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R v Haidar

R v Haidar

Case [2004] NSWCCA 350 15 October 2004

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CITATION: Regina v Haidar [2004] NSWCCA 350

HEARING DATE(S): 7/10/04

JUDGMENT DATE:
15 October 2004

JUDGMENT OF: McClellan AJA at 1; Studdert J at 2; James J at 3

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Sentencing - drug offence - guilty plea to attempted importation - whether sentence manifestly excessive having regard to quantity of drug attempt rather than actual offence - relevance of motive for commission of offence to pay off debts owed to supplier for own drug habit

LEGISLATION CITED: Crimes Act (Commonwealth)
Customs Act (Commonwealth)

CASES CITED: R v Bernath [1997] 1 VR 271
R v Henry (1999) 46 NSWLR 346
R v Irusta (2000) 117 A Crim R 6
R v Kevenaar [2004] NSWCCA 210
R v Mas Rivadavia [2004] NSWCCA 284
R v Reardon [2002] NSWCCA 203
R v Schofield (2003) 138 A Crim R 19
R v Selim; unreported NSWCCA 19/05/1998
R v Speer [2004] NSWCCA 118
R v Studenikin [2004] NSWCCA 164
R v Taru [2002] NSWCCA 391
R v Tulloh; unreported NSWCCA 16/09/1993
R v Wong; R v Leung (1999) 48 NSWLR 340
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

PARTIES :
Regina v George Haidar

FILE NUMBER(S): CCA 2004/2065

COUNSEL: P Byrne SC - Applicant
Ms M M Cinque - Respondent

SOLICITORS: Galloways - Applicant
Commonwealth Director of Public Prosecutions - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0582

LOWER COURT
JUDICIAL OFFICER : Solomon DCJ

2004/2065

McCLELLAN AJA
STUDDERT J
JAMES J
15 October 2004

REGINA v George HAIDAR

Judgment

1 McCLELLAN J : I agree with James J.

2 STUDDERT J : I agree with James J

3 JAMES J : George Haidar applied for leave to appeal against a sentence imposed on him in the District Court on 1 September 2003 by his Honour Judge Solomon for an offence under s 233B(1)(c) and s 237 of the Customs Act (“the Act”) of attempting to possess without reasonable excuse prohibited drugs to which s 233B applied, which had been imported into Australia in contravention of the Act.

4 The quantity of cocaine the applicant attempted to possess was 391.7 grams of pure cocaine, which was not less than the trafficable quantity of cocaine specified in Sch 6 to the Customs Act . By virtue of s 235(2)(d) of the Act the maximum penalty was imprisonment for twenty-five years and/or a fine not exceeding $500,000.

5 The sentence imposed by Judge Solomon was a sentence of imprisonment for seven years commencing on 30 January 2003 with a non-parole period of four and a half years. The 30 January 2003 was the date on which the applicant had been arrested and from which he had remained in custody. The applicant had pleaded guilty in the Local Court and had been committed for sentence to the District Court.

6 The applicant’s notice of application for leave to appeal against sentence was not filed in time but no point was taken by the Crown and…

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 R v Haidar

Details

AGLC: R v Haidar [2004] NSWCCA 350
Case: [2004] NSWCCA 350
Decision Date: 15 October 2004

CaseChat Overview and Summary

The case of R v Haidar involved the defendant, Haidar, who was charged with an attempted drug importation offence. Haidar pleaded guilty to the offence, which involved an attempt to import a significant quantity of drugs into Australia. The court was tasked with determining an appropriate sentence, considering the mitigating factors presented by Haidar, including his motive for committing the crime to pay off debts related to his drug habit. The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the quantity of drugs attempted to be imported, rather than the actual offence committed. The appeal centred on the weight given to Haidar's motive and the proportionality of the sentence in light of his plea and the specific circumstances of his case.

The court examined the sentencing principles applicable to drug offences and the role of motive in sentencing. It considered whether the sentence was manifestly excessive by comparing it to sentences imposed in similar cases. The court also assessed whether the trial judge had appropriately balanced Haidar's motive and the quantity of drugs involved against the need for general deterrence and denunciation. The appeal court found that while Haidar's motive was a relevant mitigating factor, it did not sufficiently outweigh the seriousness of the attempted importation and the need for appropriate punishment. The appeal was dismissed, with the court upholding the trial judge's sentence as proportionate and appropriate in the circumstances.

The court's decision emphasised the importance of considering both the nature of the offence and the personal circumstances of the offender when determining an appropriate sentence. While mitigating factors such as Haidar's motive could be taken into account, they did not override the need to ensure that the sentence reflected the gravity of the offence and served the purposes of general deterrence and denunciation. The final orders of the court upheld the sentence imposed by the trial judge, reflecting a balanced approach to sentencing that considered both the specific circumstances of the offender and the broader societal interests in punishing criminal conduct.

Orders