Akbari v The Queen; Nasiri v The Queen - [2015] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Akbari v R; Nasiri v R [2015] NSWCCA 240
Hearing dates: 13 August 2015
Decision date: 07 September 2015
Before: Bathurst CJ at [1];
R A Hulme J at [2];
Garling J at [81]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – co-offenders – demand money in company with menaces – participate in criminal group – whether error in consideration of mental health issues – no causal link between mental health issues and offending – whether error in determination of objective seriousness of count 1 – where applicants sought to extort substantial sum of money from business owner – where applicants threatened harm to victim and family – no error in finding offence extremely serious – sentence not manifestly excessive – appeal dismissed
CRIMINAL LAW – appeal against sentence – co-offenders – demand money in company with menaces – participate in criminal group – whether error in distinguishing between roles of offenders – whether error in regard to parity principles – open to judge to differentiate between applicants in the way that he did – no error established – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) ss 99(2), 93T(1), 95, 347, 350
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Road Transport Act 2013 (NSW) s 54(3)(a)
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
HL v Regina; YG v Regina [2014] NSWCCA 43
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McMenemy v R [2009] NSWCCA 50
Newman v R [2012] NSWCCA 69
R v Cage [2006] NSWCCA 304
R v Smith [2004] NSWCCA 95; 144 A Crim R 577
R v Wilson [2002] NSWCCA 65
Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398
Texts Cited: “Sentencing in complicity cases — Part 1: Joint criminal enterprise”, Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, 2009
Category: Principal judgment
Parties: Nazir Ahmad Akbari (Applicant)
Mohammed Nasiri (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr W Hunt (Akbari)
Mr P Wass SC (Nasiri)
Ms M Cinque (Crown)
Solicitors:
ETB Legal
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2012/263228; 2013/2758572013/285363
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

27 June 2014

Before:

Zahra SC DCJ

File Number(s):

2012/263228; 2013/275857
2013/285363

Judgment

BATHURST CJ: I agree with the orders proposed by R A Hulme J and with his Honour’s reasons.
R A HULME J: On 27 June 2014, his Honour Judge Zahra SC in the District Court at Sydney sentenced Nazir Ahmad Akbari and Mohammed Nasiri ("the applicants") as follows:

Offence

Akbari

Nasiri

1

Demand money with menaces in company

(s 99(2) Crimes Act 1900 (NSW) – maximum penalty 14 years)

4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCCA 240
Decision Date: 07 September 2015

CaseChat Overview and Summary

In the cases of Akbari v The Queen and Nasiri v The Queen, the applicants appealed against their sentences for their involvement in a criminal scheme where they demanded a substantial sum of money from a business owner with threats of harm. The applicants argued that the trial judge had erred in various respects, including in the consideration of their mental health issues, the determination of the objective seriousness of the offence, and the application of parity principles in sentencing. The High Court of Australia reviewed the matter to determine whether the sentences imposed were appropriate.

The court was required to consider whether there was an error in the trial judge's assessment of the applicants' mental health issues and whether these issues had a causal link to their offending behaviour. Additionally, the court needed to determine if the trial judge erred in assessing the objective seriousness of the crime, and whether there was an error in distinguishing between the roles of the co-offenders and applying parity principles in sentencing.

The court found that there was no error in the trial judge's consideration of the applicants' mental health issues, as no causal link was established between these issues and their offending behaviour. The court held that the trial judge correctly assessed the objective seriousness of the offence, noting that the applicants had extorted a substantial sum of money from a business owner and threatened harm to the victim and their family. The court also found that it was open to the trial judge to differentiate between the applicants based on their roles in the crime and that there was no error in the application of parity principles.

The appeals were dismissed, and the sentences imposed by the trial judge were upheld. The court found that the sentences were not manifestly excessive and that the trial judge had appropriately considered the circumstances of the case and the principles of sentencing.

Orders