R v Pishdari

[2018] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PISHDARI; R v ROBERTS; R v MITCHELL; R v JOHNSTON; R v REYNOLDS; R v MACKAY

[2018] SASCFC 94

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)

13 September 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE

Appeal against sentence – six appellants who were among members and associates of a fledgling chapter of an outlaw motorcycle gang were convicted variously with aggravated kidnapping, aggravated blackmail, and participating in a criminal organisation – appellants sentenced by a Judge of this Court to various terms of imprisonment – whether Judge erred in application of sentencing principles – whether sentences imposed were manifestly excessive.

Held per Nicholson J (Kourakis CJ agreeing):

1.       Both personal and general deterrence are significant considerations when sentencing for the offence of participating in a criminal organisation (per Kourakis CJ at [2], per Nicholson J at [20]).

2.       The fact that a person is a member, nominee or an associate of an outlaw motorcycle gang may of itself support a conclusion that he or she is of bad character with poor prospects for rehabilitation and an enhanced need for personal deterrence, notwithstanding an otherwise moderate or good prior criminal record (per Kourakis CJ at [2], per Nicholson J at [23]-[24]).

Per Bampton J

1.       Allegiance to a violent criminal organisation is highly significant in sentencing an offender who identifies with an outlaw motorcycle gang as it is relevant to culpability, general and specific deterrence, punishment and rehabilitation.  The gang culture of violence and adherence to criminal activities warrants significant weight being placed on general deterrence.  Specific deterrence must be given significant weight in sentencing a gang member who freely associates with this culture.

Obiter per Kourakis CJ

1. There are strong reasons arising out of the principle of legality to read down the word ‘sentencing’ in clause 2(1) of Schedule 1 of the Sentencing Act 2017 (SA) to mean only the sentencing of a convicted person at first instance.

In relation to the appellant Pishdari:

Held per Bampton J (Kourakis CJ and Nicholson J agreeing), allowing the appeal:

1.       The sentence is manifestly excessive. A starting point of 20 years imprisonment for the offences as committed by this offender was outside the available range (per Nicholson J at [31], per Bampton J at [221]).

2.       The Judge was correct to impose a longer sentence on the appellant as compared to his co-offenders (per Nicholson J at [31], per Bampton J at [215]).

3. The appellant fell to be sentenced as a serious repeat offender pursuant to…