AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Court of Criminal Appeal 6 May 2020

R v Kassir

[2020] NSWCCA 88

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE BY CROWN AGAINST INADEQUACY WHETHER SENTENCE MANIFESTLY INADEQUATE RESIDUAL DISCRETION CRIME

Citation: R v Kassir [2020] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 6 May 2020
Judges: Bathurst CJ (principal judgment); Fullerton J and R A Hulme J (agreeing)

Background

The respondent was a former employee of DHL Global Forwarding Limited (Australia) in its exports department. Before leaving DHL in mid-February 2016, and for some months after, he used his insider knowledge of DHL's import processes to set up a fraudulent customer account, fabricate a letter of authority using stolen business identity details, and introduce false consignee documentation into the system. This infrastructure allowed unknown co-offenders to import air cargo consignments through DHL using the fabricated identity.

The charged offence related to a consignment that arrived on 16 June 2016 from Taiwan, declared as "ladies jeans" but containing approximately 166 kilograms of pure methamphetamine concealed across 210 plastic bags. Six earlier consignments using the same fraudulent details had been received between January and May 2016, though their contents remain unknown.

The respondent pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled drug (methamphetamine), contrary to ss 307.1(1) and 11.2(1) of the Criminal Code (Cth). The sentencing judge characterised him as a "facilitator" who provided insider knowledge rather than a principal organiser, placed the offence in the mid-range of objective seriousness, and imposed a sentence of 8 years' imprisonment with a non-parole period of 5 years and 6 months. The Crown appealed on the sole ground that the sentence was manifestly inadequate.

  • Whether the sentence of 8 years with a 5 year and 6 month non-parole period was manifestly inadequate for an offence of this gravity.
  • Whether the Crown had negated any basis for the Court to exercise its residual discretion not to interfere with the sentence, even if manifest inadequacy were established.

Decision

Manifest inadequacy

Bathurst CJ, with Fullerton J and R A Hulme J agreeing, held that the sentence was manifestly inadequate. The offence carried a maximum penalty of life imprisonment and had been placed in the mid-range of objective seriousness. It involved establishing a fraudulent infrastructure that enabled the importation of a very large commercial quantity of methamphetamine, a quantity whose release into the community would have serious consequences. Notwithstanding the respondent's good character, absence of prior criminal history, and genuine prospects of rehabilitation, the Chief Justice found that the principles of general and specific deterrence required a more substantial sentence.

Residual discretion

The Court of Criminal Appeal also considered whether, even where manifest inadequacy is shown, any countervailing reason existed to decline to resentence. The residual discretion exists to prevent injustice to the offender and to account for factors such as double punishment arising from the anxiety of a pending appeal. The Court acknowledged the respondent's demonstrated rehabilitation progress, that he had been permitted supervised offsite education and employment, and that a family member's health had deteriorated. However, none of those matters, individually or collectively, outweighed the public interest in maintaining confidence in the administration of justice by correcting a sentence that was plainly inadequate for a very serious offence. The Crown had also not led the sentencing judge into error; any error in the original sentencing was not attributed to the cases the Crown had supplied.

Resentencing

On resentencing, the Court applied a 15% discount for the respondent's guilty plea, consistent with the approach at first instance. The Court backdated the sentence to 18 August 2016, the date from which the original sentence had run.

Orders Made

  • Appeal allowed.
  • Original sentence quashed.
  • Respondent resentenced to 10 years' imprisonment, commencing 18 August 2016 and expiring 17 August 2026, with a non-parole period of 6 years and 6 months expiring 17 February 2023.

Key Takeaways

  • A sentence for aiding and abetting the importation of 166 kilograms of pure methamphetamine, placed in the mid-range of objective seriousness for an offence carrying a maximum of life imprisonment, was held to be manifestly inadequate at 8 years' imprisonment.
  • Good character, rehabilitation prospects, and family hardship are relevant mitigating factors but do not displace the dominant sentencing purposes of general and specific deterrence where the offending is serious and large-scale.
  • The residual discretion not to resentence following a successful Crown appeal requires balancing the offender's personal circumstances against the public interest in maintaining confidence in the administration of criminal justice. Here, that public interest prevailed.
  • Where an offender acted as an "insider facilitator" by leveraging employment knowledge to establish the conditions for a major drug importation, the Court of Criminal Appeal treated that role as attracting substantial denunciatory weight, even absent evidence the respondent was a principal organiser or stood to profit directly from the full operation.
  • In applying the residual discretion, the Court of Criminal Appeal confirmed that the Crown does not lose its appeal simply because the offender has made genuine rehabilitative progress or because a family member has suffered hardship during the period of sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 307.1(1), 11.2(1)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1914 (Cth), Pt 1B, s 16A

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Chen v R [2018] NSWCCA 157
- CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v R (1977) 137 CLR 293; [1977] HCA 44
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39
- R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen (2013) 233 A Crim R 167; [2013] NSWCCA 136
- R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169
- R v Robert Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64