Citation: Mahdi Jahandideh v R [2014] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 08 September 2014
Judges: Hoeben CJ at CL, Rothman J, Beech-Jones J
Background
The applicant pleaded guilty in the District Court to importing a marketable quantity of a border controlled drug, specifically 2,151.3 grams of opium concealed in tight-fitting clothing on his person. He was sentenced to five years and six months' imprisonment with a non-parole period of three years and eight months, and was also fined $100,000.
The applicant sought leave to appeal against the fine component of his sentence. He argued the sentencing judge erred by imposing the fine without reliable evidence that he had the means to pay it, and without evidence that he had retained any profit from the offence.
Notably, the applicant's counsel conceded before the Court of Criminal Appeal that the fine had, in all likelihood, no practical impact on the applicant. Counsel also expressly disclaimed any reliance on procedural fairness, manifest excess, or the combined severity of the imprisonment and fine.
Legal Issues
- Whether the sentencing judge erred in imposing a fine under s 16C of the Crimes Act 1914 (Cth) without reliable evidence of the applicant's financial circumstances.
- Whether the absence of evidence that the applicant retained a profit from the offence precluded imposition of a fine.
- Whether the applicant had reasonable prospects of success warranting the grant of leave to appeal.
Decision
The Court refused leave to appeal, finding no reasonable prospects of success. Rothman J, with whom Hoeben CJ at CL agreed, held that s 16C(1) of the Crimes Act 1914 (Cth) requires a sentencing court to take financial circumstances into account, but does not make those circumstances decisive. Section 16C(2) further clarifies that a fine may still be imposed where financial circumstances cannot be ascertained.
Rothman J endorsed the approach in Darter v Diden (2006) 94 SASR 505, confirming that an offender's capacity to pay is a relevant but not controlling factor. General deterrence and the need for an appropriate financial penalty where a crime is committed for financial gain are legitimate independent bases for imposing a fine, and the financial circumstances of the offender do not assume prominence in serious drug importation cases.
The sentencing judge had in fact raised the possibility of a fine with defence counsel before sentencing, counsel responded with submissions on instructions about the applicant's limited means, and the sentencing judge referred to elements of the applicant's financial background in the sentencing remarks. The Court found the applicant could not point to any practical or legal prejudice flowing from the fine, and that this case was not an appropriate vehicle for elaborating on the requirements of s 16C.
Beech-Jones J agreed with the outcome, though he noted he would ordinarily have been inclined to grant leave and dismiss the appeal rather than refuse leave at the threshold. His Honour observed that s 16C(1) obliges a sentencing court to take financial circumstances into account only to the extent they are established to the court's satisfaction, and that the sentencing judge had referred to the limited financial material that was before him.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Under s 16C of the Crimes Act 1914 (Cth), a sentencing court must take an offender's financial circumstances into account before imposing a fine, but those circumstances are not a decisive or dominant factor, particularly in serious drug importation cases.
- Section 16C(2) expressly preserves the power to impose a fine even where the offender's financial circumstances cannot be ascertained.
- In dismissing the application, the Court of Criminal Appeal confirmed that general deterrence and the gravity of financially motivated offending can independently support the imposition of a substantial fine alongside a term of imprisonment.
- Where an offender is put on notice of a potential fine and given the opportunity to make submissions, the absence of a separate express finding on financial circumstances does not necessarily constitute a legal error, especially where no practical prejudice results.
- An appeal against a fine carries no reasonable prospects where the applicant concedes both that no procedural unfairness occurred and that the fine has no practical impact.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 16C
- Criminal Code Act 1995 (Cth), s 307.2(1)
Cases:
- Darter v Diden [2006] SASC 152; (2006) 94 SASR 505