Solhi v R

Court of Criminal Appeal (NSW)|2022-07-25|Before: Beech-Jones CJ, Dhanji J, Yehia J, O'Brien AM, Judge O'Brien AM, Jones CJ

Solicitors: Hanna Legal (Applicant) Office of the Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2018/00058825 Decision under appeal Court or tribunal: District Court at Sydney Jurisdiction: Criminal Date of Decision: 04 September 2020 Before: O'Brien AM DCJ File Number(s): 2018/00058825

Judgment

BEECH-JONES CJ at CL: I agree with Yehia J.
DHANJI J: I also agree with Yehia J.
YEHIA J: On 23 May 2022, Mr Solhi ("the Applicant") filed a notice of appeal seeking leave to appeal against the aggregate sentence of imprisonment imposed upon him in the District Court at Sydney on 4 September 2020.
The aggregate sentence imposed by his Honour Judge O'Brien AM was one of 10 years' and 6 months' imprisonment, with a non-parole period of 7 years and 6 months, and related to an offence of importing a commercial quantity of a border controlled drug (methamphetamine), contrary to s 307.1(1) of the Criminal Code (Cth) ("Criminal Code"), and an offence of trafficking in controlled drugs, namely, opium, cannabis and methylenedioxymethamphetamine ("MDMA"), contrary to s 302.4(1) of the Criminal Code.
The Applicant pleaded guilty to each of those offences.
The offences, the maximum penalties available, the sentencing judge's assessment of the objective seriousness of the offending, the recorded discount, and the indicative sentences given were as follows: Offence Act and Section Maximum Penalty Objective Seriousness Recorded Discount Indicative Sentence Import a commercial quantity of border controlled drug, namely, methamphetamine Criminal Code s 307.1(1) Life imprisonment and/or 7,500 penalty units Mid-range 10% 9 years' imprisonment ("the importation offence") Traffic in controlled drugs, namely, opium, cannabis and MDMA Criminal Code s 302.4(1) 10 years' imprisonment and/or 2,000 penalty units Below the mid-range 10% 2 years' and 8 months' imprisonment ("the trafficking offence")

The Applicant seeks leave to appeal on the sole ground that the sentence imposed was manifestly excessive.

The Application for Leave to File a Notice of Appeal after Expiry of the Filing Period

The present application is made out of time. A notice of intention to apply for leave to appeal was filed on 4 September 2020 but, following two extensions, expired on 3 September 2021. The notice of appeal the subject of these proceedings was filed on 23 May 2022. Between 3 September 2021 and 23 May 2022, no application for an extension of time within which to file a notice of appeal was made.
The Crown submitted there are good reasons the Court would not grant the application for leave to file the notice of appeal after the expiry of the filing period, and that the Court would not grant the application unless the Court sees merit in the proposed appeal. The Crown also submitted in the event the Court grants an extension of time, the Court may refuse leave to appeal because the appeal lacks merit.

The Applicant's Reasons for Filing the Notice of Appeal Out of Time

In support of the application for leave, Mr Soukie, the Applicant's solicitor, deposes that on 4 September 2020, he received instructions from the Applicant to file a notice of intention to appeal. Between 5 September 2020 and 1 June 2021, Mr Soukie did not act for the Applicant.
On 1 June 2021, the Applicant instructed Mr Soukie in respect of his proposed appeal to this Court. Between June and September of 2021, efforts were made to gather documents relating to the sentence proceedings before Judge O'Brien in the District Court. On 10 September 2021, transcripts of those proceedings and his Honour's Remarks on Sentence ("ROS") were received, and, immediately thereafter, counsel was engaged for the purpose of advising on the merits of the proposed appeal. On 9 December 2021, counsel provided the ground of appeal and the submissions on appeal.
While the delay is not adequately explained, particularly in respect of the period between September 2020 and June 2021, I accept that, at least from 1 June 2021 (the date Mr Soukie was instructed to act for the Applicant in respect of the proposed appeal), the Applicant has maintained instructions to appeal against the "severity of the sentence". [1]
I propose to grant the application for leave to file the notice of appeal after the expiry of the filing period.

Factual Background

An Agreed Statement of Facts was tendered in the sentence proceedings.

The Importation Offence

Two consignments formed the importation offence to which the Applicant pleaded guilty.
On 2 December 2017, a consignment containing tubes of car wax arrived in Sydney having been sent from Iraq ("the first consignment"). It was addressed to Amir Piri (a person known to the offender as a customer and colleague) at 2/27 Boronia Street, Granville. The contact number listed for the consignment was falsely subscribed in another person's name, but was linked to a "cracked" Apple iPhone S5 which was found in the Applicant's car at the time of his arrest. The number was in service from 1 August 2017 to 4 January 2018.
The tubes of car wax the subject of the first consignment contained 4.4645kg of pure methamphetamine.
Cargo Transport Systems ("CTS") was the foreign forwarding company responsible for the first consignment. The Applicant emailed CTS on 13 and 14 November 2017 regarding the consignment, which was due to arrive in Sydney. On 6 December 2017, an unidentified male known to the Applicant phoned CTS from a second phone number which was falsely subscribed in another person's name. That number was linked to an Optus X-play phone which was in the Applicant's possession at the time of his arrest. That phone number was in service from 8 October 2017 to 5 January 2018.
Between 8 December 2017 and 28 December 2017, the Applicant again attempted to contact CTS by email to enquire about the first consignment. On 2 January 2018, CTS informed the Applicant that the first consignment was seized by the Australian Federal Police, and, from that point, the Applicant made no further contact with CTS.
The second consignment was a consignment of honey that arrived in Sydney from Iran on 29 December 2017. It had the same recipient, delivery address and contact number as the first consignment, and contained 4.4709kg of concealed pure methamphetamine. Between 3 January 2018 and 29 January 2018, an unidentified male contacted dnata (a freight forwarding company) to make enquiries about the consignment at the request of the Applicant. The unidentified male used a third phone number to make contact with the company, and that number was linked to both the "cracked" iPhone and the Optus X-play phone found in the possession of the Applicant.
There was an agreement between the Applicant and the unidentified male associate that the latter would find a storage facility that did not require a credit card payment.

The Trafficking Offence

The Applicant trafficked controlled drugs by selling some of them, preparing some of them for sale with the intention of selling them, and possessing them for the purpose of sale. Annexure A to the Agreed Statement of Facts contained a sample of transcripts of intercepted telephone calls between the Applicant and other unknown individuals. The intercepted phone calls took place between 29 January 2018 and 20 February 2018, and related to the sale of prohibited drugs by the Applicant.

The Applicant's Case on Sentence

The Applicant's case on sentence included a letter of apology from the Applicant, dated 22 June 2020; a psychological report of Sam Borenstein, dated 15 June 2020; a letter regarding the Applicant's mother, dated 6 June 2020; and the Applicant's mother's identity card.
In sentencing proceedings, counsel for the Applicant conceded the threshold for imprisonment was crossed and only a sentence of full-time imprisonment was appropriate. Addressing the question of the objective seriousness of the Applicant's offending, counsel submitted that the Applicant's state of mind was one of recklessness as to the substance and quantity imported. Further, it was submitted that the offending was not driven by financial motivation, but rather a desire for connection and friendship.
Counsel relied upon two cases, R v Igwebuike [2017] ACTSC 323 and Zaugg v R [2020] NSWCCA 53, in support of the contention that if the sentencing Judge made a finding that the Applicant's state of mind was one of recklessness, as opposed to knowledge, a sentence "south" of the sentences imposed in those cases would be appropriate.
The Crown, in the Court below, relied upon a schedule of comparable cases.

Objective Seriousness

His Honour acknowledged that he was required to assess the objective seriousness of the offences by reference to the maximum penalties prescribed by Parliament which act as "clear legislative guideposts as to the seriousness with which the offences are to be viewed"; the facts and circumstances of the offending; relevant common law principles; and the applicable sections of the Crimes Act 1914 (Cth) ("Crimes Act"). His Honour had regard to the provisions in Part 1B of the Crimes Act, titled "[s]entencing, imprisonment and release of federal offenders".

The Importation Offence

The sentencing Judge found at [30]: "…I am satisfied beyond reasonable doubt when all of the factors that are relied upon by the Crown are viewed in combination, that there is no inference available other than that the offender was aware that the substances being imported were border controlled drugs. It is to be noted that the drugs derived from two different countries, Iran and Iraq and it was the offender who was to control and manage the receipt of them into Australia. It was he who made persistent enquiries, possessed phones that were used in the enterprise, possessed false identification particulars and directed others in a number of different ways. The common sense inference in respect of which there is no evidence to the contrary, is that he did so with a view to financial gain. That fact also supports the inference that he possessed actual knowledge of what was concealed in the car wax and honey consignments respectively."
Although it was not held that the importation enterprise was sophisticated, the role of the Applicant in the enterprise was "of very real significance".
The quantity of drugs was significant. His Honour noted that the Criminal Code Regulations 2002 (Cth) provided that the commercial quantity of methamphetamine is 0.75kg. The Applicant imported almost 12 times that threshold across the two consignments, with the quantity of methamphetamine imported totalling 8.93kg. His Honour agreed with the Crown submission that the importation offence, comprising two discrete importations, was of higher objective seriousness than if the 8.93kg of methamphetamine had been the subject of a single importation.
In relation to the importation offence, his Honour found at [33]-[34]: "The offending is part of a course of conduct. His criminal behaviour was not isolated. It was planned and premeditated. There are matters for me to take into account in assessing the objective seriousness of the importation count. In my view, having considered all relevant matters, the objective seriousness of the offending in the importation count falls at or about the mid-range of objective seriousness for offences of this type."

The Trafficking Offence

The sentencing Judge found that the Applicant was operating "something akin to a mobile drug delivery service" where "[h]e received numerous calls from customers, gave them directions as to where he would meet them and discussed prices and quantities. He was able to source drugs quickly and respond to customer's requests without delay". His Honour found that there was a degree of sophistication to this particular offending, accepting the Crown submission that there was a mobile phone number falsely subscribed for the purposes of engaging in drug trafficking.
Ultimately, at [33] of the ROS, his Honour stated: "In my view the objective seriousness of the trafficking count, given the wide range of offending contemplated by the section, falls at a point below the mid-range of objective seriousness for offences of its type."
The sentencing Judge noted that the Applicant was 28 years of age at the time of the offending and 30 years of age at the time he was sentenced. He had no prior criminal history. He is the eldest of three children, was educated to the age of 16, and served in the Iranian army. His family continue to live in Iran.
He fled Iran, perceiving that he was in personal danger from the Intelligence Arm of the Iranian Government. He first absconded to Indonesia with a false passport, and then travelled to Australia by boat as a refugee in 2013. After spending three weeks on Christmas Island and two months in Perth, the Applicant was granted a bridging visa to live in Adelaide. He arrived in Sydney between late 2016 and early 2017, and obtained employment in the construction industry.
In the two years leading up to his sentencing, the Applicant had no visits from family members and only five visits in total. The sentencing Judge found that the Applicant "remained somewhat isolated in custody and that this factor will make his experience of that environment more onerous". [2]
Mr Borenstein, Consultant Clinical Psychologist, administered a number of tests and concluded that the Applicant was suffering "extremely severe symptoms of depressed mood", "extremely severe symptoms of anxiety", and severe symptoms of post-traumatic stress disorder. The sentencing Judge assessed that the historical information provided by the Applicant to Mr Borenstein was of an "uncontroversial nature", and therefore stated that he would rely on it. However, limited weight was placed upon the diagnoses made by Mr Borenstein, in light of the fact that they were based upon self-serving statements made by the Applicant during the course of a single interview. The sentencing Judge rejected the Applicant's explanation for his offending conduct, but accepted that the Applicant regretted becoming involved in the criminal enterprise. [3]
The sentencing Judge addressed the factors provided for in s 16A of the Crimes Act at [48] of his ROS, concluding that the Applicant has "some prospects of rehabilitation", and that the term of imprisonment will have "an effect on the [Applicant's] family in Iran, particularly in circumstances where they are unable to visit him in Australia".

Consideration

No issue is taken by the Applicant in respect of the sentencing Judge's findings as to the objective seriousness of the offending, or in respect of the subjective circumstances of the Applicant.
The Applicant seeks leave to appeal his sentence on the sole ground that the sentence imposed by his Honour Judge O'Brien was manifestly excessive. The Applicant submitted that given his subjective case, a lesser sentence was warranted. His subjective case included: his plea of guilty; his remorse and willingness to facilitate the course of justice; his prospects of rehabilitation by virtue of his age; his social and cultural isolation while in custody; and the impact of his incarceration upon his family in Iran.
In oral submissions in this Court, counsel for the Applicant sought to distinguish this case from more serious offending by virtue of the fact that the Applicant was not a member of a "sophisticated criminal syndicate", but rather appears to have acted alone. An acceptance of that characterisation does not necessarily assist the Applicant. The Applicant dealt with the packages in connection with their importation. It was he who was to receive, collect and manage storage of each of the two consignments once they arrived in Sydney. The clear inference is that he stood to gain a significant portion of the profits. In any case, there is no challenge to the sentencing Judge's finding in respect of the objective seriousness of the offending.
The question for determination by the Court is not whether it would impose a different sentence than that imposed by the court below. The High Court in Lowndes v The Queen [1999] HCA 29; 195 CLR 665 stated at [15]: "Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercise his or her discretion…The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
In Obeid v R [2017] NSWCCA 221, R A Hulme J distilled the principles relevant to this ground of appeal at [433]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The sentencing Judge took into account the Applicant's subjective case, including the absence of a prior criminal record in Australia. Although cautious about the level of contrition expressed by the Applicant, in addition to quantifying the utilitarian value of the plea of guilty, his Honour accepted that the plea of guilty demonstrated some indication of remorse.
The sentencing Judge had regard to the Applicant's age in concluding that he had "some prospects of rehabilitation". His Honour addressed the Applicant's isolation in custody, noting that his experience of that environment would be more onerous. Finally, his Honour took into account the effect of the Applicant's incarceration on his family in Iran, particularly in circumstances where they are unable to visit him in Australia.
Each of the matters relied upon by the Applicant was addressed and taken into account by his Honour. The Applicant, in support of the contention that the sentence is manifestly excessive, did not rely upon comparable cases (other than those relied upon in the Court below) or seek to distinguish the cases relied upon by the Crown during the sentence proceedings.
I am satisfied that the sentencing Judge gave appropriate weight to the Applicant's subjective case. The objective seriousness of the offences, notwithstanding the Applicant's subjective case, warranted a lengthy term of full-time imprisonment. I am not persuaded that the sentence is manifestly excessive, in the sense of being unreasonable or plainly and just. It follows that this ground is not made out.

Orders

For these reasons, I propose the following orders: 1. Leave to extend the time for filing of the application for leave to appeal is granted; 2. Leave to appeal against sentence is granted; and 3. The appeal is dismissed.

Endnotes

Affidavit, Abbas Soukie, 21 May 2022, par 14.
ROS, [45].
ROS, [47]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2022

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