In a recent story titled Refugee Drug Charges by Sarah Crawford published in the Daily Telegraph, an Iranian refugee could face life imprisonment after he was caught allegedly trying to smuggle 2.5 kg of methamphetamine through Sydney International Airport on New Year’s Eve.
Plaintiff Vahid Reza Azadpour Saleh was refused in Parramatta Bail court yesterday.
Mr Azadpour Saleh cried because he left Australia to visit his sick mother and needed to be released so he could make arrangements to bring his new wife to Sydney.
Despite his disappointment with the decision by Parramatta Bail court, it referred to the Bail Act 2013, the purpose of which is:
(1) The purpose of this Act is to provide legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released with or without conditions.
(2) A bail authority that makes a bail decision under this Act is to have regard to the presumption of innocence and the general right to be at liberty.
Bail decisions can be made:
(1) The following decisions ( each of which is a bail decision) can be made of a person accused of an offence:
(a) A decision to release the person without bail for the offence.
(b) A decision to dispense with bail for the offence.
(c) A decision to grant bail for the offence.
(d) A decision to refuse bail for the offence.
Section 48 provides for three types of bail application:
A release of applicant s 49.
A detention application made by a prosecutor (s 50).
A variation application by ‘any interested person’.
At the time of his arrest Mr Azadpour Saleh was on a protection visa. The Australian Border Force selected him for a luggage search at Sydney International Airport when he arrived from Dubai in the United Arab Emirates.
The Bail court referred to the Bail Act 2013 for a decision as to whether Azadpour Saleh who is accused of drug trafficking should be detained or released with or without conditions, according to the purpose of the Act.
Drug Trafficking in Australia
According to the article Drug Traficking Laws: A Justifiable Legal Provision by Caitling Hughes, Nicholas Cowdery and Alison Ritter, eight of nine jurisdictions have enacted ‘deemed supply’ for illicit drug trafficking offences that presume ‘intent to supply’ based on the quantity of a drug an alleged offender is found with and attach a criminal liability for the offence of supply.
Such laws are deemed to conflict with the dominant international practice that sanctions trafficking without the use of deemed supply provisions.
They contribute to harm to users and miscarriages of justice and increase pressure to use police and prosecutorial discretion in ways that may ultimately adversely affect community in the administration of the criminal law.
It is argued the law should be subject to legislative review/ and, or preferably, abolition from Australian drug trafficking law.
On 20 April 2015, the new NSW Attorney General, Gabrielle Upton MP, promised to introduce a ‘hardline stance on suppliers of illicit drugs’. She said that ‘those who peddle the drugs need to be dealt more harshly’ and that NSW Government would ‘reduce the threshold at which people are considered to be suppliers and dealers in drugs’; to reduce the legal threshold for deemed supply.
Drug trafficking constitutes the second-largest offence in Australian highest courts, according to Australian Bureau of Statistics 2012).
According to United Nations Office on Drugs and Crime 2014, Australia continues to have one of the highest rates of drug use and drug-related harm in the world, which brings immeasurable costs to society.
Charges for Drug Trafficking
Generally, the cultivation, manufacture and trafficking (or supply) of specified drugs (methamphetamine as well as cocaine, heroin, cannabis and ecstasy), possession and personal use are prohibited by all Australian states and territories in the Commonwealth.
The statutory maximum penalty available for drug trafficking offences unlike the states such as Northern Territory, Queensland Tasmania and Western Australia where it is 21 to 25 years, in NSW is life imprisonment.
Methampetamine falls within the category of drug type for which Azadpour Saleh, if proven guilty, would face life imprisonment under Drug Misuse and Trafficking Act 1985 (NSW) Sch 1.
In order to prove that Azadpour Saleh is criminally liable, proof of three essential facts is required:
1. There was a substance that was a prohibited drug
2. The accused possessed that substance;
3. And the accused supplied that substance.
Although the last characteristic will not apply to the case of Azadpour Saleh, he may be charged with possession of 2.5 kg of methamphetamine but it will be required to be proved that the accused possessed the drug for the purpose of selling, giving or providing it as he was caught concealing it in a white towel in his suitcase, which weighed abnormally heavy, the police fact sheet alleged.
On the other hand, by virtue of Australian deemed supply laws, if an accused possesses a trafficable threshold quantity or greater of drugs, Mr Azadpour Saleh can be charged with supply on the basis of possession alone.
S 29 of the Drug Misuse and Trafficking Act 1985 (NSW) provides:
‘A person who has in his or her possession an amount of a prohibited drug which is not less than the trafficable quantity of the prohibited drug shall.. be deemed to have the prohibited drug in his or her possession for supply.’
In this case, the onus is placed on Mr Azadpour Saleh to prove the quantity possessed was not for the purpose of supply and not upon the prosecutor to prove that it was or that he obtained the possession of the prohibited drug in accordance with the prescription of a medical practitioner.
On December 30, Azadpour Saleh had flown from Tehran, Iran to Dubai before taking a second flight to Australia.
Despite filling out an incoming passenger card in which Azadpor Saleh allegedly provided false information by answering negatively the question asking whether he was bringing prohibited goods into Australia.
According to court documents, Azadpour Saleh could not be interviewed by officers due to his ‘emotional state’.
His Legal Aid lawyer argued that he should be granted bail.
Sadly, Parramatta Bail court failed to take into account Mr Azadpour Saleh’s personal circumstances such as his own wedding to an Iranian woman and his desire to bring her to Australia and held that he was a ‘flight risk’ as he posed a danger to the community and because, if pled guilty to the offence, he faced life imprisonment.
Azadpour Saleh said through the Farsi interpreter: