R v Karimi Azar - [2020] NSWDC 265

District Court

New South Wales

Medium Neutral Citation: R v Karimi Azar [2020] NSWDC 265
Hearing dates: 6 April 2020
Decision date: 07 April 2020
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Indicative sentences:
Count 1 (008): 8 years with a NPP of 5 years & 3 months
Count 2 (016): + s16BA form matters: 10 years with a NPP of 6 years & 6 months
Aggregate sentence:
Sentenced to a term of imprisonment of 12 years, comprising a NPP of 8 years to commence on 28 October 2014 and 27 October 2022 and a balance of term of 4 years commencing on 28 October 2022 and expiring on 27 October 2026.
Back-up charges withdrawn and dismissed.

Catchwords: CRIMINAL - Sentence – people-smuggling - charges in re 20 passengers– offender’s role as “principal” or ”primary organiser” – limited subjective material – difficulty of assessing prospects of rehabilitation – no remorse and/or contrition – aggregate sentence
Legislation Cited: Crimes Act 1914 (Cth)
Migration Act 1958.
Cases Cited: Cita v R; Lamaha v R [2001] WASCA 5
Feng Lin (2001) NSWCCA 7
R v Petersen [1984] WAR 329
R v Udin Nursia and Ors (Supreme Court of the Northern Territory Bailey J, 12 January 2000),
Xiou v R [2018] NSWCCA 4.
Category: Sentence
Parties: Regina
Mohammad Naghi Karimi-Azar
Representation:
Counsel:
Crown: Mr J Clarke
Defence: Ms M Avenell
Solicitors:
Crown: Mr S Grodzicki
Defence: Mr Sayar Dehsabzi

File Number(s): 2013/00280380; 2014/00035289

Judgment

HIS HONOUR: Mr Mohammad Naghi Karimi Azar appears for sentence in respect of two offences contrary to s 233C of the Migration Act 1958.

Between 1 September 2011 and 25 August 2012, in Jakarta, Java, and elsewhere in the public of Indonesia, he facilitated the bringing or coming to Australia of a group of at least five persons who are non-citizens and who had or have no lawful right to come to Australia, and that he did so reckless as to whether the same group of persons had or have a lawful right to come to Australia.

Is in similar terms, with the exception that it refers to a period between 1 April 2012 and 1 November 2012.

The maximum penalty provided by the legislation for such an offence is a maximum of 20 years’ imprisonment.
Where the offence is a first offence, the legislation provides that there must be a minimum sentence of five years’ imprisonment with a minimum non-parole period of three years. Where the offence is a second offence of the same nature, the legislation provides that the minimum term of imprisonment is eight years and the minimum non-parole period is five years.
When dealing with the offender in respect of the second of those offences, he has asked the Court to take into account a number of matters contained on a Form s16BA pursuant to the Crimes Act 1914. Those offences are, in short, in respect of two time periods, the first being between 1 October 2011 and 9 August 2012, and…

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 Karimi Azar

Details

AGLC: R v Karimi Azar [2020] NSWDC 265
Case: [2020] NSWDC 265
Decision Date: 07 April 2020

CaseChat Overview and Summary

In the case of R v Karimi Azar, the defendant was convicted on two charges of people-smuggling related to the transportation of 20 passengers. The case was heard in a court where the primary legal issues involved the role of the defendant as a principal or primary organiser of the people-smuggling operation, the limited availability of subjective material to assess the defendant's prospects of rehabilitation, and the absence of remorse or contrition shown by the defendant. The court had to consider these factors in determining an appropriate aggregate sentence for the defendant.

The court found that the defendant played a significant role in the people-smuggling operation, acting as a principal or primary organiser. However, the court also noted the limited subjective material available to assess the defendant's prospects of rehabilitation. The absence of remorse or contrition shown by the defendant further complicated the sentencing process. After careful consideration of these factors, the court determined an aggregate sentence of 12 years imprisonment for the defendant, with a non-parole period of 8 years. This sentence reflected the seriousness of the offences, the defendant's role in the operation, and the need for general deterrence.

The court's decision was based on a thorough analysis of the evidence presented and the legal principles applicable to people-smuggling offences. The sentence imposed aimed to balance the need for punishment, deterrence, and the potential for rehabilitation of the defendant. The back-up charges were withdrawn and dismissed, and the defendant was convicted on the two main charges of people-smuggling. The court's orders included a sentence of 12 years imprisonment, with a non-parole period of 8 years, commencing on 28 October 2014, and a balance of term of 4 years commencing on 28 October 2022 and expiring on 27 October 2026.

Orders

Orders of the court

Convicted.

Indicative sentences:

Count 1 (008): 8 years with a NPP of 5 years & 3 months

Count 2 (016): + s16BA form matters: 10 years with a NPP of 6 years & 6 months

Aggregate sentence:

Sentenced to a term of imprisonment of 12 years, comprising a NPP of 8 years to commence on 28 October 2014 and 27 October 2022 and a balance of term of 4 years commencing on 28 October 2022 and expiring on 27 October 2026.

Back-up charges withdrawn and dismissed.

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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Medium Neutral Citation:	R v Karimi Azar [2020] NSWDC 265
Hearing dates:	6 April 2020
Decision date:	07 April 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Indicative sentences: Count 1 (008): 8 years with a NPP of 5 years & 3 months Count 2 (016): + s16BA form matters: 10 years with a NPP of 6 years & 6 months Aggregate sentence: Sentenced to a term of imprisonment of 12 years, comprising a NPP of 8 years to commence on 28 October 2014 and 27 October 2022 and a balance of term of 4 years commencing on 28 October 2022 and expiring on 27 October 2026. Back-up charges withdrawn and dismissed.
Catchwords:	CRIMINAL - Sentence – people-smuggling - charges in re 20 passengers– offender’s role as “principal” or ”primary organiser” – limited subjective material – difficulty of assessing prospects of rehabilitation – no remorse and/or contrition – aggregate sentence
Legislation Cited:	Crimes Act 1914 (Cth) Migration Act 1958.
Cases Cited:	Cita v R; Lamaha v R [2001] WASCA 5 Feng Lin (2001) NSWCCA 7 R v Petersen [1984] WAR 329 R v Udin Nursia and Ors (Supreme Court of the Northern Territory Bailey J, 12 January 2000), Xiou v R [2018] NSWCCA 4.
Category:	Sentence
Parties:	Regina Mohammad Naghi Karimi-Azar
Representation:	Counsel: Crown: Mr J Clarke Defence: Ms M Avenell Solicitors: Crown: Mr S Grodzicki Defence: Mr Sayar Dehsabzi
File Number(s):	2013/00280380; 2014/00035289