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R v Shah (No 2)

R v Shah (No 2)

Case [2022] NSWDC 500 16 September 2022

Drug Offences

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Shah (No 2) [2022] NSWDC 500
Hearing dates: 22 July 2022
Date of orders: 16 September 2022
Decision date: 16 September 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [154]-[156].

Catchwords:
CRIME — Drug offences — Commonwealth sentence — Attempt to possess a marketable quantity of a border controlled drug — Cocaine — Hardship to family

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323
Eiryo v R [2015] NSWCCA 16
Laurentiu & Becheru (1992) 63 A Crime R 40
Le Cerf (1978) 13 SASR 237
Lopes Duque v The Queen [2019] VSCA 212
Ojielumhen v R [2014] ACTCA 28
Omorogbe v R [2013] NSWCCA 201
R v Chew [2022] NSWDC 325
R v Freeman [2019] QCA 150
R v Lau [2020] NSWDC 843
R v Legros [2020] NSWDC 733
R v Muanchukingkan (1990) 52 A Crime R 354
R v Nguyen [2019] NSWDC 174
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Pham (2010) 205 A Crim R 106
R v Pink [2021] NSWDC 47
R v Robson-Bolan [2022] NSWCCA 1
R v Villalobos [2018] VCC 1334
Totaan [2022] NSWCCA 75
Veale v R [2022] NSWCCA 154
Wong v The Queen [2001] HCA 84; 207 CLR 584

Category: Sentence
Parties: Crown
Abdul Malik Shah (Offender)
Representation:
Counsel:
Mr B Stevens (Crown)
Ms S Orman-Hales (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2019/00162030
Publication restriction: Nil

index

OFFENCE

FACTUAL BACKGROUND

ARREST AND INTERVIEW

SUBJECTIVE CIRCUMSTANCES

PSYCHOLOGICAL ASSESSMENT

COMPARATIVE CASES

CROWN SUBMISSIONS

DEFENCE SUBMISSIONS

CONSIDERATION

DETERMINATION

sentence

OFFENCE

The offender, Abdul Malik Shah was found guilty on 28 April 2022 in respect of one count on indictment of attempting to possess a marketable quantity of a border controlled drug, namely cocaine. The quantity of cocaine imported was a nett weight of 400.3 grams which had a purity of 83%. This relevantly led to a calculated pure weight of cocaine of 332.2 grams.
Such an offence contravenes s 307.6(1) and s 11.1(1) of the Criminal Code Act 1995 (Cth).
The maximum penalty prescribed is imprisonment for 25 years and/or a pecuniary penalty of up to 5,000 penalty points. This translates to a maximum pecuniary penalty of $1,050,000.

FACTUAL BACKGROUND

Two almost identical packages were posted from South Africa to Australia in late April 2019. They were sent by separate shippers and consequently arrived in Australia 2 weeks apart. The first package, described as the “uncharged consignment” was addressed to:

Abdul Sheh
4/1089 – 1101 Canterbury Road
Wiley Park, NSW 2195
Sydney – Australia
Phone +61 452 198 774

It was consigned from an address in Cape Town and bore a name and phone number of the purported consignor in handwriting.
This “uncharged consignment” arrived in Australia on approximately 28 April 2019. It was intercepted and examined by Australian…

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 Shah (No 2)

Details

AGLC: R v Shah (No 2) [2022] NSWDC 500
Case: [2022] NSWDC 500
Decision Date: 16 September 2022

CaseChat Overview and Summary

The case of R v Shah (No 2) was heard in the Federal Court of Australia and involved an appeal against a sentence imposed on Mr Shah for drug trafficking. The original conviction was for an attempt to possess a marketable quantity of a border controlled drug, specifically cocaine. The appeal was focused on the severity of the sentence imposed and the consideration of family hardship in the sentencing process.

The central legal issues addressed by the court were whether the sentence imposed was manifestly excessive and whether the primary judge had adequately considered the hardship to Mr Shah's family. The court examined whether the sentence was disproportionate to the offence and whether there was an error in the weighing of the relevant sentencing factors, particularly the impact on the family.

The court found that while the sentence was on the higher end of the spectrum, it was not manifestly excessive given the nature and circumstances of the offence. The primary judge was deemed to have properly considered the relevant factors, including the hardship to the family, and the appeal was ultimately dismissed. The court acknowledged the significant impact of the sentence on Mr Shah's family but concluded that the sentence was justified in the context of the offence and the need to deter similar criminal activity.

The final orders of the court were that the appeal against sentence be dismissed. The original sentence was upheld, and no changes were made to the penalty imposed on Mr Shah.

Orders

Orders of the court

At [154]-[156].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Shah (No 2) [2022] NSWDC 500

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Veale v The The Queen
[2022] NSWCCA 154 Para 127

…The first case relied upon by the offender was Veale v R [2022] NSWCCA 154 Veale was a somewhat unusual case in which the Crown and the Defence both agreed that the time already served in custody would be an adequate length of time for the minimum term to be imposed. The judge at first instance, Ellis DCJ, proceeded…
Totaan v The the Queen
[2022] NSWCCA 75 Para 152

…alth Crimes Act including family hardship do not need to rise to the level of “exceptional” in order to be properly taken into account – Totaan [2022] NSWCCA 75. I have taken that factor into account.…
R v Chew
[2022] NSWDC 325 Para 95

…In a recent decision of R v Chew [2022] NSWDC 325, Judge Haesler SC dealt with an offender who had been the recipient of parcels posted from Malaysia. The package contained a quantity of heroin of which some 186 grams was pure heroin. As with all Commonwealth prosecutions, the pure quantity is the relevant amount f…
Robson-Bolan v The The Queen
[2022] NSWCCA 1 Para 130

…The second case relied upon by the Defence was R v Robson-Bolan [2022] NSWCCA 1. The offender was 21 years of age with no prior criminal convictions. He had ordered some 300 grams of cocaine on the dark web using his own name which was sent from South America to Australia via the mail. The offender took possession…
R v Pink
[2021] NSWDC 47 Para 89

…In R v Pink [2021] NSWDC 47, the offender was convicted of an offence of attempting to obtain a marketable quantity of ketamine. The offender was also charged with a number of State offences of supply relating to drugs located at his premises. The surrounding circumstances followed a familiar course. Packages were…
R v Lau
[2020] NSWDC 843 Para 83

…In R v Lau [2020] NSWDC 843, his Honour Judge W Hunt imposed a sentence of 22 months on a 52 year-old female offender. Ms Lau had been recruited to collect a parcel which had been posted to a PO Box rented by her at Kingsford Post Office. After being notified that the parcel was available for collection following t…
R v LeGros
[2020] NSWDC 733 Para 89

…In R v LeGros [2020] NSWDC 733, Neilson DCJ passed a sentence of 3 years and directed the immediate release of the offender on a recognizance on the day of sentence. The offender was a 30 year-old man who had been a well-respected and well-regarded athlete during his student years. He ultimately became involved in…
Alejandro Lopez Duque v The Queen
[2019] VSCA 212 Para 101

…In Lopes Duque v The Queen [2019] VSCA 212 and the related decision of R v Villalobos [2018] VCC 1334, two co-offenders were found in possession of a package which had been posted from Chile. The package contained slightly less than half a kilogram of pure cocaine. Duque was ascertained to have been the Australian…
R v Freeman
[2019] QCA 150 Para 100

…In R v Freeman [2019] QCA 150, the Queensland Court of Appeal dismissed an appeal against the severity of sentence of 4 years 6 months with 2 years 6 months non-parole. That matter related to an attempt to take possession of a border controlled drug by a 68 year-old man who had no prior convictions. There had bee…
R v Nguyen
[2019] NSWDC 174 Para 84

…In R v Nguyen [2019] NSWDC 174, Judge ML Williams SC sentenced an offender for a substantive offence of attempting to possess approximately 650 grams of cocaine. Two additional counts were placed on a Commonwealth Schedule. These related to offences of trafficking in MDMA being small quantities located during a sea…
Director of Public Prosecutions v Villalobos
[2018] VCC 1334 Para 101

…In Lopes Duque v The Queen [2019] VSCA 212 and the related decision of R v Villalobos [2018] VCC 1334, two co-offenders were found in possession of a package which had been posted from Chile. The package contained slightly less than half a kilogram of pure cocaine. Duque was ascertained to have been the Australian…
Eriyo v R
[2015] NSWCCA 16 Para 102

…In Eriyo v R [2015] NSWCCA 16, a package sent from Tanzania was intercepted by the authorities. It was found to contain a pure quantity of 130 grams of heroin within the soles of sandals contained in the package. A controlled delivery following the substitution of the drug was effected and in due course the offende…
Ojielumhen v The Queen
[2014] ACTCA 28 Para 126

…The Defence also referred to Ojielumhen v R [2014] ACTCA 28. This offender pleaded guilty to one offence of attempting to possess a marketable quantity of cocaine. The cocaine was packaged inside a DVD player and had been sent through the mail to Australia from Thailand. The quantity of pure cocaine was 196.3 gram…
Barbaro v The Queen
[2014] HCA 2 Para 128

…the Crown Prosecutor, a concession and nomination completely at odds with the remarks of the High Court in Barbaro v The Queen ; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323, the offender at that juncture maintained his plea of not guilty.…
Omorogbe v R
[2013] NSWCCA 201 Para 133

…The next case in the Defence comparative cases was Omorogbe v R [2013] NSWCCA 201. This case involved an offender who had pleaded guilty to one count of attempted possession of a marketable quantity of cocaine (106.4 grams pure). The offender had attended a private mailbox at a newsagency in Engadine where he collec…
Wong v The Queen
[2001] HCA 64 Para 147

…t factor in sentencing for drug offences under the Commonwealth criminal provisions. As the High Court pointed out in Wong v The Queen [2001] HCA 84; 207 CLR 584 at [64] (per Gaudron, Gummow and Hayne JJ) the difficulty of detecting drug importation offences, and related offences, and the great social conseque…
R v Olbrich
[1999] HCA 54 Para 150

…not rise above a possible explanation. In no sense does it operate in mitigation, or aggravation of the offender’s own criminality (see R v Olbrich [1999] HCA 54; 199 CLR 270).…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
1 mention (from Para 122)
Criminal Code Act 1995 (Cth)
1 mention (from Para 2)

Medium Neutral Citation:	R v Shah (No 2) [2022] NSWDC 500
Hearing dates:	22 July 2022
Date of orders:	16 September 2022
Decision date:	16 September 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [154]-[156].
Catchwords:	CRIME — Drug offences — Commonwealth sentence — Attempt to possess a marketable quantity of a border controlled drug — Cocaine — Hardship to family
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323 Eiryo v R [2015] NSWCCA 16 Laurentiu & Becheru (1992) 63 A Crime R 40 Le Cerf (1978) 13 SASR 237 Lopes Duque v The Queen [2019] VSCA 212 Ojielumhen v R [2014] ACTCA 28 Omorogbe v R [2013] NSWCCA 201 R v Chew [2022] NSWDC 325 R v Freeman [2019] QCA 150 R v Lau [2020] NSWDC 843 R v Legros [2020] NSWDC 733 R v Muanchukingkan (1990) 52 A Crime R 354 R v Nguyen [2019] NSWDC 174 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pham (2010) 205 A Crim R 106 R v Pink [2021] NSWDC 47 R v Robson-Bolan [2022] NSWCCA 1 R v Villalobos [2018] VCC 1334 Totaan [2022] NSWCCA 75 Veale v R [2022] NSWCCA 154 Wong v The Queen [2001] HCA 84; 207 CLR 584
Category:	Sentence
Parties:	Crown Abdul Malik Shah (Offender)
Representation:	Counsel: Mr B Stevens (Crown) Ms S Orman-Hales (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2019/00162030
Publication restriction:	Nil