R v Shahrokey-Zadeh [2006] QCA 4

Court of Appeal (Qld)|2006-01-31|Before: McMurdo P, McPherson JA and Muir JSeparate reasons, for judgment of each member of the Court, each concurring as to the order, made

MUIR J: The applicant was convicted on 14 February 2005 of the offence of procuring the importation into Australia between 22 August 2003 and 15 October 2003 of cocaine being not less than the commercial quantity applicable to that drug. He was sentenced on 13 May 2003 to a term of imprisonment of 12 years with a non-parole period of six years. He seeks leave to appeal against this sentence on the grounds that it is manifestly excessive.

When the luggage of one Desmond Rodgers was searched by customs officers at the Brisbane International Airport on 15 October 2003 upon his arrival on a flight from Chile it was discovered that it contained 46 packets of cocaine powder weighing 5,787.5 grams. The powder when analysed was found to contain 4,143.8 grams of cocaine and thus to have a purity of about 71 per cent.

Rodgers was convicted on a plea of guilty of importation of the cocaine and sentenced to seven years three months' imprisonment with a non-parole period of two years nine months. His early plea and cooperation with authorities were taken into account. Were it not for those matters the learned sentencing judge would have imposed a sentence of 12 years with a non-parole period of four and a half years.

Rodgers, the principal prosecution witness on the applicant's trial, gave evidence to the effect that he was recruited by the applicant in 2002 to travel to South America, obtain drugs from a supplier and convey them back to the applicant in Brisbane. Rodgers swore that his arrest was in the course of the sixth such importation effected by him for the applicant. According to him in each case the drugs and airfares were paid for by the applicant and the drugs were handed by him to the applicant in a suitcase on his return to Australia.

Rodgers also testified as follows. He was paid by the applicant for his services. Prior to the sixth and final trip he complained to the applicant about the inadequacy of his remuneration. The applicant's response was to invite him to withdraw the moneys in a nominated account. He did so and obtained $24,000. It would seem that this was intended, together with the spray painting of a vehicle owned by Rodgers by employees of the applicant's business, to include payment for the sixth importation.

The applicant gave evidence on his trial to the effect that he was not involved in any importation of cocaine but had business dealings with Rodgers in relation to the marketing of sound equipment for sound studios and entertainment venues.

It follows from the jury's verdict that it accepted the substance of Rodgers' evidence and rejected that of the applicant.

The applicant was born on 2 February 1982 and was thus 21 at the time of the offence. He had no prior criminal history. His parents were immigrants who came to Australia in 1988. After completing his secondary schooling he undertook a Bachelor of Business degree course at the Queensland University of Technology.

He interrupted that course one year before its conclusion in order to set up his own business, Aussie Tyres, in which at the time of his arrest he was employing five people. A great many references placed before the learned sentencing judge showed the applicant to be an industrious student and business man who was highly regarded by those who had familial, social or business dealings with him.

After the applicant's parents separated when he was about 15 years of age he assumed added responsibilities and provided admirable support to his mother and younger sister.

It is submitted on his behalf that the sentencing judge erred in failing to give sufficient weight to his youth and good character. In this regard it is said that although the applicant had more life experience than one might expect of the average 21-year-old that experience did not translate necessarily into maturity or the ability to make sensible decisions about involvement in criminal behaviour. It is submitted that a sentence of nine years' imprisonment with a non-parole period of four and a half years should have been imposed.

The applicant was sentenced on the basis that Rodgers had acted as his courier in the subject importation which was organised by him for his own benefit. The cocaine, which was more than twice the commercial quantity prescribed by the Customs Act 1901 (Cth), was estimated to have a street value in excess of $1.6 million. It was imported in a planned commercial venture designed to yield the applicant substantial financial gain. The maximum penalty for the offence is life imprisonment.

The sentence is supported by the comparable sentences referred to by the learned Crown Prosecutor. In Restrepo and Restrepo (1999) 108 A Crim R 150, the appellant Jorge Restrepo's sentence was reduced from 12 years with a non-parole period of five years to 10 years with a non-parole period of four years. The applicant, who was 25, had a number of prior convictions for offences of dishonesty, "street offences" and had been fined for drug offences. He was sentenced on the basis that his role was akin to that of a courier.

A 10-year sentence with a non-parole period of four and a half years imposed on Alexander Restrepo for possession of about three-quarters of a kilogram of cocaine was reduced to seven years with a non-parole period of three and a half years. Both appellants pleaded guilty and in both cases a substantial reason for the reduction of the sentences was a desire to achieve appropriate proportionality with a sentence of 12 years with a non-parole period of six years imposed on the appellant Bolanos-Moreno in R v Forero-Forero and Bollanos-Moreno [1992] QCA 335; CA Nos 214 and 220 of 1992, 10 September 1992. In that case, although the quantity of cocaine was only about 100 grams its importation was found to be part of a systematic course of conduct.

In R v Van Schalkwyk, unreported, District Court of Western Australia, No 630 of 2004, 13 April 2005, a sentence of 12 years with a non-parole period of six years was imposed on a 57-year-old woman with no prior criminal convictions for the importation of 1,703 grams of cocaine. Nor can the sentence imposed on the applicant be said to be high in comparison with that imposed on Rodgers. The latter's offence was far less grave and he had the benefit of an early plea and cooperation with the authorities.

Plainly the applicant's youth and his generally commendable social behaviour, putting aside the matters relating to the importations, are matters which stand in his favour. The sentencing judge, however, gave those matters due consideration. Having regard to the seriousness of the offence and the need for general deterrence the sentence imposed cannot be said to be manifestly excessive. I would dismiss the application.

THE PRESIDENT: The application for leave to appeal against sentence is refused.

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