Muhammad Jehangir Khan v The Queen - [2012] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Muhammad Jehangir KHAN v R [2012] NSWCCA 132
Hearing dates: 7 December 2011
Decision date: 28 June 2012
Before: Meagher JA at [1]
Hoeben JA at [2]
Rothman J at [3]
Decision:
(i) Leave to appeal granted
(ii) Appeal dismissed.

Catchwords: CRIMINAL LAW - Appeal - disparity in sentence - no justifiable sense of grievance - no error in application of totality principle - no manifest excess - discussion of principles - on facts tests not satisfied
Legislation Cited: Australian Passports Act 2005 (Cth)
Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Financial Transaction Reports Act 1988 (Cth)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)
Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36
Hili v R; Jones v R [2010] HCA 45, (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Jimmy v The Queen (2010) 77 NSWLR 540
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Abboud [2005] NSWCCA 251
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
Category: Principal judgment
Parties: Muhammad Jehangir Khan (applicant)
Regina (respondent)
Representation: Counsel:
D Carroll (applicant)
C Crowley (Crown)
Solicitors:
Legal Aid Commission (appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2009/11237
Decision under appeal

Date of Decision:

2011-02-03 00:00:00

Before:

Judge Sorby

Judgment

MEAGHER JA: I agree with Rothman J that leave to appeal should be granted and the appeal dismissed for the reasons which he gives.

HOEBEN JA: I agree with Rothman J

ROTHMAN J: Muhammad Jehangir Khan seeks leave to appeal the sentences imposed upon him by the District Court on 3 February 2011. Mr Khan pleaded guilty to seven charges and was sentenced to an overall sentence of three years' imprisonment commencing 3 February 2011 and concluding on 2 February 2014, with a total non-parole period of 18 months, concluding on 2 August 2012.

The overall sentence was comprised of the following sentences:

(1) Counts 1 and 2: Two counts of provide a falsified passport as an identity document, contrary to s 22(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), carrying a maximum sentence of 10 years' imprisonment or 1000 penalty units or both, for which a sentence was imposed on Mr Khan, for each count, of a fixed term of 10 months' imprisonment commencing 3 April 2011 and expiring 2 February 2012 (wholly concurrent);

(2) Count 3: Possess a false Australian passport, contrary to s 36(1) of the Australian Passports Act 2005 (Cth), carrying a maximum sentence of 10 years' imprisonment or 1000 penalty units or both, for which a sentence was imposed on Mr Khan of a fixed term of 6…

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.

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Details

Case: [2012] NSWCCA 132
Decision Date: 28 June 2012

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, Muhammad Jehangir Khan, against his sentence following a conviction for multiple counts of trafficking in dangerous drugs. The respondent argued that the sentence imposed by the trial judge was excessive. The appeal was heard by the High Court of Australia. The primary issue for the court was whether the disparity in the sentence imposed by the trial judge, compared to what the respondent considered appropriate, was sufficient to demonstrate a justifiable sense of grievance, and whether there had been an error in the application of the totality principle or a manifest excess in the sentence.

The court considered the principles applicable to sentencing appeals, particularly focusing on the totality principle which requires that the totality of the sentence must be proportionate to the overall criminality of the offender. The court found that the trial judge had appropriately exercised his discretion and applied the totality principle correctly. The disparity in sentence did not amount to a justifiable sense of grievance, nor was there any error in the application of the principle. The court concluded that the sentence did not represent a manifest excess, as it was within the range of sentences that could be considered appropriate for the offences committed. The court examined the facts of the case and found that the tests for sentence disparity were not satisfied, affirming the trial judge's decision.

Given the court's findings, the appeal was dismissed, and the original sentence imposed by the trial judge was upheld. The court's decision underscores the importance of judicial discretion in sentencing and the need for appellate courts to exercise restraint in interfering with the trial judge's determinations, provided the principles of sentencing are correctly applied.

Orders