Citation: R v Ahmad; R v El-Khair [2018] NSWDC 406
Court: District Court of NSW
Date: 6 April 2018
Judge: King SC DCJ
Background
Two offenders, Ahmad and El-Khair, were sentenced following their involvement in a cocaine importation and supply network operating between Los Angeles and Sydney. The investigation, which commenced in 2015, relied on physical surveillance, telephone intercepts, and surveillance devices across both countries. A third participant, Manukyan, a United States national, was not before the Court at the same time as his arrest and guilty plea occurred later.
The scheme involved cocaine concealed in international parcels falsely described as auto parts, stationery, printer cartridges, and similar goods. Ahmad also committed separate fraud offences, dishonestly obtaining finance totalling approximately $59,000 by submitting false loan applications for vehicle purchases, with a further fraud of over $177,000 taken into account on a Form 1.
Both offenders had been in continuous custody since their arrest on 9 June 2016, and each acknowledged a cocaine addiction. Their sentencing required the Court to balance the serious objective gravity of the offending against a range of subjective factors.
Legal Issues
- What sentences were appropriate for offences spanning both NSW and Commonwealth legislation, including drug importation attempts carrying maximum penalties of 25 years?
- How should the totality principle be applied when imposing cumulative sentences across State and Commonwealth offences?
- What weight should be given to subjective factors including drug dependency, rehabilitation prospects, and time already spent in custody?
- How should the court structure parole orders across concurrent State and Commonwealth sentencing regimes?
Decision
King SC DCJ treated the objective seriousness of the drug offences as substantial. The quantities involved were marketable quantities of cocaine with significant purity levels (including 367 grams pure and 637.6 grams pure in separate consignments), and the offending was sustained, organised, and involved concealment across international borders. The attempt charges did not materially reduce the gravity of the conduct given how close each attempt came to completion.
On subjective matters, the Court took into account each offender's cocaine dependency, their time in pre-sentence custody, and their prospects for rehabilitation. The sentencing court applied the principles from cases including Fernando and Bugmy in weighing the relevance of drug addiction to culpability and rehabilitation. The Court noted that the parole periods were structured to provide sufficient opportunity for rehabilitation and treatment, including access to services available in custody.
The Court applied the totality principle to ensure the combined effect of the sentences was not crushing. Sentences for State and Commonwealth offences were structured to run partially cumulative and partially concurrent, with the result that the overall effective sentence for Ahmad was seven years' imprisonment with a five-year non-parole period.
The Court also addressed a minor procedural matter at the conclusion of the hearing, noting that because the judgment was largely composed on the bench, some matters in the reasons might be refined when the written reasons were settled, with any significant adjustments to be referred to the parties.
Orders Made
Ahmad:
- State offences (fraud): sentenced to a term of imprisonment commencing 9 June 2016 (exact term not reproduced in the extracted text, but the non-parole period for State offences commenced on that date).
- Commonwealth Sequence 5 (attempt to possess 74g pure cocaine): three years' imprisonment commencing 9 June 2017.
- Commonwealth Sequence 6 (attempt to import 367g pure cocaine): five years' imprisonment commencing 9 June 2018.
- Parole order: release on parole on 8 June 2021; parole expires 8 June 2023.
- Effective total sentence: seven years' imprisonment with a five-year non-parole period (non-parole period expiring 8 June 2021).
- Order for destruction of the 3.8 grams of cocaine the subject of the s 166 Criminal Procedure Act certificate.
Note: The extracted text provides the orders for Ahmad in full. The specific order structure for El-Khair is not fully reproduced in the text provided, though the judgment confirms he was also sentenced at the same hearing.
Key Takeaways
- The District Court structured cumulative sentences across State and Commonwealth offences by staggering commencement dates, ensuring each sentence commenced after a defined point in the preceding sentence, with the totality principle applied to arrive at an overall non-crushing result.
- Where offenders face both NSW and Commonwealth drug and fraud offences, parole orders for Commonwealth sentences must be made expressly by the court, distinct from the operation of State non-parole periods.
- Drug dependency was treated as a relevant subjective factor going to rehabilitation and parole structure, consistent with the Fernando and Bugmy principles, but it did not displace the serious objective gravity of organised, sustained cocaine importation.
- Attempt charges under the Criminal Code (Cth) for possessing or importing a marketable quantity of a border-controlled drug carry a maximum of 25 years' imprisonment, and the court's approach reflected that these were serious offences notwithstanding their technically inchoate nature.
- Form 1 and schedule offences (taken into account but not separately sentenced) featured in both offenders' proceedings, with the Court treating them as aggravating the overall criminality without imposing additional discrete penalties.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(b), 192G
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Code Act 1995 (Cth), ss 11.1, 307.2(1), 307.6(1)
- Crimes Act 1914 (Cth), s 16BA
- Drugs Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Bugmy v The Queen [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- Olbrich v The Queen [1999] 199 CLR 270
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Wong v R; Leung v R [2001] 207 CLR 584
- Xiao v R [2018] NSWCCA 4