Shahbazi v The Queen - [2016] VSCA 270

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0082

SHAHROUZ SHAHBAZI	Applicant
V
THE QUEEN	Respondent

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JUDGES:	KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2016
DATE OF JUDGMENT:	16 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 270
JUDGMENT APPEALED FROM:	DPP (Cth) v Kazemi and Shahbazi [2016] VCC 431 (Judge Lawson)

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CRIMINAL LAW – Appeal – Sentence – Parity – Applicant and co-offender pleaded guilty to two charges of importation of marketable quantity of border controlled drug (methylamphetamine) – Whether open to judge to impose different sentences on applicant and co-offender – Guilty pleas – Relevantly similar personal circumstances – Different roles – Applicant organising importation with contacts in Iran – Co-offender arranging safe house in Australia – Principle of parity not infringed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC	Garde Wilson Lawyers
For the Respondent	Mr B Stevens	Solicitor for Public Prosecutions (Cth)

KAYE JA:
McLEISH JA:

On 15 October 2015, the applicant and his co-offender Hadi Kazemi (‘Kazemi’) each pleaded guilty to two charges of importing a commercial quantity of a border controlled drug, methamphetamine, contrary to subsection 307.1(1) of the Criminal Code 1995 (Cth). On 14 April 2016, the applicant was sentenced to an aggregate term of 8 years and 6 months’ imprisonment, with a non-parole period of 5 years and 6 months on both charges. Kazemi was sentenced on the same charges to an aggregate term of 7 years’ imprisonment with a non-parole period of 4 years.[1] The applicant seeks leave to appeal on the ground that the disparity in sentences between himself and Kazemi was not reasonably open in all the circumstances.
[1]DPP (Cth) v Kazemi and Shahbazi [2016] VCC 431 (‘Reasons’).

Circumstances of the offending

The applicant and Kazemi were charged in relation to a joint enterprise to import a commercial quantity of methamphetamine into Australia in two successive consignments. The total net weight of pure methamphetamine imported in those consignments was 3.3 kilograms. The estimated wholesale value was between $820,000 and $902,000. The estimated street value is more than $4,000,000.

Charge 1 related to the period between 10 October 2014 and 19 December 2014. On 11 December 2014, a brown Pierre Cardin suitcase containing clothes and shoes arrived in Australia from Armenia. Under the lining of the suitcase were four hard plastic panels, underneath which was 2,138.7 grams of methamphetamine of 79.1 percent purity. The total net weight of the consignment was 1.69 kilograms pure methamphetamine.

Charge 2 related to the period between 10 October 2014 and 20 December 2014. On 20 December 2014, a black Pierre Cardin suitcase, containing clothes and shoes, arrived in Australia. As with the consignment that was the subject of charge 1, under the lining of the suitcase were four hard plastic panels, underneath which was 2,008 grams of methamphetamine with a purity of 80.3 percent. The net weight of the pure methamphetamine was 1.61 kilograms.

The…

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.

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Details

Case: [2016] VSCA 270
Decision Date: 16 November 2016

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant, Shahbazi, against the sentence imposed by the trial judge. Shahbazi and his co-offender had pleaded guilty to two charges of importing a marketable quantity of a border controlled drug, specifically methylamphetamine. The crux of the appeal lay in the sentence disparity between Shahbazi and his co-offender, despite their similarly culpable roles in the crime and personal circumstances. The trial judge had acknowledged the similar personal backgrounds of the two offenders but had found that Shahbazi's role in organising the importation, including maintaining contacts in Iran, warranted a harsher sentence compared to the co-offender, who had merely arranged a safe house in Australia.

The primary legal issue the court had to resolve was whether the trial judge was correct in imposing different sentences on Shahbazi and his co-offender, given their respective roles and the principle of parity in sentencing. The applicant contended that the principle of parity required equal sentences for similarly situated offenders. However, the court needed to examine whether the roles played by each offender and the extent of their involvement warranted differing sentences. The court also considered whether the judge's sentence reflected an appropriate balance between deterrence, retribution, and the personal circumstances of the offenders.

The court ruled that the trial judge was not bound by the principle of parity to impose identical sentences on Shahbazi and his co-offender. It was established that while the principle of parity ensures fairness in sentencing, it does not require identical sentences for all offenders. The judge had appropriately considered the differing roles and levels of involvement of each offender in the crime. Shahbazi's role as the orchestrator of the importation, which involved significant planning and international coordination, justified a harsher sentence compared to his co-offender, who played a more peripheral role. Consequently, the court held that the trial judge's decision to impose different sentences did not infringe the principle of parity, and the application for leave to appeal was dismissed.

Orders