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Court of Criminal Appeal 5 August 2022

Solhi v R

[2022] NSWCCA 162

Drugs

Citation: Solhi v R [2022] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 5 August 2022
Judge(s): Beech-Jones CJ at CL, Dhanji J, Yehia J

Background

The applicant pleaded guilty in the District Court at Sydney to two Commonwealth offences: importing a commercial quantity of methamphetamine (two consignments totalling approximately 8.9kg of pure methamphetamine concealed within car wax tubes and honey jars), and trafficking in controlled drugs including opium, cannabis and MDMA. The importation offences involved consignments arriving from Iraq and Iran in late 2017, with the applicant linked to the consignments through phone numbers, email communications with freight companies, and phones found in his possession at arrest. The trafficking offence arose from intercepted telephone calls between January and February 2018.

The District Court sentenced the applicant to an aggregate term of 10 years and 6 months' imprisonment, with a non-parole period of 7 years and 6 months. The indicative sentence for the importation offence was 9 years (assessed at mid-range seriousness with a 10% discount for the guilty plea), and 2 years and 8 months for the trafficking offence (assessed as below mid-range, also with a 10% discount).

The applicant filed a notice of appeal in May 2022, well outside the filing period, seeking leave on the sole ground that the sentence was manifestly excessive.

  • Whether the applicant should be granted leave to file his notice of appeal outside the prescribed filing period
  • Whether the aggregate sentence of 10 years and 6 months' imprisonment was manifestly excessive
  • Whether the sentencing judge gave appropriate weight to the applicant's subjective case, including his lack of a prior criminal record in Australia, his remorse, prospects of rehabilitation, harsh conditions in custody, and the impact of imprisonment on his family overseas

Decision

Yehia J (with whom Beech-Jones CJ at CL and Dhanji J agreed) granted leave to file the notice of appeal out of time. Although the delay was not fully explained, particularly for the period between September 2020 and June 2021, the Court accepted that the applicant had maintained instructions to appeal from at least June 2021. Given the finding on the merits, the extension was granted.

On the question of manifest excess, the Court applied the orthodox test: a sentence is manifestly excessive only where it is unreasonable or plainly unjust, or so far outside the range of available sentences that error must be inferred. It is not sufficient that the appellate court might have sentenced differently, and the applicant bears the onus of establishing the error.

The Court found that the sentencing judge had addressed and taken into account each element of the applicant's subjective case. Those matters included the absence of a prior criminal record in Australia, some remorse demonstrated by the guilty plea (though the sentencing judge was cautious about the level of contrition), the applicant's age and prospects of rehabilitation, the more onerous nature of his custodial experience, and the effect of his imprisonment on his family in Iran who were unable to visit him. The applicant did not rely on comparable cases in the appeal, nor did he seek to distinguish the Crown's comparable cases from the proceedings below.

The Court was not persuaded that the sentence was manifestly excessive. The objective seriousness of the offending warranted a lengthy term of full-time imprisonment notwithstanding the subjective factors, and the appeal was dismissed.

Orders Made

  • Leave to extend the time for filing the application for leave to appeal was granted
  • Leave to appeal against sentence was granted
  • The appeal was dismissed

Key Takeaways

  • A sentence is manifestly excessive only if it is unreasonable or plainly unjust, or so far outside the available range that error must be inferred. The appellate court exercising a different discretion would not, of itself, establish manifest excess.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that each subjective matter raised by an applicant must be shown to have been improperly weighed, not merely noted, before a ground of manifest excess can succeed.
  • Where an applicant fails to rely on comparable cases at the appellate stage or to distinguish the Crown's comparable cases, that gap weakens the contention that the sentence falls outside the available range.
  • An extension of time to file a notice of appeal may be granted even where the delay is not fully explained, provided the applicant demonstrates a continued intention to appeal and the court sees sufficient merit to warrant consideration of the ground.
  • The objective seriousness of large-scale commercial drug importation carries substantial weight in sentencing, and can outweigh favourable subjective factors even where those factors are accepted in full.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), Part 1B
- Criminal Code (Cth), ss 302.4(1), 307.1(1)
- Criminal Code Regulations 2002 (Cth)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- Obeid v R [2017] NSWCCA 221
- R v Igwebuike [2017] ACTSC 323
- Wong v The Queen (2001) 207 CLR 584
- Zaugg v R [2020] NSWCCA 53