Jailani v The Queen - [2010] VSCA 276

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0874

NORHALIZA BINTI JAILANI
	v
THE QUEEN

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2010
DATE OF JUDGMENT	20 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 276
JUDGMENT APPEALED FROM	R v Jailani (Unreported, Count Court of Victoria, Judge Coish, 17 October 2008)

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CRIMINAL LAW – Appeal – Sentence – Importation of border controlled drugs – Appeal allowed and appellant re-sentenced – Appeal decision without precedent value.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J D Williams	Victoria Legal Aid
For the Crown	Mr M P Cahill	Commonwealth Solicitor for Public Prosecutions

ASHLEY JA:

Norhaliza Jailani was found guilty after trial in the County Court on three counts of importing a marketable quantity of a border control drug. On 17 October 2008 she was sentenced to six years’ imprisonment on each count, the maximum penalty being 25 years’ imprisonment and/or a fine of $550,000. There was no cumulation – as might have been achieved by setting different commencing days for the individual sentences under the Commonwealth regime. The total effective sentence was thus six years’ imprisonment. The judge fixed a non-parole period of four years’ imprisonment.

Ground of appeal

Now Jailani appeals by leave. The sole ground of appeal is as follows:

1.        The learned sentencing Judge erred by imposing:
(a)       individual terms of imprisonment;
(b)      a total effective sentence; and
(c)       a non-parole period
Which are, in all the circumstances, manifestly excessive and which fail adequately to reflect a proper regard to current sentencing practices.

Circumstances of offending

The circumstances of the offending were described by the learned sentencing judge this way:

4.… You arrived in Melbourne airport on 28 February 2008 at approximately 2.05 am after travelling from Dubai via Singapore. You had travelled from Malaysia to India on 15 February 2008 and from India to Singapore via Mumbai and Dubai on 26 February 2008.
5.On arrival at Melbourne airport you were in possession of two suitcases, one coloured blue and the other coloured black.
6.A search of the black suitcase revealed white powder secreted in the lining in the bottom of that suitcase and white powder secreted in the lining of a small brown leather handbag which was in the black suit case.
7.Subsequent formal testing of the substances revealed that they comprised 189 grams of pure heroin, 143.1 grams of pure morphine and 194.9 grams of pure monoacetylmorphine.
8.The total was therefore 527 grams. A marketable quantity is two grams.
9.In a record of interview conducted on 6 March 2008 you denied any knowledge of the drugs in these bags. You stated that you were travelling to Australia for a job interview and you had been asked by persons in India who gave you the black suitcase to give it to a manager you were to meet in Australia as a gift.

Sentencing remarks

His Honour sentenced the appellant on the basis that she was a courier,…

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 Jailani v The Queen

Details

AGLC: Jailani v The Queen [2010] VSCA 276
Case: [2010] VSCA 276
Decision Date: 20 October 2010

CaseChat Overview and Summary

In the matter of Jailani v The Queen, the appellant, Jailani, brought an appeal against his conviction and sentence for the importation of border controlled drugs. The case was heard in the High Court of Australia, which has the jurisdiction to hear appeals from the lower courts. The central issue before the court was whether the original sentence imposed by the lower court was excessive and whether it should be varied.

The court needed to determine whether the original sentence was manifestly excessive, having regard to the principles of sentencing for drug importation offences. This involved assessing the seriousness of the offence, the appellant's culpability, and the need for deterrence and rehabilitation. The court also needed to consider whether the appeal had any precedential value or if it was a case-specific decision.

The High Court found that the original sentence was indeed manifestly excessive, taking into account the specific circumstances of the case. The court emphasised the need for proportionality in sentencing and the importance of individualised sentencing assessments. It was noted that the original sentence did not adequately reflect the appellant's level of culpability and the circumstances of the offence. Consequently, the appeal was allowed, and the appellant was re-sentenced. The court held that this decision did not have precedential value, as it was specific to the unique facts and circumstances of this case.

Orders