Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Younan v R [2012] NSWCCA 155 Hearing dates: 10 July 2012 Decision date: 18 July 2012 Before: Hoeben JA Latham J Garling J Decision: Leave to appeal allowed Appeal dismissed Catchwords: CRIMINAL LAW - appeal against sentence - importing a marketable quantity of heroin s 307.2 (1) of the Criminal Code (Cth) - whether trial judge erred in application of Ellis discount - whether trial judge erred in failing to find applicant was remorseful - whether sentence was manifestly excessive -- undue weight was not placed on general deterrence - no scope for finding remorse after conviction at trial - sentence imposed was at the very bottom of the range - appeal dismissed Legislation Cited: Crimes Act (Cth) 1990 Cases Cited: R v Ellis (1986) 6 NSWLR 603 R v Borkowski [2009] NSWCCA 102 Raad v R [2011] NSWCCA 138 R v Rushby [1977] 1 NSWLR 594 Category: Principal judgment Parties: Aram Younan - Applicant Regina - Respondent Representation: Counsel M Smith - Applicant CP O'Donnell - Respondent Solicitors CrimLaw (NSW) Pty Ltd - Applicant Commonwealth Director of Public Prosecutions - Respondent File Number(s): 2009/58589 Decision under appeal Date of Decision: 2010-11-17 00:00:00 Before: Flannery SC DCJ File Number(s): 2009/0058589004 Judgment 1HOEBEN JA : I agree with Latham J. 2LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Flannery SC DCJ on 17 November 2010 in respect of two counts of importing a marketable quantity of heroin, pursuant to s 307.2 (1) of the Criminal Code (Cth). The offence carries a maximum penalty of 25 years imprisonment. 3The applicant was convicted after trial. On the first count, her Honour imposed a term of 5 years and 9 months imprisonment. On the second count her Honour imposed a term of 6 years and 2 months imprisonment. The sentence on count two was accumulated on the sentence for count one to the extent of 3 months, resulting in an aggregate sentence of 7 years and 5 months. Her Honour set an aggregate non parole period of 4 years and 6 months. 4The applicant alleges error in the manner in which her Honour dealt with the application of what has come to be known as the Ellis discount (R v Ellis (1986) 6 NSWLR 603). Further, the applicant alleges error in her Honour's failure to find that the applicant was remorseful. Finally, the applicant complains that the sentence is manifestly excessive and that a lesser sentence is warranted in law. 5The circumstances of the applicant's offending fall within a short compass. The applicant travelled to Thailand on two occasions at the request of a co-offender, Sam Isaac, in January and March of 2009. On the first occasion, the applicant returned to Sydney, wearing a pair of shoes that were provided to him in Thailand and which concealed 537 g of pure heroin. 6On the second occasion, the applicant aided and abetted the importation by a co-offender, Akram Hanna, of 642 g of pure heroin, secreted within a pair of shoes worn by Mr Hanna, by recruiting Mr Hanna, making travel arrangements for himself and Mr Hanna, travelling to Thailand with Mr Hanna and Mr Isaac, and assisting Mr Hanna at Bangkok Airport for his return to Sydney. The applicant was also provided with shoes that contained a quantity of heroin. It was proposed that the applicant would return to Sydney on a separate flight. When it became apparent that Mr Hanna had been arrested at Sydney airport, the applicant refused to continue with the planned importation and returned the shoes to Mr Isaac while still in Thailand. When the applicant returned to Australia, he sought and received $10,000 from Mr Isaac in order to conceal his knowledge of the drug importation activities of Mr Isaac and others. 7Following a conversation with Mr Isaac, wherein it was intimated that the applicant might be in jeopardy, the applicant went to police on 12 May 2009. On that day, and again on 4 June and 2 July 2009, the applicant participated in a number of interviews. He disclosed his own involvement in those importations and the involvement of Isaac and a further co-offender, Vaga, in other importations, although the applicant insisted that at all times he believed he was importing diamonds. 8The applicant's trial was therefore conducted on the basis that he was not aware of a substantial risk that the substance secreted in the shoes was a border controlled drug. The jury having rejected that defence, her Honour sentenced the applicant on the basis that he was aware that there was a substantial risk. 9The extension of some leniency to the applicant, pursuant to the decision in Ellis, therefore arose in somewhat unusual circumstances. The Crown accepted that at the time of the applicant's disclosure to the police, his involvement in the importations had not, and was not likely to come to the attention of the authorities. The Findings and Remarks on Sentence 10The facts underpinning the sentence were the subject of formal admissions made for the purposes of the trial. There was no dispute in relation to the circumstances surrounding both importations. The only issue was the applicant's state of mind. 11Her Honour noted that the applicant's motive for committing the offences was financial, in that he was unemployed and was addicted to gambling. The applicant had no relevant prior convictions. He was 47 years of age at the time of sentence. He emigrated to Australia from Greece at the age of 20 where he secured employment as a spray painter in a car manufacturing firm and later worked in the construction industry. The applicant's subjective circumstances were canvassed in detail. 12Her Honour comprehensively addressed s 16A of the Crimes Act (Cth). Her Honour began by noting that the judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 suggested that "deterrence is to be given chief weight in the sentencing task and that stern punishment will be warranted in almost every case". 13The judge accepted the Crown's submission that the applicant acted as an intermediary between Mr Isaac and Mr Hanna and therefore recruited, encouraged and assisted Mr Hanna to do those things necessary for the importation of a significant quantity of heroin. The judge also accepted the applicant's submission that everything that the applicant did was at the behest of and funded by Mr Isaac. 14Her Honour found that the applicant performed the role of courier with respect to count one, although that did not entitle him to any degree of leniency. Her Honour found that the applicant's criminality was significantly aggravated over and above that usually attributed to a drug courier by the fact that the applicant, on both occasions, travelled overseas for the purpose of importing drugs or aiding and abetting another person to do so. 15Turning to the question of the applicant's co-operation with law enforcement agencies, her Honour referred to the applicant's voluntary admission of his involvement in the importations and the applicant's undertaking to give evidence on behalf of the Crown in the prosecutions of Mr Vaga and Mr Hanna. Her Honour noted that the Australian Federal Police (AFP) accepted that the applicant's assistance led to the arrest and prosecution of Mr Isaac and Mr Vaga. The AFP also accepted that the applicant had been fully cooperative and had communicated regularly with them and that the applicant had placed himself at risk of physical harm by providing assistance. 16In the light of this information, her Honour determined that the applicant's assistance was of more than medium value to the AFP. Her Honour also noted that the applicant had been subject to verbal and physical abuse by inmates as a result of the issue of a subpoena by the DPP in relation to the applicant's proposed evidence in the trial of Mr Isaac. At the time of sentence, the applicant had been in protection and had limited access to facilities provided generally to other inmates of the prison. In summary, her Honour found that the applicant's assistance was "significant, useful, complete and reliable", and that it was "timely and extensive". The judge accepted that the applicant's time in custody had been onerous and that it would continue to be so. 17In the result, her Honour allowed a discount of 15% for the applicant's past assistance and 10% for the applicant's future assistance. 18Next, her Honour dealt with the question of the applicant's voluntary disclosure of his conduct. Consistent with the authorities, her Honour determined to reduce the sentences that would have otherwise been imposed, without stipulating a defined discount : see R v Borkowski [2009] NSWCCA 102. 19The requirements under s 16A to take into account the deterrent effect of the sentence to be imposed and the need for adequate punishment were noted by the judge. 20Finally, her Honour accepted the submission made by the applicant's counsel that the head sentences for offences of the type committed by the applicant tended to be in the range of 6 to 10 years. The sentence for count one accordingly fell marginally below that range whilst the sentence for count two fell marginally above the lower limit. Grounds 1 and 2 : the Ellis Factor and Contrition. 21In Raad v R [2011] NSWCCA 138 at [20] Adams J said :- It is important, in my respectful opinion, to bear in mind that (what might conveniently be called) an Ellis situation gives rise to two distinct matters that need to be taken into account. First, it informs the assessment of remorse and contrition and reduces, potentially to insignificance, the requirement for personal deterrence. It seems to me it also reduces the materiality of general deterrence, since it would be directed to that miniscule class of individuals minded to commit crimes and then admit to them. At the same time, the notions of retribution and denunciation are undoubtedly still of considerable importance. But they are only a part of the answer to the question; "What does this particular offender deserve?" and are necessarily affected, whether favourably or adversely to the offender, by the whole of the circumstances including - as is typical of the Ellis cases - the marked change in the character and personal attributes of the person being sentenced as distinct from the way that person was when the crime was committed. This is no more than noting the incommensurable character of the factors forming the instinctive synthesis which is ultimately expressed in the sentence. These considerations may be usefully termed the " Ellis personal features". (italics not in original) 22The applicant's counsel places particular emphasis upon the italicised portion of these observations in order to demonstrate that Flannery SC DCJ erred in attributing "chief weight" to general deterrence when sentencing the applicant. It is accepted that her Honour found that the applicant had good prospects of rehabilitation and was not a vehicle for specific deterrence. 23There are three fundamental problems with this submission. 24First, her Honour's reference to that part of the judgment in Wong set out at [12] above does no more than recognise (as her Honour was obliged to do) the High Court's authoritative statements in the area of sentencing for Commonwealth drug offences. It does not support the submission that her Honour placed undue weight on general deterrence. 25Second, Adams J's observations in Raad were not endorsed by McClellan CJ at CL or Buddin J, both of whom differed from Adams J on the appeal. With respect to Adams J, the italicised remarks seem to misapprehend the principle of general deterrence. One of the purposes of punishment is to signal to others who might be disposed to commit offences of a like kind that severe penalties will be imposed : R v Rushby [1977] 1 NSWLR 594 at 598. The role of general deterrence is not confined to those who, like the applicant, commit an offence and then partially disclose their criminality. 26Third, Adams J recognises that the Ellis principle is typically engaged where there has been a "marked change in the character and personal attributes of the person being sentenced as distinct from the way that person was when the crime was committed." The applicant has undergone no such transformation. He told the police he thought he was importing diamonds and he maintained that stance (as he was entitled to do) at trial. He continued to protest his innocence at sentence. This "unusual" feature of the case reinforced the importance of general deterrence in the sentencing exercise, rather than diminished it. 27The applicant's insistence that he was wrongly convicted sits uneasily with the submission that further error is demonstrated by the failure to find contrition, either inherent in the applicant's decision to disclose the importations to the police, or independently of that conduct. The applicant disclosed to police the arrangements to import a substance which the applicant believed to be diamonds. He may have regretted his involvement, given the turn of events, but he never acknowledged responsibility or remorse for his part in importing heroin. Once he was convicted of that offence, there was no scope for a finding of remorse or contrition. 28Both of these grounds fail. Ground 3 : Manifest Excess 29There is no substance to this ground. As the applicant's counsel frankly acknowledged on the hearing of the appeal, the individual sentences are at the very bottom of the range that no doubt includes cases where a discount for assistance has been given, or where an early plea of guilty has attracted a discount of 25%, equal to the discount for assistance applied in the applicant's case. There was no complaint (nor could there be) about the extent of accumulation. 30In my view, leave to appeal should be allowed, but the appeal dismissed. I propose orders accordingly. 31GARLING J : I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2012