Samani v The Queen

[2017] ACTCA 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Samani v The Queen

Citation:

[2017] ACTCA 23

Hearing Date:

10 May 2017

DecisionDate:

18 May 2017

Before:

Elkaim, Mossop and Jagot JJ

Decision:

See paragraph [59]

Catchwords:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal against sentence – fraudulent conduct – obtaining financial advantage by deception – producing false or misleading documents – administration of justice offences – whether the sentences imposed at first instance were manifestly excessive – whether the sentencing judge could be satisfied that no penalty other than actual imprisonment was appropriate – whether an Intensive Corrections Order should have been considered.

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 10, 11, 12 and 77

Crimes (Sentencing Procedure) Act 1999 (NSW) s 5

Cases Cited:

EF v R [2015] NSWCCA 36

Markarian v R [2005] HCA 25; 228 CLR 357
Napper v Samuels (1972) 4 SASR 63
Rudolf v R [2016] NSWCCA 313
R v AB [2017] NSWCCA 88
R v Zamagias [2002] NSWCCA 17
Zdravkovic v R [2016] ACTCA 53
Zhuang v Director of Public Prosecutions (DPP) (NSW) [2016] NSWCCA 27

Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Parties:

Daryoush Zargari Samani (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr K Archer (Appellant)

Ms M Jones (Respondent)

Solicitors

Rachel Bird & Co (Appellant)

Office of Director of Public Prosecutions (Respondent)

File Number:

ACTCA 32 of 2016

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Burns J

Date of Decision:         9 August 2016

Case Title:  R v Samani

Citation: [2016] ACTSC 257

THE COURT:

1. On 9 August 2016, Burns J sentenced the appellant for six offences arising from his involvement in a ‘fake’ motor vehicle accident. A separate sentence of imprisonment was imposed in respect of each offence, leading to an aggregate sentence of two years and four months, commencing on 9 August 2016 and expiring on 8 December 2018. The sentence was suspended from 8 February 2017, from which point a Good Behaviour Order took effect for a period of two years.

1. The amended Notice of Appeal, filed on 12 September 2016, makes two complaints:

(a)The sentence imposed was manifestly excessive.

(b)His Honour failed to consider an Intensive Corrections Order (ICO). Consequently, he could not have been satisfied that no other penalty other than imprisonment was appropriate.

Whether the sentence was manifestly excessive

1. The principles applied in determining whether or not a sentence is manifestly excessive are often repeated. They involve a reaction to the sentence against the factual background of the offences. The starting point is, therefore, the facts behind the offences.

1. On 5 May 2014, with the cooperation of his brother-in-law and nephew, the appellant staged a motor vehicle accident in the Australian Capital Territory. The appellant was a passenger in a Toyota driven by his nephew. It collided with a Ford vehicle, driven by the appellant’s brother-in-law. The accident may be described as a ‘rear-ender’.

1. The accident had been…