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Mirza v R

Mirza v R

Case [2007] NSWCCA 248 14 August 2007

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New South Wales
Court of Criminal Appeal

CITATION: Mirza v R [2007] NSWCCA 248

HEARING DATE(S): 08/08/2007

JUDGMENT DATE:
14 August 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Harrison J at 20

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Ongoing drug supply of cocaine - whether manifestly excessive.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25A(1)

CASES CITED: R v Sukkar [2006] NSWCCA 92
R v Smiraldo (2000) 112 A Crim R 47
Smith v R [2007] NSWCCA 138
Wong v The Queen (2001) 207 CLR 584
Truong v R [2006] NSWCCA 318
R v Sciberras (2006) 165 A Crim R 532
R v CBK [2002] NSWCCA 457
Mulato v R [2006] NSWCCA 282
Dang v R [2005] NSWCCA 430

PARTIES: David Ghous Mirza v Regina

FILE NUMBER(S): CCA 2007/1077

COUNSEL: N. Adams - Crown
A. Cook - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0163

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 27/10/2006

2007/1077

McCLELLAN CJ at CL
HOWIE J
HARRISON J
TUESDAY 14 AUGUST 2007

David Ghous MIRZA v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with Howie J.

2 HOWIE J: The applicant was sentenced in the District Court on a charge of ongoing supply of cocaine contrary to s 25A(1) of the Drug Misuse and Trafficking Act. The maximum penalty prescribed for that offence is relevantly 20 years imprisonment. He had pleaded guilty in the Local Court and adhered to that plea before Judge Marien (the Judge). He was sentenced on 27 October 2006 to a term of imprisonment comprising a non-parole period of 3½ years and a balance of term of 2½ years. The sentence dated from 26 October 2006 and he is eligible to be released to parole on 25 April 2010.

3 The applicant initially relied upon two grounds of appeal, but the first was abandoned at the hearing of the application. The remaining ground is that the sentence is manifestly excessive.

4 The facts can be stated briefly. The applicant was subject to a police undercover operation whereby he supplied cocaine on three occasions between the 27 July and 12 August 2005. The supplies took place in Double Bay on 28 July, 4 August and 11 August. On each occasion the same procedure was adopted. The undercover officer contacted the applicant and arranged to purchase an ounce of cocaine at a price of $7,500. The officer attended a coffee shop in a hotel and spoke to the applicant. He left and returned a short time later. He then placed a package into the officer’s handbag and removed an envelope containing the money. The first supply involved 29.8 grams of cocaine with a purity of 49 per cent, the second involved 28.7 grams with a purity of 47 per cent and the third 28.4 grams with a…

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 248
Case: [2007] NSWCCA 248
Decision Date: 14 August 2007

CaseChat Overview and Summary

The case of Mirza v R involved the respondent, Mirza, who was convicted for the ongoing supply of cocaine. Mirza appealed against the severity of his sentence, arguing it was manifestly excessive. The court had to determine if the sentence imposed was appropriate given the circumstances of the case. The primary focus of the appeal was whether the sentencing judge had erred in assessing the severity of the sentence in relation to the crime committed.

The central legal issue before the court was whether the sentence imposed on Mirza was manifestly excessive. The court had to consider the principles of sentencing and whether the judge had appropriately balanced the factors relevant to determining the appropriate punishment. This involved examining the nature of the crime, Mirza's role in the offence, his criminal history, and the impact of his actions on the community.

The court, in considering the appeal, found that the sentencing judge had given appropriate weight to the various factors involved in determining the appropriate sentence. The judge had considered Mirza's significant involvement in the ongoing supply of cocaine, his previous criminal history, and the need for general deterrence. The court concluded that the sentence was not manifestly excessive and upheld the decision of the sentencing judge. The appeal was therefore dismissed.

Orders