R v Nabizadeh - [2022] NSWDC 150

District Court

New South Wales

Medium Neutral Citation: R v NABIZADEH [2022] NSWDC 150
Hearing dates: 18 March 2022
Date of orders: 9 May 2022
Decision date: 09 May 2022
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced - see paragraph 63
The offender is sentenced to an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years

Catchwords:
CRIME - drugs - Supply Prohibited Drug in Not less that the Large Commercial Quantity - MDMA - methylamphetamine - cocaine
SENTENCE - plea of guilty - offending committed whilst subject to conditional liberty - courier supporting drug habit

Legislation Cited:
Crimes (Sentencing Procedure) Act, 1999
Criminal Procedure Act, 1986

Cases Cited:
Brown v R [2014] NSWCCA 215
Hili & Jones v The Queen [2010] HCA 45
Hung v R [2019] NSWCCA 303
Mbele v R [2021] NSWCCA 182
Parente v R [2017] NSWCCA 284
R v Palu (2002) 134 A Crim R 174
R v Palu (2002) 134 A Crim R 174
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
Ali NAZIBADEH
Representation: Counsel:
Mr T Bailey for the Crown
Mr T Thorpe for the offender

File Number(s): 2021/77414
Publication restriction: No

REMARKS ON SENTENCE

The offender appeared at the Wagga Wagga Local Court on 20 October 2021 and entered pleas of guilty to two charges of Supply Prohibited Drug in Not less that the Large Commercial Quantity. Those pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 18 March 2022 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
In passing sentence in respect of the second of those charges the offender asks that I take into account a charge of Supply Prohibited Drug Not Less than Commercial Quantity which attaches to a Form 1 document. In passing sentence I will need to apply and have proper regard to the principles enunciated by the Court of Criminal Appeal in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146. Given that the matter on the form 1 relates to 997 grams (i.e. almost a kilogram and 3 grams short of the large commercial quantity) of cocaine the matter on the Form 1 must have some meaningful impact on the sentence to be passed in respect of the matter to which it attaches.
There is a further charge of Drive State False Name or Address which attaches to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. As there must be a substantial custodial sentence passed in respect of the two charges of Supply Not Less…

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 Nabizadeh

Details

AGLC: R v Nabizadeh [2022] NSWDC 150
Case: [2022] NSWDC 150
Decision Date: 09 May 2022

CaseChat Overview and Summary

The case of R v Nabizadeh was heard in the Supreme Court of New South Wales. The accused, Nabizadeh, was charged with supplying large commercial quantities of prohibited drugs, specifically MDMA, methylamphetamine, and cocaine. Nabizadeh pleaded guilty to the charges, which included the supply of drugs while on conditional liberty. The court was tasked with determining an appropriate sentence given the severity of the offending and the circumstances surrounding the accused's life at the time.

The primary legal issue before the court was to assess the appropriate sentence for Nabizadeh's drug supply activities, taking into account his guilty plea and the fact that the offending was committed while he was subject to conditional liberty. The court had to weigh the gravity of the offences against mitigating factors, such as the accused's decision to enter a guilty plea and his personal circumstances, including his use of the drugs to support his own habit as a courier.

The court considered various factors in determining the sentence. It assessed the volume of drugs supplied, the role of the accused in the drug supply chain, and the impact of his actions on the community. The court also recognised Nabizadeh's guilty plea as an indication of remorse and an acceptance of responsibility. Additionally, it acknowledged his struggle with drug addiction, which had influenced his involvement in the drug trade. After balancing these factors, the court determined that an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years was appropriate.

The final orders of the court mandated that Nabizadeh be sentenced to a total of 7 years and 6 months imprisonment, with a non-parole period of 4 years. This sentence reflects the court's consideration of both the seriousness of the drug supply activities and the mitigating circumstances present in the case.

Orders

Orders of the court

Sentenced - see paragraph 63

The offender is sentenced to an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years

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 NABIZADEH [2022] NSWDC 150
Hearing dates:	18 March 2022
Date of orders:	9 May 2022
Decision date:	09 May 2022
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced - see paragraph 63 The offender is sentenced to an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years
Catchwords:	CRIME - drugs - Supply Prohibited Drug in Not less that the Large Commercial Quantity - MDMA - methylamphetamine - cocaine SENTENCE - plea of guilty - offending committed whilst subject to conditional liberty - courier supporting drug habit
Legislation Cited:	Crimes (Sentencing Procedure) Act, 1999 Criminal Procedure Act, 1986
Cases Cited:	Brown v R [2014] NSWCCA 215 Hili & Jones v The Queen [2010] HCA 45 Hung v R [2019] NSWCCA 303 Mbele v R [2021] NSWCCA 182 Parente v R [2017] NSWCCA 284 R v Palu (2002) 134 A Crim R 174 R v Palu (2002) 134 A Crim R 174 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 Ali NAZIBADEH
Representation:	Counsel: Mr T Bailey for the Crown Mr T Thorpe for the offender
File Number(s):	2021/77414
Publication restriction:	No