R v Afsari, Abbas Aka Shayan - [2016] NSWDC 419

District Court

New South Wales

Medium Neutral Citation: R v AFSARI, Abbas AKA Shayan [2016] NSWDC 419
Hearing dates: 1 September 2016, 4 November 2016
Decision date: 25 November 2016
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Indicative sentences:
SEQ 1 (+011,012,013) 001 Supply prohibited drugs on an ongoing basis s25A(1) DMTA 1985 LPC 28937
FORM 1 offences - to be taken into account re SEQ 1: 3 years
011 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960
012 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960
013 Knowingly deal with proceeds of crime s103B(2) Crimes Act 1900 LPC 58339 : 3 years
s166 Matters:
002 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months
003 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 12 months
004 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months
008 Possess/attempt to, prescribed restricted substance s16(1) Poisons and Therapeutic Goods Act 1966 LPC 53114 2 months
016 Possess instructions for manufacture etc of prohibited drug s11C(1) DMTA 1985 LPC 63269 3 months

Aggregate sentence:
Convicted.
Special circumstances found –need for assistance to rehabilitate in drug abuse, first time in custody.
Sentence to be served partly concurrent with FT imposed in re revoked ICOs.

Sentenced to a term of imprisonment for 4 years comprised of a NPP of 2 years and 6 months to commence on 23/5/16 and to expire on 22/11/18, and a balance of term of 18 months to commence on 23/11/18 and to expire on 22/5/20.
Eligible for release to parole on 22/11/18.
I order the destruction of the drugs, the equipment and indicia of supply.
I make orders as per the Short Minutes of Forfeiture Order handed up in court today and placed on the court file.
Catchwords: Criminal – Sentence – ongoing supply prohibited drug more than indictable quantity – MDMA – supply indictable quantity amphetamine – possess prohibited drugs Stanzolol, cocaine, cannabis leaf – possess prescribed restricted substance, Alprazolam – knowingly deal with proceeds of crime – possess instructions for manufacturing prohibited drug
Legislation Cited: Drug Misuse and Trafficking Act 1985
Poisons and Therapeutic Goods Act 1966
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v De Simoni [1981] 147 CLR 383
R v Clark, (unreported, 15 March 1990, NSWCCA)
R v Blanco, (unreported, 22 October 1987, NSWCCA)
R v Thompson (unreported, 4 April 1994, NSWCCA)
R v Gu [2006] NSWCCA 104
R v Cacciola [1998] 104 A Crim R 178
R v Richards (1981) 2 NSWLR 464
R v McVeety [2002] NSWCCA 344
R v Fernando [2002] NSWCCA 28
R v Huynh [2003] NSWCCA 239
R v Moffatt [1990] 20 NSWLR 114
Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146
R v Qutami (2001) NSWCCA 353
R v Smiroldo (2000) 112 A Crim R 47
Callahan v R [2006] NSWCCA 58
Category: Sentence
Parties: Regina
AFSARI, Abbas
Representation:
Counsel:
Ms S Stuart [CR]
Mr G James…

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.

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Details

Case: [2016] NSWDC 419
Decision Date: 25 November 2016

CaseChat Overview and Summary

The matter before the court involved the conviction of Abbas Shayan Afsari, who was found guilty of multiple drug-related offences. The defendant was charged with the supply of prohibited drugs on an ongoing basis, the supply of prohibited drugs in quantities exceeding the indictable threshold, the possession of various prohibited drugs, and the possession of a prescribed restricted substance and instructions for manufacturing a prohibited drug. The defendant also faced charges related to dealing with the proceeds of crime. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to address included the interpretation and application of various sections of the Drug Misuse and Trafficking Act 1985, the Poisons and Therapeutic Goods Act 1966, and the Crimes Act 1900. The court had to determine the appropriate sentence for the defendant, taking into account the seriousness of the offences, the defendant's criminal history, and any special circumstances that might warrant a more lenient sentence. The court also had to decide on the appropriate aggregate sentence for the various offences committed by the defendant.

The court found that the defendant had been involved in the ongoing supply of prohibited drugs, which was a serious offence that warranted a significant sentence. However, the court also took into account the defendant's need for assistance to rehabilitate in drug abuse and the fact that this was his first time in custody. The court determined that the appropriate sentence for the defendant was a term of imprisonment for 4 years, comprising a non-parole period of 2 years and 6 months and a balance of term of 18 months. The court also ordered the destruction of the drugs, the equipment, and indicia of supply, and made orders as per the Short Minutes of Forfeiture Order handed up in court today and placed on the court file.

The court ordered that the defendant be eligible for release to parole on 22/11/18, and that the sentence be served partly concurrent with the sentence imposed in relation to the revoked ICOs. The court also made orders for the destruction of the drugs, the equipment, and indicia of supply, and made orders as per the Short Minutes of Forfeiture Order handed up in court today and placed on the court file.

Orders

Orders of the court

Indicative sentences:

SEQ 1 (+011,012,013) 001 Supply prohibited drugs on an ongoing basis s25A(1) DMTA 1985 LPC 28937

FORM 1 offences - to be taken into account re SEQ 1: 3 years

011 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960

012 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960

013 Knowingly deal with proceeds of crime s103B(2) Crimes Act 1900 LPC 58339 : 3 years

s166 Matters:

002 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months

003 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 12 months

004 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months

008 Possess/attempt to, prescribed restricted substance s16(1) Poisons and Therapeutic Goods Act 1966 LPC 53114 2 months

016 Possess instructions for manufacture etc of prohibited drug s11C(1) DMTA 1985 LPC 63269 3 months

Aggregate sentence:

Convicted.

Special circumstances found –need for assistance to rehabilitate in drug abuse, first time in custody.

Sentence to be served partly concurrent with FT imposed in re revoked ICOs.

Sentenced to a term of imprisonment for 4 years comprised of a NPP of 2 years and 6 months to commence on 23/5/16 and to expire on 22/11/18, and a balance of term of 18 months to commence on 23/11/18 and to expire on 22/5/20.

Eligible for release to parole on 22/11/18.

I order the destruction of the drugs, the equipment and indicia of supply.

I make orders as per the Short Minutes of Forfeiture Order handed up in court today and placed on the court file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v AFSARI, Abbas AKA Shayan [2016] NSWDC 419
Hearing dates:	1 September 2016, 4 November 2016
Decision date:	25 November 2016
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Indicative sentences: SEQ 1 (+011,012,013) 001 Supply prohibited drugs on an ongoing basis s25A(1) DMTA 1985 LPC 28937 FORM 1 offences - to be taken into account re SEQ 1: 3 years 011 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960 012 Supply prohibited drug >indict. quantity (not cannabis) s25(1) DMTA 1985 LPC 16960 013 Knowingly deal with proceeds of crime s103B(2) Crimes Act 1900 LPC 58339 : 3 years s166 Matters: 002 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months 003 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 12 months 004 Possess prohibited drug s10(1) DMTA 1985 LPC 3145 6 months 008 Possess/attempt to, prescribed restricted substance s16(1) Poisons and Therapeutic Goods Act 1966 LPC 53114 2 months 016 Possess instructions for manufacture etc of prohibited drug s11C(1) DMTA 1985 LPC 63269 3 months Aggregate sentence: Convicted. Special circumstances found –need for assistance to rehabilitate in drug abuse, first time in custody. Sentence to be served partly concurrent with FT imposed in re revoked ICOs. Sentenced to a term of imprisonment for 4 years comprised of a NPP of 2 years and 6 months to commence on 23/5/16 and to expire on 22/11/18, and a balance of term of 18 months to commence on 23/11/18 and to expire on 22/5/20. Eligible for release to parole on 22/11/18. I order the destruction of the drugs, the equipment and indicia of supply. I make orders as per the Short Minutes of Forfeiture Order handed up in court today and placed on the court file.
Catchwords:	Criminal – Sentence – ongoing supply prohibited drug more than indictable quantity – MDMA – supply indictable quantity amphetamine – possess prohibited drugs Stanzolol, cocaine, cannabis leaf – possess prescribed restricted substance, Alprazolam – knowingly deal with proceeds of crime – possess instructions for manufacturing prohibited drug
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Poisons and Therapeutic Goods Act 1966 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v De Simoni [1981] 147 CLR 383 R v Clark, (unreported, 15 March 1990, NSWCCA) R v Blanco, (unreported, 22 October 1987, NSWCCA) R v Thompson (unreported, 4 April 1994, NSWCCA) R v Gu [2006] NSWCCA 104 R v Cacciola [1998] 104 A Crim R 178 R v Richards (1981) 2 NSWLR 464 R v McVeety [2002] NSWCCA 344 R v Fernando [2002] NSWCCA 28 R v Huynh [2003] NSWCCA 239 R v Moffatt [1990] 20 NSWLR 114 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2002) 56 NSWLR 146 R v Qutami (2001) NSWCCA 353 R v Smiroldo (2000) 112 A Crim R 47 Callahan v R [2006] NSWCCA 58
Category:	Sentence
Parties:	Regina AFSARI, Abbas
Representation:	Counsel: Ms S Stuart [CR] Mr G James…