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District Court 26 March 2026

R v HAMMAD

[2026] NSWDC 110

Drugs

Citation: [2026] NSWDC 110
Court: District Court of New South Wales
Date: 26 March 2026
Judge(s): D Barrow SC DCJ

Background

The offender operated two tobacco shops, one in Punchbowl and one in Lakemba. On 30 October 2024, Therapeutic Goods Administration investigators executed search warrants on both shops while NSW Police simultaneously executed a search warrant on the offender's home in Wilton, New South Wales.

The searches uncovered 10,577 vaping devices (well above the commercial quantity threshold of nine devices), 1,170 vaping accessories, approximately 633.78 kg of tobacco products on which no excise or customs duty had been paid (representing over $1.33 million in unpaid excise), and $16,800 in cash found in a safe alongside a note reading "vape money."

The offender pleaded guilty to two Commonwealth offences: possessing 1,000 times or more of the commercial quantity of vaping goods (s 41QC(7) of the Therapeutic Goods Act 1989 (Cth), maximum seven years' imprisonment) and possessing 100 kg or more of tobacco on which duty had not been paid (sch 1, cl 308-310(1) of the Taxation Administration Act 1953 (Cth), maximum five years' imprisonment). Two further offences (possession of vaping accessories and dealing with suspected proceeds of crime) were taken into account on a Form 1 schedule under s 16BA of the Crimes Act 1914 (Cth).

  • What was the objective seriousness of the offending, assessed against the statutory maximums and the hierarchies of offences under the TGA and TAA regimes?
  • What degree of planning and sophistication was involved in the offender's conduct?
  • What discount was warranted for the guilty pleas, given that the NSW mandatory early plea discount scheme does not apply to Commonwealth offences?
  • What were the relevant subjective factors bearing on sentence, including the offender's background and personal circumstances?
  • What was the appropriate form of sentence, including whether an intensive correction order was available and appropriate for Commonwealth offences?

Decision

The Court assessed the vaping offence (Sequence 6) as sitting at the top of the legislative hierarchy of seriousness for vaping offences, given the fault element and the quantity involved (over 1,000 times the commercial quantity). The tobacco offence (Sequence 9) similarly fell within the largest quantity bracket, though the Court noted the lower fault element of "reasonable suspicion." The Court acknowledged the legislative purposes behind both regimes: deterring the alarming rise in vaping (particularly among young people) and addressing the inadequacy of existing penalties for illicit tobacco dealing.

The Crown submitted that the offending involved sophistication and planning, pointing to the separation of cash from illegal sales and the need to transport goods between the Wilton residence and the shops. The Court did not entirely accept this characterisation. It found that storing the vapes and tobacco at a residential address pointed to a relatively limited operation with little sophistication. While transport was required, the Court did not consider this amounted to a notable degree of planning. The Court did accept that the offender knew his conduct was unlawful, a conclusion supported by his admissions in a recorded interview.

Applying the principles in Xiao v R [2018] 96 NSWLR 1, the Court determined that the utilitarian value of the guilty pleas warranted a 25% discount on sentence for each offence. No discrete sentences were imposed for the Form 1 matters, although the Court noted these could inform an increase to the sentences for the primary offences to reflect personal deterrence and denunciation. The Court also took into account that the vapes were of various flavours, which increases their appeal to young people, and that the tobacco lacked mandatory health warnings.

The judgment text as provided is truncated, so the full reasoning on subjective factors, the ultimate sentences imposed, and the Court's conclusions on the availability and appropriateness of an intensive correction order for these Commonwealth offences are not fully captured in this summary. The metadata indicates that the availability of intensive correction orders for Commonwealth offences was a live issue in the proceedings.

Orders Made

  • The full terms of the orders are not available from the truncated judgment text. The Court sentenced the offender on Sequences 6 and 9, with Sequences 7 and 10 taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth).
  • A 25% discount was applied to each sentence for the utilitarian value of the guilty pleas.

Key Takeaways

  • For Commonwealth offences, the NSW mandatory early guilty plea discount scheme does not apply; however, a utilitarian discount (here, 25%) may still be granted consistent with the principles in Xiao v R.
  • The District Court held that storing illicit vaping goods and tobacco at a residential address, and operating through two retail shops, did not amount to a notable degree of planning or sophistication, notwithstanding the need to transport goods between locations.
  • Under s 41QC(7) of the Therapeutic Goods Act, the vaping possession offence was characterised as sitting at the top of the hierarchy of seriousness within the offence-based regime, given both the fault element and the quantity involved (over 1,000 times the commercial quantity).
  • Parliament's purpose in introducing the vaping and illicit tobacco offence regimes, including deterring unlawful conduct and addressing serious public health concerns such as the uptake of vaping among young people, was recognised as a significant sentencing consideration.
  • As one of the early District Court sentences for vaping offences introduced by the 2024 amendments to the Therapeutic Goods Act, the case also raised the availability of intensive correction orders for Commonwealth offenders as a sentencing issue.

Legislation and Cases Referenced

Legislation:
- Therapeutic Goods Act 1989 (Cth), ss 41QC(1), 41QC(7)
- Taxation Administration Act 1953 (Cth), sch 1, cl 308-310(1), 308-15
- Crimes Act 1914 (Cth), ss 16A, 16BA, 17A, 20AB
- Criminal Code (Cth), ss 400.9(1), 400.9(1A)
- Public Health (Tobacco and Other Products) Act 2023 (Cth), Ch 3
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 66(1), 71
- Therapeutic Goods Regulations 1990 (Cth), r 10N
- Customs Act 1901 (Cth), s 233BABAD(2)
- Excise Act 1901 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), s 546C

Cases:
- Xiao v R [2018] 96 NSWLR 1
- Bugmy v The Queen (2013) 249 CLR 571
- Totaan v The Queen (2022) 108 NSWLR 17
- YZ v R [2025] NSWCCA 65
- Vemadevan v The King [2024] NSWCCA 223
- R v Al Majedi [2024] QCA 27
- R v Nguyen [2023] VCC 421
- R v Kopa; ex parte DPP (Cth); R v Istogu; ex parte DPP (Cth) [2004] QCA 100
- Wong v The Queen (2001) 207 CLR 584
- Hili v The Queen (2010) 242 CLR 520
- Parente v The Queen (2017) 96 NSWLR 633
- R v McGregor [2026] HCA 3
- R v Nguyen (District Court of NSW, Hanley DCJ, 23 September 2020)
- R v Moghadam (District Court of NSW, Buscombe DCJ, 9 August 2023)