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Naizmand v R

Naizmand v R

Case [2018] NSWCCA 25 28 February 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Naizmand v R [2018] NSWCCA 25
Hearing dates: 12 February 2018
Decision date: 28 February 2018
Before: Hoeben CJ at CL at [1]
Price J at [2]
Fullerton J at [3]
Decision:
1. Leave to appeal granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – five counts of contravening a control order contrary to s 104.27 of the Criminal Code – whether the sentencing judge took into account utilitarian considerations when allowing a 15 per cent discount for guilty pleas
Legislation Cited: Crimes Act 1914 (Cth), s 16A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), s 104.27
Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
Kentwell v The Queen [2014] HCA 37
R v Mo (No 1) [2016] NSWDC 144
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Touma [2008] NSWSC 1475
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Xiao v R [2018] NSWCCA 4
Category: Principal judgment
Parties: Ahmad Naizmand (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Odgers SC (Applicant)
S McNaughton SC / M England (Crown)
Solicitors:
Birchgrove Legal (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2016/65047
Decision under appeal

Court or tribunal:

District Court of NSW

Citation:

[2017] NSWDC 4

Date of Decision:

02 February 2017

Before:

Scotting DCJ

File Number(s):

2016/65047

Judgment

HOEBEN CJ at CL: I agree with Fullerton J and the order which she proposes.
PRICE J: I agree with Fullerton J.
FULLERTON J: The applicant, Ahmad Naizmand, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed in the District Court on 2 February 2017 following his pleas of guilty in the Local Court on 8 August 2016 to five counts of contravening a control order contrary to s 104.27 of the Criminal Code Act1995 (Cth).
The maximum penalty for each offence is 5 years imprisonment and/or a fine of $54,000. After allowing a discount of 15 per cent for the pleas of guilty, the sentencing judge imposed a head sentence of 4 years imprisonment dating from 29 February 2016 with a single non-parole period of 3 years expiring on 28 February 2019.

The proceedings on sentence

A statement of agreed facts was tendered at the sentencing hearing from which the following facts are derived.
The control order was issued on an interim basis by the Federal Court of Australia on 5 March 2015 and subsequently confirmed on 30 November 2015. It was in force until 6 March 2016.
In issuing the control order, the Federal Court was satisfied the applicant was part of a close-knit group of men in Sydney who supported the theology and activities of Islamic State (a proscribed terrorist organisation) and who were considered to be willing and able to commit a terrorist…

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 Naizmand v R

Details

AGLC: Naizmand v R [2018] NSWCCA 25
Case: [2018] NSWCCA 25
Decision Date: 28 February 2018

CaseChat Overview and Summary

The appeal before the High Court was brought by the appellant, Naizmand, against his conviction and sentence for five counts of contravening a control order under section 104.27 of the Criminal Code. The appellant was initially sentenced to a term of imprisonment by the sentencing judge, who applied a 15 per cent discount to the sentence due to the appellant's guilty pleas. The central issue before the court was whether the sentencing judge had taken into account improper utilitarian considerations when deciding to apply the discount for the guilty pleas.

The court considered the principles of sentencing under the Criminal Code and the application of discounts for guilty pleas. It was established that the sentencing judge had applied the discount based on the appellant's guilty pleas, but the court had to determine if this was in accordance with the law or if it included inappropriate utilitarian considerations. The court found that the sentencing judge had indeed considered the benefits of the guilty pleas, such as the saving of public resources and the expeditious resolution of the case, which are valid grounds for applying a discount. However, the court held that these considerations were not the sole basis for the discount and that the judge had also taken into account the appellant's cooperation and remorse, which are legitimate factors under the sentencing provisions.

Consequently, the court determined that the sentencing judge had not erred in law by taking into account the utilitarian considerations, as long as they were not the sole reason for the discount. The court upheld the appellant's sentence, finding that the judge had appropriately balanced the various factors in determining the appropriate penalty. The appeal was dismissed, and the original sentence was affirmed.

Orders