R v Mousa - [2021] NSWDC 799

District Court

New South Wales

Medium Neutral Citation: R v Mousa [2021] NSWDC 799
Hearing dates: 17 September 2021
Date of orders: 21 October 2021
Decision date: 21 October 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [81]

Catchwords:
CRIME – Commonwealth sentence – Attempt to possess a commercial quantity of a border-controlled drug – strong subjective case – use of unsworn statements in sentence proceedings

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW)
Criminal Code (Cth)

Cases Cited:
Lai v R [2021] NSWCCA 217
Leroy v R (1984) 2 NSWLR 441
R v Elfar [2003] NSWCCA 358
R v Imbornone [2017] NSWCCA 144
R v Olbrich [1999] HCA 54
R v Qutami [2001] NSWCCA 353
R v Sultana (1994) 74 A Crim R 27
R v Wilkinson (No 4) [2009] NSWSC 323

Category: Sentence
Parties: Crown
Montasir Mohamed Mousa (Offender)
Representation:
Counsel:
Mr D Berents (Crown)
Mr A Kimmins (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Simon Joyner Lawyers (Offender)

File Number(s): 2019/00351186

SENTENCE

OFFENCES

Montasir Mohamed Mousa appears for sentence with respect to one substantive offence charged pursuant to ss 11.11 and 307.81 of the Criminal Code (Cth), namely attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported. The quantity relevant to the Commonwealth legislation relates to the pure quantity of the drug which in the present circumstances was broadly speaking between a little under 900 and a little over 900 grams and a little over 1 kilogram of pure methamphetamine. The precise figures were 859.3 to a range of up to 1.329 kilograms. Such an offence carries a maximum penalty of life imprisonment and/or a substantial fine or both.
There is a further matter relating from the circumstances which has been charged pursuant to ss 11.11, 11.21 and 307.81 of the Criminal Code (Cth), namely aiding and abetting the possession of a commercial quantity of a border controlled drug which carries the same maximum penalty if prosecuted on indictment and separately. That has been placed on a Commonwealth schedule 16BA schedule to be taken into account in dealing with the substantive offence.

FACTS

The background circumstances that gave rise to this offending are set out in the Agreed Statement of Facts. In short, it would appear that a young woman named Katrina Ma, on the weekend of 2 and 3 November 2019, was at a party at a friend’s house in Sydney. That friend asked if he could have a parcel delivered to her house as she was at home all the time and would be able to accept a delivery of what was intended to be sent. He showed a picture of a man called Jonathan To on Facebook to her, apparently as being an indication that she could recognise the person who would come and collect the consignment from her after it was delivered to her premises. Ms Ma agreed to the proposal and she was provided with a mobile phone which had a text message from the freight company DHL already on the phone.
On Monday 4 November 2019, immediately after that particular weekend on which Ms Ma had agreed to be the recipient, a consignment comprising two large cardboard boxes was despatched by air from Bangkok, Thailand. The boxes were addressed to Katrina Ma at her address which was in St Johns Park, Sydney. The air-way bill described the contents as exhaust pipe plastic air connector. The consignment weighed some 56.5 kilograms.
The boxes arrived in Sydney the following day on 5 November 2019. Following an examination by officers of the Australian Border Force and also New South Wales Police, the consignment was ascertained to contain a total of 18 motorcycle exhaust pipes. Each of the exhaust pipes, on examination, contained packages which were wrapped in clingwrap and foil. The drugs contained in the packages were ultimately ascertained to be methamphetamine with a total net weight of some 14.754 kilograms. The purity of the drug ranged between 74.5% and 79%, indicative of the fact that it was in the form of ice. The agreed calculated pure weight of the methamphetamine was 11.441 kilograms.
The investigating officers replaced the drug with an inert substance and they reconstructed the method of concealment within the exhaust pipes. A number of listening devices were also placed in what might be described as customary investigative fashion within the consignment.
Katrina Ma, who had agreed the previous weekend to be the addressee, liaised with the courier company DHL regarding the date for delivery. She updated her friend, who had recruited her for that purpose, regarding when the consignment was expected to be delivered. On 7 November 2019, the consignment was delivered to Ms Ma’s St Johns Park address and Ms Ma advised her friend that it had been delivered.
In due course, the first offender or the co-offender of the present offender, that is Mr Jonathan To, arrived at the St John’s Park residence shortly before 2 o’clock that day. He went into the premises before coming out about 20 minutes later and then driving his vehicle up the driveway. He was taking the packages with him and he left in his motor vehicle a short time later. He was followed by police surveillance and he went to premises at Anderson Avenue, Mt Pritchard where he drove up the driveway and out of sight of the following officers.
The listening device which had been concealed within the consignment transmitted and recorded the offender using a handheld power drill, in an apparent attempt to drill through the pop rivets which secured parts of the exhaust, to the main part of the motorcycle exhaust body. The offender Jonathan To could be heard by these transmissions becoming increasingly frustrated as his attempts to open the motorcycle exhaust pipes were unsuccessful.
At approximately 4 o’clock, Mr To telephoned the present offender, Montasir Mousa, and asked him to come around to help him with what he was doing. The conversation is set out in detail in the Agreed Facts and it does not appear to be clear that he told him precisely what it was that he wanted help with. A little over a quarter of an hour later, at about 4.16pm, the offender Mr Mousa was observed arriving at the premises at Anderson Avenue Mt Pritchard, where To had been unsuccessfully trying to get into the inside of the motorcycle exhausts. He arrived in a motor vehicle and went inside.
Shortly after his arrival, the transmission continued on the recording devices and To said to the offender “There’s fucken 18 of these”, referring of course to the number of exhaust pipes. Mr Mousa said, “How many did you do?” To told him “None.” He said he was still trying to open the first one and he did not know how to open it. The offender was recorded asking “Is this what is comes in?” (sic) I am not sure whether that is a typographical error but that is the way that it appears in the Agreed Facts.
To said “Yeah”. The offender said “What’s in there?” and To said “I don’t know, I don’t know, there’s a” and then he said “It’s not Allen keys at all, you have to unscrew these, I don’t know what the fuck they are, are they pivots?” I am not sure whether he said “rivets” but it is typed as “pivots”. The offender no doubt observing what he could see said, “No you knock them out bro, knock them out, you put something there and poof it comes off.” Jonathan To said “I fucking popped one out already.” He said he tried popping that one and Mr Mousa was heard saying “See how it pops out, you’re not meant to grind it you’re supposed to (makes popping sound)” He made a popping sound and Mr To said that there were 18 of them and Mr Mousa was heard saying “I don’t know bro, I don’t know how you’re going to get through 18 bro.”
A minute or so later, Mr Mousa was heard saying “See what I mean…See how it pops up” and that conversation appears to be consistent with perhaps the successful removal of at least one or more of the pop rivets. To said to him “Be careful, the gears inside this too” and Mr Mousa was heard saying “It’s not the issue as long as you don’t punch forward, you’re punching sideways” and he asked for a hammer and Jonathan To said “That’s fucked up.” The offender said “You know what’s fucked up. These are actually cracker exhausts. These are actually cracker bike exhausts. You know what I mean” and proceeded to have a conversation, in effect, about the quality of the actual motorcycle exhaust pipes. To indicated that he did not think he needed an Allen key at all and they continued to have a discussion, in effect, about how best to remove the securing locking devices, which would appear to have been pop rivets.
Less than five minutes later, the offender was recorded saying to Mr To that he needed to go to Bunning’s and asked To if he wanted to come as well. At 4.36, the offender was heard telling Mr To that if he opened the exhaust pipes correctly, he could resell them and the offender said he did not think the people behind it, in effect, would really care. By then he agreed to go to Bunning’s. The offender was heard to ask “How much is it worth?” and that conversation is consistent with the recklessness which is implicit in his plea of guilty, at the very least, regarding what the contents were likely to have been.
He made reference to “one key.” He said “You know what I mean” and then he said he was sorry, he needed to go home. The two men then departed at about 4.40 which was less than half an hour after Mr Mousa had arrived at the request of his friend Jonathan To.
Police kept the two men under surveillance and observed them go to the Bunning’s store at Bonnyrigg and thereafter, followed them to premises at Canley Heights. It is part of the agreed circumstances that there was nothing that took place at Bunning’s which further increased the culpability of the offender.
After staying at the Canley Heights premises for a short period of time, Jonathan To in due course left and returned to his own premises and at shortly before half past 6 that evening, the police arrested the present offender. He was not in possession of any methylamphetamine or any other unlawful substance. I should in passing note that in the course of sentence proceedings against Mr To, who I sentenced in December 2020, in contrast to the present offender, Mr To was in possession of what might broadly be described as the indicia of involvement in drug supply.
In a record of interview, the present offender agreed that he got a call from Jonathan To. He said he was asked if he wanted to go over for a feed. He went to Anderson Avenue and did not, in that particular interview, disclose anything about his knowledge of either the exhaust pipes or any suspicion or knowledge as to their contents. In due course, a search warrant executed at the Anderson Avenue premises retrieved the various exhaust pipes including the two that had attempted to be opened fully. The offender’s fingerprints were located on the two exhaust pipes that were located on the floor that had obviously been the subject of the assistance, such as it was, that he provided in endeavouring to open those particular exhaust pipes. Of course, the contents of those are relied upon in the substantive charge with which he is presently before the Court.
The material in the balance of the 16 exhaust pipes which was a total of in broad terms approximately ten and a half kilograms pure of methamphetamine, comprises the material the subject of the second charge which is on the s 16BA schedule. It is abundantly clear that the attempt to possess related to the assistance provided physically and by description at the scene as to the attempts taken to open those first two exhaust pipes and the aid and abet in relation to the balance of 16 that had not even been attempted to be opened related to his encouragement, advice and assistance in relation to the method that might be utilised by To in due course endeavouring to open those pipes and procure their contents.

SUBJECTIVE FEATURES

Mr Mousa’s subjective background has been provided to the Court by means of a number of documents. I will refer to those in summary. A reference from Kevin Luu, a chiropractor, dated August of this year, indicates his knowledge of Mr Mousa’s present charges. He had first met the offender shortly after he had been released from Long Bay Correctional complex on bail with respect to the charges. I should observe of course that Mr Mousa, following his arrest, served almost five months in custody before he was granted bail.
In the course of his knowledge of Mr Mousa, Mr Luu indicates in his reference document that he had formed the view that the offender was a very friendly and reliable individual with a generous heart and strong family values. He described him being very open and honest about the charges and also his experiences whilst in custody. He indicated that Mr Mousa had told him that he committed the offence without fully comprehending the gravity of his actions and at the time of the offence, he was of the mistaken belief that he was simply helping his friend. Mr Luu concluded that Mr Mousa was being the altruistic person in providing assistance that he has subsequently come to know him to be. He indicated that Mr Mousa had arranged appointments for members of his family and friends at Mr Luu’s practice which would appear to have been a counselling service. He expressed how the various members of the family and friends had felt as a consequence of Mr Mousa’s incarceration.
Mr Luu deposes that in his view, Mr Mousa sincerely regretted his involvement in committing the offences and was concerned about the emotional, psychological and indeed financial hardship that he had caused his family and loved ones. He described the offender as having expressed deep remorse. He indicated that Mr Mousa had played a crucial role in supporting his family during that time which included the passing of his brother at some stage in circumstances that I will come to. Mr Luu speaks of aspects relevant to rehabilitation and describes the offender as having taken significant strides in his attempts to put what he describes as his mistake behind him and to move on. He described the offender having recently been married and to have moved from the family home and living with his wife. He described him having secured a job doing home deliveries and the fact that Mr Mousa was studying to obtain a real estate licence.
A reference has been provided also by Mr Alaa Kuku who is the Youth President of a society described as Sydney Sudanese Youth. Mr Kuku describes the youth community that he represents being taken aback at the news of the present offender having committed a drug offence. He described him as never having been the type that would cause any significant disappointment or harm to the community. Mr Kuku says that as the Youth President, he had seen Montasir Mousa throughout the years to always be kind-hearted to older and younger peers and determined to push himself to achieve bigger things in life.
He describes the offender as having taken part in many initiatives and having been a great helping hand in the community. He describes the offender as being a devoted member who often sacrificed his savings so that younger youth members could take part in extra curricular activities in order to assist keeping them away from as Mr Kuku described it “nuisance”. He said: “He’s consistently and continuously supported the committee to organise and make new programs for Sudanese youths who were new to Australia.” He said that “He had taken the initiative on many occasions to organise youth activities and to coach young Sudanese children in Oztag which of course is a form or similar to touch football.” He is known to be very giving to his family. He describes the remorse and contrition that he believes was being demonstrated by the offender following his release to bail.
A document confirming the offender’s enrolment with New South Wales TAFE doing a Certificate IV in Real Estate Practice has also been tendered. A further reference from Adid Alrubai, the community spiritual leader of the Muhajirun Association for community development at Blacktown and Mt Druitt, indicates that, as the chairman of that Association, he had known the offender’s family for some four years. He serves as their Islamic mentor and teacher. He had first met the offender and his siblings in late March 2017. At the request of the offender’s mother, he had held a weekly Islamic class for the offender and other members of his family in which they discussed good morals and teaching. That had occurred at the request of the offender’s mother Aisha. Aisha herself had been a student of Mr Alrubai during the time prior to that.
During the four years subsequently, he said that he got to know the offender very well, seeing how he interacted with his family and the close bond that he had with his mother and siblings. He described him as always being respectful to his elders and to his siblings. He described becoming aware of the hardship and terrible matters in the background that the family had been through to which I will come shortly. He described the family’s willingness to work through those past difficulties.
During the time they were living initially in Auburn, the family was, as he described it, recovering from homelessness and the offender was working to help his family financially as much as he could. He was described by the observation of the community’s spiritual leader, Mr Alrubai, as being the pillar of the household. He described the effect on the rest of the family following the arrest of the offender and his incarceration for the period to which I have referred.
He described the offender continuing to learn and set goals during his period of incarceration but shortly afterwards continuing his attendance upon Mr Alrubai. He described having been asked to be the Sheikh to marry the offender and his now wife. He described the offender upholding his duties and obligations to his wife and often calling to get advice. In the opinion of Mr Alrubai, the offender, in his view, had clearly learned from his past errors as he described it and appeared to be at a better place from all of the hard work it would appear pursuant to the moral teachings that he had learned. He similarly described the expressions of remorse and sorrow for the grief that had been caused to everybody around him by the criminal conduct of the offender.
The last of this category of reference material was under the hand of Moa Amin, who indicated having known the offender for some ten years. They had first come into contact in about Year 9 at High School back in 2012 and she, of course, having known him for that period of time, came to know his family extremely well and is now his wife. She deposes to her observations of him having always being someone who is reliable and trustworthy and as she described it, “placing others before himself.” She described him constantly assisting others in solving problems by whatever means was within his capability. She described that being reflected in the interactions with his family in particular.
She said “through the years of knowing him, she was aware of his troubled and difficult upbringing” and she describes the detail of that which I will come to shortly, when I deal with the psychological report. She describes the loss of his younger brother in July 2021 and the toll that that tragedy had taken upon the offender as well as other members of his family. She described the dilemma that he faces as a consequence of not being able to leave the residence whilst he was on bail as a consequence of his strict bail conditions.
She, similarly to all of the other deponents, describes her perception of his remorse and regret in relation to his criminal conduct. She expressed the opinion that she thought that the period of time in custody had indeed changed the offender’s perspective on life. She described his approach to their marriage and his stronger inclination towards the appropriate aspects of his religion which reflect in his humble actions and choices. She describes him pursuing the development of his communication skills and his pursuit of ability in English as a second language. She described his diligent work ethic in the job that he acquired delivering whitegoods while he was studying to get his real estate licence. She believed that he has subsequently turned appropriately into someone respectful, hardworking and appreciative of the privileges that were coming his way as a consequence of life, if I can put it in those general terms.

Detail of the offender’s background is set out in a detailed psychological report from Ms Sarah Brann, forensic psychologist. She describes the offender having been born in Sudan during the period of the Civil War in that country. He was the fourth of seven children. His father worked as a taxi driver and his mother was a full-time keeper of the house and involved in full-time child rearing with that number of children. His mother had been married to his father when she was but 13 or 14 years of age, consistently with the culture in which they were brought up, and she was about 20 years of age when the offender was born. This, of course, was a culturally normative aspect of life in Sudan and although described as seemingly young, his mother had limited life experience and education at the point that she commenced parenting.
The psychologist described the potentially traumatic events in the offender’s early life. These involved some matters of considerable notoriety in Sudan at that time including public executions and the massacre of many persons. The trauma does not necessarily require firsthand observation and no doubt, it was a difficult and indeed for a child, scary time to be growing up. The offender indeed reported frequently feeling scared as a child.
At about the offender’s turning four or five years of age, there was a change in the political regime in Sudan and there was significant political unrest. His father was captured and apparently starved and tortured over a period of about a fortnight. The family were not aware of what had happened to him but were of course distressed by his disappearance. When his father was ultimately located, he was found to be covered in blood, he had significant spinal injuries and he had been left in public in his underwear. This was culturally significant in humiliating the man as he breached standards of Islamic dress code current in that community. The offender described continuing to experience intrusive and trauma-related memories of seeing his father in public in that state. The family, in due course, escaped as refugees from Sudan and they sought asylum in Egypt.
The offender described his father thereafter as being a different and traumatised person. Prior to his capture and torture, his father had apparently been reportedly a model citizen who did not drink or smoke. He instilled positive values in his children. He was a hardworking individual and was frequently absent due to working long hours. All this contributed to distance in the relationship that the young offender had with his father. His father however, appeared to the psychologist on the account provided to her, to play a positive role in the offender’s life and to provide pro-social modelling.
After the torture of his father, the offender described his father as being psychologically and emotionally absent. He, thereafter, was not capable of supporting the children or his wife in the fashion that he had previously. These impacts upon his father’s capacity to be involved in parenting were described by the psychologist as representing intergenerational trauma that the young offender, the young man at that time, experienced.
Mr Mousa reflected upon how difficult it had been thereafter to grow up without the proper guidance of his father, particularly during times for the family of stress, insecurity, refugee status, migration to Australia in due course, levels of poverty and adjustment to a different society. Mr Mousa had described the world being unfair and there being injustice in many different aspects. His father had not been able to return to work and this had had a significant economic impact upon the family.
During the three years that the family were refugees in Egypt, the offender described the family living in extreme poverty. He and his siblings sold tissues and bottles of water on the street. It would appear that he lacked good nutrition during those years and did not eat a proper meal as it was described throughout the period. His mother was kind, giving and understanding and self-sacrifice and would go days without eating, in order to prioritise the children having access to food. Mr Mousa described a close relationship with his paternal uncle who, to some degree, played the role of father figure, who had also sought asylum with the family in Egypt.
In due course in March 2006, following support from the United Nations institutions, the family were able to migrate to Australia under a protection visa, issued by the Australian government. At that time, his uncle was not physically well enough to move and he died three days after the family departed for Australia. The loss of that significant father figure was a source of distress to Mr Mousa as was the family’s inability to be present at the time of his death or indeed to pay for appropriate burial practices.
The offender arrived in Australia when he was nine years of age. He described the transition to society in this country as being difficult. The cultural expectations were strikingly difficult. His childhood had been lived in a state of distress, poverty and war. He had been forced to grow up quickly and to gain a degree of independence, despite his extremely young age, through working to provide for the family and learning to cook. He had had no formal schooling.
In Australia, he was required to act in what is described as a culturally normative fashion for a nine-year-old and as a consequence, he felt forced to, in effect, act younger than he had been in his preceding years. He struggled, as he recounted it, to relate to children his own age, on the basis of difficulties with the language barrier, he not having been brought up speaking English and his considerably different past lived experiences.
The offender described that following the family’s migration to Australia, tension grew between his parents as his mother adopted to the normative culture, that is in Australia, and became more outspoken within the marriage. The offender described that he was not exposed to any domestic violence but that the conflict in due course contributed to his parents separating some three or four years after they had moved to Australia. Whilst he and the other children remain residing with their mother, his father returned to Egypt for some years. The offender described feeling hurt and resentful about that fact and that subsequently, notwithstanding the return of his father, his relationship with his father remains distant.
He described during his teenage years as not being subject to appropriate discipline guidance or other boundaries. He said that he and his siblings, in effect, raised themselves. He described his older brother becoming involved in some level of criminal activity and the family moving to Canberra for three years in an attempt to disrupt the relationships and peer groups that his brother had formed in Sydney. This apparently was unsuccessful and they ultimately returned to Sydney after some years.
His older brother is said to have become the dominant figure within the household and had become violent towards both his mother and the other siblings. The offender found himself unable to intervene and feeling fear and helplessness within the situation. However, he maintained close relationships with the family and as I say the current offending took place in the fashion that I have earlier described.
The circumstances of his younger brother dying unexpectedly in July 2021, was said to be in not suspicious circumstances. However, notwithstanding an autopsy, the medical cause of death was not in due course identified. He expressed to the psychologist the distress that he felt being unable to join the family to say goodbye before the body was taken as a consequence of the curfew that he was under as a consequence of his bail.
Notwithstanding his initial lack of English and lack of formal education, diligent application to his schoolwork by the offender ultimately lead to him successfully completing Year 12. The psychologist said that that represented a significant achievement, given that he had not started formal schooling until his arrival in Australia. He described gaining social acceptance by the time he was around about 15 years of age, having been supported prior to that through a specialised English as a second language class for some six years. Due to the cultural differences no doubt and inherent prejudices amongst some of his peers, he described having been bullied for some years until he was about 15 when he became able to attend mainstream classes and find some level of acceptance amongst at least some of his peers.
He worked not only from the early ages described overseas but subsequently in Australia he was involved in casual and various types of positions including trolley collection, dishwashing, cleaning at a cinema, working in numerous cafes, working as a mechanic, undoubtedly without full qualifications, working in retail factories and in logistics for a shoe company. He has had consistent employment and has never been fired nor has he experienced any performance issues or disciplinary action in the employments that he has held.
He described having partially completed a diploma in logistics at the time that he was charged but having subsequently undertaken and completed the diploma in real estate. Against such a background, it is perhaps not surprising and to this young man’s credit, that he does not have any criminal antecedents. He did not evidence, in the discussions with the psychologist, any apparent antisocial attitudes in relation to his general behaviour nor in his attitude towards authority.
He was diagnosed following the appropriate analysis by the psychologist, with Post-Traumatic Stress Disorder, having initially being diagnosed with such a disorder by a general practitioner in June 2021. He indicated that his family and the Sudanese community do not broadly understand or recognise the validity of mental health disorders and that the diagnosis as such would be a source of shame and he has consequently not disclosed the diagnosis to his family.
He was seen in some detail by the psychologist as exhibiting numerous symptoms consistent with such disorder. She was firmly of the opinion that he met the appropriate criteria for such a diagnosis pursuant to the DSM-V. He had been prescribed anti-depressant medication by the general practitioner but he had not been taking such medication consistently, due to concerns that he feels affecting his lack of mental clarity that is a side effect, as he perceives it, of such medication. It was advised to him by the psychologist that he should discuss those side effects with the prescribing medical practitioner so that adjustment might be able to be considered with regard to the dosage.
The retained psychologist administered the inventory of offender risk needs and strengths which is a substantial self-report tool, assessed by a static and dynamic criminogenic risks and treatment needs, in relation to forming an assessment as to the potential for recidivism. His response was considered pursuant to the appropriate criteria as being valid and able to be interpreted. His overall risk of reoffending pursuant to the overall risk index undertaken by the psychologist was described as average. She sets out the table by which such a conclusion is said to be justified and did not see the necessity to go into a detailed analysis of that material. She did describe, no doubt tempered to some degree by his experiences in the four months and 24 days that he spent in custody, together with his background and her assessment of his psychological and mental circumstances that the situation with the PTSD may lead to him finding, indeed in her view, likely finding a custodial sentence more onerous as a consequence of the symptoms which had previously worsened whilst he was in custody for a period thereafter.
In addition to that material to which I made reference, the Court has been provided with a Sentencing Assessment Report. It relevantly describes a deal of the background in less detail than already recounted, and pursuant to the Revised Level of Service Inventory utilised by Community Corrections, assessed his risk of reoffending as low. He was assessed as suitable to undertake community service work if and when it became available, pursuant to the provisions of the current and any public health orders which of course are of considerable variability at the moment.
In the Crown’s written submissions, the Crown reminds the Court of the various criteria and factors that are required to be considered pursuant to the relevant legislation. I note them. I do not see the necessity to itemise them seriatim. The Crown submits that the circumstance of the diagnosis of PTSD by the general practitioner and the subsequent similar conclusion by Ms Brann provides a basis upon which the Court could consider that his time in custody would weigh more heavily upon him. If I might respectfully observe, I think in the circumstances that was a proper concession by the Crown.
The Court is reminded in the Crown’s submissions of course of the reservation that initially was articulated quite clearly in R v Qutami [2001] NSWCCA 353 and subsequently in R v Imbornone [2017] NSWCCA 144 regarding the reservation that should be provided or held by the Court in giving way to untested out of court statements.
Before turning to the letter of apology from the offender, I should note the more recent firm observations of Bellew J in Lai v R [2021] NSWCCA 217 with which Bathurst CJ and Adamson J agreed. Bellew J, after referring in detail to what Whealy J, as his Honour then was, had said in the matter of R v Elfar [2003] NSWCCA 358 at [25] went onto say that there was in his view “no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents.” His Honour went so far as to say, “It follows then, in my view, such a practice is to be strongly discouraged.”
I note and respectfully understand the basis upon which his Honour has expressed that view. That does not mean in my view that the Courts ought never to receive letters of apology. It is a practice which has developed and grown from the time prior to R v Olbrich [1999] HCA 54, which turned on an assessment by the then presiding District Court judge, Judge Howie, as his Honour was, at the time in the assessment of Mr Olbrich’s evidence where initially, Mr Hamill of counsel (as his Honour then was) had endeavoured to tender an affidavit of Olbrich’s without calling his client. Olbrich, in due course following objection, was called. He was cross-examined and he was not believed. That is not to say that documentary material ought never be received by the Court either by means of a third-party account through a psychologist, through a sentencing assessment report or indeed in some circumstances in correspondence from an offender’s wife or other members of his family or the offender himself.
What it does mean is that the Court should be cautious in accepting at full blush the assertions, particularly those that provide a mitigatory account in diminution of criminal culpability. That having been said, the strict rules of evidence not applying, the Courts regularly do receive such letters of apology and whilst the practice should be discouraged in the considered view of his Honour Bellew J, I do not take his Honour to mean that the Court should not receive such material at all and indeed, if there is to be a change in practice, it undoubtedly will to some degree be gradual.
I see no reason why, in relation to the account of the escape from Sudan and the ultimate approval to come under the assistance and protection of a protection visa from Egypt to Australia, this should not be a matter upon which I am entitled to accept and act upon in the circumstances of the present matter. Indeed, were there to be any challenge to that, I would expect that the Crown would be well placed to be in a position to take issue with such assertions. Be that as it may, the Court regularly receives references in which persons of good standing in the community describe expressions of remorse and contrition that they have witnessed or received from an offender.
Again, it would be impracticable for the workings of this Court to require such deponents invariably to be called to give evidence, notwithstanding that in some instances, the weight to be given is considerably improved by the calling of oral testimony and the availability of being subject to cross-examination, notwithstanding that frequently such an opportunity is declined by the Crown.
Similar observations can apply to a letter of apology and whilst I am conscious of the need for considerable reserve, I, notwithstanding the observations of Bellew J, propose to make reference to it in the present matter.
Mr Mousa says in his correspondence that he would like to express his intense remorse and regret for the actions that he has taken. He acknowledges his wrongdoings and the severity of the choices. By that, I take it he means the wrong choices that he has made in the past. He said he has developed an understanding and reflected on how ignorant, irrational and indeed his history had influenced his position, before the Court at present. He said he had processed the events and believed that it had helped him to realise his priorities in life.
He said that since his release from incarceration, he believes that he has made progressively mature decisions for himself and those around him. He said that not only did he feel a sense of regret, but he also felt a sense of disappointment towards himself by not only hurting those who were dear and close to him, but also affecting the path of his own future as a consequence of his conduct. He said that he believes that what he has done in the past year and nine months since his release by his progressive actions are indicative of his desire to proceed into a positive and nurturing future.
He described having let the historical events of his upbringing to have influenced his actions to a deeper degree than he had realised. He said that during his time in custody, he had realised the wasted potential which he had neglected and the many opportunities that the community had given him and was still able to provide.
He described his subsequent marriage to his partner with whom he has been in a close relationship for now ten years. He said keeping in mind their joint future and having what he describes now as a correct mindset of priorities, he has accomplished at least one of his current aspirations to be somebody who is part of the community. He described having secured his licence in real estate but as a consequence of the current Covid-19 circumstance, this correspondence having been completed some months ago, he had not yet secured a job in real estate as he hoped. He was, however, not stopped from attaining employment and was working in the delivery job to which I have made earlier reference.
He said that through reflection, he was now able to see the privileges that come with being a member of such a great community and country. He said that he has recently been inspired to give consideration to getting into humanitarian charity work which involves funding for providing basic human necessities for countries in Africa. He described that he is currently working to support his wife through her nursing studies with an aim of ultimately moving into their own residence and starting a proper future together.
He described the regret that he felt during the time of his incarceration for causing his mother to go through the pain of seeing one of her sons being locked up. He said that he could see the pain and torn, worried feelings that she was trying to conceal from him in the course of those visits. He described the guilt that he felt as a consequence of he himself being the son who his mother had had confidence in supporting and providing for the family and also been the son with whom his mother could console during the absence of his father. He described the effect upon himself and the family of the loss of his younger brother who died on 15 July this year.

He said in his letter of apology that he had done his absolute best to change his life around. He described being proud of himself in the things he has accomplished since getting out of gaol. He said that there are so many righteous acts that he had promised his younger brother who has passed away that he would accomplish and his intention is to successfully continue to fulfil those promises.
I should make it clear with no criticism of the legal representation of Mr Mousa but the situation articulated by Bellew J is something that all practitioners should be cognisant of into the future. That having been clearly observed, I also wish to make it clear that based on the totality of the material before me, including the multiple references to which I made detailed reference, the account provided by means of the detailed psychological assessment and by virtue of the Sentencing Assessment Report, prepared under the hand of an experienced Community Corrections officer for the very purpose of assisting a court in getting some perspective of subjective circumstances, viewed objectively by somebody from outside the family, that in the current circumstances, I am prepared to accept the emotions and sentiments expressed by the offender in his letter of apology as genuine, having given careful consideration to the reserve which I am required to both exhibit and hold and giving consideration to what is the appropriate level of weight to give to an unsworn document.
The Crown has provided for the assistance of the Court, in addition to the analysis of the various factors set out in the Commonwealth legislation, a number of cases by way of assistance and broad comparison. The present circumstances are, in my experience, quite unusual. The Court regularly deals with situations where somebody is either a courier or akin to a manual worker in either the collection, passing on, opening or some other menial aspect of what might be perceived to be some form of drug hierarchy in which the drugs are ultimately to be passed to and distributed by others.
In some circumstances, such as to refer to it again, the case involving Heinrich Olbrich, the Court was left not knowing whether as he claimed he was a mere courier or whether he was carrying on behalf of others which he claimed or whether indeed he was in effect a principal carrying it for himself. Ultimately, as the High Court said in circumstances where one cannot know what is behind the particular possession by somebody, one simply sentences them for what they in fact did.
In the present matter, Jonathan To was the person who, pursuant to what was clearly organisation by others with some level of sophistication and international connections, was the person who was to collect the package from the innocent recipient to whom it was addressed and he was then to remove what was secreted inside in order to pass it to whoever had either recruited him or whoever came to actually collect the material for the purpose of dissemination. He, on the material found by the police at his place of residence or place where he was staying, would appear to have been involved in some level of drug supply to some degree having been found with a ledger and scales and other so-called apparatus: see R v Sultana (1994) 74 A Crim R 27 relating to involvement in the drug trade.
Mr Mousa, on the other hand, had not been recruited by anybody to be involved in what was intended to happen. His friend, Jonathan To, who was also from a background that had come to Australia from overseas, albeit not from Sudan, rang him up in what seems to me to have been a state of frustration because he could not open the pop rivets that were securing the motorcycle exhaust pipes together. The recorded conversation gives rise to a potential or albeit, a possible suspicion, that Mr Mousa may have known what was afoot but certainly the Court could not be satisfied of such a circumstance beyond reasonable doubt. On the face of it, he was asked to come round to help. He went to help his friend. He did not take anything with him, he got there, he used his common sense which might have been better that Mr To’s to describe how one might remove pop rivets.
The surrounding circumstances must have given rise at the very least to a suspicion indeed bordering on the level of reckless understanding described in the various authorities that the contents were likely illicit and illicit narcotic substances. He may have had absolutely no knowledge as to the precise nature or indeed quantum of the quantity of the items. His physical assistance on the two exhaust pipes gives rise to the substantive charge before me. He was there at the premises for less than half an hour before agreeing to go with his friend or take his friend to Bunnings. The Crown specifically disavows any further act of aiding and abetting in the course of them being at Bunnings.
Counsel for the offender categorically describes his assistance as being peripheral. It was unplanned, it was opportunistic by Mr To to call his friend who perhaps he knew had more practical thought processes than he did and if there were any other reason for the phone call, it is not before this Court and is not something in relation to which the Court ought speculate.
He was described, as I say, as being involved notwithstanding the seriousness of the offending as being involved peripherally. I agree with that description and I agree with that precise calculation by counsel for the offender that he was there for some 24 minutes. That is a remarkably different level of aiding and abetting and assistance to most, if not the vast majority of cases, with which I have had experience over many decades in offences of this kind.
I am ultimately of the view that the circumstances of this offender and his prospects for rehabilitation are extremely good. There is always a degree of reservation in circumstances where somebody has been prepared to take part in criminal conduct but all of the material before the Court, including his Islamic counselling and teachings, his marriage, his progression to achieve a place with appropriate qualifications within this community and his desire to be a contributing member of the community, his lack of past criminal conduct in the present circumstances which might properly be distinguished from cases in which the lack of a past record is of little or no relevance where couriers and people of that kind are often recruited because they do not have criminal antecedents: see Leroy v R (1984) 2 NSWLR 441 per Street CJ at 446.
In the circumstances of this case, his lack of past criminal conduct, his conduct since his period of time in incarceration, all must speak of his underlying good character and point towards very good prospects for a future. Indeed, the finding by the Sentencing Assessment Report writer that he has a low risk of reoffending is, in my view, corroborated and supported by such considerations.

DETERMINATION

It is appropriate to take into account the fact that he has served almost five months in actual custody. He did not plead guilty until the time that the matter came almost at trial and pleaded in this Court. Accordingly, it was not a plea at the earliest opportunity. The practical circumstances and the utilitarian value do in my view, however, still attract a utilitarian discount in the vicinity of about 15%.
I note that such a figure is slightly more than his Honour Johnson J though appropriate in R v Wilkinson (No 4) [2009] NSWSC 323 but in all of the circumstances, I think a figure of approximately 15% would be appropriate. I think that, ultimately, I need to take into account the fact that he has done almost five months and by means of taking those five months into account and by means of an appropriate discount, in my view, a sentence of two years would be an appropriate time for him to serve.
Given that conclusion and having taken into account the additional matter on the 16BA schedule in coming to that figure, I turn my mind to whether or not the appropriate method of incarceration is one which would permit him to serve that sentence in the community. I am ultimately of the view that in the particular circumstances of this offender and his level of involvement in the matters before the Court that it is appropriate that he serve that sentence by way of an Intensive Corrections Order. I take into account the charge on the s 16BA schedule.
Mr Mousa, you are convicted. Taking into account a discount for the plea of guilty and the time that you have already spent in custody, you are sentenced to a term of imprisonment of two years. That sentence pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act1999 (NSW) is to be served by way of Intensive Correction Order. The sentence will commence on today’s date, 21 October 2021. You must report to the Community Corrections office at Liverpool as soon as practicable but no later than seven days from today’s date. The standard conditions of the order will apply. You must not commit any offence and you must submit to supervision by a Community Corrections officer. The following additional condition will apply. You are to undertake community service work for a period of 200 hours. A copy of this order will be provided to you electronically by the Court Registry and to your legal representatives and will be explained by Community Corrections.

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Decision last updated: 05 July 2022

Medium Neutral Citation:	R v Mousa [2021] NSWDC 799
Hearing dates:	17 September 2021
Date of orders:	21 October 2021
Decision date:	21 October 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [81]
Catchwords:	CRIME – Commonwealth sentence – Attempt to possess a commercial quantity of a border-controlled drug – strong subjective case – use of unsworn statements in sentence proceedings
Legislation Cited:	Crimes (Sentencing Procedure) Act1999 (NSW) Criminal Code (Cth)
Cases Cited:	Lai v R [2021] NSWCCA 217 Leroy v R (1984) 2 NSWLR 441 R v Elfar [2003] NSWCCA 358 R v Imbornone [2017] NSWCCA 144 R v Olbrich [1999] HCA 54 R v Qutami [2001] NSWCCA 353 R v Sultana (1994) 74 A Crim R 27 R v Wilkinson (No 4) [2009] NSWSC 323
Category:	Sentence
Parties:	Crown Montasir Mohamed Mousa (Offender)
Representation:	Counsel: Mr D Berents (Crown) Mr A Kimmins (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Simon Joyner Lawyers (Offender)
File Number(s):	2019/00351186