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Court of Criminal Appeal 20 November 2002

Regina v Besodi

[2002] NSWCCA 452

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER INAPPROPRIATE CROSS EXAMINATION SENTENCING SEVERITY APPEAL

Citation: Regina v Besodi [2002] NSWCCA 452
Court: NSW Court of Criminal Appeal
Date: 20 November 2002
Judges: Simpson J, Carruthers AJ, Mathews AJ

Background

The appellant was convicted in the District Court of Sydney on one count of attempting to obtain possession of heroin reasonably suspected of being imported, contrary to s 233B(1)(ca) of the Customs Act 1901. The conviction arose from a controlled delivery operation in which a parcel sent from Thailand, containing heroin of relatively low purity hidden in a false-bottomed base, was intercepted, substituted with an inert substance, and delivered to the appellant at a post office in Crows Nest.

The appellant collected the parcel from the post office on 5 June 2001, took it home, and was found by police with the false bottom removed. A set of scales bearing traces of cocaine and heroin, and a separate parcel containing twelve grams of heroin, were also found at his premises. The appellant's defence at trial was that the drugs had been planted on him as a political "fit up" by enemies of his activities against the Afghan communist and Taliban regimes.

Following conviction, the trial judge sentenced the appellant to eight years' imprisonment with a non-parole period of five years. The appellant appealed both the conviction and the sentence.

  • Whether inappropriate cross-examination by the Crown Prosecutor caused the trial to miscarry
  • Whether the trial judge's directions to the jury were adequate to remedy any prejudice arising from that cross-examination
  • Whether the sentence of eight years' imprisonment was outside the available sentencing discretion, having regard to the objective and subjective circumstances of the offence

Decision

The Court of Criminal Appeal dismissed the conviction appeal. The court considered the impugned cross-examination and the directions given by the trial judge in response, and concluded that any prejudice caused to the appellant had been adequately addressed. No miscarriage of justice was established.

On the sentence appeal, the court granted leave and allowed the appeal. Carruthers AJ, with whom Simpson J and Mathews AJ agreed, found that the head sentence of eight years was outside the range of the sentencing discretion available to the trial judge. The court noted that, after accounting for a one-third reduction under s 16G of the Crimes Act 1914, the trial judge's starting point had exceeded ten years, which the court regarded as excessive.

In recalibrating the sentence, the court took into account the appellant's subjective circumstances, including his age, his family responsibilities, his prior contributions to political efforts against the Taliban, and the conditions of his likely imprisonment as a non-English-speaking person of Afghan background. The court also accepted the Crown's submission, consistent with Wong and Leung v The Queen, that the relatively low purity and weight of the heroin were not primary sentencing considerations.

Applying the same one-third s 16G adjustment and maintaining the same ratio between the head sentence and non-parole period that the trial judge had used, the court substituted a head sentence of six years and a non-parole period of three years and nine months.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence imposed by Judge Urquhart quashed
  • Appellant sentenced to six years' imprisonment commencing 27 February 2002 and expiring 26 February 2008
  • Non-parole period of three years and nine months fixed, commencing 27 February 2002 and expiring 26 November 2005

Key Takeaways

  • Adequate judicial directions to a jury can cure prejudice arising from inappropriate Crown cross-examination, provided those directions sufficiently address the risk of unfairness to the accused.
  • Under s 16G of the Crimes Act 1914, a sentencing court applying a one-third reduction must ensure that the starting point before adjustment remains within the available discretionary range; in this case, a starting point exceeding ten years was found to be outside that range.
  • Consistent with the High Court's reasoning in Wong and Leung v The Queen, the weight and purity of imported narcotics are not primary sentencing factors, particularly where an offender may not have known the precise quantity involved.
  • Subjective considerations, including an offender's age, family circumstances, cultural background, and the likely conditions of imprisonment, are relevant matters under ss 16A(2) and 16A(3) of the Crimes Act 1914 and must receive careful weight in the sentencing exercise.
  • In substituting a new sentence, the Court of Criminal Appeal maintained the same ratio between head sentence and non-parole period that the trial judge had applied, reflecting a consistent approach to the balance between total term and parole eligibility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2)(f), 16A(2)(g), 16A(3), 16G
- Criminal Appeal Act 1912, s 6(1)
- Customs Act 1901, s 233B(1)(ca)

Cases
- Azzopardi v The Queen (2000) 205 CLR 50
- Dyers v The Queen [2002] HCA 45
- Festa v The Queen (2000) 76 ALJR 291
- Jones v Dunkel (1959) 101 CLR 298
- Mraz v The Queen (1955) 93 CLR 493
- R v Dyers [2000] NSWCCA 335
- Wong and Leung v The Queen [2001] 76 ALJR 79