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Court of Criminal Appeal 18 July 2012

Younan v R

[2012] NSWCCA 155

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Younan v R [2012] NSWCCA 155
Court: Court of Criminal Appeal, NSW
Date: 18 July 2012
Judge(s): Hoeben JA, Latham J, Garling J

Background

The applicant was convicted after trial on two counts of importing a marketable quantity of heroin into Australia, contrary to s 307.2(1) of the Criminal Code (Cth). On two separate occasions in 2009, the applicant travelled to Thailand at the direction of a co-offender and participated in arrangements to conceal heroin inside shoes for importation. The applicant maintained throughout that he believed he was importing diamonds, not heroin, and the jury rejected that defence.

Before trial, the applicant voluntarily disclosed his involvement to police, also providing information about co-offenders. He cooperated extensively with the Australian Federal Police, which the AFP acknowledged had led to the arrest and prosecution of others. The applicant agreed to give evidence for the Crown and suffered physical and verbal abuse from other inmates as a consequence.

At sentence, the trial judge imposed an aggregate term of 7 years and 5 months imprisonment, with a non-parole period of 4 years and 6 months. The applicant sought leave to appeal, contending errors in the application of the so-called Ellis discount, the failure to find remorse, and manifest excess in the overall sentence.

  • Whether the sentencing judge misapplied the Ellis principle (which recognises leniency where an offender voluntarily discloses criminality unknown to authorities) by giving insufficient weight to it and placing undue emphasis on general deterrence
  • Whether the sentencing judge erred in failing to find that the applicant was remorseful or contrite
  • Whether the aggregate sentence was manifestly excessive

Decision

The Ellis discount and general deterrence: The Court of Criminal Appeal confirmed that the sentencing judge did not err in the application of the Ellis principle. The Court disagreed with a suggestion in an earlier decision (Raad v R) that an Ellis situation reduces the materiality of general deterrence, on the basis that general deterrence is directed at all persons who might commit similar offences, not just those who later disclose their conduct. The unusual feature of this case, where the applicant continued to protest his innocence at trial and at sentence, reinforced rather than diminished the importance of general deterrence.

Remorse: The Court found no error in the sentencing judge's refusal to make a finding of remorse. The applicant had disclosed to police that he believed he was importing diamonds, never acknowledging any role in importing heroin. Having maintained that position at trial and at sentence, there was, in the Court's view, no scope for a finding of remorse or contrition once the conviction was entered.

Manifest excess: The Court rejected this ground without difficulty. The applicant's own counsel acknowledged at the hearing that the individual sentences sat at the very bottom of the applicable range, a range that itself included cases attracting discounts for assistance or early guilty pleas equivalent to those applied here. No complaint was raised about the extent of accumulation.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Ellis principle does not diminish the role of general deterrence in sentencing. General deterrence is directed at all potential offenders of a like kind, not only at those who disclose their own criminality.
  • An applicant who maintains their innocence throughout trial and at the sentencing hearing leaves no scope for a court to find remorse or contrition, even where voluntary disclosure to police was made at an earlier stage.
  • Where an offender continues to assert they were wrongly convicted, the unusual circumstances of the case may reinforce the importance of general deterrence rather than reduce it.
  • A sentence at the very bottom of the accepted range for the offence type cannot constitute manifest excess, particularly where the discounts applied were equivalent to those available in comparable cases.
  • Under the Ellis principle, the voluntary disclosure of criminality that was unknown, and unlikely to become known, to authorities remains a distinct mitigating factor, but its weight depends heavily on the specific facts, including whether the offender has genuinely acknowledged wrongdoing.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307.2(1) (importing a marketable quantity of a border controlled drug)
- Crimes Act (Cth), s 16A (sentencing considerations)

Cases
- R v Ellis (1986) 6 NSWLR 603
- R v Borkowski [2009] NSWCCA 102
- Raad v R [2011] NSWCCA 138
- R v Rushby [1977] 1 NSWLR 594
- Wong v The Queen (2001) 207 CLR 584