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District Court 31 January 2018

R v Hijazi

[2018] NSWDC 416

Drugs
SENTENCING — COMMONWEALTH OFFENCE IMPORT A MARKETABLE QUANTITY OF COCAINE QUESTIONS OF PARITY WITH CO OFFENDERS AIDER AND ABETTOR

Citation: R v Hijazi [2018] NSWDC 416
Court: District Court of NSW
Date: 31 January 2018
Judge: ML Williams SC DCJ

Background

The offender, born in 1991, was charged in connection with the importation of a consignment of cocaine from China that arrived in Sydney in April 2011. The consignment, concealed inside ten clocks, contained 248 grams of cocaine with a pure cocaine content of 160 grams. His mother and father were the principal importers; his mother lived in Sydney while his father and the offender were in Lebanon at the time.

The offender's role was limited to acting as a conduit between his parents over a period of a few days in late April 2011. Intercepted phone calls showed him directing his mother to arrange collection of the consignment and providing her with the FedEx depot address so that two relatives could retrieve it. Those relatives were arrested after collecting the package. The offender remained in Lebanon and was not arrested until he returned to Australia in February 2016.

A trial commenced on a different charge, after which the offender entered a plea of guilty to the lesser charge of aiding and abetting, counselling or procuring the importation of a marketable quantity of cocaine, contrary to ss 307.2(1) and 11.2(1) of the Criminal Code (Cth). The maximum penalty for the offence is 25 years imprisonment.

  • What sentence was appropriate for the offender's role as an aider and abettor, given his limited but meaningful involvement in the importation?
  • What discount, if any, applied to the sentence given the guilty plea was entered after a trial had commenced on a different charge?
  • How should parity be maintained with sentences imposed on co-offenders, including the offender's mother and the two men who collected the consignment?
  • What weight should be given to subjective factors, including evidence of a controlling and violent father, the offender's personal history, and psychiatric material?

Decision

The District Court found that the offender played a significant role in the importation, notwithstanding that his participation was confined to passing information between his parents over a short period. His Honour drew the inference that the offender had obtained the FedEx depot address from his father and relayed it to his mother, directly enabling the collection of the consignment. The court rejected the characterisation of this conduct as minimal, noting that the fact another person could have performed the same function did not diminish the offender's actual contribution.

On the guilty plea, the court accepted that a 10% discount was appropriate. Although Commonwealth sentencing principles do not apply State-based discount rules in the same way, the late plea nonetheless demonstrated a willingness to facilitate the administration of justice and warranted some reduction.

The court considered parity with the sentences imposed by Judge Armitage on co-offenders. The offender's mother had been sentenced to five years imprisonment with a non-parole period of two years and six months for importing the drugs as a principal. The two collectors received lesser sentences reflecting their more peripheral roles. Given the offender's role as aider and abettor fell between those of the principals and the collectors, the court concluded a sentence of three years and nine months with a two-year non-parole period was appropriate.

Subjective factors, including evidence of a domineering and violent father, the offender's youth, his expression of genuine remorse, and psychiatric material provided by Dr Chew, were taken into account. However, the court noted that the offender himself acknowledged he could have sought assistance, including from the Australian Embassy, and did not do so. The court found full-time custody was the only appropriate sentencing option.

Orders Made

  • The offender was convicted of aiding and abetting the importation of a marketable quantity of cocaine.
  • Sentenced to imprisonment of 3 years and 9 months, commencing 22 January 2018 and expiring 21 October 2021.
  • Non-parole period of 2 years, expiring 21 January 2020.

Key Takeaways

  • A guilty plea entered after a trial has commenced on a different charge may still attract a sentencing discount under Commonwealth principles, where the plea demonstrates a willingness to facilitate the administration of justice. The District Court applied a 10% reduction on that basis.
  • Aiding and abetting an importation offence can attract a significant custodial sentence even where the offender's physical acts were limited to passing information over a short period, if that information was operationally important to the completion of the offence.
  • Parity with co-offenders remained a central consideration. The court calibrated the sentence to sit below that of the principal importers but above those imposed on the collectors, reflecting the offender's intermediate role.
  • Where an offender asserts duress or fear of a family member as a mitigating factor, but acknowledges there were available avenues for assistance that were not pursued, the weight given to that subjective material is reduced accordingly.
  • Under the principles in R v Qutami, courts approach psychiatric and psychological histories provided in pre-sentence reports with caution, particularly where those histories have not been tested or formally adopted by the offender in evidence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 307.2(1) and 11.2(1)
- Crimes Act 1914 (Cth)

Cases
- R v Qutami (2001) 127 A Crim R 369
- Wan v The Queen [2017] NSWCCA 261