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Court of Criminal Appeal 7 September 2015

Akbari v R; Nasiri v R

[2015] NSWCCA 240

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDERS DEMAND MONEY IN COMPANY WITH MENACES PARTICIPATE IN CRIMINAL GROUP SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Akbari v R; Nasiri v R [2015] NSWCCA 240
Court: Court of Criminal Appeal
Date: 7 September 2015
Judge(s): Bathurst CJ; R A Hulme J; Garling J

Background

Two co-offenders were sentenced in the District Court at Sydney in June 2014 following guilty pleas to demanding money with menaces in company and participating in a criminal group. The offending arose from a sustained extortion campaign against an Afghan-Australian smash repair business owner in the Hornsby area. The victim received threatening phone calls demanding $40,000, was confronted at a car park meeting by men claiming to be members of the Brothers for Life gang, and was twice visited at his workplace by the two applicants, who wore gang insignia and demanded he pay $10,000 as a "donation" or $1,000 per week.

The first applicant received an aggregate sentence of five years with a non-parole period of three years. The second applicant received an aggregate sentence of five years and four months with a non-parole period of three years and six months. Both sentences reflected 25 per cent reductions for the utilitarian value of guilty pleas.

Both applicants sought leave to appeal their sentences. The first applicant argued that insufficient weight was given to his mental illness, that the sentencing judge erred on objective seriousness, and that his sentence was manifestly excessive. The second applicant argued that the sentencing judge wrongly differentiated between the two offenders' roles, failed to apply parity principles, and similarly erred on objective seriousness and manifest excess.

  • Whether the sentencing judge gave insufficient weight to the first applicant's mental health issues, particularly given the absence of a causal link between those issues and the offending
  • Whether the sentencing judge erred in characterising count 1 (demanding money with menaces in company) as extremely serious
  • Whether the sentences were manifestly excessive
  • Whether the sentencing judge erred in distinguishing between the two offenders' respective roles
  • Whether the disparity between the two sentences gave rise to a parity error requiring intervention

Decision

On the mental health ground, R A Hulme J found no error. The sentencing judge had acknowledged the first applicant's mental health issues but noted the absence of any causal connection between those issues and the offending. This was a legitimate and orthodox approach to mental illness as a mitigating factor in sentencing.

On objective seriousness, the Court found no error in the sentencing judge's characterisation of count 1 as extremely serious. The offending involved a sustained campaign targeting a vulnerable victim, explicit threats of violence to him and his family, references to a large criminal organisation, threats to blow up his business, and demands for a substantial sum of money. The Court rejected submissions that the absence of a weapon or physical violence reduced the offence to a level below extremely serious.

On the parity ground raised by the second applicant, R A Hulme J found it was open to the sentencing judge to differentiate between the applicants. The distinctions drawn, including differences in criminal record, the nature of conditional liberty each was in breach of, and rehabilitation prospects, were all legitimate bases for differentiation. Any resulting disparity was not of a kind that could be described as "marked" or "glaring" within the meaning of the authorities.

All grounds for both applicants were rejected, and both appeals were dismissed.

Orders Made

In the case of each applicant:
- Leave to appeal against sentence granted
- Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that mental health issues will carry limited mitigating weight in sentencing where there is no causal connection between the offender's condition and the offending conduct.
  • A finding of extreme objective seriousness was upheld for a sustained extortion campaign involving gang affiliation, threats of violence to the victim and family, and demands for a substantial sum, notwithstanding the absence of weapons or physical harm.
  • In dismissing the parity ground, the Court affirmed that a sentencing judge may legitimately differentiate between co-offenders based on criminal history, the nature of conditional liberty in breach, and rehabilitation prospects, even where their roles in the principal offence were similar.
  • Under the principles in Green v The Queen; Quinn v The Queen, a Court of Criminal Appeal may intervene on parity grounds without finding the appealed sentence is itself excessive, but only where disparity is "marked" or gives rise to a genuine appearance of injustice, a threshold not met here.
  • Utilitarian discounts for guilty pleas of 25 per cent were applied without issue, consistent with standard sentencing practice under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 99(2), 93T(1), 95, 347, 350
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Road Transport Act 2013 (NSW), s 54(3)(a)

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- HL v Regina; YG v Regina [2014] NSWCCA 43
- Lowe v The Queen (1984) 154 CLR 606
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- McMenemy v R [2009] NSWCCA 50
- Newman v R [2012] NSWCCA 69
- R v Cage [2006] NSWCCA 304
- R v Smith [2004] NSWCCA 95; 144 A Crim R 577
- R v Wilson [2002] NSWCCA 65
- Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398