District Court New South Wales Medium Neutral Citation: R v El Jamal [2019] NSWDC 153 Hearing dates: 22 November 2018, 23 November 2018,17 April 2019, 18 April 2019 Date of orders: 01 May 2019 Decision date: 01 May 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 14 years. Non parole period of 9 years 8 months. Catchwords: SENTENCING — Attempt to import a commercial quantity of unlawfully imported border controlled drug – 3.7kg pure methylamphetamine – serious matter on schedule – fact finding on sentence – Evidence Act applies – assessing witnesses – expert psychiatric evidence not accepted – offender's evidence not accepted – offender with no credibility – long criminal history – hardship in custody – proportionality with co-offender. CRIMINAL PROCEDURE — Direction that the Evidence Act applies. CRIME — Drug offences — Commonwealth offences — Import border-controlled prohibited plant or drug. Legislation Cited: Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Evidence Act 1995 Cases Cited: Afu v R [2017] NSWCCA 246 Attorney General's Application No. 1 (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 Cartwright v R (1989) 17 NSWLR 243 Dennison v R [2011] NSWCCA 114 Devaney v R [2012] NSWCCA 285 DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1 Fox v Percy (2003) 214 CLR 118 Green v The Queen (2011) 244 CLR 462 Hili v The Queen (2010) 242 CLR 520 Johnson v R [2010] NSWCCA 124 Lamella [2014] NSWCCA 122 MAK v R [2006] NSWCCA 381 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Markarian v The Queen (2005) 228 CLR 357 Nguyen [2010] NSWCCA 238 Olbrich v The Queen (1999) 199 CLR 270 Postiglione v The Queen (1997) 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v Clinch (1994) 72 A Crim R 301 R v Moradian (2011) NSWDC 130 Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704 R v Thomson (2000) 49 NSWLR 383. The Queen v Pham [2015] HCA 39 Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 Xiao v R [2018] NSWCCA 4 Texts Cited: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p497. Category: Sentence Parties: Fadi El Jamal (the offender) Director of Public Prosecutions (Commonwealth) Representation: Counsel: Ms A Moen (for the offender) Mr S Buchen SC (for the Director of Public Prosecutions, Commonwealth) Solicitors: Mr N Moore (for the offender) Mr K Kanagasabapathy (for the Director of Public Prosecutions, Commonwealth) File Number(s): 2016/00098482 Judgment Introduction 1. On 31 March 2016 Fadi El Jamal, ("El Jamal") the offender before the court, was arrested at Sydney International Airport. 2. When he was before the Local Court El Jamal entered a plea of guilty to a charge that he attempted to possess a commercial quantity of the unlawfully imported border controlled drug; methamphetamine, with a pure weight of 3,771.5 grams: s 11.1 & s 307.5(1) Criminal Code Act 1995 (Cth); Maximum penalty - Life imprisonment and/or a fine of $1.35 million. 3. He has asked that, when I sentence him for that commercial importation offence, I take into account a further charge on a schedule pursuant to s 16BA Crimes Act 1914 (Cth), of attempting to possess a marketable quantity of the unlawfully imported border controlled drug, cocaine, with a pure weight of 643 grams: s 11.1 & s 307.6(1) Criminal Code (Cth), Maximum Penalty 25 years imprisonment and/or a fine of $1,050,000. 4. El Jamal's co-accused in this matter are Rhys Doherty, who was also arrested at Sydney International Airport on 31 March 2016, and Nathan Stanmore, who was arrested at the Novotel Hotel, Wollongong on 30 March 2016. Doherty's matter is listed for sentence before me on 14 June 2019. On 3 October 2018 I sentenced Stanmore to 7 ½ years imprisonment with release to parole after 4 ½ years for his role in the commercial importation of methamphetamine, taking into account another serious matter. Stanmore's sentence was reduced to take into account his early guilty plea and cooperation with authorities, including an offer to give evidence against his co-offenders. The starting point for his sentence, those factors aside, was 12 years imprisonment. 5. El Jamal, while accepting his guilt, put in contest some significant aspects of the prosecution case against him. Evidence was called over 4 days to determine those issues. A direction was made that the Evidence Act 1995 applied to that aspect of the proceedings: s 4(2) Evidence Act. 6. For convenience, the attempt to possess offence in March 2016, involving a commercial quantity of methamphetamine is called "LS Technical consignment". The attempt to possess marketable quantity cocaine offence placed on the schedule is referred to as the "Christian Dallas consignment". Matters agreed and in contest 1. On 17 March 2016, Thai authorities intercepted two large boxes which had been consigned to LS Technical Consulting Pty Ltd in Sydney. The consignment contained 3,771.5 grams (pure weight) of the border controlled drug methamphetamine. The drugs were concealed in showerheads. The drugs were removed and the consignment was later forwarded to Australia with substituted contents. Stanmore took possession of the consignment after it arrived in Sydney. He was shadowed by Doherty as he did so. The consignment was taken to El Jamal's home in Calderwood and then to the Novotel Hotel, Wollongong, where Stanmore was arrested. 2. The Prosecution case is that in March 2016 El Jamal was involved in organising and facilitating the importation of the drug. It is alleged that he used Doherty and Stanmore to collect the consignment after it arrived in Sydney. The Christian Dallas consignment 1. In February 2016 Australian Border Force (ABF) intercepted an air cargo consignment of a package from Abu Dhabi. Its contents were described as 'horloge murale'. In it was a clock. In the clock was concealed cocaine: total net weight - 971.4 grams - pure weight of 643 grams. The drugs were substituted. On 18 February 2016, El Jamal using the name "Christian" rang the consignee and requested the consignment be redirected to an address in North Sydney. Australian Federal Police (AFP) telephoned El Jamal at the number he had left with the consignee and told him the consignment had been delivered. On the same day, Stanmore attended the North Sydney office and collected the Christian Dallas consignment. 2. It is alleged that El Jamal was a principal in this importation. And that Stanmore had been given instructions by a person known as "Cosmo" on behalf of El Jamal. Stanmore delivered the consignment to El Jamal. El Jamal opened the package to reveal a clock. He then opened the clock, the clock was empty. 3. El Jamal's case is that he was asked by a "Tony" to make some phone calls for him and in return he would get some drugs at reduced (or no) cost. He was asked by Tony to pretend that he was Christian Dallas. El Jamal said he did make the call but he was in Tony's presence and used a phone that Tony gave him. El Jamal then handed the phone back to Tony and went to Melbourne to watch a fight. He was aware there was a substantial risk that drugs were in the consignment but he did not ask. He had also deposited some money for Tony but he thought that was because Tony did not have ID. Again, this was just a favour for his drug dealer. He said, because he was using a lot of drugs at the time he was not always thinking things through. 4. On his return from Melbourne Tony told him that he needed to meet with him urgently. That evening, 23 February 2016, Tony sent El Jamal a message to meet in Lakemba. El Jamal drove to Lakemba. Stanmore was already present. He had the package with him. Tony blamed El Jamal for the "stuff" in the package going missing. El Jamal, Stanmore and Tony were at Lakemba for about an hour or two. Tony was on the phone arguing with an unknown person or persons in a mixture of English and what El Jamal took to be an African language. 5. El Jamal told me that Tony blamed either him or Stanmore him for the missing drugs and the serious and dangerous consequences that might flow to Tony and his family in Africa. He felt guilty for this. He also said he did not trust Stanmore. The LS Technical Consignment 1. After intercepting the LS Technical consignment on 17 March 2016, Thai authorities tested the substance. It was eventually able to be analysed by forensic chemists in Australia. Testing revealed: 1. the powder contained methamphetamine with an average purity of 77.1%; 2. the calculated total pure weight of the methamphetamine was 3,771.5 grams. 1. After removing the methamphetamine from the consignment Thai authorities handed the contents of the boxes to AFP officers to be forwarded to Australia. It was sent, as originally arranged, to a logistics company - LS Technical Consulting. 2. Between 16 March 2016 and 18 March 2016, El Jamal contacted the logistics company by telephone, using the name "Anthony Harris". He did so to facilitate the delivery of the consignment to an address in Sussex St, Sydney. The telephone number used was the same as that used in the Christian Dallas consignment. 3. El Jamal was told that the LS Technical consignment was being cleared by Customs. 4. El Jamal does not deny making this call but he says he used the phone provided to him by Tony. 5. On 29 March 2016 Stanmore attended a Westpac Bank at about 1.52pm and made a cash deposit for the payment of Customs duties and shipping costs relating to the LS Technical consignment. 6. At about 3.30pm a person using the name Anthony Harris emailed a proof of the payment of Customs duties and shipping costs associated with the LS Technical consignment. The delivery address in Sussex St, Sydney, was confirmed. The contents of the email included the number 0405 396 357. This is the number El Jamal used on 18 February 2016. The prosecution allege the person who sent the email was El Jamal. 7. At about 8.21pm 29 March 2016 Stanmore attended a Bunnings Warehouse and purchased a hand trolley. 30 March 2016 1. AFP subjected the men to surveillance during 30 March 2016. 2. At about 7.30am Stanmore met Doherty at Lugarno shops. Doherty handed Stanmore his Blackberry phone containing the details of where the LS Technical consignment was to be collected, in Sussex Street. Stanmore noticed a text message to Doherty with words to the effect; 'make sure legs has the blue phone on him'. Stanmore said El Jamal and Doherty referred to him as 'legs' as his legs are long. Doherty instructed Stanmore to follow him and to make sure they were parked next to one another. 3. El Jamal told me Tony asked him to meet Stanmore at Lugarno on 30 March 2016 to follow him to the city so he could pick up the package as Tony did not trust Stanmore. El Jamal told me that he was too affected by drugs taken the day before to do this so he arranged for Doherty to do it. He told me Doherty was, a friend, a business man, who was not involved in drugs or the importation but someone he trusted. 4. The LS Technical consignment was delivered to Sussex St, Sydney by AFP officers. 5. At about 8.15am, Stanmore drove to a carpark in Kent Street, Sydney. Doherty followed Stanmore in his blue Toyota Hilux. A few minutes later Stanmore collected the LS Technical consignment from Sussex St and took it back to the carpark. At about 10.45am Stanmore and Doherty left the carpark in their respective vehicles. Stanmore followed the vehicle driven by Doherty. They travelled to the Albion Park Hotel where they met El Jamal, who paid for their lunch. 6. During the journey El Jamal telephoned Stanmore to confirm Stanmore had collected the consignment. The telephone call, which was lawfully intercepted, was as follows: EL JAMAL:Yes, hello? hello? STANMORE:Yeah, how are you goin'? I'm just walkin' to the car. EL JAMAL:Oh okay. Did you get the job interview or? STANMORE: Oh, got it... EL JAMAL:All right. STANMORE:Yeah, I got the job interview, start tomorrow. EL JAMAL:Oh fantastic. All right, bud. See you shortly. STANMORE:All right, bye. 1. El Jamal again telephoned Stanmore to check on his progress and to confirm he was still with Doherty. 2. After lunch El Jamal left the hotel and drove away. Stanmore and Doherty then went to Doherty's car and left, leaving behind Stanmore's car, which contained the LS Technical consignment. 3. At about 8pm, Doherty, now driving a Range Rover, drove Stanmore to his vehicle. Stanmore then drove with the consignment towards El Jamal's home in Calderwood NSW. He made a wrong turn. Doherty then overtook him and he followed Doherty to El Jamal's residence, where he was directed to enter the driveway by El Jamal. Doherty then parked in front of El Jamal's garage. 4. Stanmore then removed the LS Technical consignment from his car and placed it in the garage. Stanmore told me the boxes were opened in the garage and that El Jamal and Doherty put on gloves to do so. 5. Shortly after the boxes were taken to the garage, vehicle lights appeared on Calderwood Road. El Jamal walked outside of the garage and then ran back to the garage waving his arms. Doherty then picked up the LS Technical consignment and ran with it and put it back in Stanmore's car. In security footage from the home gloves are not obvious. 6. El Jamal told Stanmore to drive down the road and park. He was followed closely by El Jamal and Doherty in a Black Porsche Cayenne. 7. Doherty told Stanmore to park the car in the golf course car park and they would pick him up later. A short time later El Jamal and Doherty collected Stanmore and the men drove back to El Jamal's residence. 8. The prosecution say that El Jamal told Stanmore he would pay for a motel room so that Stanmore could open the boxes and take out the drugs. 9. El Jamal told me the boxes were taken to the Novotel so Tony's brother "UK" could collect the drugs from a safe place. 10. About an hour later El Jamal and Doherty drove Stanmore back to the golf course and then he followed them to the carpark of the Novotel Hotel, Wollongong. El Jamal gave Stanmore money to pay for the hotel room. 11. The men drove back to Calderwood where Stanmore was given a hi-vis jacket. Stanmore told me he was also given a red bag containing tools from El Jamal's toolbox so he could extract the drugs from the consignment. El Jamal told me the bag and the tools were not his. 12. At about 11.40pm El Jamal, Doherty, and Stanmore drove to Fairy Meadow, near McDonalds, to purchase cigarettes. 13. At about 11.52pm, Stanmore walked towards his vehicle which was parked in the underground carpark of the Novotel Hotel, Wollongong, he was carrying a red bag. He then retrieved the shower heads from the LS Technical consignment and entered the Hotel. About 12.10am AFP officers entered the Novotel Hotel reception area. 14. About 15 minutes later, Doherty, in the company of El Jamal, using the payphone across the road from McDonald's Figtree telephoned the Novotel Hotel receptionist and asked to be transferred to Stanmore's room. 15. At about 12.35am on 31 March 2016, police entered room 1032 and arrested Stanmore. Among the items seized were: 1. six handheld shower heads from the LS Technical consignment, some of which had the showerhead component and its accessories fully dismantled; 2. one yellow sugar soap bottle; 3. white rags; 4. paper towels, aluminium foil and plastic bags; 5. numerous tools; 6. a red Target bag; 7. one black Samsung mobile telephone bearing IMEI: 353840/05/228918/0; 8. one ticket with mobile telephone number 0406798107; 9. a 'ironrock' XL bright orange Jumper. 1. El Jamal told me that although overseas Tony was directing him what do by phone calls on an encrypted Blackberry mobile phone. The plan changed because UK, who was originally meant to pick up the boxes from the Calderwood golf course, had been delayed. He said Tony kept sending messages. Initially he said take the car with the package to El Jamal's residence and UK would come there to collect it. Later, when El Jamal phoned him to check whether the vehicle lights seen in the driveway belonged to UK's car it was Tony who suggested getting a room at the Novotel Hotel. El Jamal told me that all he and Doherty then did was follow Stanmore to the Hotel. 2. El Jamal told me he was on his way home when he received a message from Tony saying that UK went to the hotel and suspected there were police there. Tony told El Jamal to try and contact Stanmore to warn him. Events of 31 March 2016 1. At about 5.50am AFP conducted a search at El Jamal's residence and observed the following: 1. El Jamal had an extensive high quality surveillance system on the property, which included six hard drives; 2. 16 security cameras were set up around the property including the front gate, garage, driveway and in the corners of the property; 3. the hard drives were all accessed between 1:30am and 3:00am at which time some of the contents were deleted; 4. an encrypted Blackberry; 5. a NSW Police Force Bailee Receipt in the name of Rhys William Doherty born in 1988; 6. Vehicle BSC42C; and 7. one green USB. 1. About 9.05am an AFP member spoke with El Jamal by telephone. El Jamal said he wished to speak to his lawyer. 2. About 10.00am, an AFP member again spoke with El Jamal by telephone, and said, "You will need to attend … AFP Sydney Headquarters as soon as possible and if you do not attend an arrest warrant will be sought." 3. El Jamal had previously booked a business class flight departing Sydney on 10 May 2016, travelling to Beirut, Lebanon via Dubai and returning to Sydney on 26 May 2016. On 31 March 2016, El Jamal amended this itinerary and bought forward his departure from Sydney to 9.45pm on 31 March 2016. At about 2.40pm, El Jamal purchased another ticket for a return flight, departing at 4.35pm on 31 May 2016 from Sydney to Singapore returning on the 14 April 2016. El Jamal's version 1. El Jamal's version of why he became involved and his level of involvement is quite different than that alleged by the prosecution. He told me that he only became involved in the LS Technical consignment to help Tony resolve matters with Tony's dangerous colleagues and prevent harm to Tony's family. His only reward was a promise of discounted drugs, on which he was dependant. He said he only did what he was told. He had never been involved in these or any other importations. He had had no prior dealings with Stanmore. He did not direct him. He had met him before as he was a neighbour of a friend "Cosmo." 2. All he had done was help another friend Tony. He was doing no more than facilitating the delivery. He did not organise Stanmore or direct him. 3. His income he said came from his brother, with whom he was involved in property developments in Lebanon. He also said although he had been in trouble with the law before and he had spent time in gaol, it was his drug use that caused him to lose his moral compass on this occasion. He said his past, including false accusations of murder, years spent on remand and witnessing killings and other trauma had left him with Post Traumatic Stress Disorder (PTSD). He had self-medicated for anxiety and depression with both legal and illicit drugs. He had been the victim of a kidnapping and had real concerns for his safety from a number of people. Fact finding 1. Where a matter put forward in sentencing proceedings is contested I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court also recognised that sometimes a sentencing Court must sentence according to what is known or agreed. The High Court pointed out that a Judge who is not satisfied of some matter urged in a plea on behalf of the offender, does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt: at [24]. Assessing witnesses 1. I am required make an assessment of the two principle witness - Stanmore and El Jamal. I do not base my conclusions solely on how a witness gives evidence. I appreciate that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables. I must take care. The manner in which a witness gives evidence should not be the only, or even the most important, factor in my decision whether to accept them or not. Judges should reach their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118, at [30]-[31]. The course of the hearing 1. In order to facilitate and expedite the hearing the Commonwealth DPP and those acting for El Jamal prepared a document setting out what was agreed in black ink, what was contended for by the prosecution in blue and what was asserted by El Jamal in red: Exhibit A tab 1. A prosecution bundle and other relevant material was tendered, including a CCTV of El Jamal's home at Calderwood and Stanmore's statement of 19 April 2017 (Exhibit F) from which I redacted second hand hearsay. In turn I received a bundle from the Defence, Exhibit 1, and other material, some of which related to s 16A(2)(h) Crimes Act 1914, was sealed. I heard from an AFP officer, Stanmore, El Jamal and his mother Samar El Jamal. The hearing went over 4 days concluding late on 18 April 2019. I reserved my decision until 1 May 2019. 2. The black ink portions of the facts document put primary focus on objective facts. Those objective facts allow for conclusions be drawn from those facts about the level of El Jamal's involvement in both the Christian Dallas and LS Technical consignments. 3. The defence material focussed on establishing El Jamal's role as minimal, done for no real reward and brought about by his vulnerability to making rash decisions because of his serious psychological condition and dependency on drugs taken to self-medicate for that condition. And, in an attempt to rebut suggestions his lifestyle was funded by illicit drug supply activity. 4. However, by putting some of the facts and conclusions drawn from them in contest, El Jamal opened an opportunity for the prosecution to call additional evidence to reinforce their contentions. That evidence came primarily from Stanmore and El Jamal's bank records and other evidence indicating his lifestyle at the time of the offending. In brief summary; Stanmore gave evidence that he had assisted El Jamal in other activity involving the collection of illicit drugs; that numerous cash deposits were made to the bank account, of sums just under $10,000, from accounts across Australia – the bank limit for mandatory reporting, and that El Jamal lived in a new, large, well-appointed home on a large block, with CCTV security and had access to a number of high end cars, none of which were registered in his name. Submissions 1. Ms Moen, Counsel for El Jamal, placed considerable reliance on opinions from two psychiatrists who interviewed El Jamal: Dr Olav Nielssen in July 2016 and Dr Stephen Allnut in August 2018. Both spoke of his anxiety and substance abuse. Dr Allnut, in particular, repeated a history given of consumption of quantities of a number of legal and illicit drugs at the time of offending and a diagnosis of chronic PTSD. Ms Moen noted a statement to Dr Allnut by El Jamal that at the time of the offending "I was a mess (the symptoms described persisted) I was not coping with life." 2. This serious psychological condition, she submitted, did play a causative role in the offending, such as to mitigate sentence, by reducing El Jamal's moral culpability. 3. She said El Jamal's evidence fitted known facts. There was a man who could be Tony. He was the African man who there when the Christian Dallas consignment was picked up and found to be empty. She said there is nothing implausible in El Jamal's account, to the contrary, his helping Tony in the way he suggested "rings true". For example, if El Jamal had been as involved as the prosecution assert, he would not have booked a family holiday at the very time the LS Technical consignment was due to arrive in Australia. She submitted the prosecution case makes just as much sense if El Jamal was acting at a minimal level to help recover the drugs and acting solely under instruction from Tony, than the case the prosecution urged on me. She submitted that I could not be satisfied beyond reasonable doubt of the aggravating features urged on me by the prosecution. 4. She drew my attention to another portion of Dr Allnut's report she said was indicative of shame and remorse, and showed that drugs had "clouded" El Jamal's judgement. And, his evidence where he said he had lost touch with his moral compass. 5. She asked me to reject Stanmore's account as self-serving and designed to obtain the maximum sentence discount. Stanmore's evidence she submitted fell down on important details and could not be accepted. 6. She cautioned against my placing too much weight on El Jamal's lifestyle or income as there were readily available alternative explanations, not the least, money coming from payments due from El Jamal's brother in Lebanon, who was involved in property development. 7. She put stress on the impact of custody on the offender, given his history of trauma, his continuing PTSD and the risks he faced in custody, even while on non-association protection. She pointed to the need for proper weight to be given to the material in the sealed exhibits. 8. Responding, Mr Buchen SC, for the Commonwealth DPP, urged that I reject everything El Jamal had said as unsupported and unsupportable, built, after the fact, around known facts. Nothing in the other evidence he said corroborates El Jamal's account. He submitted that I would find El Jamal had no credibility as he was a man with a record for fraud and dishonesty and drug supply, who was caught fleeing the country and who destroyed evidence, the Blackberry phone he said was used to communicate with Tony, in particular. He succinctly set out 10 factors he said would not just cause me to reject the offender's version of events but which he submitted proved to the necessary standard the prosecution case against El Jamal. Consideration Matters not in serious dispute 1. El Jamal has admitted only the elements of the offence for sentence and the matter on the schedule. It is for the prosecution to establish any aggravating factors beyond reasonable doubt 2. It is not in serious dispute that: 1. El Jamal was involved in both consignments. 2. He had a role in organising the delivery side. 3. So far as the LS Technical consignment he organised others and supervised them. 4. Others could have organised the importation side. 5. The hierarchy of the organisation was not known – there is no organisational chart. 6. El Jamal does suffer PTSD - and has suffered multiple traumas often associated with such a diagnosis. And, that that illness will make gaol more onerous for him than for others without such a condition. 7. He will in all likelihood serve his sentence as he did his last, on strict non-association protection. This will be a harsher and more onerous regime than that faced by prisoners in general discipline. 8. He did enter a guilty plea in the Local Court. 9. A trial would have occupied more court time than these proceedings and occasioned greater cost. 10. There has been some co-operation with the course of justice in the way the tender bundles were prepared. 11. El Jamal has given some past assistance justifying a degree of reduction of sentence for s 16A (2)(h) factors. Fadi El Jamal 1. Fadi El Jamal gave evidence. That evidence was tested. His evidence appeared to have been invented to fit objectively irrefutable facts but it fell down in a number of important respects. It was not supported by other evidence. It did not fit the apparent logic of events. He sought to present himself as a person whose judgment was clouded by his PTSD and subsequent self-medication with a cocktail of licit and illicit drugs. El Jamal does not suggest he was so affected by drugs, that his capacity to form an intention was reduced and or that drug use lessened his moral culpability. He does however rely on his drug use in mitigation of sentence to: 1. Show why he became involved with Tony and how Tony came to exercise influence over him. 2. Put him at a low level in the importation organisation, as a user who was exploited by his dealer and those higher up seeking profit from his addiction. And, 3. To explain that his motivation was a need for drugs he was addicted to not greed. 1. As I discuss below this history of drug use was incredible. It is not supported by his actions on the 30 March 2016 or by any other evidence including goal records from his initial 17 months in custody. I accept El Jamal may have been a drug user and on occasions drank and used illicit drugs to excess, but nothing before me allows me to reach any of the findings urged on me by Ms Moen. 2. It was further submitted that El Jamal was a man whose moral compass had gone temporarily astray. To the contrary, El Jamal had no moral compass. He had no credibility. His account was tailored or built to match known and objective facts. And this occurred after those facts were put before the Local Court. He systematically down played his involvement to an absurd extent. While Tony may or may not have been a total invention, nothing supports a conclusion El Jamal was directed by another in anything he did. Nothing suggests his judgment was clouded, again to the contrary, his actions, particularly those on 30 and 31 May, appeared clear and thought out. He directed others. He removed himself from direct involvement. He instituted measures to avoid detection. When he feared detection he instituted, directed and paid for alternatives. There is no evidence another person, such as Tony or UK was involved. 3. In submission Mr Buchen pointed to a number of examples but one stood out from the start. El Jamal utilised a report from Dr Nielssen when applying for bail. The history given supported a conclusion he had had some drug problems. The history given to Dr Allnut is of much more, and varied, extensive drug use. El Jamal knew this report as being prepared for sentencing proceedings. 4. El Jamal has prior experience of sentencing proceedings. When arrested El Jamal made repeated and persistent requests of Justice Health for assistance with his long standing problems with depression and anxiety. He was understandably concerned that there were delays in getting him appropriate medication for those conditions and a recently diagnosed problem with deep vein thrombosis. His treating doctor, Dr Lewis, provided a report dated 2 May 2016: Exhibit 1 - tab 2. His gaol records mention these concerns and other significant but less serious health problems. 5. Nowhere in the gaol records is there any mention of potential problems with drugs until 13 September 2017 when he presents Dr Herps with a history of using 3 ½ grams of 'ice" every few days before his arrest and a gram of cocaine daily as "self-medication:" Exhibit 1 - tab 6. When he spoke to Dr Allnut in 2018 he said he took ½ gram of cannabis a day, 2 to 3 grams of cocaine a day and ½ to 1 gram of methamphetamine or ice and to drinking 8 to 10 standard drinks three times a week: Exhibit 1- tab 10 page 3. 6. Another example is the red bag found at the Novotel when Stanmore was arrested. On El Jamal's version of events the original plan was for the boxes to be collected, taken to the hotel and picked up there by Tony's brother, UK. He did not know what the contents were and he was not going to take possession of them. He said plans changed only when UK failed to arrive; only then were the drugs taken back to his home. 7. The objective evidence shows the boxes were left in Stanmore's vehicle at the Albion Park Hotel for some time and then taken to El Jamal's home where they were taken from the car: only to be returned soon after when the men were 'spooked' by vehicle lights nearby. The car and boxes were then taken to a nearby golf course, and then on El Jamal's direction to the Novotel Hotel where the car was left in the car park. The men then drove around Wollongong and returned for a brief time to El Jamal's home. A hi-vis jacket was given to Stanmore. If El Jamal was simply waiting for UK to arrive there was no need to take the consignment back to his home. If UK had been delayed there was no need to take the boxes from Stanmore's vehicle and move them to the garage. 8. Stanmore's evidence on the other hand was given without apparent guile and disclosed many matters against interest. It was volunteered immediately on arrest, although greater detail was given in later interviews, and was supported by evidence that only later came to light. 9. Stanmore's version adds the information that El Jamal and Doherty were opening the boxes in the garage and that he was directed to open the boxes at the Novotel. He said that the reason they drove around Wollongong was because they were looking for somewhere to buy tools; but as they couldn't find anywhere open they went back to El Jamal's to get them and a warm jacket for him. I place no reliance on whether or not Stanmore's memory of gloves being worn was or was not accurate. It was an inconsequential detail. 10. At about 11.52pm, Stanmore was observed walking towards his vehicle, which was parked in the underground carpark of the Novotel Hotel, carrying a red bag. The bag was not in the car when it came from Sydney. Stanmore was not initially tasked with opening the boxes. I reject as implausible the assertion he opened the consignment to get drugs for his own use. The tools had to have come from El Jamal or Doherty. And, they had to have been given to Stanmore so that he could, as directed, extract the drugs from where they were secreted in the consignment. 11. There is no evidence there ever was a man called UK. El Jamal's intention all along was to obtain possession of the drugs in the boxes once they had been securely and safely delivered by Stanmore to his home. 12. Rejection of El Jamal's account does not mean every assertion made by the prosecution must be accepted. For example, while there is evidence of considerable sums of apparently unearned income coming into the joint account of El Jamal and his mother it is not beyond the bounds of possibility that it came from sources other than drug trafficking. That said no evidence compels a finding that the money had a legitimate source. It was undeclared and clandestine income. Expert Psychiatric evidence 1. Dr Nielssen carefully concluded his report; "The diagnosis of substance abuse disorder is made on the basis of the history given…" 2. Dr Allnut does not use such qualifying words but bases his diagnosis of "substance abuse disorder in remission" on the likelihood El Jamal did experience PTSD, the history given and a report about a complaint of psychosis that was not tendered to me, and coincidentally, as his criminal antecedents show, was made in June 2012 when El Jamal was before the courts for other drug supply matters. 3. Neither doctor was required for cross-examination. Their principle diagnosis of PTSD is not disputed. The genesis for the condition, or associated anxiety and depression, is El Jamal's accepted long term of involvement in violent criminal activities, sometimes as a victim of violence or as a witness to it and in his spending years in custody on remand. He is, I reiterate, entitled to the full benefit of his acquittal or decision by prosecutors not to proceed with charges. 4. Both Dr Neilssen and Dr Allnut are respected forensic psychiatrists, experts in their field. Care needs to be taken not to lessen the effect of the opinion of a professional psychiatrist tendered without the psychiatrist being required for cross-examination. As Allsop P, noted in Devaney v R [2012] NSWCCA 285, at [88]: "In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. " 1. I would need to have a good reason to reject their opinions. One good reason is that the opinion does not fit with other facts, which I have found proved or is based on matters put in evidence that I have rejected. Before an opinion can be accepted it must be established that the facts on which the opinion is based form a proper foundation for it: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 2. I do not accept the psychiatric opinion about the impact of drug use on El Jamal's mental state because I cannot accept the foundational evidence for those opinions; it is evidence that comes only from the El Jamal and has no other foundation. 3. I do however accept the diagnosis of PTSD as the foundational material for it does not rely solely on the offenders' assertions. Determination - conflict of evidence 1. Reviewing what was said against the objectively established or admitted evidence what I am left with is this. I do not accept the offender's version of events. I can accept Stanmore's evidence but my focus must be on the evidence relating to charges before me for sentence. Other possible crimes and matters relating to the funding of a lavish lifestyle was not led to show other than that this offending was not isolated and to rebut suggestions El Jamal was an innocent dupe of others. 2. It cannot be shown beyond reasonable doubt, nor was it seriously suggested, that El Jamal was responsible for running the entire importation operation. He was involved with others and his exact role in relation to them is unknown. 3. It has been established beyond reasonable doubt that: 1. El Jamal was involved in running the collection phase of a drug importation operation, which included the importation of the L.S Technical consignment. 2. El Jamal was assisted by Stanmore and recruited Doherty in the attempted possession of the L.S Technical consignment. Doherty was tasked with supervising Stanmore in relation to collecting the LS Technical consignment. 3. El Jamal took considered steps to avoid detection. 4. He used others in this endeavour. 5. He was expecting to recover the drugs from the consignment. 6. His motivation was purely financial. 7. If distributed considerable sums would have been generated – over $1,000,000. Other Matters The Schedule Matter 1. While I do not sentence El Jamal for the matter on the schedule, I can and do take it into account as part of my overall synthesis of relevant factors when I sentence for the principal offence: see Markarian v The Queen (2005) 228 CLR 357. I do so to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 (2002) 56 NSWLR 146. Sometimes, as must be the case here, the increase can be substantial: Attorney General's Application No. 1 at para [18] and Nguyen [2010] NSWCCA 238 at [118]. There is no distinction in the application of principle between State offences and Commonwealth: Dennison v R [2011] NSWCCA 114 and Lamella [2014] NSWCCA 122, at [48]. Maximum Penalty 1. The maximum penalty is one guide to the exercise of my discretion. It is one indication of the seriousness with which Parliament on behalf of the community views offences such as this. It is one guide to the exercise of my sentencing discretion, but I do not start at the maximum of life imprisonment and then make proportional deductions from it: Markarian at [31]. 2. When one considers the harm meant to be alleviated by provisions such as 307.5(1) of the Criminal Code, anyone criminally involved to the degree proved here must be subject to a significant and telling penalty, and that penalty must involve imprisonment for some time. Guilty plea 1. Section 16A (2)(g) of the Crimes Act 1914 (Cth) requires a court to take into account the utilitarian value of a guilty plea when considering the fact that a person has pleaded guilty to an offence. It is the fact of the plea that must be taken into account, not the state of mind or motivation of the offender in entering the plea. The guilty plea must be taken into account even in circumstances where there was no evidence of remorse and in the face of a strong prosecution case. It is in the community interest that the utilitarian value of such pleas is rewarded when pleas of guilty avoid long and costly trials. It is desirable that, in the interests of transparency, such discounts be specified: see Xiao v R [2018] NSWCCA 4 at [269]–[278]. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea: R v Thomson (2000) 49 NSWLR 383. 2. Here, the guilty plea came early but sentencing proceedings took about three days longer than would ordinarily have been the case. We could not list a trial at Wollongong District Court as a consequence. The offender gained no advantage from the contest; if he had it would have been unfair to deny him the full utilitarian value of his plea. A long trial was avoided but the principal prosecution witness still had to be called and cross-examined. I will reduce the otherwise appropriate sentence by 20% to recognise the fact of the guilty plea being entered in the Local Court. Assistance 1. A sentence can be reduced to take into account the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences: s16A(2)(h) & s 16AC Crimes Act 1914 (Cth). Sealed Exhibits B, and 11 to 14 contain material relevant to this sentencing factor. I also redacted a portion of the transcript relating to in-camera proceedings. Frankly, I have trouble accepting why any of this material should be sealed as justice must be seen to be openly administered by the courts. However, I defer to Ms Moen's submission that any disclosure may lead to adverse consequences to the offender and his family. 2. Encouragement is given to those who provide assistance whatever the offender's motive may have been in giving it, even simple self-interest. The measure of any assistance is the full and frank co-operation, the willingness with which the disclosure is made and of course the effectiveness of it. As was noted in Cartwright v R (1989) 17 NSWLR 243. "The discount will rarely be substantial unless the offender discloses everything which he knows. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities." 1. Some circumspection is required when discussing this point. There is evidence that the offender is at some risk in custody and that threats have been made to family members. While retribution because of the matters disclosed is in my view unlikely, it cannot be entirely discounted. It is unlikely because nothing disclosed could lead to anyone being held accountable let alone the arrest of any other person. It is unlikely because well before this matter the offender had gained some notoriety in criminal circles. 2. In short Exhibit B shows that because of the offender some dangerous things were able to be seized and this seizure contributed to the protection of the community: A modest reduction in the otherwise appropriate sentence is warranted: R v Moradian (2011) NSWDC 130. The other exhibits reveal nothing that would warrant any reduction in sentence, particularly given my assessment of his credibility or lack of it. Nor am I of the opinion what was said was full or frank. Exhibit 11 relates to material already in the public domain and the subject of evidence given in open court in these proceedings. Exhibits 13 and 14 each has information about the offender's earlier acquittal or earlier involvement in criminal activity. Hardship in custody 1. El Jamal has been in custody since his arrest on 31 March 2016. The sentence must commence on that day. He has spent the whole of his remand on protection – in the most restrictive classification – non- association. In non-association he has limited contact with other prisoners and limited access to work and programmes. He has spent time in Long Bay Hospital. He has had a job as a sweeper for a period. He has witnessed horrible things in prison. 2. El Jamal has spent too long on remand, uncertain as to his fate. That delay was not his fault. It took some time to receive and analyse the drugs originally seized in Thailand. The delay could have had adverse consequences on a man already suffering anxiety and depression. I have often heard and accepted evidence that remand prisoners have less access to work and programmes. However, those benefits are often not available to non-association protection prisoners in any event. 3. El Jamal's evidence is that for extended periods he is kept in his cell 23 hours a day. But there is also material that he was housed in a gaol pod or wing where custody conditions were not particularly onerous, taking into account of course that any custody is onerous. 4. El Jamal was receiving treatment for a mental health condition prior to his offending. He was being medicated for anxiety and depression. Both Dr Allnut and Dr Nielssen had objective information before them that supported a diagnosis of PTSD. The Justice Health records and current medication regime also support that diagnosis. 5. A custodial sentence may weigh more heavily on a person with a mental health condition than the theoretical average prisoner. This is particularly so if factors relating to that condition arose in prison or from exposure to violence and may be exacerbated by lengthy imprisonment and the conditions under which it is served: DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]. It must be recognised that prisons are inherently violent places. 6. It must also be recognised that long sentences can of themselves be particularly onerous. The severity of a sentence is not simply a linear measure. The severity and impact of a sentence on the offender increases at a greater rate than an increase in the term of a sentence: for example; a sentence of two years has greater impact than one, so far as the punitive aspects of a sentence is concerned: R v Clinch (1994) 72 A Crim R 301 at 306; MAK v R [2006] NSWCCA 381. Parity/proportionality – Stanmore 1. El Jamal, Stanmore and Doherty were all participants in the commission of the same crime. Stanmore has already been sentenced. When sentencing El Jamal I must have regard to the circumstances of the co-offenders and their respective degrees of culpability - "like must be compared with like." This principle is known as parity. It is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246. 2. Different personal and criminal histories may justify a real difference in the time each will serve in prison. There can be reasons why one offender is less objectively culpable than others involved: Johnson v R [2010] NSWCCA 124. This case provides an example. Role and position in the hierarchy are often determinative of penalty in importation matters. Proper application of the parity principle does not necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality. In Postiglione v The Queen (1997) 189 CLR 295, Dawson and Gaudron JJ pointed out that disparity is not simply the imposition of different sentences for the same offence but a question of disproportion between them. Criminal Antecedents 1. The offender's criminal history is relevant to determining the proper sentence. It indicates that this offence is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence, here, a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. Other cases 1. The prosecution, in written submission, provided a table of other cases. The consistent application of principle requires careful consideration be given to other decisions of this and appellate courts. The pattern of past sentences for an offence may serve as a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58, at [74]. In The Queen v Pham [2015] HCA 39, Bell and Gaegler JJ said, at [47]; "…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.'' Parole 1. The non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention: Power v The Queen (1974) 131 CLR 623, at 628. The part of the sentence spent on parole must itself bear a proportionate relation to the crime and the other purposes of sentencing: Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704. 2. The results of a comprehensive NSW Bureau of Crime Statistics and Research (BOCSAR) study revealed that offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p497. While I am far from confident El Jamal can adapt to normal community life he should be given the opportunity and monitored and assisted for as long as possible while that attempt is made. It is in the community's interest that he not re-offend again. Purposes of sentencing 1. The sentence must be of a severity appropriate in all the circumstances of the offence and the offender and the other important purposes of punishment set out in s 16A Crimes Act 1914 (C'th), I look to the nature and circumstances of the offence. In doing so I can, and do, take into account the other offence. Some of the matters I am required to consider have already been addressed. So far as other potentially relevant matters are concerned; in summary: 1. No damage resulted from the offence due to the actions of ABF, Thai authorities and AFP. 2. No contrition has been shown for the offence. 3. It is intended that this sentence will have a deterrent on the offender and others who might be minded to offend as he did but I note that proper regard to the guidance offered by the maximum penalty already ensures a deterrent effect and adequate punishment. 4. I am sanguine about the offender's prospects of rehabilitation: Past behaviour is a good indicator of future behaviour. He will however have time to reflect and time on parole to work towards his rehabilitation; 5. I accept that his imprisonment for a long period will impact on his family or dependants. El Jamal will not be not available for them. He cannot be a father to his children. Nor can he provide support to family members in times of tragedy, as occurred recently. Synthesis 1. It bears repeating that the importation of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that illicit drug use causes. 2. I am not here to give this offender or anyone else a lecture about the use of illicit drugs but it must be made perfectly clear that those who involve themselves in any way in the importation into Australia of such drugs for profit will almost inevitably end up in gaol if caught. That is how the courts are directed to deal with the significant social problems caused by illicit drug distribution into our community. It must however be recognised that not every problem can be solved by arresting or gaoling our way to a solution. 3. The seriousness of the particular offence before the Court is reflected in the maximum penalty of life imprisonment. I am required to impose an appropriate and just punishment that in turn requires imprisonment for a significant and telling period. The sentence can be moderated by requiring that a portion of it be served on parole. 4. Had it not been for fact of the offender's guilty plea in the Local Court and the matters set out in exhibit B, a sentence of 18 years imprisonment would have been imposed. The s 16A (2)(h) matter requires a reduction in the sentence of about six months: s 16AC Crimes Act 1914 (C'th). About 30% of the sentence should be spent on parole to allow for supervision, monitoring and assistance in adjusting to normal community life. There will be some rounding of figures. Order 1. For the offence of attempting to possess a commercial quantity of the unlawfully imported border controlled drug – methamphetamine you are convicted. I take into account the offence of attempting to possess a marketable quantity of the unlawfully imported border controlled drug – cocaine. 2. You are sentenced to a term of imprisonment of 14 years. Sentence is to commence on 31 March 2016. 3. I fix a non‑parole period of 9 years 8 months to expire on 30 November 2025, on which date, subject to s 19AL Crimes Act 1914, you are to be released on parole. ********** Note: This extempore judgment has been revised. The location in [74] has been changed from golf course to hotel. 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: 01 May 2019