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District Court 22 June 2020

R v Ahmad, Ahmad; R v Fakhreddine, Hassan

[2020] NSWDC 370

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES CONSPIRACY TO IMPORT BORDER CONTROLLED DRUG COMMERCIAL QUANTITY OF MDMA

Citation: R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020] NSWDC 370
Court: District Court of New South Wales
Date: 22 June 2020
Judge(s): Yehia SC DCJ

Background

Two co-offenders, Ahmad Ahmad and Hassan Fakhreddine, pleaded guilty to one count of attempting to import a commercial quantity of MDMA into Australia, contrary to the Criminal Code (Cth). The offence was committed between February and August 2017 as part of a multi-party syndicate with members in both Sydney and the Netherlands. The total gross weight of MDMA collected by the undercover operative was approximately 797 kg, with a street value estimated at between $79.7 million and $398.5 million.

The enterprise was initiated through an Australian Federal Police undercover operation (Operation Veyda) in which an operative known as "Zane" cultivated relationships with senior participants and offered a "door service" guaranteeing undetected importation of drugs. Ahmad and Fakhreddine were not involved in the earliest stages of the conspiracy; they became participants from around late February 2017, primarily passing Blackberry messages between the Sydney-based group and the overseas syndicate led by a person referred to as Arif.

The court had previously sentenced three co-offenders (Watsford, Dib, and Ibrahim) arising from the same enterprise. The sentencing of Ahmad and Fakhreddine was conducted separately, and the court resolved several disputed factual matters about the precise roles each played.

Legal Issues

  • Whether a 20% discount for the guilty plea was appropriate given the lateness of the pleas
  • What roles Ahmad and Fakhreddine each played in the enterprise, including whether Ahmad was Dib's equal "partner" and whether he intended to contribute financially
  • Whether Fakhreddine was merely a conduit or held a more autonomous role
  • The extent to which the involvement of undercover operative Zane reduced the moral culpability of each offender
  • How each offender's role and culpability compared to co-offenders for the purpose of parity (particularly Watsford, Dib, and Ibrahim)
  • What weight to give each offender's subjective circumstances, including criminal history, remorse, rehabilitation prospects, and conditions of custody

Decision

Issue 1: Guilty plea discount

The court accepted that a 20% discount for the guilty pleas was appropriate despite the pleas being entered late, at a specially organised Super Callover in November 2019 on the eve of a 10 to 12 week trial (at [6]-[8]). The trial would have required an undercover operative to give evidence and involved hundreds of folders of material. The court also recognised that the offenders facilitated the sentencing proceedings by cooperating in settling agreed facts and clearly identifying disputed issues (at [9]).

Issue 2: Ahmad's role

The court rejected Ahmad's evidence that his involvement was limited to providing security for Dib and mindlessly passing messages. The court found that while Ahmad began as a conduit and "muscle" for Dib, his role evolved by April 2017 into something more (at [137]-[138]). Specifically, the court was satisfied that an agreement had formed for Ahmad to contribute to a portion of the "door fee" and the shortfall created by the price increase for the MDMA, and that he stood to gain approximately 74 kg of MDMA as a result (at [140]-[143]). The court also found that Ahmad sourced an additional purchaser ("Gee") in May 2017 to increase the quantity of the load (at [145]). However, the court rejected the Crown's characterisation of Ahmad as Dib's equal partner, finding he had no meaningful decision-making autonomy and was not a lynchpin in the enterprise (at [146]-[148]).

Issue 3: Fakhreddine's role

The court found that Fakhreddine acted as a trusted facilitator on behalf of Arif, providing a degree of separation between the overseas syndicate and the Sydney group (at [121], [127]). While he was not a mindless conduit, the court was not satisfied that he exercised meaningful autonomy or held any real decision-making role in respect of pricing, quantity, packaging, or the drug split (at [123], [125]). The court also found that by June 2017, Arif had Fakhreddine "under control" and regarded him as ultimately dispensable (at [107]-[109]). The court found that Fakhreddine held a role slightly less serious than that of Ahmad, and slightly less than that of Watsford (at [246]-[247]).

Issue 4: Impact of police undercover operation

The court acknowledged that undercover operative Zane was pivotal from the very outset of the enterprise and that there was no evidence either offender was engaged in drug-related activity or importation attempts before Zane presented the door service (at [164]-[166]). The court was satisfied that the police involvement reduced the moral culpability of each offender to some extent, but not substantially, given that both were willing and motivated participants who continued in the enterprise for financial reward (at [167]).

Issue 5: Parity with co-offenders

The court found that both offenders played substantially lesser roles than Ibrahim and a lesser role than Dib (at [247]). Ahmad's role was assessed as comparable to, but not greater than, that of Watsford, who had been sentenced on an indicative starting point of 16 years (at [244]-[245]). Fakhreddine's role was assessed as slightly less than Watsford's (at [246]). The court declined to adopt the same starting point for Ahmad as for Watsford, however, because Ahmad had a prior criminal record and had not demonstrated the same degree of remorse and contrition as Watsford (at [245]).

Issue 6: Subjective circumstances

For Fakhreddine, the court noted a serious prior criminal history including an earlier conviction for supplying a commercial quantity of prohibited drug, attracting significant weight to specific deterrence (at [169]-[170]). The court found him remorseful and accepted he was a good father, but assessed his rehabilitation prospects more guardedly given his history (at [186]-[187]). For Ahmad, the court accepted that his psychological state following his brother's murder in April 2016, including adjustment disorder, anxiety, depression, and drug use, contributed to his decision-making and reduced his moral culpability to a limited extent (at [204]-[205]). The court found Ahmad had reasonable prospects of rehabilitation given the absence of an entrenched drug addiction and periods of prior stability (at [209]-[212]). The court also took into account that Ahmad had served his sentence in onerous conditions as an Extreme High Security Inmate, including chronic pain from a hip condition and frequent cell transfers (at [220]-[227]).

Orders Made

  • Ahmad Ahmad convicted and sentenced to a total term of 15 years 2 months imprisonment, comprising a non-parole period of 8 years 9 months commencing 8 August 2017 and expiring 7 May 2026, with a balance of term of 6 years 5 months expiring 7 October 2032. Eligible for consideration for release on parole at the expiration of the non-parole period.
  • Hassan Fakhreddine convicted and sentenced to a total term of 13 years 7 months imprisonment, comprising a non-parole period of 8 years commencing 8 August 2017 and expiring 7 August 2025, with a balance of term of 5 years 7 months expiring 7 March 2031. Eligible for consideration for release on parole at the expiration of the non-parole period.
  • Both sentences reflect a 20% discount for the utilitarian value of the guilty pleas.

Key Takeaways

  • A 20% guilty plea discount was available even for late pleas where the trial avoided was lengthy and complex, involving an undercover operative and extensive electronic evidence, and where offenders cooperated meaningfully in settling agreed facts for sentence (at [8]-[9]).

  • The District Court confirmed that a participant's role in a drug importation conspiracy can evolve over time: an offender who begins as a conduit and security figure may attract greater culpability if, as the enterprise develops, they assume financial obligations and stand to receive a share of the drugs (at [137]-[151]).

  • Where an undercover operative was instrumental in creating the opportunity for importation through a "door service," and where there was no evidence of prior drug importation activity, the court found this reduced moral culpability to some extent but not substantially, given the offenders remained willing participants motivated by financial gain (at [164]-[167]).

  • Parity analysis required the court to assess not only the nature and duration of each participant's involvement, but also countervailing subjective factors such as criminal history, remorse, and rehabilitation prospects, which could justify a different starting point even where objective roles were comparable (at [245], [247]).

  • Onerous custodial conditions, including classification as an Extreme High Security Inmate with frequent cell transfers and restricted access to family visits, constituted a relevant mitigating consideration that the court took into account in fixing the appropriate penalty, without requiring a finding of deliberate misconduct by correctional authorities (at [221]-[227]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- R v Leung (unreported 21 July 1994 NSWCCA)
- R v Ibrahim [2020] NSWDC 254
- R v Taouk (1992) 65 A Crim R 387
- Cam Huynh Giang v R [2017] NSWCCA 25
- Mihelic v R [2019] NSWCCA 2
- Parris v R [2013] NSWCCA 5
- Haval Kada v The Queen; Hadi Kada v The Queen [2017] VSCA 339
- Wang v R [2010] NSWCCA 319; Ma v R [2010] NSWCCA 320
- Jaafar v R [2017] NSWCCA 223