Regina v Hashmi

[1999] NSWCCA 439

CITATION:	Regina v Hashmi [1999] NSWCCA 439
FILE NUMBER(S):	CCA 060622/98
HEARING DATE(S):	13 August 1999
JUDGMENT DATE:	13 August 1999
PARTIES :	Regina v Naeem Raza Hashmi
JUDGMENT OF:	Beazley JA at 1,26,28; Simpson J at 27; McInerney AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0065
LOWER COURT JUDICIAL OFFICER:	Viney DCJ

COUNSEL:	Appellant/Applicant (In Person) Mr J Agius SC & Ms S McNaughton (Respondent)
SOLICITORS:	Ms Amanda Coultas (Appellant/Applicant) Ms Susan Doherty (Respondent C'wealth DPP)
CATCHWORDS:
ACTS CITED:	Commonwealth Crimes Act s16G
CASES CITED:	R v Birdy (1998) 102 A Crim R 44 R v Raz (unreported CCA 17 December 1992 R v Hall 20 NSWLR 427 at 435 R v Ferrer-Esis (1991) 55 A Crim R 281 R v Wa Tung Chu (unreported CCA 16 October 1998
DECISION:	Leave to appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60622/98

BEAZLEY JA
SIMPSON J
McINERNEY AJ

Friday 13 August 1999

REGINA v NAEEM RAZA HASHMI

JUDGMENT

1    BEAZLEY JA: I will ask McInerney AJ to give the first judgment.

2    McINERNEY AJ: In this matter the appellant seeks leave to appeal against a sentence imposed on him. I should point out that he initially lodged an appeal and it is abandoned and he now seeks to go behind the abandonment and seeks leave to appeal against the sentence. We have elected to hear the merits of the appeal and it will be a matter to determine whether we should allow him leave to appeal against sentence out of time.

3    The appellant seeks leave to appeal against a sentence imposed upon him, on a plea of guilty, by Judge Viney of the District Court for 5 years to date from 15 December 1997, the date of his arrest. His Honour specified a non parole period of three years for one count of importing a commercial quantity of heroin of 2.5 kilograms gross, 1.881 pure. This is a commercial quantity of a prescribed drug under the Act as the commercial quantity is 1.5 kilograms. The maximum sentence for this offence is life imprisonment.

4    His Honour, the sentencing judge, in his Remarks on Sentence has set out at length the objective facts of the charge, the assistance rendered by the applicant to the authorities and the subjective features of the applicant.

5    The applicant is a Pakistani national apprehended at Sydney Airport when found to be carrying 2.35 kilograms of gross weight of heroin strapped to his body. He had arrived from Pakistan on Friday 5 December 1997 and was scheduled to depart from Australia to return to Pakistan on 8 December 1997. The customs officers noted a suspicious bulge in his clothing and that minded them to search him and that search disclosed the heroin strapped to his body. You might say, on the face of it, it was not a very sophisticated attempt to land heroin in this country. He made immediate admissions to the authorities as to the drug, however, one couldn't imagine what else he could have done.

6    Importantly, however, the applicant told the authorities he was bringing in the drug on behalf a named Pakistani national and consequently arrangements were made with the Federal Police for a controlled delivery of the drug to one Kovacs, who, it appeared, was an Australian citizen at the time serving a sentence for a similar offence of importation of heroin and was on work release at the time.

7    The controlled delivery was made at a hotel resulting in Kovacs being arrested and charged and he was subsequently convicted.

8    The applicant honoured his undertaking, given to the authorities and Judge Viney, to give evidence at the trial for the Crown. His Honour at some length in his judgment described the cooperation he in fact had given to the authorities and its effect on the applicant's safety.

9    His Honour's remarks, in my view, reflect fulsome recognition of that aspect of the matter. (See pages 5, 6, 7, in particular, of his Honour's remarks.) Those remarks do not require repetition here.

10    In effect, as a result of the applicant's attitude in assisting in the apprehension and conviction of Kovacs that he has been threatened, it is said, by Kovacs. The applicant here submits, however, that his Honour was not fully cognizant of all the dangers to which he had placed himself in because he submits that at the time of the controlled delivery at the hotel, Mr Kovacs was armed with a large knife and thus his life was in danger. There is no reference to that matter in the material before Judge Viney, and consequently his Honour made no reference to it.

11    He has been threatened by Kovacs whilst in gaol. That fact was acknowledged by Judge Viney. The applicant alleges that in the assault Kovacs pushed him causing him to suffer a back injury. Whether that is so or not is obscure to say the least. It appears, however, he has to be kept under strict supervision and surveillance in prison for the entire length of his sentence, as acknowledged by Judge Viney, and at the present time, as I understand it, he is in a special purpose gaol.

12    There would be problems, as acknowledged by Judge Viney, with returning to his family in Lahore after his prison sentence has passed. His Honour categorised him as a courier and in his ultimate sentence reduced his sentence by 50 per cent for his assistance to the authorities. His Honour also found the crime was not committed for personal gain but to enable him to provide a dowry for the marriage of his daughter which was customary in Pakistan. He was known to have no previous convictions and there was some evidence to suggest that he had a legal background. His Honour noted correctly he was a mature man and was well aware of the risks involved in the activity in bringing illegal drugs into this country.

13    There is serious criminality in his actions. This was a very serious offence. This court on innumerable occasions has warned nationals of a foreign country who deliberately import drugs into this country that they will suffer condign punishment.

14    The basis of the appeal is twofold, as I understand it by the submissions of the applicant, who appears on his own behalf. He has provided written submissions and he has made verbal submissions. The first ground was his Honour was in error in his determination of him being merely a courier and thus his Honour's starting sentence exercise was excessive. His Honour considered, as he was required to do, the requirements of s 16G of the Commonwealth Crimes Act, 1914, and his Honour took the starting point of the sentence at sixteen years.

15    It is submitted by the applicant that on the authority of R v Raz, (unreported NSW CCA 17 December 19992) that having found his role as a mere courier, his Honour's starting point of sixteen years was too high and in all these circumstances he should have used as a starting point a sentence of twelve years, as I understand his submission.

16 The Crown has referred to R v Birdy (1998) 102 A Crim R 44. A case that has some marked similarities to the present case except the drug was cocaine, a pure quantity of 2.0451.kg. The commercial quantity of cocaine is 2 kilograms.

17 In that case the finding was that the prisoner was not motivated by greed and would be unlikely to re-offend. The Court of Criminal Appeal also noted that in the circumstances his plea of guilty was one that proper consideration should be given to because he may in the circumstances of that offence, have had a defence of duress. The court considered the authorities involving the lower end of a commercial range of drugs namely cocaine and heroin. In this case it must be accepted whilst the amount of heroin is in the commercial range it is in the lower range of that range. In considering the question of a sentence involving cocaine, it should be noted that those sentences should not be less than sentences for heroin (see p 47). It was noted in R v Hall 20 NSWLR 427 at 435 by Hunt J who recognised that the tariff for couriers of commercial quantities of cocaine was sixteen years prior to the application of the s 16G adjustment resulting in a sentence thereof on the basis of one-third of a little over ten years.

18 The court concluded that having regard to the quantity of drugs stated, the comments of Hunt J in R v Ferrer-Esis (1991) 55 A Crim R 231 at eight and a half to eleven years sentence which should be considered appropriate for importation by couriers in quantities at the lower end of the commercial range. Thus, the head sentence in this case of ten years is within the range of appropriate sentences before a discount for assistance to the authorities. In my view, therefore, this ground must fail.

19    The second ground is that the discount allowed in the circumstances was inadequate. I have referred earlier to the fact that the applicant complained that his Honour was not aware of the fact that a knife was in the possession of Mr Kovacs when the control delivery took place between them in a hotel room. He says he was thus exposed to greater danger than acknowledged by the trial judge. Be that as it may, there is no doubt that a substantial discount was given and was required in the circumstances of this case. His Honour recognised that in reducing the sentence of ten years to five years he gave a discount of 50 per cent. In R v Wai Tung Chu CCA 16 October 1998, unreported the Chief Justice noted in that judgment that sentencing reductions in England in the case of significant assistance to the authorities, varies between a half to two-thirds, a discount higher than customarily given in New South Wales which was between 20 per cent and 50 per cent. The Chief Justice noted that it may be appropriate at a future point to review the authorities with a view to identifying and indicating a range for a discount of assistance to authorities together with a list of the relevant matters to be considered.

20    The Chief Justice at p 4 of the judgment stated the extent to which a discount is appropriate for a plea of guilty was a matter of discretion for the sentencing judge and noted that there was no fixed tariff. Even if one assumes his Honour was aware Mr Kovacs had a knife in his possession at the time of the control delivery, it is not likely, in my view, that he would have increased the discount beyond 50 per cent. Even assuming that his Honour would consider a discount beyond that it must always be borne in mind that when considering a discount for the assistance rendered to authorities the sentence then imposed must reflect the objective seriousness of the offence. In my view, to increase the discount further in this case would reduce the sentence to a point where it failed to reflect the objective seriousness of this offence. This is an offence that the legislature has seen fit to impose a maximum sentence of life imprisonment and the legislature expects the courts to bear that matter in mind when imposing sentences of this nature.

21    Even when one examines the objective seriousness of this offence, whilst it may be said that it was not for his own personal greed, this was a planned venture into the country by a Pakistani national who was prepared to come to Australia and introduce into this country a prohibited drug heroin. Courts here must reflect the criminality of such an action as a deterrent to other couriers who may be minded to do likewise.

22    Before I conclude, there was also reference by the applicant to an injury that he is said to have received as a result of being attacked by Mr Kovacs, or an associate of his in gaol, which has resulted in him suffering a disc lesion. It would appear, on the material that has been provided by the applicant, that there is no reference to the causation of the conditions from which he was undoubtedly suffering. A medical report from a Dr Melman who was the medical officer at the gaol, testified that the applicant had been treated for a prolapsed L5/S1 intervertebral disc since March 1998. The actual diagnosis was not made until he had a CAT scan of the lumbosacral spine in 1998 and that lesion was said to have caused him considerable pain and distress.

23    There are other medical reports but no bases for concluding that this condition resulted from an action on the part of Mr Kovacs or anyone acting on his behalf and the matter, to some extent, is left in the air. Even assuming that that be the case, it is my view that his Honour in his remarks on sentence was aware of the fact that this could be a likely event in the circumstances of his prison sentence.

24    In all the circumstances, having regard to his Honour's remarks and the objective seriousness of this matter, I am not satisfied on my own behalf that a case has been made out for the intervention of this Court and I would refuse leave to appeal.

AGIUS: May I take the unusual course of rising at this time. My learned junior has discovered two references in the Kovacs file to a knife. There was a knife in the bag carried by Mr Kovacs and there was an attempt to tender it in the Kovacs trial which was rejected by the trial judge as being not probative. So there was some objective evidence that at the time Mr Kovacs was carrying a knife.

25    McINERNEY AJ: In respect of the matter that has just been raised by the learned Crown, at the conclusion of my remarks on sentence, I have referred to the fact that even assuming that his Honour had been aware that the fact there was a knife in the bag would not have led his Honour to increase the discount that he had given to the applicant, having regard to the necessity of imposing an appropriate sentence to reflect the seriousness of the crime. It must be pointed out that this sentence imposed by his Honour was at the very bottom end of the range of such sentences. Therefore, I would still be of the opinion that leave to appeal should be refused.

26    BEAZLEY JA: I ask Simpson J to give the next judgment.

27    SIMPSON J: I agree. This court is not blind to the mounting public and official concern about the increasing availability of illegal drugs in this country. The court would be failing in its duty if it failed to give proper support to the law enforcement authorities charged with the very difficult and dangerous task of circumventing the illegal importation of drugs into this country. From time to time there arise cases which by their subjective circumstances call for sympathy and this is such a case. The applicant has told the court that his family in Pakistan are in his words "on the run" and that his involvement in the offence was for the purpose of improving their circumstances but it has obviously and tragically had a diametrically opposite effect. These and the other circumstances referred to by McInerney AJ are important objective circumstances, but sympathy for the plight in which the applicant and his family now find themselves cannot outweigh the need for proper deterrent penalties in relation to the importation of drugs. I agree with the orders proposed.

28    BEAZLEY JA: I also agree. I think I would only be repeating what has already been said by adding further remarks. Leave to appeal is refused.

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