Citation: Yaqub v R [2018] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 16 February 2018
Judges: Basten JA; R A Hulme J; Hidden AJ
Background
The appellant, an Australian-Iraqi dual citizen, was intercepted at Sydney International Airport in April 2015 carrying approximately 962 grams of opium in his luggage. He had told a border force officer that the substance was medicine for his mother. Subsequent analysis confirmed it was opium in a quantity exceeding the "marketable quantity" threshold under federal law.
The appellant pleaded guilty in the Local Court to importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code 1995 (Cth), and adhered to that plea at sentencing in the District Court. He was sentenced to four years' imprisonment with a non-parole period of two years.
The appellant later sought leave to appeal against both conviction and sentence. He argued that his plea was uninformed because his solicitor had not specifically advised him about a statutory defence available under s 307.2(4), which applies where an accused can establish they had no intent to sell any of the imported drug.
Legal Issues
- Whether the appellant's guilty plea was entered without adequate legal advice about the availability of the s 307.2(4) "no commercial intent" defence.
- Whether the solicitor's failure to explicitly refer to s 307.2(4) in written plea instructions constituted a miscarriage of justice.
- Whether the conviction should be set aside on the ground that a miscarriage of justice had occurred.
Decision
The Court considered what the solicitor, Mr Chamas, actually knew and advised at the time the plea was entered. The solicitor gave affidavit evidence that, in a conference on the day of the plea, the appellant had indicated that part of the opium was for personal use, part for his mother, and part from which he had made money. Mr Chamas advised that this combined account would be "very detrimental" and would likely lead to a conviction. The court accepted that evidence.
The court found that the s 307.2(4) defence requires an accused to prove, on the balance of probabilities, that neither they nor anyone else intended to sell any of the drug. Given the appellant's own account to his solicitor that he had made money from the opium, Mr Chamas correctly appreciated that no viable defence existed. As R A Hulme J observed, the solicitor could not advise the appellant to give false evidence, and the appellant's instructions foreclosed the defence.
The court also noted that the appellant's plea was meaningfully influenced by correct advice that a guilty plea would attract a sentencing discount. He did in fact receive a 25 per cent discount, reducing a sentence of five years and four months to four years. The sentencing judge also made an unduly favourable finding in mitigation that the importation was for personal use rather than supply.
The absence of a specific written reference to s 307.2(4) in the plea instructions did not, in the court's view, give rise to a miscarriage of justice. The oral advice given was accurate and appropriate in light of the instructions received. Leave to appeal against sentence was refused because no grounds or submissions in support of that application had been filed.
Orders Made
- Leave to appeal against conviction granted.
- Appeal against conviction dismissed.
- Leave to appeal against sentence refused.
Key Takeaways
- A guilty plea will not constitute a miscarriage of justice merely because written plea instructions do not expressly reference every available statutory defence, provided oral advice given was accurate and appropriate in light of the accused's actual instructions.
- Under s 307.2(4) of the Criminal Code 1995 (Cth), an accused bears the legal burden of establishing, on the balance of probabilities, that neither they nor any other person intended to sell any of the imported border controlled drug.
- Where an accused's own instructions to their solicitor disclose an intention to profit from an importation, the solicitor is not obliged to advise the accused to pursue a "no commercial intent" defence that those instructions cannot support.
- A conviction entered following a guilty plea that attracted a sentencing discount, and which also produced a favourable finding in mitigation, is unlikely to be set aside on the basis that the plea was uninformed.
- Unexplained delays in filing a notice of application for leave to appeal (here, 14 months) were described by the court as "regrettable to say the least," and the failure to file supporting grounds for a sentence appeal resulted in that aspect of the application being refused.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), ss 307.2(1), 307.2(4), 307.4, 13.4, 13.5
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases:
- Green, Al v R [2017] NSWCCA 282
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- R v Kouroumalos [2000] NSWCCA 453
- R v Lars (aka Larsson) (1994) 73 A Crim R 91
- R v Liberti (1991) 55 A Crim R 120
- Senior v R [2017] NSWCCA 220