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Supreme Court 12 April 2007

Application of Antoun El Hani

[2007] NSWSC 330

Drugs
CRIMINAL LAW APPLICATION REFUSED

Citation: Application of Antoun El Hani [2007] NSWSC 330
Court: Supreme Court of New South Wales
Date: 12 April 2007
Judge(s): Johnson J

Background

The applicant had pleaded guilty in the Local Court to one count of being knowingly concerned in the importation of a commercial quantity of ecstasy, a federal offence under the Customs Act 1901 (Cth). In March 2003, the District Court sentenced him to 15 years' imprisonment with a non-parole period of 10 years, commencing from December 2001.

The applicant unsuccessfully sought to appeal the sentence to the Court of Criminal Appeal, which granted leave but dismissed the appeal in May 2004. The High Court of Australia subsequently refused special leave to appeal. An earlier application for an inquiry under the then-applicable s.474D of the Crimes Act 1900 had also been declined.

The applicant brought a further application, this time relying on cooperation he had provided to law enforcement authorities in February 2005, after both his sentence and the dismissal of his appeal. That application was treated as falling under the re-enacted provisions in Part 7 of the Crimes (Appeal and Review) Act 2001, which replaced Part 13A of the Crimes Act 1900 in February 2007.

  • Whether the Supreme Court had power under s.79(1) of the Crimes (Appeal and Review) Act 2001 to direct an inquiry or refer a federal sentence to the Court of Criminal Appeal.
  • Whether post-sentence cooperation with law enforcement authorities could constitute a "doubt or question as to any mitigating circumstances in the case" within the meaning of s.79(2) of the Act.
  • Whether the statutory inquiry mechanism under s.78 of the Act was the appropriate avenue for the applicant's claims, or whether a different process was available.

Decision

Johnson J first addressed the statutory framework. An application under s.78 does not involve a judicial proceeding; the Supreme Court exercises an administrative power when considering such applications. The test under s.79(2) is whether it appears that there is a doubt or question as to guilt, mitigating circumstances, or any part of the evidence. That standard may be satisfied where the material causes unease or a sense of disquiet at allowing the conviction or sentence to stand.

The court then considered whether post-sentence cooperation could satisfy the s.79(2) test. Johnson J held that the provision directs attention to the applicant's case as it stood at the time of sentencing, not to events that occurred afterwards. Cooperation with authorities in February 2005, following both the sentencing and the dismissal of the appeal, could not establish a doubt or question as to mitigating circumstances in the case in the relevant sense.

There was also a structural concern about the limits of the Court of Criminal Appeal's function in re-sentencing for a federal offence. The court accepted submissions from both the Commonwealth and New South Wales Attorneys-General that, to the extent the applicant's post-sentence conduct warranted any relief, the appropriate mechanism was an application to the Commonwealth Executive for release on licence under s.19AP of the Crimes Act 1914 (Cth), not a referral under the NSW statutory scheme.

Having considered the application on its merits despite its difficult procedural history, Johnson J was entirely unpersuaded that any direction in the applicant's favour was warranted. No basis had been demonstrated under s.79(2) for directing an inquiry into the sentence.

Orders Made

  • The application under s.78 of the Crimes (Appeal and Review) Act 2001 was refused.

Key Takeaways

  • Under s.79(2) of the Crimes (Appeal and Review) Act 2001, the inquiry is directed at mitigating circumstances as they existed at the time of sentencing, not at events occurring after sentence was imposed.
  • Post-sentence cooperation with law enforcement authorities does not, of itself, establish a doubt or question as to mitigating circumstances capable of grounding a direction or referral under the NSW statutory review scheme.
  • Where a federal offender seeks recognition of post-sentence cooperation, the appropriate avenue is an application to the Commonwealth Executive for release on licence under s.19AP of the Crimes Act 1914 (Cth).
  • Proceedings under s.78 of the Crimes (Appeal and Review) Act 2001 are administrative, not judicial; the Supreme Court exercises an administrative power in considering such applications.
  • The Supreme Court may choose to consider an application on the merits even where it has grounds to refuse to deal with it under s.79(3), particularly where a new factual basis or a legal issue of substance is raised.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss.78, 79
- Crimes Act 1900 (NSW), Part 13A (ss.474B-474N, repealed)
- Customs Act 1901 (Cth), s.233B(1)(d)
- Crimes Act 1914 (Cth), ss.19AP, 21E
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v El Hani [2004] NSWCCA 162
- El Hani v The Queen [2005] HCA Trans 146
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- Application of Rendell (1987) 32 A Crim R 243
- Application of Pearson (1999) 46 NSWLR 148
- Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 154 IR 310
- R v Vo and Tran [2006] NSWCCA 165
- Douar v The Queen (2005) 159 A Crim R 154
- R v Cartwright (1989) 17 NSWLR 243
- R v Willard (2001) 120 A Crim R 450
- Segal v Waverley Council (2005) 64 NSWLR 177
- Application of Shepherd (Supreme Court of NSW, 13 September 1996, unreported)
- R v Munday (1981) 2 NSWLR 177
- Scullion v R (Court of Criminal Appeal, 15 July 1992, unreported)