Wagih Hanna Awad NAKHLA v R [2011] NSWCCA 143

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wagih Hanna Awad NAKHLA v R [2011] NSWCCA 143 Hearing dates: 8 June 2011 Decision date: 24 June 2011 Before: Hodgson JA at 1; Hoeben J at 2; Grove AJ at 3. Decision: Appeal dismissed Catchwords: SENTENCE - Offer of assistance to authority - Little value - Measure in terms of contrition - Ambiguity in remarks on sentence - No less severe sentence warranted Legislation Cited: Crimes Act 1914 (Commonwealth) Criminal Appeal Act 1912 Cases Cited: R v Barrientos [1999] NSWCCA 1 R v Nikolovska [2010] NSWCCA 169 Category: Principal judgment Parties: Wagih Hanna Awad NAKHLA Regina Representation: Counsel: Mr A Norrie (Applicant) Mr Neil Adams (Crown/Respondent) Solicitors: Hal Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Crown/Respondent) File Number(s): 2008/12443 Decision under appeal Jurisdiction: 9101 Citation: 2008/11/0777 - R v Wagih Hanna Awad NAKHLA Date of Decision: 2009-11-20 00:00:00 Before: Sorby DCJ File Number(s): 2008/12443 (formerly 2008/11/0777)

Judgment 1HODGSON JA: I agree with Grove AJ. 2HOEBEN J: I agree with Grove AJ. 3GROVE AJ: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ in Sydney District Court following a plea of guilty to an indictment charging the import of a marketable quantity of a border controlled drug namely cocaine. Although the indictment was presented, the applicant had pleaded guilty when charged in the Local Court at what his Honour described as a relatively early stage and he applied a "discount" of 20% for the value of the plea as facilitating the course of justice. The applicant was sentenced to imprisonment for 9 years 6 months with a non parole period of 5 years 9 months. 4There is a single ground of appeal alleging "that the learned sentencing Judge failed to give sufficient weight to the appellant's assistance to authorities". At first instance, his Honour made a non publication order, no doubt in connection with the question of assistance, but with the passage of events it is no longer required to keep such an order in effect. 5The facts of the offence were set out in a lengthy agreed statement from which this summary can be made. It can be deduced that police were equipped with some information as a result of which they intercepted telephone calls in which, in coded language, the applicant discussed arrangements about the intended importation. There is no present need to recapitulate the content of conversations but he spoke to two men in Australia referred to as "Bill" and "Adegoke", a man apparently in Nigeria as "Andrew" and to a QANTAS employee Anna Nikolovska. 6On 7 November 2007 the applicant left Australia and went to Cotonou in Benin. Between 23 November and 3 December he made two return journeys by air between Cotonou and Abidjan in Ivory Coast. He came back to Australia via Bangkok Thailand on 7 December having obviously consummated arrangements for the dispatch of the illicit drugs. 7On 6 December 2007 a package arrived from Ivory Coast consigned to a retired employee of QANTAS at that company's Sydney Distribution Centre. It was examined by Customs and found to contain within the declared content of oil filters, a gross weight of about 1.96 kilograms of cocaine later established as a pure weight of 1.431 kilograms. 8On 10 December there were exchanges of messages between the applicant and Anna Nikolovska about the airfreight package culminating in telephone calls in which the applicant was informed that the package (addressed to the retired employee) had been collected by another employee called Louise who was said, at one point, to be "with the boss". 9Later that afternoon, Ms Nikolovska was arrested and interviewed. At that time she said that she believed the importation consisted of diamonds or some other commodity rather than narcotics and that she was to be paid $10,000 for her part in facilitating the delivery. A little later the same afternoon the applicant was arrested. He had been driving a car in the vicinity of the QANTAS Distribution Centre and in the console of his vehicle was $10,000 cash for the purpose of paying Ms Nikolovska. He also had his passport with him. 10When interviewed, the applicant denied knowledge of the narcotics and said that he had been to Africa (as his passport would probably have recorded) looking for business opportunities. As his plea now confirms, he subsequently resiled from these assertions. 11Relevant to the ground of appeal the agreed statement of facts contained this information in relation to assistance to authorities: "36. The offender indicated his likely willingness to assist the authorities in the Local Court, before entering a plea of guilty. Although a plea of guilty was not entered until the then-accused's ninth appearance before the Local Court (and some four appearances after service of the brief of evidence), the adjournments were by consent and were related to the anticipated assistance to be provided by the then-accused to police. 37. Following the offender's plea of guilty and committal for sentence, he has made three statements to police in relation ti issues to drug importation (dated 10 June 2008, 20 June 2008 and 24 September 2008 respectively). After consideration of those statements and an assessment of the extent of assistance provided by the offender, the police have declined to provide the offender with a letter of comfort or an affidavit of assistance. 38. The police have declined to provide the offender with a letter of comfort or an affidavit of assistance because the police have assessed the assistance provided by the accused as of no or very little value. That assessment was primarily that of Federal Agent Booth, as the case officer." 12It might be noted that this extract has been taken from a statement dated 3 August 2009 which was substituted for an earlier version to parts of which there had been objections. This version was prepared to conform with his Honour's rulings in those regards. 13In addition to the agreed statement his Honour was supplied with copies of three statements made by the applicant and a further document labelled "assessment of assistance" which contained some detail of enquiries of the applicant and other information already in possession of police. For example, this document contained the following: "Whilst certain aspects of the information provided they accused have been corroborated it is the view of the AFP that the accused has been evasive and has withheld pertinent information in regards to other persons involved in the importation. NAKHLA's explanation of his relationship to the person "Andrew" in Nigeria was unsatisfactory and was again contradicted by the content of intercepted conversation between the two." 14There was also an evaluation of the statements which had been provided to his Honour in these terms: "The information provided by NAKHLA in these statements largely downplays his own role in the importation and places significant responsibility on others. This is a situation that his not reflected in the evidence gathered through interception of NAKHLA's telephone during the investigation." 15Two police officers were called for cross examination and, inter alia , questions were directed to them about the value of information. These questions were asked by counsel who did not appear in the appeal. The transcript shows that his Honour sought clarification and specifically confirmation about what stance was being taken by the applicant in relation to the agreed facts particularly with reference to the content of the extract above quoted. He was informed that the applicant "agrees with the statement of facts" (Transcript 11 September 2009 page 17). 16In his remarks on sentence his Honour said of the claim for mitigation in respect of cooperation with authority: "One of the factors to be considered under s 16A of the Crimes Act 1914 (Commonwealth) is the "degree to which a person has cooperated with law enforcement agencies in the investigation of the offence or other offences". This subsection has not been codified. The word "degree" in my view must encompass not only the amount of cooperation and the value of information forwarded to the authorities but also whether the information was useful and including whether it led to further police action. In this case I have said the police interviewed the offender on at least four occasions to obtain what information he could provide. The statements were before me, in a sealed envelope, which I have read. No police action has been taken as a result of what the offender was prepared to offer. As I have said earlier, the information and many hours of talks with the police have led to no further action by police and the assessment by police that the information was of little value and "intelligence" only, again as I said earlier. In my view the offender has cooperated with the police to a great extent and his assistance should be measured in terms of contrition rather than a specific reduction for assistance, and I intend to do so." 17The argument in support of the ground focussed upon his Honour's statement that the assistance should be measured in terms of contrition rather than in a specific reduction for assistance. It was accepted that his Honour was not required to quantify any discount. 18Reference was made to the observations of Abadee J in R v Barrientos [1999] NSWCCA 1 where an assessment had been made that assistance was "only of limited intelligence value to the police" and Abadee J pointed out that this was a different proposition from suggesting that it was of no value at all, thus there needed to be recognition of a distinction between giving no discount at all and the quantum of discount where some entitlement had been established. 19It was at least unconventional to measure assistance in terms of contrition and the complaint is that these are different concepts and conflating them obscured whether assistance had been given appropriate weight. It is noted that the terms of the ground do not suggest that it was given no weight at all. A submission that "the significant level of assistance" by the applicant went beyond mere contrition, must be rejected in so far as it expresses that level because it is clear from the evidence and his Honour's finding, that the level of assistance was anything but significant. However, although on one interpretation his Honour's words might convey that whatever assistance was given had elevated whatever mitigation was being reflected for contrition, the words might mean, as contended on behalf of the applicant, that contrition and assistance had been equated. 20As stated in written submissions, the Crown, "without conceding the point" acknowledged that there was "some force" in the arguments advanced by the applicant and noted that, as his Honour anticipated, in offering assistance (at all) there was likely to be hardship for the applicant in the nature of his custody. 21To the extent indicated by the lack of clarity, I consider that the ground relied upon should be taken to be established. The following issue then is whether there should be a reduction in sentence for that reason. 22No ground of parity with the co-offender Nikolovska was raised but both the applicant and the Crown addressed the matter as the sentence received by her could not be ignored in relation to sentence (or if appropriate, re-sentence) of the applicant. 23Nikolovska was sentenced by Nicholson DCJ prior to the applicant appearing for sentence and Sorby DCJ expressly noted that she had received a sentence of imprisonment of 6 years with a non parole period of 3 years 9 months. A Crown appeal asserting the manifest inadequacy of the sentence on Nikolovska was successful ([2010] NSWCCA 169) and she was re-sentenced to imprisonment for 7 years 6 months with a non parole period of 4 years 9 months. In his judgment therein, Kirby J (Beazley JA and Johnson J agreeing) said: "[97] Mr Nakhla, no doubt, had the benefit of a reasonably lenient sentence, framed by Sorby DCJ with the manifestly inadequate sentence of Ms Nikolovska in mind. This Court has a discretion to intervene and correct the manifestly inadequate sentence given to Ms Nikolovska, even though such intervention would alter the relativities created by Sorby DCJ, reflecting his view, amongst other things, of parity. So, the question is whether the Court should intervene or dismiss the appeal? In my view, in the circumstances identified, the Court should intervene, although preserving some real difference with the sentence imposed upon the offender Nakhla, reflecting his larger role." 24It was not disputed, as the sketch of facts above clearly demonstrates, that the appellant's role was larger than that of Ms Nikolovska. 25Whilst parity between co-offenders has not been ignored, the issue for this Court is whether, as required by s 6(3) of the Criminal Appeal Act 1912, a less severe sentence is warranted and should have been passed. 26It can be recognised that there were undoubtedly persons higher up in the organisation of this importation than the applicant but he was an extremely active participant. As stated, he travelled overseas and made necessary arrangements for the importation to take place. That he was a trusted lieutenant was also manifest in his being given $10,000 in cash to pay Ms Nikolovska for her role. His Honour's assessment gave full credit to matters of mitigation from which the applicant could draw comfort and, if assistance to authority be regarded as an exception to the giving of such credit, a generous estimate to reflect that factor could only be very modest in the circumstances pertaining to the applicant. 27In my view, no less a sentence than that imposed by his Honour would be warranted, and I would grant leave to appeal against sentence but dismiss the appeal.