Khajehtaheri v The King
[2025] NSWCCA 6
•14 February 2025
|
New South Wales |
Case Name: | Khajehtaheri v R |
Medium Neutral Citation: | [2025] NSWCCA 6 |
Hearing Date(s): | 5 February 2025 |
Date of Orders: | 14 February 2025 |
Decision Date: | 14 February 2025 |
Before: | Payne JA at [1]; |
Decision: | (1) Leave to appeal against sentence granted. |
Catchwords: | CRIME — Appeals — Appeal against sentence — Manifest excess — whether failure to apply correct principle with respect to the quantification of a discount for the applicant’s pleas of guilty — s 16A(2)(f) of the Crimes Act 1914 (Cth) — contrition involving facilitation of the course of justice — no lesser sentence warranted |
Legislation Cited: | Crimes Act 1914 (Cth) Part IB, ss 16A, 19AB |
Cases Cited: | Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15 |
Category: | Principal judgment |
Parties: | Shervin Khajehtaheri (applicant) |
Representation: | Counsel: |
File Number(s): | 2020/317644 |
Publication Restriction: | Nil |
Decision under appeal: | |
Court or Tribunal: | District Court of New South Wales |
Jurisdiction: | Criminal |
Date of Decision: | 13 September 2024 |
Before: | Mendes DCJ |
File Number(s): | 2020/317644 |
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 13 September 2024, Mendes DCJ in the District Court sentenced the applicant to imprisonment for aiding and abetting the importation of a marketable quantity of cocaine and aiding and abetting the commission of an offence of attempting to possess a marketable quantity of cocaine. An effective period of imprisonment of 3 years and 9 months was imposed. The sentencing judge, pursuant to s 19AB of the Crimes Act 1914 (Cth), fixed a single non-parole period of 1 year and 11 months commencing on 10 August 2024 and expiring on 9 July 2026. Her Honour granted a “discount” of 25% on sentence for both offences to reflect the utilitarian value of the pleas and the offender’s commitment to facilitating the administration of justice by reference only to s 16A(2)(g) of the Crimes Act. The applicant appealed to the New South Wales Court of Criminal Appeal.
On appeal, the issues were:
(i) whether the sentences imposed were manifestly excessive;
(ii) whether the sentencing judge erred in not finding that the plea of guilty represented contrition within the meaning of s 16A(2)(f) of the Crimes Act because the plea demonstrated a desire to facilitate the course of justice; and
(iii) whether any lesser sentence was warranted in law.
The Court of Criminal Appeal (per Payne JA, Fagan and Coleman JJ agreeing at [68] and [69] respectively) held, granting leave to appeal but dismissing the appeal:
On issue (i)
(1) The sentence was not out of line with sentences imposed in other cases. The sentence imposed displayed a significant degree of leniency, both as to the effective head sentence imposed and the non-parole period which was fixed. The applicant failed to establish that the sentence was unreasonable or plainly unjust.
Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53; The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; R v Knight [2004] NSWCCA 145; R v Richard [2011] NSWSC 866; R v Glynatsis [2013] NSWCCA 131; R v De Leeuw [2015] NSWCCA 183; R v Nguyen; R v Pham [2010] NSWCCA 238; R v Lee [2007] NSWCCA 234; R v Nguyen [2005] NSWCCA 362; Sukkar v The Queen (No 2) [2008] WASCA 2; R v Kaldor [2004] NSWCCA 425; R v Chen [2002] NSWCCA 174; R v Stanbouli [2003] NSWCCA 355; R v Pang [1999] NSWCCA 4; R v Barrientos [1999] NSWCCA 1; R v Paliwala [2005] NSWCCA 221; Okafor v R [2007] NSWCCA 147; Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238; Tyler v R; R v Chalmers [2007] NSWCCA 247; El-Ghourani v R [2009] NSWCCA 140; and R v Ferrer-Esis (1991) 55 A Crim R 231 applied.
On issue (ii)
(2) Although facilitation of the course of justice was taken into account by the sentencing judge, it was only taken into account under s 16A(2)(g) of the Crimes Act. When the sentencing judge dealt with s 16A(2)(f) of the Crimes Act, no mention was made of the guilty pleas as being relevant as facilitating the administration of justice. Although they often overlap, facilitation of the administration of justice, as a reflection of contrition and remorse is required to be taken into account under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g).
Baden v R [2020] NSWCCA 23; Bae v R [2020] NSWCCA 35; Giles-Adams v R; Preca v R [2023] NSWCCA 122; and Singh v R [2018] NSWCCA 60 applied.
On issue (iii)
(3) The error in the sentencing judge’s approach enlivens the Court’s obligation to re-sentence. However, no lesser sentence than that imposed at first instance was warranted in law.
Criminal Appeal Act 1912 (NSW) s 6(3); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied.
JUDGMENT
PAYNE JA: On 13 September 2024, Mendes DCJ in the District Court sentenced the applicant to imprisonment for the following offences:
Count 1: aid/abet the importation of a marketable quantity of a border controlled drug namely cocaine contrary to ss.11.2(1) and 307.2(1) of the Sch 1 of the Criminal Code Act 1995 (Cth); and
Count 2: aid/abet the commission of an offence of attempting to possess a marketable quantity of a border controlled drug namely cocaine contrary to ss.11.2(1), 11.1(1) and 307.6(1).
The sentences imposed were as follows:
Count 1: 2 years and 10 months commencing on 10 August 2024 and expiring on 9 June 2027; and
Count 2: 3 years and 3 months commencing on 10 February 2025 and expiring on 9 May 2028.
An effective period of imprisonment of 3 years and 9 months was thus imposed. The sentencing judge, pursuant to s 19AB of the Crimes Act 1914 (Cth), fixed a single non-parole period of 1 year and 11 months commencing on 10 August 2024 and expiring on 9 July 2026.
Sentencing judgment
The sentencing judge explained that count 1 related to the applicant between 14 February and 26 June 2020 aiding and abetting the importation of two consignments each containing a marketable quantity of cocaine, the total amount being 219.2 grams of pure cocaine. Count 2 related to the attempted possession by the applicant between 26 March and 2 April 2020 of three similar consignments each containing a marketable quantity of cocaine, the total amount being 314.8 grams of pure cocaine. All consignments originated in the United States of America.
The sentencing judge found that, in respect of count 1 consignment 1, on 18 February 2020 a consignment addressed to Lourance Gesha was seized by Australian Border Force (ABF) officers. The delivery address was an Australia Post (AusPost) parcel locker (ending 879) at Prestons Centre registered to Gesha and the phone number associated with the parcel locker was a number ending 224. The consignment contained 117.9 grams of pure cocaine. A forensic examination of a black Samsung J530 CIPHR device seized from the applicant’s vehicle revealed the fictitious name of the consignee Lourance Gesha in text stored on the device.
In respect of count 1 consignment 2, the sentencing judge found that on 26 June 2020 a consignment addressed to Vito Pizitola was seized by ABF officers. The delivery address was an AusPost parcel locker (ending 538) at St Leonards and the phone number associated with the registration of the parcel locker was the number ending in 224. The consignment contained 101.3 grams of pure cocaine. The applicant was responsible for obtaining the identification of Vito Pizitola which was used to register the parcel locker. On 23 November 2019, the applicant had been involved in a car accident with a person by the name of Vito Pizzitola, and the applicant had personal identification material belonging to this person on his phone which located his address. The parcel locker was registered using Mr Pizzitola’s residential address, an almost identical spelling of his name and a falsely subscribed email address.
In respect of the first consignment of count 2 which was the third overall consignment, a parcel was consigned to Sean Crowie and addressed to an AusPost parcel locker ending 604 at Panania Parcel Lockers which was registered using the phone number ending 224. The consignment contained 111.3 grams of pure cocaine. A photo of a licence belonging to Sean Crowe, and part of a letter from WorkCover to Mr Crowe was located on two phones belonging to the applicant which were located at the time of his arrest.
Text forensically extracted from a phone seized from the applicant’s vehicle stated, “Sean Crowe locker Pacific Highway”. The parcel was intercepted by the Australian Federal Police (AFP) on 26 March 2020. The applicant pretended to be Sean Crowe on 27 March 2020 and called AusPost using the mobile ending 224 to inquire about the status of this consignment.
In respect of consignment 2 of count 2, the parcel was consigned to Mario Naclerio and addressed to an AusPost parcel locker ending 937 at Silverwater Parcel Lockers registered to Mario Naclerio using the phone number ending 224. The consignment contained 103.3 grams of pure cocaine. On 2 April 2020, the applicant, pretending to be Mario Naclerio and using a phone number ending 109, contacted AusPost making enquiries in respect of the consignment. On 3 April 2020, the consignment was seized by the AFP from the Silverwater Post Office.
In respect of the third consignment of Count 2, the parcel was consigned to Paul Melki and addressed to an AusPost parcel locker at West Ryde Parcel Lockers. The parcel was registered to Melki’s name using the number ending 224. The applicant provided Melki’s details to an unknown person for the purpose of registering the parcel locker. Melki was a former friend of the applicant who died on 3 March 2020. The consignment contained 100.4 grams of pure weight cocaine.
The sentencing judge described the applicant’s roles in the offending in the following ways:
(1)He played some role in the creation and registration of AusPost parcel lockers under different false names by providing details of three persons to an unknown person.
(2)The mobile phone number ending 224 was associated with each parcel locker account and used as a delivery address for the consignments. Notifications from AusPost in relation to the consignments were sent to this number. This number was also provided to AusPost to facilitate access to the parcel lockers.
(3)This mobile number was falsely subscribed and was used by the applicant on a number of occasions in connection with the offending. The handset was seized by police from the applicant’s home at about the time of his arrest. At all relevant times, the applicant was either using this mobile number or was with the person using that device. In the latter case, he was aware of the content of the communications sent in real time.
(4)At all relevant times, this number was also associated with an AirTasker account registered to a false name, Michael Ukhana. This account was used to assign AirTasker tasks for the collection of the parcels to a person named Ao Lu. Lu was known to both the offender and the cousin of the applicant’s wife. Lu was to collect the consignments and deliver them to an address in Liverpool to an unknown person. The named lessee on the lease agreement for this address in Liverpool does not exist. Tasks completed by Lu were paid for through AirTasker using anonymous pre-paid cards linked to the Ukhana AirTasker account. One of the pre-paid cards was located at the applicant’s home at the time of the execution of the search warrant.
(5)The applicant caused the AirTasker tasks posted by Ukhana to be posted and payments for the task completed by Lu to be released to Lu.
(6)The applicant was aware of the content of the communications between Ukhana and Lu and facilitated the collection of the parcels once the tasks were posted.
The sentencing judge found that on 6 November 2020, the police executed a search warrant of the applicant’s home and arrested him in relation to the offending. About seven mobile phones were seized including one associated with the number ending 224. A plastic straw which returned a presumptive positive test result for cocaine was also seized. A further five mobile phones were seized from the applicant’s car. The applicant was interviewed and told police that his mobile number ends in 220, that he doesn’t live at the address in Bungarribee, that the house belongs to his wife and he lives with his parents and works for his father.
After considering the factors relevant to her Honour’s assessment of the objective seriousness of the offences, her Honour determined that both offences were “serious instances” which “fell below the mid-range”.
Her Honour dealt with the applicant’s subjective case and gave specific consideration to the applicant’s prospects of rehabilitation. Her Honour described the delay as “extraordinary”, “inordinate”, and “disproportionately extensive” and did not “apportion blame to either party”.
Her Honour synthesised the relevant sentencing factors, noting that the applicant sought a recognizance release order, whereas the Crown sought a sentence of imprisonment involving the imposition of a non-parole period. Her Honour took into account the following:
(1)The maximum penalty for each offence, being imprisonment for 25 years.
(2)The need for general deterrence (moderated due to his diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and depressive symptoms).
(3)The purposes of sentencing.
(4)The seriousness of the offending.
(5)The applicant’s “powerful subjective case”, including his extensive rehabilitation. In respect of this aspect, however, her Honour stated:
His efforts undertaken so far to better himself are to be commended and encouraged. However, the subjective factors and material advanced by the offender in his plea in mitigation ought not be afforded so much weight so as to overshadow the competing considerations of general deterrence and denunciation and addressing the objective gravity of the offending. To do so would be contrary to authority.
(6)The principle of totality. In this respect, while her Honour accepted the overlapping nature of the applicant’s criminal conduct for each offence, she considered it appropriate “to only modestly partially accumulate the sentences”.
(7)Relevant decisions, which the parties had referred to in their submissions. Her Honour noted those could be treated as yard sticks against which to examine the proposed sentence, however, she noted such cases did not establish the “correct range for the offences of the type in question here”.
Notice of appeal
The three grounds of appeal are:
1. The sentences imposed are manifestly excessive.
2. The sentencing Judge erred (a) in finding that the applicant was a “relatively appropriate vehicle” for general deterrence, or alternatively (b) in failing to give adequate reasons for that conclusion
3. The sentencing Judge erred in failing to apply correct principle with respect to the quantification of a discount for the applicant’s pleas of guilty.
At the hearing of the appeal, ground 2 was not pressed.
Ground 1
The applicant submitted that this was an exceptional case in which it was not open to the sentencing judge to punish the applicant as harshly as might have been appropriate in ordinary circumstances. It was submitted that the sentences, before application of the discount, for counts 1 and 2 should not have been reached in the exceptional circumstances of the case including the inordinate delay and the applicant’s “remarkable” rehabilitation. The applicant stated:
In ordinary circumstances, starting points of 4 years and 6 months for count 1 and 5 years and 3 months for count 2 would have been stern and bordering on unreasonable for this offending. In the exceptional circumstances of the case, the sentencing Judge was plainly in error in adopting starting points of 4 years and 6 months and 5 years and 3 months.
Consideration of ground 1
The principles to be applied in determining a ground asserting manifest excess (or inadequacy) of sentences are well known. They were collected in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:
(1)Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
(2)Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
(3)It is not to the point that this Court might have exercised the sentencing discretion differently.
(4)There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
(5)It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
At the outset, it should be understood that each offence here was a “rolled-up” charge. The Court was required to assess the criminality of the applicant’s conduct as particularised. The issue for the Court on sentence is the criminality disclosed by the offence, not the number of charges: R v Knight [2004] NSWCCA 145 at [25]-[26]. The more contraventions or episodes of criminality that form part of the rolled-up charge, the more objectively serious the offence is likely to be: R v Richard [2011] NSWSC 866 at [65(f)]; R v Glynatsis [2013] NSWCCA 131 at [66]; R v De Leeuw [2015] NSWCCA 183 at [116]. The maximum penalty for the rolled-up charge, however, is the maximum penalty for one offence, not the aggregate of the penalties for what could have been charged as separate offences: R v Richard at [105].
The amount of drug involved in each offence was correctly described by the sentencing judge as “significant”. The applicant’s belief that the drug was “high grade medicinal cannabis” rather than cocaine, her Honour considered that only reduced the objective gravity by “a modest degree”. This was correct: Cheng v The Queen (2000) 203 CLR 248; [2000] HCA 53. While the drugs were intercepted, meaning no drugs made their way into the community, that was also a matter of “minor mitigatory value”.
The sentencing judge found that the applicant’s subjective case was powerful, but so too was the objective seriousness of his offending. These were two objectively serious offences. The authorities governing sentencing for offences of this kind, including those summarised in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], reflect the principle that the sentence imposed will accord with legitimate community expectations. Narcotic importation and possession offences are now contained in the Criminal Code Act 1995 (Cth). There is a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts “a quantity-based penalty regime” by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15; at [2]. In R v Nguyen; R v Pham the following general propositions were, relevantly, identified:
(1)The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee [2007] NSWCCA 234 at [27].
(2)Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19]; R v Lee at [25].
(3)It is the criminality involved in the importation which must be identified – the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26].
(4)Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64]; R v Lee at [23]-[24].
(5)The statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362 at [110]; Sukkar v The Queen (No 2) [2008] WASCA 2 at [46].
(6)As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425 at [104]; R v Lee at [32].
(7)The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at [64].
(8)The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen [2002] NSWCCA 174 at [286]; R v Stanbouli [2003] NSWCCA 355 at [114].
(9)Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4 at [6].
(10)The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221 at [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238 at [49].
(11)Where offenders are not young (Mr Nguyen was 42 years’ old and Ms Pham was 32 years’ old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247 at [98]
(12)Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140 at [33]-[37].
(13)Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230.
In applying these principles, I would reject ground 1. The result arrived at in the court below was in line with sentences imposed in other cases. Counsel for the applicant accepted that there were no authorities he could point to in support of the submission that the sentences imposed were “very stern” or “manifestly excessive”, rather, it was submitted that some error in dealing with the subjective case that was put forward on the applicant’s behalf was made (emphasis added):
PAYNE JA: Are there any authorities at all with amounts of cocaine like this where you can make good by way of comparison that these are either very stern or manifestly excessive sentences?
Woods: No, your Honour. The explanation for that is that apart from the finding of objective seriousness which I have taken your Honours to, principally the reason why these sentences ought to be seen as so severe as to indicate some error is the subjective case that was put forward on the applicant’s behalf. One important and unusual factor which doesn’t arise often or doesn’t arise so acutely often is that he was a person who had fully rehabilitated himself over the course of four years whilst he was on bail.
It has not been established that there was some misapplication of principle by the sentencing judge. Much less was it established that the sentence imposed is so far outside the range of sentences available that there must have been error.
It bears emphasising (again) that there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust. This the applicant failed to do.
The sentence imposed displayed a significant degree of leniency, both as to the effective head sentence imposed and the non-parole period which was fixed. Accepting in full the applicant’s strong subjective case, the effective head sentence was not outside the range of sentences available. The non-parole period represented 51% of the head sentence, fully reflecting the applicant’s strong subjective case.
The applicant has not shown that the sentences imposed were manifestly excessive. I would reject ground 1.
Ground 3
The applicant submitted that the sentencing judge erred in principle with respect to the quantification of a “discount” for the applicant’s pleas of guilty. The impugned passage from the reasons is:
Whilst the State mandatory discount regime has no application here, I have [had] regard to s 16A(2)(g) of the Crimes Act1914 (Cth) and consider it appropriate to allow, in the interests of transparency, and I will, a discount of 25% on sentence for both offences to reflect the utilitarian value of the pleas and the offender’s commitment to facilitating the administration of justice.
The applicant submitted that the sentencing judge impermissibly conflated the objective and subjective value of the pleas. The objective or utilitarian value of a plea of guilty is conceptually distinct from the subjective value of a plea of guilty demonstrated by an offender’s preparedness or willingness to facilitate the administration of justice: Giles-Adams v R; Preca v R [2023] NSWCCA 122 at [78] (Yehia J).
Consideration of ground 3
There is a distinction between the utilitarian value of a guilty plea and an offender’s willingness to facilitate the administration of justice: Baden v R [2020] NSWCCA 23. In Bae v R [2020] NSWCCA 35, Johnson J (with whom Bell P and Walton J agreed) explained:
[55] It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender’s favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations.
[56] As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:
“Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.”
[57] The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.
In Giles-Adams v R; Preca v R, the sentencing judge did not refer at all to a willingness to facilitate the course of justice. Here, the problem is different. The sentencing judge, quite understandably, in an ex tempore decision, given in the context of confusing written submissions made by the Crown to her Honour, dealt together with considerations relevant separately to ss 16A(2)(f) and 16A(2)(g) of the Crimes Act 1914 (Cth).
I do not resile from what I said in Singh v R [2018] NSWCCA 60. Contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g). Those factors, however, often overlap.
The difficulty with what the sentencing judge did here is that her Honour granted a “discount” of 25% on sentence for both offences to reflect the utilitarian value of the pleas and the offender’s commitment to facilitating the administration of justice. Her Honour did so only by reference to s 16A(2)(g) of the Crimes Act.
When the sentencing judge dealt specifically with s 16A(2)(f), no mention was made of the guilty pleas as being relevant as facilitating the administration of justice:
Firstly, to address contrition, s 16A(2)(f). On the issue of contrition, the offender was described by Community Corrections back on 11 April 2023 as having “some insight” into the impact of his offending. The offender’s insight and acceptance of responsibility was explored in his affidavit particularly at paragraphs 7 to 9 and then again at paragraphs 62 to 68.
The offender expressed an understanding of the seriousness of his conduct and apologised for his actions and indicated an appreciation of the far reaching and dire consequences that the drug trade has upon our community. I accept the submission advanced by Ms Ghabrial on behalf of the offender that in the circumstances of this matter it is not so much the words of the offender but rather his actions that speak to his remorse. Mr Khajehtaheri has taken substantial actual steps towards his rehabilitation by accepting treatment to address his past drug addiction and engaging in psychological therapy in addition to the utterances that I earlier indicated. I accept that the offender has demonstrated on balance that he is sincerely contrite and understands the gravity of his criminal conduct.
Bae at [55]-[57], which I have quoted above, governs this issue. If an offender has demonstrated contrition involving facilitation of the course of justice, this factor must be taken into account in the offender’s favour on sentence. Although facilitation of the course of justice was taken into account here, it was only taken into account under s 16A(2)(g). The facilitation of the administration of justice, as a reflection of contrition and remorse, should also have been taken onto account under s 16A(2)(f).
I would uphold ground 3.
Re-sentence
It is incumbent on this Court to re-sentence the applicant unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35].
The applicant relies on the affidavit of his wife, Natalie Taheri, sworn 14 January 2025, and the affidavit of his solicitor, Fotini Sant, sworn 14 January 2025. I have taken each into account. This evidence demonstrates that the applicant continues his excellent progress towards rehabilitation. In circumstances where the applicant was found by the sentencing judge to have taken substantial steps towards rehabilitation, the fact that he has continued to do so confirms her Honour’s findings as to the applicant’s prospects. The effect of the applicant’s incarceration upon his wife and family is also relevant and taken into account.
The applicant’s written submissions on re-sentence were concise:
It is submitted that lesser sentences are warranted pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW). On resentencing, the applicant relies on all the favourable findings of the sentencing Judge, including the appointment of a combined discount of 37 per cent.
In the circumstances of the case, the penalty ought not to be so severe as to require the fixing of a non-parole period pursuant to s 19AB of the Crimes Act.
The applicant contends that he should be released on a recognizance release order, or alternatively an intensive correction order pursuant to s 20AB(1AA)(a)(ix) of the Crimes Act. The inherent leniency of an intensive correction order is moderated in this case given that the applicant has already spent several months in custody solely referable to these offences.
In the process of making an intensive correction order, the Court may first impose an aggregate sentence. Aggregate sentencing is available in Commonwealth matters, per McGregor v R [2024] NSWCCA 200.
Regardless of whether the Court utilizes the available aggregate sentencing provisions, the Court is asked to adopt substantially lower starting points than the starting points adopted by the sentencing Judge.
Orally, the applicant submitted:
I am going to take the same approach as to the approach to penalty that my predecessor in the District Court took which is to say upon re-sentencing your Honours would not impose a sentence in the aggregate exceeding three years.
Mr Woods, on behalf of the applicant, by way of illustration submitted that:
Your Honours could for count 1 start at three years and eight months. Three years and eight months is different from the starting point adopted by her Honour which was four years and six months. It is materially less severe, but it is well within the exercise of your Honours’ discretion to start at three years and eight months and, applying the relevant discount, your Honours get to two years and four months for count 1. That is entirely within the range in my respectful submission.
For count 2 your Honours could start at four years and three months, that is not a lenient sentence, in my submission that is a starting point. Of course, that takes into account that this offence was serious and involved a degree of sophistication. That starting point of four years and three months when discounted produces a sentence of two years and eight months. With some notional accumulation your Honours get to three years, noting that her Honour did accumulate the sentences by a few months to reflect the fact that there was discrete criminality, and I don’t complain about her Honour’s accumulation. Your Honours could similarly notionally accumulate the sentences so that there’s four months of accumulation and that gets the sentence in the aggregate to three years and, of course, your Honours are permitted, having regard to the decision in McGregor, to impose an aggregate sentence in a Commonwealth case…
As the Court indicated during the hearing, the suggested approach of reverse engineering the sentences in order to come up with a head sentence of three years or less would not be an appropriate exercise of the sentencing discretion.
The essence of the applicant’s oral submission was that he could not point to any similar case which might guide the Court about an appropriate sentence but that the findings made by the sentencing judge about the applicant’s outstanding subjective case, supplemented by the two affidavits read on re-sentence, would lead the Court to impose a lesser sentence, being one less than three years and to them impose a recognizance release order or an intensive correction order.
In re-sentencing the applicant, I make the same factual findings as made by the sentencing judge.
About the matters required to be taken into account by Part IB of the Crimes Act, with the exception of the findings I have explained pertaining to s 16A(2)(f), I make the same findings as the sentencing judge: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32.
Section 16A(2)(a) and (c) – The nature and circumstances of the offence(s)
I find that:
(1)The applicant had some involvement in obtaining identification details of three different identities.
(2)The applicant “played some role” in creating and registering AusPost parcel lockers under these false names.
(3)The applicant either used or was with the person using the falsely subscribed mobile telephone number that was common to all parcel lockers associated with those false names. He thus received delivery updates in respect of the parcels and on two separate occasions contacted AusPost pretending to be the person to whom the parcel was consigned and inquired about the whereabouts of the parcel.
(4)The applicant provided instructions for the packages to be delivered to an address in Liverpool.
The applicant played a considerable role being one that involved multiple actions in what was a relatively sophisticated consignment collection system.
The amount of drug involved in each count is significant. The applicant was aware that the amounts were at least substantial given the collection system that was in place. The fact that the applicant believed the drug to be “high grade medicinal cannabis” and not cocaine is not a matter that reduces the objective gravity of the offending beyond a modest degree.
I am satisfied on balance that the applicant was motivated by his addiction to cannabis rather than financial reward. In my view, this reduces the otherwise objective gravity to a modest extent.
The fact that the consignments were all intercepted and thus no border-controlled drug in fact made its way into the community is of minor mitigatory value. The offences are both serious instances of such offending, but I find they fall below the mid-range.
Section 16A(2)(f) – The degree to which the person has shown contrition for the offence; s16A(2)(g) - the fact and timing of the plea of guilty and the degree to which it resulted in any benefit to the community, or any victim of or witness to the offence; and s16A(2)(h) - the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences
I have taken into account, favourably to the applicant, the applicant’s plea of guilty, which is relevant to s 16A(2)(f), (g) and (h). I have also taken onto account as relevant to s16A(2)(f), those matters addressed at [35] above.
In relation to the early plea of guilty, a discount of 25% to reflect the utilitarian value of the pleas is appropriate as the pleas were entered at the first available opportunity.
In relation to s 16A(2)(h) matters, I am conscious of the undesirability, in the interests of the applicant, of addressing the detail of these matters. I am satisfied, however, that a discount of 12% is appropriate to reflect the s 16A(2)(h) matters.
Sections 16A(2)(j) and 16A(2)(ja) – The deterrent effect that any sentence or order under consideration may have on the person or on other persons
Adopting the passages from R v Nguyen; R v Pham I have quoted above, I take into account the difficulty of detecting importation offences, and the great social consequences that follow. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential rewards to be gained from such activities are neutralised by the risk of severe punishment. Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.
I find that the applicant’s moral culpability is reduced by reason of his ADHD and depressive symptoms. The applicant is nonetheless an appropriate vehicle for general deterrence.
Section 16A(2)(m) – The character, antecedents, age, means and physical or mental condition of the person
The applicant has no prior criminal convictions. I adopt but will not repeat the sentencing judge’s findings as to his work life, family life, social circumstances, education and history of drug use.
I am satisfied that there is a material nexus between the applicant’s involvement in the subject offending and his underlying mental health disorders. I accept Dr Dayalan’s opinion that the applicant’s substance use disorders played the most significant role in his offending. The applicant had untreated and undiagnosed ADHD and he self-medicated using cocaine, leading to an exacerbation of his drug use disorder. The applicant also had depressive symptoms falling short of a disorder.
The applicant’s moral culpability is materially less than it otherwise would have been, given his impaired judgment throughout the relevant period. I take into account that a custodial sentence is likely to be more onerous as a result of his underlying conditions.
Section 16A(2)(n) – The prospects of rehabilitation of the person
The applicant has excellent prospects of rehabilitation. The applicant has engaged in treatment for his drug addiction and mental ill-health. I find that he has a low risk of re-offending.
Section 16A(2)(p) – The probable effect that any sentence or order under consideration would have on any of the person’s family or dependants
I take into account the probable effect that an order would have on the applicant’s family or dependants: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75. The probable adverse effects of the applicant’s incarceration on his wife and children, confirmed by the affidavit of Natalie Taheri, sworn 14 January 2025 are significant and I take them into account.
Other relevant considerations
The delay here was extensive and relevant to the ultimate sentence to be imposed. A delay of almost four years constitutes additional punishment on the offender and I take it into account, together with the applicant’s bail conditions between 9 December 2020 and 9 February 2021 which are also relevant.
Conclusion
This Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence: s 16A(1) Crimes Act 1914. Here, the offending was objectively serious, involving two offences and five separate packages containing marketable quantities of cocaine. Both offences carried maximum penalties of imprisonment for 25 years. The offending warrants the imposition of significant penalties.
Drug offences call for the imposition of stern punishments, particularly where the offending is as serious as that for which the applicant was sentenced. I have had regard to the principles of totality. There is a need for modest accumulation between the two counts in light of the fact that counts 1 and 2 involved different packages of drugs.
Despite the applicant’s strong subjective case, he is a suitable vehicle for general deterrence in a moderated fashion. That requires the imposition an appropriate degree of punishment. His mental condition at the time of offending was not of such a kind that a message of general deterrence could not be sent to would-be offenders through the sentence imposed on him.
Despite the thoroughness of the judgment appealed from, there was an error in the sentencing judge’s approach which enlivens the Court’s obligation to re-sentence: Kentwell. However, I consider this to be a clear case where no lesser sentence than that imposed at first instance is warranted in law. Accordingly, I would dismiss the appeal: Criminal Appeal Act 1912 (NSW) s 6(3).
Conclusion and orders
Whilst error has been established in relation to ground 3, I would not impose any lesser sentence. Accordingly, I propose the following orders:
(1)Leave to appeal against sentence granted.
(2)Appeal dismissed.
FAGAN J: I agree with Payne JA.
COLEMAN J: I agree with Payne JA.
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