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R v Naserabadi

R v Naserabadi

Case [2025] NSWDC 261 22 April 2025

Criminal Liability

Sentencing

Criminal Law

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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

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

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.
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.
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…

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 Naserabadi

Details

AGLC: R v Naserabadi [2025] NSWDC 261
Case: [2025] NSWDC 261
Decision Date: 22 April 2025

CaseChat Overview and Summary

The matter before the court involved the sentencing of an individual, Naserabadi, who was found guilty of importing a commercial quantity of a border-controlled drug, specifically 4.618 kilograms of pure methamphetamine. Naserabadi, being a foreign national, faced significant penalties under Australian law for this serious offence. The case was heard in the relevant court, which considered the appropriate sentence for the offence, taking into account various mitigating and aggravating factors.

The primary legal issues the court had to address included the determination of an appropriate sentence for the importation of a commercial quantity of a border-controlled drug and the consideration of personal circumstances, including the impact on Naserabadi's family and dependents. The court also had to assess the prospects of rehabilitation and the potential deterrent effect of the sentence on others considering similar criminal activities.

The court carefully considered the evidence and submissions presented, including the quantity and purity of the drug involved, the role of Naserabadi in the importation, and the personal circumstances of the offender. The court noted that Naserabadi had elected not to give evidence, which impacted the assessment of his subjective circumstances. Balancing the seriousness of the offence against the potential for rehabilitation and the impact on Naserabadi's family, the court determined a sentence that aimed to reflect both the gravity of the crime and the personal mitigating factors.

The court ordered that Naserabadi be sentenced to a term of imprisonment, along with a non-parole period, reflecting the seriousness of the offence and the need for general and specific deterrence. The precise details of the sentence, including the term and non-parole period, were set out in paragraph [35] of the judgment.

Orders

Orders of the court

See par [35].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Naserabadi [2025] NSWDC 261

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

Abbas v The King
[2024] NSWCCA 228 Para 27

…CCA 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.…
R v Abbas
[2023] NSWDC 644 Para 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 sayin…
Kemal v The The Queen
[2022] NSWCCA 83 Para 27

…d 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…
Totaan v The the Queen
[2022] NSWCCA 75 Para 24

…ceptional 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.…
Lai v R
[2021] NSWCCA 217

…r 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 state…
Zaugg v R
[2020] NSWCCA 53 Para 27

…thorities 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 Crime…
Imbornone v R
[2017] NSWCCA 144

…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…
Van Zwam v R
[2017] NSWCCA 127

…idavit 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 frequent…
R v Agboti
[2014] QCA 280 Para 27

…ature, 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 [202…
Pfitzner v R
[2010] NSWCCA 314 Para 33

…se 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 mitiga…
Butters v R
[2010] NSWCCA 1 Para 18

…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 t…
Munro v R
[2006] NSWCCA 350 Para 17

…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 Z…
R v Elfar
[2003] NSWCCA 358 Para 25

…ntested, 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 t…
R v Palu
[2002] NSWCCA 381

…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 asses…
R v McGourty
[2002] NSWCCA 335 Para 25

…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 a…
Regina v White
[2001] NSWCCA 343

…tions 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…
R v Qutami
[2001] NSWCCA 353 Para 58

…lying 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 w…
R v Harrison
[2001] NSWCCA 79

…f 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].'…

Legislation cited in this decision · 1

Crimes Act 1914 (Cth)
16A(2) 2 mentions (from Para 24)

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.