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Court of Criminal Appeal 3 June 2022

Jomaa v R

[2022] NSWCCA 112

Drugs

Citation: Jomaa v R [2022] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 3 June 2022
Judges: Beech-Jones CJ at CL, Hamill J, Cavanagh J

Background

The appellant was convicted of attempting to import a commercial quantity of MDMA into Australia, contrary to the Criminal Code 1995 (Cth). The quantity involved was 200 kilograms. The scheme originated when the appellant met an undercover operative (UCO) in Thailand, following which the appellant arranged for the drugs to be delivered by a criminal syndicate to a pre-arranged location in Rotterdam, Netherlands, where Dutch authorities intercepted the shipment in conjunction with the Australian Federal Police.

At first instance, the sentencing judge in the District Court found that the appellant played a senior organisational and supervisory role in a sophisticated criminal network over approximately eight months. The sentencing judge set a starting point of 28 years imprisonment before applying a discount for the appellant's guilty plea.

The appellant sought leave to appeal on the grounds that the sentencing judge failed to meaningfully apply the so-called "Taouk principles" when assessing objective seriousness, failed to address the relevance of the UCO's role to deterrence, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge failed to meaningfully apply the Taouk principles, which hold that police encouragement or inducement of an offence may diminish an offender's culpability
  • Whether the sentencing judge erred in failing to address how the UCO's role was relevant to general and specific deterrence
  • Whether the sentence imposed was manifestly excessive

Decision

The Court was divided. Beech-Jones CJ at CL and Cavanagh J would have dismissed the appeal, while Hamill J would have intervened. By majority, the appeal was allowed and the sentence was reduced, with Hamill J's reasons constituting the operative basis for that outcome.

On the first two grounds, all three judges agreed that no specific legal error by the sentencing judge had been demonstrated. Beech-Jones CJ at CL reasoned that the Taouk principles only operate where something in the UCO's conduct was capable of diminishing the offender's culpability. On the facts, the UCO merely accessed an already existing and capable criminal network. The appellant's organisation had the capacity and willingness to deliver 200 kilograms of MDMA regardless of the UCO's involvement, meaning the UCO's role provided only the opportunity for this particular importation and nothing more. Because the UCO's conduct could not diminish culpability, it was also irrelevant to the assessment of deterrence.

On manifest excess, Hamill J (providing the determinative reasoning) accepted that the sentencing judge had correctly stated the applicable principles but concluded that, when those principles were applied to the actual facts, the resulting sentence was far too severe. His Honour characterised the sentence as manifestly excessive, plainly unjust, and unreasonable. Beech-Jones CJ at CL, by contrast, considered the sentence stern but not manifestly excessive given the appellant's senior role and the gravity of the offending. As the judges were divided, Hamill J's view in favour of intervention prevailed.

Orders Made

  • Time for filing the notice of appeal extended to 22 June 2021
  • Leave to appeal granted
  • Appeal allowed
  • Sentence of Judge Zahra SC imposed on 22 November 2019 set aside
  • In lieu thereof, the appellant sentenced to 18 years imprisonment commencing 8 August 2017 and expiring 7 August 2035
  • Non-parole period of 12 years imposed, commencing 8 August 2017, with parole eligibility from 7 August 2029

Key Takeaways

  • The Taouk principles (derived from R v Taouk (1992) 65 A Crim R 387) require that police assistance, encouragement, or inducement must actually be capable of diminishing an offender's culpability before those principles affect the sentencing assessment. The mere fact that a UCO provided an opportunity for an offence does not automatically engage the principles.
  • Where an offender is a senior member of an existing and capable criminal syndicate, a UCO's role in initiating a particular transaction may be treated as no more than providing an opportunity, leaving culpability unaffected.
  • Because the UCO's conduct did not diminish culpability on these facts, it was also held to be irrelevant to considerations of general and specific deterrence in the appellant's case.
  • The Court of Criminal Appeal confirmed the established standard for manifest excess: intervention is warranted only where the sentencing result is so markedly different from what was appropriate that the appellate court concludes there must have been some misapplication of principle, even where the error is not apparent from the stated reasons.
  • Application of the Taouk principles to individual facts can produce different outcomes among judges on the same panel, as this decision illustrates: two judges found no manifest excess while one found the sentence plainly unjust, with the dissenting view ultimately prevailing by operation of the court's composition.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 301.10, 11.1(1)
- Criminal Code Regulations 2019 (Cth), Sch 2

Cases:
- R v Taouk (1992) 65 A Crim R 387
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v R (2006) 228 CLR 357; [2005] HCA 25
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Assi v R; Jomaa v R [2021] NSWCCA 181
- Giang v R [2017] NSWCCA 25
- Mihelic v R [2019] NSWCCA 2
- DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134
- Bou-Antoun v R [2008] NSWCCA 1
- Kane v R [2021] NSWCCA 250
- Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197
- R v Campanella (2004) 90 SASR 1; [2004] SASC 99
- Parris v R [2013] NSWCCA 5
- Hanania v R [2012] NSWCCA 220
- Gedeon v NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
- Kentwell v The Queen (2014) 252 CLR 101; [2014] HCA 37
- Birtles (1969) 53 Cr App R 469