Application under s 78 of the Crimes (Appeal and Review) Act 2001 by Tanveer Mehmood.
[2013] NSWSC 1411
•23 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Application under s 78 of the Crimes (Appeal and Review) Act 2001 by Tanveer Mehmood. [2013] NSWSC 1411 Decision date: 23 September 2013 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Application is refused
Catchwords: CRIMINAL LAW - application for inquiry into conviction - s 78, Crimes (Appeal and Review) Act 2001 - applicant convicted of import prohibited import - child pornography files - whether doubt or question as to guilt or mitigating circumstance - application refused Legislation Cited: Customs Act 1901 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999Cases Cited: Application of Pearson [1999] NSWSC 143 Category: Principal judgment Parties: Tanver Mehmood - (Applicant)
Regina - (Respondent)Representation: Solicitors
Self-represented - (Applicant)
(Cth) Attorney General - (Respondent)
File Number(s): 2013/102974
DECISION
The applicant, Tanver Mehmood, applies for an inquiry into his conviction on two charges, namely, import a prohibited import contrary to s 233(1)(b) of the Customs Act 1901 (Cth) and intentionally import a prohibited import under s 233BAB(5) of the Customs Act.
The consequence of the applicant's conviction of federal offences is that an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) may result in the referral of the case to the Court of Criminal Appeal to be heard as an appeal. The referral of the case for an inquiry by a judge of this Court is not available to Federal offenders : Application of Pearson [1999] NSWSC 143.
For this limited purpose, the test is whether there is a "doubt or question" with respect to the convictions, that is, whether there is any material in the application that causes any unease or sense of disquiet in allowing the convictions to stand, or as to any mitigating circumstance, or as to any part of the evidence in the case.
The applicant's central contention is that his conviction and sentence was obtained by fraudulent means, namely that the interview and his arrest were unlawful, that the charge was false and that the case lacked merit.
The applicant was convicted and sentenced ex parte on 30 March 2010 in the Local Court. The offence under s 233(1)(b) of the Customs Act is a strict liability offence. The offence is a summary offence not punishable by imprisonment. The offence under section 233BAB (5) of the Customs Act is an indictable offence which is capable of being dealt with summarily. If dealt with summarily, the court can only impose sentence not exceeding two years or a fine not exceeding $13,200.
The magistrate who convicted and sentenced the applicant in his absence on 30 March 2010 issued a warrant under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 with respect to the first offence. With respect to the second offence the magistrate fined the applicant $50,000 plus court costs.
On 11 December 2012 the applicant appeared with representation before the Local Court seeking an annulment of his convictions under s 4 of the Crimes (Appeal and Review) Act. The applicant correctly identified the imposition of a sentence for the second offence above the maximum penalty set by the legislature. The Commonwealth DPP sought a sentence correction in accordance with s 43 of the Crimes (Sentencing Procedure) Act 1999. The magistrate then re-sentenced the applicant in relation to the second offence by imposing a fine of $2000 and court costs. The applicant had not at that stage been sentenced in relation to the first offence. The magistrate accordingly sentenced the applicant to a fine of $9000 with court costs on the first offence.
The magistrate then dealt with the s 4 application and granted an annulment of the convictions. The matters were accordingly restored to the list for a rehearing on 19 February 2013. Owing to the fact that the application under s 4 was made in excess of two years from the date of conviction, the magistrate had no jurisdiction to grant the annulment. The magistrate's decision was revoked in chambers and the fines were reinstated.
On 8 January 2013, the applicant lodged an appeal in the District Court in relation to the sentences imposed on 11 December 2012. On 18 March 2013, Blackmore SC DCJ declined to hear the matter on the basis that the appeal was lodged out of time.
This latter decision was based on a misunderstanding of the relevant date according to s 43(5) of the Crimes (Sentencing Procedure) Act. An appeal against a penalty may be instituted within 28 days of the date of imposition. The application to the District Court on 8 January 2013 was made within 28 days of 11 December 2012.
The applicant also could have sought leave to appeal against his convictions under the Crimes (Appeal and Review) Act. Pursuant to s 12(3)(a) of that Act, an application for leave to appeal may be made within 28 days after the imposition of sentence with respect to the relevant conviction.
Despite these procedural irregularities, a review of the material confirms that there is no doubt or question as to the applicant's guilt, or as to any mitigating circumstance in the case or as to any part of the evidence in the case. Ultimately, the applicant was given the correct sentence on 11 December 2012 at a time when he was legally represented.
The circumstances surrounding the applicant's convictions for the relevant offences are as follows.
The applicant arrived in Australia on 3 January 2009 on a Pakistani passport. He was questioned by Customs officers and found to be in possession of a laptop and disk that contained pornographic images, in particular child sex pornography, bestiality and rape. The child pornography files were videos, running from a few seconds to approximately 10 minutes in length.
The apparent ages of the children depicted on these videos engaging in various sexual acts range between seven and 14 years.
The applicant was interviewed at Sydney International Airport and stated that he was leaving on 6 January 2009. He made admissions that he was the owner of the goods and said that he had purchased the laptop 15 days before from a business associate. The applicant was cautioned. He claimed he was not aware that the goods were prohibited. He stated that he was aware that his business associate had downloaded various files to the laptop. The applicant said it was his intention to delete the file shortly after gaining possession. He provided the usernames and passwords of the account where the pornographic files were held.
The applicant was again interviewed on 5 January 2009. He was cautioned and stated that he declared "no" on his incoming passenger card to the question relating to the importation of prohibited or restricted goods because he did not know that what he had was prohibited. He stated that he was the only user of the laptop, that he had been in Dubai on 24 and 25 November 2008 and at that time he was in possession of the laptop. The applicant changed the password to the account where the images were located. In the same account were pictures of the applicant's son and family.
The applicant stated that he got the disk containing child pornography images from a mobile phone repair shop. He claimed that he had the disk for approximately 6 months but had never viewed it. He stated that the writing on the disk was his own.
Despite the applicant's denial, forensic examination revealed that there was Internet access on the laptop. The pictures of the applicant's son were placed on the laptop on 6 December 2008. Some of the child pornography images on the laptop were accessed on 26 November 2008. Another file was burnt to the disk on 25 December 2007. That file contained two videos of a seven-year-old child engaged in sexual activity. There were also files that existed on both the disk and the laptop.
For these reasons, the application is refused.
Decision last updated: 24 September 2013
0