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14
Court of Criminal Appeal 17 September 2004

R v Mirzaee

[2004] NSWCCA 315

Drugs
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE ERROR IN NON PAROLE PERIOD SPECIAL CIRCUMSTANCES.

Citation: Mirzaee v R [2004] NSWCCA 315
Court: New South Wales Court of Criminal Appeal
Date: 17 September 2004
Judges: Sperling J, Kirby J, Newman AJ

Background

The appellant, an Iranian national aged approximately 59 at the time of sentencing, pleaded guilty in the District Court to importing a prohibited import under the Customs Act 1901 (Cth). He arrived at Kingsford Smith International Airport carrying 578 grams of pure heroin (approximately 1,076 grams gross) concealed in a false compartment in his luggage, and presented a false Italian passport despite being unable to speak Italian.

The sentencing judge, Dodd DCJ, accepted that the appellant was a courier rather than an organiser of the importation, and gave credit for an early guilty plea with a 25 percent discount. The sentence imposed was nine years' imprisonment, with a non-parole period of six years, commencing 27 April 2003.

The appellant sought leave to appeal against that sentence, arguing primarily that the sentencing judge had erred by taking into account the likelihood of his deportation upon release, and that the non-parole period was otherwise excessive given his personal circumstances.

  • Whether the sentencing judge erred by taking into account the appellant's likely deportation following release from custody
  • Whether that error, if established, warranted intervention and resentencing
  • Whether the overall head sentence of nine years was manifestly excessive
  • Whether special circumstances existed justifying a reduction in the non-parole period relative to the head sentence

Decision

The Court accepted that the sentencing judge had erred by taking the likelihood of deportation into account as a factor in fixing the sentence. This point was not disputed on appeal, and it followed the approach confirmed by the Court of Criminal Appeal in R v Mas Rivadavia [2004] NSWCCA 284 and earlier authority.

The Court was not persuaded, however, that the head sentence of nine years was manifestly excessive in the circumstances. General deterrence was an important consideration for this type of offence. The court noted established principles applicable to drug importation cases: that prior good character and youth carry reduced weight, that subjective circumstances must not distort the sentence beyond proportion to the objective criminality, and that couriers performing an essential role in the drug trade are not entitled to particular leniency.

Notwithstanding the appropriate head sentence, the Court found that the acknowledged error in taking deportation into account had materially affected the non-parole period. In addition, the appellant's age, serious heart condition, isolation from family and culture, inability to participate in prison rehabilitation programs due to language barriers, and the fact that he had no prior criminal history all constituted special circumstances warranting a reduction in the non-parole period.

The Court varied the sentence by reducing the non-parole period from six years to four and a half years, while leaving the nine-year head sentence undisturbed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence varied as to the non-parole period only: reduced to four and a half years, commencing 27 April 2003 and expiring 26 October 2007, at which time the appellant would be eligible for parole

Key Takeaways

  • Taking into account the likelihood of an offender's deportation when fixing a sentence constitutes an error of principle, sufficient to warrant appellate intervention in relation to the affected component of the sentence.
  • A finding of special circumstances does not automatically reduce the head sentence; the Court of Criminal Appeal here left the nine-year term intact while adjusting only the non-parole period.
  • Established sentencing principles for drug importation offences place significant weight on general deterrence, and treat the courier role as deserving of serious punishment regardless of the offender's position in the hierarchy of the importation.
  • An offender's age, deteriorating health, cultural and linguistic isolation, and inability to access prison programs are capable of constituting special circumstances justifying a departure from the standard ratio between non-parole period and head sentence.
  • Prior good character carries reduced significance in drug importation matters, as the Court confirmed that organisers of the trade deliberately select individuals with clean records to avoid detection.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Appeal Act 1912

Cases
- R v Mas Rivadavia [2004] NSWCCA 284
- The Queen v Shrestha (1991) 173 CLR 48
- R v Boulghourgian [2001] NSWCCA 460
- R v Simpson (2001) 53 NSWLR 704
- R v Klein (2001) 121 A Crim R 90