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Court of Criminal Appeal 9 November 2010

Zahrooni v R; Director of Public Prosecutions (NSW) v Zahrooni

[2010] NSWCCA 252

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES SUPPLY PROHIBITED DRUG (OPIUM) OTHER OFFENCES CRIMINAL LAW

Citation: Zahrooni v R; Director of Public Prosecutions (NSW) v Zahrooni [2010] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 9 November 2010
Judge(s): Simpson J (principal judgment); Hoeben J and RA Hulme J (agreeing)

Background

The applicant, a refugee from Iran with no prior criminal history, was stopped by police during a random breath test in Fairfield in March 2009. Officers found 48 sachets containing 69 grams of opium in a chewing gum packet in his pockets, along with $1,077.70 in cash and a small knife in his vehicle. Because 69 grams exceeded the statutory traffickable quantity of 30 grams, the applicant was deemed by law to possess the opium for the purpose of supply.

He pleaded guilty to supply a prohibited drug (opium), as well as to possessing a knife in a public place and possessing goods reasonably suspected of being illegally obtained. In the District Court, Hughes DCJ sentenced him to a total term of 3 years' imprisonment for the drug offence, with a non-parole period of 18 months, finding that special circumstances justified the equal split between non-parole and balance of term. Concurrent one-month fixed terms were imposed for the other offences.

Two separate appeals arose from the same set of facts. The applicant sought leave to appeal the severity of his sentence. The Director of Public Prosecutions (DPP) separately appealed against the District Court's refusal to make a forfeiture order over the Nissan Maxima motor vehicle the applicant had been driving, under the Confiscation of Proceeds of Crime Act 1989.

  • Whether the sentence imposed for supply of opium was manifestly excessive or otherwise affected by error
  • Whether Hughes DCJ erred by failing to direct the applicant's release on parole at the expiration of the non-parole period, as required by statute
  • Whether the vehicle constituted "tainted property" used in connection with the commission of a serious offence, warranting a forfeiture order under the Confiscation of Proceeds of Crime Act 1989
  • Whether hardship and ordinary use of the vehicle were properly considered in the refusal to make a forfeiture order
  • Whether the Court of Criminal Appeal had jurisdiction to award costs where the respondent's counsel appeared pro bono

Decision

Sentence appeal: The Court of Criminal Appeal found no error in the sentencing judge's assessment of the appropriate penalty. It accepted that the applicant's significant personal circumstances, including his refugee background, experience of trauma, period of detention at Woomera, depression, and lack of prior convictions, had been properly weighed by the sentencing judge. Leave to appeal was granted, but the appeal was dismissed.

Parole direction omission: The Court identified a technical but important omission: because the sentence exceeded a certain length, Hughes DCJ was obliged under the Crimes (Sentencing Procedure) Act 1999 to direct the applicant's release on parole at the end of the non-parole period, and had failed to do so. The Court of Criminal Appeal remedied this by issuing the direction itself, specifying 24 August 2011 as the release date.

Forfeiture order (Crown appeal): The DPP argued that the vehicle was tainted property and that the sentencing judge erred in refusing to order its forfeiture. The Court found that although the vehicle had been used to transport the drugs (making it technically "tainted property"), the sentencing judge was entitled to exercise the statutory discretion against forfeiture. The judge had properly considered that the car was ordinarily used for lawful purposes and that forfeiture would cause hardship. The Court noted that the statute expressly permits inferences about potential hardship even without direct evidence from the offender, and it declined to find that the judge had applied a wrong principle or taken irrelevant matters into account.

Costs: The Court raised whether it had jurisdiction to award costs, given that the respondent's counsel appeared pro bono. Senior counsel for the DPP submitted in writing that such an order lay beyond the Court's jurisdiction. Because no costs order was sought in practical terms, the Court found it unnecessary to resolve the jurisdictional question.

Orders Made

  • Leave to appeal against sentence granted; appeal dismissed
  • Direction made that the applicant be released to parole at the expiration of the non-parole period, on 24 August 2011
  • DPP appeal under s 92(4) of the Confiscation of Proceeds of Crime Act 1989 dismissed

Key Takeaways

  • A sentencing court's failure to issue a mandatory parole direction under the Crimes (Sentencing Procedure) Act 1999 does not invalidate the sentence; the Court of Criminal Appeal can remedy the omission by issuing the direction itself on appeal.
  • Under the Confiscation of Proceeds of Crime Act 1989, property may be technically "tainted" by connection to a serious offence while still attracting discretionary refusal of a forfeiture order, particularly where the property was primarily used for ordinary lawful purposes and forfeiture would cause hardship.
  • Hardship need not be established through direct evidence from the offender: the Act permits the court to draw inferences about potential hardship from the information before it, including materials tendered at sentencing.
  • In dismissing the Crown appeal against the forfeiture refusal, the Court applied the House v The King standard, declining to intervene unless the discretion had miscarried through a wrong principle, irrelevant considerations, or a failure to consider relevant matters.
  • Where the Court of Criminal Appeal raised a question of costs jurisdiction in a criminal appeal, it left the issue unresolved because the practical circumstances made a determination unnecessary, leaving the jurisdictional question open.

Legislation and Cases Referenced

Legislation:
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 13, 18, 92
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 50
- Drug Misuse and Trafficking Act 1985 (NSW), s 29, Sch 1

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- R v Bardo (NSWCCA, 14 July 1992, unreported)
- R v Bolger (1989) 16 NSWLR 115
- R v Clark (NSWCCA, 15 March 1990, unreported)
- R v Gip [2006] NSWCCA 115; 161 A Crim R 173
- R v Gu [2006] NSWCCA 104
- R v Lake (1989) 44 A Crim R 63
- Scott v R [2010] NSWCCA 103