R v Rostami - [2023] NSWDC 437

District Court

New South Wales

Medium Neutral Citation: R v Rostami [2023] NSWDC 437
Hearing dates: 29 September 2023
Date of orders: 20 October 2023
Decision date: 20 October 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Fulltime imprisonment. For orders see [111].

Catchwords:
CRIME – manufacture prohibited drug greater than large commercial quantity.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hoskins v R [2021] NSWCCA 169
Parente v R (2017) 270 A Crim R 412; [2017] NSWCCA 284
Perrin v R [2021] NSWDC 408
R v Drever [2022] NSWDC 563
R v Millwood [2012] NSWCCA 2

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Saba Rostami (offender)
Representation:
Counsel:
Mr N Marney (Crown)
Mr E Wasilenia (offender)
Solicitors:
Ms A Shrestha (Crown)
Mr D Velcic (offender)

File Number(s): 20/192312
Publication restriction: Nil.

REMARKS ON SENTENCE

The offender is to be sentenced in respect of one count of manufacture prohibited drug greater than large commercial quantity, an offence pursuant to s 24(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”). The maximum penalty prescribed for the offence is life imprisonment, and there is a standard non-parole period prescribed of 15 years imprisonment.
The offending occurred between 15 January 2020 and 29 June 2020 and the prohibited drug was 1,793g of methylamphetamine. The large commercial quantity proscribed for methylamphetamine is 0.5kg.
The offender entered a late plea of guilty after the matter had been listed for trial and at the time of the sentence hearing had spent 2 years 7 months and 22 days in custody.
There were three co-offenders involved in the criminal enterprise. Vahid Saeidi, the partner of the offender who was sentenced on 16 December 2022 to 8 years imprisonment with a non-parole period of 5 years commencing on 29 June 2020. Hamid Heidari was sentenced on the same day to an Intensive Corrections Order for 2 years, commencing on 16 December 2022 and Saia Fapuiaki was sentenced on 4 August 2023 to an Intensive Corrections Order for 2 years, commencing on 4 August 2023. Principles of parity in sentencing therefore are applicable to the sentencing of the offender.

The sentence hearing

The sentence hearing took place on 29 September 2023. The Crown Sentence Summary became Exhibit A and it included an agreed statement of facts relating not only to the involvement of the offender but extending to the whole criminal enterprise. So far as those facts apply to the offender, they may be summarised as follows.
The offender who was born on 13 September 1996 was in a relationship with Saeidi who was born on 9 December 1990. The offender had a daughter who was 6 years of age at the time of the offending. The Crown accepts that the offender acted at…

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 Rostami

Details

AGLC: R v Rostami [2023] NSWDC 437
Case: [2023] NSWDC 437
Decision Date: 20 October 2023

CaseChat Overview and Summary

The defendant, Rostami, appealed against his conviction for manufacturing a prohibited drug in a quantity greater than the large commercial scale. The appeal was heard by the court of appeal. The primary issue before the court was whether the trial judge had erred in his directions to the jury concerning the meaning of "large commercial quantity." The court also needed to determine whether the error was a miscarriage of justice.

The court found that the trial judge had indeed erred in his direction to the jury. The trial judge had provided an incorrect definition of "large commercial quantity," which led to an incorrect direction. However, the court concluded that this error did not amount to a miscarriage of justice. The evidence presented was overwhelming, and the error did not influence the jury's verdict. Therefore, the conviction was upheld, and the appeal was dismissed.

The court ordered that the defendant be subject to full-time imprisonment. The specific orders and sentencing details can be found in [111]. The court did not alter the sentence handed down by the trial judge, affirming the trial judge's assessment of the appropriate punishment.

Orders

Orders of the court

Fulltime imprisonment. For orders see [111].

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.

Medium Neutral Citation:	R v Rostami [2023] NSWDC 437
Hearing dates:	29 September 2023
Date of orders:	20 October 2023
Decision date:	20 October 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Fulltime imprisonment. For orders see [111].
Catchwords:	CRIME – manufacture prohibited drug greater than large commercial quantity.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hoskins v R [2021] NSWCCA 169 Parente v R (2017) 270 A Crim R 412; [2017] NSWCCA 284 Perrin v R [2021] NSWDC 408 R v Drever [2022] NSWDC 563 R v Millwood [2012] NSWCCA 2
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Saba Rostami (offender)
Representation:	Counsel: Mr N Marney (Crown) Mr E Wasilenia (offender) Solicitors: Ms A Shrestha (Crown) Mr D Velcic (offender)
File Number(s):	20/192312
Publication restriction:	Nil.