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6
Court of Criminal Appeal 6 December 2024

Abbas v R

[2024] NSWCCA 228

Drugs
CRIMINAL LAW SENTENCE APPEAL COMMONWEALTH OFFENCE CROWN CONCESSION ERROR ESTABLISHED KENTWELL ERROR APPEAL ALLOWED

Citation: Abbas v R [2024] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 6 December 2024
Judges: N Adams J (with Chen J and Rigg J agreeing)

Background

The appellant, a 24-year-old student visa holder, pleaded guilty in the District Court to importing a commercial quantity of a border-controlled drug, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). He was intercepted at Sydney Airport on 28 October 2022 after returning from a two-day trip to Fiji carrying 17 bottles of body oil that concealed approximately 7.75 kilograms of pure methamphetamine. Evidence from his mobile phone indicated he had agreed to carry the drugs for a payment of $9,000, with a contact encouraging him that the arrangement had "nothing to do with drugs."

The District Court sentenced the appellant to 8 years and 3 months imprisonment with a non-parole period of 4 years and 6 months. He appealed to the Court of Criminal Appeal on the grounds that the sentencing judge had failed to address his rehabilitation prospects and had applied incorrect principle in assessing the value of his guilty plea.

  • Whether the sentencing judge erred by failing to take into account, or failing to explain how he had taken into account, the appellant's prospects of rehabilitation, as required by s 16A(2)(n) of the Crimes Act 1914 (Cth)
  • Whether the sentencing judge erred by failing to distinguish correctly between the objective and subjective value of the guilty plea

Decision

The Crown conceded Ground 1, acknowledging that the sentencing judge had either failed to consider the appellant's rehabilitation prospects or had not explained how they were factored into the sentence. This concession engaged what the Court of Criminal Appeal described as a "Kentwell error," referring to the principle from Kentwell v The Queen (2014) 252 CLR 601 that requires a court to re-sentence afresh when such an error is established. The Court proceeded on that basis.

Sentencing the appellant afresh, N Adams J assessed the offence as mid-range objective seriousness. The Court accepted that the appellant had entered an early guilty plea of subjective value, had demonstrated remorse (despite expressing some reservations about his ability to articulate genuine insight to report authors), and had moderate prospects of rehabilitation supported by documented participation in programs and TAFE study while in custody.

The Court applied a 25 percent discount for the guilty plea, consistent with the approach taken by the original sentencing judge. It arrived at a starting point of 10 years imprisonment, lower than the 11 years used in the District Court, on the basis that the applicable comparative cases did not support the higher figure. The resulting head sentence was 7 years and 6 months, with a non-parole period of 4 years.

The Court's resolution of Ground 1 meant the sentence was quashed and re-imposed, and the judgment does not appear to make a separate finding on Ground 2 beyond what was necessary to re-sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Sutherland SC DCJ on 15 December 2023 quashed
  • Appellant re-sentenced to 7 years and 6 months imprisonment commencing 28 October 2022 and expiring 27 April 2030
  • Non-parole period of 4 years commencing 28 October 2022 and expiring 27 October 2026
  • Eligible for parole on 27 October 2026

Key Takeaways

  • Under s 16A(2)(n) of the Crimes Act 1914 (Cth), a sentencing court must take prospects of rehabilitation into account and explain how that factor has been addressed; failure to do so constitutes an error that grounds a Crown-conceded appeal.
  • A "Kentwell error" (following Kentwell v The Queen [2014] HCA 37) triggers a complete re-sentencing exercise by the appellate court rather than merely a correction of the original sentence.
  • The Court of Criminal Appeal reduced the starting point from 11 years to 10 years, reflecting that none of the comparative cases squarely supported the higher figure for this particular combination of offence circumstances.
  • Moderate rehabilitation prospects, supported by in-custody program participation and academic achievement, formed part of the re-sentencing calculus even where the offender had not given direct evidence of remorse.
  • A 25 percent discount for an early guilty plea was maintained on resentence, consistent with the original sentencing approach and the principles governing the subjective value of pleas.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Criminal Code Act 1995 (Cth), s 307.1(1)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Lee v R [2016] NSWCCA 146
- R v Abbas [2023] NSWDC 644
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4