Hijazi v R

1. [1]

   BELL P: I agree that, for the reasons given by Walton J, an extension of time within which to bring an application for leave to appeal in this matter should be refused.

2. [2]

   WALTON J: On 7 April 2016, Hijazi Hijazi (“the applicant”) and co-offenders, Kaldon Karout and Bilal Mokdad (“the co-offenders”), pleaded guilty to count 2 of an indictment dated 12 April 2015, which charged that between about 9 October 2012 and about 12 October 2012 at Sydney the applicant and the co-offenders did jointly commit an offence in that they did attempt to possess a substance having been unlawfully imported and a border controlled drug, namely, cocaine, the quantity being a marketable quantity (684.8 grams), contrary to ss 307.6(1), 11.1(1) and 11.2A(1) of the Criminal Code. The plea was accepted by the Crown in full satisfaction of the indictment, with respect to the applicant and the co-offenders.

3. [3]

   The sentencing hearing of the applicant and the co-offenders occurred over 4 days (12 and 13 December 2016 and 6 February and 3 March 2017). On 7 April 2017, the applicant was sentenced by Judge Hock (“the sentencing judge”) in the Downing Centre District Court to imprisonment for 5 years and 10 months’ imprisonment, from 13 January 2017 (back dated with regard to pre-sentence custody after the applicant’s arrest on 21 November 2012 and his grant of bail on 12 February 2013). Her Honour imposed a non-parole period of 3 years and 4 months, which is due to expiry on 12 May 2020.

4. [4]

   By an application for leave to appeal filed 31 October 2019, the applicant sought leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by the sentencing judge. On that same date, the applicant filed a notice of an application for extension of time to seek that leave pursuant to s 10(1)(b) of the Criminal Appeal Act.

5. [5]

   The applicant had previously filed a notice of intention to appeal on 10 April 2017, but the appeal was not then pursued when legal aid was refused in May 2018. Counsel then advising the Legal Aid Commission considered there were no reasonable prospects of success, notwithstanding authorities bearing on the question, in particular, Xiao v R (2019) 96 NSWLR 1; [2019] NSWCCA 4 (“Xiao”) which had been delivered shortly before the provision of that advice. A review of the applicant’s sentence was subsequently undertaken by Legal Aid solicitors as part of broader consideration of the implications of Xiao for persons serving sentences for Commonwealth offences. That project was delayed for various reasons later discussed in this judgment.

Proposed Ground of Appeal

1. [6]

   The applicant nominates a single proposed ground of appeal which is expressed in the following terms:

2. [7]

   The applicant’s sentencing occurred at a time when the decisions in this Court in Xiao and Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 and Huang v The Queen (2018) 332 FLR 158; [2018] NSWCCA 70 had not been determined. Those decisions (and subsequent decisions) considered whether, in sentencing for a Commonwealth offence, a discount may be given for the utilitarian value of a plea.

3. [8]

   The sentencing judge applied the then accepted practice of assessing the appropriate discount for a guilty plea with regard to the applicant’s “acceptance of responsibility and his willingness to facilitate the course of justice”. A discount of 10% was awarded by the sentencing judge for the plea on that basis. However, in Huang v The Queen, the Court held that a failure to have regard to the utilitarian value of a plea of guilty when sentencing for a Commonwealth offence amounted to an error.

4. [9]

   The Crown properly conceded that error. Accordingly, this judgment will proceed on the basis that error was established in accordance with the single proposed ground of appeal.

The Position of the Parties on the Proposed Appeal

1. [10]

   The applicant submitted that, having regard to the prospects for success of the appeal and the explanation provided for delay in bringing the appeal by the applicant, the Court should exercise its discretion to permit the applicant to bring an application for leave to appeal out of time by the grant of an extension of time (such leave was not opposed by the Crown if the extension were granted) and then exercise the sentencing discretion afresh in accordance with s 6(3) of the Criminal Appeal Act (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [42]).

2. [11]

   The applicant accepted that, even in the presence of “Xiao error”, the granting of a 10% discount for a plea of guilty may be considered appropriate, albeit for a different reason, and in the result no lesser sentence may be warranted. However, the applicant submitted that, in all the circumstances, nonetheless, a lesser sentence was warranted. With respect to the discount for the plea, it was submitted that the lateness of the plea was not solely referrable to the applicant because the entirety of the brief had not been served until early 2014 and the co-offender, Mr Karout, had sought and obtained a committal. Accordingly, a greater discount was appropriate.

3. [12]

   Four additional factors were relied upon by the applicant as establishing why a lesser sentence should be imposed if the Court were to resentence the applicant. They appear below:

   1. (1)

      It is appropriate to take into account the 12 month delay between the applicant’s plea of guilty and the sentence imposed upon him as a mitigating factor due to the “uncertain suspense” which generated or exacerbated his anxiety as diagnosed in the psychological report relied upon by him in the sentencing proceedings. It was submitted that the sentencing judge failed to take into account this factor, although no separate ground of appeal was raised in this respect.

   2. (2)

      A proper reflection of the objective seriousness of the offence was that there was a small importation of cocaine and that the applicant had a “fairly minimal role. His role was important but he was a middleman who did little more than to introduce the significant players”.

   3. (3)

      The strength of the subjective factors would point to a lesser sentence particularly having regard to the applicant’s low risk of re-offending, his good prospects of rehabilitation and positive and productive custodial record.

   4. (4)

      These factors, when seen in the light of penalties in comparable cases, would warrant a lesser sentence.

4. [13]

   Those same factors were relied upon to indicate why, having regard to the prospects of success of the appeal (that is, its final disposition), an extension of time should be granted.

5. [14]

   In support of those contentions, the applicant relied upon his affidavit of 28 November 2019 and an affidavit of Suzanne Tezjan Knowles also affirmed on that date.

6. [15]

   Overall, the Crown submitted that:

   1. (1)

      An assessment of the applicant’s prospects of success is to be gauged not just by whether error has been established, but whether a different sentence would be imposed by the Court. If ultimately the Court were minded to resentence the applicant to a sentence other than that imposed by the sentencing judge, that would demonstrate strong prospects of the appeal and would favour a grant of an extension of time. If, however, despite error being established (and conceded) the Court were not minded to impose a different sentence in the exercise of its discretion, then that would be a factor militating against the extension of time.

   2. (2)

      After having regard to the prospects of appeal (should the Court not be minded to resentence the applicant), the Court would refuse the applicant an extension of time within which to apply for leave to appeal against his sentence, or would otherwise dismiss the appeal.

Factual Background

1. [16]

   A thirty page statement of Agreed Facts was tendered in the sentencing hearing which incorporated a summary. The sentencing judge used that summary as a factual basis for her judgment, resolving facts disputed by Mr Karout in favour of the Crown.

2. [17]

   Broadly, the summary by her Honour represents an appropriate factual background. It may be stated as follows:

   1. (1)

      The prosecution related to the offenders joint criminal involvement in the attempted possession of a marketable quantity of an unlawfully imported border controlled drug, namely, cocaine, sent by air freight from Syria and arriving in Australia on 9 October 2012. The drugs were concealed inside 182 plastic tubes, which had been woven into a carpet and secured by wool. The pure quantity of cocaine imported was 684.8 grams (1.147 kilograms including admixture).

   2. (2)

      The drugs were imported into Australia as the result of interactions between the applicant, the co-offenders and another co-offender, “Alpha” (a pseudonym). Those interactions can be summarised as follows:

   3. (3)

      Alpha pleaded guilty to an offence under s 307.2(1) of the Criminal Code of importing a marketable quantity of a border controlled drug and was sentenced in relation to that offence at Sydney District Court by Lakatos DCJ on 17 October 2013.

3. [18]

   The applicant’s involvement in the enterprise was found to be less than that of Mr Karout or Alpha, who were sentenced to 8 years and 6 months’ imprisonment (with a non-parole period of 5 years and 3 months) and 6 years’ imprisonment (with a non-parole period of 3 years and 8 months), respectively: see Alpha v R [2015] NSWCCA 225 (per R A Hulme J, with whom Leeming JA and Price J agreed). The applicant’s involvement was found to be greater than Mr Mokdad who was sentenced to a head sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 3 months.

Course of the Proceedings Below

1. [19]

   The applicant was charged on 21 November 2012. He received bail on 12 February 2013. He pleaded not guilty in the Local Court.

2. [20]

   There was a four day contested committal hearing before Local Court Magistrate Buscombe between 25 and 28 August 2014.

3. [21]

   The trial was initially fixed to commence on 27 April 2015 before the District Court of NSW. That date was subsequently abandoned due to matters disclosed in the lead up to the trial. The delay was not occasioned by the applicant. The trial was relisted for hearing on 4 April 2016, with an estimated duration of 40 days.

4. [22]

   On 7 April 2016, the fourth day scheduled for the trial, the applicant entered the plea of guilty referred to at the outset of this judgment. The Crown submitted that this was after some negotiations and before a judge had been allocated for the trial.

5. [23]

   The sentencing proceedings had originally been listed for 5 August 2016 but, as earlier mentioned, ultimately commenced on 12 December 2016, proceeding over four days.

6. [24]

   The applicant was sentenced on 7 April 2017, 12 months after the plea of guilty was entered. The sentencing judge found that the delay was brought about by Mr Karout’s decision to dispute the facts underpinning the sentencing proceedings and “that those issues had to be resolved before the other offenders could be sentenced”. A hearing was held with respect to that dispute (hereinafter referred to as “Mr Karout’s disputed facts hearing”). Her Honour stated that she had “taken that period of delay into account”. Despite the late plea, the Crown accepted that a 10% discount would be appropriate.

The Sentencing Proceedings

1. [25]

   The applicant did not give evidence in his sentencing proceedings, but did rely upon material tendered on his behalf, including:

   1. (1)

      a psychological report by Mr Bradley Jones, dated 2 August 2016;

   2. (2)

      a letter of apology from the applicant, dated 12 December 2016;

   3. (3)

      character references; and

   4. (4)

      a medical certificate regarding the applicant’s father.

2. [26]

   The Crown tendered, on sentence, the indictment, an agreed statement of facts, a criminal history and custodial history, and a pre-sentence report. The Crown also handed up written submissions, which included the summaries of some comparable decisions.

3. [27]

   Alpha gave evidence for the Crown in Mr Karout’s disputed facts hearing. By that time, he had served his non-parole period and was living in the community.

4. [28]

   Counsel for the Crown correctly submitted that, in the course of the sentencing proceedings, the applicant’s then counsel adopted the following approach:

   1. (1)

      disputed the Crown’s submission that the applicant “occupied an important and trusted role that required detailed knowledge with respect to the sophisticated cocaine importation enterprise”, and submitted instead that the applicant was taking direction from others and was removed from the detail of the enterprise;

   2. (2)

      submitted that the applicant had no capital in the venture (or “skin in the game”);

   3. (3)

      submitted (albeit faintly) that the Court could impose a sentence of 3 years or less and suspend the sentence;

   4. (4)

      submitted that there was no evidence that the applicant was aware of the weight or expected purity of the cocaine being imported; and

   5. (5)

      cross-examined Alpha on 13 December 2016 in respect of the applicant’s knowledge and involvement.

Reasons for Sentence

1. [29]

   Despite making submissions as to the proper characterisation of the applicant’s role in the offending, as I have earlier discussed, the applicant did not dispute the sentencing judge’s findings of fact either as to objective or subjective matters.

2. [30]

   The sentencing judge made the following findings as to the applicant’s role:

3. [31]

   Her Honour also made the following factual findings:

   1. (1)

      The applicant was not an illicit drug user and was financially motivated to commit the offence.

   2. (2)

      The gross weight of the powder was 1.147 kilograms with a purity of 59.7%. The weight was calculated at 684.8 grams of pure cocaine, which is more than 340 times the marketable quantity of 2 grams, but within the bottom one third of the marketable range.

   3. (3)

      The estimated wholesale value of the cocaine at the time of the importation was $190,250. The estimated street value was between $489,189 and $547,902;

   4. (4)

      The applicant was to be paid for his role in the enterprise and the amount he was to be paid must have been more than was to be paid to Mr Mokdad.

   5. (5)

      The applicant had an almost unblemished record, entitling him to some leniency.

   6. (6)

      Most of the applicant’s family lived in Lebanon. When his parents died, after he was arrested, he was unable to attend the funerals as his passport had been surrendered; this caused the applicant considerable distress.

   7. (7)

      The delay in the sentencing process was attributed to the applicant’s conduct in not pleading guilty until April 2016 and Mr Karout’s disputed facts hearing.

   8. (8)

      The applicant’s mental illness will likely make his (first) time in custody more onerous.

   9. (9)

      In light of the applicant’s letter to the court expressing remorse and the pre-sentence report and testimonials, the applicant had good prospects of rehabilitation.

4. [32]

   As earlier mentioned, counsel for the applicant contended that the sentencing judge had not taken into account the delay occasioned by the sentencing process as a factor contributing to the applicant’s depressive order. However, the sentencing judgment is not entirely clear in this respect. Her Honour recognised that Mr Jones had diagnosed the applicant as “suffering from a major depressive order, moderate severity”. She found that some of his condition was attributable to delay, but found no mitigation applicable insofar as the delay was attributable to the applicant’s conduct in “not pleading guilty until April 2016”.Nonetheless, her Honour then returned to delay occasioned by Mr Karout’s decision “to dispute the facts” and found, as I have mentioned, that was “a matter that really [had] to be resolved before the other offenders could be sentenced”. Those remarks immediately preceded her Honour’s rejection of mitigation for worsening of a psychological condition by delay occasioned by the applicant’s own actions vis-à-vis the late plea. Her Honour’s observations, in that further respect, were introduced by the word, “However” and the sentencing judge ultimately found that she had “taken that period into account”, that is, the period of delay occasioned by the disputed fact hearing.

5. [33]

   In my view, when the sentencing judgment is considered in that light, it may be comfortably concluded that her Honour did take into account delay occasioned by the disputed facts hearing in mitigation because it, at least, worsened the applicant’s psychological condition although, as submitted by the applicant, her Honour did not expressly recognise that the worsening of the condition had resulted from the “uncertain suspense”. It also follows that her Honour excluded delay occasioned by Mr Karout’s disputed facts hearing in deciding upon the percentage discount for the plea.

Factors Raised by the Applicant on Merits of the Proposed Appeal

1. [34]

   Despite a reference in the oral submissions for the applicant to his role being “fairly minimal”, I consider that the sentencing judge’s (essentially) undisputed finding as to the role of the applicant and the co-accused, his financial motivation and the significance of the weight and wholesale value of the cocaine in question, aptly described the objective seriousness of the applicant’s offending.

2. [35]

   The Crown made reference to a Case Note Report where it was recorded that the applicant made a statement to Mr Simmons that he did not profit financially from the offence. However, counsel for the applicant accepted that the applicant had not profited from the enterprise only because it was unsuccessful, and that the applicant had been financially motivated in his offending.

3. [36]

   The offending is objectively serious.

4. [37]

   Since the hearing of this matter, the Court has delivered a judgment which has a bearing upon the applicant’s submissions in this respect: Bae v R [2020] NSWCCA 35 (“Bae”). In Bae, Johnson J (with whom Bell P and Walton J agreed) discussed the utilitarian value of a plea in relation to Commonwealth offences and the significance of the timing of a plea in the ascertaining of any discount as follows (at [49]-[60]):

5. [38]

   In this matter, the applicant entered a plea on the fourth day scheduled for a trial fixed for 40 days. The fact that the brief was not served until early 2014 and the co-offender, Mr Karout, sought to and obtained a contested committal is largely immaterial to the assessment of the utilitarian value of the plea. So too, is the fact that the applicant embarked upon negotiations as to the charges he could ultimately face. The essential question is the timing of the plea which, as earlier discussed, was very late. The applicant made the forensic decision (as is evidenced from his affidavit on resentencing) to, as earlier discussed, participate in the committal proceedings and to delay the entry of his plea.

6. [39]

   It may be correct, as counsel for the applicant submitted, that the applicant could not have had his sentence determined until after the contested committal proceeding but this does not alter the fact that he could have entered an early plea in the Local Court as did Alpha.

7. [40]

   In my view, and noting that the Crown sought no lesser discount, a discount of 10% was appropriate for the utilitarian value of the plea and the factors taken into account by the sentencing judge in reaching that discount.

8. [41]

   As earlier mentioned, whilst not bringing an appeal as to the failure of the sentencing judge to take into account as the mitigating factor the delay relevant to the plea of guilty and the sentencing of the applicant, it was submitted that the suspense created by the delay should have mitigated the sentence because it generated or exacerbated the anxiety referred to by the psychologist’s report produced by the applicant in the sentencing proceedings.

9. [42]

   I do not accept that submission on two bases:

   1. (1)

      First, I do not consider that, as was earlier found, that the sentencing judge did not take those considerations into account.

   2. (2)

      Secondly, whilst it is true the applicant experienced some “suspense” in waiting for his sentencing hearing, although the period was less than that contended by the applicant, at most the period was extended from 5 August 2016 (the original sentencing date) and 3 March 2017 (or perhaps 13 December 2016) when the applicant participated in Mr Karout’s disputed facts hearing on sentence.

10. [43]

    The applicant, through his counsel, participated in Mr Karout’s disputed facts hearing in an attempt to obtain concessions from Alpha. The applicant’s counsel submitted to her Honour that the applicant played no part in the disputed facts hearing, however, I agree with the submissions made by counsel for the Crown that, if he had succeeded in obtaining the concessions he sought in cross-examination, the applicant would undoubtedly have sought to use those to his benefit in sentencing.

11. [44]

    The applicant is bound by the forensic decisions made by his counsel, and does not in the appeal claim that his counsel’s conduct was flagrantly incompetent or such as to have led to a miscarriage of justice.

12. [45]

    It may also be noted, in this respect, that the sentencing judge took into account as a mitigating factor that the applicant’s mental health would make his time in custody more onerous. Further, the applicant’s evidence in these proceedings raises some doubt as to whether the allowance on sentence for this factor was entirely necessary given he has functioned well in custody, obtained further education, maintained physical health and worked well. I will turn to those matters in the next consideration.

13. [46]

    The Crown provided a summary of the evidence of Ms Knowles and the applicant as to subjective factors bearing upon resentencing, which is accurate and forms the foundation of that which follows:

    1. (1)

       Ms Knowles’ affidavit annexes pages 22 and 30 of Corrective Services case note reports relating to the applicant, together with his custodial management history. The selected entries from Corrective Services case notes refer to the applicant’s regret, his having learned about the social impact of his offending whilst in prison and his future plans.

    2. (2)

       The custodial management history indicated no offences or contraventions during the applicant’s incarceration, with positive notes indicated in respect of his behaviour and work ethic.

    3. (3)

       In his affidavit, the applicant deposed:

14. [47]

    That material readily permits an acceptance of the submissions of the parties (for the purposes of considering the issues raised in this matter) that:

    1. (1)

       the applicant is genuinely remorseful (as effectively found by the sentencing judge); and

    2. (2)

       there are good prospects for rehabilitation (again, as the sentencing judge found).

15. [48]

    As mentioned, it may also be accepted that the applicant has a positive and productive custodial history.

16. [49]

    The table of comparative cases attached to the applicant’s written submissions do not give clear support for the contention by the applicant that the sentence imposed upon the applicant should be less than that imposed by the sentencing judge.

17. [50]

    The Crown contended that the sentence was not manifestly excessive. In my view, when attention is given to the maximum penalty for the offence of 25 years’ imprisonment, the objective seriousness of the offence (addressed above) and the aforementioned rejection of the factors relied upon by the applicant, no lesser sentence is indicated than that imposed by the sentencing judge, notwithstanding a relatively strong subjective case (when seen in the light of further material relied upon by the applicant in these proceedings) and the applicant’s plea. That conclusion follows, in my view, even if a slightly greater discount of 10% for the plea of guilty were allowed (I have not so determined), arising from a discount for the utilitarian value of the plea, and an additional allowance was made for the factors identified by the sentencing judge as warranting a discount for the plea. .

Extension of Time

1. [51]

   The Court recently considered questions of an extension of time in Baladjam v R [2018] NSWCCA 304, in which the Chief Justice stated at [92]:

2. [52]

   In Kentwell, French CJ, Hayne, Bell and Keane JJ referred to provisions allowing an extension of time to appeal against conviction and sentence. Their Honours stated (at [32]):

3. [53]

   In Lepine v R [2017] NSWCCA 83, the applicant was refused an extension of time within which to seek leave to appeal his conviction in circumstances of a delay for almost 2 years between the filing of a notice of intention to appeal and the filing of the appeal, and of almost 2 ½ years from the date of sentence. R A Hulme J (with whom Hoeben CJ at CL and Walton J agreed) found that the interests of justice did not favour an extension of time in the circumstances where there was unsatisfactory explanation for the substantial delay and that the proposed appeal had no merit: at [12].

4. [54]

   As earlier mentioned, a sentence was imposed upon the applicant on 7 April 2017. He brought an appeal over two years later. As the applicant properly conceded, the overall period of delay is of some significance having regard (to some extent) to the public interest in the avoidance of delay and the principle of finality in litigation. An explanation was provided for that delay, although there remains a considerable gap between the (mistaken) advice to withdraw the notice of intention to appeal and the lodging of the application for leave to bring this appeal.

5. [55]

   In my view, the extension of time sought should be refused for two reasons:

   1. (1)

      first, and primarily, the lack of merits of the proposed appeal, given the lack of prospects of obtaining a lesser sentence, if the applicant was resentenced, notwithstanding a finding of Xiao error; and

   2. (2)

      secondly, the delay is very lengthy and the explanation for delay does not wholly account for the period of delay.

Conclusion

1. [56]

   In my view, the Court should, in the exercise of its discretion, refuse to extend time to bring the application for leave to appeal.

Orders

1. [57]

   I propose the following order:

   1. (1)

      Application for extension of time to seek leave to appeal against sentence refused.

2. [58]

   JOHNSON J: I agree with Walton J.