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Court of Criminal Appeal 14 November 2025

Habkouk v R

[2025] NSWCCA 188

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT VERDICT NOT UNREASONABLE CRIME APPEALS

Citation: Habkouk v R [2025] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 14 November 2025
Judges: Ball JA, Ierace J, Coleman J

Background

The applicant was convicted in the District Court following a jury trial of attempting to possess a commercial quantity of unlawfully imported heroin, contrary to ss 307.5(1) and 11.1(1) of the Criminal Code (Cth). The heroin, totalling approximately 143 kilograms, had been concealed inside lead boxes hidden behind removable panels of a large bakery mixing machine imported from Malaysia. Australian Border Force officers discovered the heroin on arrival, and the AFP removed it and reconstructed the machine before allowing delivery to proceed.

The mixing machine was delivered to a storage unit leased by an associate of the applicant. Video surveillance captured the applicant and that associate unloading the machine on 10 February 2021. On the following two days, the applicant attended the storage unit alone on multiple occasions, including visits to nearby hardware stores between attendances. He was sentenced to 15 years' imprisonment with a non-parole period of 11 years.

The applicant sought leave to appeal out of time against both his conviction and sentence, raising three grounds: that the verdict was unreasonable, that a miscarriage of justice arose from the Crown Prosecutor's closing address, and that the sentencing judge erred by taking into account his role in the importation when sentencing him for an offence of attempted possession.

  • Whether the jury's verdict of guilty was unreasonable because the prosecution had not excluded the possibility that the applicant's associate had attempted to possess the heroin alone.
  • Whether a miscarriage of justice arose from the Crown Prosecutor's direction to the jury to put questions about the associate out of their minds, in circumstances where the trial judge and defence counsel did not address this.
  • Whether the sentencing judge contravened the principles in R v De Simoni (1981) 147 CLR 383 by sentencing the applicant based on his role in the importation, when he had only been convicted of attempting to possess the drugs.

Decision

Ground 1: Unreasonable verdict. The Court found the verdict was not unreasonable. For the associate to have attempted to possess the heroin alone, he would have needed to access the concealed lead boxes during the 13 minutes he was present at the storage unit on 10 February 2021. The Court accepted that the multiple steps required to access the heroin inside the heavy machine made it physically impossible for one person to complete them in that timeframe. It was therefore open to the jury to be satisfied beyond reasonable doubt that the associate had not acted alone.

Ground 2: Miscarriage of justice. The Court rejected this ground. The Crown Prosecutor's remarks had to be understood in context. The applicant's trial case did not depend on proving the associate had acted alone; rather, the defence proceeded on the basis that the primary attempt occurred on 11 February 2021. Directing the jury to put the associate's guilt or innocence out of their minds was described as entirely orthodox, consistent with the well-established approach of focusing the jury on the case against the applicant as proved beyond reasonable doubt.

Ground 3: De Simoni error. The Court found that error had been established. The sentencing judge made repeated references to the applicant's role in the importation when assessing objective gravity and culpability, despite finding that the applicant was not involved in planning or organising the importation. That approach contravened the De Simoni principle, which prohibits sentencing a person on the basis of a more serious offence for which they have not been convicted. However, the Court concluded that no lesser sentence was warranted at law. Having regard to the quantity of drugs, the applicant's criminal history, absence of remorse, and comparable cases nationally, the Court considered the sentence imposed was, if anything, slightly low. Re-sentencing was therefore not required.

Orders Made

  • Leave to file the Notice of Appeal out of time is granted.
  • Leave is granted to appeal against the conviction and sentence.
  • The appeal is dismissed.

Key Takeaways

  • A verdict of attempting to possess a commercial quantity of heroin was not unreasonable where the physical steps required to access the concealed drugs made it impossible for a single person to have acted alone within the observed timeframe, leaving it open to the jury to exclude that scenario beyond reasonable doubt.
  • Directing a jury to set aside questions about the guilt of co-accused or associates, and to focus solely on whether the case against the applicant has been proved, is an orthodox and proper approach that does not of itself occasion a miscarriage of justice.
  • Under the De Simoni principle, a sentencing court cannot take into account, as an aggravating factor, conduct that would constitute a more serious offence for which the offender was not convicted. Repeated references to an applicant's "role in importation" when sentencing for attempted possession was held to be an error of that kind.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that where a De Simoni error is established, resentencing is still not required if no lesser sentence is warranted at law on a fresh assessment of all the circumstances.
  • Commonwealth sentencing requires regard to sentencing practices across the country for consistency, in accordance with The Queen v Pham (2015) 256 CLR 550 and Hili v The Queen (2010) 242 CLR 520.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(3)
- Criminal Code (Cth), ss 11.1(1), 307.5(1)

Cases
- R v De Simoni (1981) 147 CLR 383 (HCA)
- M v The Queen (1994) 181 CLR 487 (HCA)
- The Queen v Olbrich (1999) 199 CLR 270 (HCA)
- Wong v The Queen (2001) 207 CLR 584 (HCA)
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 (HCA)
- Kentwell v The Queen (2014) 252 CLR 601 (HCA)
- The Queen v Pham (2015) 256 CLR 550 (HCA)
- R v ZT [2025] HCA 9; (2025) 99 ALJR 676
- El Jamal v R [2021] NSWCCA 105
- Balloey v R [2014] NSWCCA 165
- El-Ghourani v R [2009] NSWCCA 140
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Tu v R [2011] NSWCCA 31
- R v Laurentiu & Becheru (1992) 63 A Crim R 402
- R v Lawless (Court of Criminal Appeal, 24 June 1994, unreported)