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Court of Criminal Appeal 21 May 2003

Regina v El Hassan

[2003] NSWCCA 139

Also reported as 141 A Crim R 346
Drugs
ATTEMPTING TO POSSESS COCAINE DEGREE OF INVOLVEMENT OF OFFENDER SENTENCE IMPOSED MANIFESTLY INADEQUATE.

Citation: Regina v El Hassan [2003] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 21 May 2003
Judge(s): Santow JA, Simpson J, Smart AJ

Background

The appellant was convicted of attempting to possess a prohibited import, specifically a commercial quantity of cocaine (17 kilograms pure), arising from events in May 2000 in Sydney. The cocaine had been concealed inside a large autoclave machine imported into Australia. The appellant, along with his twin brother Mark and others, was involved in removing what they believed to be cocaine from the machine.

The appellant's case at sentencing was that he intended to possess only a small personal-use quantity, approximately ten ounces worth around $28,000, rather than the full commercial quantity. The sentencing judge (Murrell DCJ in the District Court) rejected that account, finding the appellant was an untruthful witness and was in fact intending to take possession of the entire contents of the autoclave in association with his brother.

The District Court sentenced the appellant to 7 years 1 month imprisonment with a non-parole period of 4 years 7 months (each figure already accounting for five months served). The Crown appealed that sentence as manifestly inadequate.

  • Whether the appeal against conviction should be dismissed
  • Whether the sentence imposed by the District Court was manifestly inadequate having regard to the appellant's role in the offending
  • How the sentence should reflect parity and proportionality when compared with sentences imposed on co-offenders, including the appellant's brother who received 15 years with a 10-year non-parole period

Decision

The Court of Criminal Appeal dismissed the conviction appeal without substantive argument. The only basis advanced was a formal submission to preserve the appellant's rights to seek special leave to appeal to the High Court of Australia.

On sentence, the Court accepted the Crown's appeal. The sentencing judge's findings established that the appellant was a significant participant in the joint criminal enterprise, intending to take possession of the full quantity of cocaine. The Court characterised the appellant's role as critical to the intended distribution of the drug in Australia.

In assessing the appropriate sentence, the Court compared the appellant's involvement with that of his co-offenders. The appellant's brother, who arranged the consignment, engaged a truck, recruited a co-participant, and stood to receive $20,000 for his role, was treated as the more culpable of the two. The Court found the appellant's involvement was meaningfully less than his brother's, justifying a sentence appreciably below the 15-year term imposed on the brother, but well above the sentence imposed at first instance.

Orders Made

  • Appeal against conviction dismissed
  • Crown appeal against sentence allowed; original sentence quashed
  • In lieu of the sentence imposed, the appellant was sentenced to 9 years 7 months imprisonment commencing 2 August 2002, with a non-parole period of 5 years 7 months expiring 1 March 2008

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence of 7 years 1 months for attempted possession of a commercial quantity of cocaine (17 kilograms pure), where the offender played a critical role in an intended distribution network, was manifestly inadequate.
  • A formal appeal ground advanced solely to preserve High Court appeal rights, without substantive argument, will not succeed before the Court of Criminal Appeal.
  • Where a sentencing court disbelieves an offender's evidence that they intended to possess only a personal-use quantity, the factual finding against the offender on that point is a significant aggravating feature for sentence.
  • Parity between co-offenders is relevant but does not automatically mandate a lesser sentence: the Court examined the specific acts of each participant and calibrated the sentence accordingly, resulting in a term appreciably below the brother's 15-year sentence but substantially above the original sentence.
  • Under s 16A of the Crimes Act 1914 (Cth), a federal sentencing court must have regard to a range of statutory considerations; on resentencing, the Court of Criminal Appeal applied those provisions and also had regard to s 16G as it previously stood.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16F, 16G, 21E
- Customs Act 1901 (Cth), s 233B

Cases:
- Radwin El Hassan (2001) 126 A Crim R 477 (prior interlocutory appeal by the same appellant, dismissing the challenge to the trial judge's pre-trial ruling on the elements of the offence)