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DPP (Cth) v Haidari

DPP (Cth) v Haidari

Case [2013] VSCA 149 19 June 2013

Criminal Liability

Sentencing

Mandatory Minimum Sentencing

Appeal

Jurisdiction

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0234

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
	Appellant
v
ALI HAIDARI
	Respondent

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JUDGES	WEINBERG, HARPER and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 March 2013
DATE OF JUDGMENT	19 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 149
JUDGMENT APPEALED FROM	DPP v Haidari [2012] VCC 1387 (Chief Judge Rozenes)

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CRIMINAL LAW — Sentence — Director’s appeal — People smuggling — Organising the bringing of groups of non-citizens into Australia — Importing a marketable quantity of a border controlled substance (methamphetamine) — Pleas of guilty – Sentenced to a total effective sentence of 11 years 6 months’ imprisonment — Non-parole period of 8 years — Application of mandatory minimum statutory sentencing regime – Whether sentence imposed was manifestly inadequate — Operation of principle of totality where mandatory minimum sentencing regime applies — Whether sentencing judge erred in giving too much weight to the fact a ‘sting operation’ resulted in one of the people smuggling charges — Whether sentencing judge erred in cumulation of sentences — Atherden v Western Australia [2010] WASCA 33, R v Taouk (1993) 65 A Crim R 387, R v DW [2012] NSWCCA 66, Hili v The Queen (2010) 242 CLR 520, R v Creed (1985) 37 SASR 566 and Mill v The Queen (1988) 166 CLR 59 discussed — Bahar v The Queen (2011) 255 FLR 80 applied — Appeal dismissed.

Migration Act 1958 (Cth), ss 232A, 233(1)(a) and 233C – Criminal Code (Cth), s 307.2(1).

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Appearances:	Counsel	Solicitors
For the Crown	Ms W Abraham QC with Ms K Breckweg	Director of Public Prosecutions (Cth)
For the Respondent	Mr T Kassimatis with Ms B F Franjic	Valos Black & Associates

WEINBERG JA:

I agree, for the reasons given by Harper JA, that this appeal should be dismissed.

HARPER JA:

Introduction

The respondent was born in Iraq 38 years ago. His family was Kurdish. Their fate, along with that of very many Iraqi Kurds, was to be subjected to discriminatory treatment by the regime then headed by Saddam Hussein. When he was only a year old, his father disappeared. It was the last his family heard of him. In fear, they fled to Iran; but, as foreigners in another unwelcoming environment, they were unable to enjoy the full rights of citizenship – they could not even open a bank account. No school would accept the children. As a consequence, the respondent has had no formal schooling. Home was a tent pitched somewhere in the Iranian countryside. The surrounding violence was endemic.

Although it meant leaving his family behind, the respondent – then aged 26 – fled to Malaysia. From there, he and some 50 or 60 fellow asylum seekers sailed to Australia. Following interception by the RAN, he spent four months in detention in Port Headland before being granted a protection visa and moving to Melbourne. He was granted Australian citizenship in 2007. No other members of his family have joined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (Cth) v Haidari

Details

AGLC: DPP (Cth) v Haidari [2013] VSCA 149
Case: [2013] VSCA 149
Decision Date: 19 June 2013

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions against the sentence given to the respondent, Haidari, who had pleaded guilty to charges of organising the bringing of groups of non-citizens into Australia and importing a marketable quantity of a border controlled substance, namely methamphetamine. The case was heard in the High Court of Australia. The Director appealed the sentence imposed on Haidari, arguing that it was manifestly inadequate in light of the mandatory minimum sentencing regime applicable to the crimes committed.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate, whether the trial judge erred in applying the principle of totality in the context of a mandatory minimum sentencing regime, and whether the trial judge erred in giving excessive weight to the fact that one of the people smuggling charges arose from a "sting operation." The court also had to consider whether the trial judge erred in the cumulation of the sentences imposed.

The court held that the sentence imposed by the trial judge was not manifestly inadequate. The court found that the trial judge had correctly applied the principle of totality and had not erred in giving weight to the fact that one of the people smuggling charges arose from a sting operation. The court also found that the trial judge had not erred in cumulating the sentences imposed. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and that the original sentence imposed by the trial judge be upheld.

Orders