Zahrooni v R; Director of Public Prosecutions [2010] NSWCCA 252 | Case summary

Zahrooni v R; Director of Public Prosecutions [2010] NSWCCA 252 | Case summary | Zoe

[14]

The facts 3 The facts are generally common to both proceedings. The relevant facts and circumstances are as follows. During the evening of 2 March 2009 Mr Zahrooni was the driver of a Nissan Maxima motor vehicle in Fairfield. He was stopped by police for the purposes of a random breath test. That test proved negative. However, police officers detected an unusual odour, and searched the vehicle for drugs. Mr Zahrooni raised no objection, and emptied his pockets. His speech was slurred, his movements very slow, his eyes red and glazed and his eyelids "droopy". 4 Among the items produced by Mr Zahrooni from his pockets was a large chewing gum packet. When this was opened, it proved to contain 48 individual plastic sachets, each containing a black/brown congealed liquid substance. Mr Zahrooni told police that it was a substance that he smoked. Further conversation with him was inhibited by his thick accent and slurred speech. Mr Zahrooni was then arrested. 5 During the course of the search one of two mobile telephones produced from his pockets was found to contain a text message in the following terms: "Hey babe, how much for a quarter of an ounce?" 6 Also located in the vehicle was the sum of $1077.70 in cash, and a 4 centimetre bladed knife (which may have been a Swiss army knife). These gave rise to the two additional charges I have mentioned. 7 On analysis, the 48 sachets were found to contain 69 grams of opium, a prohibited drug. 8 Pursuant to s 3(1) and Sch 1 of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"), 30 grams of opium is a traffickable quantity. Pursuant to s 29 of the DMT Act, a person who has in possession not less than the traffickable quantity of a prohibited drug is deemed to have it in possession for the purpose of supply, unless that person comes within one of the exceptions (not presently relevant) provided by s 29(a) and (b). 9 Mr Zahrooni's possession of 69 grams of opium thus gave rise to the charge of supply, to which he pleaded guilty. The maximum sentence applicable to that offence is imprisonment for 15 years. 10 In respect of that charge, Hughes DCJ sentenced Mr Zahrooni to imprisonment with a total term of 3 years, commencing on 25 February 2010, made up of a non-parole period of 1 year and 6 months and a balance of term of 1 year and 6 months. In doing so he found that special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") existed justifying departure from the ratio set out in that sub-section. In respect of each of the remaining offences, he imposed a concurrent fixed term of imprisonment for one month. 11 By s 50(1) of the Sentencing Procedure Act, by reason of the term of the sentence, his Honour was required to make an order directing Mr Zahrooni's release on parole on the expiration of the non-parole period. He did not do so, and that omission ought to be remedied. It is the sentence imposed in respect of the drug offence only that is the subject of the present application for leave to appeal.

[16]

Mr Zahrooni's personal circumstances 12 Evidence of Mr Zahrooni's personal circumstances was given by way of a Pre-Sentence Report, by a psychiatric report prepared by Dr John Roberts, and a psychological report prepared by Mr Chris Probets. Mr Zahrooni did not give evidence and no evidence was called on his behalf. All reports were to similar effect, although they varied considerably in detail and emphasis. From them, the following may be derived. 13 Mr Zahrooni was born in Iran in November 1970, the third of a family of eight children. He was therefore 38 years of age at the time of the offence. He had no previous convictions. His childhood was stable until the outbreak of war between Iran and Iraq in about 1977. Mr Zahrooni told Mr Probets that the family lived in "a war zone". He did not complete high school. Both Mr Probets and the author of the Pre-Sentence Report recorded that he saw active military service and experienced many traumatic events, of which he was reluctant to speak. The family suffered abuse in Iran as a result of their practice of the Baptist religion. 14 Mr Zahrooni worked in welding, but without formal or trade qualifications. He married (in about 1996) while in Iran. Two children have been born, in about 1996 and 2004. 15 In 2000 Mr Zahrooni and his family escaped as refugees and travelled to Australia. They remained in Woomera Detention Centre for seven to eight months. A brother of Mr Zahrooni, who was also incarcerated there, made several (unsuccessful) suicide attempts. It seems that at least some of these were witnessed by Mr Zahrooni. 16 It seems that Mr Zahrooni and his family were granted refugee status. Other members of the family, including his parents, migrated to Australia in 2006. Since then, his mother has suffered a stroke that resulted in partial paralysis. His father is said to suffer "from a number of medical issues" but the evidence of his condition(s) is sparse. There is some evidence that he is substantially visually impaired, and has heart problems. 17 Mr Zahrooni suffers from ongoing pain resulting from a back injury. He has been treated for depression. 18 He separated from his wife in about 2007, and has since lived with a brother and his invalid parents. He receives a carer's pension, and provides daily care to his parents. 19 He told the author of the Pre-Sentence Report that he had begun using opium for his back pain and depression, and that opium is a drug commonly used as a relaxant in Iran. (He told something similar to Dr Roberts, who expressed scepticism about the widespread use of opium in that country.) 20 Mr Probets diagnosed post-traumatic stress order, resulting from Mr Zahrooni's experiences at the Woomera Detention Centre, probably exacerbating underlying pre-existing effects of trauma during the war years in Iran. He thought it would be useful for Mr Zahrooni to undertake treatment for that condition; he did not think that post-traumatic stress disorder was causally connected to the offence, and considered that, even if Mr Zahrooni does not undertake the treatment, he is nevertheless unlikely to re-offend. 21 Dr Roberts considered that Mr Zahrooni met the criteria for a diagnosis of substance abuse/dependency disorder, and probable personality disorder dysfunction. Like Mr Probets, he considered that Mr Zahrooni ought to undertake rehabilitation, but, unlike Mr Probets, he considered that failure to do so would result in progressively increased opioid dependency and the probability of further involvement with the law.

[22]

Ground 1 25 The submissions advanced on behalf of Mr Zahrooni in respect of this ground began by acknowledging a "consistent line of authority" that trafficking in drugs "to a substantial degree" should attract a sentence of full-time imprisonment in the absence of exceptional circumstances. They noted and quoted from decisions of this Court in R v Gu [2006] NSWCCA 104 and R v Gip [2006] NSWCCA 115; 161 A Crim R 173. 26 The proposition is uncontroversial: see eg R v Clark (NSWCCA, 15 March 1990, unreported); R v Bardo (NSWCCA, 14 July 1992, unreported); R v Gu [2006] NSWCCA 104; R v Gip [2006] NSWCCA 115; 161 A Crim R 173; Scott v R [2010] NSWCCA 103. The applicant's submissions focussed upon the words I have italicised above - "to a substantial degree". They went on to suggest that the judge failed to consider the extent to which the evidence established the degree of Mr Zahrooni's drug trafficking and, in particular, whether it established trafficking "to a substantial degree". 27 Particular reliance was placed upon the decision of this Court in Scott. There the applicant was convicted of the supply of 27.1 grams of methylamphetamine of very low purity (1 percent). Because the drug in that case was located in a freezer, it may be inferred that the Crown case there also involved the deeming provision, s 29 of the DMT Act. The sentencing judge considered himself bound, by Clark and subsequent cases, to impose a full-time custodial sentence. He did this without directing his attention to the question whether the offence involved "trafficking in drugs to a substantial degree". 28 Hislop J, with whom Allsop P and Grove J agreed, held that the failure to make the necessary anterior finding vitiated the sentence. He further held, on the facts of that case, that it could not be said that the evidence admitted of no conclusion other than that the applicant was "substantially involved in the supply of prohibited drugs". 29 The cases to which I have referred focus largely upon the meaning of the word "trafficking". Whether consideration is given to that word, or to the words "to a substantial degree", the issue is the extent of involvement in supply. Where the supply is on a single, isolated occasion, the circumstances might (or might not) permit a non-custodial sentence. But the authorities are clear that where the dealing involves "trafficking to a substantial degree" it is only in exceptional circumstances that a non-custodial sentence will be imposed. The converse of that proposition, on Mr Zahrooni's argument, is that, if the trafficking is not "to a substantial degree", a custodial sentence is not necessarily inevitable. It would be more accurate to say that the cases cited do not, in those circumstances, require a custodial penalty. 30 Here, as in Scott, the judge did not make an express finding as to whether Mr Zahrooni's offence involved "trafficking to a substantial degree". But he did, with justification, find that Mr Zahrooni was "a user/dealer". 31 It is incorrect to suggest that the judge failed to take account of the extent of Mr Zahrooni's involvement. On two occasions he referred to the quantity of the drug (69 grams - more than double the traffickable quantity); the individual packaging (48 sachets); the relatively large sum of money in his possession (having regard to his financial circumstances); and the text message; to this may be added the possession of two mobile telephones. 32 His Honour was clearly aware of the provisions of s 5(1) of the Sentencing Procedure Act, prohibiting the imposition of a sentence of imprisonment unless the court, having considered all possible alternatives, is satisfied that no other penalty is appropriate; he expressly held, in his own language, that this was not a case in which other than a sentence of full-time custody would be appropriate. 33 In my opinion, had the judge expressly adverted to the contentious phrase ("trafficking to a substantial degree"), he would inevitably have concluded that Mr Zahrooni's activities came within that description - see the features referred to in [31] above. That is in contrast to the facts in Scott. 34 In my opinion there is no substance in this ground of the application. I would reject it.

[25]

The DPP's appeal (Confiscation of Proceeds of Crime Act) 40 By summons filed in Court the DPP sought orders, pursuant to s 18(1) of the CPOC Act, for forfeiture of the cash money found in the possession of Mr Zahrooni, and of the Nissan Maxima motor vehicle which he was driving on the evening of the offence. 41 Mr Zahrooni conceded the order in respect of the cash money, but opposed the order in respect of the motor vehicle. By judgment dated 14 May 2010 Hughes DCJ made the order sought in respect of the cash, but declined to make the order sought in respect of the motor vehicle. It is that refusal against which the DPP appeals. 42 Section 13(2) of the CPOC Act relevantly provides: "13(2) If a person is convicted of a drug trafficking offence, an appropriate officer may apply to an appropriate court for one or both of the following orders: (a) a forfeiture order against property that is tainted property in respect of any drug trafficking offences …" 43 "Tainted property" is defined in s 4(1) as property that (relevantly): "(a) was used in, or in connection with, the commission of a serious offence, or (b) was substantially derived or realised, directly or indirectly, by any person, from property used in, or in connection with, the commission of a serious offence, or (c) was substantially derived or realised, directly or indirectly, by any person, as a result of the commission of a serious offence, or (d) was substantially derived or realised, directly or indirectly, by any person for the depiction of a serious offence, or the expression of the offender's thoughts, opinions or emotions regarding the offence, in any public promotion." 44 Section 18 relevantly provides as follows: " 18 Forfeiture orders (1) If a person has been convicted of a serious offence and an application is made to a court under section 13 … (2)(a) in relation to specified property and: (a) the court is satisfied that the property is tainted property in relation to the offence, and … (b) the court has taken into consideration (having regard to information before the court): (i) the use that is ordinarily or had been intended to be made of the property, and (ii) any hardship that may reasonably be likely to arise (whether on the part of that or any other person) following the making of the order, the court may order that the property is forfeited to the State … (2) In considering any hardship that may be likely to arise on the part of a person convicted of a serious offence, the court shall not take into account the sentence imposed in respect of the offence …" 45 Here, there was no doubt that the motor vehicle was "tainted property", having been used in connection with the offence. 46 The only evidence given on the forfeiture application was given in an affidavit to which were annexed a number of documents sworn by a solicitor employed by the Solicitor for Public Prosecutions. No evidence was given or called on behalf of Mr Zahrooni. It does seem that his Honour took into account evidence given on the sentencing proceedings. No complaint is made about his having taken that course. 47 His Honour, having found that the motor vehicle was "tainted property", went on to say: "However, I find also that the car was used ordinarily, that is to say, used for the ordinary purpose that one has transport and as it says in s 18(1)(b) any hardship that may reasonably be likely to arise.

[34]

Subject to that the discretion is unfettered. 51 The submission advanced on behalf of the DPP was to the effect that the discretion had miscarried, essentially because the judge failed to take into account relevant circumstances, or otherwise misunderstood the task required of him. 52 The submissions put on behalf of Mr Zahrooni in response, in my opinion, misconceived the nature of the case made on behalf of the DPP. A great deal of effort went into the proposition that the DPP's case was that no discretion existed. That is not a correct reading of the basis on which the DPP put his case. 53 I return now to the various matters raised on behalf of the DPP. 54 The reasons given by the judge for refusing to make the order are pithy. However, it may be discerned that there were two aspects to the decision. The first was that referred to in s 18(1)(b)(i) - the ordinary use of the vehicle; the second was that referred to in s 18(1)(b)(ii) - hardship that may be anticipated to flow if the forfeiture order were made. 55 No complaint is made by the DPP about his Honour's approach to the first of these. There was no evidence as to when Mr Zahrooni acquired the vehicle, and no direct evidence as to the use to which he ordinarily put it, but there is no reason to think that it was other than, as his Honour said, normal transport. His Honour further inferred, with justification, that as Mr Zahrooni was separated from his wife but had contact with his children, he used the vehicle for that purpose (no doubt among others). 56 It was from this that his Honour further inferred that, if deprived of the vehicle, Mr Zahrooni would suffer hardship in experiencing difficulty in visiting his children. And it was this further inference that gave rise to the first two grounds of the appeal. 57 On behalf of the DPP it was submitted that, since Mr Zahrooni would, by reason of his incarceration, be unable in any event to visit his children, and would certainly be unable to use the vehicle for that purpose, the hardship found by his Honour was illusory, and, to the extent that any hardship existed as a consequence of his inability to visit his children, that hardship flows from the sentence imposed and would not flow from a forfeiture order if one were to be made. Section 18(2) expressly prohibits a court, in considering hardship, taking into account the sentence imposed. 58 There is a certain logic in the DPP's argument. However, it is limited. By s 50 of the Sentencing Procedure Act, Mr Zahrooni is entitled to release on parole at the expiration of the non-parole period - 18 months - 24 August 2011. Thereafter, if he is permanently deprived of his vehicle, the hardship envisaged by his Honour is real. 59 I would reject grounds 1 and 2 of the appeal. 60 With respect to grounds 3, 4 and 5 (which he argued together, as interrelated) senior counsel for the DPP made a number of points. Firstly, he noted that it was the intention of the legislature that a forfeiture order would cause some measure of hardship. That submission is supported by authority: R v Lake (1989) 44 A Crim R 63 at 66. However, in my view, the primary purpose of the legislation is to deprive offenders of the proceeds of crime, and thereby to operate as a disincentive or deterrent additional to that created by the penalties prescribed and imposed - to make crime unrewarding and unproductive. That is the purpose of the inclusion of paras (b), (c) and (d) in the definition of "tainted property". The property caught by para (a) of the definition is in a different category: it catches property that is used in or in connection with the commission of crime, but is not the proceeds of crime. There is no doubt that the vehicle the subject of the application comes within that definition. But a proper exercise of discretion conferred by s 18, where para (a) of the definition is invoked, also requires a consideration of the extent to which the property was used in or in connection with the commission of the crime. This, too, is supported by the decision in Lake, and the earlier decision of this Court in R v Bolger (1989) 16 NSWLR 115, to which, in Lake, reference was made. Questions of proportionality must be considered. Here, although the judge made no reference to it, it is a reasonable inference that the vehicle was used incidentally in the commission of the crime: it facilitated transport, but there is not the slightest reason to think that its principal purpose was drug dealing. That, in my opinion, is a relevant consideration and is consistent with s 18(1)(b)(i). 61 Counsel for the DPP also observed that Mr Zahrooni gave no evidence about hardship. But, it seems to me, the legislation provides for that circumstance. Section 18(1) requires the court to take into consideration the two circumstances (ordinary use and hardship) that the legislature has deemed relevant "having regard to the information before the court"; s 18(1)(b)(ii) expressly permits inferences to be drawn about potential hardship. As I have said, no complaint was made about his Honour drawing on the information in his possession from the sentencing proceedings. 62 The DPP then made quite extensive reference to the medical conditions of Mr Zahrooni's mother and father. The purpose of these references was to remove any suggestion that his being deprived of the vehicle would result in hardship for them. But, as was conceded during the course of argument, hardship to Mr Zahrooni's parents cannot be identified as one of the reasons for Hughes DCJ's refusal to make the forfeiture order. It cannot, therefore, be relevant to establishing error in the exercise of the discretion. 63 Although the reasons given by the judge were terse, I am not prepared to find that they were based on a false principle or took into account irrelevant considerations, or failed to take into account relevant considerations, or were otherwise within the principles stated in House. 64 At the conclusion of argument, the Court raised with counsel a question concerning the costs of the appeal. The Court subsequently received helpful written submissions from senior counsel for the DPP, to the effect that a costs order is beyond the jurisdiction of the Court. Since counsel who appeared for Mr Zahrooni very fairly and properly advised the Court that he was acting pro bono, it is unnecessary to determine that question. 65 In my opinion the appeal ought to be dismissed. 66 The orders I propose are:

Zahrooni v R; Director of Public Prosecutions

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