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Court of Criminal Appeal 21 May 2004

R v El Hani

[2004] NSWCCA 162

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCING DISCOUNTS FOR PLEA AND ASSISTANCE WHETHER DISPARITY WITH SENTENCE FOR CO OFFENDER.

Citation: R v El Hani [2004] NSWCCA 162
Court: New South Wales Court of Criminal Appeal
Date: 21 May 2004
Judge(s): Simpson J, Bell J, Howie J (Howie J delivered the principal judgment)

Background

The applicant pleaded guilty in the District Court to one charge of being knowingly concerned in the importation of a commercial quantity of MDMA (ecstasy) into Australia, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The charge related to a consignment of approximately 480,000 ecstasy tablets concealed in freezer parts shipped from Antwerp. The applicant, based in Lebanon, had attended planning meetings in the Netherlands and remained in telephone contact with co-offenders throughout the operation.

Shadbolt DCJ sentenced the applicant in the District Court to 15 years' imprisonment with a non-parole period of 10 years, commencing 5 December 2001. The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentencing judge had made a number of errors in the exercise of the sentencing discretion.

A significant aspect of the appeal concerned a co-offender, Shepherd, whose sentence had been reduced on appeal to 11 years and 6 months with a non-parole period of 7 years and 4 months. The applicant argued that Shepherd's reduced sentence created an unjustifiable sentencing disparity.

  • Whether the sentencing judge erred in the discounts applied for the applicant's guilty plea and assistance to authorities
  • Whether the impact of the applicant's cooperation on his family was adequately taken into account
  • Whether the sentence imposed was disproportionate to, or in unjustifiable disparity with, the sentence ultimately received by co-offender Shepherd

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding insufficient merit in any of the grounds advanced.

On the question of disparity with Shepherd's sentence, the Court found there was no proper basis for the applicant to hold a justifiable sense of grievance. The difference in outcomes was explained by the markedly superior quality of Shepherd's assistance. Shepherd had made full and frank disclosure of his involvement, was prepared to give evidence against co-participants, and provided detailed information extending beyond the charged offence. His assistance was described by police as "moderate" but of real value. By contrast, the applicant's assistance was assessed as lesser in both quality and scope.

The Court noted that the assessment of the value of assistance, and the appropriate discount to apply, fall within the general sentencing discretion of the sentencing judge. The Court of Criminal Appeal's power to intervene in such assessments is constrained by the ordinary limits applicable to appeals from discretionary judgments.

No error was established in the manner in which the sentencing judge dealt with the other grounds, including the effect of the applicant's cooperation on his family.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A difference in sentence between co-offenders does not, of itself, establish unjustifiable disparity: the Court of Criminal Appeal confirmed that differences in the quality and extent of each offender's assistance to authorities can fully account for divergent outcomes.
  • The assessment of the value of an offender's assistance and the size of the corresponding discount are matters within the sentencing judge's discretion, and appellate intervention is constrained by the usual limitations on appeals from discretionary judgments.
  • In dismissing the appeal, the Court drew a clear distinction between Shepherd's cooperation (full disclosure, willingness to give evidence against co-offenders, information extending beyond the charged offence) and the applicant's lesser contribution, treating that distinction as the primary explanation for the sentencing difference.
  • Shepherd's sentence had been reduced on appeal partly on the basis of fresh evidence of continuing assistance admitted after the Court reserved its decision, a factor not available to the applicant on his own appeal.
  • No error was found in the sentencing judge's treatment of the impact of the applicant's cooperation on his family as a sentencing consideration.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act 1914 (Cth), ss 16A(2)(p), 21E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Justices Act 1902 (NSW), s 51A (now repealed)

Cases:
- R v Shepherd [2003] NSWCCA 287
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Gallagher (1991) 23 NSWLR 220
- R v Cartwright (1989) 17 NSWLR 243
- R v NP [2003] NSWCCA 195
- R v Mostyn [2004] NSWCCA 97
- R v Way [2004] NSWCCA 131
- R v Newman [2004] NSWCCA 113
- R v Herrera (NSWCCA, unreported, 6 June 1997)
- R v Barrientos [1999] NSWCCA 1
- R v Chu (NSWCCA, unreported, 16 October 1998)