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R v Danishyar (No 2)

R v Danishyar (No 2)

Case [2024] NSWSC 353 5 April 2024

Criminal Liability

Sentencing

Accessory Before the Fact

Plea of Guilty

Rehabilitation

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Danishyar (No 2) [2024] NSWSC 353
Hearing dates: 22 September 2023; 7 December 2023
Last submissions on sentence filed on 15 March 2024
Date of orders: 5 April 2024
Decision date: 05 April 2024
Jurisdiction: Common Law
Before: N Adams J
Decision:
For the offence of accessory before the fact to murder, Mirwais Danishyar is convicted and sentenced to:
(1) Imprisonment for a term of 10 years and 9 months to commence on 28 November 2029 and expire on 27 August 2040.
(2) The non-parole period is 4 years and 9 months imprisonment to commence on 28 November 2029 and expire on 27 August 2034.
I note that when this sentence is considered with the sentence he is already serving the effective non-parole period is 17 years and 9 months and the head sentence is 23 years and 9 months.
(3) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), Mirwais Danishyar is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.

Catchwords:
CRIME – SENTENCE – murder – accessory before the fact – not present at the scene – plea of guilty – deceased lured onto street and shot on pretext of drug deal – where offender’s extent of involvement disputed – where offender diagnosed with ADHD – Bugmy factors – delay in prosecution – limited remorse demonstrated – some prospects of rehabilitation – onerous conditions throughout COVID-19 pandemic – totality

Legislation Cited:
Crimes Act 1900 (NSW) ss 18(1)(a), 19A(1), 346
Crimes (High Risk Offenders) Act 2006 (NSW) s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(n), 25D(3)(b), 30E(3), 44(2)

Cases Cited:
Aoun, Gabriel v R [2007] NSWCCA 292
Brzozowski v R [2023] NSWCCA 129
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Danishyar v R; R v Danishyar [2023] NSWCCA 300
DH v R [2022] NSWCCA 200
Dungay v R [2020] NSWCCA 209
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29
Harris v R [2023] NSWCCA 44
Imbornone v R [2017] NSWCCA 144
Kaanan & Others v Regina [2006] NSWCCA 106
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
PH v R [2009] NSWCCA 161
Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163
R v Batak (No 5) [2022] NSWSC 1217
R v Crane & Ors [2022] NSWSC 1545
R v Doudar [2020] NSWSC 1262
R v GDP (1991) 53 A Crim R 112
R v Halloun [2014] NSWSC 1705
R v Jaghbir (No 4) [2020] NSWSC 1704
R…

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 R v Danishyar (No 2)

Details

AGLC: R v Danishyar (No 2) [2024] NSWSC 353
Case: [2024] NSWSC 353
Decision Date: 05 April 2024

CaseChat Overview and Summary

In the matter of R v Danishyar (No 2), the respondent, Danishyar, faced the Supreme Court of Victoria on charges of being an accessory before the fact to a murder. Danishyar was not present at the scene when the deceased was lured onto a street and subsequently shot, but he had pleaded guilty to the charge. The primary legal issues revolved around the appropriate sentence to be imposed on Danishyar, considering his extent of involvement in the crime, his diagnosed ADHD, the factors set out in Bugmy v The Queen, the delay in prosecution, his limited demonstration of remorse, and his prospects of rehabilitation. Additionally, the court had to consider the impact of the COVID-19 pandemic on his potential rehabilitation and the appropriateness of imposing onerous conditions on him.

The court deliberated on the extent of Danishyar's involvement in the crime, acknowledging that he was not present at the scene but had played a role in facilitating the murder. His diagnosed ADHD was also taken into account, as it might have affected his capacity to make rational decisions. The court then considered the Bugmy factors, which included the nature and circumstances of the offence, Danishyar's personal circumstances, and the need for deterrence and retribution. The court also examined the delay in prosecution, Danishyar's limited remorse, and his prospects of rehabilitation. Given the ongoing COVID-19 pandemic, the court was mindful of the potential impact on Danishyar's rehabilitation and the appropriateness of imposing onerous conditions on him.

After weighing all the relevant factors, the court determined that the appropriate sentence for Danishyar was one that balanced the need for deterrence and retribution with the principles of justice and rehabilitation. Considering the totality of the circumstances, the court decided to impose a sentence that would adequately address the crime while also taking into account Danishyar's personal circumstances and prospects of rehabilitation. The court was mindful of the need to ensure that the sentence was proportionate and just, taking into account the impact of the COVID-19 pandemic on Danishyar's potential rehabilitation.

In conclusion, the court ordered that Danishyar be sentenced to a term of imprisonment, taking into account the totality of the circumstances and the factors outlined above. The court also considered the impact of the COVID-19 pandemic on Danishyar's potential rehabilitation and the appropriateness of imposing onerous conditions on him. The sentence was designed to balance the need for deterrence and retribution with the principles of justice and rehabilitation, ensuring that the outcome was proportionate and just.

Orders