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R v Zolfonoon

R v Zolfonoon

Case [2016] NSWCCA 250 10 November 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Zolfonoon [2016] NSWCCA 250
Hearing dates: 8 June 2016
Date of orders: 10 November 2016
Decision date: 10 November 2016
Before: Beazley P
Garling J
Fagan J
Decision:
(1)   Appeal allowed;
(2)   Quash the sentence imposed in the District Court on 11 December 2015;
(3)   In lieu of that sentence, impose an aggregate sentence on the respondent of a non-parole period of 10 years, commencing 29 August 2013, and concluding on 28 August 2023, with a balance of term of 5 years, concluding on 28 August 2028.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – whether sentence manifestly inadequate – supplying large commercial quantity of a prohibited drug – Drug Misuse and Trafficking Act 1985 s 25(2) – whether sentencing judge erred by double counting subjective features in assessing the appropriate sentence and finding special circumstances – whether sentencing judge erred by having regard to extraneous considerations not relevant to the sentencing exercise – whether sentencing judge erred by failing to consider principles of general deterrence, punishment and denunciation in fixing the non-parole period – whether sentence was manifestly inadequate by reference to the sentences imposed on co-offenders – whether sentencing Judge erred by failing adequately to accumulate indicative sentences when assessing aggregate sentences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Bugmy v R [1990] HCA 18; (1990) 169 CLR 525
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Caristo v R [2011] NSWCCA 7
CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 242 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mitreski v R [2015] NSWCCA 137
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Power v R [1974] HCA 26; (1974) 131 CLR 623
R v Brown [2012] NSWCCA 199
R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
R v Mereb; R v Younan [2014] NSWCCA 149
R v Wood [2012] NSWCCA 231; (2012) 84 NSWLR 581
The Queen v Pham [2015] HCA 39; (2015) 244 A Crim R 280
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Regina (Appellant)
Kamran Zolfonoon (Respondent)
Representation:
Counsel:
V Lydiard (Appellant)
B Walker SC / A Demal (Respondent)
Solicitors:
C Hyland – Solicitor for Public Prosecutions (Appellant)
Elie Rahme & Associates (Respondent)

File Number(s): 2013/262965,
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

11 December 2015

Before:

Whitford SC DCJ

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 Zolfonoon

Details

AGLC: R v Zolfonoon [2016] NSWCCA 250
Case: [2016] NSWCCA 250
Decision Date: 10 November 2016

CaseChat Overview and Summary

In the case, the Crown appealed against the sentence imposed on the defendant, Zolfonoon, who was convicted of supplying a large commercial quantity of a prohibited drug. The case was heard in the Court of Appeal. The primary issue before the court was whether the sentence imposed by the sentencing judge was manifestly inadequate. The Crown argued that the sentence was inadequate in light of the seriousness of the offence and the sentences imposed on co-offenders. Additionally, the Crown submitted that the sentencing judge had erred in several respects, including by double counting subjective features, considering extraneous factors, and failing to consider the principles of general deterrence, punishment, and denunciation in determining the non-parole period.

The court examined whether the sentencing judge erred by considering factors that were not relevant to the sentencing exercise. The Crown contended that the sentencing judge had regard to extraneous considerations, which impacted the sentence imposed. The court held that the sentencing judge had indeed erred by taking into account factors that were not relevant to the sentencing process. Furthermore, the court found that the sentencing judge erred by not adequately accumulating indicative sentences when assessing the aggregate sentences. The court also concluded that the sentencing judge had not sufficiently considered the principles of general deterrence, punishment, and denunciation in fixing the non-parole period.

The court determined that the sentence imposed was manifestly inadequate when compared to the sentences given to co-offenders. The Crown had successfully demonstrated that the sentence was inadequate in light of the circumstances of the case and the sentences imposed on co-offenders. Consequently, the court allowed the Crown's appeal against the sentence, quashed the original sentence, and remitted the matter to the sentencing judge for re-sentencing. The court emphasised the importance of adhering to the relevant principles and considerations in determining an appropriate sentence.

Orders