By Paul Gregoire and Ugur Nedim
On 28 October 2022, Abbrar Abbas arrived at Sydney Airport, after two days in Fiji. On collecting his baggage and presenting his incoming passenger card to an Australian Border Force officer, the International student was taken to a baggage examination area, and a bottle of yellow liquid was found to be leaking in his bag.
Seventeen bottles of Pure Fiji body oil were located in the 24-year-old Bangladeshi man’s checked-in luggage. And an initial test of the oil revealed it contained methamphetamine. Abbas was then arrested and taken into custody.
The bottles contained 17.293 kilograms of the illicit substance, at a 44.8 percent purity. The pure weight of the drug commonly referred to as ‘ice’ was 7.747 kilograms, while federal law considers a commercial quantity of methamphetamine to be at least 0.75 kilograms.
Text message correspondence was located on the accused’s phone, which involved him in an exchange with a contact known as ‘007MIC’, who appears to refer to the drugs weighing in at “7K”, that he was going to pay Abbas “9K” and that the smuggled substance would be “oil” as “it’s safer”.
Earlier text messages involved 007MIC assuring Abbas that he would be provided “flights and accommodation”, while the international student was found to have messaged another individual stating that it was his “second time”, it was the “big one”, the “last one” and after it, he was “out”.
The subjective case
Abbas pleaded guilty to one count of importing a commercial quantity of a border-controlled drug, contrary to section 307.1 of the Criminal Code Act 1995 (Cth). This Commonwealth offence carries a maximum penalty of life imprisonment and/or a $2.475 million fine.
The applicant didn’t testify at his trial but rather his subjective case was presented by way of documents that included a 12 December 2023 apology letter, a 17 October 2023 report by clinical psychologist Amanda George and a report from Corrective Services NSW.
Born to Bangladeshi parents who reside in Saudi Arabia, Abbas came to Australia to study at the age of 19, and he was financially supported by his parents until 2019. And after arriving in Sydney, he became involved in regular weekend alcohol and drug use.
The psychological report found that Abbas had a tendency to be “impulsive” and “sensation-seeking”, as well as own toward persecutory and delusional thinking. It further opined that his alcohol use was problematic, and that he had suicidal thoughts and anger management issues.
Georges’ assessment further outlined the extent of Abbas’s remorse and the insight he’d developed regarding his offending in custody.
Although NSW District Court Judge Robert Sutherland asserted that Abbas’ acceptance of responsibility had to “be tempered by the reserve which must be entertained in the absence of sworn evidence”.
In terms of rehabilitation, the defence submitted their client was unlikely to reoffend, had good prospects for rehabilitation, and was “a long way down the path towards rehabilitation”, which should lessen the need for “general deterrence” in sentencing.
The Sentencing Assessment Report (SAR) of 8 December 2023 noted that on arrest, Abbas had denied all knowledge of being a drug courier, claimed to have genuinely believe he was a courier of oil, and had not considered the ramifications of importing goods for others.
The judge found Abbas was not aware he was carrying drugs but was reckless to the fact. The offending was assessed to be “towards the lower end of mid-range” objective seriousness.
On 15 December 2023, Judge Sutherland sentenced Abbas to 8 years and 3 months imprisonment, with non-parole set at 4 years and 6 months. The sentence reflected the application of a 25 percent sentencing discount due to the utilitarian value of the early guilty plea.
Appeal made out
Abbas appealed the severity of his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 23 September 2024, putting forth two appeal grounds.
The first was that the sentencing judge made an error in not taking into account or explaining reasons in regard to rehabilitation, and the second involved the judge having failed to correctly distinguish between the objective and subjective value of the early plea of guilt.
Deliberating on whether Judge Sutherland was in error when neglecting to account for or cite consideration of Abbas’ prospects for rehabilitation, reliance was placed on the authority of the 2016 NSWCCA case Lee v R, which found that an absence of a clear finding in regard to a principle or uncertainty around it comprises an error.
A sentencing judge must consider a series of principles when sentencing an offender and reasons should be given as to how each principle affected a sentence.
These sentencing principles include punishment, deterrence, protection of the community, rehabilitation and contrition.
“The Crown conceded that this court could not be satisfied that the sentencing judge considered the applicant’s prospects of rehabilitation as the remarks on sentence do not adequately identify if and how this consideration informed the sentencing exercise,” NSWCCA Justice Natalie Adams set out in her 6 December 2024 final findings.
“Accordingly, the Crown accepted that error was established, and this court was required to resentence,” her Honour continued. “I have considered the Crown’s submissions in support of its concession that this ground should be upheld, and I am satisfied that it was properly made.”
As the first ground was made out, the court did not have to deliberate upon the second ground.
Orders of the day
On resentencing, the NSWCCA found that the objective seriousness of the crime was at the “lower end of mid-range”.
As for rehabilitation, two incidents whilst in prison and that the fact that Abbas had been on a community correction order (CCO) at the time of offending, led to a finding of moderate prospects for rehabilitation.
“I am satisfied that the applicant has expressed remorse. In making this finding, I accept that he did not give sworn evidence and he was unable to express insight to the author of the SAR, but I am satisfied nonetheless that there is sufficient material to make a finding of remorse,” Justice Adams continued.
Her Honour then explained that she had commenced resentencing with a starting point of 10 years, which after the 25 percent discount for an early guilty plea was added, saw Abbas’ new term of imprisonment comprise of 7 years and 6 months gaol time, with non-parole set at 4 years.
And NSWCCA Justices Nicholas Chen and Belinda Rigg agreed with their colleague’s 6 December 2024 decision.