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R v Pajou

R v Pajou

Case [2025] NSWDC 238 27 June 2025

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District Court

New South Wales

Medium Neutral Citation: R v Pajou [2025] NSWDC 238
Hearing dates: 16 June 2025
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
(1) Sentence the Offender to a term of imprisonment of seven (7) years and six (6) months, such sentence to be taken to have commenced on 6 September 2023 to expire on 5 March 2031.
(2) The Offender will be eligible for parole five years after that commencement date, being 5 September 2028.

Catchwords:
CRIME – Drug offences – Manufacture prohibited drug – Large commercial quantity – Alleged non-exculpatory duress – Weight to be given to untested assertions by offender on contested matters of fact to third parties and by letter to the Court – Objective seriousness of offender coming to Australia for sole purpose of manufacturing large quantity of methamphetamine – Subjective case – Deprived childhood in Iran – Bugmy principles – Payment of gambling debt motivated offending – Opinion of psychologist as to clinical diagnosis of C-PTSD – Drug and gambling addictions

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
Drug Misuse and Trafficking Act 1985 (NSW) s 24(2)
Evidence Act 1995 (NSW)

Cases Cited:
Atkinson v R [2014] NSWCCA 262
Bugmy v The Queen (2013) 249 CLR 571
DPP (Cth) vDe La Rosa [2010] NSWCCA 194
Dungay v R [2020] NSWCCA 209
Jones and Anor v Booth and Anor [2019] NSWSC 1066
Kenny v R [2010] NSWCCA 6
Lam v R [2015] NSWCCA 143
Lee v R [2017] NSWCCA
Lewin v R [2017] NSWCCA 65
Munro v R [2006] NSWCCA 350
R (Cth) v Petroulias (No 36) [2008] NSWSC 626
R v Arnold [2004] NSWCCA 294
R v Elfar [2003] NSWCCA 358
R v Harrison [2001] NSWCCA 79
R v Henry (1999) 46 NSWLR 346
R v Palu [2002] NSWCCA 381
R v Qutami [2001] NSWCCA 353
R v Whitbread (1995) 78 A Crim R 452
Ryan v The Queen (2001) 206 CLR 267
Smith v R [2020] NSWCCA 181
Taitoko v R [2020] NSWCCA 43
Taysavang v R; Lee v R [2017] NSWCCA 146
WW v R [2012] NSWCCA 165

Category: Sentence
Parties: Arash Binesh Pajou (Offender)
ODPP (Crown)
Representation:
Counsel:
D Mulligan (Offender)
N Sawagid (Solicitor) (Crown)
Solicitors:
Australian Criminal and Family Lawyers (Offender)
ODPP (Crown)

File Number(s): 2023/284299
Publication restriction:
Order that the publication or disclosure of the content of redacted paragraphs [75]-[77] of these reasons is restricted to the parties only.
Extend the time prescribed by order (4) made by Newlinds SC DCJ on 16 June 2025 so that it remains in force until 27 June 2040.

JUDGMENT

Facts

On 12 August 2023, the Offender, who was born in Iran and was a Canadian citizen but at the time was mainly resident in Iran, arrived in Australia. His sole purpose of coming to this country was to be involved in the manufacture of illicit drugs, in particular methamphetamine. He rented a motor vehicle…

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 Pajou

Details

AGLC: R v Pajou [2025] NSWDC 238
Case: [2025] NSWDC 238
Decision Date: 27 June 2025

CaseChat Overview and Summary

The case of R v Pajou involved a defendant who was charged with manufacturing a large commercial quantity of a prohibited drug. The matter was heard in the relevant court, which was required to determine several legal issues. One of the primary issues was the weight to be given to the defendant's assertions of non-exculpatory duress and his alleged clinical diagnosis of Complex Post-Traumatic Stress Disorder (C-PTSD). The court had to consider the objective seriousness of the offence, including the defendant's purpose for coming to Australia, and his background, which included a deprived childhood in Iran. The court also needed to address the subjective factors presented by the defendant, including his gambling addiction and the payment of a gambling debt as a motive for his offending.

The court undertook a thorough analysis of the evidence and the principles laid out in Bugmy. It considered the objective seriousness of the offence, the defendant's background, and the circumstances leading to his offending. The court found that the defendant's assertions of duress and his clinical diagnosis of C-PTSD were not sufficient to mitigate the seriousness of his actions. The court emphasised the need to balance the objective gravity of the offence with the subjective circumstances of the offender. The court also noted the defendant's addiction to gambling and the role it played in motivating his criminal activities. Ultimately, the court determined that the sentence should reflect both the objective seriousness of the offence and the subjective factors presented.

Following its analysis, the court sentenced the defendant to a term of imprisonment of seven years and six months, to be taken to have commenced on 6 September 2023. The court also ruled that the defendant would be eligible for parole five years after the commencement date, being 5 September 2028. The court's decision balanced the need for punishment with the principles of rehabilitation and proportionality. The court recognised the seriousness of the offence while also considering the defendant's personal circumstances and background.

Orders

Orders of the court

(1) Sentence the Offender to a term of imprisonment of seven (7) years and six (6) months, such sentence to be taken to have commenced on 6 September 2023 to expire on 5 March 2031.

(2) The Offender will be eligible for parole five years after that commencement date, being 5 September 2028.

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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Citations

R v Pajou [2025] NSWDC 238

Cases Citing This Decision

No citing cases yet.

Cases Cited

Dungay v R [2020] NSWCCA 209
Citation 1 (Para 51)

…tween a disadvantaged background and offending is a matter that goes to weight, rather than the applicability of the Bugmy principles: see Dungay v R [2020] NSWCCA 209 at [153]. I do not propose to go into the detail of the Offender’s deprived upbringing. Suffice to say, it well and truly qualifies as falling within…
Smith v The Queen [2020] NSWCCA 181
Citation 2 (Para 64)

…ch sentence is to be imposed. Important as the assessment of moral culpability is, it does not swamp the objective gravity of an offence: Smith v R [2020] NSWCCA 181 at [41]-[43].…
Taitoko v R [2020] NSWCCA 43
Citation 3 (Para 68)

…said, what will be of assistance to the court and appropriate to receive will depend upon the particular circumstances of the case. In Taitoko v R [2020] NSWCCA 43, the Court of Appeal, whilst endorsing what was said in WW , said, at 114:…
Jones v Booth [2019] NSWSC 1066
Citation 4 (Para 68)

…R v Arnold [2004] NSWCCA 294 at [63] and [64]. These cases were referred to with apparent approval by Johnson J in Jones and Anor v Booth and Anor [2019] NSWSC 1066 and his Honour's observations at [65] and [67] strongly suggest that opinions expressed by psychologists, that perhaps stray beyond the strict bounds o…
Taysavang v R; Lee v R [2017] NSWCCA 146
Citation 5 (Para 63)

…y be suggested that it was caused by dysfunctional tendencies subconsciously absorbed from experiences in early childhood: see Taysavang v R; Lee v R [2017] NSWCCA 146 at [40]-[43]; Atkinson v R [2014] NSWCCA 262 at [74].…
Lewin v R [2017] NSWCCA 65
Citation 6 (Para 23)

…e: see for example R v Qutami [2001] NSWCCA 353, per Smart AJ at [58]–[59]; R v Harrison [2001] NSWCCA 79 (” Harrison ”) at [32]; and Lewin v R [2017] NSWCCA 65 at [26].…
Lam v R [2015] NSWCCA 143
Citation 7 (Para 67)

…Petroulias (No 36) [2008] NSWSC 626 at [164], cited with approval by the Court of Appeal in WW v R [2012] NSWCCA 165 (“ WW ”) at [58] and Lam v R [2015] NSWCCA 143, submits that Mr Borenstein has “crossed the line” so that his opinion is beyond his field of expertise and ought be given no weight.…
Atkinson v R [2014] NSWCCA 262
Citation 8 (Para 63)

…ional tendencies subconsciously absorbed from experiences in early childhood: see Taysavang v R; Lee v R [2017] NSWCCA 146 at [40]-[43]; Atkinson v R [2014] NSWCCA 262 at [74].…
Bugmy v The Queen [2013] HCA 37
Citation 9 (Para 50)

…The Offender suffered a range of hardships during his formative years which invoke the well-known principles in Bugmy v The Queen (2013) 249 CLR 571 (“ Bugmy ”).…
WW v R [2012] NSWCCA 165
Citation 10 (Para 67)

…the well-known statement of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [164], cited with approval by the Court of Appeal in WW v R [2012] NSWCCA 165 (“ WW ”) at [58] and Lam v R [2015] NSWCCA 143, submits that Mr Borenstein has “crossed the line” so that his opinion is beyond his field of expertis…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 11 (Para 58)

…The Offender submits that the following mitigating limbs of DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177] apply:…
Kenny v R [2010] NSWCCA 6
Citation 12 (Para 32)

…(NSW) , I take that into account in the way explained by McHugh J in Ryan v The Queen (2001) 206 CLR 267 at [29] and the Court of Appeal in Kenny v R [2010] NSWCCA 6 at [13].…
R v Petroulias (No 36) [2008] NSWSC 626
Citation 13 (Para 67)

…The Crown, relying on the well-known statement of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [164], cited with approval by the Court of Appeal in WW v R [2012] NSWCCA 165 (“ WW ”) at [58] and Lam v R [2015] NSWCCA 143, submits that Mr Borenstein has “crossed the line” so that his opinion is beyon…
Munro v R [2006] NSWCCA 350
Citation 14 (Para 24)

…hey should be treated with considerable circumspection: R v Palu [2002] NSWCCA 381 at [40]–[41]; R v Elfar [2003] NSWCCA 358 at [25]; and Munro v R [2006] NSWCCA 350 at [17]–[19].…
R v Arnold [2004] NSWCCA 294
Citation 15 (Para 68)

…decisions where it was said that the report was capable of bearing upon the issues: R v Whitbread (1995) 78 A Crim R 452 at 460 to 461; R v Arnold [2004] NSWCCA 294 at [63] and [64]. These cases were referred to with apparent approval by Johnson J in Jones and Anor v Booth and Anor [2019] NSWSC 1066 and his Honour'…
R v Elfar [2003] NSWCCA 358
Citation 16 (Para 24)

…offenders tendered to the Court. Again, they should be treated with considerable circumspection: R v Palu [2002] NSWCCA 381 at [40]–[41]; R v Elfar [2003] NSWCCA 358 at [25]; and Munro v R [2006] NSWCCA 350 at [17]–[19].…
R v Palu [2002] NSWCCA 381
Citation 17 (Para 24)

…e same can be said about letters written by offenders tendered to the Court. Again, they should be treated with considerable circumspection: R v Palu [2002] NSWCCA 381 at [40]–[41]; R v Elfar [2003] NSWCCA 358 at [25]; and Munro v R [2006] NSWCCA 350 at [17]–[19].…
R v Qutami [2001] NSWCCA 353
Citation 18 (Para 23)

…atements made to third parties in circumstances where the offender does not give direct evidence about matters in dispute: see for example R v Qutami [2001] NSWCCA 353, per Smart AJ at [58]–[59]; R v Harrison [2001] NSWCCA 79 (” Harrison ”) at [32]; and Lewin v R [2017] NSWCCA 65 at [26].…
Ryan v The Queen [2001] HCA 21
Citation 19 (Para 32)

…under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) , I take that into account in the way explained by McHugh J in Ryan v The Queen (2001) 206 CLR 267 at [29] and the Court of Appeal in Kenny v R [2010] NSWCCA 6 at [13].…
R v Harrison [2001] NSWCCA 79
Citation 20 (Para 23)

…ender does not give direct evidence about matters in dispute: see for example R v Qutami [2001] NSWCCA 353, per Smart AJ at [58]–[59]; R v Harrison [2001] NSWCCA 79 (” Harrison ”) at [32]; and Lewin v R [2017] NSWCCA 65 at [26].…
R v Henry [1999] NSWCA 111
Citation 21 (Para 55)

…The Offender relies on the remarks of Simpson J in R v Henry (1999) 46 NSWLR 346 are apposite, where her Honour noted:…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A
2 mentions (from Para 32)
Drug Misuse and Trafficking Act 1985 (NSW) 24(2)
2 mentions (from Para 7)
Evidence Act 1995 (Cth)
1 mention (from Para 66)

Medium Neutral Citation:	R v Pajou [2025] NSWDC 238
Hearing dates:	16 June 2025
Date of orders:	27 June 2025
Decision date:	27 June 2025
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	(1) Sentence the Offender to a term of imprisonment of seven (7) years and six (6) months, such sentence to be taken to have commenced on 6 September 2023 to expire on 5 March 2031. (2) The Offender will be eligible for parole five years after that commencement date, being 5 September 2028.
Catchwords:	CRIME – Drug offences – Manufacture prohibited drug – Large commercial quantity – Alleged non-exculpatory duress – Weight to be given to untested assertions by offender on contested matters of fact to third parties and by letter to the Court – Objective seriousness of offender coming to Australia for sole purpose of manufacturing large quantity of methamphetamine – Subjective case – Deprived childhood in Iran – Bugmy principles – Payment of gambling debt motivated offending – Opinion of psychologist as to clinical diagnosis of C-PTSD – Drug and gambling addictions
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Drug Misuse and Trafficking Act 1985 (NSW) s 24(2) Evidence Act 1995 (NSW)
Cases Cited:	Atkinson v R [2014] NSWCCA 262 Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) vDe La Rosa [2010] NSWCCA 194 Dungay v R [2020] NSWCCA 209 Jones and Anor v Booth and Anor [2019] NSWSC 1066 Kenny v R [2010] NSWCCA 6 Lam v R [2015] NSWCCA 143 Lee v R [2017] NSWCCA Lewin v R [2017] NSWCCA 65 Munro v R [2006] NSWCCA 350 R (Cth) v Petroulias (No 36) [2008] NSWSC 626 R v Arnold [2004] NSWCCA 294 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] NSWCCA 79 R v Henry (1999) 46 NSWLR 346 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 R v Whitbread (1995) 78 A Crim R 452 Ryan v The Queen (2001) 206 CLR 267 Smith v R [2020] NSWCCA 181 Taitoko v R [2020] NSWCCA 43 Taysavang v R; Lee v R [2017] NSWCCA 146 WW v R [2012] NSWCCA 165
Category:	Sentence
Parties:	Arash Binesh Pajou (Offender) ODPP (Crown)
Representation:	Counsel: D Mulligan (Offender) N Sawagid (Solicitor) (Crown) Solicitors: Australian Criminal and Family Lawyers (Offender) ODPP (Crown)
File Number(s):	2023/284299
Publication restriction:	Order that the publication or disclosure of the content of redacted paragraphs [75]-[77] of these reasons is restricted to the parties only. Extend the time prescribed by order (4) made by Newlinds SC DCJ on 16 June 2025 so that it remains in force until 27 June 2040.