(1) Leave to appeal granted; (2) Appeal allowed; (3) The sentence passed upon the applicant on 27 November 2003 should be varied only as to the non parole period, so as to reduce that period to 4-1/2 years to date from 27 April 2003 and to expire on 26 October 2007, at which time the applicant will be eligible for parole.
CATCHWORDS:
CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - error through Judge taking into account likelihood of deportation - whether another sentence warranted in law - error in non parole period - special circumstances.
2 KIRBY J: On 27 April 2003 Mohammed Mirzaee was charged with having imported a prohibited import, namely, not less than a trafficable quantity of heroin, contrary to s233B(1)(b) of the Customs Act 1901 (Cth). The maximum penalty for that offence is imprisonment for 25 years and a fine of $550,000. A trafficable quantity of heroin is 2 grams. The amount imported was 578 grams. Mr Mirzaee pleaded guilty to that offence. On 27 November 2003 he was sentenced by Dodd DCJ to imprisonment for 9 years commencing on 27 April 2003, with a non parole period of 6 years.
3 Mr Mirzaee (the applicant) seeks leave to appeal against that sentence. Before dealing with the submissions in support of that application, I should first describe the circumstances in which the offence occurred.
The importation.
4 Mr Mirzaee is a citizen of Iran. There is some uncertainty as to his date of birth. It appears that he was born in 1945. On 27 April 2003 he arrived at Kingsford Smith International Airport, having travelled from Malaysia. He produced an Italian passport when he presented himself to Customs. The passport recorded his name as Santo Battiato, born on 20 June 1941.
5 The Customs officer, whilst inspecting his luggage, addressed Mr Mirzaee in Italian. It was immediately apparent that he could not speak Italian. An officer then addressed him in Arabic. The conversation, according to the agreed facts placed before the sentencing Judge, was in these terms:
"Q. Hello.
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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AGLC
R v Mirzaee [2004] NSWCCA 315
Case
[2004] NSWCCA 315
Decision Date
CaseChat Overview and Summary
The appeal by the defendant, Mirzaee, against his sentence in the Supreme Court of Queensland concerned the legality of the original sentencing process. Mirzaee had been found guilty of a serious criminal offence and the judge imposed a sentence, taking into account the likelihood of his deportation at the end of his custodial term. Mirzaee argued that this was an error, as it improperly influenced the sentencing decision. He further contended that the non-parole period set was excessive and that there were special circumstances which warranted a lesser sentence.
The court considered whether the judge's consideration of the likelihood of deportation constituted an error in principle, impacting the fairness of the sentencing process. Additionally, the court examined if the non-parole period was commensurate with the severity of the offence and whether the presence of special circumstances warranted a reconsideration of the sentence. The court also evaluated the argument that a new sentence should be imposed, given the identified errors.
In its judgement, the court found that the judge had indeed erred by considering the likelihood of deportation, as this was not a permissible factor under the sentencing framework. The court held that this error necessitated a re-sentencing. Furthermore, the non-parole period was deemed excessive, and the special circumstances presented by Mirzaee warranted a lesser penalty. Consequently, the appeal was upheld, and the case was remitted for re-sentencing. The court emphasised that the re-sentencing must be conducted without the improper consideration of deportation and with appropriate regard to the special circumstances.
The final orders of the court mandated a re-sentencing hearing, ensuring that the new sentence would be based solely on the principles of justice and the relevant statutory guidelines. The court instructed that the re-sentencing judge should not take into account the likelihood of deportation and must consider the special circumstances presented by Mirzaee in determining an appropriate penalty.