Court of Appeal (Vic)|2014-03-03|Before: Priest JA, Weinberg JA, Coghlan JA

Alavy v The Queen [2014] VSCA 25 (3 March 2014)

DPP v Alavy (Unreported, County Court of Victoria, Judge Hampel, 11 July 2013)

1 The appellant pleaded guilty, in the County Court at Melbourne, to one charge of having imported a marketable quantity of a border controlled drug (methamphetamine), contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He was sentenced on 11 July 2013 as follows:

Import marketable quantity of border controlled drug (methamphetamine)

9 years ' imprisonment with a non-parole period of 7 years

2 Pursuant to leave granted by Priest JA, the appellant appeals against sentence on the following grounds:

The learned sentencing judge erred in her approach to the principle of specific deterrence.
The sentence is manifestly excessive.

3 The appellant was born in Iran and migrated to this country in 2006. On 22 December 2012, Australian Customs authorities examined a DHL Express parcel that had been sent from Tehran, Iran. The package was addressed to a 'Sam Smith' of 'Electric Ltd Co, 2nd Floor Office Melbourne, 24 Santa Rosa Boulevard, Doncaster East, Victoria 3109'. It was described as containing 'High Temperature Armature Wire' but concealed within it were 495.5 grams of methamphetamine, with a purity of 80.3% (pure weight of 397.8 grams).[1]

4 Between 27 December 2012 and 13 January 2013 the appellant made a number of telephone calls (both personally and by another person using a mobile telephone that was registered to a 'John Smith') to DHL and Customs enquiring as to the whereabouts of the parcel. During that period the appellant remitted large amounts of money on three separate occasions to a 'Farzad Tooba' in Tehran. There were sums of $10,000, $10,500 and $12,500 sent to Iran.

5 On 8, 12 and 13 January 2013, the appellant telephoned an Iranian number and spoke to an unknown male. There were discussions regarding the transfer of the methamphetamine once it came into the appellant's possession.

6 On 14 January 2013, an Australian Federal Police officer, posing as a DHL courier, went to the appellant's house in Doncaster East. The parcel was handed over, and the appellant took possession of it. Two minutes later, the appellant telephoned the Iranian number to inform the person with whom he was speaking that delivery had been effected. The appellant was arrested later that day. He made no admissions when interviewed by police.

7 Counsel who appeared for the appellant on the plea, submitted that specific deterrence was not a factor that should weigh heavily in the exercise of her Honour's sentencing discretion. He supported that submission by reference to his client's family support and lack of prior convictions. He also drew attention to the fact that the appellant was not a user of drugs or alcohol. He pointed to the appellant's good employment record and sound employment prospects.

8 The judge responded to that submission by commenting twice, once during the course of the plea, and again in her reasons for sentence, that all of these factors, upon which counsel relied, existed at the time of the commission of the offence. She noted that they had not deterred the appellant from acting as he had.

In my view the sentence must give some weight to specific deterrence. The very factors that properly count in your favour as enhancing your prospects of rehabilitation existed at the time of the commission of the offence, and they were insufficient to deter you from committing the offence. They are: your family support, your absence of other criminal history, your intelligence, the absence of drug or alcohol abuse, the absence of mental illness or psychological condition contributing to the offending, your good employment history and your good prospects of future employment.

So whilst I count those in your favour in assessing your prospects for rehabilitation as good, I nonetheless take them into account as demonstrating that notwithstanding their existence, they were not sufficient to deter you, and therefore, the sentence must give some weight to specific deterrence.

10 It is this particular observation, regarding the need to give 'some weight' to specific deterrence that forms the basis of ground 1 of the appeal.

11 Counsel who appeared for the appellant before this Court submitted that the judge fell into specific error by using the mitigating factors set out above as the basis for a finding that specific deterrence was to be given 'some weight' in sentencing for this offence. It was submitted that her Honour's reasoning was 'perverse', since these factors ought to have operated exclusively in the appellant's favour. They should have led the judge to conclude that specific deterrence was of no real significance, in the particular circumstances of this case.

12 Counsel further submitted that the requirement in s 16A(2)(j) of the Crimes Act 1914 (Cth), that the court take into account the deterrent effect that any sentence under consideration may have upon the person, was intended to operate prospectively. Yet, paradoxically, her Honour's approach had reversed what the legislature had intended, and had the effect of 'punishing' the appellant for having the good fortune to be able to call in aid these mitigating factors. In effect, it was submitted that the judge had applied the relevant provision 'retrospectively', and this had operated very much to his detriment.

13 It was submitted that the judge's approach to specific deterrence gave rise to specific error of a kind that vitiated the exercise of the sentencing discretion. It was further submitted that, with the sentencing discretion having been re-opened, this Court should re-sentence the appellant to a term that was somewhat less than the term imposed below.

14 From the appellant's perspective, the advantage of succeeding on this ground, as distinct from ground 2, was obvious. It would enable him to have this Court consider afresh what sentence it would impose for this offending without his having to overcome the very considerable hurdle of demonstrating that the sentence was manifestly excessive.

15 Counsel who appeared on behalf of the respondent before this Court submitted that the judge had not erred in approaching the question of specific deterrence in the way that she had. The judge had been confronted with the somewhat improbable submission that specific deterrence was of no real significance so far as the appellant was concerned, and was doing nothing more than responding to that submission by stating the obvious. Counsel submitted that her Honour had been perfectly entitled to observe, as she had, that the very factors upon which the appellant placed heavy reliance in submitting that there was no need for specific deterrence had been present at the time he elected to commit this offence. Counsel submitted that there was nothing 'retrospective' about her Honour's observation.

16 When what the judge said is read in context, the Crown's submission should, in our opinion, be accepted. It may be that the judge used language that might have been better chosen. It does not follow that specific error, still less any error of principle that might vitiate the exercise of the sentencing discretion has been demonstrated.

17 The judge was plainly entitled, if not obliged, to pay some regard to the need for specific deterrence. We can see no error in the way that she took that factor into account. Nor can we see any error in the weight that it was accorded. Of course, general deterrence was by far the most important sentencing consideration in this case. Specific deterrence was of less significance, but certainly not to be disregarded.

19 It was submitted on behalf of the appellant that the sentence imposed in this case was 'wholly outside the range of sentence options available' to the sentencing judge. This was said to be so having regard to the following factors:

although the quantity of the drug imported was substantial, and the role played by the appellant was significant, her Honour was not satisfied that the $33,000 that he had remitted to Iran had been payment for the drugs. This reduced the objective gravity of the offending;
the appellant pleaded guilty at the earliest opportunity;
the appellant had no criminal history of any kind, and had adduced positive evidence of prior good character;
the appellant had endured a difficult upbringing, his father having been killed when the appellant was just 12. This had resulted in family hardship and necessitated the appellant leaving school in about year 8;
the appellant suffered from depression, and principles 5 and 6 of Verdins[2] were said to be applicable;
the appellant's prospects of rehabilitation were accepted as being good; and
the head sentence of seven years' imprisonment was said to be heavier than many sentences imposed for similar offending in comparable cases.

20 The Crown responded to this submission by drawing attention to the fact that:

these drugs had been imported for profit;
their estimated value was substantial, being between $228,000 and $495,000;
the judge was not satisfied that the guilty plea constituted any evidence of remorse; and
the sentence was broadly in accord with other sentences imposed in comparable cases involving like quantities of drugs, and offenders with similar backgrounds to that of the appellant.

21 In relation to this ground, it must be said that neither the cases upon which the appellant relied in Annexure A to his written case, nor those upon which the Crown relied in its Table A, were of any real utility in determining whether this sentence was out of kilter with sentences for like offending.

22 For one thing, the list of cases produced by the Crown contained at least one significant error. Counsel very fairly acknowledged that there were inaccuracies in the description given of the offending in the first of the cases relied upon.

23 Additionally, as with many such matters, it is difficult to escape the feeling that there has been an element of 'cherry picking' involved in the selection of cases to be included within these schedules. That comment applies to both parties.

24 More importantly, the limitations of such statistical material have been well documented, and commented upon by the High Court,[3] as well as by intermediate courts of appeal.[4] We have examined the tables, although we cannot say that we have gone into the details of the cases set out therein. The facts in some of those cases are known to us. All of them have their points of similarity, and their points of difference, with regard to the facts of this case.

25 All that can be said in relation to the statistical material presented by both parties is that the sentence of seven years imposed in this case seems to be fairly typical of the levels of imprisonment fixed for offending of this very serious nature. There is nothing to suggest that this case stands out, or that the appellant has been singled out for heavier punishment than others who have engaged in like offending.

26 The ground of manifest excess is a stringent one, difficult to make good. The appellant must demonstrate not merely that the sentence imposed is stern, but that it is 'wholly outside the range' of sentences that might reasonably have been fixed. Having regard to the gravity of the offending (including the significant role played by the appellant in what was obviously intended to have been a lucrative drug importation) and the need for general deterrence, we not persuaded that this sentence should be so viewed.

[1] The judge noted that the market value was estimated to be a minimum of $228,800 wholesale, which equated to a street value of approximately $495,500.

[3] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; Barbaro v The Queen [2014] HCA 2.

[4] Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28; Hudson v The Queen (2010) 30 VR 610; Director of Public Prosecutions (Vic) v CPD [2009] VSCA 114; (2009) 22 VR 533.

Criminal Code Act 1995(Cth)

Alavy v The Queen [2014] VSCA 25

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Judgment (38 paragraphs)

Alavy v The Queen [2014] VSCA 25 (3 March 2014)

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Legislation Cited (1)

Cases Cited (5)