DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v FARIQ ALDAKHIR BIN AQBAL OMAR [2019] VSCA 188

Fariq Aldakhir Bin Aqbal Omar (34), pleaded guilty to one charge of importing a commercial quantity of a border controlled drug. Mr Aqbal Omar, who was a flight attendant for Malaysia Airlines, was paid as a drug courier in order to import heroin, which he initially concealed in packages under his clothing upon arrival at Melbourne Airport. His bags were later searched and revealed packages containing 2.65 kilograms of pure heroin, which is nearly double the commercial quantity threshold for heroin. The maximum penalty for the charge is life imprisonment.

Taking into account Mr Aqbal Omar’s personal circumstances, including that he would be imprisoned away from his family who are overseas, and the fact that his family would experience hardship, the Melbourne County Court sentenced him to five years and six months imprisonment, with a non‑parole period of three years imprisonment.

The Director appealed on the basis of inadequacy of sentence, arguing that sentence did not adequately reflect the nature and circumstances of the offending, or the maximum penalty. The Court of Appeal agreed and noted that the mitigating considerations applicable to the offending are present in most cases involving foreign nationals who act as couriers, and that comparative sentences for other offenders who had committed the same offending showed much longer sentences. The Court increased the original sentence to eight years imprisonment with a non‑parole period of five years imprisonment.

R v KENNEDY [2019] NSWCCA 242

Martin Kennedy (30), pleaded guilty to six offences relating to protected wildlife, including attempt to export regulated native specimens, import and attempt to import regulated live specimens, possess non‑native Convention on International Trade in Endangered Species regulated specimens, and a proceeds of crime offence. The offending involved trading in lizards, turtles, and a variety of other reptiles for financial gain, and searches revealed $43,550 in cash located in Mr Kennedy’s home. The maximum terms of imprisonment ranged between two years imprisonment for the proceeds of crime offence, to a maximum of 10 years imprisonment for the exportation offences.

Taking into consideration Mr Kennedy’s plea of guilty, prospects of rehabilitation, and remorse, the New South Wales District Court sentenced Mr Kennedy to an aggregate term of imprisonment of three years to be served wholly in the community by way of Intensive Correction Order (ICO). No custodial prison sentence was imposed. A condition of the ICO was that Mr Kennedy was to perform 700 hours of community service.

The Director appealed on the grounds that the sentence was manifestly inadequate, including the fact that the sentence did not adequately reflect the principles of general deterrence, specific deterrence, punishment, and denunciation. The Court of Criminal Appeal accepted the Director’s submissions, stating that offending which threatens native species and Australia’s biodiversity warrants stern punishment. Mr Kennedy was re‑sentenced to imprisonment for four years with a non‑parole period of two years and six months, to be served in custody.

R v LELIKAN [2019] NSWCCA 316

Renas Lelikan (40), pleaded guilty to one charge of intentionally being a member of a terrorist organisation. The offending involved Mr Lelikan, who identified with the Kurdish ethnic group, spending time in multiple countries outside Australia including Iraq and Turkey, engaging in activities in support of the Partiya Karkerên Kurdistanê (PKK) (Kurdistan Workers’ Party), a proscribed terrorist organisation under the Criminal Code 2010 (Cth). He travelled in the mountains of Iraq with the military arm of the PKK, wore the relevant military uniform and insignia, carried firearms, ammunition and grenades, and promoted and supported the PKK in his writing. The offending spanned approximately two and half years. He had prior convictions for PPK terrorist offences committed in France. The maximum penalty for the offence was 10 years imprisonment.

The New South Wales Supreme Court found that the objective seriousness of the offence was towards the lowest order of seriousness, and sentenced Mr Lelikan to a Community Correction Order (CCO) for a period of three years, with conditions including undertaking 500 hours of community work.

The Director argued that the sentence was manifestly inadequate and appealed on several grounds, including that the sentencing judge had erred in her assessment of the objective seriousness of the offence as being towards the lowest order of seriousness. The Court of Criminal Appeal found some of the Director’s grounds to be made out, including finding that the sentencing judge erred by taking into account irrelevant matters such as the ‘merits of the terrorist organisation’s political or ideological cause’. However, the Court dismissed the appeal, declining to exercise its residual discretion to interfere with Mr Lelikan’s sentence, and the Court noted that he had complied with the terms of the CCO to date.

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v PAUL SAMUEL CACHIA (Unreported, Victorian County Court, 7 February 2020)

Paul Samuel Cachia (44), pleaded guilty to three offences of obtain a financial advantage by deception, attempting to obtain a financial advantage by deception, and dealing in proceeds of crime. Mr Cachia had committed Medicare fraud by submitting false claims to Medicare between 2017 and 2018, totalling over $30,000 in claims for health services that he did not receive, and he dealt with proceeds of crime by transferring the money he received into various bank accounts. Mr Cachia had relevant prior convictions for dishonesty offences. The maximum penalty for the proceeds of crime charge was one year imprisonment and/or a fine, and for the fraud charges, two years imprisonment and/or a fine.

The offences were indictable offences but were dealt with summarily in the Melbourne Magistrates’ Court. The Court convicted Mr Cachia of only two of the three charges, sentenced him to no penalty for the ‘obtain financial advantage’ charge, and imposed a $100 fine on each of the other two charges.

The Director appealed on the grounds that the sentence was manifestly inadequate (and also noted that the court had erred in imposing no penalty on one of the charges, which is not an available Commonwealth sentence). The County Court of Victoria upheld the appeal, stating that the offending involved high criminality, and re‑sentenced Mr Cachia to convictions on all charges, and a total effective sentence of 13 months imprisonment, with three months to serve before being released on a recognisance to be of good behaviour for 13 months. Reparation was ordered, and Mr Cachia was also ordered to pay $486.59 in costs.

DIRECTOR’S BAIL APPEALS DURING THE COVID-19 PANDEMIC

The 2020 COVID‑19 pandemic has posed new challenges for the Director in responding to bail applications. Consideration by the court of whether to grant bail while a defendant awaits their trial or plea hearing is always a complex task even under ordinary circumstances, and involves factors such as the defendant’s risk of flight, being balanced with the possibility of the defendant spending a long period on remand before their matter finalises. For bail applications made during the pandemic, there will always be a necessary consideration of whether the particular circumstances of the pandemic at the time of the bail hearing support the defendant being granted bail, lean against the grant of bail, or hold no relevance to the bail application.

The Director has successfully appealed against recent decisions by the court to grant bail to a defendant where the court has incorrectly made assumptions regarding the future course of the pandemic, for example, where current conditions in custody are more onerous than usual due to COVID‑19, it must not assume that these onerous conditions will last for the entirety of any period spent on remand. The future course of the pandemic in Australia cannot be predicted by the court, or indeed by any party to the proceedings.

The Director has also successfully appealed where the court has granted bail to defendants on the basis that exceptional circumstances exist to justify the grant of bail due to what the court has termed a future ‘significant delay’ in proceedings due to COVID‑19. The Appeal Courts have agreed with the Director’s submission that delay is one factor of many, and that future delay cannot accurately be predicted during a pandemic where circumstances are ever‑changing.

As recently stated by the Victorian Court of Appeal in bail proceedings: “In these cases, as time progresses, much more will be known about the question of delay, and if circumstances change, as many applications for bail as might be necessary can be made (by the defendant)”. Factors such as delay are relevant, but must always be considered in conjunction with the nature of the offending, particularly where the offending is serious. Each bail application is to be determined on a case by case basis, and the Director continues to monitor COVID‑19 developments across the country.