R v Mirzaee

[2004] NSWCCA 315

CITATION:	R v Mirzaee [2004] NSWCCA 315
HEARING DATE(S):	10/09/04
JUDGMENT DATE:	17 September 2004
JUDGMENT OF:	Sperling J at 1; Kirby J at 2; Newman AJ at 27
DECISION:	(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.
LEGISLATION CITED:	Customs Act 1901 (Cth) Criminal Appeal Act 1912
CASES CITED:	R v Mas Rivadavia [2004] NSWCCA 284 The Queen v Shrestha (1991) 173 CLR 48 R v Boulghourgian [2001] NSWCCA 460 R v Simpson (2001) 53 NSWLR 704 R v Klein (2001) 121 A Crim R 90
PARTIES :	Regina Mohammed Mirzaee
FILE NUMBER(S):	CCA 60240/04 (2004/1878 CCAP)
COUNSEL:	Ms M Cinque (Crown - Cth) R Hulme SC (Appl)
SOLICITORS:	D Kapeleris (Crown - Cth) S O'Connor - LAC (Appl)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0652
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

2004/1878 CCAP (60240/04)

SPERLING J
KIRBY J
NEWMAN AJ

Friday 17 September 2004

REGINA v Mohammed MIRZAEE

Judgment

1 SPERLING J: I agree with Kirby J.

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.
A. Hello.
Q. Do you speak Arabic?
A. Iranian and Arabic.
Q. OK, you have an Italian passport, do you speak Italian?
A. No.
Q. Where did you get your passport from?
A. From Iran.
Q. Where in Iran?
A. An office in Iran.
Q. What year were you born in?
A. 1943.
Q. This is not your passport, it says 1941 in here, where did you get it from?
A. I bought it from someone for $1,000 US.
Q. Who did you pay?
A. Someone in Iran."

6 Mr Mirzaee's luggage was then closely examined. A false compartment was discovered in one bag. A package containing white powder, later found to be heroin, was concealed within the false compartment. The package weighed 1,076 grams. The pure heroin weighed 578 grams. Whilst it was said that the street value was approximately $2 million, the calculation of that figure was challenged on this appeal (cf R v Mas Rivadavia [2004] NSWCCA 284 at para 14) and, in any event, the wholesale value was said to be considerably less.

7 His Honour determined that Mr Mirzaee should be regarded as a courier. He said this: (ROS 2/3)

"The submission has been made on your behalf that in fact you are not more than a courier, that you were the dupe of others in carrying out the importation, and that that is established by the clumsiness of your presentation at the airport, and in particular your presentation with a false Italian passport when you could not speak Italian, or understand Italian at all, combined with the fact, as it apparently was, that you had no money on you.
For what it is worth I am prepared to find that you did not originate the idea of the importation, and that you were being used by others and that therefore in that sense you were a courier. However, the Courts have also said that being a courier does not necessarily entail a lesser sentence, the role of courier obviously being necessary for the importation of prohibited drugs to be carried out, and the role of courier deserving severe punishment."

8 Counsel for Mr Mirzaee stated that her client understood that he was carrying drugs into Australia, but did not appreciate that the drug was heroin.

9 Before dealing with the submissions on sentence, it is convenient to set out the subjective case presented on behalf of the applicant.

The subjective case.

10 Mr Mirzaee is now almost 60 years old. He is a married man with three children whose ages (as at October 2003) were given as 15, 14 and 13 years. At the time of the offence he was unemployed. He had no previous convictions. He formerly owned a clothing store and had been able to support not only his own family but a number of his siblings. However, in 2000 he was forced to close the business because of financial difficulties. In the years that followed he had struggled to support his family. He was, in short, not driven by greed, although plainly his financial hardship is not an excuse for the crime he committed.

11 His Honour accepted that the plea of guilty was entered at the earliest opportunity. A discount of 25 percent was appropriate. The plea could, to a limited extent, be taken as a sign of contrition.

12 Mr Mirzaee suffers from a heart condition, which was described by his Honour in these terms: (ROS 4)

"You were under the care of a doctor in Teheran. You have been seen by the medical officers of the Corrections Health Service whilst in custody awaiting sentence. An ECG confirmed the previous myocardial infarction and you have been placed on medication. Whilst your condition is apparently stable a myocardial perfusion study carried out on 3 September 2003 showed several areas of ischaemia, that is reduced blood flow to areas of your heart muscle. The left ventricle was dilated and there was severe hypokinesis in some segments of the heart, that is decreased pumping action. The Corrections Health Service indicates that you will continue to be monitored by medical and nursing staff whilst in custody. There is no indication before me that your condition requires treatment of any kind that is not available within the New South Wales prison system."

13 In an affidavit filed in these proceedings, to be taken into account in the event of a need to resentence Mr Mirzaee, the applicant described his present situation. He continues to suffer chest pain, which is relieved by tablets which have been prescribed. He has, from time to time, been admitted to hospital. He avoids strenuous exertion. Recent tests have also revealed anaemia, which is being investigated, as are other complaints.

14 His Honour recognised that Mr Mirzaee's isolation would make his incarceration the more difficult. He said this: (ROS 5)

"I take into account that you will find your time in the New South Wales prison system difficult on account of your Iranian origins, both in terms of cultural differences and your inability to speak English. And on account of the fact that you are likely to suffer emotionally by being separated from your family in particular and also from your familiar way of life in Iran."

15 In the affidavit of Mr Mirzaee he states that, whilst in Bathurst gaol, he was able to work (and incidentally received favourable reports in respect of that work). The work had the advantage that he was able to save $10 a week which he then used to telephone his family. He has since been transferred to Long Bay gaol. No work is available to him at that institution. He has therefore not been able to telephone his family.

16 He was present throughout the argument of the appeal, assisted by an interpreter. In the same affidavit he made the following statement:

"4. I am not able to participate in any programs to do with psychology or with alcohol and other drug programs as they are conducted in English."

17 In fixing an appropriate sentence, his Honour stated that he had taken into account the applicant's age, his state of health, and his isolation from his family. He also recognised that, by reason of his health and age, "it was highly unlikely that he would reoffend". His Honour remarked that the offence was, nonetheless, one in which general deterrence was of the utmost importance.

Grounds of appeal.

18 The applicant has sought to argue two grounds of appeal. It is convenient to deal with both grounds together. They are:

Ground 1: The learned sentencing Judge erred by having regard to the prospect of deportation in determining the length of the non-parole period.

Ground 2: The sentence is manifestly excessive.

19 The first ground is directed to the following remarks by his Honour: (ROS 5/6)

"It has been urged upon me that I should adjust the normal ratio of the non-parole period to head sentence from the usual sixty percent to sixty-six point six percent, so that the ratio is less in your case on account of your age and your state of health. In my view, taking into account all relevant factors, there is no particular need to adjust that ratio, bearing in mind that I must impose, as a non-parole period, a sentence which as a minimum is appropriate in all the circumstances. Taking into account the fact that this is a first offence, and taking into account also your age and your state of health, I am of the view that it is highly unlikely that you will re-offend again. I also bear in mind that it is highly likely that upon release from prison you will be deported and on account of those factors in my view it is both unnecessary and undesirable to provide for a longer than usual period of supervision on parole ."
(emphasis added)

20 The applicant contended, and the Crown acknowledged, that it was erroneous to take account of the prospect of deportation in determining the non parole period. In The Queen v Shrestha (1991) 173 CLR 48, Deane, Dawson and Toohey JJ said this: (at 71)

"This country has a direct and significant interest in the well-being and rehabilitation of all who are detained within its gaols, whether or not their origins, ties or future prospects lie in this or in some other country. It also has a responsibility, both moral and under international treaty, to treat all who are subjected to criminal proceedings in its courts or imprisonment in its gaols humanely and without discrimination based on national or ethnic origins. To deny foreign offenders of the kind in question the opportunity for the amelioration of their situation and the incentive for reform and rehabilitation which the parole system offers is not to differentiate by reference to degrees of criminality or prospects of rehabilitation. It is to discriminate against prisoners of that class because of their origins, their place of residence and their family ties." (footnotes omitted)

21 Where an offender would otherwise qualify for a finding of special circumstances, because it is recognised that he or she would benefit from a longer than usual period of supervision, then such a finding should be made. The sentencing Judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non parole period, and that supervision therefore would not be provided in Australia.

22 There being error, the focus during the course of argument shifted to the requirement in s6(3) of the Criminal Appeal Act 1912, namely, whether some other sentence was warranted in law and should have been passed. Attention was drawn to the words of Spigelman CJ in R v Boulghourgian [2001] NSWCCA 460: (at para 34)

"[34] Even though there is error detected in the reasoning process of a trial judge, s6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v Astill (No 2) (1992) 64 A Crim R 289 per Sully J at 303 and Lee AJ at 304."
(see also R v Simpson (2001) 53 NSWLR 704)

23 The argument advanced by the Crown under s6(3) of the Criminal Appeal Act raised many of the same issues canvassed by the applicant in respect of ground 2. The Crown asserted that, in the context of this offence, none of the subjective matters warranted a lesser sentence. Reference was made to R v Klein (2001) 121 A Crim R 90, where Wood CJ at CL said this: (at 95)

"Sentencing judges must not lose sight of the following principles when sentencing for such offences:
(a) Prior good character and relative youth are of reduced significance since they are matters which the organisers of the heroin and cocaine trade use to their advantage, in order to avoid attracting suspicion in relation to those who carry those substances across immigration and customs barriers upon their behalf. (See Leroy (1984) 2 NSWLR 441 at 446/7, and Lawson, Wu and Thapa (1997) 98 A Crim R 463.)
(b) The subjective circumstances of an offender standing for sentence need to be kept in context, and not given such an undue weight as result in a sentence that is disproportionate to the objective seriousness of the criminality involved. (See Dodd (1991) 57 A Crim R 349 at 354; Stead [1999] NSWCCA 41 and Zayat (NSW CCA, 22 November 1996.)
(c) For foreign offenders, the fact of their separation from their homeland and family is of very little relevance. Those who choose to run the risk of bringing drugs into this country must accept the consequences of being imprisoned here, with all the disadvantages entailed. (See Ferrer-Esis (1991) 55 A Crim R 231 at 239 and Chu (NSW CCA, 16 October 1998.)
(f) There is no reason to extend particular leniency to those who perform the task of personally carrying narcotics into the country, because without them the trade in those substances will collapse. (See Laurentiu and Becheru (1992) 63 A Crim R 402, Budiman (1998) 102 A Crim R 411, and Behar (NSW CCA 14 October 1998.)"

24 Here general deterrence was an important consideration. I am not persuaded that the term imposed, namely, imprisonment for 9 years, was manifestly excessive. However, I am persuaded that the error that has been acknowledged, namely, taking deportation into account, did affect the non parole period which was fixed, such that the Court should intervene on that aspect of the sentence.

25 The applicant's age, his state of health, his isolation and the fact that it was his first time in custody, also indicate that the non parole period should be adjusted by reason of special circumstances.

Orders.

26 The orders I propose are as follows:

1. That leave to appeal should be granted.

2. That the appeal be allowed.

3. That 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.

27 NEWMAN AJ: I agree.

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Last Modified: 09/20/2004