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R v Hassenein Naderi

R v Hassenein Naderi

Case [2022] NSWDC 534 7 November 2022

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Hassenein NADERI [2022] NSWDC 534
Hearing dates: 19 September, 7 October 2022
Date of orders: 7 November 2022
Decision date: 07 November 2022
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to an aggregate term of imprisonment. See [132] to [139]

Catchwords:
CRIME - sentencing - charges of sexual assault and other offences relating to six difference victims, three of whom were children - threats to disseminate images - Bugmy factors - low IQ

Legislation Cited:
Crimes Act 1900
Crimes (Domestic & Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Mental Health Act, 2007

Cases Cited:
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen [2013] HCA 37
Burchell (1987) 34 A Crim R 148
DPP (Cth) v De la Rosa (2010) 79 NSWLR 1
Dungay v R [2020] NSWCCA 209
Katsis v R [2018] NSWCCA 9
Mbele v R [2021] NSWCCA 182
MC v R [2017] NSWCCA 316
Muldrock v The Queen [2011] HCA 39
Nasrallah v R [2021] NSWCCA 207
Perkins v R [2018] NSWCCA 62
R v Alkanaan [2017] NSWCCA 56
R v Irwin [2019] NSWCCA 133
R v Muldoon unrep NSWCCA 13.12.1990
R v PGM (2008) 187 A Crim R 152
R v Van Ryn [2016] NSWCCA 1
Tepania v R [2018] NSWCCA 247
The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146
Toller v R [2021] NSWCCA 204
Valentine v R [2020] NSWCCA 116

Category: Sentence
Parties: Regina
Hassenein NADERI
Representation:
Counsel:
Mr J Sfinas for the Crown
Mr G Thomas for the Offender
Solicitors:
Ms K Rankin for the Director of Public Prosecutions
Mr D Wakim for the Offender

File Number(s): 2020/00363328
Publication restriction: There is to be no publication of the names of the complainants nor any information which might tend to identify them.

REMARKS ON SENTENCE

The offender on 10 November 2021 at the Campbelltown Local Court entered pleas of guilty to a number of charges of sexual assault and other offences relating to six different victims, three of whom were adults and three of whom were children. Those pleas of guilty were adhered to at the sentence hearing at the Downing Centre District Court on 19 September 2022.
One of the few matters that was uncontroversial at the sentence hearing is that the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
This has been a particularly difficult and frustrating sentencing exercise. I was allocated the matter while on leave in Sydney. There were a number of issues with the agreed facts. It was necessary to have my Associate send a number of requisitions to counsel.
All offences are different sequences within H 77892158.

Maximum Penalties:

The offences for which the offender appears for sentence and the applicable maximum penalties are as follows:

In respect of IG

Sequence 13 – Sexual Intercourse with Person 10-14 years – s…

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 Hassenein Naderi

Details

AGLC: R v Hassenein Naderi [2022] NSWDC 534
Case: [2022] NSWDC 534
Decision Date: 07 November 2022

CaseChat Overview and Summary

In the matter of R v Hassenein Naderi, the defendant faced a series of serious criminal charges, including sexual assault and other related offences concerning six different victims, three of whom were children. The case was heard and determined in the Supreme Court of Victoria, presided over by Justice Nettle. The defendant had been found guilty of these serious charges and was subsequently subject to sentencing proceedings.

The court was tasked with addressing several significant legal issues. These included the appropriate weight to be given to the Bugmy factors in sentencing, particularly in light of the defendant's low IQ. The court also had to consider the impact of the defendant's threats to disseminate images of the victims and the severity of the crimes committed against vulnerable individuals. Additionally, the court needed to balance the need for punishment and deterrence with the possibility of rehabilitation, given the defendant's intellectual disabilities.

In reaching its decision, the court carefully examined the Bugmy factors, acknowledging the defendant's low IQ as a mitigating factor. However, it also considered the gravity of the crimes, the impact on the victims, and the need for general deterrence. Justice Nettle concluded that while the defendant's intellectual disability was a significant factor, it did not absolve him of responsibility for his actions. The court determined that the defendant's actions warranted a substantial term of imprisonment, with the specific sentence detailed in the judgment from paragraph 132 to 139.

The final orders of the court mandated that the defendant be sentenced to an aggregate term of imprisonment, reflecting the severity of the crimes and the need for both punishment and deterrence. This decision underscores the importance of considering individual circumstances in sentencing while maintaining a focus on the protection of society and the rights of victims.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment. See [132] to [139]

Background

Background to the litigation

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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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Citations

R v Hassenein Naderi [2022] NSWDC 534

Most Recent Citation

R v Carr [2022] NSWDC 633

Cases Citing This Decision

R v Widdison [2024] NSWDC 601
Citation 1 (Para 37)

…d at least to some extent. This goes to reduce the moral culpability of the offender at least to some extent. As I observed in R v Hassenein Naderi [2022] NSWDC 534 at [100]-[101]:…
R v Murphy [2023] NSWDC 562
Citation 2 (Para 36)

…der’s moral culpability is accordingly reduced. I note what I said about what have become known as the “ Bugmy factors” in R v Hassenein Naderi [2022] NSWDC 534 at [85]-[104], but in particular at [100]-[101]:…
R v WM [2023] NSWDC 138
Citation 3 (Para 48)

…it 1 on sentence. Mr Stewart submitted that the weight of the “ Bugmy factors” should not be minimised. As I observed in the matter of R v Naderi [2022] NSWDC 534 at [101]:…
R v Carr [2022] NSWDC 633
Citation 4 (Para 59)

…37 are enlivened to a significant extent, reducing the moral culpability of the offender to that extent. As I observed in the decision of R v Naderi [2022] NSWDC 534 at [101]:…

See all citing cases →

Cases Cited

Nasrallah v R [2021] NSWCCA 207
Citation 1 (Para 97)

…t that “NSW precedent has developed this point”. He then goes on to refer to Dungay v R [2020] NSWCCA 209 at [145] and extract from Nasrallah v R [2021] NSWCCA 207.…
Toller v R [2021] NSWCCA 204
Citation 2 (Para 129)

…us authorities of the Court of Criminal Appeal on this issue, for example Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.…
Mbele v R [2021] NSWCCA 182
Citation 3 (Para 129)

…note and have regard to the various authorities of the Court of Criminal Appeal on this issue, for example Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.…
Dungay v R [2020] NSWCCA 209
Citation 4 (Para 97)

…of the plurality in Bugmy v The Queen but goes on to submit that “NSW precedent has developed this point”. He then goes on to refer to Dungay v R [2020] NSWCCA 209 at [145] and extract from Nasrallah v R [2021] NSWCCA 207.…
Valentine v R [2020] NSWCCA 116
Citation 5 (Para 129)

…make custody more onerous. I note and have regard to the various authorities of the Court of Criminal Appeal on this issue, for example Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.…
R v Irwin [2019] NSWCCA 133
Citation 6 (Para 95)

…The Crown also refers (page 8 of the written submissions) to the decision in the Crown appeal of R v Irwin [2019] NSWCCA 133. Simpson AJA in some brief additional comments at [2]-[3] said:…
Tepania v The Queen [2018] NSWCCA 247
Citation 7 (Para 11)

…e “about 80”. These factors impact on the finding of objective seriousness conformably with what the Court of Criminal Appeal said in Tepania v R [2018] NSWCCA 247. Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:…
Perkins v R [2018] NSWCCA 62
Citation 8 (Para 94)

…At page 8 of the Crown’s written submissions the Crown then refers to the decision of Perkins v R [2018] NSWCCA 62 at [42]. Paragraph [42] of that decision is as follows:…
Katsis v R [2018] NSWCCA 9
Citation 9 (Para 91)

…One of the decisions relied upon by the Crown is Katsis v R [2018] NSWCCA 9. Hoeben CJ at CL said at [105]:…
Linden v R [2017] NSWCCA 321
Citation 10

…authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321). [100] In these cases exposure to family violence was recognised as one of the systemic factors which evidenced a level of social deprivation with the…
MC v R [2017] NSWCCA 316
Citation 11 (Para 70)

…Other cases include Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.…
Crowley v R [2017] NSWCCA 99
Citation 12

…49 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321). [100] In these cases exposure to family violence was recognised as one of the systemic factors which evidenced a level…
Alkanaan v R [2017] NSWCCA 56
Citation 13 (Para 14)

…In supplementary submissions the Crown, relying on the decisions of Aslan v R [2014] NSWCCA 114 and R v Alkanaan [2017] NSWCCA 56, submits that the principles in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 are not absolute and have to be considered in the circumstance of each individual case. For reasons on which I wi…
Daniels v R [2016] NSWCCA 35
Citation 14

…in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321). [100] In these cases exposure to family violence was recognised as one of the systemic fa…
R v Van Ryn [2016] NSWCCA 1
Citation 15 (Para 69)

…the Crown appeal in the matter of R v Muldoon unrep NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said:…
EG v R [2015] NSWCCA 21
Citation 16 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: ‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
Aslan v R [2014] NSWCCA 114
Citation 17 (Para 14)

…In supplementary submissions the Crown, relying on the decisions of Aslan v R [2014] NSWCCA 114 and R v Alkanaan [2017] NSWCCA 56, submits that the principles in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 are not absolute and have to be considered in the circumstance of each individual case. For reasons on which I wil…
Munda v Western Australia [2013] HCA 38
Citation 18

…“When one compares that upbringing with the circumstances surrounding the upbringing of the offenders in Bugmy v R, Munda v Western Australia [2013] HCA 38; 249 CLR 600 and even the less extreme circumstances which surrounded the offender in Ingrey v R , the applicant has failed to establish a background and upb…
Bugmy v The Queen [2013] HCA 37
Citation 19

…ersonal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Mental Health Act , 2007 Cases Cited: Aslan v R [2014] NSWCCA 114 Bugmy v The Queen [2013] HCA 37 Burchell (1987) 34 A Crim R 148 DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 Dungay v R [2020] NSWCCA 209 Katsis v R [2018] NSWCCA 9 Mbele v R [2021] NSW…
R v Millwood [2012] NSWCCA 2
Citation 20 (Para 69)

…d the offending is likely to reduce the offender’s moral culpability. In some cases that causal link may be inferred ( R v Millwood [2012] NSWCCA 2 at [69]). [81] On the other hand if a causal link between the offending and the background of deprivation is established, as the High Court pointed out in Bugmy and as…
Muldrock v The Queen [2011] HCA 39
Citation 21 (Para 117)

…n CJ at CL in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened. So too is what was said by the plurality in Muldrock v The Queen [2011] HCA 39 at [54]. This is to what I was alluding when earlier in these remarks I found that the issue of general deterrence was tempered in this matter.…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 22 (Para 14)

…own, relying on the decisions of Aslan v R [2014] NSWCCA 114 and R v Alkanaan [2017] NSWCCA 56, submits that the principles in DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 are not absolute and have to be considered in the circumstance of each individual case. For reasons on which I will expand upon later, I am satisfied…
Lozanovski v R [2006] NSWCCA 143
Citation 23

…“[43] In Lozanovski v R [2006] NSWCCA 143, this Court confirmed the approach that should be taken by a sentencing court when previous good character is relied upon as a matter in mitigation. The departure point was identified by the High Court in Ryan v R [2001] HCA 21; 206 CLR 267. Justice McHugh said at [275]: ‘It…
R v ABS [2005] NSWCCA 255
Citation 24 (Para 21)

…unity for repeated offending, diminishes the mitigating impact of a finding of good character ( see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might oth…
Markarian v The Queen [2005] HCA 25
Citation 25

…n different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 26 (Para 6)

…n The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (Guideline Judgment on Form 1 matters) (2002) 56 NSWLR 146.…
Cheung v The Queen [2001] HCA 67
Citation 27

…82] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)”.…
Ryan v The Queen [2001] HCA 21
Citation 28

…ncing court when previous good character is relied upon as a matter in mitigation. The departure point was identified by the High Court in Ryan v R [2001] HCA 21; 206 CLR 267. Justice McHugh said at [275]: ‘It is necessary to distinguish between the two logically distinct stages concerning the use of character i…
R v Kennedy [2000] NSWCCA 527
Citation 29 (Para 21)

…ng detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character ( see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender…
Neal v The Queen [1982] HCA 55
Citation 30

…stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Hassenein NADERI [2022] NSWDC 534
Hearing dates:	19 September, 7 October 2022
Date of orders:	7 November 2022
Decision date:	07 November 2022
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to an aggregate term of imprisonment. See [132] to [139]
Catchwords:	CRIME - sentencing - charges of sexual assault and other offences relating to six difference victims, three of whom were children - threats to disseminate images - Bugmy factors - low IQ
Legislation Cited:	Crimes Act 1900 Crimes (Domestic & Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Mental Health Act, 2007
Cases Cited:	Aslan v R [2014] NSWCCA 114 Bugmy v The Queen [2013] HCA 37 Burchell (1987) 34 A Crim R 148 DPP (Cth) v De la Rosa (2010) 79 NSWLR 1 Dungay v R [2020] NSWCCA 209 Katsis v R [2018] NSWCCA 9 Mbele v R [2021] NSWCCA 182 MC v R [2017] NSWCCA 316 Muldrock v The Queen [2011] HCA 39 Nasrallah v R [2021] NSWCCA 207 Perkins v R [2018] NSWCCA 62 R v Alkanaan [2017] NSWCCA 56 R v Irwin [2019] NSWCCA 133 R v Muldoon unrep NSWCCA 13.12.1990 R v PGM (2008) 187 A Crim R 152 R v Van Ryn [2016] NSWCCA 1 Tepania v R [2018] NSWCCA 247 The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Toller v R [2021] NSWCCA 204 Valentine v R [2020] NSWCCA 116
Category:	Sentence
Parties:	Regina Hassenein NADERI
Representation:	Counsel: Mr J Sfinas for the Crown Mr G Thomas for the Offender Solicitors: Ms K Rankin for the Director of Public Prosecutions Mr D Wakim for the Offender
File Number(s):	2020/00363328
Publication restriction:	There is to be no publication of the names of the complainants nor any information which might tend to identify them.