R v Youkhanna

[2021] NSWDC 513

District Court

New South Wales

Medium Neutral Citation:

R v Youkhanna [2021] NSWDC 513

Hearing dates:

22 January 2021

Date of orders:

1 March 2021

Decision date:

01 March 2021

Jurisdiction:

Criminal

Before:

M Adams QC ADCJ

Decision:

With the application of a 25% discount the offender is sentenced to imprisonment for a period of 4 years. There is to be a non-parole period of 2 years and 6 months.

Catchwords:

CRIMINAL LAW – Sentence – Possess commercial quantity of border controlled drugs – Cocaine – Role of courier

Legislation Cited:

Crimes (Sentencing Procedure) Act

Criminal Code (Cth)

Category:

Sentence

Parties:

The Crown - Cth
Ashoor Youkhana – Offender

Representation:

Counsel:
C Brain – Cth
A Djemal - Offender

Solicitors:
Director of Public Prosecutions (Cth)
Miers Legal - Offender

File Number(s):

2019/118182

Judgment

Introduction

1. The offender Ashoor Youkhana pleaded guilty in the Local Court on 19 February 2020 of one count of possessing a commercial quantity of border controlled drugs, namely cocaine, contrary to s 307(1) of the Criminal Code (Cth). The applicable penalty is imprisonment for life or 7,500 penalty units or both.

2. The offender was arrested on 15 April 2019 and granted bail on 26 August 2019. The bail conditions were highly restrictive of his liberty and should be taken into account. His period of custody must also be taken into account. I have adjusted for these circumstances by backdating the sentence to 1 March 2020.

Facts

3. The following account is largely drawn from the agreed statement of facts that was tendered by consent in the proceedings. The offender and a co-offender Damian Flower were known to each other. By phone conversations between them on 11 and 14 April 2019 they arranged to meet. Flower was an associate of a third co-offender, John Mafiti, who was employed by Qantas as a baggage handler at all relevant times. The offender and Mafiti were not known to each other prior to 15 April 2019. In the morning of 14 April 2019 Flower's phone sent the offender's phone a text message to meet at 10:30am. Between 3pm and 4:45pm on the same day Flower flew from Sydney to Coolangatta airport.

4. On 15 April 2019 Mafiti was rostered to work at Sydney International Airport between 6:30am and 2:30pm. At 8:59am he received a coded message from Flower identifying a baggage container, which had arrived on a flight from South Africa, from which he collected a duffel bag. He departed the airport and walked in the direction of the "Arrival Circuit" near a hotel at the airport and waited. The offender drove to that location in a utility vehicle belonging to his business. He was alone. Shortly after 3:30pm, Mafiti approached the passenger side of the vehicle, placed the duffel bag in the rear passenger seat and then departed the area in his own vehicle. He then sent a SMS message to Flower,reading, "Done ... on my way brother".

5. The offender then drove his vehicle about 90 metres, when he was stopped by officers of the Australian Federal police. His vehicle was searched and officers found a large black duffel bag locked with a small padlock on the rear passenger side seat. Inside the bag were plastic covered bricks with distinctive packaging and logos, a mobile phone connected to a battery pack and three other mobile phones, one of which was encrypted. The offender was arrested shortly after.

6. Analysis of the parcels in the duffel bag show that they contained a total of something over 19kg pure cocaine. Found on the offender's phone was a screenshot taken at 3:48pm on 14 April of a location where Flower had been observed on the following day prior to taking collection of a duffel bag from Mafiti on that date. Maffei and Flower were arrested on 22 May 2019 in relation to their involvement in the importation in this case and up to 44 other importations alleged to have been committed over a three year period. There is no evidence that the offender was involved in any of these other importations or that he was any more than a delivery person of the bag containing the cocaine on the day in question.

7. I am informed, and accept, that the basis for the offender's plea was that, although he did not admit to actual knowledge of the contents of the bag, he was reckless as to its contents. He was also unaware of the weight of the drugs. As is implicit from the above account, there is no evidence that the offender was party to organizing either the importation or the ultimate distribution of the drugs. He was a courier to an unknown destination. Mafiti was unknown to the offender. Flower was his friend. There is no evidence of any proposed payment. His limited understanding of the seriousness of the business in which he was engaged is demonstrated by the fact that he used his personal work vehicle, registered to his business.

8. The Crown submits that the offender had either actual knowledge or an actual belief that the bag contained a border controlled drug, relying on the overall circumstances of the delivery and where it took place in. proximity to the Airport. Whilst I accept that the evidence demonstrates enough to have raised in any reasonable person and, I would conclude, the offender, a substantial suspicion about the contents of the bag, namely that it was very likely to contain drugs of some kind, it seems to me that this goes no further than to establish recklessness about what was given into his possession for delivery. I do not think, however, that recklessness in this context is significantly less culpable than actual knowledge. Since the objective seriousness of the offence is greater when committed for financial reward, this must be established by the Crown beyond reasonable doubt. There is certainly ground for suspicion that this was so but, in the end, the evidence does not justify drawing this conclusion. Since I am dealing with the objective circumstances of the offence, I should state that even if it were the case (as claimed by the offender) that he was doing a friend a favour, this also does not reduce his moral or criminal culpability to any significant degree.

Criminal record

9. There is only one entry of a conviction, being an assault occasioning actual bodily harm committed on 2 May 2018 for which the offender was given a s10 bond for two years. The commission of the present offence was a breach of this bond.

Subjective material

10. Tendered in the proceedings were three psychological assessment reports, an affidavit from Linda Youkhana, the offender's wife, statements from a number of friends, the Presidents of the Assyrian Barwar Association and the Populist Chaldean Syriac Assyrian (Suraya) Iraqi Group, the Chaplain of the Assyrian Church of the East Youth Association, the Charity Chairman of the Assyrian Church of the East Relief Organization, and his wife's doctor as to her medical condition. Also tendered were Certificates of completion of several technical courses.

11. The Crown tendered a sentencing assessment report prepared by Community Corrections. The offender told the officer that he had become acquainted with the co-accused in the months prior to the offences, but refused to disclose details about how this had come about. He denied committing the offence for financial gain, although he agreed that a person delivering illicit material would usually expect a lucrative payment for their involvement. He took partial responsibility for the offence through accepting his involvement but denied that he was aware that he was transporting cocaine and, accordingly, he was unable to display insight into his offending behaviour.

12. The offender was assessed at a low risk of reoffending so that, if a supervised order were made, Corrections would suspend his in accordance with the applicable regulation. He was assessed as suitable to undertake community service.

13. The offender's personal history largely comes from the psychological reports to which I have referred. He Is the youngest of six children and the only male child born to his family of origin. His mother passed away in 2012 and he and his siblings were born in Iraq. Two of his sisters reside in the United States, one resides in the United Kingdom and two reside in Sydney. His father worked for the UN and the family had a good and comfortable life in Iraq. They left Iraq in 1994 because his father wanted a better life for the family. The offender is an Australian citizen and has lived in Sydney since the family arrived here. The offender said the family is very close and they talk frequently. He acknowledged that his offence has impacted his intrafamilial relationships and stated that he had embarrassed both his father and himself by what he has done. His reputation, previously very high, has also been adversely affected. The offender was well educated and, when he came to Australia, completed a four year panel beater apprenticeship and has been in employment throughout his time here, for 15 years having his own business. That business has now been lost as a result of the current charge.

14. He attributed his involvement in the offence simply to a desire to help his friends.

15. Psychological testing does not reveal any particularly relevant issues although, unsurprisingly, he is intensely preoccupied with his current circumstances and worried about what might happen as a result. He is experiencing significant feelings of guilt, shame and remorse. Dr Pusey assessed his risk of reoffending as low although there are some risk factors chiefly involving difficulty in maintaining effective boundaries. Generally, the offender identifies very strongly with his identity as a husband, father and family member and is committed to these roles.

16. A psychological assessment by Ms Alison Cullen of the offender's wife notes that she has been suffering a long-standing medical condition for which he has sought psychological assistance. Following her husband's arrest she has been depressed and anxious, which conditions had been exacerbated by a miscarriage in May 2019. In September 2020 she gave birth to a daughter and suffered symptoms commensurate with postpartum depression, complicated by the anxieties arising from her husband's offence. Ms Cullen considers that, should the offender receive a custodial sentence, Mrs Youkhana will psychologically decompensate and require psychopharmacotherapy interventions in what is a difficult to treat disorder.

17. Mrs Youkhana's affidavit was read. She describes her husband as an incredibly generous man who contributes both to their community and others whom he knows. He finds it difficult to say no. The offender has always worked hard and established a business which brought great reputational and financial success but this has now all been lost. Following several traumatic miscarriages, Mrs Youkhana had two successful pregnancies, a son now aged almost 3 and a daughter about six months of age. She stated, and I accept, that she has suffered a history of anxiety and depression for which she has been treated over the years up to the present time. Amongst other family problems, the offender's sister has suffered and continues to suffer from metastatic breast cancer and is likely to require radio and chemotherapy. This will be all the more difficult without her brother's support, should he be incarcerated. He has also provided financial support.

18. The testimonials that have been provided in support of the offender bear witness to his excellent character and his significantly positive contribution to the religious and social life of his community. They state that they will support him and his family as he attempts to re-establish himself when the present charge has been dealt with.

Consideration

19. The maximum sentence is a cogent indication of the seriousness of the offence. Principles of general deterrence and denunciation are prime considerations in sentencing for offences of the present kind. Of course, it is necessary to take into account the limited extent of the offender's involvement and his otherwise good character. The evidence justifies the conclusion that this was a single aberration which is unlikely to be repeated. His criminal culpability is at the lower end of objective seriousness though, of course, all links in a chain are significant.

20. Although the sentencing discounts provided for by the Crimes (Sentencing Procedure) Act 1990 do not apply to Commonwealth offences, it is clear that the utilitarian value of a plea should be taken into account in reducing the sentence as a matter of public policy. I am informed that the plea followed negotiations but I do not think that this reduces its utilitarian worth. I am satisfied that a utilitarian reduction of the sentence otherwise to be imposed of 25% is appropriate. The Crown case was strong but far from overwhelming. Conviction was far from certain and the plea provides some evidence of remorse. I am satisfied for this reason and on the basis of the material tendered in the defence case, that the offender is indeed remorseful.

21. I note that the Crown accepts that the offender presents a low risk of reoffending.

22. I do not consider that the likely hardship to the offender's family, though naturally exciting sympathy, is sufficiently exceptional to warrant any significant mitigation in punishment. However, I would accept that the offender’s incarceration will be for him more difficult to cope with since he would be unable to be of any effective assistance, especially with his two very young children.

23. In the result, I consider that only a sentence of full-time imprisonment can answer the requirements of the law for general and personal deterrence and mark the denunciation by the community of the commission of offences of the present kind.

Sentence

24. The sentence that would have been imposed but for the utilitarian discount is imprisonment for 5 years and 6 months. In the result (rounded down) the sentence is 4 years imprisonment commencing on 1 March 2020 with a non­ parole period of 2 years and 6 months.

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Decision last updated: 27 September 2021