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
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 Muanchukingkan (1990) 52 A Crime R 354
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Pham (2010) 205 A Crim R 106
R v Robson-Bolan [2022] NSWCCA 1
R v Villalobos [2018] VCC 1334
Totaan [2022] NSWCCA 75
Category: Sentence Parties: Crown
Abdul Malik Shah (Offender)Representation: Counsel:
Solicitors:
Mr B Stevens (Crown)
Ms S Orman-Hales (Offender)
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…
Continue reading R v Shah (No 2)
Sign in free to access the full text
- AGLC
- R v Shah (No 2) [2022] NSWDC 500
- Case
- [2022] NSWDC 500
- Decision Date
CaseChat Overview and Summary
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.