R v Farshid Zarei - [2002] NSWCCA 350

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Farshid Zarei [2002] NSWCCA 350

FILE NUMBER(S):
60109/02

HEARING DATE(S): 19 August 2002

JUDGMENT DATE: 02/09/2002

PARTIES:
Farshid Zarei (Appellant)
Crown (Respondent)

JUDGMENT OF: Hodgson JA Simpson J Bergin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1275

LOWER COURT JUDICIAL OFFICER: Nash ADCJ

COUNSEL:
In Person (Appellant)
P Ingram (Respondent)

SOLICITORS:
S E O'Connor (Respondent)

CATCHWORDS:
Appeal Against Conviction and Sentence - Conviction under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) - Sentence of three years imprisonment with a non-parole period of eighteen months - Allegations of misleading and negligent conduct against appellant's former solicitors - Whether sentence outside the range for s 25A offences.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 (NSW)
Drug Misuse and Trafficking Regulation 1994
Law Enforcement (Controlled Operations) Act 1997 (NSW)

DECISION:
Appeal dismissed

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60109/02
HODGSON JA
SIMPSON J
BERGIN J
Monday, 2 September 2002

REGINA v FARSHID ZAREI

Judgment

HODGSON JA: I agree with Bergin J.
SIMPSON J: I agree with Bergin J.
BERGIN J: The appellant, Farshid Zarei, appeals against a conviction and sentence imposed by Acting District Court Judge Nash on a charge of supplying a prohibited drug, cocaine, on an ongoing basis pursuant to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act).
On 4 December 2001 the appellant pleaded guilty in the Local Court and was committed to the District Court for sentence for the following offence:
Ongoing supply of prohibited drug. That Farshid ZAREI between 30th day of May 2001, and the 6th day of June 2001, at KINGS CROSS, in the state of New South Wales, did supply on three or more separate occasions, a prohibited drug, to wit Cocaine, for financial or material award.
The maximum penalty for an offence under s 25A of the Act is 3,500 penalty units or imprisonment for twenty years, or both.
At the time of his plea in the Local Court the appellant was represented by a solicitor in the employ of the Legal Aid Commission of New South Wales, Ms Nerissa Keay. At the sentencing proceedings in the District Court the appellant was represented by another solicitor in the employ of the Legal Aid Commission, Mr Richard Kozanecki.

The Sentencing Proceedings

The sentencing proceedings were heard on Friday 15 February 2002 and Monday 18 February 2002. On 15 February 2002 the Crown tendered evidence consisting of the Crown brief (ex. A) and a Pre-Sentence Report (ex. B). Exhibit A included a Facts Sheet, analyst’s certificates, the appellant’s criminal history and twenty statements from the police officers involved in the matter.
The Facts Sheet
On 21 May 2001, pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW,) authority was granted to the police to conduct a controlled operation and for that purpose to purchase prohibited drugs. That operation was conducted between 24 May 2001 and 6…

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: [2002] NSWCCA 350
Decision Date: 2 September 2002

CaseChat Overview and Summary

The case of R v Farshid Zarei involves the appellant's conviction under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) and the subsequent sentencing to three years imprisonment with a non-parole period of eighteen months. The appellant was charged with multiple occasions of drug supply, specifically the sale of cocaine to undercover police officers during a controlled operation in Kings Cross. The appeal focuses on the alleged misleading and negligent conduct of the appellant's former solicitors and challenges the appropriateness of the sentence given the range typically associated with section 25A offences.

The primary legal issues before the court were whether the appellant's former solicitors had acted in a misleading or negligent manner and whether the sentence imposed was outside the range of sentences typically given for offences under section 25A. The court had to consider the conduct of the legal representatives, the evidence presented, and the sentencing principles applicable to drug trafficking offences. It was also necessary to determine if there were any procedural errors or misdirections that could have impacted the fairness or the outcome of the trial and sentencing.

The court found that there was no evidence of misleading or negligent conduct on the part of the appellant's former solicitors. It concluded that the sentence was within the appropriate range for section 25A offences, taking into account the gravity of the crime, the appellant's criminal history, and the need to deter similar conduct. The court examined the circumstances of the drug supply, the quantity of drugs involved, and the appellant's role in the operation. The sentencing judge's consideration of these factors was deemed to be appropriate and in line with established judicial practice.

In summary, the appeal was dismissed, and the conviction and sentence were upheld. The court found no fault with the conduct of the appellant's former solicitors and confirmed that the sentence was commensurate with the nature and seriousness of the offences committed.

Orders

Orders of the court

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Background

Background to the litigation

The sentencing proceedings were heard on Friday 15 February 2002 and Monday 18 February 2002. On 15 February 2002 the Crown tendered evidence consisting of the Crown brief (ex. A) and a Pre-Sentence Report (ex. B). Exhibit A included a Facts Sheet, analyst’s certificates, the appellant’s criminal history and twenty statements from the police officers involved in the matter. The Facts Sheet On 21 May 2001, pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW,) authority was granted to the police to conduct a controlled operation and for that purpose to purchase prohibited drugs. That operation was conducted between 24 May 2001 and 6 June 2001 in the Springfield Plaza/Mall in Kings Cross. The three occasions of supply by the appellant occurred at 2:35 pm on Wednesday 30 May 2001, 1:42 pm on Wednesday 6 June 2001 and 1:44 pm on Wednesday 6 June 2001. On each occasion the appellant handed to an undercover police officer a plastic balloon containing cocaine in exchange for money. The appellant was arrested on Thursday 7 June 2001 at premises in the Kings Cross area. He declined to be interviewed and was charged.The First Supply On 30 May 2001 Constable Levi conversed with persons in the Springfield Mall area requesting “coke.” The appellant subsequently approached Constable Levi and said, “What do you want?” Constable Levi said, “Coke, brother,” and the appellant told him to follow him. The appellant and Constable Levi went towards the south-western corner of the Mall behind a building. Constable Levi’s statement records that the appellant “produced a small, blue coloured balloon filled with a hard rock like substance which he handed me.” The statement also records that Constable Levi produced three x $20 notes and two x $10 notes and handed them to the appellant. Constable Levi then returned to a “covert location” and placed the blue-coloured balloon into a new drug bag, B153228. Senior Constable Prosser then signed, dated and sealed the drug bag, and later that afternoon took it to the Sydney Police Centre and entered its contents into locked drawer 226 of the overnight safe. Constable Prosser retained the key to that drawer. On Thursday 31 May 2001 Constable Prosser attended the Sydney Police Centre, unlocked the drawer 226 and removed bag B153228 and its contents and had it entered as an exhibit. On 22 June 2001 Senior Constable Hagarty of the Kings Cross Police obtained bag B153228 from Sergeant Maguire of the Exhibit Section and subsequently submitted it to Carolyn Elizabeth Murtagh of the Division of Analytical Laboratories at the Institute of Clinical Pathology and Medical Research in Lidcombe (the Laboratories). On 10 September 2001 Patricia Anne Jackowski, an analyst employed at the Laboratories, signed an Analyst’s Certificate in accordance with s 43 of the Act and Part 3 of the Drug Misuse and Trafficking Regulation 1994 identifying the compressed substance from the “empty green balloon” in a paper foil package as 0.05g of cocaine. The Second Supply

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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