Legal Research
Cases
R v Jafari

R v Jafari

Case [2017] NSWCCA 152 29 June 2017

Criminal Liability

Sentencing

Breach of Trust

Unconscionable Conduct

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Jafari [2017] NSWCCA 152
Hearing dates: 14 June 2017
Decision date: 29 June 2017
Before: Basten JA at [1];
Johnson J at [120];
Davies J at [121]
Decision:
(1)   Allow the appeal against sentence by the Director of Public Prosecutions (Cth).

(2)   Set aside the sentence imposed by the District Court on 30 January 2017.

(3)   Resentence the respondent as follows:

(a) Impose a sentence of 3 years imprisonment for the contravention of s 131.1(1) of the Criminal Code commencing on 30 January 2017;
(b)   Direct that the offender be released on 29 July 2018 pursuant to a recognizance release order subject to the following conditions, namely that the offender, upon giving security without sureties in the sum of $500:
(i)   be of good behaviour;
(ii)   be subject to the supervision of a probation officer;
(iii)   obey all reasonable directions of the probation officer, including as to such counselling or treatment for his compulsive gambling as the officer may direct; and
(iv)   not travel interstate or overseas without the written permission of the probation officer,
and terminating on 29 January 2020.
Catchwords:
CRIME – sentence – appeal by Director against manifest inadequacy – theft of $220,000 from trust fund – offender a solicitor with joint control of fund – money disbursed at his direction – signature of co‑controller forged – money applied to repay personal debt – whether sentence of 2 years imprisonment manifestly inadequate – whether order that sentence be served by way of intensive correction order too lenient – whether a period of actual custody required
CRIME – sentence for theft from trust fund – purpose to repay money provided by friend for investment purposes – money lost in gambling – relevance of gambling addiction to sentencing – whether moral culpability affected – whether suitable vehicle for general deterrence – whether basis for leniency
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), ss 81, 82
Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 186, 187; Pt 10
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 4, 7, 21A, 67, 72; Pt 2 Div 2; Pt 3; Pt 5
Crimes Act 1914 (Cth), ss 16A, 20AB, 21B
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code 1995 (Cth), ss 131.1, 135.1, 135.4
Proceeds of Crime Act 2002 (Cth), ss 115, 320; Pt 2-4
Cases Cited: Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145
Director of Public Prosecutions (Cth) v Page [2006] VSCA 224
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
Johnston v R [2017] NSWCCA 53
R v Grossi [2008] VSCA 51; 183 A Crim R 15
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Host [2015] WASCA 23; (2015) 248…

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 Jafari

Details

AGLC: R v Jafari [2017] NSWCCA 152
Case: [2017] NSWCCA 152
Decision Date: 29 June 2017

CaseChat Overview and Summary

The case of R v Jafari involves the appellant, a solicitor, who was found guilty of stealing $220,000 from a trust fund under his joint control. The money was disbursed at his direction and the signature of the co-controller was forged. The stolen funds were used to repay personal debt, and the appellant's co-controller was left with a shortfall in the trust fund. The Director of Public Prosecutions appealed the appellant's sentence of 2 years imprisonment, arguing it was manifestly inadequate. The Director also contended that the order for the sentence to be served as an intensive correction order was too lenient, and that a period of actual custody was required. The appeal was heard by the Court of Appeal.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, whether the order that the sentence be served by way of an intensive correction order was too lenient, and whether a period of actual custody was required. The court had to consider the nature and circumstances of the offence, the appellant's moral culpability, and the purposes of sentencing, including general deterrence. The court also had to consider the appellant's gambling addiction and whether it affected his moral culpability or whether it was a suitable vehicle for general deterrence.

The court held that the sentence of 2 years imprisonment was manifestly inadequate, given the appellant's position of trust and the significant amount of money stolen. The court found that the order for the sentence to be served by way of an intensive correction order was too lenient and did not adequately reflect the seriousness of the offence. The court held that a period of actual custody was required, and that the appropriate term of imprisonment was 4 years, with 2 years to be served as an intensive correction order and 2 years as an ordinary imprisonment term. The court found that the appellant's gambling addiction did not affect his moral culpability but did provide a suitable vehicle for general deterrence.

The court allowed the appeal and substituted the sentence of 2 years imprisonment with a sentence of 4 years, with 2 years to be served as an intensive correction order and 2 years as an ordinary imprisonment term. The court emphasised the importance of general deterrence in cases involving breaches of trust and the need for a sentence that reflects the seriousness of the offence.

Orders