Citation: R v Hamzy [2001] NSWCCA 539
Court: NSW Court of Criminal Appeal
Date: 21 December 2001
Judge(s): Beazley JA, Hulme J, Barr J
Background
The appellant was an Australian resident who left Australia in mid-1998, residing primarily in Belize and the United States, to avoid police contact following his alleged involvement in a fatal shooting in Sydney. While overseas, he was observed by Australian police, who intercepted his telephone conversations and developed suspicions that he was organising the importation of cocaine into Australia.
At the request of Australian authorities, United States authorities arrested the appellant. He was then returned to Australia in custody. Once back in Australia, he was charged with two counts of being knowingly concerned in the importation of cocaine, relating to seizures made at Sydney Airport in December 1998 and Brisbane International Airport in January 1999.
The appellant pleaded guilty in the District Court and was sentenced by Coorey DCJ. He appealed against his convictions and initially sought to appeal his sentences, though he abandoned the sentence appeal at the hearing. The Crown separately appealed the sentences as inadequate.
Legal Issues
- Whether the appellant had been "extradited" or "surrendered" to Australia within the meaning of the Commonwealth Extradition Act, so as to engage the protections in that Act
- Whether the appellant was entitled to rely on the "speciality rule" under s 42 of the Extradition Act, which prevents a person surrendered by a foreign state from being tried for offences other than those for which the surrender was granted
- Whether the sentences imposed by the District Court were manifestly inadequate, warranting intervention on the Crown's sentence appeal
Decision
Conviction appeal: the speciality rule
The court dismissed the conviction appeal. The central question was whether the appellant had been "surrendered to Australia" within the meaning of s 42 of the Extradition Act, which would have triggered the speciality rule and potentially barred prosecution for the cocaine importation charges. The court found that the circumstances of the appellant's return did not constitute a "surrender" in the relevant sense under the Act, meaning s 42 did not apply and the prosecution was not contrary to law.
The speciality rule, as codified in s 42, operates to protect persons who have been formally surrendered pursuant to an extradition agreement. Because the court held that the formal prerequisites for engaging that protection were not satisfied on the facts, the appellant could not rely on it to challenge the charges against him.
Crown sentence appeal
The court upheld the Crown's sentence appeal, finding the sentences imposed by Coorey DCJ to be manifestly inadequate. The sentencing judge had not given sufficient independent consideration to the appropriate sentence, and the error was compounded by the fact that sentencing principles for this type of offending were well established. The court noted that a related offender, Keys, had received an equally erroneous sentence in the same court, and there was nothing to suggest the Crown had misled the judge in either case.
In resentencing, the court applied a discount of approximately one third under s 16G of the Crimes Act (Commonwealth) and approximately 10 per cent for the guilty plea. It also took into account subjective circumstances and delay in finalising the proceedings. Because it was a Crown appeal, the court fixed sentences towards the lower end of the available range.
Orders Made
- Conviction appeal dismissed
- Crown sentence appeal allowed
- Sentences imposed by Coorey DCJ quashed
- On the second count: 4.5 years' imprisonment commencing 30 December 1999, expiring 29 June 2004
- On the first count: 9 years' imprisonment commencing 30 June 2004, expiring 29 June 2013
- Sentences to be served cumulatively
- Single non-parole period of 8 years, commencing 30 December 1999, expiring 29 December 2007
Key Takeaways
- The speciality rule under s 42 of the Commonwealth Extradition Act only operates where a person has been formally "surrendered" to Australia pursuant to an extradition arrangement. The rule does not automatically apply merely because a person was arrested overseas at Australian request and returned to Australia in custody.
- Under s 42, a person who has been surrendered to Australia may not be detained or tried for offences other than those for which the surrender was granted, unless the foreign country consents or the person has had an opportunity to leave Australia.
- A sentencing judge cannot simply accept a concession from Crown counsel as to an appropriate sentence without independently considering whether that sentence accords with established principle. The court found the District Court fell into error by doing so.
- On a Crown appeal against sentence, the Court of Criminal Appeal will fix a sentence towards the lower end of the available range, reflecting the principle that double jeopardy considerations inform resentencing in such circumstances.
- Discounts applicable to Commonwealth offences under s 16G of the Crimes Act and for a guilty plea operate cumulatively in determining an appropriate head sentence.
Legislation and Cases Referenced
Legislation
- Extradition Act (Cth), ss 3, 5, 42, 55
- Crimes Act (Cth), ss 16A, 16G, 19AB
- Extradition (United States of America) Regulations 1988 (Cth), regs 3, 4
- Treaty on Extradition between Australia and the United States of America (and 1990 Protocol)
Cases
- R v Davies (1981) 76 Cr App R 120
- AB v The Queen [1999] HCA 46
- Schneckloth v Bustamonte 412 US 218 (1973)
- Peretz v United States 501 US 923 (1991)
- United States v Mezzanatto 513 US 196 (1995)
- Faretta v California 422 US 805 (1975)
- Hempel v Attorney General (1987) 77 ALR 641
- R v Keys [2001] NSWCCA 232
- R v Wong & Leung (1998) 108 A Crim R 531
- Wong & Leung v The Queen [2001] HCA 64
- Pearce v The Queen (1998) 194 CLR 610
- Malvaso v The Queen (1989) 168 CLR 227
- R v Jermyn (1985) 2 NSWLR 194