R v Khanafer

Citation: R v Khanafer [2026] NSWDC 282
Court: District Court of New South Wales
Date: 31 July 2026
Judge(s): Newlinds SC DCJ

Background

Between October 2019 and January 2021, the offender provided assistance to individuals who were conspiring to import border-controlled drugs into Australia. His role involved connecting those individuals with an airport employee who had airside access at Sydney Airport via a ground handling company's vehicles. The offender also supplied an AN0M encrypted device to that employee and participated in discussions about payments for the employee's role in the conspiracy.

The offender was not charged as a co-conspirator in the drug importation scheme. He pleaded guilty to the distinct Commonwealth offence of providing material support to a criminal organisation under s 390.4(1) of the Criminal Code Act 1995 (Cth). The AN0M device, central to uncovering his conduct, was part of the covert law enforcement operation that generated significant appellate litigation, which itself contributed to delays in the proceedings.

The offender presented a strong subjective case, including evidence of genuine remorse, meaningful rehabilitation progress, engagement with a 12-step program, and a low assessed risk of reoffending.

Legal Issues

• What are the mental elements of the offence of providing material support to a criminal organisation under s 390.4(1) of the Criminal Code, particularly in relation to ss 390.4(1)(a) and (b)?
• What level of knowledge or recklessness must an offender have regarding the nature of the organisation and the risk that support will aid it?
• How should objective seriousness be assessed for an offence with no appellate sentencing guidance and very few comparable cases?
• How should sentencing proceed where the agreed facts disclose involvement in a "drug related crime" but the offender is not charged as a party to the underlying conspiracy?
• Whether the threshold for a term of imprisonment under s 17A of the Crimes Act 1914 (Cth) was met, and whether a Recognizance Release Order was appropriate.

Decision

Issue 1: Mental elements of s 390.4(1)

His Honour described the mental elements of the offence as genuinely difficult to identify. In relation to s 390.4(1)(a), the court concluded that an offender must know they are providing support to an organisation of the kind described in the provision, and that recklessness in the sense of knowing there is a significant risk that the organisation meets those criteria and proceeding regardless can satisfy that element.

In relation to s 390.4(1)(b), the court drew a distinction between the two limbs. His Honour concluded that s 390.4(1)(b)(i) requires actual knowledge that the support will aid the organisation, while s 390.4(1)(b)(ii) introduces the concept of risk. To give the two limbs separate work to do, the court read s 390.4(1)(b)(ii) as requiring that the offender know there is a substantial risk that the support will aid the organisation's criminal activity. The court noted that neither of the only two known sentencing decisions on this provision addressed the mental elements.

Issue 2: Objective seriousness

The court acknowledged considerable difficulty in placing this offending on the spectrum of objective seriousness, given the absence of appellate guidance and the scarcity of comparable cases. The maximum penalty of five years imprisonment provided the only reference point. His Honour noted that the offender was not a co-conspirator and his culpability had to be assessed on that basis, even though the organisation he supported was engaged in a drug importation conspiracy.

Issue 3: Sentence determination

Having regard to the sentencing regime under Pt IB of the Crimes Act 1914 (Cth), all relevant s 16A(2) factors, and the strong subjective case, the court found the question of whether the s 17A imprisonment threshold was met to be extremely finely balanced. His Honour ultimately determined that the balance tipped slightly in favour of a term of imprisonment. A pre-discount term of two years was reduced by 10% for the guilty plea, producing a sentence of 22 months.

Issue 4: Recognizance Release Order

The court was satisfied that serving the term in the community under a Recognizance Release Order (an order under s 20 of the Crimes Act 1914 (Cth) that allows an offender sentenced to three years or less to be immediately released on conditions) would promote the offender's rehabilitation and reduce his chances of reoffending, to the benefit of the community. The offender was immediately released on conditions including supervision, continued engagement with health professionals and the 12-step program, and restrictions on interstate and overseas travel.

Orders Made

• The offender was sentenced to 22 months imprisonment, commencing 31 July 2026 and expiring 30 May 2028 (after a 10% guilty plea discount).
• The offender was immediately released under a Recognizance Release Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), in the sum of $100, for 22 months expiring 30 May 2028.
• Conditions of the Recognizance Release Order:
• To be of good behaviour
• To report to the nearest city community corrections office within seven days
• To be subject to probation officer supervision and abide by all reasonable directions
• To submit to any treatment plan directed by the probation officer or treating practitioners
• To continue engaging with current health professionals
• To continue actively participating in the 12-step program
• Not to take illicit drugs unless prescribed by a mental health professional
• Not to travel interstate or overseas without written permission from the probation officer

Key Takeaways

• The District Court provided the first known judicial analysis of the mental elements of s 390.4(1) of the Criminal Code Act 1995 (Cth), concluding that the offender must know, or be reckless as to, the criminal character of the organisation supported, and must know there is a substantial risk that the support will aid the organisation's offending.

• A distinction exists between s 390.4(1)(b)(i) and (ii): the court read the first limb as confined to actual knowledge that support will aid the organisation, with the second limb capturing cases where the offender knows there is a substantial risk of that outcome.

• Assessing objective seriousness for this offence is complicated by the near-total absence of comparable cases and appellate guidance, meaning sentencing courts must rely primarily on the maximum penalty as a calibration point.

• Where an offender is charged under s 390.4 rather than as a co-conspirator, the sentencing court must assess culpability by reference to the support role itself, not by treating the offender as though they were a party to the underlying conspiracy.

• A strong subjective case including genuine remorse, active rehabilitation, and a low risk of reoffending can tip a finely balanced sentencing outcome toward a Recognizance Release Order, allowing a term of imprisonment to be served in the community under supervision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth) ss 16A, 17A; 19AC; 20
- Criminal Code Act 1995 (Cth) ss 11.2, 11.5 307.11, 390.4
- Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 ( Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

Cases
- Day v R [2011] VSCA 243
- Director of Public Prosecutions (Cth ) v Pratten (No 2) (2017) 94 NSWLR 194
- Flower v R; Mafiti v R [2024] NSWCCA 76
- Parris v R [2013] NSWCCA 5
- R v Chen (unreported, QDC, 16 February 2017, Ryrie DCJ)
- R v De Simoni (1981) 147 CLR 383
- R v Jhang (unreported, NSWDC, 20 March 2026, Blackmore AJ)
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Scook v The Queen (2008) 185 A Crim R 164
- Xiao v The Queen [2018] NSWCCA 4