Mahdi Jahandideh v The Queen

[2014] NSWCCA 178

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mahdi Jahandideh v R [2014] NSWCCA 178
Hearing dates:	24 June 2014
Decision date:	08 September 2014
Before:	Hoeben CJ at CL at [1] Rothman J at [2] Beech-Jones J at [36]
Decision:	1. Leave to appeal refused.
Catchwords:	CRIMINAL LAW - appeal - sentence - sentence of imprisonment and fine imposed - legislation requiring sentencing judge to take into account financial circumstances of offender - sentencing judge relied on the need for general deterrence and appropriate financial penalty where crime committed for financial gain - applicant put on notice of possibility of fine and asked for comment - no reasonable prospects for appeal - leave refused
Legislation Cited:	Darter v Diden [2006] SASC 152; (2006) 94 SASR 505
Cases Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Category:	Principal judgment
Parties:	Mahdi Jahandideh (Applicant) Regina (Respondent)
Representation:	Counsel: P Lange (Applicant) S McNaughton SC (Respondent) Solicitors: Legal Aid Commission (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2012/135348
Publication restriction:	None
Decision under appeal	Date of Decision: 2013-05-21 00:00:00 Before: Charteris DCJ File Number(s): 2012/135348

Judgment

1. HOEBEN CJ at CL: I agree with Rothman J.

1. ROTHMAN J: Mahdi Jahandideh (the applicant) applies for leave to appeal and, if granted, appeals against the sentence imposed upon him on 21 May 2013 by the District Court.

1. The applicant pleaded guilty before Central Local Court to the offence of importing a marketable quantity of a border controlled drug, namely, 2151.3 grams of opium, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code).

1. As a consequence of the plea, he was committed to the District Court where he adhered to the plea of guilty and, on 21 May 2013, was sentenced to a head sentence of 5 years' and 6 months' imprisonment, with a non-parole period of 3 years and 8 months. He was also fined an amount of $100,000.

1. The applicant seeks leave to appeal on the basis that the District Court erred in imposing a fine:

(a)   In the absence of reliable evidence that the applicant had the means to pay the fine;

(b)   In the absence of evidence that the applicant had retained a profit from his offence.

Facts

1. The facts were set out in the Remarks on Sentence, from which the following summary is taken.

1. Shortly, and relevantly, the applicant arrived in Australia by plane with two packages of opium concealed within tight-fitting clothing in his groin area. The net amount of opium imported was 2151.3 grams.

1. There were four layers of packaging around the opium and the applicant's fingerprints were found on the inner-most layer and the second layer of packaging.

1. The applicant provided an account of the reasons for his visit to Australia with what purported to be supportive written documentation. There were substantial discrepancies in that information and account.

1. The applicant did not give evidence at the sentence hearing and gave very limited answers in a recorded interview, having requested the opportunity to explore the opportunity to obtain legal advice.

Legislation

1. The grounds of appeal and the relevant provision dealing with the imposition of a fine depend quintessentially on the provisions of s 16C of the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act), which is in the following terms:

"(1) Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.

(2) Nothing in subsection (1) prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court."

1. As can be seen from the foregoing, it is a requirement of the Commonwealth Crimes Act that, before imposing a fine, the court must take into account the financial circumstances of the offender, in addition to any other matters that are required to be or permitted to be considered. However, s 16C(2) of the CommonwealthCrimes Act makes clear that the requirement does not prevent a court from imposing a fine on a person where the financial circumstances cannot be ascertained by the court.

1. The ground of appeal upon which the applicant relies is confined to a failure to adhere to the process required by s 16C of the Commonwealth Crimes Act. In the course of oral submissions on appeal, counsel rejected any reliance upon a denial of procedural fairness; any reliance on the severity of the fine, as such; and any reliance upon the severity of the penalty in circumstances where both a term of imprisonment and a fine were imposed.

Consideration

1. The ground of appeal agitated on behalf of the applicant relates, given the immediately proceeding paragraph, to an error in the process said to have been undertaken by the sentencing judge. Not only did the applicant, in the course of submissions on appeal, not rely on any denial of procedural fairness and any argument relating to manifest excess or a sentence that is more severe than is appropriate, but counsel for the applicant, quite properly, concedes that the fine has, in all likelihood, no practical impact upon the applicant.

1. There are a number of matters that require comment. First, s 16C(1) of the Commonwealth Crimes Act requires a sentencing judge to take financial circumstances into account. It does not dictate that the financial circumstances will determine the fine that is to be imposed.

1. The financial circumstances of the offender is a mandatory consideration, but, expressly, there are other considerations. In Darter v Diden [2006] SASC 152; (2006) 94 SASR 505, Doyle CJ said:

"[29] I consider that a substantial fine was called for, even after making allowance for the loss of the vessel and the period of detention. A substantial fine was called for because, in particular, of the seriousness of the offence and its prevalence. Deterrence remains a factor, even if it is attenuated by the unlikelihood of recovery of the fine in future like cases.

[30] Treating the offender's capacity to pay as relevant, but not decisive, is consistent with the approach at common law. In Flego v Lanham (1983) 32 SASR 361 at 365-367 Wells J considered this issue. He said at 366:

But the offender's capacity to pay should always be kept in mind as a factor worthy of consideration; it cannot be decisive (see generally Reid v Liersch unreported, Walters J, 23 September 1970), but it is likely to be of some moment.

Legoe J came to a similar conclusion in Winkler v Cameron (1981) 33 ALR 663. This approach is consistent with the view of Finlay J in Rahme (1989) 43 A Crim R 81 at 86-88, although that case was complicated by the fact that the sentencing Judge had been urged to impose a substantial fine rather than a sentence of imprisonment. In Smith v R (1991) 25 NSWLR 1 Kirby P (at 21) expressed opposition to the imposition of a fine which was beyond the means of the person fined. That case also was complicated by its particular circumstances. It was a case involving contempt of court by a prisoner serving life imprisonment, the response of the Judge having been to impose a very substantial fine. The matter was complicated by the life sentence being served, which rendered other forms of punishment impractical, but likewise made the prospect of payment of the fine illusory. Nevertheless, Mahoney JA (at 23-24) and Meagher JA (at 24) both upheld the fine, recognising that it was unlikely ever to be collected.

[31] I have considered these cases and remain of the view that the defendants' capacity to pay was a relevant consideration, but not decisive. There is nothing in the Crimes Act to suggest that it is a decisive factor. Nor, in my opinion, does ordinary sentencing principle require that it be so treated.

[32] The impact of s 16C of the Crimes Act was considered by Mullighan J in Chief Executive Officer of Customs v Rota Tech Pty Ltd & Ors [1999] SASC 64 ; (1999) 201 LSJS 390. He considered a number of the reported cases and (at 397) said:

It follows that the capacity of the offender to pay cannot be the dominant factor when fixing the fine to be imposed. It is an important factor along with the other matters which the Court must take into account pursuant to s 16A. Where the offence involves large scale drug importation for the illicit drug trade in this country, the financial circumstances of the offender, whilst relevant, should not assume prominence in the exercise of the sentencing discretion.

I agree with his approach."

1. I also agree with the foregoing approach and add only that consideration of the financial circumstances may increase, rather than decrease, a fine in order for it to be a deterrent for the offender.

1. Secondly, the terms of s 16C(2) of the Commonwealth Crimes Act seek to make clear that the court is still capable of imposing a financial penalty in circumstances where the financial circumstances of the offender cannot be ascertained by the court.

1. A sentencing court is not in a position to investigate financial circumstances or to call evidence. The sentencing judge relies upon the material that is put before the Court during the course of sentencing proceedings.

1. In this case, the sentencing judge (Transcript, 21 May 2013, page 5) raised with counsel for the offender the possibility of a fine, as well as imprisonment, in terms that asked counsel what she said about the fine and made clear that his Honour was referring to a fine over and above any period of imprisonment. His Honour then asked:

"I am just asking whether you have any submissions about the fine?"

1. Counsel replied:

"Your Honour, my instructions are that [the applicant] has limited means to pay a fine, and his business activities were somewhat limited, although he might have been travelling for business he was paid on a commission basis, so in terms of his financial position it was not a healthy position and remains obviously, since he has been in custody, unhealthy. His wife is currently working, I am told, to support the family given that he is not bringing in an income, so in my submission a fine for this particular offender would not be appropriate. He is of limited means."

1. That is the totality of the submission made in relation to the question asked by his Honour. No attempt was made to adduce evidence in relation to that question or that issue. And no evidence was adduced directed to financial circumstances.

1. However, during the course of the sentencing proceeding, evidence was adduced from the applicant's brother, which was answered by way of comparison with the brother's financial circumstances. The exchange was to the effect that the brother saw the applicant in Korea where he was working; that the applicant was married; that he has a family; that he has two children, aged five and seven; and that he, the applicant, financially supports his family and financially supports his parents, including medical and support payments for his mother, who, it was said, has a disability. In contrast, the applicant's brother is not expected to contribute to his parents' health expenses, because he does not have the income and/or assets so to do (see Transcript, 16 May 2013, page 10-11).

1. Lastly, the applicant's brother was asked whether he was aware of any of the financial circumstances of the applicant and he answered:

"Actually he told me 'I have a little bit', but I didn't ask him much. He told me he has some problem but I didn't ask him much.

Question: Do you know how much he earned or was that something he didn't talk about?

Answer: I don't know I didn't talk."

1. The only other material before the Court that was relevant to this issue was material that suggested the applicant was engaged in business, interested in business ventures associated with livestock and mining and that he had undertaken something in the order of 100 to 130 overseas trips in the preceding period of approximately 2 years. There is nothing in the material accepted by his Honour to suggest that the applicant did not have financial circumstances that were sufficient to enable him to pay the fine imposed.

1. It must be said that very little material was put to his Honour, notwithstanding his Honour's request. It is difficult for a judge to enquire into the financial circumstances of a person upon whom it is anticipated a fine is to be imposed, other than by asking what, if anything, is to be put in relation to such a fine or such a penalty. Notwithstanding the request, no material was adduced on behalf of the applicant.

1. It is fair to say that his Honour did not have a high regard for the truthfulness and accuracy of that which emanated from the applicant. It is, therefore, not surprising that the submission, put on instructions, that the applicant had little resources should not be accepted by his Honour.

1. The applicant cannot point, as earlier stated, to any practical effect or prejudice associated with the fine that was imposed. The applicant does not say that the fine is manifestly excessive, or that the overall penalty, being the combination of the term of imprisonment and fine, are manifestly excessive or inappropriately severe.

1. Given the terms of s 16C of the Commonwealth Crimes Act, it is at least prudent for a sentencing judge contemplating the imposition of a fine to enquire of counsel for the offender as to the financial circumstances of the offender and, where a submission is made which is not to be accepted, to put such matters to counsel. Further, it is necessary to address both issues in the remarks on sentence.

1. Nevertheless, given the attitude of the sentencing judge to that which emanated from the applicant, it is unsurprising that the submission made as to the lack of financial resources would not be accepted.

1. The sentencing judge, in determining to impose a fine, expressly refers to the need for general deterrence and the appropriateness of a financial penalty in circumstances where a crime is committed for financial gain. The sentencing judge does not, in terms, state reasons for rejecting the explanation of counsel. Nor does the sentencing judge make clear that he is in a position where he could not ascertain the financial circumstances of the applicant. Nevertheless, the applicant does not complain about the lack of reasons.

1. His Honour did refer to the evidence about the applicant's business interests and the overseas travel. His Honour did not include in his remarks the express statement that these financial circumstances have been considered in fixing the fine. Nor did the sentencing judge express the view that he could not ascertain those financial circumstances. It would have been prudent to have done so.

1. Given that the applicant does not complain about a lack of procedural fairness; was asked, below, as to matters pertaining to the imposition of a penalty and put submissions, expressly, on instructions; does not complain about the lack of reasons for rejecting the explanation or for imposing a fine; and cannot point to any practical or legal prejudice associated with the imposition of the fine, it seems to me that the current application for leave to appeal is not an appropriate vehicle for discussing the requirements and process to be adopted when applying s16C of the Commonwealth Crimes Act.

1. Further, given the necessity of the Court to be satisfied that a lesser sentence is warranted, there are insufficient prospects of success in the appeal.

1. In my opinion, the matter is not one in which the Court ought to grant leave and I propose that the Court refuses leave.

1. BEECH-JONES J: Subsection 16C(1) of the Crimes Act 1914 (Cth) when read with subsection 16C(2), or even without it, only obliges a sentencing court to take into account the financial circumstances of the relevant offender so far as they are established to the relevant satisfaction of that court. If the material before a court is not sufficient to satisfy it of the existence of any particular financial circumstance pertaining to an offender then s 16C(1) is engaged in respect of it.

1. In this case, to the extent that the sentencing judge was satisfied about any matter pertaining to the applicant that might have answered the description of a financial circumstance, and there was not many, they were referred to in his Honour's sentencing judgment. Thus his Honour noted some evidence about the applicant's work history, his travel and his assumption of responsibility to pay his parents medical bills. In circumstances where his Honour noted those matters I do not consider the applicant has not come close to demonstrating that his Honour failed to comply with s 16C(1) even if His Honour did not expressly state he took them into account at the particular point in the judgment where he referred to the imposition of a fine.

1. Ordinarily I would be minded to grant leave to appeal but dismiss the appeal. However, in view of the position taken by the other two members of the Court, I am content to agree with the orders proposed by Rothman J.

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Decision last updated: 08 September 2014