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Court of Criminal Appeal 15 August 2025

Al-Hassan v R

[2025] NSWCCA 120

DrugsPublic order & justice offences
CRIMINAL APPEALS APPEAL AGAINST SENTENCE FACT FINDING WHERE CO OFFENDER DISPOSES OF ONE CONSIGNMENT THREAT TO KILL CO

Citation: Al-Hassan v R [2025] NSWCCA 120
Court: Court of Criminal Appeal, NSW
Date: 15 August 2025
Judges: Wright J, Hamill J, Chen J

Background

The appellant was the principal of a criminal group that imported three separate consignments of cocaine from France into Australia. Two of the consignments (referred to by the names "Adele Margo" and "Gabrielle Jade") were intercepted by the Australian Border Force, and the quantity and purity of cocaine in those packages was uncontested. The third consignment (referred to as "Anthony Barlowe") was disposed of by a co-offender after it was delivered to her address, so its precise contents were never independently verified.

The appellant pleaded guilty in the Local Court to three offences: using a carriage service to threaten to kill the co-offender who had disposed of the third consignment, importing a marketable quantity of cocaine, and doing an act with intent to pervert the course of justice by asking another person to influence a witness. He received a 25% sentencing discount for his early pleas and willingness to facilitate the course of justice. The District Court imposed a total effective sentence of nine years' imprisonment with a non-parole period of six years.

The appellant sought leave to appeal against sentence on two grounds: first, that the sentencing judge erred in finding the Anthony Barlowe consignment weighed close to 425 grams (approximately 15 ounces); and second, that the sentence for the importation offence was excessive and unjust.

  • Whether the sentencing judge erred in finding that the Anthony Barlowe consignment contained close to 425 grams of cocaine, given that the consignment had been disposed of and its contents were unknown, and the only evidence came from the appellant's own references in intercepted calls.
  • Whether the sentence imposed for the importation offence was manifestly excessive.
  • What standard of review applies when a ground of appeal challenges a factual finding made by a sentencing judge: the "reasonably open" standard or the correctness standard.
  • Whether a technical error in the structure of the sentence (specifically, the commencement date of the non-parole period relative to one of the individual sentences) required correction.

Decision

Ground 1: The quantity finding. The Court found that the sentencing judge had ample evidence to conclude that the Anthony Barlowe consignment was close to 425 grams. The judge had relied, among other things, on the appellant's own statements in intercepted telephone calls referring to the quantity and describing the substance as "pure coke." Critically, the Court held that the judge had not purported to make a finding of exact weight or precise purity. His Honour's language was non-specific, made no finding about purity percentage, and did not add an assumed quantity to the total weight of the other consignments to reach an exact figure for pure cocaine imported overall. No error was established on this ground.

Ground 2: Manifest excess. The second ground depended substantially on the first ground being established. Because the quantity finding stood, and given the appellant's criminal history, his leading role in the importation, the quantity of drugs involved across three consignments, and the repetitive nature of the conduct, the Court was not satisfied that the sentence was so severe as to be manifestly unreasonable or plainly unjust.

The standard of review question. Hamill J noted an unresolved tension in the Court's authorities about whether factual findings by a sentencing judge should be reviewed on a "reasonably open" standard or a correctness standard. Neither party had argued the point on appeal, both accepting the "reasonably open" formulation. Hamill J observed that the issue may best be resolved by a bench of five judges. Wright J and Chen J declined to express any view on the question, noting the absence of submissions and that the outcome was the same under either standard in this case.

Technical sentencing error. The respondent identified a structural error in the sentence: the single non-parole period for the two Commonwealth offences commenced on 26 July 2023, which was six months after the commencement date of the individual sentence for the carriage service threat offence (26 January 2023). Part IB of the Crimes Act 1914 (Cth) does not permit a single non-parole period to commence after the commencement date of the sentences to which it applies. Both parties agreed on the correction. The Court allowed the appeal for this limited purpose and adjusted the commencement date of the sentence for that offence to 26 July 2023.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed for the limited purpose of adjusting the commencement date of the sentence for sequence 1 (using a carriage service to threaten to kill); appeal otherwise dismissed.
  • Sentence for sequence 1 quashed and replaced: 14 months' imprisonment commencing 26 July 2023 and expiring 25 September 2024.
  • Single non-parole period of 5 years for sequences 1 and 11 confirmed, commencing 26 July 2023 and expiring 25 July 2028.

Key Takeaways

  • A sentencing judge's factual finding about the weight of a drug consignment that was never recovered can stand where it is based on the offender's own statements in intercepted communications, provided the finding is not framed with unwarranted precision about purity or exact quantity.
  • No error is established merely because a sentencing judge uses imprecise language about drug quantity; what matters is whether the judge actually made a finding of exact weight or purity that is unsupported by the evidence.
  • Under Part IB of the Crimes Act 1914 (Cth), a single non-parole period for Commonwealth offences cannot lawfully commence after the commencement date of the individual sentences to which it applies; a structural error of this kind requires correction on appeal.
  • An unresolved question remains in the Court of Criminal Appeal as to the correct standard of review for factual findings made by a sentencing judge. Hamill J identified a tension between the "reasonably open" standard applied in some decisions and a correctness standard suggested in others, and indicated the issue warrants resolution by a five-judge bench.
  • In dismissing the manifest excess ground, the Court confirmed that the totality assessment encompassed the appellant's criminal history, his principal role, the drug quantity across repeated importations, and the connected nature of the three offences.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.2(1), 474.15(1)
- Crimes Act 1914 (Cth), Part IB
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kim v R [2018] NSWCCA 68
- Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
- Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353
- Ocek v R [2023] NSWCCA 308
- Bidner v R [2024] NSWCCA 204
- Gibson v Regina [2019] NSWCCA 221
- Newman v R [2021] NSWCCA 101
- Aiga v R [2024] NSWCCA 175
- McLaughlin v R [2025] NSWCCA 13
- R v Bui [2025] NSWCCA 114