AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
18
Court of Criminal Appeal 7 May 2009

El-Ghourani v R

[2009] NSWCCA 140

Also reported as (2009) 195 A Crim R 208
Drugs
CRIMINAL LAW SENTENCE RELEVANT FACTORS NATURE AND CIRCUMSTANCES OF OFFENCE NEED TO FOCUS ON PARTICULAR CHARGE CRIMINAL LAW

Citation: El-Ghourani v R [2009] NSWCCA 140
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2009
Judge(s): Spigelman CJ; James J; Simpson J

Background

The appellant pleaded guilty to attempting to possess a marketable quantity of unlawfully imported heroin (181.5 grams pure) contrary to the Criminal Code Act 1995 (Cth). The maximum penalty was 25 years imprisonment and/or a fine of $550,000. An original importing charge was withdrawn by the Crown because the evidence could not support it.

The sentencing judge in the District Court found, based on unchallenged statements from associates, that the appellant had played a central organising role in the drug consignment. He had obtained a nominee's name and address for use as the consignee, made repeated enquiries about the package using the nominee's identity, and arranged for others to collect it on his behalf while keeping watch outside. The District Court sentenced him to nine years imprisonment with a non-parole period of six years.

The appellant sought leave to appeal on two grounds: that the sentencing judge wrongly treated his role in the importation as an aggravating feature of the possession charge, and that the resulting sentence was manifestly excessive.

  • Whether a sentencing judge, when sentencing for a possession offence, may take into account the offender's broader role in the importation of the drugs as part of the circumstances of the possession.
  • Whether doing so contravened the principle in The Queen v De Simoni (1981), which prohibits sentencing for a more serious offence than the one charged.
  • Whether the sentence of nine years imprisonment was manifestly excessive, including by reference to Judicial Commission sentencing statistics.

Decision

The Court of Criminal Appeal granted leave but dismissed the appeal. Spigelman CJ, with whom James J and Simpson J agreed, held that the sentencing judge had not impermissibly sentenced the appellant for the uncharged importing offence. Rather, the appellant's role in organising the importation was directly relevant to understanding the nature and circumstances of the act of possession itself. That role demonstrated a high degree of moral culpability for the possession charge actually before the court.

The Chief Justice acknowledged the principle from De Simoni, which prohibits imposing a penalty appropriate to a more serious offence, but distinguished it from the proper exercise of considering all relevant surrounding circumstances. The offender's conduct before and during the possession shed light on the gravity of that specific act. His role was not merely that of a courier or minor participant; he had arranged the entire consignment from its point of origin.

On the question of the Judicial Commission statistics, Spigelman CJ emphasised that those statistics must not be treated as a sentencing tariff. For offences such as possession, where culpability can vary enormously depending on individual circumstances, the statistics may be of limited utility in any particular case. Where a sentence sits at the high end of or outside the statistical range, the question becomes whether the specific circumstances justify it as a permissible exercise of discretion. Here, the Court found that the sentence did fall within that permissible range given the appellant's central role.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court dealing with a possession charge may take an offender's role in the broader importation into account, not as punishment for an uncharged offence, but as evidence of the nature and circumstances of the possession and the degree of moral culpability involved.
  • The De Simoni principle, which prohibits sentencing for offences more serious than the one charged, does not prevent a court from considering surrounding conduct that illuminates the gravity of the charged offence itself.
  • Judicial Commission sentencing statistics do not constitute a tariff range. Where an offence such as possession spans a wide spectrum of culpability, the statistics reflect that variation and may offer limited guidance for cases at the extreme ends.
  • Where a sentence falls at the high end of or beyond the statistical range, the Court of Criminal Appeal's inquiry focuses on whether the particular facts justify the sentence as a permissible exercise of discretion, not whether the sentence is statistically common.
  • In dismissing the appeal, the Court confirmed that a sentence at the high end of the range can be appropriate where the offender occupied a central organising role in the drug enterprise, even when the charge is limited to possession.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.6, 11.1(1), 307.2(1)
- Customs Act 1901 (Cth)

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- The Queen v Olbrich (1999) 199 CLR 270
- R v Bloomfield (1998) 44 NSWLR 734
- R v Bousehjin [2003] NSWCCA 86
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Guiu [2002] NSWCCA 181
- R v Laurentiu & Becheru (1992) 63 A Crim R 402
- R v Lawless (Court of Criminal Appeal, 24 June 1994, unreported)