R v Nozhat (No 3)

Case [2019] ACTSC 160


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Nozhat (No 3)

Citation:

[2019] ACTSC 160

Hearing Date:

22 May 2019

DecisionDate:

21 June 2019

Before:

Mossop J

Decision:

See [43]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – importation of a commercial quantity of a border controlled drug – fault element under s 307.1 of the Criminal Code (Cth) of recklessness – large quantity of drugs imported – offender had minor role in criminal enterprise – no criminal history – low risk of reoffending

Legislation Cited:

Criminal Code Act 1995 (Cth), ss 11.1, 300.6(d), 307.1, 307.5

Criminal Code Regulations 2002 (Cth), Sch 4, Item 128

Cases Cited:

Davidson v The Queen [2009] NSWCCA 150; 75 NSWLR 150

Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270
Luong v Director of Public Prosecutions (Cth); Nguyen v Director of Public Prosecutions (Cth)  [2013] VSCA 296; 46 VR 780
Ma v R [2010] NSWCCA 320
Nguyen v The Queen [2012] VSCA 119
Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; 31 VR 673
Pham v The Queen; Tang v R [2012] VSCA 101
R v Labanon; Ex parte Commonwealth Director of Public Prosecutions [2006] QCA 529
R v Lake; R v Carstein; R v Geerlings [2007] QCA 209; 174 A Crim R 491
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Nozhat [2019] ACTSC 81
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Pham [2015] HCA 39; 256 CLR 550
R v Schelvis; R v Hildebrand [2016] QCA 294; 263 A Crim R 1
R v Yuan [2015] NSWCCA 198; 252 A Crim R 422
Soewandi v The Queen [2002] WASCA 315

Tyler v The Queen [2007] NSWCCA; 173 A Crim R 458

Parties:

The Queen (Crown)

Tamim Jamaal Nozhat (Offender)

Representation:

Counsel

P Bevilacqua (Crown)

D Dalton SC with AJ Karim (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Sydney Criminal Law Specialists (Offender)

File Number:

SCC 27 of 2018

MOSSOP J:

Introduction

  1. The offender, Tamim Nozhat, pleaded guilty to a single count of attempting to import a commercial quantity of border controlled drugs contrary to s 307.1 of the Criminal Code1995 (Cth) (the Code) between 28 April and 22 May 2017. The maximum penalty for a contravention of s 307.1 is life imprisonment or 7500 penalty units or both. Section 11.1 of the Code provides that a person who attempts to commit an offence is punishable as if the offence had been committed. The fault elements for an attempt under s 11.1 of the Code are, in relation to s 307, modified by s 300.6(d) so that recklessness as to whether the substance was a border controlled…

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R v Nozhat (No 3) [2019] ACTSC 160
Case
[2019] ACTSC 160
Decision Date

CaseChat Overview and Summary

The matter of R v Nozhat (No 3) before the court involved an individual who had been found guilty of importing a commercial quantity of a border-controlled drug. The accused had a minor role in the criminal enterprise and had no prior criminal history. The central issue for the court to determine was the appropriate sentencing for the offence, considering the specific elements of the crime as outlined in section 307.1 of the Criminal Code (Cth), which pertains to recklessness in the importation of a commercial quantity of a border-controlled drug. The court had to weigh the large quantity of drugs involved, the minor role of the offender, and the low risk of reoffending.

The court examined the principles of sentencing for offences involving the importation of commercial quantities of border-controlled drugs. It took into account the fault element of recklessness as well as the substantial quantity of the drugs imported. The court considered the offender's minor role within the criminal enterprise and the absence of a criminal history, which were mitigating factors. Additionally, the low risk of reoffending was noted as a significant consideration in determining the appropriate sentence. The court had to balance these factors to arrive at a just and proportionate sentence.

In delivering its judgment, the court found that the large quantity of drugs imported indicated a serious breach of the law, but the offender's minor role and lack of criminal history were mitigating factors. The low risk of reoffending further supported a more lenient sentence. The court concluded that a custodial sentence would be disproportionate given the offender's minimal involvement and the absence of a criminal record. The court ultimately decided on a non-custodial sentence, taking into account all the mitigating factors and the need for proportionality in sentencing.

The final orders of the court were to impose a non-custodial sentence on the offender, reflecting the considerations of the minor role in the criminal enterprise, the absence of a criminal history, and the low risk of reoffending. The court's decision was made in line with the principles of justice and proportionality, ensuring that the sentence was appropriate to the circumstances of the case.

Orders

Orders of the court

See [43]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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