Mehrdadian v The King
[2025] VSCA 125
•4 June 02025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2025 0047 |
| IQAN MEHRDADIAN | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | WALKER and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 May 2025 |
| DATE OF JUDGMENT: | 4 June 02025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 125 |
| JUDGMENT APPEALED FROM: | [2025] VCC 104 (Judge Hassan) |
---
CRIMINAL LAW – Sentence – Appeal – Principle of parity – Appellant and other offender both convicted of firearm related offences in relation to same firearms – Other offender subject to lesser sentence – Whether primary judge had regard to principle of parity – Circumstances of appellant’s offending and his criminal history justified higher sentence – Leave to appeal granted – Appeal dismissed.
Rose v The King [2024] VSCA 296, applied.
CRIMINAL LAW – Sentence – Appeal – Whether sentence manifestly excessive – Applicant pleaded guilty to failing to immediately surrender a firearm related item when served with a prohibition order – Primary judge imposed sentence of 6 months for that offence, with cumulation of 3 months – Gravamen of offending was failure to surrender five rounds of ammunition – Offending at the very low end of seriousness – Mitigating circumstances – Leave to appeal granted – Appeal allowed.
Firearms Act 1996 ss 3, 7C, 112P; Crimes Act 1958 s 465AAA, considered.
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Kellway (a pseudonym) v The King [2023] VSCA 109; Nipoe v The Queen [2020] VSCA 137, discussed.
---
| Counsel | |||
| Applicant: | Mr C Farrington | ||
| Respondent: | Ms A French | ||
Solicitors | |||
| Applicant: | Theo Magazis and Associates | ||
| Respondent: | Office of Public Prosecutions | ||
WALKER JA
T FORREST JA:
On 6 February 2025 the applicant, Iqan Mehrdadian, pleaded guilty before the County Court to one charge of unauthorised possession of a traffickable quantity of firearms,[1] one charge of failing to immediately surrender a firearm related item when served with a prohibition order[2] and one charge of failing to comply with a direction to assist.[3] The first two charges were indictable offences and the third charge was a summary offence. The applicant was a prohibited person under the Firearms Act 1996 at the time of the offending.
[1]Contrary to s 7C(1) of the Firearms Act 1996.
[2]Contrary to s 112P(1) of the Firearms Act.
[3]Contrary to s 465AAA of the Crimes Act 1958.
The plea was conducted on the basis that the applicant had, and exercised, access to the firearms the subject of charge 1, meaning that he was in possession of them within the meaning of s 3 of the Firearms Act. The applicant had offered the firearms for sale. However, the firearms were in the physical possession of another person, Aaron Sharp. Sharp had been sentenced by the Magistrates’ Court on 4 March 2024 for the summary offences of non‑prohibited person possessing an unregistered category A longarm, possessing cartridge ammunition without a licence, possessing methamphetamine and failing to comply with a direction to assist. He was sentenced to an aggregate fine in the sum of $2,500. There was no evidence to suggest that Sharp possessed the firearms with knowledge that the applicant had intended to sell them, or that the two were otherwise involved in a criminal enterprise of some description in connection with the firearms.
The firearm related items the subject of charge 2 on the applicant’s indictment were five rounds of .44 Magnum ammunition and an additional single round of .44 Magnum ammunition, which were discovered upon a search of the applicant’s home during the execution of a search warrant. During the execution of the search warrant a police officer directed the applicant to provide information to allow access to data in a data storage device, pursuant to the power under section 465AAA of the Crimes Act 1958. The applicant refused to comply with the direction, which was the subject of the related summary offence.
Following a plea in mitigation, the applicant was sentenced as follows:[4]
[4]R v Mehrdadian [2025] VCC 104 (‘Reasons’).
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Unauthorised possession of traffickable quantity of firearms 10 years 3 years Base 2 Failing to surrender firearm related item 5 years 6 months 3 months Related Summary Offences
– Failing to comply with direction to assist 2 years 3 months N/A Total Effective Sentence: 3 years 3 months’ imprisonment Non-Parole Period: 2 years 3 months Pre-sentence Detention Declared: 710 days Section 6AAA Statement: Total Effective Sentence 4 years 6 months’ imprisonment
Non‑Parole Period 3 years 3 months
The applicant now seeks leave to appeal against his sentence on the following two proposed grounds of appeal:
Ground 1: the sentence imposed on the applicant infringes the principle of parity.
Ground 2: the individual sentence imposed on charge 2, the order for cumulation, total effective sentence and non‑parole period were manifestly too long.
For the reasons that follow, we would grant leave to appeal and allow the appeal on ground 2. We would re‑sentence the applicant as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Unauthorised possession of traffickable quantity of firearms 10 years 3 years Base 2 Failing to surrender firearm related item 5 years 1 month 2 weeks Related Summary Offences
– Failing to comply with direction to assist 2 years 3 months N/A Total Effective Sentence: 3 years and 2 weeks imprisonment Non-Parole Period: 2 years Pre-sentence Detention Declared: 820 days Section 6AAA Statement: Total Effective Sentence 4 years’ imprisonment
Non‑Parole Period 3 years
Ground 1
By ground 1 the applicant contends that the sentence imposed on him, when considered in light of the sentence imposed on Sharp, offends the principle of parity.
The principles relevant to a consideration of ground 1 were not in dispute. In the recent decision of this Court in Rose v The King, we outlined those principles in the following terms:
The parity principle is founded on the principle of equal justice. Those who commit the same offence should be treated equally, save where differences in the role in the offence, or differences in age, background, prior criminal history and general character justify the imposition of different sentences.
Some disparity between sentences will be insufficient to justify intervention by an appellate court. The disparity must be manifestly excessive. The appellate court will intervene in this case if the disparity engenders a justifiable sense of grievance in the person sentenced more heavily, or if the disparity gives the appearance that justice has not been done. A justifiable sense of grievance is to be assessed objectively. The application of the parity principle will not concern itself with the subjective feelings of the disparity of the complainant. Ultimately, the Court is concerned with the question of whether the disparity between sentences is unjustifiable.[5]
[5][2024] VSCA 296, [29]–[30] (Walker and T Forrest JJA) (citations omitted) (‘Rose’).
In other words, parity requires that any significant difference in the sentences imposed should be capable of a rational explanation.[6]
[6]Kellway (a pseudonym) v The King [2023] VSCA 109, [124] (Emerton P, Niall and Kaye JJA) citing R v Tien [1998] VSCA 6, [40] (Tadgell JA).
As this Court observed in Nipoe v The Queen, appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention.[7] However, any assessment of an argument based on parity requires this Court to have regard to the qualitative and discretionary judgments required in drawing distinctions between co‑offenders and to recognise that:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.[8]
[7][2020] VSCA 137, [39] (Maxwell P, Niall and Emerton JJA) citing Green v The Queen (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49 (‘Green’).
[8]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64 (emphasis in original) cited in Green (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
In the present case the applicant drew attention to the following circumstances concerning the plea:
(a)At the time of the plea hearing, no information about the sentence imposed on Sharp was available.
(b)Immediately after the plea hearing, and before the return of the matter for sentence, the informant provided the defence with a copy of Sharp’s prior criminal history, which showed that Sharp had been sentenced by the Broadmeadows Magistrates’ Court on 4 March 2024 and had received an aggregate fine in the sum of $2,500 for the summary offences with which he had been charged.
(c)On Monday 10 February 2025, an email was sent to the judge’s chambers, including a copy of Sharp’s prior criminal history. The relevance of this was that Sharp had received an aggregate fine for the offence of a non‑prohibited person possessing an unregistered category A longarm, which was one of the firearms relevant to charge 1 against the applicant.[9]
(d)When the matter returned for sentence the judge did not ask for submissions in relation to parity.
[9]It appears that Sharp was sentenced for possession of only a single firearm, rather than the two firearms the subject of the applicant’s charge 1. We were informed from the Bar table that the second weapon was found in pieces at Sharp’s premises and thus was not the subject of a distinct possession charge.
In sentencing the applicant her Honour said this in relation to parity:
Mr Sharp was sentenced in the Magistrates Court on charges of being a non‑prohibited person in possession of an unregistered category A longarm, possession of cartridge ammunition without a permit, possess methylamphetamine and failure to comply with a direction to assist. He was convicted and fined an aggregate of $2,500. I have no further information and as Mr Sharp faced different charges in a different jurisdiction, I can see no application of the principles of parity arise in sentencing you.[10]
[10]Reasons, [42].
The applicant submitted that the judge had considered the application of the parity principle and concluded that the principle did not apply to the Applicant:
Put another way, in sentencing the Applicant, the learned Sentencing Judge disregarded entirely the fact that Aaron Sharp, the man found by Police to be in the physical possession of the very weapons over which the Applicant had exercised access, had been sentenced to an aggregate penalty of $2,500.[11]
[11]Emphasis added.
The applicant submitted that, although it was reasonably open to the sentencing judge to differentiate between the applicant and Sharp, her Honour had erred by disregarding parity entirely.
In oral argument the applicant accepted that, even if he made good that error by the judge, he needed to persuade this Court that the disparity between the sentence imposed on him and the sentence imposed on Sharp was unjustifiable.
The respondent contended that the judge’s concluding words in relation to parity (in the part of the judgment quoted above) ought to be read as reflecting a conclusion that there were reasons to impose a disparate sentence upon the applicant, rather than as a failure properly to apply the parity principle. The respondent further contended that, even if this Court were to consider that the judge’s reasons reveal error in relation to parity, the applicant has failed to establish that the sentence imposed on the applicant in fact offends the principle.
There is no dispute that there is a disparity between the sentence imposed upon Sharp, on the one hand, and the applicant on the other hand. The applicant received a sentence of 3 years’ imprisonment for the possession offence (charge 1), whereas Sharp received a small fine.
In our view, it is not necessary to decide whether the judge erred in her approach to the issue of parity. Rather, the real issue is whether it was reasonably open to the judge to differentiate between Sharp and the applicant, having regard to the qualitative and discretionary judgements required to arrive at the sentence imposed. In other words, was the disparity manifestly excessive and unjustifiable or was it, to the contrary, capable of rational justification.
The applicant emphasised the similarity between the offending, namely that both the applicant and Sharp were charged with a possession offence in relation to the same firearms.[12] This, he said, meant that the principle of parity was engaged. He accepted that there were differences in the circumstances of the applicant and Sharp that would justify a disparate sentence, but contended that the disparity was manifestly excessive.
[12]As noted above, Sharp was sentenced in relation to possession of a single firearm.
The differences between the applicant’s offending and circumstances, and those of Sharp, were significant and included the following:
(a)Sharp was sentenced in a different jurisdiction (the Magistrates’ Court, rather than the County Court);
(b)relatedly, the offences for which Sharp was sentenced were summary offences, whereas the firearm possession offence for which the applicant was sentenced was an indictable offence;
(c)Sharp had pleaded guilty to a lesser charge, namely possession of an unregistered category A longarm, whereas the applicant had pleaded guilty to possession of a traffickable quantity of firearms and the sentence applicable to the applicant on charge 1 carried a maximum penalty five times that of Sharp’s possession offence;
(d)the judge found that the applicant’s intention in possessing the firearms was to act as an intermediary for their sale ‘for a criminal purpose’, which rendered the applicant’s possession more serious,[13] a finding that is not challenged by the applicant;
(e)Sharp had no prior criminal history, whereas the applicant had a lengthy and relevant prior criminal history, including a prior conviction for being a prohibited person in possession of a firearm;
(f)the applicant was, at the time of the offending, subject to a community correction order which had been imposed in October 2022 for a violent offence, whereas Sharp was not subject to any comparable order; and
(g)Sharp was not a ‘prohibited person’ for the purposes of the Firearms Act.
[13]Reasons, [38]; Berichon v R (2013) 40 VR 490, 496 [26] (Redlich JA); [2013] VSCA 319.
Despite those differences, the applicant submitted that he ‘was still left to ponder what is an inexplicable chasm between the disposition he received’, when compared with the sentence imposed on Sharp, particularly given that the firearms were in the physical possession of Sharp and there was no allegation that the applicant had ever physically possessed the firearms.
This submission appears to pay insufficient attention to the remarks of this Court in Rose and other cases in which the Court has reiterated that a ‘justifiable sense of grievance’ is to be assessed objectively, not by reference to the subjective feelings of the offender.[14]
[14]See, eg, Rose [2024] VSCA 296, [30] (Walker and T Forrest JJA).
Furthermore, a key matter emphasised by the applicant is the fact that he was never in physical possession of the firearms, whereas Sharp was. This feature is insufficient to require the conclusion that the disparity between the sentences in this case was unjustified. The relevant offence under the Firearms Act to which the applicant pleaded guilty applies equally to persons in physical possession and persons who are not in physical possession of firearms; thus the fact that the applicant was not, in fact, in physical possession of the firearms is of relatively little moment. And, even accepting the similarity in offending (ie that both were in possession of the same firearms), the other differences between the applicant and Sharp, outlined above, provide a plain basis to differentiate between the two offenders and to justify the imposition of a significantly more severe sentence on the applicant than was imposed on Sharp. In particular, we would emphasise the following features of the applicant’s offending that make it substantially more serious than Sharp’s offending:
(a)the applicant’s offence was possession of a traffickable quantity of firearms — Sharp’s offence did not involve a traffickable quantity;
(b)the applicant was a prohibited person — Sharp was not;
(c)the applicant’s intention in possessing the firearms was to act as an intermediary for their sale ‘for a criminal purpose’, which was an aggravating feature — there was no evidence that Sharp had that intention; and
(d)the applicant had an extensive criminal history, including in relation to firearms offences, whereas Sharp did not.
In light of these matters, the more severe sentence imposed on the applicant was entirely justified.
Given the manner in which the issue of parity arose, and the manner in which it was dealt with by the judge, we consider it appropriate to grant leave in relation to ground 1. However, we would dismiss the appeal on this ground.
Ground 2
Under ground 2 the applicant contended that it was not reasonably open to the judge to impose the individual sentence and the order for cumulation imposed in relation to charge 2. As a consequence, he submitted, the total effective sentence and the non‑parole period were also not reasonably open.
Charge 2 was the offence of failing to surrender a firearm related item to police following the service of a firearm prohibition order, contrary to s 112P(1) of the Firearms Act. That section provides as follows:
(1)At the time a firearm prohibition order is served, the individual on whom the order is served must immediately surrender, to the police officer serving the order, or a police officer assisting that officer, any firearm or firearm related item—
(a)that is in the possession of that individual; or
(b)that the individual is carrying or using.
Penalty: 5 years imprisonment.
As set out above, the sentence on charge 2 was 6 months’ imprisonment, with 3 months to be served cumulatively upon the base sentence. This created a total effective sentence of 3 years and 3 months, with a non‑parole period of 2 years.
The offending the subject of charge 2 was as follows:
(a)On 7 March 2023 police attended the applicant’s property and served the applicant with the firearm prohibition order. The applicant accepted that his obligations under the order were explained to him.
(b)Police provided the applicant with a copy of the order and he failed to surrender firearm related items as required by the order, or otherwise to inform police about where such items were to be found.
(c)At that time the applicant was under arrest for a separate shooting offence and police had obtained search warrants that permitted them to search the applicant’s property and any vehicles at the premises.
(d)During the execution of those search warrants police located five rounds of .44 Magnum ammunition.
The applicant accepted that any breach of s 112P(1) of the Firearms Act is serious. However, he submitted that his offending in this case was ‘not an example of the offence which ought be considered … so serious as to compel the conclusion that only a sentence of 6 months imprisonment could be imposed’. He submitted that the charge only concerned ‘a modest amount of ammunition rather than a firearm’, and the gravamen of the offending lay in the applicant’s failure to declare the ammunition — in circumstances where, by reason of the search warrant, it was inevitable that police would discover the ammunition themselves.
The applicant further submitted that it was not reasonably open to the judge to impose the individual sentence, the order for cumulation, the total effective sentence and the non‑parole period having regard to the following matters:
(a)The applicant had pleaded guilty. Although the plea was not an early plea, the applicant had indicated a willingness to plead guilty to charge 1 in late 2023. That indication was, in effect, deferred pending the outcome of separate charges on a different indictment, of which the applicant was ultimately acquitted.
(b)The applicant was aged 21 at the time of the offending, and 23 at the time of the plea.
(c)The applicant had historical diagnoses of major depressive disorder, post‑traumatic stress disorder, and an acquired brain injury (although there was no submission that these matters engaged Verdins).
(d)The applicant had family support available to him.
We consider that the applicant’s contravention of s 112P(1) — a failure to surrender five rounds of ammunition — was at the very low end of seriousness in relation to the offending captured by that provision. We also accept that the applicant’s plea of guilty and his youth were significant matters in mitigation. Notwithstanding the applicant’s prior criminal history, his status as a prohibited person, and the fact that he was on a community correction order at the time of the offence, we consider that a sentence of 6 months’ imprisonment was outside the range available to the sentencing judge in all the circumstances.
In light of that conclusion, it is necessary for us to re‑sentence the applicant. He contended that the imposition of a fine, rather than a custodial sentence, was appropriate given the mitigatory factors. We do not accept that submission. In our view a term of imprisonment is required. Furthermore, we consider some cumulation is appropriate to reflect the distinct criminality involved in charge 2, and in light of the applicant’s prior criminal history, his status as a prohibited person, and the fact that he was on a community correction order at the time of the offence. It is necessary, too, to give appropriate weight to both general deterrence and community protection.
In light of the above, we will grant leave to appeal and allow the appeal on ground 2. We will sentence the applicant to a term of 1 month imprisonment on charge 2, of which two weeks will be ordered to be served cumulatively upon the base sentence.
Conclusion
For these reasons, we will grant leave to appeal, allow the appeal on ground 2 and re‑sentence the applicant as set out earlier in these reasons.
---
0
11
0