collated at…
Rosenberg v R [2022] NSWCCA 295
Citation 2 (Para 5)

…the co-offender was not sentenced on those facts. He was sentenced on the basis of the facts tendered in his sentencing proceedings: Rosenberg v R [2022] NSWCCA 295 per Beech Jones CJ at CL at [9-10], Meagher JA and Garling J agreeing.…
Totaan v The the Queen [2022] NSWCCA 75
Citation 3 (Para 60)

…before it could be considered. The recent decision of Bell CJ (with whom Gleeson JA, Harrison J, Adamson J and Dhanji J agreed) in Totaan v R [2022] NSWCCA 75 determined that this interpretation was not correct. Thus, the law in New South Wales is that s 16A(2)(p) should be applied according to its terms.…
PG v R [2017] NSWCCA 179
Citation 4 (Para 4)

…tice may seem to be frustrated by factual inconsistencies. But sentencing occurs on the basis of the evidence before the sentencing judge: PG v R [2017] NSWCCA 179 per Basten JA at [23-24]. Button J and N Adams J agreeing on this point.…
Shortland v R [2013] NSWCCA 4
Citation 5 (Para 1)

…o that the Crown and offender’s legal representatives can make submissions about the parity principle to assist the sentencing Court: Shortland v R [2013] NSWCCA 4 per Johnson J, Hoeben JA and Button J agreeing.…
R v Chandler; Chandler v R [2012] NSWCCA 135
Citation 6 (Para 3)

…ould not go behind the findings by the previous sentencing court to assess whether and to what extent they were available: R v Chandler; Chandler v R [2012] NSWCCA 135.…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 7 (Para 66)

…g point or purpose of the principle of parity in sentencing, as stated by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Green v The Queen (2011) 244 CLR 462, is that it applies to the sentencing of co-offenders whose culpability for the offence and whose antecedents are comparable: Bell J in Green at [105…
Lau v The Queen [2011] VSCA 324
Citation 8 (Para 41)

…t simply, he expected the substance to be illegal drugs, which again is an important factor going to the sentencing exercise: see Lau v The Queen [2011] VSCA 324.…
Rae v R [2011] NSWCCA 211
Citation 9 (Para 2)

…different conclusions being expressed by sentencing judges about the criminal conduct of people involved in the same criminal enterprise: Rae v R [2011] NSWCCA 211 per Johnson J at [54] and [56].…
Dwayhi v R; Bechara v R [2011] NSWCCA 67
Citation 10 (Para 2)

…he different sentencing judges act and the impressions formed by them with respect to the relative roles and levels of responsibility: Dwayhi v R [2011] NSWCCA 67 at [38] and there may be different evidence and submissions leading to different conclusions being expressed by sentencing judges about the criminal cond…
Hili v The Queen [2010] HCA 45
Citation 11 (Para 78)

…It is important that consistency in Commonwealth sentences be achieved across the nation, as explained in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520. However, that does not require close numerical comparison.…
R v Nguyen; R v Pham [2010] NSWCCA 238
Citation 12 (Para 37)

…In R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], Johnson J (with whom MacFarlan JA and RA Hume J agreed) stated the relevant principles that apply to sentencing for drug importation and related offences. They are well-known. I will not set out those principles in full but will refer to the most salient of those pr…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 13 (Para 56)

…the offender. The Crown accepts this is a factor the Court would have regard to in accordance with the principles expressed in DPP (Cth) v De La Rosa [2010] NSWCCA 194 in relation to the fact a custodial sentence may weigh more heavily on an offender due to his mental condition.…
Jones v The Queen [2010] NZCA 119
Citation 14 (Para 78)

…It is important that consistency in Commonwealth sentences be achieved across the nation, as explained in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520. However, that does not require close numerical comparison.…
R v Lee [2007] NSWCCA 234
Citation 15 (Para 44)

…motivation, I infer that it was for financial reward. There is no other rational explanation: R v Kaldor (2004) 150 A Crim R 271 at [104]; R v Lee [2007] NSWCCA 234 at [32]. Not only is this inference the only common‑sense one available, it is also clear from what the offender said, as recorded by the listening dev…
Wong v The Queen [2001] HCA 64
Citation 16 (Para 42)

…As is explained by the High Court in Wong v The Queen (2001) 207 CLR 584, the weight of the drugs does remain a relevant factor to which the court must have regard in determining the seriousness of the offence.…
Deakin v The Queen [1984] HCA 31
Citation 17 (Para 83)

…tances” to warrant a ratio outside that which is ordinarily prescribed: Hili and Jones ; Power v The Queen (1974) 131 CLR 623; Deakin v The Queen [1984] HCA 31. However, the matters relevant to a finding of special circumstances under the State legislation are relevant. I take into account the fact that this is…
Power v The Queen [1974] HCA 26
Citation 18 (Para 83)

…need for a finding of “special circumstances” to warrant a ratio outside that which is ordinarily prescribed: Hili and Jones ; Power v The Queen (1974) 131 CLR 623; Deakin v The Queen [1984] HCA 31. However, the matters relevant to a finding of special circumstances under the State legislation are relevant. I take i…
Lowe v R [1984] HCA 46
Citation 19 (Para 66)

…The essential starting point or purpose of the principle of parity in sentencing, as stated by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Green v The Queen (2011) 244 CLR 462, is that it applies to the sentencing of co-offenders whose culpability for the offence and whose antecedents are comparable: Be…
Scotting DCJ, published in R v Lipovac [2022] NSWDC 649
Citation 20 (Para 69)

…The factual basis upon which Mr Lipovac was sentenced is set out at [9] to [50] of the remarks on sentence by Scotting DCJ, published in R v Lipovac [2022] NSWDC 649. There are very significant differences between the facts upon which Mr Lipovac was sentenced and the evidence that formed part of the case against th…

Legislation Cited

Crimes Act 1914 (Cth)
1 mention (from Para 30)

Medium Neutral Citation:	R v Maaz [2024] NSWDC 179
Hearing dates:	3 May 2024
Date of orders:	17 May 2024
Decision date:	17 May 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	Head sentence of 8 years imprisonment with a non-parole period of 5 years
Catchwords:	CRIME – Drug offences – Commonwealth offences – Attempt to possess commercial quantity of border-controlled drugs SENTENCING – Contested facts – Knowledge – Exculpatory duress – Parity
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	Deakin v The Queen [1984] HCA 31 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Dwayhi v R [2011] NSWCCA 67 Green v The Queen (2011) 244 CLR 462 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 Lau v The Queen [2011] VSCA 324 Lowe v The Queen (1984) 154 CLR 606 Ngo v R [2017] WASCA 3 PG v R [2017] NSWCCA 179 Power v The Queen (1974) 131 CLR 623 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Dyson [2023] NSWCCA 132 R v Kaldor (2004) 150 A Crim R 271 R v Lee [2007] NSWCCA 234 R v Morabito (1992) 62 A Crim R 82 R v Nguyen; R v Pham [2010] NSWCCA 238 Rae v R [2011] NSWCCA 211 Shortland v R [2013] NSWCCA 4 Totaan v R [2022] NSWCCA 75 Wong v The Queen (2001) 207 CLR 584
Category:	Sentence
Parties:	Rex (Crown) Tony Maaz (Offender)
Representation:	Counsel: Ms K Curry (Crown) Mr G Stanton (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) McGirr & Associates (Offender)
File Number(s):	2020/349158