Naveed Khalig v. R.

CACC000611/1993

IN THE COURT OF APPEAL

1993, No 611
(Criminal)

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Coram: Hon. Macdougall, V-P, Bokhary and Mortimer, JJ.A.

Date of hearing: 23 February 1994

Date of judgment: 23 February 1994

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J U D G M E N T

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Mortimer, J.A: This is an application for leave to appeal against sentence. The applicant was convicted on his own plea of two offences; one of trafficking in a dangerous drug, and secondly of trafficking in a purported dangerous drug. The offences were committed on 9th and 10th June 1993 respectively. He was sentenced by Deputy Judge O'Donnell in the District Court on 8th October 1993 to two years' imprisonment on the first count and one year on the second count. Those sentences were to run consecutively, making three years in all.

2. The facts were unusual. The first count concerns trafficking in 0.34 grammes of heroin. It was a sale made by the applicant to an undercover police officer. The intention of the defendant was to set up, what could be colloquially called, a "sting". This 0.34 grammes was sold for $800 as a sample of further heroin which was to be supplied later. Subsequently the applicant contacted the officer and asked him whether the goods were satisfactory. When he got an affirmative answer an arrangement was made for the rest of the purported heroin to be delivered.

3. The applicant and the undercover officer met. The applicant had eight bags of the purported drug in a brief-case. In fact, the substance was innocuous. It was flour.

4. On the second offence the legislature provides a maximum sentence for conviction on indictment of imprisonment for seven years. It can be seen that the legislature regards this as a serious offence.

5. In sentencing the judge took into account matters which the applicant urges upon this Court - that there was an early plea of guilty which demonstrates the applicant's remorse, that he is 28 years of age, married with two children, and that he is the sole support for his wife, children and elderly parents. It is on those grounds that he seeks leave to appeal and asks for a lenient sentence.

6. Apart from those matters which we have mentioned, the particular matter which the judge had regard to on the first offence was the sentencing guideline in R. v. Lau Tak-ming. The guideline relevant to this case is that for trafficking of up to 10 grammes of narcotic a sentence of between 2 to 5 years' imprisonment is appropriate after trial. The judge in particular took into account not only the plea of guilty but the minimal quantity of drugs involved.

7. In his reasons for sentence the judge does not specify his starting point in relation to the first count. He simply says that having taken into account the matters which he had to take into account the sentence was of two years' imprisonment.

8. It seems to this Court that having regard to the facts of the case, in particular the small quantity of narcotic - 0.34 grammes - and the fact that this was an isolated offence, designed to bring about the sale of the purported drug, it is unlikely that the judge took as his starting point more than two years' imprisonment when applying the R. v. Lau Tak-ming guideline of 2-5 years after trial. In these circumstances the judge did not allow a proper discount for the plea of guilty on that offence. The sentence of two years is therefore wrong in principle. We interfere with that part of the sentence.

9. The proper sentence in these circumstances is 18 months' imprisonment on that count. The Court gives leave to appeal against sentence. We allow the appeal and substitute a sentence of 18 months for two years on the first count.

10. The sentence of one year's imprisonment on the second count is neither manifestly excessive nor wrong in principle. We do not interfere with that. The total sentence therefore after the appeal has been allowed is one of 2½ years.

Representation:

Applicant in person

Mr T.H. Casewell for the Crown/Respondent