Nasiri v R

Court of Criminal Appeal (NSW)|2018-11-02|Before: Gleeson JA, Schmidt J, Button J

Solicitors: Mitry Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/86158 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 25 October 2017 Before: North DCJ File Number(s): 2014/86158

Judgment

GLEESON JA: I agree with Button J.

Introduction

This application for leave to appeal relates to a sentence imposed upon Mr Mohammed Nasiri (the applicant) on 25 October 2017 by Judge North in the District Court at Sydney. It is founded upon an assertion of erroneous disparity in sentence, in turn founded upon the proposition that Judge North gave an inadequate backdate in comparison to the backdate afforded by another judge to a co-offender.

Sentence structure of applicant

The applicant pleaded guilty on 23 August 2017 to an offence of attempting to break and enter with intent to commit larceny, in circumstances of special aggravation; namely being armed with a dangerous weapon (a firearm). That offence carries a maximum penalty of imprisonment for 20 years. An additional offence was taken into account on sentence by way of a Form 1: firing a firearm at a dwelling house with reckless disregard for the safety of another person. Both offences occurred on 2 August 2013.
Ultimately, on 25 October 2017, Judge North imposed a head sentence of imprisonment for 4 years 8 months, commencing on 21 December 2016 and expiring on 20 August 2021, with a non-parole period of 2 years 5 months, expiring on 20 May 2019.
At the time the applicant committed these offences, he was on parole for offences of robbery in company (having been released from prison on 15 September 2012).
On 21 September 2013, the applicant was also arrested for offences of demanding property with menaces in company and participating in a criminal group, committed in July and August 2013. As a result, prior to Judge North imposing the sentence under appeal, the applicant had been sentenced in the District Court by Judge Zahra SC on 27 June 2014 to an aggregate sentence of imprisonment of 5 years 4 months, commencing on 21 December 2013 and expiring 20 April 2019, with a non-parole period of 3 years 6 months, expiring on 20 June 2017.
A table annexed to this judgment sets out the sentence structure of the applicant in a readily comprehensible form. An important part of that structure is that the sentence imposed by Judge North commenced (on 21 December 2016) six months before the expiry (on 20 June 2017) of the non-parole period of the sentence imposed by Judge Zahra; in other words, the applicant received the benefit of a period of partial concurrence of six months between the non-parole periods of the two sentences.

Sentence structure of co-offender

Earlier, Mr Nazir Akbari (the co-offender) had been sentenced by Acting Judge Hosking SC on 2 May 2016 for the following offences: being an accessory after the fact to the firing of a firearm in a public place; attempting to break and enter with intent to commit larceny, in circumstances of special aggravation, namely being armed with a dangerous weapon (a firearm); and a Form 1 offence of firing a firearm at a dwelling. The latter two of those offences arose from the same incident that led to the sentence imposed by Judge North on the applicant; the offence of being an accessory after the fact arose from an entirely separate shooting.
The aggregate head sentence imposed by Acting Judge Hosking was 4 years 9 months commencing on 11 June 2015 and expiring on 10 March 2020, with a non-parole period of 2 years 6 months, expiring on 10 December 2017. The indicative sentence for the offences shared with the applicant (that is, the substantive offence and the offence on the Form 1) was 4 years 4 months 24 days (that is, applying a discount of 20% to a starting point of which his Honour spoke of 5 years 6 months).
The co-offender had also been sentenced by Judge Zahra on 27 June 2014 for offences of demanding property with menaces in company and participating in a criminal group. He received an aggregate head sentence of imprisonment for 5 years commencing on 11 September 2013 and expiring on 10 September 2018, with an aggregate non-parole period of 3 years, expiring on 10 September 2016.
Two further tables annexed set out the co-offender's sentence structure in a readily comprehensible form. Two aspects are noteworthy.
The first is that Judge Zahra imposed a slightly longer head sentence and non-parole period on the applicant than Judge Zahra did on the co-offender: four months in the case of the head sentence, and six months in the case of the non-parole period.
The second is that Acting Judge Hosking granted the co-offender a "backdate" of one year three months, in that the aggregate sentence imposed by his Honour commenced on 11 June 2015, and the pre-existing aggregate non-parole period imposed upon the co-offender by Judge Zahra expired on 10 September 2016. That is, of course, a longer backdate (in the sense of a longer period of partial concurrence with the pre-existing non-parole period) than the amount of six months granted by Judge North to the applicant. It is that point of distinction that founds this application.
To complete this part of my analysis, both the applicant and the co-offender appealed to this Court with regard to the sentence imposed upon each of them by Judge Zahra. All grounds of appeal were rejected, including a ground of the applicant that the sentence imposed by Judge Zahra displayed erroneous disparity. At the hearing before us, neither party tendered the remarks on sentence of Judge Zahra. Each was content for us simply to have regard to the judgments of this Court in that earlier appeal: see Akbari v R; Nasiri v R [2015] NSWCCA 240.

Objective features of offending of applicant

The following is derived from the agreed facts tendered on sentence with regard to the applicant, and adopted in the remarks on sentence of Judge North.
From July 2013 to January 2014, the applicant was a member of the "Brothers For Life" (BFL) criminal group based in Blacktown. He was an active member of the group, attended meetings on a Saturday night, paid weekly fees for rent and maintenance of the clubhouse, and wore BFL branded hooded jumpers. The co-offender was also a member of the group.
A number of shootings occurred as part of ongoing conflict between the members of the Southwest/Blacktown BFL chapter and the separate Bankstown chapter.
On 1 August 2013, the applicant and the co-accused, amongst others, were summoned to the Blacktown BFL clubhouse on the instructions of the leader of that group. He instructed those present to drive to a dwelling house and break and enter with the view of stealing property believed to be there. They were supplied with an unregistered sawn-off Mossberg pump action shotgun to use during the offence.
The leader told those present that he believed the premises were occupied by "drug dealers of Assyrian heritage" who would be in the possession of guns, money, and drugs. He directed the group to tie the occupants up and to shoot them in the legs if necessary in order to steal those items. Prior to leaving, they were told not to return "empty handed", and that the proceeds of the offence would be divided up between the group.
They left in three cars. Only one person took his mobile phone to navigate to the address. They turned their BFL jumpers inside out and took disposable gloves.
At approximately 12.05 am on 2 August 2013, the group (including the applicant and the co-offender) arrived at the premises. Three members of the group walked up the front stairs, and one was armed with the shotgun. One member attempted to kick open the front door and smashing the lock. The other started yelling "It's BFL - we are here to get you" and fired at least three rounds through a window next to the front door. No entry was made.
The applicant waited with the rest of the group down at the front of the property.
Shortly after the firearm had been discharged, the group began to flee. The co-offender then took possession of the firearm, and discharged a further shot towards the garage door of the premises. (I interpolate at this stage that that assertion adverse to the co-offender was included in the agreed facts of the applicant on sentence, but not the agreed facts of the co-offender).
No one was injured. The phone was used to send a curt message to those back at the clubhouse: "no good". Upon returning to the clubhouse, the group reported what had occurred and the failure to obtain any property from the premises. The leader was "angry and abusive toward those in the group".
The firearm was secured by the leader, and later recovered by police on 12 December 2013.
On 21 March 2014, the offender was in custody for other offences arising from his involvement in the BFL Blacktown group. He was arrested and spoken to about the incident at the premises.

Subjective features of the applicant

The following is derived from the remarks on sentence of Judge North. None of it was impugned in the application before us.
The applicant gave evidence on oath, and read a statement of regret and remorse. Judge North described his evidence as "quite impressive".
By the time he came to be sentenced, he was aged 25, having been born in November 1991.
Judge North referred to the criminal record of the applicant including such serious offences as five counts of robbery in company, dishonestly obtaining property by deception, and demanding property with menaces.
The discount for the utilitarian value of the plea of guilty entered "only days before a 10 week trial" was 12.5%.
The applicant was born in Afghanistan, but fled with his family to Pakistan when he was young. They settled in Australia in 2003 when the applicant was aged 12. He left school in year 10, and failed to complete an apprenticeship in panel beating.
Judge North accepted that the early life of the applicant had been significantly adversely affected by the fact that the war in Afghanistan had forced his family to become refugees.
His family remained supportive as at the date of sentence. Neither of his parents enjoyed good health.
The applicant regarded himself as having definitively left BFL. He had been regularly moved within the prison system by authorities to try to keep him safe from that organisation. On the other hand, his record of prison discipline infractions was not good, and included offences of violence. Credit was given by Judge North for the strictures of the custody of the applicant.
Judge North accepted that a CCTV disc tended in the proceedings on sentence showed the infliction of force upon the applicant by a prison officer whilst a search of his cell was being conducted.
Judge North made reference to a pre-sentence report assessing the applicant as being of medium to low risk of reoffending. There was no sign of mental illness, nor dependence upon prohibited drugs or alcohol.
Judge North assessed his prospects of not reoffending as "reasonable". Judge North accepted, to some extent, that the rehabilitation of the applicant had commenced in custody, although his progress "is marred by his continuing with punishment details whilst in prison".
Judge North spoke of the delay in finalising the matter between the arrest of the applicant in March 2014 and the date of imposition of sentence in late October 2017.
Judge North explicitly referred to the doctrine of parity, and remarked that the applicant "should be dealt with in an approximately similar manner to" the co-offender.
When setting the commencement date of the sentence, Judge North rejected a submission of the Crown that this sentence should commence at the end of the non-parole period of the sentence imposed by Judge Zahra; that is, on 21 June 2017. Judge North spoke of the possibility of "some concurrency with other matters" if the matter had been dealt with earlier, and of being conscious of not imposing a crushing sentence. Judge North remarked that, as a discretionary matter, the new sentence would commence on 21 December 2016.
Finally, special circumstances were found, and Judge North gave reasons for doing so.

Objective features - co-offender

The objective facts found by Acting Judge Hosking in his remarks on sentence do not require detailed repetition, in light of the fact that they are very largely identical with those found by Judge North. I shall set out only the main point of differentiation, foreshadowed above.
As I have said, in the proceedings on sentence of the applicant it was agreed that he was not a shooter - rather, the firearm was fired by the co-offender and another member of the joint criminal enterprise. In contrast, in the proceedings on sentence of the co-offender, it was agreed between the parties that neither the applicant nor the co-offender was a shooter. In accordance with that agreement, Acting Judge Hosking made the latter finding in his Honour's remarks on sentence.

Subjective features - co-offender

The subjective features of the co-offender found by Acting Judge Hosking were as follows.
The co-offender was born in Afghanistan and was 29 years old at the time of sentencing. He was on bail when he committed the offences. He was also a member of the BFL gang.
Acting Judge Hosking was impressed by the evidence given by the co-offender and his brother. His Honour found that the co-offender was genuinely remorseful for his offending and that he had a real desire to begin a new law-abiding life. Further, his Honour noted that the co-offender had considerable family support, as confirmed by the pre-sentence report.
The co-offender's brother testified that the co-offender did not associate with bad elements in prison nor did he take drugs in prison. Before joining BFL, the co-offender was using drugs. Acting Judge Hosking was inclined to believe the evidence of the co-offender that he was part of BFL for a short period of a month and a half, and that he joined BFL to access money to buy drugs.
The co-offender gave evidence that he aspired to go to university and work in the building trade.
When the co-offender was young and living in Kabul, Afghanistan, he was sexually assaulted by his employer - an incident which Acting Judge Hosking found to have affected the co-offender permanently.
Acting Judge Hosking recounted that the co-offender and his family fled to Pakistan to escape the Taliban. The brother of the co-offender gave evidence that the co-offender saw someone kill a man in his own house, and that around this time the co-offender's father disappeared as he was captured for ransom. The family moved to Australia without the father and the co-offender became the father figure in the family.
A consultant forensic psychiatrist diagnosed the co-offender with post-traumatic stress disorder and a poly-substance use disorder, which was related to his offending behaviour. Acting Judge Hosking accepted the finding in the pre-sentence report that the co-offender may have used drugs as a coping mechanism for mental health issues.

Ground of appeal

In support of the application for appeal against sentence, the following ground was notified and pressed at the hearing. The Applicant has a justifiable sense of grievance as a consequence of the sentence imposed upon his co-offender, Nasir Akbari.

Submissions

The central point of the written submissions for the applicant was that a justifiable sense of grievance arose from the discrepancy in the degree of backdating or partial concurrence granted to the applicant and the co-offender. As I have said, the discrepancy relied upon is nine months.
It was submitted that Judge North, in setting the commencement date of the sentence imposed upon the applicant, did not make any reference to the commencement date of the sentence of the co-offender. Nor did his Honour provide any explanation for the discrepancy.
During oral submissions, counsel for the applicant clarified that Judge North had been made aware of the commencement date of the sentence of the co-offender, but not the actual length of the period of partial concurrence that the co-offender received (as I have said, 15 months).
Counsel also emphasised that the sole reason for the degree of partial concurrence granted by Judge North was that the applicant may have gained more concurrency had the matter been dealt with earlier. It was submitted that that reasoning could hardly justify the discrepancy in the degree of partial concurrence in the sentences of the two offenders.
Counsel accepted that the length of the pre-existing sentence could affect the degree of partial concurrence granted by way of the commencement date of the subsequent sentence. However, it was submitted that the difference in length between the pre-existing sentence of the applicant and co-offender was "small", and that their respective conduct and circumstances were not so different as to justify the asserted particular disparity between their sentences.
Finally, counsel submitted that there had been a suggestion in the proceedings on sentence of the applicant that, at the time of the shooting, the co-offender was much physically closer to the principal in the first degree than the applicant had been. It was suggested that that could constitute a further point of differentiation in role that favoured the applicant.

Determination

For the convenience of the reader, I attach to this judgment a table that seeks to compare readily all of the objective and subjective features pertaining to the applicant and the co-offender, along with my concise comment upon any points of distinction.
The question I have asked myself in determining this application is simply whether, when one takes into account all objective and subjective features of both matters, one can say that the applicant is entitled to experience a justifiable sense of grievance when he compares his sentence with that imposed upon the co-offender: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [31].
Turning to my determination of that question, it can be seen that the sentence imposed by Judge North upon the applicant was slightly longer than the indicative sentence provided for the co-offender for the shared offending by Acting Judge Hosking. But the comparative length of the two sentences was not the subject of complaint by the applicant (that is understandable, bearing in mind that the starting point of the relevant indicative sentence of the co-offender was a little longer than that of the applicant, bearing in mind the discounts applied). Rather, this assertion of erroneous disparity stands or falls on the specific difference of nine months in the two backdates.
Contrary to the approach taken by counsel for the applicant in relying upon the failure of the lawyers then appearing to draw to the attention of Judge North the precise length of the partial concurrence granted to the co-offender, I respectfully do not accept that a parity ground can be established by focusing on the process by which an applicant came to be sentenced. The focus of such a ground is instead the outcome of that process, in the form of the sentence actually imposed, and a comparison of that outcome with that of a co-offender.
For that reason, I do not propose to determine whether or not the lawyer for the applicant before Judge North could or should have presented the plea in mitigation differently, or whether Judge North can be said to have failed to take into account the quantum of the backdate that had already been granted by Acting Judge Hosking to the co-offender. Instead, I shall simply consider whether the sentence imposed upon the applicant demonstrates erroneous disparity, bearing in mind all factors, including, but not limited to, the degree of partial concurrence.
In my opinion, a number of factors combine with the result that, in comparing his sentence in general with that imposed on the co-offender, and, in particular, their respective backdates, the applicant cannot be said to experience an objectively justifiable sense of grievance. They are as follows.
First, the pre-existing sentence of the applicant imposed by Judge Zahra was a little longer than the pre-existing sentence of the co-offender. The length of a pre-existing sentence is not irrelevant to the question of the degree of a backdate by way of partial concurrence.
Secondly, each offender was sentenced on the basis that he was not the shooter. In other words, it does not assist the applicant, in his parity argument, to rely upon adverse findings of fact about the co-offender made in the remarks on sentence of Judge North, when those findings were not made in the remarks on sentence of the co-offender himself. In other words, speaking generally, a parity argument based only on a lesser role having been played by an applicant than his or her co-offender very often becomes untenable when different findings of fact about the role of different offenders are made by different judges in different remarks on sentence.
Thirdly, in my opinion whether or not the co-offender was sentenced on the basis that he stood close to the shooter and the applicant was sentenced on the basis that he stood some distance from the shooter is neither here nor there: each man was sentenced on the basis that he was not the shooter, but was part of a very serious joint criminal enterprise.
Fourthly, the co-offender had been diagnosed with post-traumatic stress disorder. The applicant had not been diagnosed with any psychological or psychiatric condition.
Fifthly, the criminal record of the applicant was notably worse than that of the co-offender. In particular, he had been sentenced for five robberies in company.
Sixthly, different findings about the prospects of rehabilitation were made by Judge North and Acting Judge Hosking; the findings of the latter were somewhat more favourable with regard to the co-offender. That was unsurprising, bearing in mind the numerous offences against prison discipline committed by the applicant.
Seventhly, in summary, each offender was granted a backdate on each new sentence whereby each "overlapped" with the old. One received a longer backdate than the other, to the extent of nine months. In other words, this is not a case of one offender receiving a substantial backdate, and the other none at all: each received some. And the discrepancy between the two is not of a length that automatically engenders a justifiable sense of grievance.
Eighthly, the degree of backdate granted by way of partial concurrence with a pre-existing sentence is certainly a matter within the discretion of a sentencing judge, as Judge North said. It is not amenable to precise mathematical comparisons with co-offenders whereby an offender can insist on a backdate that is identical to that granted to his or her co-offender.
Ninthly and finally, stepping back from this particular complaint, and thinking in a global way about the pre-existing sentence of each offender; the objective features of the new offending; the subjective features of each offender; and the length and commencement dates of the new sentences ultimately imposed on each, I am not persuaded that a comparative injustice has been suffered by the applicant.

Conclusion

In short, I do not accept that the applicant is entitled to experience a justifiable sense of grievance when he compares any aspect of his new sentence, including its backdate, to that of the co-offender.
Because the ground was fully argued and not without merit, I would grant leave to appeal, but dismiss the appeal.

Proposed orders

In accordance with the above analysis, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Nasiri sentence graph (11.3 KB, pdf) Akbari Details graph (2.39 KB, pdf) Akbari overall sentences (2.69 KB, pdf) Nasiri parity table (42.5 KB, doc)

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