Amiri v R

His Honour's remarks on sentence

1. His Honour accepted that there was "no suggestion of financial gain" (page 6) on the part of the offender and that the offender "craved acceptance by the gang" (page 7), acting at their behest (page 6). It was accepted that the offender's affiliation with the gang was attributable to a lack of "unconditional support from his father and family members" (page 9).
2. However, his Honour did not find his conduct "very understandable" and despite accepting that the offender was apprehensive, dismissed the applicant's reliance upon duress as a mitigating factor pursuant to s 21A(3)(d) (page 7) finding that his apprehension "was a direct and somewhat inevitable consequence of his voluntary association" with the gang. His Honour considered it "somewhat incongruous for duress to be significantly ameliorating" in the circumstances of the case (page 7).
3. While accepting the offender's remorse (page 8), his Honour did not consider that the offender's modest intelligence and disappointment by his father mitigated the gravity of his offending (page 11). After reviewing a pre-sentence report and a report by an expert forensic psychologist in appropriate detail, his Honour reached the conclusion that "he [was] not disabled by any use of the word" (page 11) and "[did] not consider that there is anything that diminish[ed] his moral culpability" (page 12). Finally, the submission that the offending lay at the bottom of the range or close to the bottom was rejected. His Honour accepted the case was unusual but made the following finding (page 12): In my view [the objective seriousness of each offending] approach[es] the middle of the range because of the precise circumstances I have detailed that it was at the behest of this gang and these are serious examples of this type of offence.

The parties' submissions in this appeal

1. Two grounds of appeal only were agitated before this Court. First, that the sentencing judge erred in his assessment of the objective seriousness of the offending, and second, that the sentence imposed was in all of the circumstances manifestly excessive. Objective seriousness
2. In relation to the first ground, Ms Cook of counsel who appeared for the applicant argued that the offending was well below the mid-range of seriousness and more towards the lower end of the scale (at [28]). Counsel challenged the finding set out at [16] above. Ms Cook relied on nine separate matters ([27]) to attempt to make good this ground. They may be summarised as: the absence of actual supply because the bag was never retrieved, having been intercepted by police; the allegedly minor or subordinate role of the applicant, who was said to be a mere agent; despite its quantity, the drug was of low purity; the absence of a motive of financial gain; and the absence of aggravating factors.
3. In its submissions as to the first ground, the Crown drew this Court's attention to the range of circumstances underpinning an assessment of objective seriousness: the context of the offender's association with B4L, a notorious criminal gang; the offender's awareness that the weapon could be used in connection with criminal activities conducted by B4L; the persistent and ongoing attempts to obtain the bag; and the quantity of drugs involved.
4. The Crown, at [15] of its submissions, cited a passage from R v Nassif [2005] NSWCCA 38 at [30] per Bell J (Grove and Buddin JJ agreeing) in which the attempt to receive a prohibited drug for supply was considered: "Having regard to the breadth of the statutory definition, I am not persuaded that an attempt to receive drugs for supply is necessarily to be categorised as less objectively serious than an offence of supply …"

Manifest excess

1. Learned counsel for the applicant recognised the difficulties of satisfying the Court that the sentence was manifestly excessive. She acknowledged the necessity to establish that the sentence was "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [26] - [28].
2. At [32] of her written submissions, counsel advanced 13 reasons to support her argument. These involved the recitation of the reasons for arguing that there had been an error in the evaluation of objective seriousness; the duress argument which had been rejected by the learned sentencing judge; and the applicant's personal circumstances including his Honour's assessment of prospects of rehabilitation.
3. On this ground, the Crown drew attention to a number of matters, including the high maximum penalties attracted by these offences, the importance of general deterrence as a consideration in offending of this type, and the fact that the Form 1 matters were to be taken into account "with a view to increasing the penalty" (at [26]) having regard to the additional need for personal deterrence and the community interest in extracting retribution arising from the additional criminality in other, albeit closely related offending: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42] - [43]. The Crown further submitted (at [30]) that were the Court to find error on this basis, it should nonetheless conclude that a lesser sentence is not warranted at law.

Decision - Objective seriousness

1. An applicant seeking to challenge a sentencing judge's assessment of objective seriousness undertakes an inherently difficult task. The requirement that a judge make such an assessment is a manifestation of the principle of proportionality, one of the pillars of the law of sentencing, giving effect to a fundamental value underpinning the law that the punishment must fit the crime: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; R v Dodd (1991) 57 A Crim R 349 at 354.
2. A finding of objective seriousness represents no mere finding of primary fact. It is an evaluative judgment made by the sentencing judge by application of the normative standards informing the criminal law, and in particular the law of sentencing, to the objective circumstances of the offending.
3. As Simpson J explained in Mulato v R [2006] NSWCCA 282 (at [46]). The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v R [1936] HCA 40 at 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. See also Salafia v R [2015] NSWCCA 141 at [90] (per Wilson J; Hoeben CJ at CL and Hall J agreeing).
4. I am not satisfied that the applicant has demonstrated that his Honour's assessment of the objective seriousness of this offending is in any way affected by House v The King error. The argument really depends upon this Court forming a different view of the primary facts of the case from that formed by the learned sentencing judge. Generally this Court will only decide that a sentencing judge has mistaken the facts pertinent to sentencing if it is persuaded that the findings made were not open. It is insufficient that the appellate court might have formed a different view, or that other views are reasonably available.
5. I am not satisfied that the findings made by his Honour were not open to him. In fact, his Honour made findings generally in accordance with the matters that Ms Cook urges upon this Court at [27] of her submissions, accepting however that his Honour was not persuaded that the difficult circumstances of the applicant's upbringing were mitigatory to the extent urged on this Court by Ms Cook. In any event, these are standard non-parole period offences, or at least the drug offence is, and the subjective circumstances of the offender are not factored into the evaluation of where the offending lies on the spectrum of objective seriousness: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. Naturally, the subjective circumstances of the offender are factored into the evaluation of the appropriate sentence as part of the instinctive synthesis of all relevant factors, including the standard non-parole period.
6. In my view it was well open to the sentencing judge to make the assessment he did. As the Crown points out, the offences were committed in the context of the applicant's association with a notorious criminal group with which he willingly and freely associated himself. He knew that the B4L were involved in extortion, drug dealing and crimes involving serious violence. He communicated with, and took his directions directly from the leadership group. He was prepared to convey threats on their behalf. He knew that the firearms, in particular the sawn-off pump action shotgun, were to be used in their criminal activities.
7. As has been pointed out, despite questions of purity, the quantity of the drug was more than 900 times the threshold amount for the large commercial quantity of that particular substance. Moreover, the additional criminality in the Form 1 offending had to be taken into account in the assessment of objective seriousness.
8. I am not persuaded that ground 1 has been made good.

Decision - Manifest excess

1. There was no issue between the parties about the relevant principles to be applied in deciding whether a sentence passed is manifestly excessive. It is unnecessary for me to revisit those principles for the purpose of this judgment. I will remind myself, however, that the power of the Court to correct latent error in sentencing is to be exercised in context including the consideration that there is no single correct sentence available in any given case and sentencing judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and the application of principle: Markarian at 371 [27].
2. Given the prevalence of both drug supply offending and firearm offences, general deterrence will generally loom large as an object of sentencing: Collier v R [2012] NSWCCA 213 at [40]; R v Lachlan [2015] NSWCCA 178 at [68]. Again, it is necessary to bear in mind the four Form 1 offences. It is to the applicant's advantage that the sentence passed by the sentencing judge took account of the additional criminality involved in that offending so as to "wipe the slate clean". As I have said, three of the offences related to additional contents of the bag. Arguably the offending involved in participation in a criminal group travelled somewhat beyond the criminality of the principal offending and the other Form 1 offences.
3. Moreover, as has been pointed out, the maximum penalty for the drug offence was imprisonment for life and a standard non-parole period of 15 years. The maximum penalty for the firearm offence in count 2 is 14 years. These are of course important guideposts.
4. Emphasis in argument was placed upon factors principally relating to the applicant's subjective circumstances. To the extent to which the argument depends upon this Court taking a different view of objective seriousness, that matter must be rejected having regard to the outcome of the previous ground. Reliance is placed upon the relative youth of the applicant. However, he was 27 years of age at the date of the offending, in my judgment, well past the age of maturity. The absence of aggravating features in my view is neither here nor there. The offending itself was serious enough.
5. The duress argument or the applicant's fear of reprisals from B4L again should be rejected for the reasons given by the learned judge. As his Honour said, this "was a direct and somewhat inevitable consequence of his voluntary association with [a] lawless gang". As the submissions acknowledge, his Honour accepted that his association with B4L may make the circumstances in which he is held in custody more onerous. His Honour also took into account: the hardship suffered by the applicant as a refugee from Afghanistan; his remorse; his limited criminal history; that he had "commendable qualities", this offending aside; his prospects of rehabilitation; and the consideration that the applicant was unlikely to reoffend after release. Concerning the applicant's limited previous criminal record, it was open to his Honour to find as he did. While the record was not "aggravating on sentence" (page 12), the applicant is not entitled to the "leniency that would otherwise be available to a person of an unblemished history" (page 12). Notwithstanding all that could be said about the applicant's subjective case, the learned sentencing judge was cognisant that those matters, relevant as they were, could not be permitted to swamp the objective seriousness of the offending.
6. Having regard to all the facts, matters and circumstances informing the sentencing task in this case, I am not satisfied that either sentence or indeed a total effective sentence of 7 years with a non-parole period of 4 years and 6 months can be said to be plainly unjust for this offending and this offender.
7. I would grant leave to appeal, but dismiss the appeal.

Amendments 29 June 2017 - Case name changed to exclude offender's given name. Judgment paragraph 1 changed to MACFARLAN 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: 29 June 2017