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Awraham v The Queen (Cth) [2021] NSWCCA 241

The offender was sentenced following pleas of guilty to 1 count of attempting to possess a commercial quantity of border controlled drugs contrary to s 11.1 and 307.5(1) of the Commonwealth Criminal Code. Offence related to 2152.27g of pure cocaine. Original sentence imposed 9 years imprisonment with a 6 year and 6 month non-parole period. Offender sentenced for additional state offences. Offender appealed on the basis that sentence imposed for the Commonwealth offence was manifestly excessive.  

Nature and Circumstances: Offender was closely involved in an attempt to import 2.152kg of pure cocaine. Role was at least that of a courier and above that of a mere recruit. Offender was aware of when and where the consignment would be delivered. Offender did not take the risk of collecting the consignment. Offender knew precisely where the drug should have been located. Removal of inert drug substitute from packaging clearly points to a role above that of a mere recruit.  

Cumulative and Concurrent Sentences: Sentence imposed specifically on Commonwealth offence was 7 years and 6 months imprisonment with a 5 year and 15 day non-parole period. Hamill J held that the sentence was manifestly excessive. Hamill J noted that 18-months accumulation of the sentence for the federal sentence on the state sentences resulted in a total sentence disproportionate to the totality of the criminality and that the adjustment made to individual sentences was mostly lost as a result of the accumulation.  

Antecedents: Wilson J stated that the subjective case was untested and the offender was not prepared to give evidence or be cross-examined on their account. Attendance at drug rehabilitation meetings and with a psychologist were positive but hardly the proof of completed rehabilitation that the offender submitted it was. While Wilson J noted that the evidence tendered on offender’s behalf was untested (psychologist’s report and letter from offender to judge) Hamill J stated that there were other mitigating features and positive aspects of the offender’s case including having a clean record, youth, strong family support and completion of a TAFE course.  

Wilson J (with Davies J agreeing) granted leave to appeal, and dismissed the appeal.  

Hamill J granted leave to appeal, allowed the appeal, quashed the sentence and imposed a sentence of 6 years and 9 months imprisonment with a non-parole period of 4 years and 3 months.
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