R v Naserabadi

[2025] NSWDC 261

District Court

New South Wales

Medium Neutral Citation:

R v Naserabadi [2025] NSWDC 261

Hearing dates:

17 and 22 April 2025

Date of orders:

22 April 2025

Decision date:

22 April 2025

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See par [35].

Catchwords:

CRIME – SENTENCE – Import commercial quantity of border controlled drug – 4.618kg pure methamphetamine – Foreign national – Offender elected not to give evidence to explain discrepancies in subjective evidence – Consideration of effect of sentence on family and dependents – Good prospects of rehabilitation.

Legislation Cited:

Criminal Code (Cth) s 307.1(1).

Crimes Act 1914 (Cth), s16A(2).

Cases Cited:

Kemal v R [2022] NSWCCA 83.

RvAbbas [2023] NSWDC 644, [32]-[37].

R v Abbas [2024] NSWCCA 228.

R v Agboti [2014] QCA 280.

Totaan v R [2022] NSWCCA 75.

Zaugg v R [2020] NSWCCA 53.

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (Cth)
Offender – Bahareh Naserabadi

Representation:

Counsel:
Crown – Ms New, D.
Offender – Mr Valentin, M.

Solicitors:
Crown – Office of the Director of Public Prosecutions (Cth)
Offender - Dehsabzi Lawyers

File Number(s):

2023/00303366

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Bahareh Naserabadi stands for sentence as a consequence of pleading guilty to a charge that on 23 September 2023 at Mascot in this State she did import a substance, the substance being a border controlled drug, namely methamphetamine and the quantity imported being a commercial quantity. That is an offence contrary to the Criminal Code (Cth) s 307.1(1). The maximum penalty for that offence is imprisonment for life and/or a fine of $2,347,500.

Facts

2. On 23 September 2023, the appellant arrived at Mascot Airport on an international flight.  She entered the plea of guilty on 18 December 2024 at the Downing Centre Local Court.

3. This case is not a normal case of this type of offending.  At the time that she landed in Australia, the offender was 45 years old.  She was travelling with her two children, a son, Dennis, then aged ten, and a daughter, Alexa, who was then aged seven. There is before me a statement of agreed facts, albeit that it has at its heading the words Proposed Agreed Statement of Facts, but it has been signed by the offender.

4. At about 8.50pm on Thursday, 23 September 2023, Greenwich Mean Time, the offender, together with her son and daughter, left London on Qantas flight QF2.  At about 5.40pm on 22 September 2023, they arrived at Changi Airport in Singapore.  There they had a short layover.  At about 8.30pm on that evening the offender and her children left Singapore on QF82 bound for Sydney.  The offender is a citizen of the United Kingdom and was travelling on a United Kingdom passport issued on 7 December 2016 for a period of 10 years.  The offender was travelling with two items of checked luggage, both of which were checked in her name and had Qantas baggage tags attached to them.  They had been wrapped in plastic, presumably at one of the plastic wrapping machines which can be found in any international airport.  One of these bags was a large black suitcase, the other was a large brown suitcase.

5. The offender and her children arrived at Sydney International Airport at about 8.10pm on 23 September 2023.  The offender had completed and signed an incoming passenger card in English which she produced to an Australian Border Force officer when she entered the airport terminal.  On the card she selected no as her answer to the first question which was, "Are you bringing into Australia goods that may be prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons, or any kind of illicit drugs?"  On that card she stated that the purpose of her travel to Australia was for a holiday which would extend for nine days.  She wrote as her intended destination in Sydney an address in Ashfield which was the address of an institution named the Westside Motor Inn.  At the airport the offender told Australian Border Force officers that she did not know anybody in Sydney and was here for a short holiday.  When asked if she had travelled to Australia previously, she said no.  When asked where she had travelled before, she said that she had travelled with her children to Japan at Easter 2022 for a holiday.  When asked what she was planning to do in Sydney, she said, "Visit attractive places like the Opera House, the Chinese Gardens and do whale watching."

6. She said that she had lived in London and worked as a beautician and was divorced from her husband in 2017 but remained in contact with him because of their two children.  The offender was carrying a mobile phone and each of her children also had a mobile phone.  Having arrived at the international terminal, the offender and her children collected their luggage from a carousel and were selected for a search and examination of their luggage.  The accused followed an ABF officer to a barrier with her two checked suitcases, one backpack, one small carry‑on suitcase and one handbag.  She was then asked certain questions by the ABF officer.  She said that she had read and completed and signed the incoming passenger card and understood all the questions on the card.  She also said that the items were the luggage and that she had packed the bags herself and was fully aware of their contents.

7. The offenders' two suitcases were then emptied of their loose contents and weighed.  Emptied of their loose contents, one weighed 7.8 kilograms and the other weighed 7.97 kilograms.  The lining of each suitcase had obviously been tampered with.  It appeared irregular and was obviously and roughly hand stitched closed.  One suitcase's lining comprised of two different mismatched fabrics.  Annexed to the agreed facts are photographs of the two suitcases open and the problems with the interior lining are patently obvious.  The ABF officers used a drill and a white crystalline substance was found secreted beneath the lining of each of the two suitcases.  Presumptive testing of the substance indicated the presence of methamphetamine.

8. On 10 October 2023, the offenders' two suitcases were deconstructed.  White crystalline substance was found in the frames of each suitcase.  On 12 October 2023, forensic analysis confirmed the substance concealed in each of the accused's suitcases was methamphetamine with a purity of 80.3%.  The calculated total pure weight of the methamphetamine imported by the offender was 4.618 kilograms, more than six times the commercial quantity which is 0.75 kilograms.  The total pure weight of methamphetamine in the first suitcase was 2.3797 kilograms and the total weight of the methamphetamine in the second suitcase was 2.2385 kilograms.

9. Although those investigations were carried out in early October 2023, the ABF officers dealt with the offender at about 1am on 24 September 2023 when she was formally cautioned with the assistance of an interpreter.  She was then arrested.  She was taken formally into custody, presumably at Mascot police station, on 24 September 2023.

10. A small discrepancy arises.  The offender, through her counsel, asks that any sentence commence on 23 September 2023, but the Crown asks that any sentence commence on 24 September 2023. I accede to the defence's submission in this regard.

11. The offender's mobile telephone was tested using the Cellebrite program.  There are a number of pages of the downloading of messages between the offender and her husband.  On 23 September 2023 at 8.37pm, the offender sent a message to her husband saying, "Right now we arrived, wait for the goods."

12. I infer that the goods refers to the checked bags.  At 3.19am on the following morning, 24 September 2023, the offender left this message on her telephone, presumably to be sent to her husband.

"We have arrived, they have arrested me with the kids, the children are taken into a different place, can you find a lawyer, please they are allegedly saying they found something in the suitcase, what to do?  Please please we are caught up here, find a lawyer."

13. An audio message was sent in reply by her husband almost immediately.  That message was, "Tell me what happened?  What suitcase?  The suitcases we found??  Oh god what happened?"

14. The only significance pressed by the Crown as to the significance of these messages is that on 5 September 2023 at 9.45pm, the husband sent a message to the offender using merely the word "Kayak".  That was followed by an audio message saying, "Download the application, get it ready."

15. On 8 September 2023 at 4.20am the husband sent another message to the offender which said, "Link sent to Kayak.co.uk/flightstosydney/21September2023to29September2023/1adults/children".  It would appear that the appellant's husband was assisting her making arrangements for travel to Sydney.

Evidence in the Offender’s Case

16. The offender has elected not to give any evidence.  That is despite the fact that I pointed out to Counsel for the parties that there are numerous discrepancies in various documents which needed to be explained and if they were not explained certain inferences would be drawn.  Learned Counsel for the offender, Mr Valentin, was very aware of those discrepancies and assured me that his client had been advised as to what might occur but nevertheless she elected not to give any evidence.

17. One of the authorities referred to me by Mr Valentin was a decision of my colleague, Sutherland SC DCJ in R v Abbas [2023] NSWDC 644. In that case his Honour had to deal with histories given to a psychologist which were not corroborated by evidence given by the offender. His Honour referred to the authorities saying this:

"[32]  In circumstances where relevant factors which are relied upon in mitigation of offending behaviour are advanced via third parties, the reserve and caution with which such out‑of‑court statements made to third parties should be treated has been repeatedly emphasised by the Court of Criminal Appeal.

[33]  In Imbornone v R [2017] NSWCCA 144, Wilson J (Hoeben CJ at CL and RA Hume J agree) said at [57]:

'This court has frequently said that untested out‑of‑court statements made to third parties should be treated with caution.  Although it should be a principle that is well known and understood, it seems necessary to restate it.  The following statements are derived from the authorities:

(1)  Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender.  In many cases, such statements can be given little or no weight:  R v Qutami [2001] NSWCCA 353 at [58] ‑ [59].

(2)  Statements to doctors, psychologists, psychiatrists, the authors of pre‑sentence reports and others, or assertions contained in letters written by an offender and tendered to the Court, should all be treated with considerable circumspection.  Such evidence is untested, and may be deserving of little or no weight:  R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185 [40] ‑ [41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335, at [24] ‑ [25].

(3)  It is open to a court assessing the weight to be given to such statements to have regard to the fact that the offender did not give evidence and was not subject to cross‑examination; Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

(4)  If an offender appearing for sentence wishes to place evidence before the Court, which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested:  Munro v R [2006] NSWCCA 350 at [17] ‑ [19].

(5)  Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (See Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self‑interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition: 'To treat this evidence with anything but scepticism represents a triumph of hope over experience.'; R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].'

[34]  It is to be observed that in some particular cases, the Court of Criminal Appeal has been even more emphatic in seeking to discourage the receipt of unsworn and untested statements.  In Lai v R [2021] NSWCCA 217, Bellew J, with whom Bathurst CJ and Adamson J agreed, made specific reference to each of the relevant offenders in that matter having tendered statements to the sentencing judge in the absence of giving sworn evidence. Bellew J referred to the circumstances that such a practice seemed to be increasingly adopted in sentencing proceedings in the District Court.

[35]  His Honour reiterated the observations of Whealy J, in R v Elfar [2003] NSWCCA 358 at [25] in which Whealy J had himself re‑emphasised the matters of principle stated in R v Qutami [2001] NSWCCA 343; (2001) 127 A Crim R 369.

[36]  Whealy J had said that the principle extended not only to statements in psychological reports but also to statements by offenders in pre‑sentence reports.  His Honour went on to say:  'In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment.'

[37]  Bellew J went so far as to remark at [80] in Lai:

'Those observations have since been consistently reiterated by this Court.  There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents.  It follows that in my view, such a practice is to be strongly discouraged.'"

18. The written submissions on behalf of the offender quote in detail from a report of Julie Dombrowski, a psychologist with a master's degree in that discipline.  The report bears date, 14 April 2025.  It was compiled after Ms Dombrowski assessed the offender via AVL while she was at the Dillwynia Correctional Centre on 11 April 2025.  The interview lasted for two hours.  A professional Farsi interpreter was used.  Dillwynia Correctional Centre is at Windsor.  Ms Dombrowski wrote this about her interview with the offender:

"[6]  Ms Naserabadi is a 46‑year‑old woman who looked her documented age.  She was neatly groomed and appropriately dressed in prison‑issued attire.  She was somewhat garrulous and spoke in Farsi throughout the assessment.  Her mood was depressed.  Her affect (expression of emotion) was reactive and she was tearful during much of the interview.  There was no indication of intoxication or psychosis.  She was alert and oriented, and there's nothing in her presentation that raised concern regarding her cognitive functioning.

[7]  At the time of the subject offending, Ms Naserabadi was a citizen of the United Kingdom who was living, working and raising her two children in London, England.  She was separated from her ex‑husband but was having regular contact with him, largely regarding shared parenting arrangements for their children.  She described her ex‑husband as being a highly controlling and coercive, who had physically, financially, verbally and sexually abused her throughout the duration of their marriage.  She told me he continued to control and abuse her after their separation.  She told me she sold her car to fund a holiday for herself and her two children to come to Australia.  Upon knowing of their plans, her ex‑husband demanded that she transport and deliver two bags to his associate in Sydney.  Ms Naserabadi told me that she did [not] want to transport the bags because she did not know her ex‑husband's associate, was dubious as to why the associate required the bags, and did not want to be inconvenienced with the task while she was on holidays with the children. She told me that her ex‑husband became angry with her and assured her there was nothing illegal inside the bags, but she still maintained that she did not wish to transport the bags:  'He was yelling...I threatened to cancel the trip...the kids were crying...I didn't know what to do.'  As the taxi arrived to take them to the airport, her ex‑husband placed items of her clothing into the bags without her knowledge, bought the bags downstairs from her apartment and put them in the taxi.  She told me she was upset he had done this against her wishes, but believed that she would miss the plane if she argued any further with him about it.  Her ex‑husband travelled with her and the children in the taxi and checked the bags in at the check‑in counter for her.  Ms Naserabadi did not make any attempt to alert authorities about her concerns because she trusted her ex‑husband's assurances that there was nothing illegal inside the bags.

[8]  Ms Naserabadi expressed ongoing distress and regret regarding her involvement in the subject offending and the impacts of her offending (and arrest) on her children:  'I don't even believe it myself what happened...I've been thinking and crying about this the whole time (ie, since her arrest for the subject offence)...I made a mistake trusting him (ie, ex‑husband)...This is the worst thing that has happened in my life...I've never touched a drug...I don't know what it is...But I understand it was illegal...I would never hurt people with drugs that cause problems...I could never sabotage my kid's, their security, their life like this.'

[9]  Ms Naserabadi has been in prison since her arrest for the subject offence in September 2023 (ie, 19 months to date).  She had no prior experience of prison and felt confronted by the prison environment and the behaviour of other prisoners:  'I don't belong in this place (ie, prison)...I shouldn't be here dealing with these drug users and dealers.'  I understand she is currently working in a trusted position as a cleaner at the medical clinic.  She has regular telephone contact with her children (who are currently residing with their father in London).  She told me she has sufficient English to be able to [communicate] with prison officers and other prisoners.

[10]  Ms Naserabadi grew up living in a city (ie, Marivan) in a Kurdistan province of Iran.  Her father was a school teacher, who was involved with the Kurdish separatist party in Iran.  She was two years old, when he was killed in combat.  She grew up living with her mother and two sisters.  Around age ten, her home was bombed, and they lived for several years in her neighbourhood without access to running water, electricity or shelter.  As a child, she routinely witnessed combat and three of her cousins were killed during bombings of the neighbourhood.  Ms Naserabadi explained that it was unusual in her community not to have a patriarch (eg, father, uncle or brother) to provide for the family.  Instead, her mother worked as a manual labourer and cleaner to earn enough money for the family to provide food and shelter for them.

[11]  During Ms Naserabadi's 20s, government officials (ie, 'Security Police'), routinely apprehended and interrogated her because of her father and husbands...involvement with the Kurdish separatist party.  Government officials regularly sexually assaulted her during these interrogations...In 2010 (aged 32) she migrated from Iran to the UK to achieve safety from the Security Police.  She lived and worked in London for 13 years.  During that time, she twice returned with her children to visit family in Iran and on 23 September 2023, she travelled with her children to Australia for a holiday.

[12]  Ms Naserabadi attended three years of formal education (aged 7 to 10 years) in Iran.  During adolescence, she completed vocational training and worked as a typist, seamstress, and medical assistant administering vaccinations for the Red Cross.  During her early twenties, she completed a four years bachelor's degree in education at university and worked as a literacy teacher in Iran until she left the country in 2010 (aged 32).  Between 2010 and 2017, she was unemployed and reliant on UK government allowances.  In 2017 (aged 39) she completed several short vocational courses in beauty therapy and has worked as a beauty therapist for six years.  She was working in this capacity at the time of the subject offending.

[13]  Ms Naserabadi identifies as a Kurdish Muslim.  She denied any difficulties forming friendships in childhood.  She told me that most of her peers were politically motivated and supportive of the Kurdish separatist party.  When she moved to London in 2010 (aged 32) she did not know anyone in the UK other than her husband...but has since formed friendships with pro‑social peers.

[14]  Ms Naserabadi married in 2003 (aged 25).  She told me she met her husband at university, while he was studying civil engineering.  She understood he was involved with the Kurdish separatist movement.  In 2007 (when she was aged 29) her ex‑husband moved to London...to avoid ongoing harassment by the Iranian Security Police because of his involvement in the separatist movement.  In October 2010 (aged 32) she moved to London...to reunite with him (and avoid further Security Police interrogations).  She described her husband to be a highly controlling and coercive man, which she initially believed was normal for a Kurdish man.  In December 2010 (aged 32) she evicted her from the home and she lived for two years in crisis accommodation (including women's refuges) and with a peer.  In 2012, (aged 34) she reconciled the marriage and they had two children (currently aged 12 and nine years).  She told me her husband has routinely verbally (eg, telling her she was lazy and worthless), financially (eg, taking her government allowance), physically (eg, kicking and hitting her), and sexually abused her throughout their relationship.  However she remained in the relationship because she believed it was in the children's best interest that they grow up with a father.  In 2017 (aged 39) she felt unable to continue the relationship because of his ongoing abuse and they divorced under British law (but he refused to divorce her under [Islamic] Law).  Since their separation they have remained in regular contact and she continues to feel obligated to comply with his demands for fear that he will abandon his children if she did not."

A significant question for me is how much of that evidence is credible or plausible.  For example, to describe her experience of incarceration as she did, it is hard to reconcile with, at the age of 10, experiencing the destruction of her home and then having to live for “several years" in her neighbourhood without access to running water, electricity and shelter.  Such amenities are available in the prisons of this State.

19. In evidence are records from the Central and North West London National Health Service.  They are Exhibit 8.  The first record relates to an appointment that the offender had on 22 February 2022 with Dr Bojana Aleksic, a specialist medical practitioner to whom the offender had been referred by Dr Green of the Paddington Green Health Centre.

20. That referred to the appellant as being a single mother living with her two children in a council flat.  It records that she was not working and was in receipt of "Universal credit" which I understand to be and confirmed to me by learned counsel for the offender as the British equivalent of the Department of Social Security payments.

21. According to the report of Dr Aleksic, the offender's difficulties started in 2010 when she came to London after getting married.  The report says this:

"Ms Naserabadi reported low mood, lack of energy, feeling anxious and hearing voices.  She rated her mood as 2 ‑ 3 on a scale from 1 ‑ 10.  Denied diurnal mood variation.  Her energy level is low and she lacks motivation to do things for herself like maintaining her personal care (taking shower).  However, she manages to look after her children and spending time with them is the only thing that brings pleasure to her life.  She enjoys doing craft work with her kids.

Ms Naserabadi talked about feeling anxious most of the time and how she worries a lot, particularly that something bad might happen to her children.  She was tearful when spoke about her past relationship difficulties and how her ex‑husband was verbally, emotionally and at times physically abusive towards her.  She reported flashbacks on a daily basis related to her past traumatic experiences and frequent nightmares.  She said that she had startle [sic] on a loud noise, doors banging and tends to avoid going outside due to worries for the safety of her children and herself.  She feels guilty and blames herself for feeling depressed and anxious.  She has no delusions of guilt or nihilistic delusions.  Her appetite has been increased and she has gained around seven kilograms over the last few months.  Ms Naserabadi noticed that an increase in appetite is linked to taking her olanzapine.  She denied having a similar problem before.

Regarding hearing voices she reported having them 3‑4 times weekly common particularly when feels more depressed.  She describes familiar voices of her mother and family members talking directly to her and calling her name.  Sometimes she hears male and female voices which are unclear.  Denied any commands to harm herself or others.  Said that the voices have never talked bad things about her, but she finds them distressing.  Ms Naserabadi was of the view that the olanzapine had not helped with the voices."

I omit the next paragraph which deals mainly with other forms of medication taken by the offender.

"Ms Naserabadi had six sessions of talking therapy.  She told me she struggles to talk about her difficulties feels guilty when she says her problems with others and this 'gives her headache'.  I acknowledge that talking about past trauma might be painful, but at the same time advised that talking therapy along with medications is the best treatment for her current difficulties.

Ms Naserabadi has a long history of migraines and back pain would seem [sic] to be perpetuating factors for her mental health problems."

The report goes on to diagnose mixed depression and anxiety on the background of past domestic violence and physical health comorbidities.

22. On 21 September 2022, the offender was interviewed by Ashley Boscoe, a trainee clinical psychologist.  It is unclear to me whether the psychologist was male or female.  If I need to use a personal pronoun, I shall use the feminine one and apologise to the psychologist if he be male.  The history recorded by the psychologist was this under the heading Background:

"Bahareh described that her depression started when she married her ex‑husband and moved to the United Kingdom.  She and her husband married in Iran and shortly after, her husband moved [to] the UK whilst Bahareh stayed in Iran for three more years during which time people started to be bullying towards her.  Bahareh said, once married, her life as a woman in Iran was not good and people were hostile, telling her that her husband didn't want her.  Bahareh then moved to the UK to live with her husband and he was domestically violent and then forced her to leave the home making her homeless.  Bahareh stayed in a hostel for victims of domestic violence for eight months and then stayed with a friend for one year following that.  In 2012 Bahareh got back with her husband and they had children.  Throughout this period her husband was emotionally abusive saying nasty comments and making her feel bad about herself.  Bahareh denied that she was violent or abusive towards the children.  She left him and returned three times across a period of about five years and received talking therapies on multiple occasions before leaving him permanently in 2017 and completing a divorce.  Initially Bahareh moved to hostels and hotels with her children before asking him to leave the home so she and her children could live there more comfortably.  Bahareh said becoming a single parent made her depression worse.

Bahareh denied feeling at risk from her ex‑husband, although he does have visitation with the children, they keep conversation to a minimum of five or ten minutes when she collects the children every few weeks.  Bahareh denied confrontations or arguments with her ex‑husband and said the contact feels manageable."

23. The offender appeared on 18 December 2024, in the Downing Centre Local Court resulting in her being committed for sentence in this Court. I accept that the utilitarian value of that plea entitles the offender to a discount of 25% of the sentence properly to be passed upon her. That is the Common Law position, not the statutory position, that applies in New South Wales, but in my view, to adopt a similar approach is fair to all forms of offenders, that is, offenders against both the law of the Commonwealth and offenders against the law of the State.

24. An important consideration is the matter prescribed by s 16A (2)(p) of the Crimes Act 1914 (Cth) (‘the Act’), the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents. It is now well known that that provision of the Act is not to be interpreted in the way that it is under State law and there is no need to find exceptional circumstances before this consideration can be taken into account. That is the decision of the Court of Criminal Appeal in Totaan v R [2022] NSWCCA 75.

25. Here, there is, in evidence, known as Exhibit 7, a letter from the head teacher of an institution known as “The Gateway Academy” of Capland Street in London. The inference to be drawn from that letter is that it is a British equivalent of a primary school. It contains this:

“I am writing letter as the head teacher of Gateway Academy, where Alexa and previously, Dennis are and have been valued members of our school community since 2021. I am compelled to express my deep concern regarding the ongoing circumstances involving their parent, Bahareh Naserabadi, who is currently held on remand in Australia since September 2024. This situation has caused a profound emotional and psychological impact on the children and their extended family, it has resonated deeply within our community.

From my personal knowledge of Bahareh and their family, they have always demonstrated a remarkable commitment to the well‑being and upbringing of their children. The family is known for being close‑knit with parents who consistently prioritise the needs and welfare of their children. The sudden and prolonged separation from their parent has undoubtedly been an incredibly distressing and destabilising experience for Alexa and Dennis, who are struggling to cope with the uncertainty and lack of contact.

Our community is further alarmed by the lack of clear communication surrounding the reasons for Bahareh’s detention. As of now, as far as we are aware, no evidence has been presented to justify the prolonged separation, leaving many of the parents deeply concerned about Bahareh’s safety and welfare. This uncertainty amplifies the anguish felt by the family and the community alike. It has also added extra pressure to Mr Cohan Khoanchezar, who is constantly facing questions that he simply cannot answer.

Despite the efforts of Bahareh’s ex-husband to support the children during this challenging time, they have had limited assistance from embassies or legal representatives. The lack of resources and information only exacerbates the situation, leaving the family in a state of despair. Mr Cohan Khoanchezar has moved into the family home to provide stability for the children, but faces significant challenges, including managing the household without an extensive family network for support. His dedication to the children is evident, but the burden he carries is immense and unsustainable without additional assistance. It has also meant that he has had to move out of his own home and is unable to work as he is now the primary and sole caregiver.

It is evident that the children need their mother’s presence to regain stability, and it is crucial that steps are taken to expedite the resolution to this matter.

I urge the relevant authorities to consider the impact this situation is having on innocent children and to prioritise their well-being. As a school, we are committed to supporting Alexa in every way we can, but no institutional support can substitute the care and guidance of a loving parent. There have been an increase in friendship and social issues as well as a heightened sense of emotional outbursts we had not witnessed previously with Alexa until this situation happened.”

The letter goes on a little bit further but there is no need to quote that section.

26. I must observe that if anyone knew what was going on it would have been the offender’s former husband and her children’s father, who knew of her apprehension on charges of drug smuggling and who, on any view of it, if I believe what the offender says on this issue, had a greater involvement in the attempt to smuggle drugs into Australia than had the offender. He has obviously failed to keep the school informed as to the real reasons as why the offender is detained in Australia. However, it is clear that I accept that the removal of the offender from the life of both Dennis and Alexa and substituting that with the care and control of the children’s father, the offender’s ex‑husband, will have been distressing to the children, especially Alexa, who on my calculation, would probably be in her final year of primary school and probably need her mother much more acutely at such a vital time in her life. I do not discard, in any way, the need of Dennis to have the input, into his life in his early teenage years, of his mother.

27. As is usual in cases of this nature, I have been provided by counsel with a number of authorities which are alleged to be “comparable.” The Crown has referred me to R v Agboti [2014] QCA 280, Kemal v R [2022] NSWCCA 83, and Zaugg v R [2020] NSWCCA 53. Learned counsel for the offender, Mr Valentin, referred me, in particular, to R v Abbas [2023] NSWDC 644, [2024] NSWCCA 228. Section 16A(2) of the Crimes Act 1914 (Cth) provides me with a checklist of matters that I must consider, in addition to other relevant factors.

Consideration

28. I have described the nature and circumstances of the offence. There are no other offences that I am required or permitted to take into account in this sentencing exercise. I do not accept that the offence forms part of a course of conduct consisting of a series of crimes or criminal acts. This I accept, this was the only instance where the offender has been guilty because of recklessness in importing a prohibited drug. There is no personal victim of the offence. The offence is largely against the wider community in general because the wider community in general are exposed to the effects of illicit drugs which can be damning. There is no particular injury, loss or damage resulting from this offence.

29. I am required by s 16A(2)(f) of the Act to take into account the degree into which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner. I can accept that the plea of guilty does, in fact, provide evidence of contrition and that contrition I take into account in fixing the discount which I have for the early plea of guilty, a discount for both the utilitarian value of the plea and also, it represents contrition on the part of the offender. That is a matter that I take into account under paragraph (g) of the same subsection.

30. That largely brings into account s 16A(2)(h) of the Act which, again, refers to cooperation with the law enforcement agencies. I accept that the appellant told the police eventually what had happened to her in this sentencing hearing and why she pleaded guilty to the offence. In cases of this nature, both general deterrence and specific deterrence are important. General deterrence is, in fact, the greater consideration. I accept that it is highly unlikely that the offender would ever do what she did in bringing the bags that her husband had packed into Australia or, indeed, any other country. The fact that she has pleaded guilty to this offence will deny her entry to many countries in the world where illicit drugs are exactly that, illicit. That is nearly every country in the civilised world.

31. I do not accept that this is a case in which s 16A(2)(ma) of the Act is relevant and I otherwise brought into consideration the matters referred to in s 16A(2)(m) of the Act. Again, consistent with what I have said earlier, I think the prospects of rehabilitation are good because I am confident that the experience that the offender has had since she was arrested for these offences and the fact that she will take her conviction with her throughout the rest of her life, will mean that the prospects of rehabilitation are good. As I said, a very important factor is the matter referred in s 16A(2)(p) of the Act.

Sentence

32. As I said at the commencement of these reasons, the maximum penalty for this offence is life imprisonment. Bearing in mind the cases to which I have referred and the available statistics generally and bearing in mind the circumstances that I have discussed, I have formed the view that the starting point for this sentencing exercise is a period of seven years and six months’ imprisonment. I reduce that by 25%, which gives me a head sentence of five years and seven months. This clearly is a matter in which I must impose a non‑parole period. In Commonwealth sentencing matters, there is no equivalent to the requirement in State law that the non-parole period be one‑quarter of the head sentence. The matter is at large. This is clearly a stage at which I should, in particular, bear in mind the provisions of s 16A (2)(p) of the Act. I have formed the view that the appropriate non‑parole period is three years and nine months.

33. The sentence will commence on 23 September 2023 as I stated very early last Thursday when I commenced making these remarks on sentencing. A period of three years and nine months since then, ends on 22 June 2027.

34. HIS HONOUR: Now, does anyone want any further reasons?

NEW: No, your Honour.

35. HIS HONOUR: Bahareh Naserabadi, on the charge that on 23 September 2023, at Mascot in this State, you did import a substance, the substance being a border‑controlled drug, namely methamphetamine and the quantity imported being a commercial quantity, you are convicted. I sentence you to imprisonment for a term of five years and seven months commencing on 23 September 2023 and expiring on 22 April 2029. I order that you be released on parole on 22 June 2027.

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Decision last updated: 17 July 2025