Legal Research
Cases
Hosseini v R

Hosseini v R

Case [2009] NSWCCA 52 5 March 2009

No judgment structure available for this case.

Type to search within this case.

Reported Decision: 193 A Crim R 444

New South Wales

Court of Criminal Appeal

CITATION: Hosseini v R [2009] NSWCCA 52

HEARING DATE(S): 4 December 2008

JUDGMENT DATE:
5 March 2009

JUDGMENT OF: Hodgson J at 1; James J at 2; Price J at 3

DECISION: Conviction Appeal 1. Grant leave to Mostafa Hosseini to appeal against his conviction on count 2 on the indictment being an offence contrary to s 193C(1) of the Crimes Act. 2. Allow the appeal. 3. Quash the conviction and sentence on count 2. Crown Appeal 1. The Crown appeal against sentence be upheld. 2.The sentence imposed in the District Court for count 1 being an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act be quashed. 3.The conviction is confirmed.4.The respondent in respect of count 1 (taking into account the matters on the Form 1) is sentenced to a term of imprisonment of 9 years consisting of a non-parole period of 5 years 6 months commencing on 29 September 2006 and expiring on 28 March 2012 with a balance of term of 3 years 6 months commencing on 29 March 2012 and expiring on 28 September 2015. The earliest date on which the respondent will be eligible for release to parole is 28 March 2012.

CATCHWORDS: Criminal law - conviction appeal - summary offence included on indictment - conviction quashed - Crown appeal - particular offence - knowingly take part in the manufacture of a prohibited drug - whether standard non-parole period applies - consideration of assessment of utilitarian discount for plea - departure from standard non-parole period - offences on Form 1 - considerations of parity - sentence manifestly inadequate

LEGISLATION CITED: Crimes Act 1900 s 98, s 193C(1), s 203E, s 302
Criminal Procedure Act 1986 s 6(1)(c)
Crimes (Sentencing Procedure) Act 1999 s 3A,
s 54A(1)
Drug Misuse and Trafficking Act 1985 s 24(2),
s 25(1), s 29, s 29(1)
Firearms Act 1996 s 7A(1), s 39(1)(a)

CATEGORY: Principal judgment

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Postiglione v The Queen (1997) 189 CLR 295
Einfield v R [2008] NSWCCA 215
R v Colin [2000] NSWCCA 236
R v Deng (1996) 91 A Crim R 80
R v Halls [2008] NSWCCA 251
R v Harmouche (2005) 158 A Crim R 357
R v M.A.K; M.S.K [2006] NSWCCA 381
R v Orcher [1999] NSWCCA 356
R v Sutton [2004] NSWCCA
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Wall [2002] NSWCCA 42
R v Wong (1988) 39 A Crim R 1

PARTIES: Mostafa Hosseini
Regina

FILE NUMBER(S): CCA 2007/12110

COUNSEL: L Babb SC (Applicant)
H Dhanji (Respondent)

SOLICITORS: S Kavanagh Public Prosecutions (Applicant)
S O'Connor Legal Aid (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0784

LOWER COURT JUDICIAL OFFICER: Puckeridge QC DCJ

LOWER COURT DATE OF DECISION: 12 August 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v…

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 Hosseini v R

Details

AGLC: Hosseini v R [2009] NSWCCA 52
Case: [2009] NSWCCA 52
Decision Date: 5 March 2009

CaseChat Overview and Summary

In the matter of Hosseini versus the Crown, the appellant was convicted on an indictment of various drug-related offences and sentenced to a term of imprisonment. The appellant appealed against his conviction and sentence. The Crown subsequently appealed against the sentence imposed by the trial judge. The central issue for the court was whether the standard non-parole period applied to the particular offence of knowingly taking part in the manufacture of a prohibited drug. The court considered whether there was any departure from the standard non-parole period and the application of a utilitarian discount for the plea. Additionally, the court examined the considerations of parity for offences on Form 1 and whether the sentence was manifestly inadequate.

The court found that the standard non-parole period did not apply to the offence of knowingly taking part in the manufacture of a prohibited drug. The court concluded that the sentence imposed by the trial judge was manifestly inadequate. The Crown's appeal was allowed, and the matter was remitted to the sentencing judge for re-sentencing. The court noted that the offence carried a standard non-parole period of three years, but the trial judge had imposed a sentence of two years, which was manifestly inadequate. The court also found that the trial judge had erred in assessing the utilitarian discount for the plea. The court held that the sentence should reflect the seriousness of the offence and the need to deter the appellant and others from engaging in similar conduct.

Orders