R v Al Majedi
[2024] QCA 27
•8 March 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v Al Majedi [2024] QCA 27
PARTIES:
R
v
AL MAJEDI, Zahra
(applicant)FILE NO/S:
CA No 181 of 2023
DC No 213 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Beenleigh – Date of Sentence: 8 September 2023 (Gardiner DCJ)
DELIVERED ON:
8 March 2024
DELIVERED AT:
Brisbane
HEARING DATE:
23 February 2024
JUDGES:
Morrison and Dalton JJA and Fraser AJA
ORDERS:
1. The application for leave to appeal against sentence is allowed.
2. The sentence is set aside.
3. The applicant be discharged without a conviction upon her giving recognisance that she will be of good behaviour for six months, during which time the security bond already given should remain in place.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant’s father stored tobacco in the unit in which the applicant lived – where the applicant pleaded guilty to possessing tobacco in circumstances where it was reasonable to suspect that excise duty had not been paid (s 308-10 Taxation Administration Act 1953 (Cth)) – where the unpaid excise was close to $1 million – where the applicant was sentenced to two months imprisonment and released immediately upon giving a recognisance in the sum of $500, and to be of good behaviour for a period of 12 months – where a conviction was recorded – whether the sentence was manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant is studying nursing and recording a conviction could pose difficulties to her registration as a nurse and thus, prospects of obtaining steady employment – where the applicant had a life marked by trauma, adversity and abuse – where the applicant was subject to paternal control – whether the two-stage test under s 19B(1) of the Crimes Act 1914 (Cth) was satisfied – where the sentencing judge considered a s 19B bond, but did not appear to consider whether a sentence of probation, without a conviction being recorded, would be sufficient punishment – where s 17A(1) of the Crimes Act 1914 (Cth) requires a court to be satisfied that all other available sentences are inappropriate before imposing a sentence of imprisonment – whether the applicant’s case involved exceptional circumstances
Crimes Act 1914 (Cth), s 17A(1), s 19B(1), s 20(1)(a), s 20AB
Taxation Administration Act 1953 (Cth), s 308-10Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332, cited
Matta v ACCC [2000] FCA 729, cited
R v Zhang (2017) 256 A Crim R 113; [2017] SASCFC 5, distinguishedCOUNSEL:
A S McDougall for the applicant
S J Bain for the respondentSOLICITORS:
Salt Legal for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent
MORRISON JA: I agree with Fraser AJA.
DALTON JA: This is an application for leave to appeal against sentence on the grounds that the sentence imposed below was manifestly excessive.[1] The applicant was sentenced under the Commonwealth sentencing regime to two months imprisonment; she was released immediately upon giving a recognisance in the sum of $500, and to be of good behaviour for a period of 12 months. Although the sentence was short and involved no actual time to be served, a conviction was recorded.
[1]There was also a ground of appeal relating to parity, but that was not pursued.
The Applicant’s Antecedents
The applicant and her brother came to Australia as refugees, together with their parents, in the aftermath of the Gulf War. People smugglers took them first to Malaysia and then to Indonesia. From Indonesia they came by boat to Christmas Island. The applicant was nine years old and the journey was traumatic. The family’s refugee status having been accepted, they settled in Brisbane. Notwithstanding that the applicant spoke no English upon her arrival in Australia, she performed very well academically at school and had excellent grades at the end of Year 12. At the age of 19 she was sent back to Iran by her father because he had arranged a marriage for her there. It is inexplicable on the material before the Court how such a decision could have been made, having regard to the family’s status as refugees from Iran. In any event, the applicant remained in Iran for seven years where she was subject to significant domestic violence from her husband. Paternal control was such that she was forced to seek her father’s permission before divorcing to escape this marriage. When she did obtain a divorce, she returned to Australia with two children. She lived in a flat, worked part‑time, studied nursing at Griffith University part‑time and, with her mother’s assistance, cared for her two children.
The Offending
The applicant’s father stored an enormous amount of tobacco in the unit in which she and her children lived. After her home was raided by police she was charged with possessing tobacco in circumstances where it was reasonable to suspect that excise duty had not been paid on it – s 308-10 Taxation Administration Act 1953 (Cth). There were just over 722 kilograms of tobacco stored in the flat, and the excise which had not been paid on it was close to $1 million.
There was more tobacco stored in other places. The applicant’s father accepted that it all belonged to him. He was charged with offences, but died before the criminal proceedings against him were determined. The applicant’s brother was also charged with offending similar to hers, although, it seems to have been accepted by everyone, of a more contumelious kind.
The applicant co-operated with police and entered a very early plea. It was accepted that the applicant was not liable to pay excise on the tobacco stored in her home. It was accepted that she played no role in selling, distributing, or otherwise dealing with the tobacco. The applicant was 27 at the time of the offence charged. She had no criminal record. Her academic record for the degree of nursing at Griffith University was in evidence. She had a grade point average of 5.57. There was information that the applicant lived as she was directed to do by her father. Her return to Iran at age 19 to submit to an arranged marriage, and much more recently her needing to seek her father’s permission to divorce her violent husband, were examples. The sentencing took place on the basis that in storing the tobacco in her home, the applicant was obeying her father.
Lawyers for the applicant failed to lead any proper evidence as to the effect a conviction was likely to have upon the applicant’s registration as a nurse. It seemed to be accepted on this appeal that it would be in the discretion of the nursing registration board as to whether or not it prevented her being so registered. In what I view as another oversight, there was no information put to the sentencing judge as to who leased the unit in which the applicant and her children lived, and who paid the rent for that unit.
The Law
The maximum penalty for the offence charged was five years imprisonment, or a fine of around $5 million. It was accepted that there were no comparable sentences; the offence is relatively new.
Section 17A(1) of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the Court, “having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case”.
Central to the applicant’s case before the sentencing judge and on this appeal is s 19B(1) of the Crimes Act which provides:
“(1)Where
(a)a person is charged before a court with a federal offence …
(b)the court is satisfied, in respect of that charge … that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)dismiss the charge or charges in respect of which the court is so satisfied; or
(d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence …
(iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.”
The Sentencing Hearing
The applicant and her brother were sentenced at the same time. The same barrister and firm of solicitors appeared for both of them. These same lawyers appeared for the applicant on this appeal.
The Crown filed written submissions in which it drew attention to the facts of the offending; submitted that the Court would be satisfied that a sentence of imprisonment was the only appropriate sentence, and that an order discharging the defendant without conviction under s 19B was not reasonably open. During the hearing the sentencing judge asked the Crown representative, “Are you submitting that I’d be erring if I dealt with her by way of a 19B bond?” The prosecutor then replied, “Yes. Your Honour, by way of a 19B bond, yes. But there’s obviously a range of sentences – sentencing options available, other than imprisonment or a 19B bond. For example, a community service order under 20AB, picking up the state legislation, a fine, or a bond under section 20(1)(a), with which conditions can be attached to.” Then followed an exchange between the sentencing judge and the Crown’s representative about options short of imprisonment. In the course of that discussion the Judge asked, “you’ve told me already that you think – you submit that a 19B bond disposition would be an error. … What about these other options? The 21 subsection (1) subsection (a), the 20AB.” – t 1-12. This was a reference to the option of a recognisance with conviction, and the option of community service with conviction. The representative for the Crown asked for an opportunity to take instructions and the matter was stood down.
Upon resumption, the representative for the Crown made the following submission:
“… I’ve already indicated that it’s the Crown’s position that you could be satisfied that 17A is met. That is having regard to the maximum penalty and the seriousness with which parliament has considered these offences. But in relation to – in my submission, if your Honour was to sentence the defendant to a bond with or without conviction – either under section 19B or section 20(1)(a), in my submission that would be in error. However there – in relation to the option of community service I could not submit to your Honour that that would be an error.” – t 1-13.
The representative for the Crown then made a short submission as to s 19B, saying that for it to apply, “It has to really be an exceptional case”. There was no discussion of a s 19B(1) order with conditions in addition to a bond, such as probation.
Counsel for the applicant submitted that she should receive a s 19B discharge, relying upon the facts which I have outlined at [3] above. In relation to the applicant’s brother, the submission was that there should be a probation order under s 19B without a conviction being recorded.
Towards the end of the sentencing hearing, the sentencing judge indicated his view to counsel appearing for both defendants that “The massive quantity of tobacco seems to me to … suggest a section 19B bond should not be imposed. … Notwithstanding all of the mitigation that you’ve been able to muster. I mean it’s very clear that section 19B is to be used sparingly by the courts in cases that are unusual or exceptional.” – t 1-26. The sentencing judge said that considerations of general deterrence and the quantity of tobacco involved meant that the offending should be punished by a period of imprisonment with immediate release and a conviction. There is no distinction made between the defendants in these remarks, even though the applicant’s offending was less than her brother’s.
Counsel replied that the applicant, in particular, fell within s 19B because she was doing what her father said and that did constitute an exceptional circumstance. The following exchange then took place:
“Could I ask, if your Honour is against me, which your Honour obviously is on that, and your Honour is considering a community service order, I would ask your Honour not to because she’s got two young kids, take them to school. She is – and studying full-time. Seems to me that that would be an impractical sentence.
HIS HONOUR: The only option then would be a term of imprisonment that she’s released forthwith.” – t 1-26 (my underlining).
Counsel for the defendant did not demur and the judge proceeded to impose his sentence.
The Sentencing Remarks
In his sentencing remarks the Judge referred to what he called the applicant’s “unfortunate background”, including escaping from Iran when she was nine. He referred to her being influenced by paternal authority and cited her returning to Iran for an arranged marriage. He did not know that she required her father’s permission to divorce her abusive husband because the applicant’s counsel did not tell him. We were told on appeal, by consent. That was another example of exercise of paternal authority in a very important matter but, significantly, much closer in time to the offending.
The sentencing judge discussed s 19B and referred to judicial descriptions of orders made under that section as rare, unusual, special or singular.[2] The sentencing judge accepted that there had been sufficient raised by the applicant to trigger “consideration of a s 19B bond” – t 1-5, (my underlining). Nonetheless, he did not feel that the case before him was rare, special or singular. He referred to the amount of tobacco stored in the applicant’s home; the maximum penalty for the offence, and said, “I am satisfied that the seriousness of the offence cannot be dismissed as mere poor judgment” – t 1-6. He imposed the suspended sentence of imprisonment detailed above.
[2]For example, Matta v ACCC [2000] FCA 729, [3], per French J.
The sentencing judge then went on to sentence the applicant’s brother to a slightly longer term of imprisonment which was also wholly suspended. At the end of his remarks, counsel for the defendants, in effect, asked the Judge to give reasons for rejecting his submission that a probation order was appropriate to the applicant’s brother. He drew to the sentencing judge’s attention that the sentencing judge in his remarks had referred only to a defence submission about a bond. The sentencing judge accepted that defence counsel had made a submission as to probation and said, “But it was attached to the 19B bond. … I am of the view, as I have said numerous times, that given the maximum penalty and the extent of the possession and the other matters referred to, that it would be an inappropriate sentence.” – t 1-8.
Analysis
The question is whether the sentence imposed on the applicant below was manifestly excessive in the sense that it was plainly unjust to record a conviction and impose a sentence of imprisonment, in all the circumstances of this case.[3] It is the nature of an appeal on the basis of manifest excess that there will not be identification of a specific error made below. Nonetheless, there were a number of unsatisfactory aspects to the sentencing of the applicant. First, there was never any discussion of whether a sentence of probation, without a conviction being recorded, would have been sufficient punishment for the applicant. Section 17A required this to be considered. Under s 19B(1) probation for a period of up to three years can be imposed. This cannot be regarded as a minimal punishment or equal in leniency to the imposition of a good behaviour bond. It provides a meaningful option where there are reasons to try to avoid recording a conviction.
[3]House v The King (1936) 55 CLR 499, 505.
Unaccountably, where during the hearing the sentencing judge expressed a view that a s 19B bond was insufficient punishment, counsel for the applicant did not ask the judge to consider a probation order made under s 19B so that a conviction would not be recorded. The applicant was studying to become a nurse. Her counsel did not pay proper attention to informing the Judge (or even this Court) of the difficulties a conviction might pose to her registration and employment. Submissions were not made drawing the link between securing good, steady employment as a nurse, and rehabilitation, one of the core objects of sentencing. In this case, having regard to the lack of criminal mentality on the part of the applicant, her prospects of rehabilitation might be viewed as much enhanced by the chance to be financially independent and thus in a position to resist familial pressure to re‑offend. While the sentencing judge said he was willing to take into account that a conviction might make the applicant’s employment or registration vulnerable, the option of probation under s 19B, without a conviction, was never put forward in relation to the applicant.
Also inexplicable was the applicant’s counsel’s submission to the sentencing judge that a sentence of community service would be impractical for his client. When the judge replied that in that circumstance the only appropriate sentence would be one of imprisonment, the applicant’s counsel did not demur. Extraordinarily, the same counsel, appearing on the appeal before us, said that he had no instructions from his client to tell the sentencing judge that she would prefer a sentence of imprisonment to a sentence of community service. Under the Commonwealth sentencing regime, a conviction must be imposed as part of any order for community service. Nonetheless, a future employer or registration board would be likely to construe an order for community service as indicating less serious offending than an order for imprisonment.
Lastly, while the sentencing judge referred to the case law concerning s 19B, in my opinion, he failed to recognise that what he had before him was a rare, singular, or exceptional case. Through no fault of her own, the applicant had a life marked by trauma, adversity and abuse. These were matters to which regard should have been had under s 19B(1)(b)(i) and (iii) under what has been described as the first stage of analysis required by s 19B(1).[4] Despite all this, the applicant had persisted in pursuing positive, useful and lawful goals. She attained good academic results at school and good academic results in a university course which would qualify her to earn a decent income in a respected vocation. Emphasis had been placed upon her parents’ poverty as an explanation, or partial explanation, for her father’s involvement in illegal tobacco trafficking. The applicant was striving to put herself and her children in a position where they would be independent of her father, and financially secure so that she was not subject to the sort of financial pressures which apparently contributed to her father’s offending. A conviction would be an impediment to her establishing a decent way of life for herself and her children. This was a consideration intimately related to rehabilitation and also one which showed a strong, pro-social character.
[4]Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568, 572, [10], per Spigelman CJ.
As well, the circumstances of the offending did not demonstrate any significant mens rea on the part of the applicant. The tobacco stored in the applicant’s home belonged to her father. It was stored there because he demanded it. She did what she was told by her father, as she habitually did, including in such important matters, which might be considered significantly adverse to her, as an arranged marriage, return to Iran, and divorce. The judge’s remark that the offence could not be dismissed as “mere poor judgment” misses the point. The reality was that the governing judgment was that of her father. In much the same way, cases such as R v Zhang,[5] which emphasise the need for general deterrence in relation to tobacco smuggling, are not entirely apposite to the applicant’s case. It was not her choice to be involved in the illegal tobacco trade. Her case is not a good vehicle for emphasising ideas of general deterrence.
[5][2017] SASCFC 5.
These were compelling factors to be considered in the second stage analysis under s 19B(1). They were factors which meant it was inexpedient to inflict punishment upon her except in terms of that section.
In the circumstances I would allow the application for leave to appeal against sentence and set the sentence aside.
The question arises as to what the new sentence ought to be. For reasons already explained, my view is that the applicant ought to be dealt with pursuant to s 19B. It would have been within the sound exercise of the sentencing judge’s discretion to have imposed a probation order. The situation now is complicated by the fact that the applicant has given a security bond in the sum of $500 which has been in place for almost six months, and almost half the period of good behaviour prescribed by the sentencing judge has passed. I would discharge the applicant without a conviction upon her giving a recognisance that she will be of good behaviour for six months, during which time the security bond already given should remain in place. Should the Commonwealth require these orders to be embodied in a particular form, it should provide that form to the Registry within 48 hours of publication of this judgment.
FRASER AJA: I have had the advantage of reading in draft the reasons for judgment of Dalton JA. I would respectfully adopt as my reasons for agreeing with the orders proposed by her Honour what appears in paragraphs 2 – 6, 8 – 20, 21 (first sentence) and 24 – 28 of Dalton JA’s reasons.
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