R v Pajou [2025] NSWDC 238 | Case summary | Zoe

/

/

R v Pajou [2025] NSWDC 238 | Case summary | Zoe

The Crown, obviously enough, emphasises the substantial quantities of drugs involved and submits that the objective seriousness of the offending falls within the mid-range of offences of this type.
On behalf of the Offender, it is contended that the objective seriousness of the offending falls “well underneath the mid-range”. It is submitted that I should find there was a lack of sophistication involved in the operation, that it was not a substantial operation, and that the Offender was subordinate to others in making his decision to become involved.
The Offender disputes that he was in any way involved in the organisation of the manufacturing operation other than at the lowest level, in that he bought the equipment from Bunnings, went to the premises, and so on. The Offender seeks a finding that he was acting under the direction and in part control of others.
This brings into focus the central factual dispute between the parties, which is, was the Offender under some form of non-exculpatory duress when he made his decision to become involved in the manufacture of these drugs?
The Offender gave no direct evidence before me, although there was tendered on his behalf a lengthy letter from him explaining his background generally but also why it is that he says he came to Australia to manufacture drugs. Similar evidence is given in letters from his mother and sister and is recorded as part of the history he gave to a psychologist, Mr Sam Borenstein. In essence, the Offender contends that, whilst living in Tehran, he became involved in illicit gambling, which he was unsuccessful at. This eventually resulted in him owing unidentified people approximately AU$200,000 in gambling debt. He had no means of paying that debt.
He says that those people put extreme pressure on him to repay the money and implicitly threatened both him and his family with physical violence if he did not do so.
They gave him the choice of travelling from Tehran to Australia to assist in the manufacture of drugs as a way of repaying those debts.
The parties are at issue as to whether I should accept this evidence. It depends, in part, on some screenshots, or at least photographs, of some text messages said to be on the Offender's phone which is still in Tehran in the possession of his wife. Those text messages do look unusual, in that there is no date or time for any of the messages.
Otherwise, the facts relied upon all come from the Offender himself.
Whether or not I should act on unsworn evidence of the Offender, together with hearsay statements of the Offender given to other people is a matter for judgement. Superior courts have repeatedly emphasised that sentencing courts should exercise very considerable caution in relying upon statements made to third parties in circumstances where the offender does not give direct evidence about matters in dispute: see for example R v Qutami [2001] NSWCCA 353, per Smart AJ at [58]–[59]; R v Harrison [2001] NSWCCA 79 (”Harrison”) at [32]; and Lewin v R [2017] NSWCCA 65 at [26].
The same can be said about letters written by offenders tendered to the Court. Again, they should be treated with considerable circumspection: R v Palu [2002] NSWCCA 381 at [40]–[41]; R v Elfar [2003] NSWCCA 358 at [25]; and Munro v R [2006] NSWCCA 350 at [17]–[19].
Such untested self-serving assertions being accepted has been described as “a triumph of hope over experience": Harrison at [44].
Sceptical as I am, I am prepared to find, on the balance of probabilities, in the Offender's favour that he was put under financial pressure by people he owed gambling debts to in Tehran and that as a consequence of that pressure he came to Australia knowing that he was going to be involved in the illicit manufacture of drugs. He did this in exchange for the debt to be extinguished.
However, I am not satisfied that he was subject to threats of violence to himself or his family. It is conceded on behalf of the Offender that there were no express threats. The question is whether those threats were implicit from all the circumstances. I do not think that they were.
Nonetheless, I am satisfied that the motivation of the Offender to do what he did was entirely driven by the pressure he was put under by people in Tehran to repay his gambling debts.
In a sense, that means that the Offender was motivated by financial gain, which is a statutory aggravating factor. However, he was also under some duress in a very loose sense. This is a mitigating factor. In the circumstances, I think it ought properly be taken into account so as to understand the motivations of the Offender, thus reducing his moral culpability.
It is true that the offending does appear to be moderately unsophisticated, and it does appear to have been quite easy for the Police to identify and arrest the Offender. Nonetheless, the offending involved a very large quantity of drugs, was planned in circumstances where the Offender had plenty of time to consider his options and was the only reason the Offender came to Australia. However, I do not accept the Crown’s submission that the Offender was central to the organisation of the drug manufacturing operation. He was central to doing the work, but others had put together the criminal scheme.
Taking all those matters into account, I consider the Crown's assessment of the objective seriousness is to be preferred over the Offender’s.

It is common ground that the Offender is a person of good character and, as required under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I take that into account in the way explained by McHugh J in Ryan v The Queen (2001) 206 CLR 267 at [29] and the Court of Appeal in Kenny v R [2010] NSWCCA 6 at [13].
I have already considered the question of duress, as required by s 21A(3)(d) when assessing the moral culpability of the Offender for the purpose of assessing the objective seriousness of the offence.
For reasons I have already explained, whilst I do not give particularly large amount of weight to this factor, I do think that it is a mitigating factor to be taken into account in the Offender’s favour.
As to whether the Offender is unlikely to reoffend (s 21A(3)(g)), has shown remorse (s 21A(3)(i)), and/or has good prospects of rehabilitation (s 21A(3)(h)), all of these matters are interrelated.
For reasons I will come to, the Offender's background is such that he is entitled to the full weight of what is known as the Bugmy principal. His deprived childhood has, in my judgement, led to him suffering from a clinically diagnosable psychiatric injury being Post-Traumatic Stress Disorder (“PTSD”). This in turn has contributed to the Offender’s use of illicit drugs throughout his life and, perhaps critically, his gambling addiction, which he did manage to keep under control for many years until the events which led to this offending.
If one accepts the Offender's subjective belief at the time of the offending was that he had no other choice but to offend so as to pay off his debt, even if that subjective belief was perhaps not well-founded, the objective fact is the Offender made a decision to offend when there were other options open to him.
The Sentencing Assessment Report assesses the Offender as having a low risk of reoffending. However, in light of the gambling addiction which is the Offender's own explanation for why he offended, I consider this assessment overly optimistic.
In my judgement, the Offender has, albeit somewhat belatedly, shown remorse and contrition for his conduct. I am not entirely sure he has full insight as to why he did what he did, as he continues to maintain his duress explanation at the forefront of any discussion for why he offended.
In summary, I am satisfied that the Offender has shown some remorse and contrition, and that his prospects of rehabilitation are reasonably good, and therefore his chances of reoffending are again moderately low. Ultimately, this will all depend on whether he can be successfully treated for his various addictions.

The Offender is of good character. This is his first offence. I have already outlined the circumstances that led him to offend.
I turn now to the Offenders background.
The Offender is 44 years old, was born in Tehran, Iran, and was exposed to very real and direct traumas in the Iran War.
Upon fleeing to Canada as a refugee at the age of 11, the Offender completed his schooling. The Offender then studied Law at "Police Foundation" but then transferred into "Advertising and Design" with the International Academy of Design in Toronto. Ultimately, he became a mortgage broker.
The Offender is currently married to his second wife to whom he has two young sons who reside in Iran. The Offender frequently travelled between Canada and Iran prior to his arrest.
Prior to his offending, the Offender relapsed into drug use and a gambling addiction leading to him accruing the significant debt of AU$200,000.
The Offender suffered a range of hardships during his formative years which invoke the well-known principles in Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).
The boundaries of when the principles in Bugmy are enlivened have not been "clearly or definitively delimited" and there is no magic in High Court's original use of the word "profound" when qualifying disadvantage. Furthermore, a causal nexus between a disadvantaged background and offending is a matter that goes to weight, rather than the applicability of the Bugmy principles: see Dungay v R [2020] NSWCCA 209 at [153]. I do not propose to go into the detail of the Offender’s deprived upbringing. Suffice to say, it well and truly qualifies as falling within the type of upbringing that engages the Bugmy principles.
The Offender submits that there is a causal nexus between the Offender's deprived background and the present offending as the absence of secure attachments and a stable childhood appears to have had a contributing effect to the Offender's vulnerability to predatory gambling syndicates who then pressured the Offender into this offending.
I consider that the relevant impact of the Offender's background is that it moderates the need for general deterrence, reduces the Offender's moral culpability to some extent, and promotes the need to help rehabilitate the Offender.
The Offender has a history of drug addiction. He was first introduced to opium at the age of 20, following the murder of his best friend via a shooting. He then had significant periods of problematic usage which contributed to the breakdown of his first marriage.
The Offender relies on the remarks of Simpson J in R v Henry (1999) 46 NSWLR 346 are apposite, where her Honour noted:

This impairment predisposed the Offender to both Substance Use and Gambling Disorders, which he ultimately developed in his early 20s. Mr Borenstein considers that visiting Iran caused a recurrence of symptoms associated with C-PTSD. It was in this context that the Offender relapsed into his prior Gambling Disorder and accrued a significant gambling debt, which motivated the offending.
The Offender submits that the above circumstances led to the Offender's impaired ability to reason logically. This in turn materially contributed to the offending conduct in several ways, both direct and indirect in nature:
The Offender's C-PTSD contributed to the formation of a Gambling Disorder.
It is this relapse which led to the incurrence of the gambling debt which formed the basis of the Offender's decision to commit the offence.
It is the Offender's C-PTSD which impaired his judgement and decision making at a time where he was confronted by threats of reprisal (on himself and his family).
The Crown accepts that the Offender’s upbringing and childhood engage the principles explained in cases like Bugmy.
However, the Crown has emphasised that, in this sort of offending, being supplying drugs which must involve planning and organisation rather than impulsivity, it cannot sensibly be suggested that it was caused by dysfunctional tendencies subconsciously absorbed from experiences in early childhood: see Taysavang v R; Lee v R [2017] NSWCCA 146 at [40]-[43]; Atkinson v R [2014] NSWCCA 262 at [74].
The Crown has also reminded me that there is a need to balance the Offender’s moral culpability, especially where diminished by reason of childhood deprivation, with the objective seriousness of the offence for which sentence is to be imposed. Important as the assessment of moral culpability is, it does not swamp the objective gravity of an offence: Smith v R [2020] NSWCCA 181 at [41]-[43].
The Crown also takes the point that Mr Borenstein is not a psychiatrist and therefore cannot give a medical diagnosis as expert evidence.
It seems to me there are a number of answers to this. The first is that the rules of evidence do not apply and therefore the fact that Mr Borenstein is not perhaps qualified to give opinion evidence strictly speaking within the terms of the E**vidence A**ct 1995 (NSW) is beside the point. There is of course then a question of how much weight should be given to that opinion. The second answer is that I think the various cases that I have been referred to, when read together, are authority for the proposition that this question of weight is a matter for me and will turn on the facts of any particular case.
The Crown, relying on the well-known statement of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [164], cited with approval by the Court of Appeal in WW v R [2012] NSWCCA 165 (“WW”) at [58] and Lam v R [2015] NSWCCA 143, submits that Mr Borenstein has “crossed the line” so that his opinion is beyond his field of expertise and ought be given no weight.
However, it seems to me that the various judgments relied upon do not stand for the stark proposition contended for by the Crown. For example, blanket rejection of a psychologist’s report and opinions has been criticised in a number of decisions where it was said that the report was capable of bearing upon the issues: R v Whitbread (1995) 78 A Crim R 452 at 460 to 461; R v Arnold [2004] NSWCCA 294 at [63] and [64]. These cases were referred to with apparent approval by Johnson J in Jones and Anor v Booth and Anor [2019] NSWSC 1066 and his Honour's observations at [65] and [67] strongly suggest that opinions expressed by psychologists, that perhaps stray beyond the strict bounds of their expertise, should not be dealt with by a blanket approach in a factual vacuum either in favour of or against the use of a psychologist report in a particular case. As his Honour said, what will be of assistance to the court and appropriate to receive will depend upon the particular circumstances of the case. In Taitoko v R [2020] NSWCCA 43, the Court of Appeal, whilst endorsing what was said in WW, said, at 114:

In my judgement, the preponderance of authority is that the question of what should be done on sentence with opinion evidence of a person who does not necessarily hold the qualifications to express that opinion is a matter of weight to be judged in the particular circumstances of any case. It is, of course, relevant that the context is a sentencing hearing where the rules of evidence do not apply in any event. Mr Borenstein is extremely experienced in relation to the particular diagnosis, and, in my opinion, it ought to be given weight, perhaps not the same weight as if the opinion was expressed by a psychiatrist, but nonetheless, I am prepared to proceed upon the basis that the Offender, as a consequence of his childhood trauma, does suffer from C-PTSD.
In my opinion, the Offender is entitled to the full benefit of the Bugmy-type considerations. There is a causal nexus between his childhood deprivation and the offending, albeit there are a number of steps in the chain of causation. The first is the childhood deprivation itself, the second is the C-PTSD, the third is the drug addiction that was caused by those events, the fourth is the gambling addiction, and the fifth is the financial pressure that was exerted by the gambling associates.
The Offender has expressed his remorse and contrition through statements he has made to his mother and sister, the history he gave to Mr Borenstein, and a letter he wrote to me for the purpose of the sentencing hearing.
The Offender chose not to give evidence on oath and to expose himself to cross-examination. The Crown has submitted that I should be circumspect in those circumstances in accepting the Offender’s asserted contrition and remorse because, at almost every step of the way, it is couched in the context of his explanation by root of the duress topic, as to why he did what he did.
In all the circumstances, I do accept that the Offender has shown remorse and contrition and the topic which I will touch upon shortly lends some support to that conclusion.
Whether he has shown complete insight into why he made the choice he did is something that I doubt, but I do feel that, over time, his own assessment as to his conduct is becoming clearer and that, ultimately, he does now accept, albeit it has taken some time to get there, that he made a conscious decision to involve himself in serious criminal conduct for which he must take ultimate responsibility.
[REDACTED]
[REDACTED]
[REDACTED]