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District Court 1 May 2019

R v El Jamal

[2019] NSWDC 153

Drugs
3.7KG PURE METHYLAMPHETAMINE SERIOUS MATTER ON SCHEDULE FACT FINDING ON SENTENCE EVIDENCE ACT APPLIES ASSESSING WITNESSES OFFENDER’S EVIDENCE NOT ACCEPTED

Citation: R v El Jamal [2019] NSWDC 153
Court: District Court of New South Wales
Date: 1 May 2019
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to attempting to possess a commercial quantity of unlawfully imported methamphetamine (3,771.5 grams pure weight), an offence carrying a maximum penalty of life imprisonment under the Criminal Code Act 1995 (Cth). He also asked the sentencing court to take into account a related charge of attempting to possess a marketable quantity of cocaine (643 grams pure weight), arising from a separate importation in February 2016.

The prosecution alleged the offender was the organising principal behind both importations, using two associates to collect the consignments. One co-offender, Stanmore, had already been sentenced to 7.5 years imprisonment (with a 4.5-year non-parole period), after receiving credit for an early guilty plea and cooperation with authorities. The other co-offender, Doherty, was yet to be sentenced.

Although the offender accepted his guilt, he contested significant factual aspects of the prosecution case. Evidence was heard over four days to resolve those disputed facts, with a direction made that the Evidence Act 1995 applied to those proceedings.

  • What facts relevant to the offender's role and culpability were established to the requisite standard at the sentencing hearing?
  • Whether the offender's evidence, and supporting expert psychiatric evidence, should be accepted.
  • What weight should be given to the offender's criminal history, personal circumstances, and conditions of custody?
  • How to achieve proportionality between the offender's sentence and that imposed on his co-offender Stanmore.
  • What was the appropriate sentence, having regard to the maximum penalty, the starting point, and applicable discounts?

Decision

Fact-finding and credibility

Haesler SC DCJ directed that the Evidence Act 1995 applied to the contested sentencing hearing, meaning the usual rules of evidence governed the examination of witnesses. After hearing evidence over four days, his Honour rejected the offender's account. The offender was found to have no credibility, and his evidence was not accepted. Expert psychiatric evidence adduced on the offender's behalf was also rejected.

The court was satisfied that the offender was the organising principal of both importations, not a peripheral participant acting as a favour for a drug dealer known only as "Tony." The factual narrative the offender presented, including his claimed ignorance of the consignments' full nature and his characterisation of Doherty as an uninvolved friend, was not accepted.

Hardship in custody

The court acknowledged that the offender experienced particular hardship while on remand, a matter relevant to the conditions under which part of the sentence would be served. This was taken into account as a mitigating circumstance, reflected in the materials admitted as exhibit B and referenced in the sentencing remarks.

Starting point and adjustments

Without the offender's guilty plea and the matters in exhibit B, the court would have imposed 18 years imprisonment. The schedule offence (the cocaine importation) warranted a reduction of approximately six months under s 16AC of the Crimes Act 1914 (Cth). A discount was applied for the guilty plea entered in the Local Court. The court fixed approximately 30% of the sentence to be served on parole, to allow for supervision, monitoring, and reintegration.

Proportionality with co-offender Stanmore

The court had regard to the sentence imposed on Stanmore (starting point of 12 years, reduced for early plea and cooperation) and was satisfied that the offender's greater culpability as the organising principal justified a substantially higher sentence. The disparity was not disproportionate given the difference in roles and the absence of comparable mitigating factors.

Orders Made

  • The offender was convicted of attempting to possess a commercial quantity of the unlawfully imported border controlled drug methamphetamine.
  • The cocaine offence (attempting to possess a marketable quantity of unlawfully imported cocaine) was taken into account under s 16BA of the Crimes Act 1914 (Cth).
  • Sentenced to 14 years imprisonment, commencing 31 March 2016.
  • Non-parole period fixed at 9 years and 8 months, expiring 30 November 2025, on which date the offender is to be released on parole, subject to s 19AL of the Crimes Act 1914 (Cth).

Key Takeaways

  • The District Court applied the Evidence Act 1995 to the contested fact-finding phase of the sentencing hearing, emphasising that the rules of evidence govern such proceedings where a direction to that effect is made under s 4(2) of the Act.
  • A guilty plea alone does not shield an offender from having contested facts determined against them at sentence, particularly where the offender's version of events is advanced to reduce apparent culpability.
  • Expert psychiatric evidence is not immune from rejection at sentencing: the court assessed the evidence against the principles in Makita (Australia) Pty Ltd v Sprowles and found it could not be accepted.
  • Proportionality between co-offenders is a relevant sentencing consideration, but a substantially higher sentence for the organising principal is not disproportionate where the co-offender received significant discounts for cooperation and an early plea that are unavailable to the principal.
  • Under the Criminal Code Act 1995 (Cth), attempting to possess a commercial quantity of an unlawfully imported border controlled drug carries a maximum of life imprisonment, and the sentencing court confirmed that involvement as an organiser in such importations will almost inevitably attract a significant term of full-time imprisonment.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 307.5(1), 307.6(1)
- Crimes Act 1914 (Cth), ss 16A(2)(h), 16AC, 16BA, 19AL
- Evidence Act 1995 (NSW), s 4(2)

Cases
- Afu v R [2017] NSWCCA 246
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Barbaro v The Queen (2014) 253 CLR 58
- Cartwright v R (1989) 17 NSWLR 243
- Dennison v R [2011] NSWCCA 114
- Devaney v R [2012] NSWCCA 285
- DPP v De La Rosa (2010) 205 A Crim R 1
- Fox v Percy (2003) 214 CLR 118
- Green v The Queen (2011) 244 CLR 462
- Hili v The Queen (2010) 242 CLR 520
- Johnson v R [2010] NSWCCA 124
- Lamella [2014] NSWCCA 122
- MAK v R [2006] NSWCCA 381
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Markarian v The Queen (2005) 228 CLR 357
- Nguyen [2010] NSWCCA 238
- Olbrich v The Queen (1999) 199 CLR 270
- Postiglione v The Queen (1997) 189 CLR 295
- Power v The Queen (1974) 131 CLR 623
- R v Clinch (1994) 72 A Crim R 301