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Mirza v R

Mirza v R

Case [2007] NSWCCA 257 30 August 2007

Criminal Liability

Sentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Mirza v R [2007] NSWCCA 257

FILE NUMBER(S):
2007/3162 formerly 2007/359

HEARING DATE(S): 06/08/2007

JUDGMENT DATE: 30 August 2007

PARTIES:
Husnan Akhtar Baig Mirza v Regina

JUDGMENT OF: McClellan CJ at CL Howie J Harrison J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1538

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 21/06/2005

COUNSEL:
G. Farmer - Crown
C. Simpson - Applicant

SOLICITORS:
Commonwealth DPP - Crown

CATCHWORDS:
Criminal Law - Sentence - Importation of traffickable quantity of heroin - Application of Wong and Leung - whether sentence manifestly excessive.

LEGISLATION CITED:
Customs Act 1901 - s 233B(1)(a)(iii)
Crimes Act 1914 (Cth) - s 16G

CASES CITED:
The Queen v Olbrich (1999) 199 CLR 270
R v Wong and Leung (1999) 48 NSWLR 340
R v Thomson and Houlton (2000) 49 NSWLR 385
R v Henry (1999) 46 NSWLR 346
R v Jurisic (1998) 45 NSWLR 209
R v Haidar [2004] NSWCCA 350
R v Studenikin (2004) 60 NSWLR 1

DECISION:
The applicant is granted an extension of time to apply for leave to appeal, leave is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3162 (formerly 2007/359)
McCLELLAN CJ AT CL
HOWIE J
HARRISON J
THURSDAY 30 AUGUST 2007

Husnan Akhtar Baig MIRZA v REGINA

Judgment

McCLELLAN CJ AT CL: I agree with Howie J.
HOWIE J: The applicant pleaded guilty in the Local Court to an offence of importing heroin of not less than a traffickable quantity contrary to s 233B(1)(a)(iii) of the Customs Act (Cth). The maximum penalty for such an offence is relevantly imprisonment for 25 years. He was committed to the District Court for sentence and ultimately sentenced by Judge Sorby (the Judge) on 21 June 2005 to imprisonment for nine years with a non-parole period of 5 years. The sentence was dated to commence on 28 October 2004 and the applicant is eligible to be released to parole on 27 October 2009.
The applicant now seeks an extension of time in which to apply for leave to appeal against the sentence. The application for extension of time was lodged on 23 January 2007. The Crown did not oppose the application. The only ground of appeal is that the sentence is manifestly excessive.
The applicant arrived at Sydney on 28 October 2004 on a flight from Dubai. Customs officers selected him at random for a search and he was discovered to have packages taped to each of his feet that were found to contain powder. Analysis of the powder revealed that it weighed 427 grams and contained 313.7 grams of pure heroin. It is said to have had a wholesale value of about $150,000 and a street value of between $750,000 and $1 million. The applicant remained in custody from the date of his arrest until he was sentenced.
There was a psychological report tendered before the Judge. This revealed that the applicant was aged…

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 Mirza v R

Details

AGLC: Mirza v R [2007] NSWCCA 257
Case: [2007] NSWCCA 257
Decision Date: 30 August 2007

CaseChat Overview and Summary

Mirza v R is a criminal case before the court involving the defendant, Mirza, who was charged with the importation of a traffickable quantity of heroin. The dispute centres on the appropriate sentence to be imposed on Mirza, considering the severity of the offence. The High Court of Australia was tasked with determining whether the sentence imposed on Mirza was manifestly excessive in light of the principles set out in previous cases such as Wong and Leung.

The primary legal issue the court had to address was whether the sentence imposed on Mirza was manifestly excessive under the guidelines provided by the High Court in the cases of Wong and Leung. These cases established that a sentence may be considered manifestly excessive if it is outside the range of penalties that could reasonably be expected for the particular offence. The court had to balance the gravity of Mirza's crime with the need to ensure that the sentence was proportionate and not arbitrary.

In delivering the judgment, the court examined the factors considered by the trial judge in imposing the sentence, including the quantity of heroin involved, Mirza's criminal history, and the circumstances of the importation. The court found that while the offence was serious, the sentence imposed was within the range that could reasonably be expected for such an offence. Consequently, the court held that the sentence was not manifestly excessive and upheld the trial judge's decision.

No further orders were made by the court beyond the affirmation of the sentence imposed by the trial judge.

Orders