Bilal Afiouny v The Queen

[2015] HCASL 38

BILAL AFIOUNY

v

THE QUEEN

[2015] HCASL 38
S262/2014

1. The applicant seeks special leave to appeal from a total effective sentence of five years' imprisonment with a non‑parole period of three years and six months imposed on him by the Court of Criminal Appeal of the Supreme Court of New South Wales.

2. At first instance, the applicant was convicted on a plea of guilty of two counts of bribery of a Commonwealth public official, contrary to s 141.1(1) of the Criminal Code (Cth). The bribes, which were in amounts of $352,190 and US$20,000 respectively, were paid in relation to the illegal importation of tobacco. The amount of customs duty and tax sought to be avoided was between $25 million and $27 million. Finnane DCJ sentenced the applicant to a total effective sentence of three years and three months' imprisonment, with a non‑parole period of one year and eight months, after granting a 60 per cent discount for the applicant's plea and co‑operation with the authorities.

3. On appeal by the Crown against the manifest inadequacy of the sentence, the Court of Criminal Appeal (Price, Harrison and Garling JJ) held inter alia that Finnane DCJ had erred in allowing a discount of as much as 60 per cent and that, in any event, the sentence was manifestly inadequate.  Their Honours therefore set aside the sentence imposed and re‑sentenced the applicant as noted.

4. The applicant contends that the Court of Criminal Appeal erred in finding that the discount of 60 per cent was excessive without first identifying a basis for interfering with Finnane DCJ's exercise of discretion in the setting of the discount; erred in finding that the applicant's plea of guilty and assistance to the authorities did not warrant a discount of as much as 60 per cent; and erred in applying a sequential approach to sentencing.

5. It is appropriate that the application be dealt with pursuant to r 41.11 of the High Court Rules 2004 without being listed for hearing.

6. The application for special leave does not identify sufficient reason to doubt the correctness of the sentence imposed by the Court of Criminal Appeal.  As can be seen from the reasons of Garling J, with whom Price and Harrison JJ agreed, the Court of Criminal Appeal did not fail to identify the error in allowing a discount of as much as 60 per cent.  On the contrary, their Honours found in substance that the discount was erroneous because it lay beyond the bounds of what could reasonably be regarded as according to the worth of the applicant's plea of guilty and the extent of his assistance to the authorities.

7. Further, as has been noticed, the Court of Criminal Appeal were persuaded that the sentence imposed by Finnane DCJ was in any event manifestly inadequate.  The application for special leave does not identify a sufficient reason to doubt the rectitude of that conclusion.  To the extent that the application for special leave might otherwise raise a question of general importance, it is, therefore, not an appropriate vehicle for determination of that question.

8. In the result, the applicant has not demonstrated that it is in the interests of justice, either generally or in this particular case, that special leave to appeal should be granted.

9. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
8 April 2015 G.A.A. Nettle