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Court of Criminal Appeal 2 September 2002

Regina v Farshid Zarei

[2002] NSWCCA 350

Drugs
APPEAL AGAINST CONVICTION AND SENTENCE PAROLE PERIOD OF EIGHTEEN MONTHS

Citation: Regina v Farshid Zarei [2002] NSWCCA 350
Court: Court of Criminal Appeal, New South Wales
Date: 2 September 2002
Judge(s): Hodgson JA, Simpson J, Bergin J

Background

The appellant pleaded guilty in the Local Court to a charge of supplying cocaine on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The offending involved three separate street-level sales of small quantities of cocaine to undercover police officers in Kings Cross between 30 May and 6 June 2001, as part of a controlled police operation. The appellant was committed to the District Court for sentencing and represented by Legal Aid solicitors at both stages.

Acting District Court Judge Nash sentenced the appellant to three years imprisonment with a non-parole period of eighteen months. A discount of 15% was applied for the guilty plea, and the non-parole period was fixed at 50% of the head sentence.

The appellant, who appeared in person in the Court of Criminal Appeal, challenged both the conviction and the sentence. His primary complaints concerned alleged misleading and negligent conduct by his former solicitors, and a contention that the sentence was outside the appropriate range for s 25A offences.

  • Whether the conduct of the appellant's former Legal Aid solicitors amounted to misleading or negligent advice that affected the fairness of the proceedings or the validity of the conviction
  • Whether the sentence of three years imprisonment with an eighteen-month non-parole period was outside the range for offences of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether the sentencing judge made any identifiable error in the sentencing process, including in the discount applied for the guilty plea and the fixing of the non-parole period

Decision

The Court rejected the appellant's allegations concerning his former solicitors. The Court found no basis to conclude that the legal representatives had acted in a way that undermined the conviction or that any misconduct had occurred sufficient to warrant intervention.

On the sentence appeal, Bergin J (with whom Hodgson JA and Simpson J agreed) reviewed comparable cases decided under s 25A, including R v Nuth, which was identified as the closest factually to the present matter. In R v Nuth, an eighteen-year-old minor operative who supplied small quantities of heroin on three occasions was re-sentenced on appeal to three years imprisonment with an eighteen-month non-parole period, after the original sentence was found manifestly excessive.

The Court found that the subjective features in the appellant's case were not as strong as those in R v Nuth or R v Thompson. However, the sentencing judge had taken those features into account appropriately, as reflected in the setting of the non-parole period at 50% of the head sentence. The 15% discount for the guilty plea, entered after the appellant had viewed the videotapes of the transactions, was considered appropriate in the circumstances.

No error was identified in the sentencing process, and the Court was not satisfied that the sentence fell outside the available range. Leave to appeal against severity was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against the severity of the sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentence of three years imprisonment with an eighteen-month non-parole period for three street-level cocaine supplies under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) was held to fall within the appropriate sentencing range.
  • In assessing sentence severity on appeal, the Court of Criminal Appeal compared the appellant's subjective features against those in earlier s 25A cases, including R v Nuth and R v Thompson, and found the present appellant's circumstances were less compelling.
  • A guilty plea entered only after the appellant viewed videotape evidence of the transactions attracted a 15% discount, which the Court found appropriate given the timing and circumstances.
  • Allegations of misleading or negligent conduct by former solicitors will not succeed on appeal without a sufficient evidentiary foundation establishing that the conduct affected the fairness of the proceedings or the validity of the outcome.
  • Under s 25A, the maximum penalty is 3,500 penalty units or twenty years imprisonment, or both, reflecting the seriousness with which ongoing supply offences are treated even where individual transactions involve small quantities.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A, s 43
- Drug Misuse and Trafficking Regulation 1994 (NSW), Part 3
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases
- R v Hoon; R v Pouoa [2000] NSWCCA 137
- R v KRC [2000] NSWCCA 541
- R v Nuth [2001] NSWCCA 318
- R v Pakistan [2001] NSWCCA 49
- R v Thompson [2000] NSWCCA 362
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- R v Van [2002] NSWCCA 148