Criminal law - Application for leave to appeal against sentence - Importation of a marketable quantity of a border controlled drug - Whether sentence manifestly excessive

Criminal Appeals Act 2004 (WA), s 27

DPP (Cth) v Haidari [2013] VSCA 149

Markovic v The Queen (2010) 30 VR 589; (2010) 200 A Crim R 510

R v Williams [2011] VCC 1044

Tiknius v The Queen [2011] NSWCCA 215; (2011) 221 A Crim R 365

Wilson v The State of Western Australia [2010] WASCA 82

1 REASONS OF THE COURT: This is an application for leave to appeal against sentence.

2 The appellant was convicted after trial in the District Court that on or about 15 November 2011 he imported a marketable quantity of a border controlled drug, namely methylamphetamine, contrary to s 307.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 25 years or a fine of $550,000 or both.

3 On 22 November 2013, the appellant was sentenced to 6 years and 8 months' imprisonment with a non-parole period of 4 years to commence on 2 December 2012.

4 The sole ground of appeal alleges that the sentence was manifestly excessive 'having regard to the circumstances of the offending, in particular, the stress the appellant was under at the time of the offending, the personal circumstances of the appellant and sentencing standards'.

5 In our opinion, the ground of appeal does not have reasonable prospects of success. Accordingly, the appeal must be taken to be dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA). Our reasons for this conclusion are as follows.

6 On or about 14 November 2011, the appellant and his wife boarded an Emirates airline flight from Dubai to Perth. They had earlier flown to Dubai from the Iranian capital, Tehran. Internally concealed in the appellant's body were 51 packages of methylamphetamine. During the flight, the appellant complained of feeling ill. According to witnesses called on behalf of the Crown who were on board the flight, the appellant said that he was carrying 'ice'. A doctor and three nurses on board the aircraft testified to the effect that the appellant was anxious and appeared unwell.

7 Upon the aircraft landing in Perth on 15 November 2011, the appellant was taken to Royal Perth Hospital, accompanied by Australian Federal Police officers. There, Dr McCoubrie, a consultant in emergency medicine and clinical toxicology, examined the appellant and formed the view that he was showing symptoms of an amphetamine overdose. A CT scan revealed numerous packages located all the way from the appellant's stomach to the small intestine and into the large intestine. The packages were removed in the intensive care unit by way of a bowel washout. They were later analysed and found to contain a methylamphetamine admixture weighing 126 g, with a purity of 73.8%. The pure weight of methylamphetamine was 92.9 g. The estimated street value of the drugs was $132,000.

8 The prosecution case at trial was that the appellant had incurred substantial debts and was under considerable financial stress. Motivated by the need to alleviate that stress, he agreed to import the methylamphetamine.

9 The appellant did not deny that he had imported the methylamphetamine. Indeed, at the commencement of the trial he made admissions to that effect. The appellant's case at trial was that he had imported the drug under duress. He testified that in Iran he had incurred a debt to a man named Sayed Haghian (referred to in the trial as Sayed) of approximately $20,000 to pay for his wedding, which took place on 15 September 2011. A document tendered at trial and signed by the appellant showed that he was obliged to repay that debt within one month of 17 September 2011. The appellant failed to do so.

10 On 19 October 2011, he flew from Iran to Australia. He returned to Iran on 6 November 2011 to bring his wife back to Australia. He testified that, on or about 13 November 2011, Sayed told him that he had borrowed the money from a third party and that he would be in significant difficulty if the third party was not repaid the loan as agreed. According to the appellant, Sayed told him that he would 'have to take something for them to Australia'. The appellant testified that he was then knocked unconscious and, when he came to, he was threatened at gunpoint and told that unless he took drugs to Australia he would be killed. The appellant said that Sayed made him swallow a number of packages and that some larger packages were inserted into his anus. According to the appellant, he was told that his parents would be killed if things did not go according to plan. The appellant said that he was told to take the drugs from Iran to Australia and that he would be met at the airport by someone who would, in turn, take the drugs from him.

11 The appellant said that he did not feel that he could complain to the Iranian authorities because of that government's strict policies in relation to anyone connected with drugs. He said that he attempted to expel the drugs in Dubai, but was unsuccessful. He testified that once the aircraft was within Australian territory and he was assured it would not return to Dubai or travel to Singapore, he notified crew members on the aircraft that he was carrying drugs and that he wanted to assist the Australian authorities.

12 In the course of his evidence, the appellant admitted that he was gambling, that he owed $20,000 on his credit card and that his tiling business was not doing well.

13 It is patent from its verdict that the jury was satisfied beyond reasonable doubt that the appellant had not acted under duress.

14 At the time he was sentenced, the appellant was 38 years of age. He was born in Iran and was educated in that country to the equivalent of year 12. He and other members of his family were politically active. Consequently, he fled Iran. In due course, he sought and was granted asylum in Australia. In Australia, the appellant qualified as a tiler. After being employed in that trade for a number of years, he commenced a tiling business of his own.

15 Since 2008, the appellant travelled back to Iran to visit family and friends on several occasions. On one of those visits, he met his now wife. As we have already mentioned, they married not long prior to his arrest. He and his wife now have a young child. The appellant's wife and child have suffered and are likely to continue to suffer economic and social hardship as a result of the appellant's incarceration.

16 The appellant has no prior convictions and was considered by her Honour to be a person of prior good character. Her Honour expressed the opinion in her sentencing remarks that there was nothing before the court to suggest that the appellant would offend in this or any other way in the future.

17 It is not alleged that the learned sentencing judge made any express error. The allegation is one of implied error. It is therefore unnecessary to describe her Honour's comprehensive sentencing remarks in any great detail.

18 Her Honour said that the exact circumstances in which the appellant came to have the drugs in Iran were not fully known or completely clear in the light of the jury's rejection of the defence of duress.

19 Her Honour observed that the contract tendered at trial between the appellant and Sayed appeared genuine. She accepted that the appellant was being pressed for payment of the loan and was under some stress at the time he committed the offence. She noted that the appellant had other concerns, including the unprofitable state of his business and the need to support his new wife. Having acknowledged these things, she said:

Any financial concerns or distress, however, can in no way excuse offending behaviour, although it may provide an explanation for why you made the extremely unwise and risky decision to participate in criminal conduct (ts 1294).

20 The learned sentencing judge said that the appellant played a substantial and central role in the offending by concealing the drugs in his body prior to his departure from Iran. She remarked that offending of this type was difficult to detect and involved some degree of planning. She stressed the need for general deterrence. She encapsulated the appellant's criminality in this way:

On the evidence before the court in this trial it cannot be said that you were at the very top of the hierarchy of drug dealers or couriers, but it is the case that you were a fundamental and indispensable link in the chain of proposed delivery and distribution of the drug because it was you who physically conveyed the concealed drug in your person and brought them into Australia.

At the very least there was a financial incentive for you to become involved because on your own evidence, putting aside the defence of duress which was rejected, you were to gain financially by extinguishing a debt by way of the loan you had incurred on your evidence to pay for your wedding party.

You chose or agreed to become involved in this criminal activity fully aware not only of the criminality of the endeavour, but the inherent dangers of the activity. It is quite clear that you were desperate to repay a debt and perhaps to a degree reluctant to become involved, but it must be noted on your evidence you voluntarily incurred that debt and furthermore, that can never justify resorting to criminal means to repay or extinguish a debt (ts 1300).

21 Her Honour gave mitigating weight to the appellant's prior good character and the adverse psychological effects felt by the appellant as a result of his concern for the wellbeing of his wife and baby son.

(d) the hardship the sentence will cause to his family,

the sentence imposed by Deane DCJ was manifestly excessive.

The general principles applicable to this case

23 The general principles which must be applied in this case are well known and were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated. It is enough to say that this court cannot interfere with a sentence imposed at first instance unless a material error is demonstrated. For an allegation of manifest excess to succeed, the appellant must show that the sentence was unreasonable or plainly unjust.

24 The sentencing principles applicable to offences of the kind committed by the appellant are not in any doubt. Having regard to the difficulty of detection and the adverse social consequences that follow, general deterrence is the predominant sentencing consideration.

25 Although the appellant was not the organiser of the importation, his role was substantial and central. The concealment of the drugs inside the appellant's body was an aggravating factor. It was clearly intended to thwart detection in Australia and plainly involved premeditation.

26 This was not a case of duress falling short of a complete legal defence: as to which see Tiknius v The Queen [2011] NSWCCA 215; (2011) 221 A Crim R 365. Rather, this was a case of offending for monetary gain, in the sense that the appellant acted to discharge a debt he owed. Insofar as the appellant was, to a degree, reluctant to commit the offence, he nevertheless did so, knowing full well the risk he was taking and the consequences if he was caught. The fact remains that the appellant acted for reward. The appellant's motive and reluctance are not matters which can afford much, if any, mitigation.

27 The subjective factors applicable to the appellant were favourable and were taken into account by her Honour. Having said this, because of the need for general deterrence, the weight that could be given to them was limited. The hardship that the appellant's incarceration will cause to his young wife and child is unfortunate, but cannot constitute a mitigating factor. As has been said on many occasions, a term of imprisonment will almost inevitably result in hardship for an offender's family. Such hardship cannot be taken into account unless it is demonstrated to be exceptional: see Markovic v The Queen (2010) 30 VR 589; (2010) 200 A Crim R 510. The hardship which will flow to the appellant's wife and child does not amount to an exceptional circumstance.

28 The appellant's written submissions refer to a large number of cases across a number of jurisdictions, including sentences imposed at first instance. The cases referred to by the appellant are set out in a schedule to these reasons. The facts of many of them are not truly comparable to the present case. In most of them the offender pleaded guilty and, in many, a discount was given for cooperation. No attempt had been made to coherently analyse the cases. The appellant specifically referred to three of them in his written submissions: R v Williams [2011] VCC 1044, R v Ip (Unreported, NSWDC, 20 March 2009) and DPP (Cth) v Haidari [2013] VSCA 149. We will briefly make mention of them.

29 The appellant notes that Williams involved a larger weight of pure methylamphetamine (110 to 116 g) and resulted in the imposition of a term of imprisonment of 4 years and 2 months, which was considerably less than the sentence imposed in the present case. The appellant pointed out that in Haidari, the respondent received a sentence of 6 years' imprisonment for the importation of a marketable quantity of methylamphetamine of 505.4 g, much more than was involved in the present case. In Ip, the offender was sentenced to 5 years' imprisonment for the importation of 82.6 g of pure methylamphetamine.

30 These cases do not establish that the sentence imposed upon the appellant was outside the range of sentences customarily imposed and are distinguishable. Haidari (the only appellate decision specifically relied upon by the appellant) concerned an offender who pleaded guilty to four offences, three of which were connected with people-smuggling. The fourth offence (count 3 on the indictment) was the drug offence. The case is of no real assistance because, unlike the present offence, Haidari pleaded guilty. Further, the individual sentence imposed for the importation offence appears to have been affected by the operation of the totality principle. The two first instance sentences in Williams and Ip, insofar as they offer any assistance at all, are distinguishable from the present case by the fact that the offenders in each of those cases pleaded guilty.

31 We are satisfied that the sentence imposed upon the appellant was not inconsistent with the range of sentences customarily imposed for cases of this kind, particularly bearing in mind the pure weight of methylamphetamine, the financial motive for the importation, the fact that the drug was carried internally and the absence of the mitigating effect of a plea of guilty.

32 Having regard to the maximum penalty for the offence, the circumstances in which it was committed, the range of sentences customarily imposed and the personal circumstances of the appellant, it cannot be reasonably argued that the sentence imposed was unreasonable or plainly unjust.

33 The ground of appeal is not reasonably arguable. Leave to appeal should be refused and the appeal dismissed. The orders that we would make are as follows:

1. Leave to appeal is refused.
2. The appeal is dismissed

Alavy v The Queen [2014] VSCA 25

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323

Danial v The Queen [2008] NSWCCA 15

DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; (2010) 205 A Crim R 1

DPP (Cth) v Haidari [2013] VSCA 149

Hibgame v The Queen [2014] VSCA 26

Lau v The Queen [2011] VSCA 324

Mokoena v The Queen [2009] QCA 36; [2009] 2 Qd R 351; (2009) 193 A Crim R 351

R v Calis [2013] QCA 165

R v Campos [1999] NSWCCA 339

R v Chea [2008] NSWCCA 78

R v Chew [2004] NSWCCA 132

R v Chung (Unreported, NSWDC, 19 June 2012)

R v Cohen (Unreported, VSC, 11 May 1998)

R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429

R v Ip (Unreported, NSWDC, 20 March 2009)

R v Ngui [2000] VSCA 78; (2000) 1 VR 579; [2001] 111 A Crim R 593

R v Oprea [2009] QCA 184

R v Rostom [1996] VicRp 60; [1996] 2 VR 97; (1995) 83 A Crim R 58

R v Saputra [2009] NSWDC 239

R v Sok (Unreported, NSWDC, 20 August 2009)

R v Springer [2009] NSWCCA 144

R v Tanudjaja [2002] NSWCCA 467

R v Thathiah [2012] QCA 195

R v Williams [2011] VCC 1044

Seng v The Queen [2007] NSWCCA 335

Tsen v The Queen [2010] WASCA 21

Tyn v The Queen [2009] NSWCCA 146; (2009) 195 A Crim R 345