Behjani-Zadeh v The Queen

[2018] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Behjani-Zadeh v R [2018] NSWCCA 97
Hearing dates:	16 May 2018
Decision date:	23 May 2018
Before:	Basten JA at [1]; Button J at [27]; Fagan J at [28]
Decision:	(1)   Grant the applicant leave to appeal from the sentence imposed on him by the District Court on 27 March 2017.  (2)   Dismiss the appeal.
Catchwords:	CRIME – appeal against severity of sentence – multiple charges arising out of single course of conduct – firearms offences – intimidation causing fear – offences not involving identical elements – whether same culpability double-counted in sentencing – aggregate sentence
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 Crimes Act 1900 (NSW), s 93G Criminal Procedure Act 1986 (NSW), s 166 Firearms Act 1996 (NSW), s 7
Cases Cited:	Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Category:	Principal judgment
Parties:	Mojtaba Behjani-Zadeh (Applicant) Regina (Respondent)
Representation:	Counsel: Mr R Webb/Mr J Jiang (Applicant) Ms M England (Respondent)   Solicitors: Macquarie Lawyers (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2015/119856
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 March 2017 Before: Armitage ADCJ File Number(s): 2015/119856

Judgment

1. BASTEN JA: On 22 April 2015 the applicant, Mojtaba Behjani-Zadeh, was arrested by police in the car park to a residential building in Parramatta. At the time of his arrest he was carrying a satchel containing a fully-loaded .22 calibre silver self-loading pistol with a live round in the chamber and an attached magazine containing six rounds of ammunition. The bag also contained $15,655 in cash that was the proceeds of supplying drugs.

2. The unit which the applicant occupied in the building was fitted with a metal roller security door. A remote control for the door was found in the satchel. The police entered the apartment and conducted a search. The search revealed small quantities of methylamphetamine and heroin, together with equipment used in the drug supply trade. An additional 38 rounds of ammunition were also found.

3. The premises were fitted internally with a CCTV system. Police located memory cards containing footage captured on CCTV which depicted a number of persons arriving at the premises meeting the applicant and handing him money.

4. The applicant was charged with possession of an unauthorised prohibited firearm, in breach of s 7(1) of the Firearms Act 1996 (NSW). This charge became count 4 on an indictment and was accompanied by a Form 1 including a charge of knowingly dealing with the proceeds of crime, namely the $15,655 found in the satchel bag and six additional charges resulting from the search of the premises.

5. Count 4 carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years. Following the entry of a plea of guilty, the applicant was sentenced by Acting Judge Armitage on 27 March 2017 in the District Court. He was eventually sentenced for this and other offences to an aggregate sentence to which reference will be made shortly. The judge indicated that had an individual sentence been imposed for count 4, taking into account the matters on the Form 1, the sentence would have been 6 years 9 months imprisonment with a non-parole period of 4 years.

6. On viewing the CCTV records, the police discovered footage dated 27 September 2014 (some seven months before the date of the arrest) of an argument between the applicant and a woman, Jody Hain, with whom he shared the unit. In the course of the argument the applicant pointed the .22 calibre pistol at Ms Hain and told her to “shut the fuck up”. She told him to stop pointing the gun at her. The applicant said, “I will kill you”; Hain said “Stop it Kia, I’m going to shit myself. I am begging you please, you don’t have to do this”. [1]

   1.    Sentencing Judgment, 27 March 2017, p 8.

7. This material resulted in two further counts on the indictment, namely possessing a loaded firearm so as to endanger life, in breach of s 93G(1)(a)(ii) of the Crimes Act 1900 (NSW) (count 2) and intimidating another person with the intention of causing the person to fear physical or mental harm, in breach of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (count 3). Count 2 carried a maximum penalty of 10 years imprisonment; count 3 carried a maximum penalty of 5 years imprisonment. With respect to count 2, the judge indicated that he would have imposed an individual sentence of 3 years and 4 months; with respect to count 3, a sentence of imprisonment for 2 years and 6 months.

8. There was a further charge of organising or conducting drug premises contained on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), for which the judge indicated an individual sentence of 6 months imprisonment. This offence was alleged to have occurred on 22 April 2015, being the day of the applicant’s arrest.

9. Having indicated the individual putative sentences for each offence, the sentencing judge then imposed an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 6 months, to date from the date of arrest, namely 22 April 2015.

Grounds of appeal

10. Pursuant to an application for leave to appeal dated 26 March 2018 (almost exactly a year from the date of sentencing and almost three years into the non-parole period) the applicant identified the following grounds of appeal:

“1.   The sentencing judge erred in taking into account substantially similar facts as to counts 2, 3 and 4. There was double counting in that the elements of one count were treated as aggravating features of another.

2.   The sentencing judge was in error in that count 3 was aggravated in the assessment of its criminality by possession of the same pistol.

3.   The learned sentencing judge was in error in finding counts 2, 3 and 4 to be all above the mid-range. The applicant submits that the location of all three counts above the mid-range is indicative of duplicity and double counting.

4.   The sentencing judge erred in accepting a plea to count 2.

5.   The applicant submits that by reason of the errors as pleaded the sentence imposed was manifestly excessive in all the circumstances.”

11. It is clear that each of grounds 1-4 relied on an element variously described as duplicity and double counting. Although it was abandoned in the course of oral argument, it is convenient to deal first and briefly with ground 4, relating to the acceptance of a plea to count 2.

12. The written submissions stated that “[n]otwithstanding … that each charge was able to be distinguished on its particular elements the elements nevertheless overlapped.” [2] Counts 2 and 3, the submission continued, arose from the same facts comprising a single event occurring on 27 September 2014 when the applicant threatened Ms Hain with a pistol and placed her in danger and fear. The assumption underlying ground 4 must have been that a plea had earlier been accepted with respect to count 3.

    2.    Applicant’s written submissions, 14 March 2018, par 8.

13. In support of his contention the applicant relied upon the following proposition in the joint reasons in Pearce v The Queen:[3]

“[40]   To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.”

3. (1998) 194 CLR 610; [1998] HCA 57 at [40] (McHugh, Hayne and Callinan JJ).

14. That passage did not support the suggestion that conviction on count 3 would constitute a “plea in bar” with respect to count 2. It could only be so understood by reading the passage out of context. The structure of the joint reasons in Pearce can be readily deduced from the headings used in the judgment. At [16], under the heading “Double prosecution” the relevant sections of the Crimes Act were referred to and the issue identified:

“It is clear in this case that each of the offences concerned contains an element that the other does not – a specific intent to do grievous bodily harm in s 33 which is absent from s 110 and a breaking and entering in s 110 which is absent from s 33. Neither offence, therefore, is wholly included in the other. So much was conceded by the appellant. It was argued, however, that at common law a person cannot be convicted of different offences ‘in respect of the same or substantially the same set of facts’. That is of central importance in this case, because, as stated above, the two offences arose out of a single episode. The question then is whether the appellant had a plea in bar or was entitled to a stay of proceedings.”

15. That issue was then considered under the heading “Plea in bar”, which concluded at [28] with the following statement:

“Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld.”

16. That stated the relevant principle with respect to a plea in bar; the same was true of counts 2 and 3. The passage relied upon by the applicant at [40] was to be found under the heading “Double punishment” and described the proper approach to sentencing with respect to two offences arising out of the same conduct. Accordingly, ground 4 was correctly abandoned.

17. The events the subject of counts 2 and 3 occurred on 27 September 2014; the events underlying count 4 occurred on 22 April 2015. There is no element of double counting involved because the same pistol was the subject of separate offences on separate occasions.

18. Nor was it indicative of error that the judge concluded with respect to each count that it fell, in terms of objective seriousness, above the mid-range. First, a reading of the comprehensive reasons given by the sentencing judge demonstrates that an assessment of the objective seriousness of count 4 was undertaken in isolation from the other two matters. The pistol was found in a satchel with a large sum of money. He accepted that it was small and easily concealed, it was self-loading and fully loaded. The apparent purpose of carrying the pistol was to protect the applicant in circumstances where he was carrying a large sum being the proceeds of crime; this, the judge correctly held, did not provide a legitimate basis for carrying a loaded pistol.

19. The judge dealt with counts 2 and 3 together, but separately from count 4. He noted the submission of the prosecutor that counts 2 and 3 “involved a direct threat to kill the victim, who was begging the offender to stop”, [4] and that those offences were therefore above the mid-range, but not towards the top of the range.

    4.    Judgment, p 17.

20. In dealing with the defence submissions with respect to count 4, the judge concluded that “the offence is slightly above the mid-range for the reasons given by the Crown but not as high as the Crown contends.” [5] The judge made a similar finding with respect to the intimidation offence (count 3) stating that “the pointing of the firearm at the victim and the threat to kill her elevates the seriousness of the intimidation [offence] and places it somewhat above the mid-range though not at or towards the top of the range, as the Crown submits.” [6] The judge then separately considered count 2 and came to a similar conclusion.

    5.    Judgment, pp 25-26.

    6.    Judgment, p 27.

21. There is nothing sinister in a finding that two offences arising out of the same conduct were of the same magnitude of objective seriousness; indeed, it might have been surprising had it been otherwise.

22. The real issue was whether there was double counting in respect of the sentences for counts 2 and 3. The submission that the judge in fact committed this error is contradicted by the express reasoning in the judgment on sentence. First, in summarising the prosecution’s submissions, the judge noted the proposition that “count 4 … and the related matter on the section 166 certificate … should have significant accumulation on the concurrent sentences for the first two counts”. [7] He continued: “the effect of my indicative sentences is that this will occur.” The judge also referred to the submission with respect to count 2 (possession of a loaded firearm) “that it is inherent in the intimidation offence that the weapon was pointed at the victim and that one must avoid double counting.” [8] The judge expressly accepted that proposition, stating that it was “correct”. He then referred to the seriousness of a charge which had involved intimidation by pointing a firearm at the victim. Finally, again referring to the defence submissions the judge stated: [9]

“As to concurrency and accumulation, he submitted that an aggregate sentence may be appropriate, but that there should not be substantial accumulation as between the counts and that the sentences for counts 2 and 3 of intimidation and possession of a loaded firearm should be effectively concurrent.

I think effective concurrency between those last mentioned counts is appropriate, but that there should be a degree of accumulation between those counts and count 4 of possession of an unauthorised prohibited firearm and the section 166 certificate matter of organising or conducting drug premises.”

7.    Judgment, p 17.

8.    Judgment, p 26.

9.    Judgment, p 30.

23. These passages are patently inconsistent with an intention to impose double punishment for the same conduct; nor is there any reason to suppose that the judge departed from them in formulating the aggregate sentence.

24. Finally, there is the suggestion in grounds 1 and 2 that count 2 was treated as an aggravating feature of count 3. That is not so; the counts (or charges) were not aggravating features, but the facts could be. One aggravating fact, namely the use of a loaded pistol, which was the subject of count 2, constituted an aggravating feature with respect to count 3. Although there should be no double punishment, there was no error in assessing the same conduct separately with respect to each count.

25. As ground 5 effectively conceded, if the applicant could not establish an error in the terms of grounds 1-4, there was no basis for concluding that the sentence was manifestly excessive. As those grounds are rejected, the appeal must fail. Given the length of the sentence it is appropriate that the applicant be granted leave to appeal. However, the appeal must be dismissed.

26. The Court should make the following orders:

1. Grant the applicant leave to appeal from the sentence imposed on him by the District Court on 27 March 2017.

2. Dismiss the appeal.

27. BUTTON J: I agree with Basten JA.

28. FAGAN J: I agree with Basten JA.

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Endnotes

Decision last updated: 23 May 2018