Nasiri v The Queen - [2019] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nasiri v R [2019] NSWCCA 16
Hearing dates: 2 November 2018
Decision date: 13 February 2019
Before: Gleeson JA at [1]
Schmidt J at [2]
Button J at [3]
Decision:
(1) Leave to appeal against sentence granted
(2) Appeal dismissed

Catchwords: CRIMINAL LAW – sentence appeal – ground of erroneous disparity between sentences imposed upon applicant and co-offender – specific complaint that co-offender of applicant received greater partial concurrence on pre-existing sentence than applicant – discussion of aspects of a ground of appeal against sentence of this kind – appeal dismissed
Cases Cited: Akbari v R; Nasiri v R [2015] NSWCCA 240
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [31]
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606;
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295;
Category: Principal judgment
Parties: Mohammed Nasiri (Applicant)
Regina (Respondent)
Representation:
Counsel:
E Kerkyasharian (Applicant)
H Roberts (Respondent)
Solicitors:
Mitry Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/86158
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 October 2017

Before:

North DCJ

File Number(s):

2014/86158

Judgment

GLEESON JA: I agree with Button J.
SCHMIDT J: I agree with Button J.
BUTTON J:

Introduction

This application for leave to appeal relates to a sentence imposed upon Mr Mohammed Nasiri (the applicant) on 25 October 2017 by Judge North in the District Court at Sydney. It is founded upon an assertion of erroneous disparity in sentence, in turn founded upon the proposition that Judge North gave an inadequate backdate in comparison to the backdate afforded by another judge to a co-offender.

Sentence structure of applicant

The applicant pleaded guilty on 23 August 2017 to an offence of attempting to break and enter with intent to commit larceny, in circumstances of special aggravation; namely being armed with a dangerous weapon (a firearm). That offence carries a maximum penalty of imprisonment for 20 years. An additional offence was taken into account on sentence by way of a Form 1: firing a firearm at a dwelling house with reckless disregard for the safety of another person. Both offences occurred on 2 August 2013.
Ultimately, on 25 October 2017, Judge North imposed a head sentence of imprisonment for 4 years 8 months, commencing on 21 December 2016 and expiring on 20 August 2021, with a non-parole period of 2 years 5 months, expiring on 20 May 2019.
At the time the applicant committed these offences, he was on parole for offences of robbery in company (having been released from prison on 15 September 2012).
On 21 September 2013, the applicant was also arrested for offences of demanding property with menaces in company and participating in a criminal group, committed in July and August 2013. As a result, prior to Judge North imposing the sentence under appeal, the applicant had been…

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 Nasiri v The Queen

Details

AGLC: Nasiri v The Queen [2019] NSWCCA 16
Case: [2019] NSWCCA 16
Decision Date: 13 February 2019

CaseChat Overview and Summary

The matter of Nasiri v The Queen was heard in the High Court of Australia, where the applicant, Nasiri, appealed against the sentence imposed upon him following his conviction for an offence. Nasiri's co-offender had received a greater partial concurrence on a pre-existing sentence than Nasiri, and this was the basis of his contention that the sentences imposed were erroneous and disparate. The applicant argued that this discrepancy warranted an appeal.

The court was required to determine whether the disparity in sentences between Nasiri and his co-offender was erroneous and significant enough to merit a reduction in Nasiri's sentence. The central legal issue was whether the disparity between the sentences was so substantial as to render the sentences manifestly unjust. The court also needed to consider whether the disparity was due to factors unrelated to the culpability of the parties, such as the timing of the co-offender's guilty plea.

The High Court found that the disparity between the sentences was not erroneous or unjust in the circumstances of this case. The court held that the disparity was not so significant as to warrant a reduction in Nasiri's sentence, as the disparity was not due to any factors unrelated to the culpability of the parties. The court emphasised that a ground of appeal against a sentence based on erroneous disparity must be substantial and not merely an attempt to obtain a more lenient sentence. Nasiri's appeal was dismissed.

Orders