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Court of Criminal Appeal 26 June 2002

REGINA v. ABDULLAH [2002] NSWCCA 259 revised - 17

[2002] NSWCCA 259

Drugs
CRIMINAL LAW SENTENCE APPEAL DRUG IMPORTATIONS MIDDLE RANGE DRUGS LIMITED EVIDENCE OF ROLE

Citation: REGINA v. ABDULLAH [2002] NSWCCA 259 revised - 17/07/2002
Court: New South Wales Court of Criminal Appeal
Date: 26 June 2002
Judge(s): Giles JA, Dunford J, Greg James J

Background

The appellant was a 25-year-old Iraqi refugee who had been granted permanent residency in Australia. He arrived at Sydney Airport on 16 August 2000 on a flight from Bangkok and was detected carrying drugs concealed in the soles of his shoes, following an alert by a customs sniffer dog. The packages contained 395.5 grams of opium and 156.8 grams of cannabis resin.

A jury convicted the appellant of two counts of importing a traffickable quantity of a prohibited substance under the Customs Act 1901 (Cth). He was sentenced in the District Court to concurrent terms of six years imprisonment, with a non-parole period of four years, commencing 28 May 2001. The sentencing judge treated the appellant as the principal behind the importation, rather than a mere courier.

The appellant sought leave to appeal against those sentences, arguing that the trial judge had made errors in assessing his role and the seriousness of the offences, and that the sentences fell outside the permissible range.

  • Whether the sentencing judge erred in treating the appellant as the principal behind the importation, given limited evidence about his precise role
  • Whether the judge correctly applied the principles in Olbrich v The Queen (1999) when assessing facts relevant to the role of the offender
  • Whether the sentences imposed were within the range available for middle-range drug importations of opium and cannabis resin
  • Whether comparison with sentences for more pernicious drugs demonstrated that the sentences for these drugs were excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Greg James J, with whom Giles JA and Dunford J agreed, found that no appellable error had been established in the sentencing judge's approach.

On the question of the appellant's role, the Court noted that the sentencing judge had concluded the appellant was the person behind the importation. The Court accepted that the evidence about precise role was limited, but found no error in the judge's treatment of this question in the context of the applicable principles from Olbrich. The Court did not find the judge had overstated the objective criminality of the offences.

The appellant's argument that his sentence approximated the lower end of the range applicable to more serious drugs, and should therefore be reduced for these less serious drugs, was rejected. The Court regarded comparative cases involving greater quantities or different drugs as of no material assistance, echoing the view of the sentencing judge.

Applying the principles from House v The King (1936), the Court confirmed that an appellate court may only intervene where the sentencing judge acted on a wrong principle, admitted irrelevant material, mistook the facts, or failed to consider a material matter, or where the outcome is unreasonable or plainly unjust. The Court described the sentence as severe but concluded it was not plainly unreasonable or unjust and did not exceed the range properly available to the trial judge.

Orders Made

  • Leave to appeal granted
  • The non-parole period of four years fixed in each count was corrected to be expressed as a single non-parole period
  • Appeal otherwise dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that appellate intervention in sentencing requires demonstration of identifiable error or a manifestly unreasonable outcome, consistent with the House v The King standard.
  • Where evidence of an offender's precise role in a drug importation is limited, a sentencing court may still draw inferences about that role, subject to the constraints established in Olbrich v The Queen.
  • Comparison with sentences imposed for larger quantities or more pernicious drugs does not, without more, establish that a sentence for middle-range drugs is excessive.
  • The absence of criminal history, recent refugee and permanent residency status, and other subjective factors did not render concurrent six-year terms for dual drug importation convictions outside the permissible range.
  • A sentence described as "severe" by the appellate court remains valid if it falls within the range of a just discretion; severity alone is not a sufficient ground for appellate intervention.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), ss 233B(1)(b), 235
- Crimes Act 1914 (Cth), ss 16A, 16G
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Olbrich v The Queen (1999) 106 ALR 330
- House v The King (1936) 55 CLR 499
- Regina v El Kahani (1991) 21 NSWLR 370
- Wong & Leung (1999) 48 NSWLR 340