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Narayan v R

Narayan v R

Case [2022] NSWCCA 163 5 August 2022

Sentencing

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Narayan v R [2022] NSWCCA 163
Hearing dates: 20 July 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Before: Beech-Jones CJ at CL at [1]; Price J at [2]; Chen J at [3]
Decision:
(1)   Extend the time for the filing of the Notice of Appeal until 22 January 2022.
(2)   Grant leave to appeal the sentence imposed by Norton SC DCJ on 27 July 2018.
(3)   Dismiss the appeal.

Catchwords:
SENTENCING — Appeal against sentence — Co-offenders — Disparity between sentences — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment — application dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5
Criminal Code (Cth), ss 11.1, 307.5, 307.8, 311

Cases Cited:
Chen v R; He v R [2018] NSWCCA 95
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Jones v The Queen (1993) 67 ALJR 376
Kadwell (a pseudonym) v R [2021] NSWCCA 42
Lewins v R [2007] NSWCCA 189
Lonsdale v R [2020] NSWCCA 267
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Martellotta v R [2021] NSWCCA 168
PG v R [2017] NSWCCA 179
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Wei Pan [2005] NSWCCA 114
Rae v R v [2011] NSWCCA 211
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 65

Category: Principal judgment
Parties: Shalesh Narayan (Applicant)
Regina (Respondent)
Representation:
Counsel:
G D Wendler (Applicant)
D Jordan (Respondent)
Solicitors:
Monica McKenzie Solicitors (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2017/37454
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 July 2018

Before:

Norton SC DCJ

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 15 November 2017, Shalesh Narayan (‘the Applicant’) pleaded guilty to one count of attempting to possess commercial quantity of border controlled drugs reasonably suspected of having been unlawfully imported contrary to ss 307.8(1) and 311(1)(g) with s 11.1(g) of the Criminal Code (Cth). The Applicant pleaded guilty and was sentenced on 27 July 2018 by Norton SC DCJ to 11 years and 6 months’ imprisonment, with a non-parole period of 7 years.

The Applicant was part of a syndicate with three others, Tony Nasser (‘Nasser’), Thumbrian Govender (‘Govender’) and Imad Al Qatrani (‘Al Qatrani’) to import substantial quantities of cocaine and methamphetamine from South Africa to Australia in December 2016. The cocaine and methamphetamine were hidden in an iron ore extractor which was shipped to Australia alongside five other pieces of large machinery. This was discovered by officers from the Australian Border Force and the Australian Federal Police who followed the movements of the equipment and ultimately arrested the…

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 Narayan v R

Details

AGLC: Narayan v R [2022] NSWCCA 163
Case: [2022] NSWCCA 163
Decision Date: 05 August 2022

CaseChat Overview and Summary

The case of Narayan v R involved an appeal against the sentence handed down to the applicant, Narayan, who was found guilty of certain criminal activities. The nature of the dispute centred around the sentencing disparity between Narayan and his co-offenders, who were sentenced by different judges and found guilty of different offences. The appeal was heard in the High Court of Australia. The central legal issue before the court was whether Narayan could challenge the findings made in the sentencing judgments of his co-offenders to argue that his own sentence was excessive.

The court considered the principles of sentencing equality and proportionality in the context of co-offenders sentenced by different judges. It held that the applicant could not impugn findings made in the sentencing judgments of his co-offenders as they were not directly relevant to the determination of his own sentence. The court reasoned that the sentences imposed on the co-offenders were not factors to be considered in the applicant's sentencing proceedings, as each case must be assessed on its own merits and the circumstances of each offender. The court further emphasised that the disparity in sentences did not necessarily indicate an error in the sentencing process, as long as the sentences were within the range of penalties appropriate for the respective offences.

The High Court dismissed the application, upholding the original sentence imposed on Narayan. The court found that the applicant had not demonstrated any error in the sentencing process that warranted an appeal. The reasoning and outcome of the case underscore the importance of treating each sentencing matter individually and recognising that disparities in sentences between co-offenders do not automatically constitute grounds for appeal.

Orders