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6
Court of Criminal Appeal 15 October 2004

Regina v Haidar

[2004] NSWCCA 350

Drugs
CRIMINAL LAW SENTENCING DRUG OFFENCE GUILTY PLEA TO ATTEMPTED IMPORTATION

Citation: Regina v Haidar [2004] NSWCCA 350
Court: Court of Criminal Appeal, New South Wales
Date: 15 October 2004
Judge(s): McClellan AJA, Studdert J, James J

Background

The applicant pleaded guilty in the Local Court to attempting to possess prohibited drugs imported into Australia in contravention of the Customs Act (Cth), and was committed to the District Court for sentence. The drugs in question were 391.7 grams of pure cocaine, secreted inside a computer sent from Brazil, which Australian Federal Police intercepted and then delivered in a controlled operation.

The applicant received the package from a co-offender following the controlled delivery and was arrested shortly afterwards. Judge Solomon of the District Court sentenced the applicant to seven years' imprisonment with a non-parole period of four and a half years, commencing from the date of arrest.

The applicant sought leave to appeal against sentence, arguing it was manifestly excessive. Although the application was filed out of time, the Crown raised no objection and the Court granted an extension.

  • Whether the sentence was manifestly excessive, having regard to the quantity of cocaine (391.7 grams) being towards the lower end of the trafficable range rather than approaching the commercial quantity threshold
  • Whether the applicant's role in the transaction, placed slightly above that of a courier, warranted a more lenient sentence
  • Whether the applicant's motive, namely committing the offence to pay off a debt owed to a drug supplier arising from his own addiction, constituted a mitigating factor

Decision

On the quantity argument, the Court accepted that the applicable sentencing guidelines from R v Wong remained a useful practical guide for Commonwealth drug offences, despite the High Court's reversal of that decision on other grounds. The quantity of cocaine was acknowledged to be towards the lower end of the trafficable range, but the Court found this did not render the sentence manifestly excessive when all circumstances were weighed together.

On the question of role, the sentencing judge had accepted that the applicant was not a principal organiser, and was not strictly a courier, placing him slightly above that level. The Court found no error in this assessment and concluded the sentence was consistent with comparable cases.

On the motive of paying off a drug debt, the Court applied the general principle articulated by Wood CJ at CL in R v Henry that funding a drug habit, even a severe one, is not ordinarily a mitigating factor. The Court found the applicant's circumstances did not fall within any recognised qualification to that principle, noting in particular that the applicant was not destitute, the transaction was well above street level, and the evidence fell well short of establishing any extreme impairment of judgment or volition at the time of the offence.

All grounds of appeal were rejected. Leave to appeal was granted, but the appeal against sentence was dismissed.

Orders Made

  • Extension of time for filing the notice of application for leave to appeal granted
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the R v Wong sentencing guidelines for Commonwealth drug offences remain a useful practical guide, notwithstanding the High Court's reversal of that case on other grounds.
  • A sentence of seven years with a non-parole period of four and a half years for attempting to possess 391.7 grams of pure cocaine was not manifestly excessive, even where the quantity sat towards the lower end of the trafficable range, when the full sentencing picture was considered.
  • Under the principle in R v Henry, the need to acquire funds to service a drug addiction is not ordinarily a mitigating factor, and the court's application here confirmed that principle extends beyond armed robbery to drug importation offences.
  • A role placed slightly above courier level does not, of itself, generate a significant departure from the relevant sentencing range, particularly where the transaction is well above street level.
  • In dismissing the appeal, the Court emphasised that strong subjective features, including youth, no prior relevant record, a guilty plea, rehabilitative steps, and family support, do not displace the need to reflect the seriousness of large-scale drug transactions in the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act (Cth)
- Customs Act (Cth), ss 233B, 235, 237 and Sch 6

Cases
- R v Bernath [1997] 1 VR 271
- R v Henry (1999) 46 NSWLR 346
- R v Irusta (2000) 117 A Crim R 6
- R v Kevenaar [2004] NSWCCA 210
- R v Mas Rivadavia [2004] NSWCCA 284
- R v Reardon [2002] NSWCCA 203
- R v Schofield (2003) 138 A Crim R 19
- R v Selim (unreported, NSWCCA, 19 May 1998)
- R v Speer [2004] NSWCCA 118
- R v Studenikin [2004] NSWCCA 164
- R v Taru [2002] NSWCCA 391
- R v Tulloh (unreported, NSWCCA, 16 September 1993)
- R v Wong; R v Leung (1999) 48 NSWLR 340
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584