R v Youkhanna [2021] NSWDC 513

District Court New South Wales

Medium Neutral Citation: R v Youkhanna [2021] NSWDC 513 Hearing dates: 22 January 2021 Date of orders: 1 March 2021 Decision date: 01 March 2021 Jurisdiction: Criminal Before: M Adams QC ADCJ Decision: With the application of a 25% discount the offender is sentenced to imprisonment for a period of 4 years. There is to be a non-parole period of 2 years and 6 months. Catchwords: CRIMINAL LAW – Sentence – Possess commercial quantity of border controlled drugs – Cocaine – Role of courier Legislation Cited: Crimes (Sentencing Procedure) Act Criminal Code (Cth) Category: Sentence Parties: The Crown - Cth Ashoor Youkhana – Offender Representation: Counsel: C Brain – Cth A Djemal - Offender

Solicitors: Director of Public Prosecutions (Cth) Miers Legal - Offender File Number(s): 2019/118182

Judgment

Introduction 1. The offender Ashoor Youkhana pleaded guilty in the Local Court on 19 February 2020 of one count of possessing a commercial quantity of border controlled drugs, namely cocaine, contrary to s 307(1) of the Criminal Code (Cth). The applicable penalty is imprisonment for life or 7,500 penalty units or both. 2. The offender was arrested on 15 April 2019 and granted bail on 26 August 2019. The bail conditions were highly restrictive of his liberty and should be taken into account. His period of custody must also be taken into account. I have adjusted for these circumstances by backdating the sentence to 1 March 2020.

Facts 1. The following account is largely drawn from the agreed statement of facts that was tendered by consent in the proceedings. The offender and a co-offender Damian Flower were known to each other. By phone conversations between them on 11 and 14 April 2019 they arranged to meet. Flower was an associate of a third co-offender, John Mafiti, who was employed by Qantas as a baggage handler at all relevant times. The offender and Mafiti were not known to each other prior to 15 April 2019. In the morning of 14 April 2019 Flower's phone sent the offender's phone a text message to meet at 10:30am. Between 3pm and 4:45pm on the same day Flower flew from Sydney to Coolangatta airport. 2. On 15 April 2019 Mafiti was rostered to work at Sydney International Airport between 6:30am and 2:30pm. At 8:59am he received a coded message from Flower identifying a baggage container, which had arrived on a flight from South Africa, from which he collected a duffel bag. He departed the airport and walked in the direction of the "Arrival Circuit" near a hotel at the airport and waited. The offender drove to that location in a utility vehicle belonging to his business. He was alone. Shortly after 3:30pm, Mafiti approached the passenger side of the vehicle, placed the duffel bag in the rear passenger seat and then departed the area in his own vehicle. He then sent a SMS message to Flower,reading, "Done ... on my way brother". 3. The offender then drove his vehicle about 90 metres, when he was stopped by officers of the Australian Federal police. His vehicle was searched and officers found a large black duffel bag locked with a small padlock on the rear passenger side seat. Inside the bag were plastic covered bricks with distinctive packaging and logos, a mobile phone connected to a battery pack and three other mobile phones, one of which was encrypted. The offender was arrested shortly after. 4. Analysis of the parcels in the duffel bag show that they contained a total of something over 19kg pure cocaine. Found on the offender's phone was a screenshot taken at 3:48pm on 14 April of a location where Flower had been observed on the following day prior to taking collection of a duffel bag from Mafiti on that date. Maffei and Flower were arrested on 22 May 2019 in relation to their involvement in the importation in this case and up to 44 other importations alleged to have been committed over a three year period. There is no evidence that the offender was involved in any of these other importations or that he was any more than a delivery person of the bag containing the cocaine on the day in question. 5. I am informed, and accept, that the basis for the offender's plea was that, although he did not admit to actual knowledge of the contents of the bag, he was reckless as to its contents. He was also unaware of the weight of the drugs. As is implicit from the above account, there is no evidence that the offender was party to organizing either the importation or the ultimate distribution of the drugs. He was a courier to an unknown destination. Mafiti was unknown to the offender. Flower was his friend. There is no evidence of any proposed payment. His limited understanding of the seriousness of the business in which he was engaged is demonstrated by the fact that he used his personal work vehicle, registered to his business. 6. The Crown submits that the offender had either actual knowledge or an actual belief that the bag contained a border controlled drug, relying on the overall circumstances of the delivery and where it took place in. proximity to the Airport. Whilst I accept that the evidence demonstrates enough to have raised in any reasonable person and, I would conclude, the offender, a substantial suspicion about the contents of the bag, namely that it was very likely to contain drugs of some kind, it seems to me that this goes no further than to establish recklessness about what was given into his possession for delivery. I do not think, however, that recklessness in this context is significantly less culpable than actual knowledge. Since the objective seriousness of the offence is greater when committed for financial reward, this must be established by the Crown beyond reasonable doubt. There is certainly ground for suspicion that this was so but, in the end, the evidence does not justify drawing this conclusion. Since I am dealing with the objective circumstances of the offence, I should state that even if it were the case (as claimed by the offender) that he was doing a friend a favour, this also does not reduce his moral or criminal culpability to any significant degree.