R v Pishdari

Case [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…

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Details
AGLC
R v Pishdari; R v Roberts; R v Mitchell; R v Johnston; R v Reynolds; R v Mackay [2018] SASCFC 94
Case
[2018] SASCFC 94
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Nicholson and Bampton JJ, heard appeals against sentences imposed on six appellants. The appellants, who were members or associates of a newly established chapter of an outlaw motorcycle gang in South Australia, had been convicted of various offences including aggravated kidnapping, aggravated blackmail, and participating in a criminal organisation. The central dispute concerned whether the sentencing judge had erred in applying sentencing principles and whether the sentences imposed were manifestly excessive.

The court was required to determine whether the sentences imposed on the appellants were manifestly excessive and whether the sentencing judge had correctly applied relevant sentencing principles. This included considering the parity between co-offenders, the impact of guilty pleas, and the purpose of deterrence in sentencing. The appeals specifically challenged the length of the head sentences and the non-parole periods fixed by the sentencing judge.

The court allowed the appeal of Honar Pishdari, setting aside the original sentences and resentencing him to a total of 16 years imprisonment, with a non-parole period of 12 years and ten months. The court dismissed the appeals of Roberts, Mitchell, Johnston, and Reynolds. For Nathan Mackay, the appeal was allowed only to the extent of fixing a new non-parole period of three years, four months, and 20 days, to commence after the expiration of a Commonwealth sentence. The reasoning for these adjustments, particularly for Pishdari, involved a re-evaluation of the sentencing principles, including the application of parity and the weight given to different aspects of the offending conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
I would allow Mackay’s appeal to the extent only of setting a new non-parole period of three years, four months and 20 days to commence at the expiration of the Commonwealth sentence.Conclusion I would make the following orders with respect to each appeal.Pishdari1.Appeal allowed.2.Set aside the sentences imposed.3.The appellant is resentenced for counts 5 and 8 to one term of imprisonment for eight years, backdated to commence 27 May 2015.4.The appellant is resentenced for counts 11 and 12 to one term of imprisonment for eight years, to be served cumulatively on the sentence imposed for counts 5 and 8.5.A non-parole period of 12 years and ten months is fixed, commencing 27 May 2015.Roberts1.Permission to appeal granted on grounds 2 and 3.2.Appeal dismissed.Mitchell1.Appeal dismissed.Johnston1.Appeal dismissed.Reynolds1.Permission to appeal granted on ground 3.2.Appeal dismissed.Mackay1.Permission to appeal granted.2.Appeal allowed to the extent only of fixing a new non-parole period of three years, four months and 20 days to commence at the expiration of the Commonwealth sentence. BAMPTON J: In late 2014, the Nomads, an outlaw motorcycle gang (“OMCG”) which had a presence in other Australian states, established a chapter in South Australia. By the middle of 2016, following an investigation by the South Australian police (“SAPOL”), the Director of Public Prosecutions (“the Director”) had laid an Information alleging 12 counts against members and associates of the fledgling SA chapter.The Supreme Court Information dated 17 June 2016 Following an order for severance, three jury trials were held. Counts 11 and 12 were tried before the first jury (“trial 1”), counts 8 and 9 before a second jury (“trial 2”), and counts 5 and 7 before a third jury (“trial 3”). Guilty pleas were entered in respect of count 10. The Director entered a nolle prosequi in respect of counts 1, 2 and 3 on the Information. Honar Pishdari and Nathan Mackay were found not guilty of count 4. There was a directed acquittal in respect of count 6 charged against Idris Beedar. Ultimately, Honar Pishdari was found guilty by jury verdicts of:·aggravated kidnapping contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) – count 11 (trial 1);·aggravated blackmail contrary to s 172(1) of the CLCA – count 12 (trial 1); and·two counts of participating in a criminal organisation contrary to s 83E of the CLCA – count 5 (trial 3) and count 8 (trial 2).Mr Pishdari was sentenced to a head sentence of 20 years’ imprisonment and a non-parole period of 16 years was fixed. Luke Johnston was found guilty by a jury verdict following trial 1 of:·aggravated kidnapping contrary to s 39(1) of the CLCA – count 11; and·aggravated blackmail contrary to s 172(1) of the CLCA – count 12;and pleaded guilty to participating in a criminal organisation contrary to s 83E of the CLCA (count 7). Mr Johnston was sentenced to nine years and nine months’ imprisonment with a non-parole period of seven years and four months.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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