Court of Appeal (Vic)|2010-10-20|Before: ASHLEY and WEINBERG JJA

Jailani v The Queen [2010] VSCA 276 (20 October 2010)

R v Jailani (Unreported, Count Court of Victoria, Judge Coish, 17 October 2008)

1 Norhaliza Jailani was found guilty after trial in the County Court on three counts of importing a marketable quantity of a border control drug. On 17 October 2008 she was sentenced to six years' imprisonment on each count, the maximum penalty being 25 years' imprisonment and/or a fine of $550,000. There was no cumulation - as might have been achieved by setting different commencing days for the individual sentences under the Commonwealth regime. The total effective sentence was thus six years' imprisonment. The judge fixed a non-parole period of four years' imprisonment.

2 Now Jailani appeals by leave. The sole ground of appeal is as follows:

1. The learned sentencing Judge erred by imposing:

(a) individual terms of imprisonment;

(b) a total effective sentence; and

(c) a non-parole period

Which are, in all the circumstances, manifestly excessive and which fail adequately to reflect a proper regard to current sentencing practices.

3 The circumstances of the offending were described by the learned sentencing judge this way:

... You arrived in Melbourne airport on 28 February 2008 at approximately 2.05 am after travelling from Dubai via Singapore. You had travelled from Malaysia to India on 15 February 2008 and from India to Singapore via Mumbai and Dubai on 26 February 2008.
On arrival at Melbourne airport you were in possession of two suitcases, one coloured blue and the other coloured black.
A search of the black suitcase revealed white powder secreted in the lining in the bottom of that suitcase and white powder secreted in the lining of a small brown leather handbag which was in the black suit case.
Subsequent formal testing of the substances revealed that they comprised 189 grams of pure heroin, 143.1 grams of pure morphine and 194.9 grams of pure monoacetylmorphine.
The total was therefore 527 grams. A marketable quantity is two grams.
In a record of interview conducted on 6 March 2008 you denied any knowledge of the drugs in these bags. You stated that you were travelling to Australia for a job interview and you had been asked by persons in India who gave you the black suitcase to give it to a manager you were to meet in Australia as a gift.

4 His Honour sentenced the appellant on the basis that she was a courier, 'acting at the behest of others higher than her in terms of hierarchy'.

5 His Honour took into account the following matters in mitigation:

(1) The appellant, a married Malaysian woman aged 40, who had apparently been deserted by her second husband, had no prior convictions. She was sentenced as a person of previous good character.

(2) The appellant had no family or friends in Australia. She had not received any visitors during the 233 days of her pre-sentence detention. Implicitly, imprisonment would be a greater burden for her than for others because of this isolation.

(3) The appellant had used her time in custody 'in a most constructive manner'. She was 'hard working and industrious'. Her prospects of rehabilitation were good.

6 The judge emphasised, however, the serious nature of the offending and the need for the sentence to have an impact of general deterrence.

7 The quantities of imported drugs were, as noted at [3] above: count 1, heroin, 189 grams pure; count 2, monoacetylmorphine, 194.9 grams pure; count 3, morphine, 143.1 grams pure. A marketable quantity in each instance was 2 grams.[1]

8 His Honour determined to impose a like sentence on each count, each sentence to commence on the same day. Thus, as I have already said, there was, in substance, total concurrency.

(1) the quantity of drugs imported should ordinarily be a key indicator of the seriousness of the offence. In this case, the quantities were not large.

(2) Although it has been said that a lack of previous convictions 'is of less significance in the case of drug couriers',[2] lack of prior convictions is a mandatory sentencing consideration under the Crimes Act 1914 (Cth); and as well bears upon prospect of rehabilitation and the weight to be given to specific deterrence.

(3) Although it has been said that it would be incongruous to have regard to an offender's separation from family and friends as a basis for reduction in sentence where the person has come to the country for the sole purpose of committing a very serious crime,[3] nonetheless the burden of isolation should stand in mitigation.

(4) The other matters mentioned by the learned sentencing judge as going in mitigation did in fact have that character.

10 Counsel particularly referred, with respect to (1) above, to a document provided to the learned sentencing judge, by counsel for the Crown, entitled 'Drug Sentences in Matters Prosecuted on Indictment by the Commonwealth DPP', and to sentencing remarks in two cases in the County Court which were also provided by the Crown's counsel to his Honour. The gist of the material, counsel submitted, was that a sentence of six years' imprisonment for importing less than 200 grams of an illicit substance was unprecedented. He relied upon the observation of Winneke P in R v Giordano[4] -

... a general overview of sentences imposed by courts over a substantial period for offences of a similar character must inevitably play its part in provoking the instinctive reaction of any court which is asked to consider whether a particular sentence is manifestly excessive or manifestly inadequate.

11 Counsel noted that on the plea counsel for the Crown had put forward a range for the head sentence of between six to eight years' imprisonment and a non-parole period of three and a half years to five and a half years. He submitted that no explanation had been given why such ranges were appropriate.

12 Counsel for the Crown submitted in this Court that -

(1) Counsel below could not be criticised for not elaborating upon the suggested range for sentence. The learned sentencing judge had not asked him to do so.

(2) All that counsel for the appellant had submitted below was that the lower end of the Crown's proposed range should be the upper end of the range for the judge's consideration.

(3) The Crown's suggested range below had proper regard to the seriousness of the offending, the quantity of drugs imported, the total quantity of drugs imported, the importance of general deterrence, the central role of a drugs courier, and current sentencing practices.

(4) The learned sentencing judge had taken into account, and properly synthesised, all relevant factors.

(5) The individual sentences were 'explicable within the context of the appellant having engaged in a single act of importation'. The judge's approach, by giving complete concurrency, had produced the effective result that the head sentence and the non-parole period was 'no more than might have been produced by a sentencing regime more rigorously connected to the amount of border controlled drug involved in each count'. The broad brush approach which his Honour took did not impugn the instinctive synthesis. The appellant's argument was essentially a structural argument; and such arguments are to be discouraged.

(6) Examination of the Drug Sentences document revealed that the sentences imposed for the individual counts were heavy, and that in many instances lesser sentences had been imposed for importations approximating the amounts involved in the individual counts in this instance. Nonetheless, a sentence of this magnitude on the individual counts was not unprecedented.

13 In my opinion, there was some force in the Crown's submissions. I have examined the Drug Sentences document, which sets out sentences imposed between January 2003 and September 2008 in Commonwealth drugs prosecutions determined in Victoria. Not all of the prosecutions were for importations; and it is not clear which offenders were bare couriers. Even so, whilst the gist of the appellant's

submission based upon the document was clearly enough established,[5] it might also be concluded from the document that the total quantity of illicit drugs imported, had it been a quantity of a single substance, was arguably capable of attracting a head sentence of about 6 years' imprisonment without it being accounted manifestly excessive. There was also, it can be said, some difficulty in constructing a sentence which on the one hand reflected the entire criminality and on the other hand the fact that this was a single criminal enterprise, carried out on a single occasion, in which circumstances substantial, if not complete, concurrency might have been expected.

14 But there is another aspect of the matter. As Redlich JA said in R v Alimic,[6] a case involving sentences for multiple instances of social security fraud:

... the method of sentencing here adopted gave rise to some anomalous sentences which failed to distinguish between the gravity of the individual offences. This 'broad-brush' principle discussed in R v Ash[7] and R v Belhaj[8] can only be applied in limited circumstances and always subject to established sentencing principles; in particular that the sentence imposed be appropriate to the count to which it relates in accordance with the principle of proportionality, usually achieved by the imposition of moderate penalties with orders for cumulation.

15 It is the case also that discouragement of 'structural arguments' on appeal has most often been expressed in the context of cases involving many instances of like offending - such as obtaining a financial advantage/property by deception[9] and social security fraud.[10]

16 What is meant by discouragement of structural argument needs to be understood. The notion is often traced to a statement by Callaway JA in R v Albanus.[11] What Callaway JA was discouraging was a comparison of the sentence on one count with the sentence on another count. As his Honour said, 'it is only against individual sentences and orders for concurrency and cumulation that an appeal may be brought.'

17 In the event, I consider the appeal must be allowed because the individual sentences were not proportionate to the severity of the offending, and should not be permitted to stand. I would impose a sentence of four years' imprisonment on each count. So as to reflect the appellant's entire criminality, I would make orders for commencement of sentences so as to achieve a total effective sentence of five years' imprisonment. I would impose a non-parole period of three years' imprisonment. It appears that the head sentence which I propose can be achieved by ordering that the sentence on the first count commence on 17 October 2008, that the sentence on the second count commence on 17 April 2009, and that the sentence on the third count commence on 17 October 2009.

[1] Treating heroin as a border controlled drug, which was the basis for the charge laid in this case, that is so. As a controlled drug, relevant to a trafficking charge, a marketable quantity is 250gms.

[2] R v Marshall [2000] VSCA 167, [17] (Charles JA).

[3] R v Adams [2007] VSCA 37, [24] (Vincent JA).

[5] The sentences disclosed by the document for the period 2003 to 2008, so far as they refer to couriers, are in sharp contrast to sentences imposed on couriers in years past. See, for example, R v Combey (Unreported, Court of Criminal Appeal, Victoria, 5 February 1980). There, a courier who imported 285gms of heroin pure received a sentence of 15 years' imprisonment with a minimum of 12 years. An appeal against sentence was dismissed.

[7] [2005] VSCA 43, [20]-[30].

[9] For example, R v Samia [2009] VSCA 5.

[10] For example, R v Alimic [2006] VSCA 273.

Jailani v The Queen [2010] VSCA 276

At a glance

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Judgment (49 paragraphs)

Jailani v The Queen [2010] VSCA 276 (20 October 2010)

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Cases Cited (1)