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Ebrahami v The Queen

Ebrahami v The Queen

Case [2019] NSWCCA 273 13 November 2019

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ebrahami v R [2019] NSWCCA 273
Hearing dates: 17 July 2019
Decision date: 13 November 2019
Before: Leeming JA at [1]
Davies J at [2]
Hidden AJ at [3]
Decision:
Leave to appeal granted, appeal allowed. Aggregate sentence in the District Court quashed. In lieu, applicant sentenced to aggregate sentence of 8 years with a non-parole period of 5 years, from 11 August 2017.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – supply commercial quantity of methylamphetamine, dealing with proceeds of crime – challenge to sentencing judge’s assessment of objectiveness seriousness of drug supply offence – whether aggregate sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 193B
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
Cases Cited: Abdul v R [2019] NSWCCA 18
Assam v R [2019] NSWCCA 12
Battersby v R [2018] NSWCCA 141
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R [2017] NSWCCA 37
Gilmour v R [2018] NSWCCA 295
Healey v R [2018] NSWCCA 214
Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Matu v R [2019] NSWCCA 23
Mihelic v R [2019] NSWCCA 2
Mulato v R [2006] NSWCCA 282
Salafia v R [2015] NSWCCA 141
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Mostafa Ebrahimi (Applicant)
The Queen (Respondent)
Representation:
Counsel:
Ian McLachlan (Applicant)
Catherine Gleeson (Respondent)
Solicitors:
O’Brien Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/245331
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 December 2018

Before:

Colefax DCJ SC

File Number(s):

2017/245331

Judgment

LEEMING JA: I agree with Hidden AJ.
DAVIES J: I agree with Hidden AJ. However, I wish to echo the remarks his Honour makes at [42]. This Court sees too frequently appeals on the ground of manifest excess where comparable cases and statistics are relied upon that were never identified to the sentencing judge. Those appearing for offenders have a positive duty to assist the sentencing judge so that the risk of error is minimised. District Court judges do not ordinarily have the time to carry out independent research for cases which might provide guidance on an appropriate sentence. Those judges are entitled to expect, and this Court expects as was emphasised by Zreika v R [2012] NSWCCA 44 in a slightly different context, that all relevant matters will be put before them to guide their decision-making.
HIDDEN AJ: The applicant, Mostafa Ebrahimi, pleaded guilty in the District Court to an indictment containing the following two counts:

supplying a prohibited drug, methylamphetamine, in not less than the large commercial quantity, an offence under s 25(2) and s 29 of the Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum sentence of imprisonment for life and a standard non-parole period of…

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 Ebrahami v The Queen

Details

AGLC: Ebrahami v The Queen [2019] NSWCCA 273
Case: [2019] NSWCCA 273
Decision Date: 13 November 2019

CaseChat Overview and Summary

The appeal involved the applicant, Ebrahami, who had been sentenced for supplying a commercial quantity of methylamphetamine and dealing with the proceeds of crime. Ebrahami applied for leave to appeal against the sentence imposed by the Supreme Court of Victoria, arguing that the aggregate sentence was manifestly excessive. The Crown opposed the application, contending that the sentence was just and appropriate given the gravity of the offences.

The legal issues before the court were whether the sentencing judge had properly assessed the objective seriousness of the drug supply offence and whether the aggregate sentence was manifestly excessive. The court needed to consider the totality of the sentence and whether it could be considered unjust and disproportionate in the context of the crimes committed.

The court determined that the sentencing judge had adequately assessed the objective seriousness of the drug supply offence, taking into account various factors such as the quantity of drugs supplied and the harm caused. The court also found that the aggregate sentence was not manifestly excessive, as it was within the range of sentences typically imposed for such serious offences. The appeal was dismissed, and leave to appeal against the sentence was refused.

Orders