Mirza v R - [2007] NSWCCA 257

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 35 at the date of sentencing. He was born in Pakistan and had an uneventful and happy childhood. He came to Australia in 1990, became an Australian citizen and worked for 13 years with State Rail. He was dismissed from his employment when he returned to Pakistan on long service leave in February 2003 and stayed past the date he should have returned to work. The applicant stated that he remained in Pakistan to assist in the care for his ailing father. In March 2003 he undertook an arranged marriage. He returned to Australia in September 2003 to find that he had lost his job. He was unable to obtain further full-time employment.
The applicant reported to the psychologists that he then started to frequent hotels and was introduced to cannabis and heroin. He was under financial pressure to assist his family and did not reveal to them that he was unemployed. He then decided to assist in the importation of drugs and was to be paid $10,000. He intended to use this reward to pay of some of the debts he had incurred since losing his employment. The applicant has no criminal record.
The report states that at the time he was examined the applicant was suffering from a Major Depressive Disorder as a result of the consequences of committing the offence and his imprisonment. It contains statements by the applicant of remorse and shame for his criminal conduct.
There was also in evidence a pre-sentence report. It notes that the applicant’s family live outside Australia and were not aware of his offending or incarceration. Nor was his wife of two years who remained in Pakistan aware of his predicament. In addition to reporting his involvement in the use of heroin the applicant also informed the officer preparing the report that he had borrowed money to support a gambling habit. The report also contains statements of remorse and shame made by the applicant for his criminal behaviour. Further there was in evidence a testimonial made by a friend of the applicant that also contains statements of remorse from the applicant to the friend.
The Judge was not prepared to make any factual finding about the role of the applicant in bringing the heroin into the country or his position in any hierarchy involved in the importation. He simply dealt with the matter on the basis that the applicant had imported the drug: see The Queen v Olbrich (1999) 199 CLR 270 at [19]. The Judge also indicated that he found special circumstances to “vary the statutory ratio that is applicable in Commonwealth matters”. His Honour with respect was clearly in error in the manner in which he determined the non-parole period as there is no such statutory relationship. But this error seems to have favoured the applicant because the non-parole period is 55 per cent of the total sentence and this is below the usual range of non-parole periods fixed for Commonwealth offences.
The applicant submits that with a discount for the plea of guilty of 25 per cent the Judge must have started with a sentence that was beyond the appropriate level to meet the objective criminality of the applicant having regard to his favourable subjective circumstances. Reference was made to R v Wong and Leung (1999) 48 NSWLR 340 and the indication in that judgment as to the range of sentences appropriate for a midlevel traffickable quantity (between 200 and 1 kilogram). It was held to be between 6 and 9 years imprisonment for a courier or a person low in the hierarchy involved in the importation. The Crown pointed out in written submissions that the guideline in that judgment referred to the range of sentences that would be appropriate after a discount for a guilty plea and a discount under the now repealed s 16G of the Crimes Act (Cth).
Although some question was raised at the hearing as to whether the range set out in Wong and Leung took into account a plea of guilty it is clear that it did. In R v Thomson and Houlton (2000) 49 NSWLR 385 at [161] the Chief Justice clarified the status of earlier guidelines so far as a plea of guilty was concerned, and stated:
“The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of Jurisic and Henry included a plea of guilty. That was not the case in Wong in which the range encompassed relevant matters, including a plea. In each of Jurisic at 231 and Henry at [162], the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons.”
The point of distinction between the guideline in Wong and Leung and the other two decision mentioned by the Chief Justice is that in Wong and Leung the Court referred to a range of sentences for different classes of offenders, whereas in both Henry and Jurisic the Court identified a standard case for the offence under consideration and indicated the appropriate sentence for such a case. But in all three guideline judgments given before Thomson and Houlton a plea of guilty was assumed in fashioning the guideline. That the Wong and Leung guideline takes into account a plea of guilty is made clear in R v Haidar [2004] NSWCCA 350 at [22].
Although the discount given by reason of the repealed s 16G should not be mathematically determined, it was a significant one. The repeal of that section must effect sentences for Federal offences by simply prohibiting the Court from discounting the sentences to take into account the absence of remissions and must substantially affect a range of sentences imposed while the section operated: see R v Studenikin (2004) 60 NSWLR 1.
In the present case the sentence imposed is at the top of the range indicated in Wong and Leung notwithstanding that the applicant had a quantity of drug towards the lower end of the relevant quantity. However the applicant did not enjoy the advantage of a finding that his criminality was reduced by reason of him being a courier or a person lower in the hierarchy and therefore the range of sentences did not strictly apply to him. The applicant clearly left this country for the purpose of importing drugs on his return, a matter that to my mind significantly aggravates his criminality over the usual type of courier. This is a circumstance that was not present in Haidar where the appellant sought to obtain possession of drugs that had been sent into Australia by mail and is a reason to distinguish the lesser sentence imposed in that case for a similar amount of drug. In my opinion the sentence is a heavy one for a person with the subjective circumstances of the appellant but I am not satisfied that it was outside of the range legitimately open to the sentencing judge.
I would propose that the applicant be granted an extension of time in which to apply for leave to appeal. Leave should be granted but the appeal dismissed.
HARRISON J: I agree with Howie J.

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LAST UPDATED: 31 August 2007