El Hassan v Regina [2003] NSWCCA 252

New South Wales Court of Criminal Appeal

CITATION : El Hassan v Regina [2003] NSWCCA 252 HEARING DATE(S) : 24/06/03 JUDGMENT DATE : 24 June 2003

JUDGMENT OF : Meagher JA at 1, 18; Dowd J at 16; Barr J at 17 DECISION : Application for leave dismissed.

CATCHWORDS : Severity of Sentence - Parity of sentences - Relevant facts. LEGISLATION CITED : Crimes Act 1914 (Cth) The Queen v Henry [1999] 46 NSWLR 346 CASES CITED : Douglas v The Queen (1995) 56 FCR 465 Talbot v The Queen (1992) 34 FCR 100 Marouf El Hassan PARTIES : v Regina FILE NUMBER(S) : CCA 60677 of 2001 COUNSEL : A: P Byrne SC R: G Farmer SOLICITORS : A: Glenn K Walsh Solicitor R: Commonwealth Director of Public Prosecutions

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0225 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60677 of 2001

MEAGHER JA DOWD J BARR J

Tuesday, 24 June 2003 HASSAN v REGINA Judgment 1 MEAGHER JA: This is an application for leave to appeal against the severity of a sentence in the case of a charge pursuant to s 23B of the Customs Act 1901 shortly described as attempting to obtain possession of a commercial quantity of cocaine. The authorities have detected the importation into Australia of nearly seventeen and a half kilos of pure cocaine concealed in an autoclave. Upon detection, the cocaine was removed and replaced with some other substance for the purposed of a controlled delivery. The consignment containing the cocaine had arrived in Sydney from Panama on 25 April 2000. The presence of cocaine was discovered on 1 May 2000. The controlled delivery operation was authorised by the Commonwealth Legislation, s 15M of the Crimes Act 1914. 2 A statement of facts tendered in the case without objection discloses that although there was necessarily a large amount of organisation involved in the importation of the autoclave containing prohibited drugs, the involvement of the present applicant, Mr Marouf El Hassan, was not detected by investigating police until approximately 10pm on the evening of Wednesday, 10 May 2000. The full facts in this regard are set out in the judgment of the trial judge, Judge Maguire, in his statement at pages 2-7 of his remarks on sentence. 3 After considering all relevant matters, his Honour came to the conclusion that a sentence should be pronounced on the applicant of fifteen years commencing on 12 May 2000 with a non-parole period of ten years. Mr El Hassan was not the only person involved in the importation. There were at least three others and possibly more. One of those involved is Mr Mazzitelli who was also tried before Judge Maguire and he was given a sentence of nineteen years and eight months, with a non-parole period of twelve years and four months. He applied for leave to appeal and that application was dismissed. 4 There was a Mr Chatman likewise involved who was tried before Judge Woods in the District Court and he was given a sentence of six years with a non-parole period of four years. There was also a trial of the present applicant's brother, Mr Radwin El Hassan. He came on before her Honour, Judge Murrell, in the District Court, and after a successful Crown appeal in this case, Mr Radwin El Hassan was sentenced to ten years with a non-parole period of six years. 5 The present applicant pleaded guilty to the charge laid against him and at a fairly early stage. The facts such as were disclosed in evidence are really very few, though bearing in mind the nature of the transaction, the facts that were disclosed approximated to, and the totality of all relevant facts. 6 In January 2000 Mr Mazzitelli commenced his manoeuvres to import certain approved machinery. It was he, Mr Mazzitelli, who seems to be responsible for the importation of the machinery – doing the paperwork involved, clearing it through Customs, and paying for its importation. It arrived in Sydney on 25 April 2000, the cocaine being discovered on 1 May 2000. The applicant, on the facts before his Honour, does not seem to have entered into the transaction until 10 May. From that day, Mr Helou had a conversation with Mr Chatman during which the former said to the latter, "The guy out the front wants you to do some work on a machine". That guy turned out to be the applicant. 7 Whilst I have said that as far as the evidence goes, that is, the first time which the applicant comes into the picture, from what happens, it is quite apparent that he must have been involved in the transaction at a much earlier point of time. The applicant, when he met Mr Helou, then asked Mr Chatman whether he had a machine which could do some detailed electrical work. He told Mr Chatman, "It will be worth five grand to you". Shortly after that conversation the applicant left with the machine to a company called CMP Auto-Electrical Engineers on a tow truck. They delivered the machine to Mr Chatman's premises, 12 Lewis Road, Liverpool. The applicant told Mr Chatman he had to open the machine and get some stuff out of it. Mr Chatman said that he had the right tools. The applicant and Mr Chatman then opened the crate, removed and examined an autoclave contained in there, then put the whole thing together again and made an appointment for the followng morning. That evening the two El Hassan brothers called on Mr Chatman, went to the crate, moved part of the autoclave, and again reassembled the whole thing, then left. That, I might add, is the first point in the narrative when Mr Radwin El Hassan enters into the picture. 8 The next morning the applicant attended at the garage, gave Mr Chatman $5,000 and removed the bags and placed it in a carry bag. I might add that there is no evidence that the $5,000 concerned came from any source other than the applicant himself. It was at this stage the police intervened and the arrest of the applicant took place. This is the background against which one must consider the applicant's grounds of appeal which have been put to us by Mr Byrne of Senior Counsel with his usual skill. The first and principal point on which he relies are the principles of parity which, according to Mr Byrne, show that the sentence on the applicant was too severe. In this case the question of parity is a multifaceted one as one has four different sets of trials to compare each with each. In the applicant's written submissions, the principal point of comparison or the comparison between the applicant and Mr Mazzitelli. That was pursued not with as much emphasis in the oral submissions today. 9 As far as Mr Mazzitelli is concerned, it's undoubtedly true that Mr Mazzitelli and not the applicant supervised, as it were, the office work relating to the importation of the crate, and this seemingly took some months. It is also true on the facts proved that the applicant only comes into the picture for one or two days beginning on 10 May 2000. However, that is a misleading way of looking at the evidence. The more accurate way of looking at it, is to say Mr Mazzitelli was, as it were, the importer and not much more; that the person who was to obtain the goods, possession of the goods and distribute them, was the applicant. He took charge of distributing the many kilos of this dangerous drug. In these circumstances I do not consider that the sentence imposed upon the applicant and on Mr Mazzitelli are out of kilter. 10 The written submissions made out that the argument on parity also demonstrate, from Mr Chatman's point of view, that there was a discrepancy. That argument has today been abandoned. Today it was put with much greater force that there was lack of parity between the sentences imposed on the applicant and on the applicant's brother, Mr Radwin El Hassan. 11 Mr Radwin El Hassan received ten years with a non-parole period of six years as against the applicant who received fifteen years with a non-parole period of ten years. That were many differences between the roles played by those parties. For example, the brother, Mr Radwin El Hassan, seemed to come into the picture at a slightly later date than his brother, Mr Marouf El Hassan, and to that extent was perhaps less intimately involved. On the other hand, Mr Marouf El Hassan entered a plea of guilty at a very early stage whereas Mr Radwin El Hassan entered a plea of guilty at a comparatively later stage. Both of them were of some assistance to the police and got a suitable discount for that. 12 Further, some recognition must be made of the fact that Mr Marouf El Hassan is a drug addict, whereas his brother is not. In addition to that, if one compares the non-parole period in the case of Mr Marouf El Hassan, the non-parole period is ten years, whereas in the case of Mr Radwin El Hassan, it is six years. In Mr Marouf's case there is a 66 percent non-parole period. In Mr Radwin's case there is 60 percent. 13 All in all, I think the attempt to draw a sharp distinction between the sentences meted out to the two brothers ought be dismissed as it has, in effect, been about three other cases in this saga. The differences between the behaviour of the brothers cannot precisely be estimated, but one factor which I think does emerge fairly clearly is in the case of Mr Radwin El Hassan. The sentence was only achieved after a Crown appeal. It is well recognised in Crown appeals the fear of double jeopardy often generates a sentence less severe than might have been obtained properly at first instance. For these reasons I would dismiss the submissions made on the ground of lack of parity. Again, much is made of the fact that Mr Marouf is a drug addict. I do not think that this argument really gets one anywhere. The matters to my mind are sufficiently covered by The Queen v Henry 46 NSWLR 346 at 383, paras 184 and 185. In those paragraphs the present Chief Justice said as follows: "In Douglas v The Queen (1995) 56 FCR 465, the Full Court of the Federal Court heard an appeal from the Supreme Court for the Australian Capital Territory. In a joint judgment, von Doussa J, Higgins J and R D Nicholson J said (at 470): 'It is, of course, not a mitigatory factor that a person commits crime to feed a drug addiction. However, that is not a principle of universal application. As Jenkinson J noted (at 105) in Talbot v The Queen (1992) 34 FCR 100, the moral and legal fault for the acquisition of the addiction has to be considered: '…evaluation of moral culpability remains in my opinion as fundamental to one system of punishment for crime as evaluation of the degree of harm caused or threatened by the criminal act or actor.' The age of the offender when he or she became addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct' Douglas v The Queen involved an addiction that commenced at age eight and was total by age thirteen. This is an extreme case of little assistance in establishing a general principle that addiction lessens moral culpability. On the contrary, it affirms that self-induced addiction at an age of rational choice. That was the very distinction made by the Full Court in Talbot v The Queen (1992) 34 FCR 100 at 105-106." 14 As to the non-parole period, a question was argued on the written submissions that his Honour erred in his finding that there were no special circumstances referable to the applicant. It is pointed out by Mr Byrne in submissions that the Crimes Act 1914 makes no reference to special circumstances and in this effect his Honour must have been misled. 15 In my view, the Crown is correct in context that what his Honour really meant was there are no circumstances such as are referred to in s 16A subs (2) other than the ones to which I have already referred. In those circumstances, if that is the correct reading, his Honour's remarks are unexceptional. For those reasons, I would propose that the application for leave is dismissed. 16 DOWD J: I agree. 17 BARR J: I also agree. 18 MEAGHER JA: Those are the orders of the Court.