Regina v Abdullah

[2002] NSWCCA 259

CITATION:	REGINA v. ABDULLAH [2002] NSWCCA 259 revised - 17/07/2002
FILE NUMBER(S):	CCA No. 60408 of 2001
HEARING DATE(S):	Wednesday 26 June 2002
JUDGMENT DATE:	26 June 2002
PARTIES :	REGINA v. Barzan Mohammad ABDULLAH
JUDGMENT OF:	Giles JA at 1; Dunford J at 28; Greg James J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0146
LOWER COURT JUDICIAL OFFICER :	Kinchington, DCJ.

COUNSEL :	Crown: M. Bracks App: D.N. Stewart
SOLICITORS:	Crown: Commowealth Director of Public Prosecutions App: Legal Aid Commission of New South Wales
CATCHWORDS:	Criminal law - sentence - appeal - drug importations - middle range drugs - limited evidence of role - application of Olbrich v. The Queen - sentences within range of valid discretion.
LEGISLATION CITED:	Customs Act 1901 (Cth) Crimes Act 1914 (Cth) Criminal Appeal Act 1912
CASES CITED:	El Kahani (1991) 21 NSWLR 370 Wong & Leung (1999) 48 NSWLR 340 Olbrich (1999) 106 ALR 330 House (1936) 55 CLR 499
DECISION:	Leave to appeal granted; appeal dismissed.

No. 60408 of 2001

GILES, JA.
DUNFORD, J.
GREG JAMES, J.

WEDNESDAY 26 JUNE 2002

REGINA v. BARZAN MOHAMMAD ABDULLAH

Judgment

1 GILES, JA: We are in a position to deal with the matter immediately, and I ask Greg James, J. to give the first reasons.

2 GREG JAMES, J: Barzan Mohammad Abdullah seeks leave to appeal against sentences imposed on him in the District Court of New South Wales in consequence of his having been found guilty by the verdict of the jury of two counts for offences under the Customs Act 1901 (Cth). He was charged under s.233B(1)(b) with importing into Australia a traffickable quantity of opium contrary to that provision. He was also charged with importing into Australia contrary to that provision a traffickable quantity of cannabis resin. In each case the maximum penalty prescribed by s.235 of the Customs Act 1901 is imprisonment for 25 years. He was sentenced by the learned trial judge to concurrent sentences. In respect of each offence he was convicted and sentenced to six years imprisonment with a non-parole period of four years, the sentences to commence on 28 May 2001 and to expire on 27 May 2007. The sentence commencement date reflects the applicant having been on bail prior to the trial for a period of time. His Honour took into account, however, in that regard that the applicant had spent approximately one month in gaol following his arrest prior to being granted bail.

3 The facts involved in the commission of the offences were within a very narrow compass. In his remarks on sentence the trial judge summarised them as follows:-

"On the 16th August 2000 the prisoner arrived in Australia on a British Airways flight from Bangkok, having previously been in Pakistan where he visited his brother and two sisters. While waiting at the luggage carousel a Customs sniffer dog alerted Customs officers to the shoes the prisoner was wearing at the time. A subsequent inspection of the shoes revealed a number of brown taped packages underneath the innersole of each shoe. On further examination two packages were found in the left shoe and four packages were found in the right shoe. The two packages in the left shoe contained a soft pliable brown resinous substance which, on analysis, was found to be opium. As to the four packages found in the right shoes, one contained a soft pliable brown resinous substance which, on analysis, was also found to be opium while the other three contained a hard compressed brown resinous substance which was found, on analysis, to be cannabis resin. The opium contained in the three packages weighed 395.5 grams while the cannabis resin contained in the other three packages weighed 156.8 grams. The traffickable quantity under the Customs Act legislation for both opium and cannabis resin is 20 grams. When asked by Customs Officer Williams at Sydney Kingsford Smith Airport, ‘... do you have any drugs on you?’, the prisoner replied, ‘Drugs, no, I have a family, I am a family man, I have a daughter’ and later, when an inspection of his left shoe revealed the existence of the two packages under the innersole of that shoe he was asked, ‘What is this?’ He replied, ‘I don’t know, I didn’t do it, a friend gave them to me as a gift just before I left. I swear I didn’t know it was these’. When spoken to subsequently he exercised his right not to be interviewed. During the course of his evidence during his trial the prisoner repeated that he did not know of the existence of the six packages under the innersoles of his shoes and told the jury he had received the shoes as a gift from a university friend in Pakistan two days before he left to return to Australia. The Jury, by its verdicts, not only rejected the prisoner’s denials as to the existence of the packages and the narcotic goods in question but were satisfied beyond reasonable doubt of his guilt in relation to the two charges herein.”

4 His Honour referred to the applicant’s subjective circumstances. In summary they were that he and his parents had come from Iraq to live in Pakistan but the applicant had come to Australia with his wife and daughter on 29 February 2000, that is to say a matter of some six months earlier than the commission of the offence, under a refugee resettlement programme. The applicant had been granted permanent resident status and had resided in Australia during that six months except for a two-week visit to Pakistan.

5 His Honour noted the applicant was aged 25 at the time of sentence, having been born on 1 February 1976 and that the applicant had the benefit of a good education in Pakistan; that his parents had died while he was residing in Pakistan but the family unit remained together until the applicant came to Australia. He noted that there was, in Australia, family, which he later in his remarks referred to as supportive of the applicant. He noted that there was apparently no criminal history for the applicant in Australia or overseas.

6 His Honour adverted to all the matters to which s.16A of the Crimes Act 1914 (Cth) refers and in respect of each individual matter referred to in s.16A(2) gave individual consideration to all the evidence there might be bearing upon the weight to be accorded to that factor in sentence. His Honour, in addition, referred to the necessity in sentencing for an offence such as this to reflect considerations of general deterrence and in that regard could not be said to have fallen into any error, having regard to the decision of this court in Regina v. El Kahani (1991) 21 NSWLR 370.

7 His Honour categorised the offences as serious criminal offences. He concluded that he should treat them as having arisen out of the same incident and being of equal criminality and in that regard concluded that he should pass concurrent sentences. His Honour concluded that this was not one of those exceptional cases of such an offence under the Customs Act 1901 as not to require a sentence of full-time custody. He applied s.16G of the Crimes Act 1914 to adjust the sentences he was minded to pass to take into account the absence of remissions in the New South Wales prison system.

8 His Honour referred to a number of cases that had been provided to him from which it was said he might derive assistance as to the appropriate ranges for sentence in such a case.

9 He concluded that he did not find any of the judgments of great assistance, merely enabling him to consider them as elucidating the wide ambit of the discretion a judge must apply in fixing individual sentences to meet the needs of particular cases. Of those cases his Honour referred to two as involving persons described as couriers, while the other five he referred to as involving persons described as principals involved in the importation of the narcotic goods in question. When his Honour turned to the nature and circumstances of the offences he concluded that the evidence established that the offender was the person behind the importation and so could be treated as the principal behind it. In addition, he concluded that the quantity of drugs involved in each case was substantial.

10 As far as the cannabis resin quantity was concerned, it was eight times the minimum traffickable quantity and the opium was twenty times the minimum traffickable quantity. Those traffickable quantities are established by the schedule to the Customs Act 1901 and relate to the level of penalty under s.235 which fixes the level of maximum penalty applicable to scheduled quantities of drugs.

11 His Honour concluded that the importation was obviously done for greed and that the offences displayed objective criminality of a high order on the part of the offender, since the offender had recently come to Australia and it appeared to his Honour, the offender was, by the commission of these offences, in these circumstances, displaying contempt for our laws and society and its well-being. He said:-

“If he maintains such contemptuous views of our laws and society and of its well-being, then his prospect of being a law-abiding citizen of this country are not good.”

12 Later in his remarks in a further passage very much to the same effect he referred to the objective criminality as tending towards the higher range of criminality rather than towards the lower “though the quantity of narcotic drugs in question was nowhere near the top of the traffickable quantity”.

13 His Honour also referred to the drugs involved in this exercise as not being as dangerous as heroin or cocaine and referred to the guideline judgment in Regina v. Wong & Leung (1999) 48 NSWLR 340 referring to the tariff in respect of two importations of traffickable quantities of cocaine. His Honour said, “This distinction should not be over-estimated in cases involving the importation of narcotics”. His Honour then concluded that, having regard to the community’s abhorrence of this type of offence, he should impose a sentence of six years imprisonment on each count and a non-parole period of four years, as I have said.

14 A number of submissions have been made contending that his Honour fell into error. In support of the first of those submissions our attention was drawn to the decision of the High Court in Olbrich v. The Queen (1999) 106 ALR 330. It was contended that his Honour had erred in inflating the applicant’s criminality by using the language to which I have referred when he described the offender as being “the person behind the importation and so should be treated as the principal behind it”. It was contended notwithstanding there was nothing in the evidence apparently or referred to by his Honour in his remarks to suggest the involvement of any others in the offence that the word “principal” should be interpreted as meaning that his Honour dealt with the applicant as though he were a person involved in some hierarchy of which he was the prime mover or ring-leader.

15 It was accepted during this argument that he should have been dealt with as though he were the sole importer. It was contended that in Olbrich (supra) the discussion and the use of the term principal as opposed to the use of the term importer meant that where that term “principal” was used by a trial judge one should take it that the trial judge was referring to a higher degree of criminality.

16 I do not accept that argument. In this case his Honour was concerned to distinguish between the two categories of persons referred to in the cases to which he had been taken and to which he refers in his remarks on sentence. He was plainly referring to the applicant as being a sole importer, importing on his own account rather than part of an organisation in which he had some subordinate role such as that of a courier or some more prominent role such as that of a principal.

17 In the judgment of the majority of the High Court at paragraph 11, the decision of Howie, DCJ., (as he then was) is referred to where he rejected the contention of the accused before him that he was a mere courier and that he should be treated as such because he had told the police and this court nothing about the circumstances of the event at all. This was a context not unlike that in which the present applicant comes forward on appeal. In a passage commencing at paragraph 13 and continuing to paragraph 18, the judgments of the majority referred to the way in which sentencing judges might approach ascertaining the culpability of an offender in such circumstances and, in particular, where that offender has provided limited information to surround the circumstance of he or she being the importer. The court distinguished between the task then to be undertaken and the task that would be undertaken where there was evidence of drugs imported into the country and there was more than one person connected with the importation of those drugs, and discussed that matter at paragraphs 19-23.

18 There is no doubt that the trial judge’s use of language was infelicitous where he used the word “principal” and referred to the offender as being the person behind the importation. Nonetheless, I do not see that he has fallen into any legal error when I consider those passages from Olbrich (supra) to which I have been referred; nor do I see that there has been translated from the language his Honour used, into the final product of the sentence, such a component as in fact inflates the sentence, as was submitted.

19 Similarly, where it was submitted that his Honour gave excessive weight to the fact the appellant was a recent arrival to Australia, I do not see his Honour fell into error. It was a relevant fact to which his Honour could have regard that the applicant was a recent arrival to Australia in the context in which his Honour had regard to it, that is to say, that the applicant in the commission of these offences in the context in which they were committed was showing contempt for the laws of Australia. It may well be that that matter might be categorised appropriately as relevant to the applicant’s subjective circumstances. It may well be that a display of contempt for the laws on the part of a convicted person coming forward for sentence is a matter that goes to the subjective circumstances or the objective circumstances. I do not find it necessary so to categorise such matters since, in my view, this was plainly a matter that was relevant for his Honour to take into account for one purpose or the other and it cannot be said when one considers the final product of sentence that the matter appears again to have inflated any component in the eventual sentence so as to show error.

20 By ground three of his grounds of appeal the applicant submitted that his Honour erred in concluding that the importation was obviously done for greed. By consent there was before us, as there had been before the trial judge, the evidence at trial of the allegation which it was conceded was established of the applicant’s straitened financial circumstances. It was contended, however, that the onus was on the Crown to prove beyond reasonable doubt an aggravating circumstance, that is, that the offence was committed out of greed and that there was no evidence sufficient to enable such a conclusion to be reached.

21 I disagree. The drugs that were imported may not have been the most valuable drugs, the applicant’s straitened financial circumstances may not have been linked by direct evidence to the prospects of realising from the sale or other marketing of those drugs, monies which might relieve those straitened circumstances, but it was plainly open to the trial judge to conclude in the overall circumstances that the applicant’s commission of the crime was not out of altruism but in order to gain financially and that is quite sufficient to enable the conclusion that the importation was done out of a motive of greed.

22 Two other criticisms were made. At our invitation, counsel for the applicant treated those two criticisms as related and to be argued together; that is, that his Honour failed to give proper weight to the less pernicious nature of the drugs in question and over weighted the objective criminality of the offences such as to produce a sentence which, having regard to the sentences imposed in other cases, exceeded the permissible range. Again, I do not think those criticisms are made out.

23 The submission that was made really was that because the applicant’s sentence approximated a sentence which might have been considered to be the bottom of the range, all else being equal, for equivalent quantities of more pernicious drugs, having regard to the level of the traffickable quantities in the schedule, applicable to the more pernicious drugs, then the sentence passed on the applicant was too high in respect of these less pernicious drugs.

24 Our attention was drawn to cases involving other circumstances, greater quantities and other drugs. These were, in my view, of no assistance. I share the view of the trial judge in that regard.

25 The task of a sentencing court is to exercise a just discretion within given lawful parameters. The task of the appeal court under s.6(3) of the Criminal Appeal Act 1912 is to consider the final sentence and whether or not some other sentence is warranted in law and should have been passed. The sentence will be in error if the trial judge acts upon a wrong principle, if he or she allows extraneous or irrelevant matters to guide or affect him, if he or she mistakes the facts or if he does not take into account some material considerations; but the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is only if there is some such error as I have described, or if the end result is unreasonable or plainly unjust that the court can intervene (see House v. The King (1936) 55 CLR 499 at 504-505). When I have regard to this sentence and the circumstances proved before and found by the trial judge, I conclude it is a severe sentence but I am unable to conclude that it is plainly unreasonable or unjust, exceeds that range properly available to the trial judge or is attended by any such error as to warrant some other sentence being passed.

26 In my view, since the matter has been fully argued, leave to appeal should be granted but the appeal dismissed.

27 GILES, JA: I agree.

28 DUNFORD, J: I also agree.

29 GILES, JA: The formal orders are: leave to appeal granted; the non-parole period of four years stated by the trial judge and fixed in each case is corrected so that it is expressed to be a single non-parole period; appeal otherwise dismissed.

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