Esfehani-Bahadori v The King - [2023] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA379/2022
[2023] NZCA 146

BETWEEN	FARSHAD ESFEHANI-BAHADORI Appellant
AND	THE KING Respondent

CA470/2022
BETWEEN	JALAL ASMATULLAH SAFI Appellant
AND	THE KING Respondent

Hearing:	28 March 2023
Court:	French, Dunningham and Cull JJ
Counsel:	T M Cooper KC and O Kazmierow for Mr Esfehani-Bahadori M J Taylor-Cyphers for Mr Safi J V Barry for Respondent
Judgment:	9 May 2023 at 2.15 pm

JUDGMENT OF THE COURT

AMr Esfehani-Bahadori’s appeal is dismissed.
BMr Safi’s appeal is allowed.
CMr Safi’s sentence of 11 years’ imprisonment is quashed and is substituted with a sentence of 9 years and six months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

The appellants were both convicted following a police investigation, codenamed Operation Maddale, into a significant methamphetamine distribution syndicate run out of an Auckland car yard.
Mr Esfehani-Bahadori was sentenced by Judge Muir in the District Court at Auckland to five years and six months’ imprisonment on three counts of possession of methamphetamine for supply.[1]
[1]R v Esfehani-Bahadori [2022] NZDC 14540 at [30].
Mr Safi was sentenced by Judge Gibson in the District Court at Auckland to 11 years’ imprisonment on two charges of possession of methamphetamine for supply and one of money laundering arising out of the same operation, as well as subsequent charges which arose from offending when he was on electronically-monitored (EM) bail for the methamphetamine offending.[2] These included a further possession of methamphetamine for supply charge, two firearms charges, a charge of dangerous driving, and a charge of operating a vehicle in a race.
[2]R v Safi [2022] NZDC 16499 at [32].
Both men appeal their sentences on the grounds they were manifestly excessive.
Mr Esfehani-Bahadori says:
(a)the Judge adopted a starting point which was too high; and
(b)he received insufficient credit for mitigating factors, including for s 27 factors and his relative youth.
Mr Safi says:
(a)the Judge adopted a starting point which was too high;
(b)inadequate discounts were given in respect of personal factors, including addiction; and
(c)the end sentence offends the principles of totality and parity.

Facts of the offending

Mr Esfehani-Bahadori

During the Operation Maddale investigation, the police found that significant quantities of methamphetamine were being distributed from commercial premises operating as a car sales yard on Bentinck Street in Auckland. Through the use of covert surveillance, Mr Esfehani-Bahadori was seen making three trips to this address, each time with Mr Slaimankhel and other associates, where they purchased commercial quantities of methamphetamine for cash. The quantities of methamphetamine transacted on each occasion were:
(a)15 November 2018: one to two kilograms. Mr Safi was also involved in this transaction.
(b)4 December 2018: at least one kilogram.
(c)17 December 2018: at least half a kilogram.
In all, Mr Esfehani-Bahadori was convicted for being in possession of at least 2.5 kilograms of methamphetamine for supply.

Mr Safi

In Mr Safi’s case, his offending involved two trips to Bentinck Street, each time with Mr…

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.

Keep reading for free

Create a free CaseChat account to read Esfehani-Bahadori v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZCA 146
Decision Date: 9 May 2023 at 2.15 pm

CaseChat Overview and Summary

In Esfehani-Bahadori v The King and Safi v The King, the Court of Appeal reviewed the sentencing of two appellants, Mr Esfehani-Bahadori and Mr Safi, who were convicted of drug-related offences as part of a methamphetamine distribution syndicate. Both appellants appealed their sentences, arguing they were manifestly excessive. Mr Esfehani-Bahadori contended that the starting point was too high and he did not receive sufficient credit for mitigating factors, including s 27 factors and his relative youth. Mr Safi argued that the starting point was too high, inadequate discounts were given in respect of personal factors, including addiction, and the end sentence offends the principles of totality and parity.

The Court dismissed Mr Esfehani-Bahadori's appeal. The Court found that while his role had some indicia of being a lesser role, there was no suggestion that his culpability was reduced by factors such as a drug addiction or coercion. The Court was satisfied that Mr Esfehani-Bahadori was willing to play his part as a member of the Comancheros gang and there appeared to be at least some financial motivation for offending. The Court found that the Judge appropriately placed him at the bottom of band five having regard to both the quantity of drugs involved and the role he played in the operation. The Court also found that the discount afforded was not in error and the end sentence of five years and six months' imprisonment was clearly not excessive.

The Court allowed Mr Safi's appeal. The Court found that the starting point for the subsequent offending was too high, having regard to both totality and parity. The Court found that an 18-month uplift to reach a 12-year starting point for the totality of the offending would have fairly reflected Mr Safi's relative culpability. The Court also found that the Judge was not wrong when he concluded there was no causal connection between Mr Safi's background and his offending. The sentence of 11 years' imprisonment was quashed and a sentence of nine years and six months' imprisonment was imposed.

Orders