Al Shamari v R

Court of Criminal Appeal (NSW)|2024-06-14|Before: Kirk JA, Campbell J, McNaughton J, McNaughton JJ

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Mr Adel Al Shamari, was found guilty by a jury of aggravated kidnapping (in company) contrary to s 86(2) of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 3 months, to date from 1 December 2022. He sought leave to appeal that sentence. The applicant had four grounds of appeal. By ground 1 he challenged the sentencing judge's application of the standard of proof to fact-finding on sentence, which had a consequential effect on the assessment of the objective seriousness of the offending, the applicant's moral culpability, and the relative roles of the co-offenders in the offending conduct. By ground 2 he argued that the sentencing judge erred in finding, as against him, that the offending conduct involved planning. Ground 3 was that the sentence imposed resulted in a justifiable sense of grievance when compared to that imposed on Mr Mirnezami, a co-offender. Ground 4 was that the sentencing judge gave inadequate or no reasons for determining that the criminality of the applicant was slightly higher than that of Mirnezami, and erred in identifying and determining the facts on which her Honour reached that conclusion. The Court (Kirk JA, Campbell and McNaughton JJ agreeing) dismissed the appeal and held: Grounds 1 and 4:

JUDGMENT

KIRK JA: The applicant, Mr Adel Al Shamari, was found guilty by a jury of aggravated kidnapping (in company) contrary to s 86(2) of the Crimes Act 1900 (NSW). On 2 March 2023 he was sentenced by Herbert DCJ, who had also overseen the trial. Her Honour sentenced him to a term of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 3 months, to date from 1 December 2022.
The applicant has sought leave to appeal that sentence. The matter had been listed for hearing in this Court on 1 May 2024 by a differently constituted bench. When that hearing commenced it emerged that the wrong version of the applicant's written submissions had been filed and served, being an earlier draft. In a later draft the applicant had sought to rely on an additional, third ground of appeal. That hearing was vacated and the matter listed again before the bench as now constituted on 14 June 2024. At that hearing new senior counsel appeared for the applicant who had not been responsible for preparing either set of written submissions. In the course of argument he sought to add a fourth ground of appeal, albeit one which was closely tied to the first ground raised. The Crown did not oppose that grant of leave on the basis that it was provided with the opportunity to provide further written submissions. On that basis the Court granted leave. Neither side sought a further oral hearing on that ground.
The applicant's grounds of appeal, in the end, were as follows: Ground 1 - Her Honour erred in her application of the standard of proof to findings of fact on sentence, which error affected the assessment of the objective seriousness of the offending, the applicant's moral culpability, and the relative roles of the co-offenders in the offending conduct. Ground 2 - Her Honour erred in finding, as against the applicant, that the offending conduct involved planning. Ground 3 - The sentence imposed on the applicant has resulted in a justifiable sense of grievance, when comparing the sentence imposed upon Mr Mirnezami, the co-offender. Ground 4 - Her Honour erred by giving inadequate reasons or no reasons for determining that the criminality of the applicant was slightly higher than that of Mr Mirnezami, and in identifying and determining the facts on which she reached that conclusion.
It is convenient to address grounds 1 and 4 together. As will be seen, the fourth ground of appeal is made out, although the first is not. Ground 2 is not made out. It is convenient to address the parity issue raised by ground 3 when addressing resentencing. In my view, on resentencing, no lesser sentence is warranted. In this context leave to appeal should be granted but the appeal dismissed. It is appropriate to begin by outlining the background to the appeal.

Background

The following summary of the facts is taken in substance from the sentencing judgment. Her Honour's findings were not challenged by the applicant except with respect to the number and nature of the assaults committed by him and the issue of planning and, leaving those issues aside for the moment, can be accepted. The applicant acknowledged in submissions to this Court that by reason of the jury verdict the victim was accepted as a credible witness, and that on resentencing it would be open to the Court to consider his account of events to have been proved beyond a reasonable doubt.
There were four offenders involved in the offence: the applicant, Mr Hossein Mirnezami, Ms Nada Hamze, and Ms Wafaa Al Shamari (the applicant's sister, whom it is convenient to refer to by her first name to avoid confusion with the applicant).
The victim, Mr Alija Magjarraj, had helped to arrange a mortgage for Wafaa. The victim and Wafaa then agreed to start a business together. He paid her some money by cheques for the business in May 2021. The business relationship deteriorated. The victim tried to cancel the cheques and asked for his money to be returned.
On 24 May 2021 a safe belonging to Wafaa containing a large sum of money was stolen from her parents' home. She believed that the victim was responsible for the theft of the safe.
Call charge records confirm that between 4.28pm and 5.04pm that day Wafaa, Hamze and Mirnezami were in contact with each other. At 4.43pm Wafaa called the victim and asked him to meet her. He agreed to meet her at the food court at Merrylands Stockland Mall. They met there at 5.15pm. Hamze, who had driven Wafaa there in Wafaa's car, remained in the car park. Mirnezami arrived and joined the victim and Wafaa at the food court. There was a discussion about Wafaa's missing money and whether it had been taken by Hamze. It was agreed to go to Hamze's home in Namur Street, Granville. The three of them drove there in the victim's car. Hamze also went to the house, driving Wafaa's car. There was evidence that the car containing the victim left the shopping centre at 6.03pm, and that it took about 11 minutes to drive to the house from there.
The parties all walked into the house together. The victim suggested looking around for the missing money. He did so for approximately 15 minutes and then waited inside the house for another 15 minutes.
The victim then said - at about 6.45pm - that he had to go and walked towards the front door. Mirnezami said he could not leave and stood in front of the front door. This was the start of the victim's detention. The victim told the offenders that he had to leave and tried to walk past Mirnezami. Mirnezami grabbed the victim around the chest and pushed the victim back away from the door. Wafaa and Hamze were nearby watching what had occurred. Mirnezami held a small sharp object against the left side of the victim's neck, below his jaw, which caused the victim pain and blood to drip onto his shirt. Mirnezami continued to hold the sharp object against the victim's neck before he stepped back and stood about a metre away. The victim again said that he had to go, and Hamze gave him a tissue. Wafaa, Hamze and Mirnezami asked the victim for his mobile phone and for its PIN. He handed two phones to Wafaa and provided the PIN details. The victim felt he would be assaulted if he did not do so. The three offenders searched through the phones. Wafaa and Hamze took photographs using their own phones of pictures on the victim's phone.
At about this point the applicant and another member of his family, Mona Al Shamari, arrived at the house. According to the victim this occurred about 45 minutes to an hour after Mirnezami had held the knife to his neck (and thus in the period 7.30pm to 7.45pm). The Crown's position was that it was only upon the applicant's arrival that he joined the joint criminal enterprise of the other three involving the kidnapping of the victim.
The victim handed his wallet to the applicant who searched through it. The victim asked both Wafaa and the applicant "What is this all about? What is this?". The applicant told the victim that someone had taken his sister's money and they wanted it back.
The victim was then escorted out of the house and taken for a drive with Hamze driving, Wafaa in the front seat, and Mirnezami sitting next to the victim in the rear seat. The applicant remained at Hamze's house. During the drive, Wafaa demanded money from the victim, saying that she would kill him. They drove back to Hamze's house.
Having re-entered the house, the sentencing judge found that the applicant repeatedly threatened the victim. The victim attempted to leave the residence a few times but was stopped from doing so.
Her Honour made certain findings about physical assaults of the victim by the applicant. These findings are addressed below in considering ground 4. Her Honour noted that both the applicant and Mirnezami were much younger and much larger than the victim.
The applicant continued to threaten the victim and make demands for the return of the money. He told the victim that if he did not give the money then the victim would never see his children again and he was told that they had photographs of the victim's children. The victim told the applicant that he did not have that much money. The applicant said "If you want to see your children, find that money or else I'll take your fingers off". The applicant then placed the victim against a table in the living room. He put the victim's right hand on the table and spread the victim's fingers out. The applicant was in possession of a knife. Her Honour said that the victim also saw that he had knuckledusters with him (the applicant disputes this point, as addressed below). Mona Al Shamari intervened and said to the applicant words to the effect of "Don't do it".
At one stage, Mirnezami was in possession of the victim's registration plates which had been removed from his vehicle.
The victim was eventually given back his keys and phones and told not to forget the money. He was allowed to leave Hamze's house. The victim went to his car and called his wife to tell her what had occurred. The victim was crying when he called his wife. She said that she had never previously known him to cry. When he arrived home his wife saw the rear registration plate of the vehicle was missing.
The victim's call to his wife was made at 8.46pm, thus the applicant had been involved in the detention for between a maximum of about 1 hour and 1 hour and 15 minutes (starting from between 7.30 and 7.45pm), although for some of this time the victim was being driven around without the applicant being present. The sentencing judge accepted that the relevant period for the applicant was less than 1 hour.
The police searched Hamze's house the next day, 25 May 2021. They located tissues containing blood consistent with being from the victim, and a knife with DNA consistent with being from the victim and the applicant.
Analysis of phones revealed that after the events Wafaa engaged in various conversations in messages, including one with the applicant about the house being watched and to be careful, and another with Mirnezami in which she said that she had another address for the victim, the names of the victim's two businesses and the suburb where the victim lived. Hamze had also sent a message to Mirnezami containing a photograph of the victim.
The applicant and Wafaa were tried together on a count of specially aggravated kidnapping contrary to s 86(3) of the Crimes Act, for which the maximum penalty is 25 years imprisonment. The aggravating factors for that offence are being in company and actual bodily harm to the victim being occasioned. There was a statutory alternative charge of aggravated kidnapping, with a maximum penalty of 20 years imprisonment. That charge did not involve the element of actual bodily harm. Wafaa was found guilty of the more serious charge. The applicant was found not guilty of that charge but guilty of the alternative charge. The jury were thus not persuaded that he had participated in causing actual bodily harm to the victim. He had arrived after Mirnezami had held a sharp object to the victim's neck, causing him to bleed.
The sentencing hearing for the applicant and Wafaa occurred on 24 February 2023. Her Honour delivered judgment dealing with both six days later on 2 March 2023. Her Honour described Wafaa as the instigator of the offence. She was sentenced to 5 years imprisonment with a non-parole period of 3 years. Her Honour had found special circumstances as regards both offenders when setting the non-parole periods.
At the time of the sentence hearing Mr Mirnezami had pleaded guilty to the more serious charge under s 86(3) and had been sentenced. He received a 10% discount on sentence for that (late) plea, and was sentenced by another judge - Hanley DCJ - to a term of imprisonment of 3 years 6 months, with a non-parole period of 22 months. Hamze had also pleaded guilty. She was awaiting sentence at the time of the applicant's sentencing hearing. She was subsequently sentenced by the sentencing judge to a term of imprisonment of 2 years and 4 months, with a non-parole period of 1 year and 4 months, after a discount had been applied.

Grounds 1 and 4 - fact-finding and reasons

Ground 1 asserts that the sentencing judge erred in her application of the standard of proof to findings of fact on sentence. That claimed error was said to have affected her Honour's assessment of the objective seriousness of the offending, the applicant's moral culpability, and the relative roles of the co-offenders in the offending conduct.
Written material provided to the sentencing judge by the Crown referred to the need for relevant facts needing to be proved beyond reasonable doubt, being the Crown's "Facts on Sentence" document and its written submissions. Even more clearly, the applicant's written submissions below referred to case law dealing with the point, and said "any findings of facts that are adverse to the offender must be proved beyond reasonable doubt". Both the Crown and the sentencing judge also referred to the point in oral submissions.
The principle that facts adverse to an offender must be proved beyond reasonable doubt for the purposes of sentencing is simple and foundational in Australian law. Her Honour did not mention that principle in her judgment, although it was apposite given that there were disputes between the parties as to the facts upon which the applicant should be sentenced. It would have been appropriate in that context for her Honour to acknowledge in terms the need to apply that standard of proof.
That being said, the sentencing judge has long experience in criminal law. She would have applied that principle hundreds of times, and her awareness of it was manifest in the exchanges she had with counsel for the Crown. Of course, even very experienced judges may make errors. As I presently shall address, in my view her Honour did not give adequate reasons for the conclusions she reached on issues of disputed fact. That is sufficient to uphold ground 4, and the appeal. However, I am not persuaded that her Honour erred by failing to apply the criminal standard of proof to the fact finding. That is so taking account of the basal nature of the principle, the materials provided to her Honour which referred to it, the exchanges in submissions, the fact that the judgment was delivered only six days after those exchanges, and the fact that there is nothing in particular in the judgment to suggest that her Honour applied something less than the criminal standard of proof in her fact finding. That the sentencing judge did not give sufficient reasons for the conclusions she reached does not establish of itself that she applied the wrong standard of proof in reaching those conclusions.
In addressing ground 1 the applicant raised two particular complaints about the following part of her Honour's reasons (emphasis added): I do not accept that the Court should find that the absence of visible injuries to the victim as a result of the blows struck by Adel Al Shamari reduces the objective seriousness of the offence. The jury convicted the offender on the basis that it could not be established that actual bodily harm was caused to the victim once Adel Al Shamari joined the joint criminal enterprise to detain the victim. The absence of a factor which would aggravate an offence does not amount to a mitigating factor. I do not accept that the Court would find that the victim embellished his evidence as to being hit by Adel Al Shamari. He described being hit by Adel Al Shamari in evidence-in-chief at 49.43 as "not hard". When asked about an injury at page 54, he said "Just a little…it was a small injury, not a big injury… It did hurt for a while".
As to the reference to mitigation, it was suggested that her Honour misunderstood the applicant's submissions as to the lack of evidence of injury as being a submission going to mitigation. It was said that it may be inferred her Honour considered the applicant was advancing a matter that needed to be proved on the balance of probabilities. Yet her Honour was merely correctly acknowledging that assault occasioning actual bodily harm had been rejected by the jury in relation to the applicant, thus he was not to be sentenced on the basis of such harm, and also noting that the absence of such an assault would not be a mitigating factor. As is implicit in the first sentence just quoted, her Honour treated the physical assaults of the victim by the applicant as going to the objective seriousness of the offence.
The applicant argued that the statement that "I do not accept that the Court would find that the victim embellished his evidence as to being hit by Adel Al Shamari" involved a reversal of the onus of proof. In context, her Honour's statement was simply rejecting the suggestion in the applicant's written submissions that given there were no visible injuries in the four photos taken of the victim after the event he had been "embellishing in his account of the alleged assault".
Ground 4, being the ground raised at the (second) hearing of the appeal, suggests that her Honour erred by giving inadequate reasons or no reasons for determining that the criminality of the applicant was slightly higher than that of Mirnezami, and in identifying and determining the facts on which she reached that conclusion.
The requirement to give reasons is a normal, though not universal, incident of the judicial process: Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 666-667. There is no immutable standard for the reasons required of a judge. It will vary according to the circumstances. Nevertheless, there are general principles about what is required to fulfil that duty. The following explanation was given in Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604: [43] … the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties' cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.
There is no "requirement that a decision maker provide a lengthy exposition of the law and survey all of the evidence and submissions": Kelly v R [2024] NSWCCA 101 at [78]. However, "reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion": DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [33].
The focus of the applicant's complaint on this ground was her Honour's findings of fact with respect to the number and nature of the physical assaults perpetrated by the applicant on the victim. The Crown submitted that it was not clear from the applicant's written submissions below that there was a dispute on this issue. That may be so, but the existence of such a dispute did become apparent in the course of the oral submissions made by counsel then appearing for the applicant, as the Crown accepted. The dispute of fact relating to the physical assaults was material to the sentencing exercise. It could be treated as a matter going to the objective seriousness of the applicant's criminal conduct, as the Crown had sought. That is how her Honour took it into account. In this context it was necessary for her Honour to give reasons as to why she made the findings that she did to resolve the dispute between the parties.
Her Honour found as follows with respect to the physical assaults occasioned by the applicant: Adel Al Shamari punched the victim to the head, above the victim's eyebrow a number of times. The victim felt pain to his head around his ear. At this point, the blood was still trickling from the previous neck injury. … On one occasion, Adel Al Shamari and Mr Mirnezami pushed the victim into a chair in the lounge room and told the victim to "Sit". On another occasion, Adel Al Shamari pushed the victim to the ground, held him down and punched him to the head and body. The victim was unsure how many times he was struck. The victim was punched and slapped to his head by Adel Al Shamari a few times causing him to fall to the ground.
It is not clear if the last quoted sentence is meant to describe a further distinct set of attacks, or was a summary of what had occurred before. It can be read either way. Both parties to the appeal read it as being a distinct finding of assault.
The Crown had provided the sentencing judge with a document called "Crown facts on sentence following trial", setting out the findings of fact it proposed against both the applicant and Wafaa. These proposed findings were, unhelpfully, not referenced to particular evidence. It appears that the Crown relied substantially on the evidence given at trial by the victim, but also relied to some extent on evidence given by Mirnezami at the applicant's trial. Mirnezami had pleaded guilty based on an agreed statement of facts, upon which statement the Crown sought to draw. At the beginning of his evidence at the trial of the applicant and Wafaa he agreed (through an interpreter) that he had signed the agreed statement after it had been read and interpreted to him, and agreed that signing it was an indication that its contents were true and correct. However, subsequently he sought to backtrack from some of what was said in the agreed facts as it related to others, saying for example: "I just agreed and signed, I did things that I pleaded guilty to. I just told that I know what I did, but I don't know about what others did". He also said that his drug use and the passage of time had affected his ability to remember the events in question.
The applicant submitted that some of the findings of fact made by the sentencing judge seem to have been based upon acceptance of parts of what Mirnezami had said in the statement of agreed facts he had signed, parts of which he had distanced himself from in his evidence at the trial. The Crown did not dispute that submission. It put to this Court that the sentencing judge "was entitled to accept the truth of the representations contained in Mirnezami's Agreed Facts". Indeed, it went on to submit as follows: There were only two possible sources of evidence on which those factual findings [of the sentencing judge] could be based: the evidence of the victim and the evidence of Mirnezami. In those circumstances her Honour was not required to specify those sources in order adequately to demonstrate the process of reasoning by which she arrived at the factual finding.
A witness backtracking from an earlier statement, as Mirnezami did, is a not unfamiliar occurrence. The finder of fact may consider that the earlier statement is sufficiently reliable as to found a conclusion of fact beyond reasonable doubt. But when a judge is the finder of fact in the context of a dispute as to the facts, as here, it is necessary for them to give reasons for choosing to accept that evidence in the face of the later distancing or disavowal by the witness. That reflects the need for a judge to explain a conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion (see above at [34]-[35]). Her Honour did not address the extent to which her findings were based upon the evidence of Mirnezami, let alone give reasons for choosing to accept parts of his prior agreed statement of facts in the context outlined.
In the circumstances her Honour failed to comply with the legal duty to give adequate reasons. That failure goes to factual matters which were material to the assessment of objective seriousness of the offence, and material to the sentencing exercise. Ground 4 is thus made out.
The Crown submitted that if this ground was established then the matter should be remitted to the sentencing judge, rather than this Court resentencing itself. There is some force in that submission. As already noted, the applicant accepted that the evidence of the victim could be accepted as credible, and that this Court could consider his account of events to have been proved beyond a reasonable doubt. But, obviously enough, no such concession was made in relation to Mirnezami. The sentencing judge had the benefit of seeing him give evidence. This Court is not in a position to make a meaningful assessment of the extent to which his earlier statements should be accepted in light of his oral evidence.
However, without seeking to resolve when it would be appropriate to remit a matter such as this, one factor leads to the conclusion that it should not be ordered in this case. The applicant's sentence was dated to commence from 1 December 2022, and his non-parole period expires on 28 February 2025. The possibility of imposing a shorter non-parole period on resentence should be addressed reasonably promptly. This Court should thus consider the issue itself. The topic of resentencing is addressed below.
It is convenient to address here what facts should be found in relation to the nature and number of assaults physically perpetrated by the applicant. In considering that issue it is safest to set the evidence of Mirnezami to one side and to rely only on the evidence of the victim. That evidence, which was given through an interpreter, is not entirely clear on this topic. However, it is not necessary to parse what was said at any length. Both sides quoted the key relevant passage of evidence in their written submissions. In the applicant's submissions, having done so, the following was said: It is accepted that the above evidence is capable of supporting a finding that the applicant knocked the victim to the ground "a few times", pushed the victim, held the victim down and hit him to the body. The evidence is incapable of supporting a finding of more than one hit to the head, which the victim only thought may have been a punch. The force of any assaults were, on the victim's evidence, "not hard" or "not that forceful". Consistent with the jury verdict, the strikes to the body were not of sufficient force to cause bruising or other actual bodily harm.
That is a fair summation of what can be drawn from the victim's evidence. The applicant noted that the victim gave evidence that at least one of the times he was knocked to the ground this was by the applicant using his fist. He submitted that these physical assaults occurred after the victim returned from the brief drive away from Hamze's house (consistently with what the sentencing judge found).
As the applicant's submissions accepted, the victim described the incident in which the applicant threatened to cut off the applicant's fingers, and the victim indicated that he saw both the applicant and Mirnezami with a knife. The victim's evidence with respect to who had the knuckledusters out of Mirnezami and the applicant was not entirely consistent. I am not persuaded beyond reasonable doubt that the applicant showed the victim knuckledusters (contrary to the findings of the primary judge).
The applicant's position in relation to the threat made to the victim and his family was not entirely clear. In any event, the victim gave clear evidence that the applicant said "if he didn't get the money he's going to kill - he will kill me and my children".
I find that the relevant facts are as set out in the preceding four paragraphs. These facts are somewhat different from those found by the sentencing judge, but not substantially so.

Ground 2 - whether applicant involved in planning

When addressing objective seriousness the sentencing judge said "[t]here was clearly some planning involved, the offence was not impulsive". Ground 2 asserted that her Honour erred insofar as this finding suggested that the applicant had engaged in planning. It can be accepted that the reference to "the offence" is ambiguous, as her Honour was sentencing two offenders for two offences. The better view is that her Honour was only talking about Wafaa when making that statement. Wafaa had engaged in planning. The sentence following the one impugned refers expressly to Wafaa. Moreover, it is apparent that her Honour proceeded on the basis that the applicant only joined the joint criminal enterprise when he arrived at Hamze's house. In the Crown's written submissions to the sentencing judge it expressly accepted that "there is no evidence to suggest that this offender was involved in the planning of the commission of the offence". The applicant's written submissions below referred to and agreed with this statement.
I am not persuaded that this ground is made out. For the avoidance of doubt, in resentencing I will proceed on the basis that the applicant had not engaged in planning the offence.

Parity and resentencing

The focus of the applicant's submissions on resentencing was a comparison with the sentence imposed on Mirnezami, taking account of the comparative criminality and objective seriousness of their actions. There was no criticism of her Honour's analysis or findings on sentence other than with respect to that comparison, the linked issue of the facts relating to the assaults committed by the applicant, and the issue of planning just addressed.
The applicant's third ground of appeal asserts that the applicant has a justifiable sense of grievance when comparing his sentence to that imposed upon Mirnezami. No complaint was made in relation to the sentences imposed on Wafaa or Hamze. Strictly it is not necessary to address this ground given that ground 4 has been upheld. However, the submissions put on this point were linked with the submissions made on comparative culpability, so it is appropriate to address the parity submissions as part of the resentencing exercise.
The facts on which the applicant falls to be resentenced are as set out above at [6]-[22], save in relation to the matters in dispute with respect to the number and nature of the physical assaults perpetrated by the applicant on the victim, where the facts are set out at [45]-[48] above. Further, as noted, I accept that the applicant had not engaged in planning the offence. I have taken account of the materials that were before the sentencing judge, including a sentence assessment report tendered by the Crown. The applicant had relied on a report from psychologist Tim Watson-Munro, affidavits by the applicant's wife and sister, medical evidence relating to his wife and children, some references, and certificates of completion of courses relating to alcohol awareness and emotional wellbeing. The Crown also relied in this Court upon a new affidavit which disclosed two custodial infringements by the applicant. Those infringements make no material difference to the sentencing exercise in this case.
The following points were made by the sentencing judge in relation to the applicant's circumstances and subjective case, each of which I accept: 1. The applicant was 26 years old at the time of the offence and is now aged 30 (he was 28 when sentenced below). 2. He has lived in Australia since he was 3 years old, having come from Iraq. He started using prohibited drugs when he was 13 years old. He had told the psychologist he was drug-free at the time of the offence. However, the sentence assessment report indicated that he had said was taking non-prescribed Valium at that time, which he claimed had impaired his decision-making. The psychologist considered that the applicant suffered a depressive disorder, although no opinion was proffered as to any causal connection with the offence. He has had anxiety in relation to the current matter. 3. The applicant has been married since he was 21 years old and has children with his wife. They have suffered emotional and financial hardship as a result of his incarceration. His wife has mental health issues. The applicant had also previously assisted in the care of his mother. He has been described as a loving and caring husband, father and brother. 4. Prior to his incarceration the applicant had been working full-time. 5. The sentencing judge did not find any reduction in his moral culpability taking account of his background. She accepted that he had some mental health issues, and that there was likely to be an additional degree of hardship in serving a custodial sentence which would be added to by the fact that he would be separated from his young children. Her Honour noted that, as at the time of sentencing, there were still some additional restrictions in custody due to COVID-19 which would result in the time in custody being more onerous. 6. The applicant has prior convictions for possession and supply of prohibited drug which resulted in a custodial sentence served by an intensive corrections order, along with traffic offences. His history does not include any offences of violence but it disentitles him to leniency. He had successfully completed an intensive corrections order and some drug related programs. 7. The assessment report concluded he had a medium/low risk of re-offending. The sentencing judge concluded that provided the offender does not return to the use of prohibited drugs and addresses his mental health, he would have good prospects of rehabilitation and would be unlikely to re-offend. 8. The applicant has not expressed remorse for his behaviour. The sentence assessment report indicated that he had denied having committed the offence and did not accept responsibility for his actions, although he had expressed some concern for the victim.
Mirnezami's sentence, imposed by Hanley DCJ, was a term of imprisonment of 3 years 6 months, with a non-parole period of 22 months. He had received a 10% discount for pleading guilty. Without that discount the head sentence would have been just under 3 years and 11 months. It should also be recalled that he - along with Wafaa and Hamze - was sentenced for the more serious specially aggravated kidnapping contrary to s 86(3) of the Crimes Act, for which the maximum penalty is 25 years imprisonment, where the applicant was being sentenced under s 86(2), with a lower maximum of 20 years imprisonment.
When sentencing Mirnezami, Hanley DCJ had said the following: The detention was accompanied by threats of violence if [the victim] did not comply with their demand and actual violence by [Mirnezami], but more so by [the applicant], who I am satisfied played a more significant role in the detention, the use of violence, and the threats of violence. … [Mirnezami] was enlisted because of his intimidating appearance, and I am satisfied his role was limited to that extent, although an important one, and I would place him, in any assessment of criminality in relation to the offenders, as below that of Wafaa, Nada and [the applicant].
The Crown had referred to the latter statement in its written submissions to the sentencing judge, effectively adopted it, and argued that the applicant "played a role just below his co-offender Wafaa Al Shamari and above Hossein Mirnezami". In the applicant's written submissions to the sentencing judge he submitted that "in the hierarchy of offenders [the applicant] is just below Mr Mirnezami". The difference between being the applicant's role being "just below" Mirnezami, or vice-versa, is not substantial.
The sentencing judge had a heading of "Parity" where she addressed the issue. She took account of the basis upon which Mirnezami had been sentenced. Amongst other things, her Honour said in relation to their respective roles and criminality: Hossein Mirnezami prevented the victim from leaving but he was not responsible for making threats to harm the victim or his family. He did not make demands for money. Clearly, for the offender Adel Al Shamari, the issue of parity must be considered, taking into account the fact that he was convicted of a lesser offence and was not responsible for any of the actions of his co-offenders prior to joining the joint criminal enterprise. The period of his involvement was significantly less but his involvement started when the victim had already sustained an injury and the period of his involvement included intense periods of verbal and physical aggression and where he was the prime mover. … I find the criminality of Wafaa Al Shamari to be the highest of the three. Despite the fact that Adel Al Shamari is not responsible for any of the victim's injuries and had a shorter period of involvement, I find his criminality to be slightly higher than Hossein Mirnezami.
Her Honour thus accepted the characterisation put by the Crown, which was consistent with the conclusion of Hanley DCJ. In oral submissions to this Court the applicant seemed to criticise the sentencing judge for her Honour's lack of reasons "for differing from the appraisal made by Hanley DCJ". Her Honour did not differ from the appraisal of that judge, and gave clear and careful reasons considering the issue of parity.
The sentencing judge stated that she considered the offence committed by the applicant to be an objectively serious example of such an offence. A key part of her reasoning in that regard was as follows: Adel Al Shamari took a substantial role in the detention of the victim after he returned to the house. He was physically violent, he threatened both the victim and his children with death and acted in a manner to make the victim believe he was about to use a knife to cut the victim's fingers off until he was stopped by Mona Al Shamari. The entire episode must have been a terrifying experience and [the victim's wife] described the distress following the offence. I do not accept that Adel Al Shamari has established the mitigating factor under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 that the emotional harm was not substantial.
I agree with these remarks. It is true that the applicant only became involved about halfway through the victim's ordeal, and the detention was relatively short for this type of offence, being perhaps somewhat less than an hour. However, he perpetrated significant physical assaults on the victim in that time, even given that they did not cause actual bodily harm. He made moves towards cutting off the victim's fingers. Whether or not he would have done so unless stopped by his sister, he plainly meant the victim to believe that he was going to do so. Most significantly, he threatened to kill the victim and his children. In context, the victim had reason to understand that to be a real threat.
The applicant undertook the offence for financial advantage, albeit the financial advantage of his sister rather than himself. There is nothing to suggest that his sister had any reason to conclude that the victim was responsible for the safe being stolen. But even if there was, that would do nothing to justify such conduct.
The sentencing judge appropriately referred to the significance of deterrence for this offence, and the need for protection of the community.
Mirnezami was involved in the whole detention of the victim, in contrast to the applicant. Mirnezami was the one who held a knife to the victim at the start of the detention, causing him to bleed. He took steps to prevent the victim leaving. Mirnezami and the applicant pushed the victim into a chair at one point. Mirnezami also was involved in requiring the victim to go for a drive during the detention. Both Mirnezami and the applicant had a knife, and I accept that it was Mirnezami who had the knuckledusters. Mirnezami also showed the victim some bullets, which can be seen as an implicit threat. Mirnezami received a text message from Wafaa after the event informing him she had another address for the victim and that they "should go", to which he replied positively. The applicant had also exchanged messages with Wafaa about the house being watched and to be careful.
The physical assaults committed by the applicant and Mirnezami and the applicant are broadly comparable - Mirnezami's caused actual bodily harm, but the applicant's were more extensive in number. What does most to distinguish their conduct is the applicant's move towards cutting off the victim's fingers, and his express threat to kill the victim and his family. Further, the sentencing judge was correct to state that the applicant's involvement included intense periods of verbal and physical aggression where he was the prime mover. Even allowing for factors such as the more limited time of detention and the less serious offence, her Honour was right to conclude that the applicant's criminality was somewhat higher than that of Mirnezami.
As regards comparative subjective matters between the applicant and Mirnezami: 1. Her Honour stated that the applicant's criminal history is over many years and is more serious than Mirnezami, noting that Mirnezami has convictions in relation to the possession of knives. 2. She found no reduction in the applicant's moral culpability (nor had Hanley DCJ in relation to Mirnezami). But she did consider that Mirnezami had "had a hard life", and suffered from complex post-traumatic stress disorder. Her Honour indicated that Mirnezami had been in custody during an onerous custodial period due to COVID-19 (the applicant had been on bail for this offence until 1 December 2022). The fact Mirnezami did not speak English would exacerbate the hardship of custody. 3. Mirnezami had entered a plea and demonstrated remorse and regret for the offence which were accepted, in contrast to the applicant. 4. A relatively similar finding as to prospects of rehabilitation has been made for each, although the assessment in Mirnezami's sentence assessment report as to the risk of re-offending was less positive than that for the applicant.
Having considered the materials, I agree with these points. They indicate that Mirnezami had a somewhat stronger subjective case than the applicant.
It should be recalled that but for Mirnezami's discount for pleading guilty, he would have received a slightly longer head sentence than the applicant's: just under 3 years and 11 months, as opposed to the applicant's 3 years and 9 months. In a context where the applicant's criminality was somewhat higher than that of Mirnezami, and his subjective case somewhat weaker, he has no basis for complaint in relation to parity.
The applicant also referred to the fact that Mirnezami's non-parole period of 1 year and 10 months was shorter than the applicant's period of 2 years and 3 months. The applicant's non-parole period was 60% of his head sentence. For Mirnezami it was 52.4%. That difference reflects the fact that Hanley DCJ considered that there were more significant special circumstances in favour of Mirnezami than the sentencing judge did with respect to the applicant, as reflected in what was said about the comparative subjective cases. The difference does not mean that the applicant has a justifiable sense of grievance. No submissions were directed to saying that the 60% ratio was otherwise inappropriate.
The applicant's conduct was a significant instance of an offence under s 86(2) of the Crimes Act. The 20 year maximum penalty for such an offence serves as a yardstick. Taking account of that factor and all of the circumstances, I consider that no lesser sentence could be warranted here than the sentence of 3 years and 9 months, with a non-parole period of 2 years and 3 months. Given that conclusion the appeal must be dismissed.

Orders

The orders of the Court should be as follows: 1. Grant leave to appeal. 2. Appeal dismissed.
CAMPBELL J: I agree with Kirk JA.
McNAUGHTON J: I agree with Kirk JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2024

(2022) 109 NSWLR 604

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