Damoun v R

1. [1]

   SIMPSON J: On 1 May 2013, following a lengthy trial in the District Court, the appellant was convicted of conspiring dishonestly to cause a loss to a Commonwealth entity. That is an offence against s 135.4(3) and s 11.5(1) of the Criminal Code (Cth) and carries a maximum penalty of imprisonment for 10 years. A co-accused, Ali Jomaa, was tried jointly with the appellant, and was also convicted.

2. [2]

   On 14 November 2013 the appellant was sentenced to imprisonment for 3 years and 3 months, commencing on 10 October 2013, with a non-parole period of 2 years and 1 month. The commencement date took account of unrelated existing sentences for offences against state law. The earliest date on which the appellant will be eligible for release on parole is 9 November 2015.

3. [3]

   The appellant now appeals against the conviction, and seeks leave to appeal against the sentence.

4. [4]

   The sole ground on which he appeals against the conviction, and the sole ground on which he seeks leave to appeal against the sentence, are both narrow. In respect of the conviction, he complains that the trial judge left to the jury two possible bases of conviction that were not part of the Crown case. In respect of sentence, he complains that he was not given credit for an expressed willingness to facilitate the administration of justice by cooperating with the Crown so as to shorten the Crown case.

5. [5]

   The indictment was in the following terms:

6. [6]

   In essence, the Crown case was that, during the period identified in the indictment (1 November 2009 to 9 March 2010) the appellant and Mr Jomaa were participants in a conspiracy (that included “divers others” not named in the indictment) to import a large quantity of cigarettes from China in a container, the contents of which were falsely represented to the Australian Customs and Border Protection Service to be stationery. By this means the conspirators would evade the payment of customs duty that is payable on cigarettes but not on stationery. The arrangements involved the use of false shipping documents. In this respect, a cousin of Ali Jomaa (Mr Hussein Jomaa), who was employed in a freight forwarding agency, assisted. (During the course of the trial, the Crown nominated Mr Hussein Jomaa as an “unindicted co-conspirator” - one of the “divers others” referred to in the indictment.)

7. [7]

   The evidence presented by the Crown included evidence of significant activity on the part of the appellant associated with the importation. For example, there was evidence that, on 20 December 2009, by arrangement, the appellant met Ali Jomaa at his (Ali Jomaa’s) home, and that, later that evening, Ali Jomaa instructed the appellant to use a telecommunications service provided to him; there was evidence that, on 4 January 2010, using a false name, the appellant made contact with a real estate agent, with a view to leasing a warehouse in which to store the container when it arrived in Australia and had cleared customs. The appellant was at all times in close contact with Mr Jomaa. There was evidence that, between 6 and 9 January 2010, the appellant was involved in a number of telephone calls with Mr Jomaa, and that on 10 February 2010, he signed a lease for the rent of a warehouse in Condell Park. In doing so he used the same false name as he previously used. The appellant paid a cash deposit for the formalisation of the customs clearing process. There was evidence that the appellant was involved with Hussein Jomaa and others in the creation of false shipping documents; that he used multiple mobile telephones for communication with Hussein Jomaa and others; that he communicated using coded language; and that he delivered false shipping documents. Given the narrow area of factual dispute in the trial, the jury verdict, and the equally narrow issues on the appeal, it is unnecessary to expand further on the detail of the prosecution allegations of fact.

8. [8]

   That the appellant had engaged in the acts alleged against him was not in dispute. The appellant’s defence was that he was unaware of the illicit nature of the arrangement, and was unaware that the importation was of cigarettes. In other words, he was an innocent dupe. He gave evidence in the trial to that effect.

The trial

1. [9]

   The Crown prosecutor opened the Crown case to the jury, outlining the nature of its allegations, and the evidence he anticipated would be given, which was substantially in accordance with what has been outlined above.

2. [10]

   At the conclusion of the Crown opening, counsel for the two accused briefly opened the defence cases. Counsel for the appellant made it clear that the factual allegations against the appellant were not in dispute. He said:

3. [11]

   During the course of cross-examination of the Crown witnesses, another name emerged. This was Ahmed Masri. It was not part of the Crown case that Masri was a participant in the conspiracy. The Crown position was that Masri was a distributor of cigarettes, and not involved in the conspiracy. That remained its position throughout the trial. By contrast, it was the appellant’s case that Masri was heavily involved in the conspiracy, indeed “the driving force”. That was also the case advanced on behalf of the co-accused, Ali Jomaa. They produced evidence that Masri had been charged with similar offences committed in 2011. Counsel for the appellant directed a substantial part of his final address to the proposition that Masri was:

4. [12]

   I will refer in more detail below to the specific aspects of the addresses, and the jury directions, when considering the two matters argued on the appeal against conviction.

The appeal against conviction

1. [13]

   The sole ground of appeal against conviction concerns the trial judge’s directions to the jury. It is framed as follows:

2. [14]

   In fact, there were two limbs to this ground of appeal. The complaints concern:

3. [15]

   Included in the transcript of the Crown’s opening is the following:

4. [16]

   At the commencement of the Crown’s closing address, in relation to the element of intention, the Crown prosecutor said:

5. [17]

   He went on to itemise evidence upon which the Crown relied to prove participation by the appellant, with specific reference to a number of telephone calls over January, February, and March 2010. He referred to various other acts of the appellant.

6. [18]

   Counsel for the appellant then addressed. After he had concluded his final address, counsel for the appellant was provided with a draft of written directions the judge was proposing to give to the jury. The draft directions are not before this Court. Counsel protested vigorously about a proposed direction contained therein, concerning what he called possible “late joinder”. He asserted that the Crown had never raised the possibility of late participation, and that:

7. [19]

   He referred expressly to the passage of the Crown opening extracted above, where the Crown prosecutor spoke of a meeting on 20 December between Ali Jomaa and the appellant. He claimed that had he known that “late joinder” was to be a relevant matter, he would have addressed differently (although he did not specify how).

8. [20]

   Counsel for the appellant referred to what he described as an invitation by the Crown that his Honour give a direction about late participation in a conspiracy as “a path of the guilt”. He contended that, in the context of this case, such a direction should not be given. He said:

9. [21]

   The Crown prosecutor responded:

10. [22]

    At an early stage in his summing up, his Honour provided to the jury written directions of law that extended to almost four pages. Relevant to this part of the appeal was the following:

11. [23]

    The direction given orally by the judge was:

12. [24]

    The appellant’s submissions at trial were essentially repeated on appeal. They were to the effect that the Crown case was that the appellant “was a participant from the outset”, and did not countenance the possibility that he joined at some later stage. In the appellant’s written submissions, the response of the Crown prosecutor (extracted above at [21]) was interpreted as a concession that the Crown case had been that “the appellant was a participant from the outset”, and that that was essential to the Crown case. The direction (at [22] above) was therefore contrary to the case the Crown presented to the jury. I do not read the Crown prosecutor’s answer as such a concession, although it is not easy to know what it does mean.

13. [25]

    The Crown’s response is simply that the direction as to timing was a standard direction, and did not invite the jury to conclude that the appellant had joined the conspiracy at some time other, and later, than December 20, 2009.

14. [26]

    The Crown position is correct. The direction as to the timing of any participant joining a conspiracy is a standard one. Of course, directions have to be tailored to the case that is made, and the Crown accepts that the meeting of 20 December 2009 was an important part of the Crown case. However, I do not see that the Crown case depended upon the jury accepting that evidence, and, nor do I see that, if for some reason the jury did not accept that that meeting took place, the other evidence was insufficient to establish the appellant’s participation. Nor can I see that the appellant adopted a position on an understanding that, unless he was shown to have been involved by 20 December 2009, he could not be convicted.

15. [27]

    A conspiracy charge proceeds on the basis of evidence of a number - sometimes a very large number - of overt acts. It is seldom necessary that any of those acts be proved beyond reasonable doubt (see Shepherd v The Queen [1990] HCA 56; 170 CLR 573, with reference to circumstantial evidence) and it is seldom that the Crown case depends upon proof of entry into a conspiracy at a particular time during the range of dates specified in the indictment. Certainly that was not here the case.

16. [28]

    It was always open to the jury to find that any one or more of the overt acts alleged against the appellant was or were sufficient to establish his part in the conspiracy. It was not necessary for proof of the Crown case that the appellant be shown to have joined the conspiracy by 20 December. In any event, the appellant did not contest that he had had the meeting of 20 December - as set out above, he acknowledged all the acts and activities alleged against him. No unfairness was done to the appellant by the direction.

17. [29]

    In my opinion the first limb of Ground 1 ought to be rejected.

18. [30]

    As mentioned above, it was the appellant and his co-accused who raised an issue of Masri’s possible involvement in the conspiracy; the appellant’s counsel focussed heavily upon that proposition in his final address.

19. [31]

    During the course of the discussion that followed the appellant’s counsel’s address, in answer to a question from the trial judge as to whether he had anything to add, the Crown prosecutor said:

20. [32]

    Counsel for the appellant sought a direction to the effect that, if the jury were to conclude that a conspiracy involving Masri in relation to either the appellant or Ali Jomaa was proved, the verdict must be not guilty. He said that the argument was essentially about the Crown changing its case. He put:

21. [33]

    Although, it seems, the Crown prosecutor considered whether he should change his position that Masri was an innocent distributor, and seek to include him in the category of “divers others” mentioned in the indictment, he opted against that course, and maintained the Crown’s original position. He did, however, urge that the trial judge give some guidance to the jury as to what they could do with the evidence concerning Masri. He said:

22. [34]

    Counsel for the appellant provided a draft direction which he submitted ought be given to the jury. It was in the following terms:

23. [35]

    In written submissions filed in the appeal, it was put that:

24. [36]

    This is not how I read the passages extracted from the Crown prosecutor’s submissions. He did not submit that the appellant (or Ali Jomaa) could be convicted if the jury considered that either of them (but not the other) conspired with Masri. His submission was that the introduction of the notion of Masri as a participant in the conspiracy did not preclude a finding of guilt against either of the appellant or Ali Jomaa, provided they were found to have conspired either with one another or with Hussein Jomaa (or both). A finding that either of them also conspired with Masri (contrary to the Crown’s position) would not affect their guilt.

25. [37]

    However, the direction given to the jury was as follows:

26. [38]

    The complaint made on behalf of the appellant is expressed in the written submissions as follows:

27. [39]

    In my opinion, the complaint is not open to the appellant. The appellant’s counsel took a considered forensic decision to implicate Masri as the “driving force” behind the conspiracy. He cannot now be heard to complain that appropriate directions were not given with respect to the evidence he had introduced. Even if the jury accepted that Masri was “the driving force”, and was involved, such a conclusion did not have the necessary effect that the applicant was ignorant of what he was involved in. Nor did it make the conspiracy different to that which the Crown alleged.

28. [40]

    There is, in my opinion, a potential difficulty in the direction that the jury could convict the appellant (or Ali Jomaa) if it was not satisfied that the two accused were party to the same agreement, but that either of them had conspired with Masri. Since Masri, as a conspirator, was no part of the Crown case, that direction was erroneous. The appellant could not have been convicted of conspiring with Masri, if he were not found also to have conspired with Ali Jomaa, or Hussein Jomaa. But if he were found to have conspired with either of those, the fact (if it were the fact) that the jury considered that Masri was also part of the conspiracy was of no moment.

29. [41]

    The erroneous direction was of no effect. That is because it was preceded by a clear direction it was applicable only if the jury concluded that the appellant and Ali Jomaa were not party to the same agreement (see the italicised passage in the direction). By its verdicts of guilty of both accused, the jury showed that the erroneous direction had no bearing on the outcome.

30. [42]

    In my opinion the second limb of Ground 1 ought to be rejected.

31. [43]

    It follows that, in my opinion, the appeal against conviction must fail.

The application for leave to appeal against sentence

1. [44]

   The proposed ground of appeal against sentence is framed as follows:

2. [45]

   Prior to the trial, counsel for the appellant proposed that the length of the trial could be significantly shortened by the tender of agreed facts and playing of audio tapes. This did not eventuate because of resistance on the part of Ali Jomaa.

3. [46]

   It is now submitted that, having regard to his willingness to facilitate the course of justice, that was a matter that should have been taken into account on sentence. Reliance was placed upon the decision of Whealy J in R v Elomar [2010] NSWSC 10, to that effect and De Campos v R [2006] NSWCCA 51. At sentence, the Crown accepted that this was a relevant consideration, but not one that should “overwhelm the objective seriousness [of] the offence”.

4. [47]

   Counsel for the appellant relied upon a passage in the Remarks on Sentence, in which the sentencing judge acknowledged the submission and the citation of Elomar and De Campos, and said:

5. [48]

   The observations, however, were made with reference to an offer of assistance to law enforcement authorities, in relation to proposed further prosecutions of co-offenders. They were not made in relation to the offer of cooperating in order to shorten the trial.

6. [49]

   Although it falls short of conceding error, the Crown has not argued against the proposition that the course taken by the sentencing judge was erroneous. It submitted, however, that no lesser effective head sentence or non-parole period is warranted.

7. [50]

   In my opinion, that stance itself represents error. If error is established, the obligation of this Court is to exercise afresh the sentencing discretion. This is to be done, not with a starting point of the sentence imposed by the sentencing judge, but having regard to the whole range of relevant sentencing factors: Kentwell v The Queen [2014] HCA 37; 313 ALR 451, and see Davis v R [2015] NSWCCA 90.

8. [51]

   A willingness (unfulfilled for reasons not attributable to the offender) to facilitate the course of justice by cooperating with a view to shortening proceedings may, in appropriate circumstances, be a relevant sentencing consideration. It is not, however, a consideration that bears upon the selection of sentences in all cases. A sentencing judge is best placed to know how to deal with such an unfulfilled willingness. Here the sentencing judge was not obliged to place any weight upon the appellant’s offer. There was no error in the sentencing procedure.

9. [52]

   I would grant leave to appeal against sentence but dismiss the appeal.

10. [53]

    The orders I propose are:

    1. (1)

       Appeal against conviction dismissed;

    2. (2)

       Leave granted to appeal against sentence;

    3. (3)

       Appeal against sentence dismissed.

11. [54]

    PRICE J: I agree with Simpson J.

12. [55]

    McCALLUM J: I agree with Simpson J.