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Amiri v The Queen

Amiri v The Queen

Case [2017] NSWCCA 157 28 June 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Amiri v R [2017] NSWCCA 157
Hearing dates: 17 March 2017
Date of orders: 28 June 2017
Decision date: 28 June 2017
Before: Macfarlan JA, Latham and Campbell JJ
Decision:
1. Grant leave to appeal;
2. Appeal dismissed.
Catchwords: CRIMINAL APPEAL – sentence appeal – applicant convicted for attempted drug and firearm possession – attempt to receive for supply a prohibited drug – where applicant attempted to obtain a bag on behalf of a criminal gang – “Brothers 4 Life” – whether primary judge erred in assessment of objective seriousness – whether sentence imposed manifestly excessive – leave to appeal granted – appeal refused
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1995 (NSW)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Collier v R [2012] NSWCCA 213
D A C v Regina [2006] NSWCCA 265
Dinsdale v The Queen (2000) 202 CLR 321
House v The King [1936] HCA 40; (1936) 55 CLR 499
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Mulato v R [2006] NSWCCA 282
R v Dodd (1991) 57 A Crim R 349
R v Lachlan [2015] NSWCCA 178
R v Nassif [2005] NSWCCA 38
Salafia v R [2015] NSWCCA 141
Veen v The Queen (No 2) (1988) 164 CLR 465
Category: Principal judgment
Parties: Masieh Amiri (Applicant)
Crown (Respondent)
Representation:
Counsel:

A Cook (Applicant)
S Hughes (Respondent)

Solicitors:
L Del Monte (Applicant)
C Hyland, Director of Public Prosecutions (Respondent)

File Number(s): 2014/6807
Decision under appeal

Court or tribunal:

District Court of New South Wales, Sydney

Jurisdiction:

Criminal

Date of Decision:

16 December 2015

Before:

Judge Frearson SC

File Number(s):

2014/00006807

Judgment

MACFARLAN JA: I agree with Campbell J.
LATHAM J: I agree with Campbell J.
CAMPBELL J: The applicant, Mr Masieh Amiri, seeks leave to appeal pursuant to Criminal Appeal Act 1912 (NSW) s 5(1)(c) against the sentence imposed by his Honour Judge Frearson SC on 16 December 2015.
The applicant pleaded guilty to, and was convicted of, two charges. The first was attempting to receive for supply a prohibited drug not less than the large commercial quantity under Drug Misuse and Trafficking Act 1985 (NSW) s 25(2). The large commercial quantity of the drug in question, 25I-NBOMe, a “potent psychedelic drug” (ROS p 5), is prescribed in Schedule 1 to the Act. There was also a Form 1 detailing four charges of related offending for which the applicant admitted his guilt and wished to have taken into account when he was dealt with for count 1. The second charge was attempting to possess a prohibited firearm, namely a Mossberg sawn-off pump action shotgun, in breach of Firearms Act 1995 (NSW) s 7(1) (to…

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.

Continue reading Amiri v The Queen

Details

AGLC: Amiri v The Queen [2017] NSWCCA 157
Case: [2017] NSWCCA 157
Decision Date: 28 June 2017

CaseChat Overview and Summary

In the recent decision of Amiri v The Queen, the applicant sought to appeal his sentence on the grounds that it was manifestly excessive and that the primary judge had erred in assessing the objective seriousness of his crime. The applicant was convicted of attempting to receive, for the purpose of supply, a prohibited drug and for possessing a firearm. The attempted supply was part of a larger plan by the criminal gang "Brothers 4 Life". The Court of Appeal, having granted leave to appeal, considered whether the sentence imposed was manifestly excessive and whether the primary judge had erred in their assessment of the objective seriousness of the applicant's crimes.

The central legal issues before the court were whether the sentence imposed by the primary judge was manifestly excessive and whether the primary judge erred in assessing the objective seriousness of the applicant's crimes. The applicant argued that the primary judge had not given sufficient weight to mitigating factors, including his young age and the fact that he was acting under duress. The applicant further contended that the sentence imposed was manifestly excessive, given his age and the potential for rehabilitation.

The Court of Appeal found that the primary judge had correctly assessed the objective seriousness of the applicant's crimes, taking into account the nature and circumstances of the offences. The Court held that the primary judge had appropriately considered the mitigating factors presented by the applicant, but ultimately determined that these factors did not warrant a significantly lower sentence. The Court further found that the sentence imposed was not manifestly excessive, given the serious nature of the crimes and the need to deter similar conduct in the future. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders