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7
Court of Criminal Appeal 30 August 2007

Mirza v R

[2007] NSWCCA 257

Drugs
CRIMINAL LAW SENTENCE APPLICATION OF WONG AND LEUNG WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Mirza v R [2007] NSWCCA 257
Court: NSW Court of Criminal Appeal
Date: 30 August 2007
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The applicant, an Australian citizen originally from Pakistan, pleaded guilty in the Local Court to importing a traffickable quantity of heroin contrary to s 233B(1)(a)(iii) of the Customs Act 1901 (Cth). On arrival at Sydney Airport from Dubai in October 2004, he was found to have packages taped to his feet containing 427 grams of powder, which included 313.7 grams of pure heroin. The drug had an estimated wholesale value of approximately $150,000 and a street value of between $750,000 and $1 million.

The applicant had previously been employed by State Rail for 13 years before losing his position in 2003. He reported financial difficulties following his unemployment, and stated he agreed to carry the drugs in exchange for $10,000 to pay debts. He had no prior criminal record and psychological and pre-sentence reports recorded expressions of remorse, as well as a diagnosis of Major Depressive Disorder arising from his imprisonment.

Judge Sorby of the District Court sentenced the applicant to nine years' imprisonment with a non-parole period of five years, commencing 28 October 2004. The applicant sought an extension of time to appeal, lodging his application in January 2007, approximately 19 months after sentence. The sole ground of appeal was that the sentence was manifestly excessive.

  • Whether the application for an extension of time to appeal should be granted.
  • Whether the nine-year sentence was manifestly excessive having regard to the guideline in R v Wong and Leung (1999) and the applicant's subjective circumstances.
  • Whether the Wong and Leung guideline range already incorporated a discount for a guilty plea.
  • What effect the repeal of s 16G of the Crimes Act 1914 (Cth) had on the applicable sentencing range.

Decision

The Court of Criminal Appeal, in reasons delivered by Howie J (with McClellan CJ at CL and Harrison J agreeing), granted the extension of time and leave to appeal, but dismissed the appeal.

On the Wong and Leung guideline, Howie J confirmed that the range of six to nine years' imprisonment for a mid-level traffickable quantity (between 200 grams and 1 kilogram) was fashioned with a guilty plea already assumed. This was made clear by the Court of Appeal's clarification in R v Thomson and Houlton (2000) and confirmed in R v Haidar (2004). The applicant's submission that a 25 per cent guilty plea discount would push the starting point beyond an acceptable level therefore did not succeed.

The court also noted that the repeal of s 16G of the Crimes Act 1914 (Cth), which had previously required a discount to account for the absence of remissions in federal sentences, substantially affected the sentencing range applicable while it operated. The nine-year sentence was at the top of the Wong and Leung range, but the court found this was not unjustified. No finding had been made that the applicant was merely a courier or low in the importation hierarchy, and critically, he had left Australia specifically for the purpose of returning with drugs. Howie J regarded this as a significant aggravating feature not present in comparable cases such as Haidar. While acknowledging the sentence was a heavy one given the applicant's subjective circumstances, his Honour concluded it was within the range legitimately available to the sentencing judge.

The court also noted an error by the sentencing judge, who treated the non-parole period as if a statutory ratio applied in Commonwealth matters. No such ratio exists. However, this error appeared to have favoured the applicant, as the non-parole period of five years represented 55 per cent of the total sentence, below the usual range for federal offences.

Orders Made

  • Extension of time to apply for leave to appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Wong and Leung guideline range of six to nine years for mid-level heroin importation already incorporates a discount for a guilty plea; it cannot be used to argue that a sentence at the top of that range is excessive simply because a plea discount was also applied.
  • Departing Australia with the deliberate purpose of returning with drugs constitutes a meaningful aggravating factor that can justify a sentence at the upper end of the guideline range, distinguishing it from cases involving passive receipt of drugs sent into Australia by mail.
  • No error was established sufficient to warrant appellate intervention, even though the sentence was acknowledged to be heavy given the applicant's lack of prior criminal history and favourable subjective circumstances.
  • A sentencing judge's mistaken application of a non-existent statutory ratio for federal non-parole periods will not automatically be corrected on appeal where the error appears to have benefited the offender.
  • Repeal of s 16G of the Crimes Act 1914 (Cth) substantially affected the sentencing range for federal offences, as courts can no longer discount sentences to account for the absence of remissions; this affects the continuing relevance of sentences imposed while that provision was in force.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(a)(iii)
- Crimes Act 1914 (Cth), s 16G (repealed)

Cases
- The Queen v Olbrich (1999) 199 CLR 270
- R v Wong and Leung (1999) 48 NSWLR 340
- R v Thomson and Houlton (2000) 49 NSWLR 385
- R v Henry (1999) 46 NSWLR 346
- R v Jurisic (1998) 45 NSWLR 209
- R v Haidar [2004] NSWCCA 350
- R v Studenikin (2004) 60 NSWLR 1