Haidari v The Queen

[2014] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0214

ALI HAIDARI
	Applicant
v
THE QUEEN	Respondent

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JUDGES	WEINBERG and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	On the papers
DATE OF JUDGMENT	9 May 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 91
JUDGMENT APPEALED FROM	DPP v Haidari [2012] VCC 1387 (Chief Judge Rozenes)

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ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009
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DETERMINED ON THE PAPERS
JUDGMENT DELIVERED IN OPEN COURT

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CRIMINAL LAW – Sentence – Election against refusal by Deputy Registrar (Legal) of application for extension of time – Applicant pleaded guilty to three counts of people smuggling and one count of importation of methamphetamine – Total effective sentence of 11 years and six months’ imprisonment – Non-parole period of eight years – Delay of almost 12 months in seeking leave to appeal – No adequate explanation provided for delay – Consideration of proposed grounds – Whether sentencing judge erred in failing to give sufficient weight to fact that charge 4 involved ‘sting’ operation – Whether error in application of principle of totality – Proposed grounds devoid of merit – Principle of finality – Applicant had opportunity to challenge sentence as excessive when Director brought earlier manifest inadequacy appeal – Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 considered – Application dismissed.

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Appearances:	Counsel	Solicitors
No appearance by leave of the Court.

WEINBERG JA:

1. In July 2012, the applicant pleaded guilty, in the County Court at Melbourne,[1] to three people smuggling charges and one drugs charge. He was sentenced, on 20 September 2012, as set out in the following table:

[1]DPP v Haidari [2012] VCC 1387.

Charge		Offence	Maximum Penalty	Minimum Penalty	Sentence	Cumulation
1		People smuggling – s 233(1)(a) Migration Act 1958 (Cth)	10 years	4 years	3 years and 6 months on base sentence Sentence to commence 20 March 2020
2		Organising bringing groups of non- citizens into Australia – s 232A Migration Act 1958 (Cth)	20 years	5 years / 3 years NPP	8 years	Base Sentence to commence 20 September 2012
3		Import a marketable quantity of a border controlled drug - s 307.2 (1) Criminal Code Act 1995 (Cth)	25 years	6 years	2 years with the base sentence Sentence to commence 20 September 2016
4		Aggravated offence of people smuggling (at least 5 people) – s 233C Migration Act 1958 (Cth)	20 years	8 years / 5 years NPP	8 years	Sentence to commence 20 September 2012
Total Effective Sentence:			11 years and 6 months imprisonment
Non-Parole Period:			8 years
Pre-sentence detention declared:			351 days
6AAA Statement: 15 years imprisonment with a non-parole period of 11 years.

1. On 16 October 2012, the Commonwealth Director of Public Prosecutions brought an appeal against the sentence imposed upon the applicant, arguing that it was manifestly inadequate. 

1. On 26 March 2013, this Court dismissed that appeal.[2]  It was not until 16 September 2013, almost a year to the day after the applicant was originally sentenced, that he first sought leave to appeal against sentence. 

   [2]DPP (Cth) v Haidari [2013] VSCA 149.

1. The Deputy Registrar (Legal) refused to grant an extension of time.  He was not satisfied that the applicant had provided an adequate explanation for the lengthy delay in seeking leave to appeal.  The applicant has elected, as is his right, to have that decision reconsidered by this Court. 

1. The applicant, who is self-represented, filed written submissions, and an affidavit purporting to provide an explanation for the delay.  He has not sought an oral hearing.  Accordingly, his application has been dealt with on the papers. 

Circumstances surrounding the offending

1. The plea hearing in the County Court extended over a number of days in July and August 2012.  The agreed summary of facts, that was tendered on the plea, revealed that the applicant was born in Iraq in 1975.  In November 2000, he engaged the services of a people smuggler, arriving in this country by boat from Indonesia.  He was eventually granted refugee status.  Subsequently, in 2007, he became an Australian citizen. 

Charge 1: Take part in bringing a non-citizen to Australia

1. In October 2009, Abulfazi Qureishi, an Iranian citizen, decided to leave Iran.  He was given the applicant’s telephone number, and told that the applicant could arrange for him to come here from Indonesia by boat.  He contacted the applicant who agreed to assist him. 

1. In October 2009, the applicant flew to Jakarta.  He remained in Indonesia for several months.  When Qureishi landed at Jakarta airport, he was met by a person known as ‘Sayfullah’ who, it transpired, was the applicant’s business partner.  The following day the applicant and Qureishi met for the first time.  Qureishi handed the applicant the sum of US$8,000 in cash as payment for the trip to Australia. 

1. The applicant made all the necessary arrangements.  On about 22 November 2009, Qureishi, together with a number of other Iranian asylum seekers, boarded a small boat that then set off for Australia.  On 25 November 2009 the Navy intercepted that boat near Christmas Island.  There were 52 persons on board.  They comprised 49 passengers and three Indonesian crew members.  There were no life jackets.  A number of the passengers were diagnosed as suffering from sunburn, dehydration and sea sickness.  

Charge 2: Facilitate the bringing or coming to Australia of a group of five or more people

1. In early February 2010, the applicant again flew to Indonesia.  On this occasion he arranged for a number of Iranian asylum seekers to come to Australia by boat. 

1. On 31 March 2010, the Navy intercepted that boat.  The applicant was paid a substantial amount of money for his role in having facilitated this particular people smuggling operation.

Charge 3: Import a marketable quantity of methamphetamine

1. In June and July 2011 the applicant organised an importation of just over 500 grams of methamphetamine into this country. Pursuant to s 314.4(1) of the Criminal Code Act 1995 (Cth), two grams of methamphetamine constitutes a marketable quantity of that drug. A commercial quantity is 750 grams.

1. The estimated wholesale price for 500 grams of methamphetamine, if sold at a purity of 80 per cent, was said to be just over $70,000.  If sold at 10 per cent purity in one gram street-level deals, the value of that quantity of the drug was estimated to be somewhere between one and five million dollars.

Charge 4: Facilitate the bringing or coming to Australia of a group of five or more people

1. In September 2011, an undercover police officer using the name ‘Pedro Santos’ telephoned the applicant.  He raised with the applicant the possibility of bringing into this country, from Indonesia, a group of six asylum seekers.  They arranged to meet the following day. 

1. In a further telephone call Santos offered the applicant $15,000 cash for his role in this proposed people smuggling operation.

1. The following day the applicant and Santos met to discuss the proposed venture.  At the conclusion of their discussion, the applicant accompanied Santos to his vehicle where Santos handed him $15,000 in cash, together with a list of the names of those who were to be brought into this country.  He also gave the applicant a contact number in Indonesia, and a code word, ‘Mohammad’, to be used as confirmation of the applicant’s identity. 

1. On 30 September 2011 the applicant and Santos spoke over the telephone.  They discussed a final price of $6,500 per person for the entire operation.  Santos agreed to that figure. 

1. Throughout the following week, various calls between the applicant and his known associates in Iran were monitored by police.  The calls concerned the method by which payment would be effected to the contact in Indonesia who was responsible for that end of the operation. 

1. On 5 October 2011, the applicant and Santos again met.  Santos handed the applicant a plastic bag containing $15,000 in cash.  The applicant was then arrested. 

The sentencing judge’s reasons

1. The sentencing judge noted, in his sentencing remarks, that the prosecutor had submitted, in response to his Honour’s query as to the appropriate range for offending of this kind, that the three people smuggling charges warranted a total effective sentence of between 11 and 14 years.  The prosecutor further submitted that a non-parole period of between eight and 11 years would be appropriate for those three offences. 

1. In relation to the importation offence, the prosecutor put forward a range of between six and eight years, with a non-parole period of between four and six years. 

1. He submitted that two years of the sentence imposed for the importation should be served cumulatively upon the various sentences imposed on the people smuggling charges.

1. Counsel who appeared on behalf of the applicant on the plea did not advance a submission as to the total effective sentence.  Rather, he confined his submission as to range to one that would encompass a non-parole period of between seven and nine years. 

1. That figure is of some significance, since, as has been seen, the applicant ultimately received a non-parole period of eight years.  That figure was, of course, squarely within the range put forward on the applicant’s behalf by his counsel. 

1. The sentencing judge said that he took into account the applicant’s personal circumstances and, in particular, the significant privation that he suffered in his early life.  He noted that it had been submitted on behalf of the applicant that, in relation to the people smuggling offences, he was motivated, in part, by a feeling of empathy towards his fellow Iranians.  His Honour was prepared to accept that submission in part, though he noted that the applicant’s actions were ‘not wholly altruistic’.  He also noted, in relation to charge 2, that the applicant’s role had been limited to assisting only a small percentage of the 67 passengers who were on board the boat in question. 

1. His Honour observed that charges 2 and 4, both charges of aggravated people smuggling, each carried a mandatory minimum sentence.  In the case of charge 2, that was five years’ imprisonment, with a non-parole period of at least three years.  In the case of charge 4, it was eight years’ imprisonment with a non-parole period of at least five years. 

1. While it was true that the applicant was in no way responsible for the fact that there were 49 passengers on board the boat the subject of charge 1, or the 67 passengers on board the boat the subject of charge 2, his role in each of these offences was significant.  He was more than just an intermediary.  He had a financial interest in each venture and had entered into these transactions for profit. 

1. The sentencing judge observed that the offence of people smuggling should be viewed seriously.  The legislature had made this clear by the provision of very substantial penalties, and by inhibiting the discretion of judges to impose short or non-custodial sentences.  The offence was prevalent, and difficult to detect.  General deterrence was a paramount consideration.  In his Honour’s view, the fact that the applicant had pursued the asylum seekers whom he had assisted for additional payments after they had arrived in Australia showed that there was more to his motivation than just altruism. 

1. With regard to charge 4, his Honour said that the offending was serious notwithstanding the fact that this was a ‘sting’ operation, initiated by the police.  The applicant had willingly embraced the opportunity afforded to him by the undercover operative.  He had signified a preparedness to engage in further people smuggling, while fully aware of the fact that taking to sea in small boats of the kind typically used was laden with risk. 

1. Finally, with regard to charge 3, the sentencing judge noted that the applicant was the central figure in the drug importation venture, and was intended to be its sole beneficiary.

1. His Honour took into account the applicant’s early plea of guilty.  He accepted that the plea demonstrated some degree of remorse.  He referred specifically to the need to have regard, when sentencing for multiple offences, to the principle of totality.  He recognised that charge 4 involved a sting operation, and that there was never any risk that anyone would be brought to this country pursuant to that arrangement.  He said that had that not been the case, he would have imposed a greater sentence than the minimum for that charge.

The proposed grounds of appeal

1. The applicant proposes to rely upon five grounds in support of his appeal, should leave to appeal be granted.  They are as follows:

1.That the sentencing judge erred in that charge 4 (Organise the bringing or coming to Australia of a group of 5 or more people contrary to section 233C of the Migration Act (Cth)), could not be considered under the minimum sentencing rules as the act was never performed as the evidence was contained within a “sting” operation. As such there is no actual way of knowing whether the act of organising the bringing or coming to Australia of a group of 5 or more people would have ever actually occurred. As the charge specifically states that the minimum number of person [sic] needs to be 5 to be involved in the movement that this could not be proven within the evidence contained in a [sic] ‘artificial sting’ operation.

2.That the sentencing judge agreed the [sic] ‘no case was really comparable’ however he referred to matters contained in other cases which were clearly not comparable.  The sentencing judge therefore relied on other points of reference which had not been proven by the evidence in this case to exist.  The bases for the sentencing parameters were therefore not sustainable or relevant to this unique case.

3.That the sentencing judge erred in using the minimum sentencing guidelines on ground 4 as there was clearly doubt whether any movement of people could have occurred.  No movement of any people did occur and therefore the actions of the accused could have been purely ‘altruistic’ as had been stated throughout the trial.

4.The sentencing judge erred in not considering fully that there was real likelihood that in the absence of police inducement the offender would not have committed ‘any’ crime.  As such [sic] extreme leniency is not only required but critical to a fair and objective sentencing on charge 4.  The sentencing judge was open to adopt the view that a lesser sentence than that stipulated as minimum under the normal or usual conditions of this charge (that being that a movement of people actually occurred or was assessed to being a reality) should and must be imposed.

5.The sentencing judge did not properly and entirely explore the effect of ‘totality’ when imposing his sentence on the accused.  It is appropriate for the sentencing judge to ‘stand back and look  at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose’.

Conclusion

1. There are at least three reasons why, in my opinion, the application for an extension of time, and for leave to appeal, should be refused. 

1. First, the applicant has failed to provide any adequate explanation for the delay of almost 12 months in filing his application for leave to appeal.  In his affidavit sworn in support of his application for an extension of time, he refers to five matters that are said to excuse his failure to comply with the statutory requirements as to when a notice of appeal should be filed. 

1. They are as follows:

1.That I have only just been able to understand and digest as a result of my lack of understanding  of the English language, the result of the Crown’s appeal against the leniency of my sentence, the Crown appeal has now been dismissed. DPP v Haidari [2012] VCC 1387 (Chief Judge Rozenes).

2.I have spent most of my time subsequent to my conviction endeavouring to locate and communicate with my family in Iran without success.  This has been extremely emotionally stressful.

3.As a direct result of my unsuccessful hunt for my family I was in a state of understandable emotional turmoil and confusion.

4.I have since recovered to a position where I can support an application for appeal against the severity of my sentence both emotionally and financially.

5.In the event that an extension for leave to appeal is granted, I will brief legal counsel to pursue leave to appeal against my manifestly excursive sentence.

1. None of the matters raised in the affidavit provides anything like an adequate explanation for the delay in this case.  To take but one example, there is nothing in the judgment of this Court in the Director’s appeal that provides any support for the applicant’s contention that his sentence was manifestly excessive.  All that the Court did, in dismissing that appeal, was to note that the sentence, while it might be seen to be lenient, was not manifestly inadequate. 

1. Time limits are meant to be observed.  A delay of a few days or perhaps weeks can be excused.  However, a delay of the best part of a year requires an adequate explanation.  None of the matters raised by the applicant, whether individually or in combination, constitutes such an explanation.

1. Secondly, in considering whether to extend time, it is obviously necessary to have regard to the merits of the proposed appeal. 

1. This Court recently considered the legal principles to be applied in cases involving significant delay in Efandis v The Queen.[3]  The Court said:

   [3][2014] VSCA 42.

In R v Darby Gowans J (with whom Lush J and Crockett J both agreed), after referring with approval to what had earlier been said by Little J in R v Varney, set out the principles which govern applications for extension of time in criminal appeals.  His Honour said:

(1)       the prescription by the statute of the time limit for giving notice is intended to secure finality and compliance is intended to be required in the ordinary case;

(2)       extension of the time is a matter for the discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;

(3)       rigid restrictions cannot be imposed on the exercise of discretion but in general the Court will require special and substantial reasons for extending the time;

(4)       the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;

(5)       it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;

(6)       a reasonably satisfactory account of the failure to comply with the statutory requirement needs to be forthcoming. 

In R v O’Keefe these observations were specifically approved by the Full Court.  The principles laid down in Darby remain good law today.[4] 

[4]Ibid [35]–[36] (citations omitted).

1. There are no merits in the proposed appeal.  The applicant will certainly fall well short of meeting the requisite threshold for an extension of time, after a lengthy delay, that the proposed appeal be likely to succeed.  

1. Turning to the proposed grounds, it can be seen that 1 and 4 overlap. They complain of the sentencing judge having failed to give proper weight to the fact that charge 4 arose out of a sting operation. However, s 233C of the Migration Act 1958 (Cth) clearly contemplates a situation where an offender facilitates both the entry into this country, and ‘the proposed entry of a group of more than five non-citizens’.

1. The applicant undoubtedly played a pivotal role in facilitating the ‘proposed entry’ of more than five non-citizens.  He did so notwithstanding the fact that those persons could never, in fact, have been brought to this country.  It matters not in the least, so far as the Act is concerned, that their existence was ‘fictitious’.  It was the applicant’s intention to facilitate their proposed entry, and he took active steps to achieve that end. 

1. I should add that there was nothing untoward, or improper, about the conduct of the police.  Sting operations, of the kind conducted in this case are both commonplace and necessary in matters of this kind. 

1. In any event, the sentencing judge gave full weight to the fact that charge 4 was a sting operation.  His Honour said that he had moderated the sentence that he would otherwise have imposed for that charge, because of its nature as the product of a kind of entrapment.  He said that he had reduced the sentence imposed to the mandatory minimum, and there is no reason to doubt that statement. 

1. Moreover, no cumulation at all was ordered between the base sentence imposed on charge 2 and the sentence imposed on charge 4.  This was despite the fact that charge 4 involved an aggravated offence in relation to which the applicant was a central figure and organiser, whereas he might be thought to have played a somewhat lesser role in relation to charge 2.  Charge 4 was also the applicant’s third people smuggling offence.

1. There is also no substance in ground 2.  The sentencing judge commented that, so far as the applicant was concerned, ‘no case was really comparable’.  For some reason, the applicant considers that, having made that observation, his Honour was precluded from referring to any matter that may have been determined in any other people smuggling case.

1. The sentencing judge’s comment should be viewed as nothing more than an observation to the effect that he had been referred to other people smuggling cases, and had considered them with a view to determining where, on the spectrum of criminal culpability, the applicant fell.  It was in that context, that his Honour remarked that none of those cases were comparable.  That was presumably because none of those cases involved as many instances of people smuggling as did the present case.  In addition, the applicant had to be dealt with for a most serious offence involving the importation of methamphetamine.

1. In my view, when his Honour referred to other people smuggling cases, he did so legitimately, and solely in order to draw from them the relevant sentencing principles that ought to govern people smuggling. 

1. With regard to ground 3, it is true that his Honour rejected the submission that the applicant had been largely motivated, in his people smuggling activities, by a degree of altruism.  It is also true that the applicant’s conduct in relation to charge 4 could not, as a practicable matter, have resulted in any actual people smuggling.  However, that does not in any way render his Honour’s comment about the applicant having been motivated, in relation to even that charge, by financial considerations.  The applicant’s contention that he had been motivated, in relation to charge 4, by altruistic considerations was unsupported by any evidence.  His own counsel, on the plea, properly conceded that at least as regards charge 2, his motives were not wholly altruistic, and the same can surely be said of his involvement in charge 4. 

1. I note that despite the evidence making it perfectly clear that the applicant was in the business of people smuggling for financial gain, the sentencing judge took a benevolent view of his conduct, and allowed for the possibility that, at least in relation to charge 4, he may have been ‘partially motivated by genuine altruistic humanitarian concerns’.  If I may respectfully say so, his Honour was unduly charitable in that regard.  

1. Ground 5 is wholly devoid of merit.  The sentencing judge referred at length, in his sentencing remarks, to the need to give effect to the principle of totality.  Importantly, this Court, on the Director’s appeal, saw no error in the application of that principle.  Indeed, his Honour’s application of totality was also extremely charitable.  A mere two years, of the six year sentence imposed for the drug offence, were cumulated upon the sentences imposed for people smuggling.  His Honour would have been well entitled to have cumulated a greater proportion of that sentence than he did.

1. It can be seen from this brief analysis that not a single one of the proposed grounds has any merit.  That, in itself, is a sufficient reason for refusing to extend time. 

1. However, the applicant’s position may be even worse than that.  It could be said that this case falls within the principles laid down by the High Court in Port of Melbourne Authority v Anshun Pty Ltd.[5]  The applicant had a perfect opportunity to argue that his sentence was manifestly excessive when he appeared as respondent to the Director’s appeal.  He did not avail himself of that opportunity.  There is a strong public interest in ensuring that all matters that are relevant to a particular dispute are dealt with in the one proceeding, rather than being fragmented.  The applicant’s sentence was before this Court on the Director’s appeal.  That was the time for him to

put whatever submission he wished to advance in relation to his sentence before the Court for its consideration. 

[5](1981) 147 CLR 589.

1. One final note.  The total effective sentence in this case, and the non-parole period, were both well within range.  The applicant’s culpability in respect of both people smuggling and the importation of methamphetamine was substantial.  He merited significant punishment.  He has no legitimate reason to feel aggrieved.   

1. The application for an extension of time within which to file an application for leave to appeal against sentence should be refused.

SANTAMARIA JA:

1. I agree with Weinberg JA.

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