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Court of Criminal Appeal 22 May 2015

Damoun v R

[2015] NSWCCA 109

Fraud & dishonesty
APPEAL CONVICTION TIMING OF ENTRY INTO CONSPIRACY APPEAL REJECTED APPEAL SENTENCE NO OBLIGATION TO GIVE WEIGHT TO OFFER

Citation: Damoun v R [2015] NSWCCA 109
Court: Court of Criminal Appeal, NSW
Date: 22 May 2015
Judges: Simpson J (with Price J and McCallum J agreeing)

Background

The appellant was convicted in the District Court after a joint trial on a charge of conspiring dishonestly to cause a loss to a Commonwealth entity, namely the Australian Customs and Border Protection Service. The prosecution alleged that the appellant and a co-accused arranged to import a large container of cigarettes from China using false shipping documents that misrepresented the contents as stationery, thereby evading customs duty.

The appellant did not dispute the acts attributed to him. His defence was that he was an unwitting participant who did not know the true nature of the importation scheme. He was sentenced to three years and three months' imprisonment, with a non-parole period of two years and one month.

The appellant challenged both the conviction and the sentence. On conviction, he argued that the trial judge left two possible bases of guilt to the jury that the Crown had never relied upon. On sentence, he argued he received no credit for having offered to cooperate with the Crown in a way that could have shortened the trial.

  • Whether the trial judge's directions to the jury created a miscarriage of justice by leaving open bases of conviction not advanced by the Crown, specifically: (1) the possibility that the appellant joined the conspiracy at a later point in time than the Crown alleged; and (2) the possibility that the appellant conspired with a person (Ahmed Masri) whom the Crown had not identified as a co-conspirator.
  • Whether the sentencing judge erred by failing to discount the sentence to reflect the appellant's expressed willingness to cooperate with the Crown so as to shorten the proceedings.

Decision

Conviction appeal: The Court rejected both limbs of the conviction ground. On the timing issue, the directions were consistent with the legal framework for conspiracy offences and did not leave the jury to convict on a basis extraneous to the Crown case. On the Masri issue, the Court found that it was the defence, not the Crown, that had actively raised Masri's involvement throughout the trial, characterising him as the driving force of the importation. Having led that case themselves, the accused could not then complain that the trial judge left it to the jury as a possible factual pathway.

Sentence appeal: The Court acknowledged that the sentencing judge's reasoning was not free from concern, noting that observations about the offer of cooperation had been directed at assistance to law enforcement regarding future prosecutions of co-offenders, rather than the offer to shorten the trial itself. Although the Crown did not formally concede error, it declined to argue against the proposition. The Court nonetheless held that a sentencing judge is not obliged to place any weight on an unfulfilled willingness to cooperate that has not resulted in actual assistance. No error in the sentencing exercise was established, and the appeal was dismissed.

On the broader question of procedure, the Court confirmed that if sentencing error had been established, the appellate obligation would have been to exercise the discretion afresh across all relevant factors, not simply to adjust the existing sentence downward.

Orders Made

  • Appeal against conviction dismissed.
  • Leave granted to appeal against sentence.
  • Appeal against sentence dismissed.

Key Takeaways

  • A conviction appeal will not succeed merely because the trial judge left factual pathways to the jury that the Crown did not itself advance, where those pathways emerged from the defence case at trial.
  • Under ss 11.5(1) and 135.4(3) of the Criminal Code (Cth), a conspiracy charge permits the jury to consider the full circumstances of participation, including timing and the identity of co-conspirators, provided those matters arise from the evidence at trial.
  • An unfulfilled offer to cooperate in order to shorten proceedings is not automatically a mitigating factor: a sentencing court retains the discretion to place no weight on such an offer, particularly where the utility or completeness of the proposed cooperation is questionable.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed the principle from Kentwell v The Queen that where appellate error is established in sentencing, the court must exercise the discretion afresh across all relevant factors rather than starting from the sentence already imposed.
  • No error was established in the sentencing procedure, and the effective head sentence and non-parole period were left undisturbed.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.5(1), 135.4(3)

Cases:
- Davis v R [2015] NSWCCA 90
- De Campos v R [2006] NSWCCA 51
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- R v Elomar [2010] NSWSC 10
- Shepherd v The Queen [1990] HCA 56; 170 CLR 573