R v Hermansson[2022] QCA 243

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ AND MULLINS JA:  Each applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine with a serious organised crime circumstance of aggravation pursuant to s 161Q of the Penalties and Sentences Act 1992 (Qld) (the Act).

2. [2]
   Following a contested sentence hearing, on 25 June 2021 Hermansson was ordered to be imprisoned for a period of 10 years with a cumulative seven years’ imprisonment pursuant to s 161R of the Act.  It was declared she had been convicted of a serious violent offence (by operation of s 161A(a) and s 161B of the Act).  A parole eligibility date was fixed at 26 May 2036 (after serving 15 years).  Ali was ordered to be imprisoned for a period of eight years with a cumulative seven years’ imprisonment pursuant to s 161R of the Act.  A parole eligibility date was fixed at 26 May 2031 (after serving 10 years).
3. [3]
   In respect of both Hermansson and Ali, the pre-sentence custody between 26 May 2021 and 24 June 2021 was declared as time served under the sentences.
4. [4]
   Each applicant seeks leave to appeal against their sentence.
5. [5]
   Should leave be granted, Hermansson contends that the base sentence of 10 years’ imprisonment was manifestly excessive in all of the circumstances.
6. [6]
   Should leave be granted, Ali relies on three grounds of appeal.  First, that the learned sentencing judge failed to recognise the mitigating features in the sentence imposed (including her plea, cooperation, youth, lack of relevant criminal history and domestic violence history).  Second, the sentencing judge acted on an incorrect factual basis in imposing the sentence, as a result of making findings adverse to the applicant with respect to the form of domestic violence she was subjected to.  Third, the sentence was manifestly excessive.

Background

7. [7]
   Hermansson was born in New Zealand in 1965.  She was aged 51 to 52 years at the time of the offence and 55 years at sentence.  She had a minor criminal history in Queensland and a minor irrelevant history in New Zealand.  Hermansson was a New Zealand citizen, and therefore at risk of deportation.  There was no submission below to the effect that deportation would amount to a hardship for Hermansson, however that submission is advanced on the application for leave to appeal.
8. [8]
   Ali was born in 1996, in Iraq.  She was brought to Australia in 2006.  She was aged 21 years at the time of the offence and 25 years at sentence.  She had a minor criminal history in Queensland.  She is an Australian citizen.
9. [9]
   Hermansson was married to a man called Sarhan.  They had two children, aged nine and 10 years.  Hermansson and Sarhan had married in accordance with Australian law in 2007.  Sarhan had other “wives” under Muslim law.  One of the more recent wives was AB.
10. [10]
    Ali is the daughter of Sarhan.  Her mother had married Sarhan in Iraq.  Shortly after her birth, Sarhan left the country leaving Ali, her mother and other siblings in Iraq.  Sarhan returned to Iraq in 2006 and then brought Ali, who was then 11 years old, back to Australia with him.  Ali had not seen her biological mother since leaving Iraq.

Procedural history

11. [11]
    On 21 December 2018, an indictment was presented in the Supreme Court of Queensland charging each applicant with the offence to which they pleaded guilty and a further offence, that they had unlawful possession of the dangerous drug methylamphetamine in excess of 200 grams.
12. [12]
    Subsequent to the presentation of the indictment, there were applications heard and determined pursuant to s 590AA of the Criminal Code.  There was also an application for a judge alone trial.
13. [13]
    On 10 May 2021, both applicants entered pleas of guilty to trafficking in a dangerous drug but not guilty to the circumstance of aggravation.  Those pleas were not accepted by the Crown.  A nolle prosequi was entered in respect of the other count on the indictment.
14. [14]
    On the same date, the applicants’ applications for a no jury order were dismissed.
15. [15]
    On 11 May 2021, each applicant was again arraigned in respect of the count of trafficking in a dangerous drug with the circumstance of aggravation.  Each applicant entered a plea of guilty to that count.

Sentence hearing

16. [16]
    The sentence hearing was conducted on the basis of a statement of facts.  Much of that statement was not in contest.  What was in contest was the nature and circumstances of each applicant’s involvement in the trafficking business.
17. [17]
    According to the statement of facts, Hermansson, Ali, Sarhan and AB were each members of a criminal organisation, carrying on the business of buying and selling methylamphetamine for profit.  They are, as described above, members of a family who all lived in the same house in Sunnybank Hills. The period in which Hermansson and Ali were trafficking was about six and a half months, from May 2017 to November 2017.
18. [18]
    The methylamphetamine sold by the business was purchased predominantly from one supplier in Sydney.
19. [19]
    Sarhan and AB had travelled to Sydney by car on at least 12 occasions, eight of which involved the use of a vehicle registered in the name of Hermansson.  Hermansson travelled with them on at least five occasions.  Ali accompanied them on three occasions.  They travelled to Sydney as often as up to three times per week.  On each trip, the quantity of methylamphetamine obtained was either one or two kilograms.  A kilogram cost about $125,000.  The drugs were paid for in cash.
20. [20]
    The final trip took place in late November 2017.  Sarhan, AB and Ali travelled to Sydney.  The transaction took place in their motel room.  AB and Ali counted the money and Ali placed the methylamphetamine in Sarhan’s bag.  Whilst returning to Brisbane, they were stopped by police, who had been surveilling them.  When the police removed Sarhan, who was the driver, from the car, a white iPhone was observed in the driver’s footwell; but could not be located later.  Sarhan had told AB and Ali, in Arabic, to cover his phone.  AB placed it in her pocket.  Later, when AB and Ali were seated beside the road, Ali removed the telephone from AB’s pocket and buried it.  In the car police located methylamphetamine, weighing 993.3 grams, with a purity of 80 per cent.
21. [21]
    The methylamphetamine obtained from Sydney was sold in Brisbane.  It was stored in the oven of the family home or in Hermansson’s or Ali’s bedroom.  Sixteen persons were recorded as contacting Sarhan’s mobile number to purchase methylamphetamine.  Hermansson was involved in setting sales prices in consultation with Sarhan.
22. [22]
    Four people were regular customers.  Two of those regulars purchased varying amounts on 16 occasions between June and August 2017, totalling between 4.2 to 5.3 kilograms.  Hermansson, AB and Ali (not always present at the same time) would count the money and retrieve the methylamphetamine.
23. [23]
    Another regular customer purchased methylamphetamine on at least 23 occasions, in quantities of one or two ounces on each occasion, communicating with Sarhan, Hermansson and Ali in relation to the purchase.  Hermansson and Ali would supply that customer with the drugs.  They also both spoke to that customer about money owed to them.
24. [24]
    On 6 August 2017, that customer was intercepted after being supplied methylamphetamine by Ali.  The customer was found in possession of two bags containing a total of just over 41 grams pure methylamphetamine.  Ali’s fingerprints were found on one of those bags.
25. [25]
    Another regular customer purchased methylamphetamine on at least 14 occasions, in quantities of three ounces per transaction.  Whilst that customer mostly communicated with Sarhan, on at least three occasions, he was directed to collect the drugs from Ali.  An intercepted telecommunication captured Hermansson speaking to that customer.  Other communications suggested there were other times where Hermansson spoke to that customer.
26. [26]
    Another regular customer purchased methylamphetamine on at least 17 occasions, in quantities of one or two ounces each time.  Hermansson was involved in conducting a drug transaction with that customer.
27. [27]
    In terms of the remaining customers, although the intercepted communications mostly established contact between those customers and Sarhan to place orders, the communications also showed Hermansson and Ali taking orders from customers; Sarhan instructing Hermansson and Ali to prepare drugs for customers; and Ali communicating with Hermansson to instruct her on how to use scales to weigh drugs.
28. [28]
    Intercepted communications also recorded discussions between Sarhan and Hermansson and Ali regarding other business matters such as pending sales, payments received and debts.  There were also conversations recorded between Sarhan and Hermansson regarding the money earned by the business and the expansion of the business.  On occasions, there were communications between Sarhan, Hermansson and Ali alerting each other to the presence of police on roads, cautioning to take care and hide incriminating items.
29. [29]
    One customer of the business was also an employee.  There were 18 occasions when she supplied customers.  She would meet with Ali and AB to obtain the drugs.  She would give Ali, AB or Sarhan the money from the sale of the drugs.  Intercepted communications confirmed her dealings with Sarhan, Hermansson and Ali.  That employee saw Hermansson counting the proceeds from the sale of methylamphetamine and maintaining the accounts in a black book.  She saw Hermansson and AB counting the money in company with Sarhan at various times.  She said that Hermansson was also responsible for chasing debts from customers in consultation with Sarhan.  After being intercepted by police, after the final trip to Sydney, Ali admitted to that employee that she had hidden Sarhan’s telephone from the police.
30. [30]
    On the day the police operation was closed, police executed a search warrant at the Sunnybank Hills property.  A vehicle registered to Hermansson was parked in the driveway.  Police seized various drug paraphernalia and financial documents.  Two clip seal bags retrieved from the oven of that property were found to contain just over 204 grams pure methylamphetamine.
31. [31]
    An analysis of the financial documents revealed that the trafficking business was profitable.  Sarhan was profiting about $15,000 per kilogram bought and sold whole.  If Sarhan sold in ounce amounts, he was profiting to the extent of $43,000 per kilogram.  The cash received from the trafficking business was pooled and counted and checked regularly by the women.
32. [32]
    Hermansson was primarily responsible for custody of that money, although Ali would, on occasions, take custody of it.  The cash financed the purchase of methylamphetamine.  Hermansson, Ali and AB had responsibility to count out the money required for each purchase.  At the time the police operation was closed, there was estimated to be some $355,000 cash, not including the money taken to Sydney to purchase the last instalment of methylamphetamine ($125,000).
33. [33]
    The cash was never recovered by police.  Hermansson was alleged to have taken it with her on the day the police closed the operation, having been alerted to the police attendance at the property.  Hermansson later arranged to bury the money.  Police only located about $13,450 in cash in Ali’s drawer.  Police also never recovered the books of account.
34. [34]
    A forensic accountant engaged to conduct a financial investigation found many instances where finances were mixed across all individuals and common addresses.  The total unsourced income for all individuals was $574,948.05.  That did not include the cash not recovered by police.  It was estimated Hermansson had a total of $311,749.30 unsourced income with Ali having $67,390 unsourced income.
35. [35]
    The financial investigation also uncovered that there were a number of real properties held in the names of Sarhan, AB and Hermansson or in a trust the director of which was Sarhan with beneficiaries including his children.  The unsourced income was used to pay the mortgages of two of those properties.
36. [36]
    Documentation also revealed that Sarhan had signed a contract to purchase a Lamborghini for $485,000.  Payments totalling $470,000 were received for its purchase, including cash payments.  Payments were made from accounts in Ali’s name.  Hermansson also made payments for the vehicle.  In October 2017, Sarhan cancelled the order and was refunded, after a cancellation fee, the sum of $440,000.
37. [37]
    Intercepted communications also captured Hermansson seeking to further investments through the purchase and development of other properties.  Sarhan, Hermansson, Ali and AB had not lodged a tax return in either of the financial years covering the trafficking period and had reported receiving Centrelink benefits no greater than $22,000 each.
38. [38]
    The statement of facts concluded with the statement that Hermansson and Ali were to be sentenced as principal offenders.  Hermansson was said to be responsible primarily for the finances, including setting the prices in consultation with Sarhan, handling the money and doing the accounting.  Ali was said to be responsible primarily for preparing and distributing the methylamphetamine.

Contested facts

39. [39]
    In respect of Hermansson, the prosecution did not accept as true the following matters which were relied upon by Hermansson, by way of submissions and the report of a psychologist tendered at the sentence: that Hermansson acted entirely at the direction of her husband, Sarhan, and did not exert any influence over the management and direction of the trafficking business; Hermansson’s place within the family unit; that Hermansson decided to commit the offence because she felt she had no choice due to domestic violence; and the number of occasions that Hermansson travelled to Sydney to obtain drugs.^[1]
40. [40]
    In respect of Ali, the prosecution did not accept as true the following matters relied upon by Ali, by way of submissions, the report of a psychologist tendered at the hearing and evidence given by Ali at the sentence hearing:  that Ali was not involved in any debt recovery; that Ali did not benefit financially from her involvement; that Ali dealt with one particular customer (B) only on occasion; that Ali decided to commit the offence because she felt she had no choice due to domestic violence; and that Ali protested the offending and her involvement over the period of the trafficking.^[2]

Findings on the contested facts

41. [41]
    The evidence at the sentence hearing included evidence from AB and Ali, and transcripts of the intercepted telephone calls.  Hermansson did not give evidence; but appropriately no adverse inference was drawn against her because of that.  Also in evidence were two reports from a psychologist, in relation to each of Hermansson and Ali, which, as the learned sentencing judge observed, were primarily records of what each had reported to the psychologist.
42. [42]
    In relation to the first disputed issue concerning Hermansson, AB gave evidence that Hermansson was the “planner”, that she took decisions after reaching agreement with Sarhan and that decisions about matters concerning the business were made by both of them.^[3]  She said the trafficking business was Sarhan and Hermansson’s business.^[4]  She also said that Hermansson was dealing with many customers coming to the house, that she was responsible for the financial issues, and that she gave instructions to Sarhan about when to put the price up and to put the price down.^[5]
43. [43]
    Although there were said to be some difficulties due her evidence being given through an interpreter, the sentencing judge accepted that the evidence of AB given at the hearing was generally truthful and accurately reflected the true position with respect to the relationship between Sarhan and Hermansson, noting that it was confirmed in a number of respects by the telephone intercepts.
44. [44]
    The sentencing judge referred to a number of the intercepted calls, before  saying:

“In other recorded conversations, Hermansson is heard making arrangements about the ‘paperwork’, how debts should be dealt with, how money should be carried, and how much money was needed for the purposes of a drug purchase. These conversations were had with Sarhan and in none of them is there anything inconsistent with the conclusion that they were operating together and that Hermansson was engaged in the ‘bookkeeping’ aspect as well as conferring with Sarhan about the particular actions which needed to be taken to fulfil transactions. There is nothing to suggest that anything that she was doing was the result of pressure, either physical or financial, by Sarhan. Rather, they were consistent with conversations between two people working together for the same end.”^[6]

45. [45]
    As to the second issue, Hermansson’s place in the family unit, the sentencing judge found, again accepting the evidence of AB, that she had a position superior to that of the other wives in the family unit.^[7]
46. [46]
    As to the third issue, the contention that Hermansson only committed the offence because she felt she had no choice due to domestic violence, that arose from statements recorded by the psychologist as having been made to her by Hermansson.  AB gave evidence of Sarhan’s physical and psychological abuse of her.  AB said there were only two occasions when she saw Sarhan “slap” Hermansson.  It was not aggressive like he dealt with AB and another of his wives (HS).  Of the two slaps, AB said on one occasion Sarhan slapped Hermansson when they returned to the car from a doctor’s surgery.  Hermansson had said something disrespectful in front of the doctor.  On another occasion, Hermansson did not want to take the children on a trip.  Sarhan slapped her.^[8]  AB’s evidence otherwise was that Hermansson was the preferred wife, that Sarhan “trust[ed] her blindly”, including in relation to money, and that Sarhan and Hermansson were the ones who were controlling in the house.^[9]
47. [47]
    In relation to this issue, the sentencing judge said:

“I am not satisfied that the evidence of the statements made to [the psychologist] is sufficient to make a finding that Hermansson felt that she had no choice but to commit the offence. AB’s evidence was not challenged with respect to the extent of Hermansson’s involvement in the business. The transcript of the telephone intercepts is, as I have already observed, consistent with a person who is conducting herself in an unconstrained or unforced way.”^[10]

48. [48]
    In relation to the question of the number of trips to Sydney, whilst it was submitted Hermansson travelled to Sydney on only five occasions, the sentencing judge found the evidence supported a finding that she went on at least five trips.^[11]
49. [49]
    Turning then to the disputed issues concerning Ali.  The sentencing judge found that Ali was involved in debt recovery, as one of the intercepted calls evidenced that.^[12]  As to whether Ali benefited financially from her involvement, the learned sentencing judge found that she did, but to a limited extent.  His Honour said:

“The evidence concerning unsourced income was based upon an analysis of bank accounts, credit cards and the like. I accept that the regime within the family meant that Sarhan controlled all the money and distributed it as he saw fit and as was necessary to members of the family. That money included profits from the trafficking business and welfare payments made to members of the family. Although Ali had credit cards in her name, they were effectively under Sarhan’s control. But that does not mean that Ali received nothing from the trafficking business.

Although she might have wished for more, Ali was provided with housing, and all the ordinary requisites of life by Sarhan. There is no evidence to suggest that she was able to accumulate any wealth or that she possessed any great assets as a result of the trafficking business.”^[13]

50. [50]
    The third issue, regarding Ali’s dealing with one of the customers, B, only “on occasion”, appears to have been a matter of semantics.  In her own evidence, Ali accepted that B purchased drugs from her, that this occurred several times, and that she did take money from B.^[14]  As the sentencing judge said, “[w]hether this amounts to dealing ‘on occasion’ is unnecessary to resolve as the relevant point is that Ali did deal with [B] as part of the trafficking business”.^[15]
51. [51]
    In relation to the question whether Ali decided to commit the offence because she felt she had no choice due to domestic violence, the sentencing judge recorded that the case for Ali was that Sarhan inflicted mental and emotional hardship rather than physical violence.  In her evidence-in-chief, Ali said there were “several times” when Sarhan, her father, had hit her, although said “my dad doesn’t hit me a lot, because I do what I’m told”.  When asked to provide examples, she described two or three occasions when he had slapped her, when she did not do as he said, or did something he was not happy about, none of which were associated with the trafficking.^[16]
52. [52]
    The sentencing judge referred to Ali’s evidence about her involvement with the provision of drugs to customers, in which she said she was told by Sarhan to do it – and said “I had to … I had to do what I had been told by my dad”, “[b]ecause I know if I said no, it wouldn’t go down very well with my dad”, “he can get angry with me”.  When asked to give an example of that, she described an occasion when a customer came around and she said she did not want to do it, and “my dad was really angry, and just with his body language, I can see that he’s just getting frustrated.  So I just – just said ‘okay’… [b]ecause I didn’t want it to escalate”.  When asked what her dad getting frustrated meant to her, she said “he will hit”.^[17]
53. [53]
    The sentencing judge referred to that evidence, and also to Ali’s other evidence (about the occasions on which Sarhan had actually slapped her, which were not associated with the drug business at all), and said:

“… when she was asked about whether he had ever hit her, the incidents that she related did not concern the provision of drugs or anything related to the trafficking business. Her evidence does not support a finding that it was physical violence which caused her to feel that she had ‘no choice’ but to commit the offence.”^[18]

54. [54]
    As to the last issue, the sentencing judge accepted that Ali did make some form of protest but found that she was easily fobbed off and continued to engage herself in the trafficking business.^[19]
55. [55]
    Otherwise, the sentencing judge accepted that the following matters informed the exercise of the sentencing discretion:

“(a) The maximum penalty for the offence of trafficking is 25 years imprisonment.

2. (b)
    The serious organised crime circumstance of aggravation applies and carries a mandatory sentence of seven years to be served cumulatively upon the base component and wholly within corrective services facility.

3. (c)
    The drug involved was a schedule 1 drug, namely, methylamphetamine or ice which is a particularly insidious drug responsible for causing widespread destruction to those that consume it and the broader community.

4. (d)
    The business was well structured and sophisticated involving four close working members of a criminal organisation each with individual roles but who nonetheless were prepared to step outside those roles when required to assist the business.

5. (e)
    The business was managed predominantly by Sarhan. Hermansson also had an influence on the direction and management of the business. Ali did not provide input into the management or direction of the business.

6. (f)
    The business had a reliable source of methylamphetamine, which it drew upon regularly and more than 12 times to source at least 12 kilograms of high purity methylamphetamine. Those estimates are conservatively set, and it is likely that true figures are greater.

7. (g)
    All the methylamphetamine purchased was distributed and it was a substantial quantity over the six-and-a-half-month period of the trafficking. Four of the regular 16 known customers of the business alone purchased a total of between 6.5 to 8.7 kilograms of the drug. The customers all purchased in wholesale amounts in quantities varying from one ounce to one kilogram per transaction.

8. (h)
    The business had established retail practices with regular customers and was well established by 10 May 2017 when the offence commenced.

9. (i)
    The business was highly profitable. The unsourced income and cash suggest a profit of about a million dollars. The income allowed the offenders to live very comfortably, to pay for real estate, to purchase luxury items and ponder future investment, well outside the grasp of people who otherwise claim their only source of income to be Centrelink benefits.

10. (j)
     The defendants were not drug users and motivated entirely by commercial gain.

11. (k)
     The defendants have minor and irrelevant criminal histories.

12. (l)
     Ali is a young person.

13. (m)
     The pleas of guilty were entered at a late stage of the proceedings.”^[20]

56. [56]
    As to paragraph (b) above, it is important to keep in mind that s 161R(2)(a) of the Act expressly requires that the base component of the sentence (that is, the sentence of imprisonment for the offence, imposed under law, separate from the additional mandatory penalty) must be imposed “without regard to” the mandatory penalty that is required to be imposed – here, seven years, to be served cumulatively upon the base sentence, and served wholly in a corrective services facility.  That is, where a person is to be sentenced for an offence committed with a serious organised crime circumstance of aggravation, the sentencing court cannot ameliorate the sentence to be imposed for the offence (here, trafficking) because the offender faces the additional mandatory penalty for the circumstance of aggravation.

The application for leave to appeal

Hermansson’s submissions

57. [57]
    Hermansson submits that a sentence of 10 years’ imprisonment, as the base component, was manifestly excessive given the nature of her offending and the fact that she was the victim of domestic violence perpetrated by the main offender, Sarhan.  In this regard, Hermansson does not challenge any of the factual findings made by the sentencing judge on the contested issues, including as to whether she had no choice because of the domestic violence.  However, she submits that her moral culpability was reduced due to the environment of domestic violence in which the offending occurred.  She submits the base sentence ought to have been between eight to nine years’ imprisonment.

Ali’s submissions

58. [58]
    Ali submits that the base sentence imposed on her failed to appropriately recognise her youth, lack of relevant criminal history and domestic violence history, together with the cooperation evidenced by her plea and other factors.  Ali also submits that relevant factors which set her apart from other youthful offenders included her sheltered life since coming to Australia at the age of 11, and the fact that she was part of a domineering and controlled family with restrictions on her access to finances and educational or social activities.
59. [59]
    Further, Ali submits that her sentence proceeded on an incorrect factual basis.  As noted above, the sentencing judge found that Ali did not commit the offence because she felt she had “no choice” due to physical violence conflicted by Sarhan.  However, Ali submits domestic and family violence need not be physical and limiting the finding to physical violence was erroneous.  Ali had given evidence as to cultural issues, threats, financial control, isolation and educational limits.  Ali had also given evidence that the occasions of physical violence were limited because she did as she was told by Sarhan.  Ali submits the sentencing judge erred in not having regard to the nature of domestic violence being non-physical, coercive and manipulative in the context of specific evidence by Ali that she could not culturally go against her father or her family and that she did not have financial resources independent of Sarhan.
60. [60]
    Ali submitted a proper sentence in accordance with sentencing principles would have been around six years’ imprisonment, and that special leniency should have been afforded at the bottom of the sentence because of the relevant mitigating features.

Respondent’s submissions

61. [61]
    The respondent submits that neither base sentence was manifestly excessive.
62. [62]
    The respondent submits that a consideration of each applicant’s involvement in what was a substantial, sophisticated, well-established and continuing trafficking business supported a conclusion that the base sentence imposed on each applicant was neither unreasonable nor plainly unjust and there was no misapplication of principle in respect of the imposition of either applicant’s base sentence.
63. [63]
    The respondent further submits, in respect of Ali, that the sentencing judge’s findings in relation to the circumstances of Ali’s involvement in the trafficking business were reasonably open on the evidence and the base sentence imposed properly reflected the mitigating factors in Ali’s favour.  Whilst Ali was a young person without any relevant criminal history who had entered a plea of guilty, albeit late, nothing in her personal circumstances warranted a further reduction in the base sentence.  That sentence properly reflected the mitigating factors in her favour.

Discussion

Hermansson

64. [64]
    Hermansson was an active participant in a sophisticated, high turnover trafficking operation.  The trafficking business was substantial, sourcing and distributing at least 12 kilograms of methylamphetamine from interstate.  The drugs were sold in wholesale amounts over a six month period.
65. [65]
    Hermansson was intricately involved in all facets of that trafficking operation, including being a decision-maker.  Hermansson’s involvement included being primarily responsible for finances, liaising with customers, travelling to Sydney to obtain the drugs, storing the proceeds from the sale of the drugs, ultimately concealing parts of those proceeds from police and alerting other members of the family to the presence of the police in order to avoid detection.
66. [66]
    Importantly, Hermansson was not a drug user.  The motivation for the participants in the criminal organisation, including Hermansson, was commercial gain.  The trafficking operation itself had an intensity.  The magnitude of its profit was evidenced by over $500,000 in unsourced income, a little over $300,000 of which was allocated to Hermansson.
67. [67]
    Hermansson was properly to be sentenced on the basis that she was an influencer on the direction and management of the business.  Such an active participant in a trafficking operation of this magnitude, absent cooperation and other mitigating factors, would attract a sentence of imprisonment significantly in excess of 10 years.
68. [68]
    That conclusion is supported by a consideration of comparable yardsticks.^[21]  In fact, the magnitude of the trafficking in this case is considerably greater than in some of those cases in which 10 years’ imprisonment was imposed.^[22]
69. [69]
    In relation to the contention that Hermansson was the victim of domestic violence perpetrated by Sahran, such that her moral culpability for the offending was reduced, the evidence did not support such a finding.  It may be fair to say that the domestic arrangements between the various members of the “family” were unusual and somewhat dysfunctional.  The evidence before the sentencing judge included the observation by AB that Sahran had “slapped” Hermansson on two occasions.  But otherwise, their relationship was described as being on an equal footing; a matter the sentencing judge found confirmed having regard to the intercepted telephone calls between Hermansson and Sahran, which his Honour found “were consistent with conversations between two people working together for the same end”.  The statements recorded by the psychologist, as having been conveyed to her by Hermansson, were not consistent with the facts as they were found by the sentencing judge, on the basis both of AB’s evidence and the telephone intercepts.  In light of the findings made by the learned sentencing judge, which are not challenged on this application, we are not persuaded that Hermansson’s moral culpability could reasonably be said to be reduced due to domestic violence.
70. [70]
    The circumstances of Hermansson’s relationship with Sarhan, on the factual findings found by the sentencing judge, did not support a conclusion that Hermansson’s criminality was to be reduced to a base sentence below 10 years’ imprisonment.
71. [71]
    Hermansson’s cooperation, including her plea of guilty, and her personal circumstances, were reflected in the reduction of the head sentence to 10 years’ imprisonment, consistent with comparable authorities.
72. [72]
    However, whilst no submission as to hardship as a result of deportation was advanced to the sentencing judge, it was advanced on the application for leave to appeal, without objection by the respondent.  Hermansson faced lengthy separation from her children aged 9 and 10 at the time of sentence, including as a result of the prospect of likely deportation following her release from custody.  This was a factor not taken into account at first instance.  A further relevant factor, in our view, is one of proportionality of the sentence as between Hermansson and Ali, which needs to be reviewed in light of the conclusion we have reached in relation to Ali’s sentence.  Taking these additional considerations into account, we are persuaded the base sentence imposed on Hermansson was manifestly excessive, in the sense of being unjust.  We would resentence Hermansson to nine and a half years’ imprisonment, which enlivens the discretion to fix a parole eligibility date at an earlier stage.  Having afforded Hermansson every possible leniency for the mitigating factors mentioned, in arriving at that sentence, there would be no justification for any more.  Consequently, we would fix the parole eligibility date, absent the effect of s 161R of the Act, at the point at which she had served five years of that sentence.

Ali

73. [73]
    Whilst the finding as to physical violence was consistent with the evidence, Ali’s contentions as to her reasons for engaging in the offending were much broader than physical violence.  Those contentions were that as a consequence of her cultural obligations and the financial controls and previous threats of Sarhan, she complied with his wishes by doing as instructed by Sarhan.  As Ali said in her evidence “if I was to say no to my dad, I know I’ll be hit.  No wasn’t an option for me”.^[23]  Such behaviour is properly to be characterised as domestic violence.^[24]
74. [74]
    There was evidence supportive of Sarhan having engaged in that behaviour towards Ali.  Further, Ali’s responses were properly to be viewed in the context of a young woman who had been brought to Australia from Iraq at the age of 11, leaving her isolated from her biological mother.
75. [75]
    In those circumstances, in our respectful view it was erroneous for the sentencing judge to limit the circumstances of Ali’s involvement in the offence to findings as to physical violence.  That error infected the sentencing process such that it is necessary to re-exercise the sentencing discretion in respect of Ali.
76. [76]
    This conclusion renders it unnecessary to consider the remaining ground, namely, that the base sentence was manifestly excessive.
77. [77]
    In re-exercising the sentencing discretion, it is relevant to have regard to Ali’s actual involvement in the trafficking operation.  That involvement was far from minimal.  Ali, regularly, engaged in the supply of drugs as part of the drug trafficking operation.  She also received payment in exchange for those drugs.  Ali benefited financially from that involvement, to the extent that the proceeds were used to fund the expenses of the household of which she was a member.
78. [78]
    Ali’s involvement in the drug trafficking operation was not brief.  It extended over a period of six months.  Ali was also involved in secreting Sarhan’s telephone at the time of interception by police.
79. [79]
    A consideration of Ali’s involvement supports a conclusion that she was an active participant in an extensive drug trafficking operation conducted by her father and others in her household.  Whilst her involvement was not as a decision-maker, those circumstances warrant the imposition of a substantial period of imprisonment.
80. [80]
    Ali’s mitigating features are, however, substantial.  She was youthful at the time of the offence, being aged 21 years.  She lived in a household which, due to cultural beliefs and practices, rendered her subject to significant limitations as to education and financial freedom.  Those limitations are properly to be viewed in the circumstances that Ali was brought to Australia by Sarhan at the age of 11, leaving her without the support of her biological mother or other siblings who remained in Iraq.
81. [81]
    Those personal mitigating factors, when considered in the context of Ali’s plea of guilty and cooperation with the administration of justice, support a conclusion that Ali’s offending warranted a base sentence in the order of six to eight years’ imprisonment.  Her relative youthfulness, lack of relevant criminal history and personal circumstances support the imposition of a sentence at the lower end.
82. [82]
    We would order that Ali be sentenced to a base sentence of six years’ imprisonment.  We would fix a parole eligibility date, absent the effects of s 161R of the Act, after she served 18 months of that base sentence.

Orders

83. [83]
    In CA No 176 of 2021 (Hermansson):

    1. (a)
       leave to appeal be granted;
    2. (b)
       the appeal against the base sentence of 10 years be allowed;
    3. (c)
       the base sentence be set aside;
    4. (d)
       the appellant be imprisoned for a period of nine and a half years for the base sentence;
    5. (e)
       the mandatory sentence of a cumulative seven years’ imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992 which must be served wholly in a Corrective Services facility be confirmed;
    6. (f)
       the appellant be eligible for parole at 26 May 2033;
    7. (g)
       it is declared that 555 days spent in pre-sentence custody between 26 May 2021 and 1 December 2022 is taken to be imprisonment already served under the sentence.
84. [84]
    In CA No 179 of 2021 (Ali):

    1. (a)
       leave to appeal be granted;
    2. (b)
       the appeal against the base sentence of eight years’ imprisonment be allowed;
    3. (c)
       the base sentence be set aside;
    4. (d)
       the appellant be imprisoned for a period of six years for the base sentence;
    5. (e)
       the mandatory sentence of a cumulative seven years’ imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992 which must be served wholly in a Corrective Services facility be confirmed;
    6. (f)
       the appellant be eligible for parole at 26 November 2029;
    7. (g)
       it is declared that 555 days spent in pre-sentence custody between 26 May 2021 and 1 December 2022 is taken to be imprisonment already served under the sentence.

85. [85]
    BODDICE J:  The comprehensive summary and analysis of the factual circumstances of each applicant’s offending and of the sentencing Judges’ remarks, set out in the joint judgment of the Chief Justice and Mullins JA, which I gratefully adopt, allows me to state briefly my reasons for dismissing Hermansson’s application for leave to appeal against sentence and for allowing Ali’s application for leave to appeal against sentence.

Hermansson

86. [86]
    Hermansson was not a mere participant in the sophisticated wholesale trafficking of methylamphetamine.  She was an active participant in the direction and management of that trafficking business.  She did so in circumstances where she was not a drug user and her involvement was purely for commercial gain.  The turnover for that business was high, generating substantial profit.
87. [87]
    The base sentence of 10 years’ imprisonment represented a significant reduction on what would otherwise have been a sentence for imprisonment significantly in excess of 10 years.  That base sentence properly reflected the mitigating factors in her favour, including her plea of guilty, her cooperation with the administration of justice and her personal circumstances.
88. [88]
    The base sentence is not rendered unjust by consideration of hardship due to deportation, or proportionality with Ali’s sentence, or a combination of both considerations.
89. [89]
    The fact that Hermansson will suffer hardship as a consequence of deportation could not, of itself, warrant a conclusion that the base sentence of 10 years’ imprisonment imposed for her criminal conduct was manifestly excessive.  Such a sentence, even allowing for such hardship, represented a sound exercise of the sentencing discretion.  It was consistent with comparable yardsticks.  It was neither plainly unjust nor unreasonable.
90. [90]
    Further, such a base sentence gives rise to no issue of proportionality in relation to the sentence to be imposed in respect of Ali.  Ali was a much younger offender; had significant cultural circumstances, such as being brought to this country as a teenager with little family support; and had significant other factors such as financial control, educational limits, and previous threats.  Those circumstances constitute significant, personal, mitigating factors which distinguish Ali from Hermansson.
91. [91]
    Importantly, whilst Ali’s involvement in the trafficking operation was far from minimal, she was not a decision maker.  That was another significant distinguishing feature in her criminality, when compared to Hermansson.

Ali

92. [92]
    I agree, for the reasons given by the Chief Justice and Mullins JA, that the sentencing judged erred in limiting the circumstance of Ali’s involvement in the offence to findings as to physical violence.  That error necessitates a re-exercising of the sentencing discretion.
93. [93]
    In doing so, relevant factors are Ali’s actual involvement in the trafficking operation, including that she was not a decision maker; her significant mitigating features including her youthfulness and her cultural beliefs and practices, which resulted in significant limitations as to education and financial freedom; in the context of being young and without other emotional and financial support.
94. [94]
    Those differences in Ali’s criminality and significant mitigating factors warrant the imposition of a base sentence significantly less than Hermansson.
95. [95]
    Balancing Ali’s criminality and significant mitigating factors, I would impose a sentence of six and a half years’ imprisonment.
96. [96]
    Having regard to her relative youthfulness, I would fix a parole eligibility date, absent the effects of s 161R of the Act, after serving two years of that base sentence.

Orders

97. [97]
    In CA No 176/2021, I would order:

    1. (a)
       leave to appeal be granted; and
    2. (b)
       the appeal against sentence be dismissed.

98. [98]
    In CA No 179 of 2021, I would order:

    1. (a)
       leave to appeal be granted;
    2. (b)
       the appeal against the base sentence of eight years’ imprisonment be allowed;
    3. (c)
       the base sentence be set aside and the appellant be imprisoned for a period of six and a half years;
    4. (d)
       the mandatory sentence of a cumulative seven years’ imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992 which must be served wholly in a Corrective Services facility be confirmed;
    5. (e)
       the appellant be eligible for parole at 26 May 2030;
    6. (f)
       time spent in pre-sentence custody, between 28 May 2021 and the date of this order be declared time already served under the sentence.