Habkouk v R

1. [1]

   THE COURT: The applicant seeks leave to appeal out of time against his conviction on 31 January 2024 following a trial in the District Court before Fitzsimmons SC DCJ and a jury of an offence of attempting to possess a commercial quantity of unlawfully imported heroin contrary to ss 307.5(1) and 11.1(1) of the Criminal Code (Cth). The applicant also seeks leave to appeal (again out of time) against the sentence imposed on him by Fitzsimmons SC DCJ on 19 April 2024 of a term of imprisonment of 15 years with a non-parole period of 11 years, which was backdated to commence on 20 April 2023. The applicant concedes that leave to appeal against the conviction is required because the proposed ground of appeal raises a question of fact.

2. [2]

   The applicant advances three grounds of appeal:

3. [3]

   The applicant had filed a notice of intention to appeal on 26 April 2024. However, the notice of appeal itself was not filed until 11 June 2025. No point was taken by the Crown in relation to the delay in filing the notice of appeal. It appears that the reason for the delay was the applicant’s family was not in a position to fund the appeal any earlier. In the circumstances, it is appropriate to extend the time for the filing of the notice of appeal until 11 June 2025. However, for the reasons that follow, the appeal should be dismissed.

Background facts

1. [4]

   It was common ground at trial that the heroin was imported from Malaysia by the applicant’s brother, Mr Guy Habkouk, using the name “Michael Stevenson” and was concealed in four lead containers that had been secreted behind removable panels of a large bakery mixing machine. Three of the panels (referred to as Panel F, Panel G and Panel H) were at the back of the machine. A fourth panel (Panel E) was on the top of the machine when it was standing on its feet. In all, the lead boxes contained 566 wrapped blocks of heroin weighing 143.39 kilograms. The machine itself weighed approximately one tonne and was approximately 180 to 190 centimetres high when standing on its feet. The machine, which was referred to at trial as vertical mixer 2 (VM2), was one of two vertical mixers containing heroin that were imported by the applicant’s brother.

2. [5]

   Upon the arrival of the two mixers in Australia, they were examined by Australian Border Force officers, who discovered the heroin. On 28 December 2020, the Australian Federal Police (AFP) removed the heroin and reconstructed the mixers to correspond to their original appearance. The evidence in relation to VM2 was that the lead of the boxes was very soft; and that it would be possible to cut into the boxes without the use of power tools. The boxes were sealed at the seams with a white substance and it was possible to lever them open using a screwdriver. When the boxes were replaced in VM2, they were not resealed. Although the evidence refers to three panels at the back of VM2 corresponding with the three lead boxes located there, without seeing the photographs that were in evidence, that description is somewhat misleading. At the back of VM2 were two large white rectangular panels with horizontal (when the machine was standing on its feet) strips cut into them. Like Panel E, those panels were held in place by screws. Unlike Panel E, behind those two panels were silver metal panels held in place by tack welds. In order to gain access to what lay behind the silver metal panels, the AFP cut the tack welds using an angle grinder. Behind the silver metal panels were areas which, as has been said, were described as Panels F, G and H, which contained the lead boxes. When the machine was re-assembled, the silver metal panels were not re-welded. However, the white panels at the back and Panel E (which was also white with horizontal cuts) at the top were re-attached using the original screws. It is apparent from the photographs in evidence that Panel E was held in place by 14 screws. The machine was then re-wrapped in layers of plastic. After the two machines were reassembled and placed on their original palettes, the AFP monitored their movement.

3. [6]

   Between 8 February 2021 and 10 February 2021, Mr Guy Habkouk arranged for VM2 to be delivered to a storage unit at 113 Hunter Street, Hornsby (the Storage Unit), which on 8 January 2021 had been leased by Mr Benham Yekta under the name “Can Do Projects Pty Ltd”. Mr Yekta was a friend and an associate of both Guy Habkouk and the applicant.

4. [7]

   The dimensions of the Storage Unit were not in evidence. However, photographs and video images show that it was a substantial space in which a forklift truck could manoeuvre and which contained other items, including an excavator (belonging to Mr Yekta), some tool boxes, ramps, some ladders, some scaffolding equipment, air compression equipment, work benches and power tools. At one end appears to be space for a small office.

5. [8]

   Prior to the delivery of VM2 to the Storage Unit, Mr Guy Habkouk purchased a “RF Tracer Bug Detector and Wireless Camera Detector” from OzSpy Security Solutions Brunswick, located in Victoria, which was delivered to Mr Montaze Baroudi, a close associate of Guy Habkouk.

6. [9]

   The applicant was interviewed by the police, and the record of interview was tendered and played at the trial. The applicant said that he was a good friend of Mr Yekta, that he did an apprenticeship with him and that they shared a warehouse together. The applicant said that he had a poor relationship with his brother and they had not spoken for some time. He said he knew nothing about VM2 except that Mr Yekta had asked him to assist with its delivery, which he did. The applicant said that he understood that the delivery was being made on behalf of someone who subleased the Storage Unit from Mr Yekta, although the applicant did not know the person.

7. [10]

   In order to trace the movements of VM2, the AFP conducted physical surveillance of the Storage Unit. It also installed a listening device in the Storage Unit and video recording equipment outside the Storage Unit facing the entrance. Relying on those three sources of information, the AFP prepared a detailed timeline of events which became Exhibit 22 at the trial.

8. [11]

   The surveillance indicates that at 6.45 pm on 10 February 2021 the applicant entered the Storage Unit through the pedestrian door and opened the garage door at the front of the Storage Unit. At about the same time, Mr Yekta, using a forklift vehicle took VM2, which was sitting on a palette, from the back of a truck and placed it on the floor of the Storage Unit. At 6.48 pm the applicant closed the garage door from the inside and Mr Yekta, after parking the forklift outside the Storage Unit, entered the Storage Unit using the pedestrian door. Shortly before that time, the applicant left the Storage Unit briefly to collect a black hard case. It was the prosecution’s case at trial that the jury should infer that the case contained the equipment that Mr Guy Habkouk had bought from OzSpy Security Solutions. However, there was no evidence that that equipment was contained in the black case or that the applicant ever had possession of the equipment.

9. [12]

   Both the applicant and Mr Yekta left the Storage Unit at 7.00 pm. At that time, the applicant was carrying the black hard case. The timeline records that no sound was detected by the listening device during the period from 6.47.39 pm and 7.00 pm. However, part of the recording during that time was played to the Court (and the jury) and it was apparent that there were some banging sounds for a period of about one minute during that time.

10. [13]

    A transcript of messages taken from Mr Yekta’s telephone, which formed Exhibit 31 at the trial, show that between 6.28.21 pm and 6.57.49 pm on 10 February 2021 Mr Yekta had a WhatsApp conversation with a person identified as “Phumi”, who was in Thailand at the time. There was no evidence of who Phumi was, but it is relevant to note that the evidence was that Mr Guy Habkouk was in Thailand at that time. The conversation was in the following terms:

11. [14]

    The timeline indicated that at approximately 9.33 am on 11 February 2021, the applicant arrived at the Storage Unit carrying a black hard case. He entered the Storage Unit and left approximately 13 minutes later. He returned on three occasions that day: at 11.58 am for approximately 70 minutes; at 1.29 pm for approximately 61 minutes and at 2.46 pm for approximately 34 minutes. The timeline records that at approximately 12.39 pm the listening device detected sounds within the Storage Unit over the following two minutes. That recording was played to the Court (as it was to the jury). The sounds include sounds consistent with plastic being unwrapped. Between the second and third visits to the Storage Unit, the applicant attended “Tradelink Hornsby Trade” for approximately five minutes. Between the third and fourth visits, he attended “Hardware & General Hornsby” for 8 minutes. The timeline also records that at other times (between approximately 1.48 pm and 2.16 pm and between 2.56 pm and 3.06 pm) the sound recording device picked up the sound of power tools in operation.

12. [15]

    In his statement to police, the applicant said that he did not know why he visited the Storage Unit on 11 February 2021, that he did not do much work there and he was not aware of having ever used power tools or an angle grinder while there. He said that he never touched VM2, that when he went to the Storage Unit on 11 February 2021, it was unwrapped and had been pulled apart, but he did not know who had done that. At trial, one of the Crown’s witnesses accepted in cross-examination that situated directly behind the Storage Unit was a motor mechanic business which used power tools. The suggestion, although not specifically put to the witness, was that the sound of power tools that had been recorded by the listening device could have come from there.

13. [16]

    Also tendered at trial was a transcript of WhatsApp messages taken from Mr Yekta’s telephone which included the following messages sent on 11 February 2021:

14. [17]

    The timeline shows that the applicant went to the Storage Unit on 12 February 2021 for a period of approximately six minutes. He was observed leaving the unit carrying a vacuum cleaner.

15. [18]

    With one irrelevant exception, no one else visited the Storage Unit until 16 February 2021.

16. [19]

    On 15 February 2021 at 2.07 pm, Mr Yekta arranged with Mr Madih Ahmad El Kordy to attend the Storage Unit the following day to collect and to dispose of VM2. The next day, Mr Yekta met Mr El Kordy at the Storage Unit at approximately 9.36 am. Mr El Kordy backed his truck up to the entrance of the Storage Unit. Mr Yekta used the forklift to lift VM2 onto the truck. Those events were recorded by the video surveillance camera. The relevant video was played to the Court (and again to the jury). It is apparent that Mr Yekta and Mr El Kordy had some difficulty in loading VM2 onto the truck. Eventually, it was toppled into the truck. By that stage, some parts had been separated from the mixer, although it is not entirely clear whether all the parts were separated beforehand or whether some parts came off while VM2 was being placed on the truck.

17. [20]

    Mr El Kordy left the Storage Unit at 9.55 am with VM2 on the back of his truck. The police followed him to his residential address at Villawood, Sydney where they seized VM2. At that time, they observed that Panel E had been removed from VM2 as had the lead box that was behind Panel E. It is apparent from photographs taken at the time that a roughly rectangular hole had been cut into the lead box behind Panel E. The lead boxes behind the other panels remained in place, although the panels themselves had been removed from the machine.

Ground 1

1. [21]

   The question for this Court in determining whether the verdict of a jury is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ), cited most recently with approval by the High Court in R v ZT [2025] HCA 9; (2025) 99 ALJR 676 at [7] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

2. [22]

   In the present case, the applicant submits that the jury could not have been satisfied beyond reasonable doubt that Mr Yekta alone had not sought to possess the heroin that had been placed in VM2. In his submission, there were three possibilities. One was that the applicant had attempted to possess the heroin. The second was that there was a joint attempt to possess the heroin by the applicant and Mr Yekta. A third possibility was that Mr Yekta had attempted to possess the heroin alone. In the applicant’s submission, the prosecution had not negatived the third possibility beyond reasonable doubt.

3. [23]

   That submission cannot be accepted. In our opinion, it was open to the jury to conclude beyond reasonable doubt that Mr Yekta could not have attempted to possess the heroin alone. The steps that were taken in an attempt to possess the heroin relevantly included the unwrapping of VM2, the removal of Panel E, the extraction of the lead box behind Panel E and the cutting of a roughly rectangular hole in that lead box. If Mr Yekta had attempted to possess the heroin alone, he must have taken all those steps in the 13 minutes between approximately 6.47 pm and 7.00 pm on 10 February 2021. VM2 was not delivered to the Storage Unit until about 6.30 pm on that day. Prior to 6.47 pm Mr Yekta was using the forklift vehicle to place VM2 in the Storage Unit. At the time, the mixer was on a pallet and wrapped in plastic. Both Mr Yekta and the applicant left the Storage Unit at 7.00 pm. Mr Yekta did not return to the Storage Unit until after VM2 had been dismantled. The jury was entitled to conclude that it would not have been possible for Mr Yekta alone to have taken all of the steps in the time available. VM2 was a large machine wrapped in layers of plastic. It would have taken some time to remove that plastic. Assuming that Mr Yekta knew in advance exactly where Panel E was and to look behind it, it would still be necessary for him to unscrew 14 screws and remove the panel. It would then have been necessary for him to retrieve the lead box. The evidence at trial was that to do that, it was necessary to lever it out with a screwdriver. It would then have been necessary to cut the hole in the lead box. It is unclear how that occurred. The evidence at trial was that using some force it would have been possible to do that with a screwdriver, although the images of the hole suggest that it was more likely done with a machine, since the cuts that form the rough rectangle go beyond the actual hole. However, it does not matter how it was done. What matters is that it is obvious that it would have taken some time to do. Taking all the steps together the only reasonable conclusion is that it would not have been possible for one person alone to carry out all those steps in 13 minutes. The conclusion that Mr Yekta alone did not dismantle VM2 on 10 February 2021 is supported by several other considerations.

4. [24]

   First, just before 7.00 pm, Mr Yekta sent photographs of VM2 still wrapped. The likelihood is that he took those photographs shortly before he left. The request for photographs was made at approximately 6.30 pm. Mr Yekta could not have taken them immediately, since he was taking delivery of VM2 at the time and the photographs he took show VM2 still wrapped on a pallet sitting on the floor of the Storage Unit. It follows that they must have be taken some time after 6.45 pm. The photographs follow the message “All done”, which suggests that the photographs record the completion of whatever tasks were undertaken at that time. It is unclear why Phumi wanted photographs of VM2. It is reasonable to infer that Phumi was a pseudonym for Mr Guy Habkouk. But even assuming that it was someone else with an interest in the safe arrival of the machine, if the true position is that Mr Yekta had unwrapped VM2 before leaving the Storage Unit at 7.00 pm, it is reasonable to infer that he would have taken photographs of the unwrapped machine.

5. [25]

   Second, the sound recording device clearly records the sound of plastic being unwrapped on 11 February 2021. No such sound is recorded on 10 February 2021.

6. [26]

   Third, the length of time that the applicant spent at the Storage Unit on 11 February 2021 is more consistent with the types of activities that were undertaken in an attempt to obtain possession of the heroin. Both at trial and on appeal considerable attention was devoted to whether the listening device installed in the Storage Unit recorded the sound of power tools and whether the use of power tools was necessary to dismantle VM2 in the way that it had been. There was also an issue about how the applicant could have removed Panels F, G and H, given the weight of the machine and the fact that it was lying on its back. But none of that is significant in relation to the question whether Mr Yekta alone could have attempted to obtain possession of the heroin. What is significant is that however it was done, it would take some time because of the tasks involved.

7. [27]

   Fourth, on the evening of 11 February 2021, the applicant sent Mr Yekta a WhatsApp message which said “Hey bro what’s going on the place is a mess? Can you get Michael to clean up his shit.” That message and the subsequent ones are cryptic. However, it is reasonable to infer that the applicant was telling Mr Yekta that there was no heroin and that he should arrange for VM2 to be disposed of. If the true position was that Mr Yekta had obtained access to the lead box behind Panel E on 10 February 2021, that exchange of messages would have been unnecessary and it is to be expected that Mr Yekta would have taken steps immediately on 10 February 2021 to have VM2 removed.

8. [28]

   Fifth, it is unclear why the applicant went to the Storage Unit on 10 February if not to assist Mr Yekta to do whatever he was doing. The applicant said in his statement to the police that he went there to assist Mr Yekta to take delivery of VM2. However, the only thing the applicant did in that regard was open the garage door to the Storage Unit. It is not plausible that having gone there specifically to assist Mr Yekta in taking delivery of the machine he did not assist Mr Yekta with whatever else Mr Yekta did with the machine on that day.

9. [29]

   Taking those matters together it was plainly open to the jury to be satisfied beyond reasonable doubt that the attempt to possess the heroin had not been undertaken by Mr Yekta alone.

Ground 2

1. [30]

   In support of ground 2, the applicant relies on the following statements made by the Crown Prosecutor during the course of her closing address:

2. [31]

   And later towards the end of the Crown Prosecutor’s closing:

3. [32]

   These comments are said to be consistent with a summary of the closing address prepared by the Crown prosecutor at the trial judge’s request and are reflected in the following comments made by the trial judge during the course of summing up:

4. [33]

   The submissions to the jury and the trial judge’s summing up are said to result in a miscarriage of justice because they had the effect of excluding from the jury’s consideration the possibility that it was Mr Yekta and not the applicant who attempted to obtain possession of the heroin.

5. [34]

   We do not accept the applicant’s submission. The statements must be understood in context. The applicant’s case at trial was not that the prosecution had failed to exclude beyond reasonable doubt the possibility that Mr Yekta alone had attempted to obtain possession of the heroin on 10 February 2021. For the reasons we have given, that was not a realistic possibility. Rather, the applicant’s case at trial proceeded on the basis that, although the Crown did not rule out the possibility that the attempt to obtain possession of the heroin was made on 10 February 2021, its primary case was that the attempt was made on 11 February 2021. According to the applicant, there were too many gaps and uncertainties relating to that case for the jury to be satisfied that it had been proved beyond reasonable doubt. So, for example, it was said that the jury could not be satisfied that the sounds recorded by the listening device on 11 February 2021 were the sounds of power tools because the evidence established that the use of power tools was not necessary to obtain access to the contents of the lead boxes and the applicant, who was a builder, would have appreciated that fact if he had been the one who dismantled VM2. Even if the jury thought that the sounds were those of power tools, they could not exclude the possibility that the applicant was using the power tools for his business but had forgotten about it at the time he was interviewed by the police, or that the sounds had come from next door. Similarly, the evidence was that Panels F, G and H had been removed (although the lead boxes behind them had not been). However, given the weight and position of the mixer (lying with its back on the floor), it was difficult to see how the applicant could have removed those panels.

6. [35]

   It was entirely orthodox for the prosecution and the trial judge to explain to the jury that the question for them was whether the case against the applicant had been proved beyond reasonable doubt and that in answering that question they should put out of their minds what had happened to Mr Yekta and Mr Guy Habkouk and their own guilt or innocence. Evidence was led of what both did and that evidence was referred to by the prosecution and the trial judge. In that context, the submissions of the prosecution and summing up of the trial judge could not have been understood as saying that the jury should not take that evidence into account in determining whether the applicant’s guilt had been proved beyond reasonable doubt. Although perhaps poorly expressed, the statement by the prosecutor that “You are not here to decide what Mr Yekter [sic.] may have done or not done” and other statements to that effect, would not have been understood by the jury as saying that they should ignore what Mr Yekta and Mr Guy Habkouk had done, but simply as a repetition of the proposition that the jury was not concerned with their guilt or innocence.

7. [36]

   Moreover, as we have said, it was never suggested to the jury that they should conclude that the case against the applicant had not been proven beyond reasonable doubt because the prosecution had failed to prove beyond reasonable doubt that Mr Yekta alone had dismantled VM2. Consequently, to the extent that the statements made by the prosecution invited the jury to exclude consideration of that hypothesis, they involved no miscarriage of justice because they involved a statement to the jury to exclude consideration of an hypothesis that was not suggested to them.

8. [37]

   In any event, for the reasons already given in relation to Ground 1, we think that this a clear case where the proviso to s 6(1) should be applied. A substantial miscarriage of justice could not have occurred as a result of what was said by the prosecutor or trial judge about Mr Yekta in circumstances where, on the most favourable interpretation to the applicant, the jury was told to put aside an hypothesis – that is, that it was possible that Mr Yekta alone dismantled VM2 – which the jury acting reasonably could not have accepted.

Ground 3

1. [38]

   The applicant submits that his Honour erred in sentencing him, contrary to the principles set out in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) for ‘his role in the importation’, in circumstances where the applicant had been convicted of an offence of possessing or attempting to possess a border-controlled drug.

2. [39]

   For the reasons which follow, we have formed the view that his Honour did fall into error by his findings as to the applicant’s role in the importation of the drugs when he was convicted of attempting to possess the drugs that were imported. We have reached the conclusion, however, that no lesser sentence than that imposed by his Honour is warranted at law with the result being that the appeal should be dismissed. Before dealing with the ground of appeal, it is appropriate to set out relevant parts of the remarks on sentence (ROS), including the submissions of the parties which set the context for the sentencing judge’s findings.

3. [40]

   Following his conviction by the jury, the applicant was sentenced on 19 April 2024. In the ROS the sentencing judge set out the details of the offending based on agreed facts tendered by the parties. The relevant facts are addressed at [4]-[20] above and it is not necessary to repeat them here.

4. [41]

   His Honour set out the subjective circumstances of the applicant from the evidence before him. For present purposes, it is only necessary to summarise those matters.

5. [42]

   As to the applicant’s criminal history, the sentencing judge referred to the applicant’s convictions for aggravated break and enter, commit serious indictable offence, robbery in company and robbery while armed with a dangerous weapon. The applicant had served a period of imprisonment.

6. [43]

   His Honour referred to the psychological report of Dr Olav Nielssen. The applicant’s mental examination was “largely unremarkable” with Dr Nielssen considering the applicant did not meet any accepted criteria for diagnosis of any psychiatric disorder, and no treatment was recommended. He did note, however, that the applicant’s reported symptoms and behaviour in the years after his mother’s death were consistent with severe grief reaction. The applicant had a “relatively unremarkable history of substance abuse”, which included periods of excessive drinking and the occasional use of recreational drugs, mainly cocaine.

7. [44]

   When asked by Dr Nielssen about his mental health, the applicant recounted a difficult upbringing in which his family faced poverty, and he suffered financial exploitation at the hands of his father and brother. Additionally, the applicant’s adolescence was also severely affected by witnessing his mother’s fatal drug overdose.

8. [45]

   There were five letters of support before the Court, from the applicant’s wife, her mother and father, a colleague of the applicant and his bishop. These letters went to the applicant’s good character, his devotion to his family and his faith. In particular the letter of Ms Rebecca Habkouk, the applicant’s wife, outlined the financial and parenting support which the applicant provided to their family and in raising their young son.

9. [46]

   The Crown submitted the objective seriousness of the offence and the applicant’s moral culpability were high. In respect to the role of the applicant, the Crown submitted that he had a “trusted role and responsibility for [a] crucial aspect of the importation”. In oral submissions, the Crown reiterated that the applicant had “a significant role in the access of the drugs the subject of the importation” which included being central to the securing of the storage unit.

10. [47]

    The applicant submitted that the offence fell within the mid-range of objective seriousness on the basis that the Court could not be satisfied that the storage unit was leased for the sole purpose of accessing the drugs. It was submitted that the applicant had limited, if any, real contact with his brother who was central to the import operation. Counsel for the applicant on sentence conceded that it was open to his Honour to find that the applicant had “a trusted role and responsibility for an important aspect of the importation”.

11. [48]

    The sentencing judge accepted, as reflected in the agreed facts, that it was the applicant’s brother who imported the heroin from Malaysia to Australia. His Honour found that it was the applicant’s brother who oversaw the customs clearance, transport and storage of the consignment on arrival in Sydney. He found that there was no evidence that the applicant was involved in this activity. His Honour did, however, find that the applicant was involved in the securing of the storage unit in which he ultimately attempted to possess the drugs. He was not satisfied the unit was secured for the sole purpose of accessing the importation.

12. [49]

    The sentencing judge accepted the applicant’s submissions that there was an absence of evidence that he was involved in the importation, other than accessing the consignment in the storage unit. His Honour found there was no evidence the applicant was an investor, provided any finance or was to be involved in the later sale and/or distribution of the heroin.

13. [50]

    With respect to accessing the consignment in the storage unit, his Honour found that it was the applicant who dismantled VM2 on 11 February 2021 in order to retrieve the heroin.

14. [51]

    As to the applicant’s role, the sentencing judge made the following findings:

15. [52]

    In a section of the ROS under the heading “Relevant considerations” the sentencing judge referred to passages from the High Court’s decision in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64] per Gaudron, Gummow and Hayne JJ. His Honour then set out general propositions which emerge from the authorities when sentencing for drug importation offences citing R v Nguyen; R v Pham [2010] NSWCCA 238 (Johnson J, Macfarlan JA and RA Hulme J agreeing). His Honour stated:

16. [53]

    Being a Commonwealth offence, his Honour appropriately then turned to consider the relevant and known matters stipulated under s 16A(2) of the Crimes Act 1914 (Cth) (the Act).

17. [54]

    His Honour began by stating that:

18. [55]

    While the sentencing judge was not satisfied that the applicant knew the type or quantity of the drugs in question, his Honour was satisfied that the applicant knew “the consignment he was accessing contained a large and valuable quantity of illegal drugs”.

19. [56]

    With respect to the applicant’s lack of contrition, the sentencing judge said the following:

20. [57]

    His Honour found the complete absence of any expressions of remorse or contrition by the applicant was relevant in the overall formulation of an appropriate sentence.

21. [58]

    The applicant’s prospects of rehabilitation were found to be guarded. His Honour accepted that there were several prosocial factors but said that the applicant’s lack of contrition did not bode well for his prospects of rehabilitation.

22. [59]

    His Honour noted he had already made reference to the role of general deterrence and denunciation in sentencing for drug related offences, extracted above at [52].

23. [60]

    The applicant was aged 31 and was 28 at the time of the offending. Prior to his arrest he was actively engaged in the building industry and providing financially for his family. His Honour found that although the applicant’s criminal history was not an aggravating factor, it disentitled him to leniency.

24. [61]

    His Honour accepted that the applicant provided financial and non-financial support to his family. He said that it went without saying that the applicant’s incarceration would significantly impact his immediate family unit.

25. [62]

    His Honour held it was appropriate that the applicant’s 240 days in pre-sentence custody be reflected in the appropriate backdating of his sentence. His Honour also took into account 120 days of quasi-custodial conditions as a result of the strict bail conditions the applicant was subject to prior to sentence.

26. [63]

    On sentencing the applicant, his Honour emphasised the fact that both specific and general deterrence loom large given the supply of drugs serves to perpetuate the significant issue of illicit drugs in the community.

27. [64]

    His Honour imposed a term of 15 years’ imprisonment from 25 April 2023, expiring on 24 April 2038. The non-parole period was set for 11 years, with the earliest date of release being 24 April 2034.

Appeal

1. [65]

   As we have stated, the applicant submits that the sentencing judge erred in sentencing the applicant, contrary to the principles set out in De Simoni for his ‘role in the importation’, in circumstances where the applicant had been convicted of an offence of possessing or attempting to possess a border-controlled drug.

2. [66]

   We were taken to this Court’s decision in El Jamal v R [2021] NSWCCA 105 (El Jamal). The applicant referred to passages in that decision which outlined the imperative of a sentencing judge not to rely on findings of fact which constitute a different charge.

3. [67]

   The applicant submitted that some of the Crown’s submissions at the sentencing hearing suggested a broader criminality than an attempt to possess, going to the applicant’s role and responsibility for a crucial aspect of the importation. It was accepted by the applicant that regrettably, these Crown submissions were echoed without qualification by his counsel at the sentencing hearing.

4. [68]

   The applicant’s counsel referred to sections of the sentencing judgment where his Honour made reference to the applicant’s role in the importation of the drugs. We have extracted these passages above.

5. [69]

   In oral submissions, counsel for the applicant accepted that if any of those passages stood by themselves, the invariable inference would be that they were references to the “whole transaction” within which the applicant’s attempt to possess the drugs took place. He contended, however, that when the ROS is read as a whole, the repeated references by the sentencing judge to the importation of the drugs and the applicant’s role in that importation, makes good that the sentencing judge erred in sentencing the applicant for an offence for which he was not convicted.

6. [70]

   The Crown submits that when the sentencing judge’s reasons are read as a whole, it is plain his Honour was aware the applicant was not involved in the importation. In this sense, it is submitted that the applicant was sentenced on the basis of his involvement in attempting to possess the consignment.

7. [71]

   The Crown submits that having sat through a seven day trial (unlike El Jamal which was a sentence following a plea), it was clear to his Honour the applicant was not involved in importation arrangements, a fact expressly reflected in the agreed facts tendered at trial. This, the Crown says, is expressed in the sentencing judge’s summing up when he stated:

8. [72]

   The Crown submitted a key distinguishing feature between the applicant’s case and El Jamal is that here the agreed facts on sentence did not in any way assert the applicant was involved in the importation. In El Jamal, this Court found that the sentencing judge was responding to “the repeated urgings of the Crown to make findings about the applicant’s complicity in an importation offence”: El Jamal at [37].

9. [73]

   The respondent submits that the Crown did not at any stage suggest the applicant was involved in the importation but rather, contended his role was confined to the acquisition of the storage unit and activities he undertook on 10 and 11 February 2021. Unlike in El Jamal, the respondent submits that in this case the characterisation of the applicant’s conduct during the proceedings could not have been made the subject of a distinct charge: El Jamal at [37]. The respondent submits that this characterisation of the applicant’s conduct was echoed by his counsel.

10. [74]

    The Crown submitted that it can be inferred that the trial judge had the matters referred to at [71] at the forefront of his mind when he sentenced the applicant on the same day of the sentence hearing. The respondent says this is reflected in the fact his Honour said expressly that he:

11. [75]

    The Crown emphasised the sentencing judge’s reference to the applicant’s role in an “aspect of the importation” or “part of the importation” (emphasis added). It submitted that the use of this qualifying language was intended to reflect his Honour’s findings that the applicant’s role was confined to the final stage of the importation where the drugs were received and an attempt was made by the applicant to possess them.

Relevant legal principles

1. [76]

   The starting point for this ground of appeal is the decision of the High Court in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) (see Payne JA; Garling and Wright JJ agreeing) in El Jamal at [24]). In Olbrich at [16] - a case in which the applicant had pleaded guilty to the importation of narcotics - the High Court explained that “the sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs”. With reference to De Simoni the High Court said at [18]:

2. [77]

   Where an offender is convicted of a charge of possess or attempt to possess a large quantity of drugs, the particular circumstances relevant to both an importation offence and possession offence may be taken into account in the possession offence notwithstanding they could also be taken into account upon an importation offence: R v Lawless (Court of Criminal Appeal, 24 June 1994, unreported) (Lawless) at 4-5; El-Ghourani v R [2009] NSWCCA 140 (El‑Ghourani) at [37]; El Jamal at [29]. These circumstances have been referred to as consideration of the “entire transaction”: Lawless 4-5 citing R v Laurentiu & Becheru (1992) 63 A Crim R 402 at 415, “the entirety of the appellant’s involvement in the enterprise”: Balloey v R [2014] NSWCCA 165 (Balloey) (Adams J, Hoeben CJ at CL and Hall J agreeing) at [26], the “overall transaction”: El-Ghourani at [7], or the “overall context”: Tu v R [2011] NSWCCA 31 at [74]. The “entire transaction” and the “enterprise” referred to by the Court in Lawless and El-Ghourani was the “organised distribution chain” by which the drugs, once possessed, were sought to be used: El Jamal at [29]. To the extent that a consideration of the “entire transaction” brings into consideration complicity in the importation by way of aggravation, such conduct could have been made the subject of a distinct charge and accordingly ought not be taken into account: Tu v R at [142]; El Jamal at [31].

3. [78]

   The distinction between permissible and impermissible uses of evidence regarding the offender’s role in the importation when dealing with a possession offence, is not always an easy one to make: Balloey at [30]; El Jamal at [32]. Care must be taken in applying these authorities following the High Court decision in Olbrich and sentencing judges should not shift their focus in cases such as this from possession: El-Ghourani at [30]; El Jamal at [30].

4. [79]

   In El Jamal, Garling J at [64] set out three key principles arising from the authorities:

5. [80]

   In finding error had been established in El Jamal, Payne JA said at [37]-[38]:

Consideration

1. [81]

   We have come to the conclusion that the sentencing judge’s repeated references to the applicant’s role in the importation of the drugs in the context of assessing the objective gravity of the offending and the applicant’s culpability, establish the error asserted. In reaching this conclusion, we have not ignored the findings of his Honour set out at [71] and [74] above where he states that the applicant was not involved in the planning or organisation of the importation. Those findings, however, are followed by the multiple references to the applicant’s role in the importation.

2. [82]

   That role is said to have been a trusted one where the applicant was responsible for a crucial and important aspect of the importation. It was found the applicant was involved in the importation for financial gain. These findings may reflect the submissions made to his Honour by the Crown (and repeated by counsel for the applicant at the sentence hearing), but in the context of the ROS as a whole, they ultimately demonstrate an erroneous emphasis by the sentencing judge on the importation of the drugs and not the applicant’s attempt to possess them. His Honour’s references to the applicant’s role in the importation were primarily made in the course of his consideration of the circumstances of the offending and its objective seriousness.

3. [83]

   The conclusion that his Honour erred is reinforced by a further reference to the applicant’s involvement in the importation when his Honour was considering whether the applicant had shown contrition for his offending, being a relevant factor under s 16A(2)(f) of the Act. We have extracted that passage at [56]. His Honour takes into account the failure of the applicant to acknowledge “the consequences of being involved in the importation and potential circulation of the substantial quantity of heroin in the community”. This finding was despite, and contradictory of, his Honour’s earlier finding that there was no evidence the applicant would be involved in the sale of the drugs or their distribution.

4. [84]

   We do not accept the Crown submissions that the references by his Honour to the applicant being involved in “aspects” or “parts” of the importation show that on a reading of the ROS as a whole his Honour was considering the entire transaction and the applicant’s role in it. If his Honour was doing so, he did it in a manner which impermissibly brought into consideration the applicant’s complicity in the importation so as to aggravate the seriousness of the offending. The repeated references to the applicant’s role in the importation of the drugs leads to the conclusion that his Honour regarded that role as part of the criminality of the offence for which he was being sentenced.

5. [85]

   Having concluded that error is established, the applicant must be resentenced unless, in the exercise of the sentencing discretion afresh, we are of the opinion that no lesser sentence is warranted at law: s 6(3) Criminal Appeal Act; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42]-[43].

6. [86]

   The applicant submitted that a lesser sentence was warranted. No fresh evidence was relied upon on appeal. It was submitted that a lesser sentence was warranted because of the very limited involvement of the applicant. In oral submissions, counsel submitted that this Court should sentence on the findings made by the sentencing judge. It was submitted that as his Honour stated, it could not be found that the storage unit was hired solely for the purpose of the storage of VM2. Further, counsel referred to his Honour saying he could not conclude that the applicant knew of the quantity of drugs involved, which diminishes his moral culpability, although he accepted the applicant must have appreciated there was a substantial quantity of illicit drugs.

7. [87]

   It was submitted the applicant’s involvement in the attempt to possess was limited to attempting to gain access to the drugs.

8. [88]

   The Crown submitted that if the Court were to find error in the sentencing discretion, in the exercise of the sentencing discretion afresh, this Court would form an opinion that no lesser sentence is warranted at law. The Crown submitted that a sentence that is of a severity appropriate in all of the circumstances in this case has to involve a substantial period of imprisonment with a lengthy non-parole period given the pure weight of the heroin involved (143.39 kilograms). Although it is accepted that there is no evidence the applicant knew the exact weight or type of drug, the Crown submits, as was found by the sentencing judge, it can be inferred beyond reasonable doubt that he knew the consignment he was accessing contained a large and valuable quantity of illegal drugs.

9. [89]

   Additionally, the Crown pointed to the significant lengths the applicant went to access the consignment and the fact his conduct was not limited to his attempts to access the drugs but included his involvement in the acquisition of the storage unit. It was submitted that this Court would find no lesser sentence is warranted at law given the applicant was a willing and essential participant who had detailed knowledge of the key aspects of the enterprise, completed critical tasks, and showed no contrition for his offending.

10. [90]

    In sentencing for a Commonwealth offence, the Court must impose a sentence that is of a severity appropriate in all of the circumstances: s 16A(1) of the Act. The Court is required to take into account the matters as relevant and known as set out in s 16A(2) of the Act. Those matters have been identified by his Honour and summarised above; there is no challenge to those findings.

11. [91]

    The offending here involved an attempt to possess a significant amount of illicit drugs. As the Crown submitted, and as the sentencing judge found, whilst it cannot be found beyond reasonable doubt that the applicant knew the precise amount or type of drugs involved, he knew that there was a significant amount of illicit drugs which he was attempting to access.

12. [92]

    We do not accept the submissions of the applicant that his involvement in attempting to access and possess the drugs was limited. He did have a role in securing the storage unit and having the drugs transported to the unit. He undertook significant steps to attempt to access the drugs in the manner found by the sentencing judge summarised at [48]-[51] above, and not challenged on appeal.

13. [93]

    The offending is a serious example of its type. The applicant has shown no remorse for his offending. Specific and general deterrence are important principles in the sentencing exercise for drug offences. The drugs involved would have caused significant harm to the community if they had not been intercepted.

14. [94]

    As the sentencing judge found, the applicant’s past record of offending disentitles him to leniency. There is nothing in his subjective case which would lower his moral culpability. Whilst it can be accepted that there will be an adverse impact on the applicant’s family by reason of the sentence to be imposed, a substantial period of imprisonment is necessary to adequately reflect the proper application of the purposes of sentencing and reach a sentence that is of appropriate severity in all of the circumstances. No other alternative means of sentencing would be appropriate.

15. [95]

    In Commonwealth matters, to meet the need for consistency in sentencing, regard must also be had to relevant sentencing practices throughout the country: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45. We have had regard to the table at annexure B to the Crown submissions on sentence which refers to similar cases of attempt to possess a commercial quantity of unlawfully imported border-controlled drugs. Recognising that each case has its differences in facts and circumstances, including those of the offenders, those cases provide some guidance to the appropriate sentence in this case.

16. [96]

    In the exercise of the sentencing discretion afresh taking into account all of the circumstances of this case, and in order to impose a sentence that is of appropriate severity in those circumstances, we do not consider that any lesser sentence than that imposed by his Honour is warranted at law. Indeed, the amount of the drugs and the circumstances of the applicant’s offending should have led to a slightly higher sentence. In such circumstances, there is no requirement to resentence and the appeal against sentence must also be dismissed (Kentwell at [43]).

Orders

1. [97]

   The orders of the Court are:

   1. (1)

      Leave to file the Notice of Appeal out of time is granted;

   2. (2)

      Leave is granted to appeal against the conviction and sentence;

   3. (3)

      The appeal is dismissed.