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Court of Criminal Appeal 28 June 2017

Amiri v R

[2017] NSWCCA 157

DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL APPEAL SENTENCE APPEAL “BROTHERS 4 LIFE” LEAVE TO APPEAL GRANTED APPEAL REFUSED

Citation: Amiri v R [2017] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 28 June 2017
Judge(s): Macfarlan JA, Latham J, Campbell J

Background

The applicant pleaded guilty to two offences arising from a series of persistent attempts to recover a bag belonging to the notorious criminal organisation "Brothers 4 Life" (B4L). The bag contained a large commercial quantity of 25I-NBOMe (a potent psychedelic drug), a sawn-off pump action shotgun, a pistol, ammunition, and other prohibited substances. Four related charges were also taken into account on a Form 1.

The applicant was not a member of B4L but had sought full membership, which the gang rejected. He acted at the direction of senior members of the Blacktown Chapter, making 27 separate telephone calls and personal attendances over roughly a month in an effort to retrieve the bag from a former associate who had secretly begun cooperating with police. The bag was intercepted before it was recovered, and the applicant was arrested on 8 January 2014.

In December 2015, Judge Frearson SC in the District Court sentenced the applicant to a total effective sentence of seven years' imprisonment with a non-parole period of four years and six months, after applying a 14 per cent discount for the guilty pleas and finding special circumstances based on the applicant's drug addiction and totality.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences by placing them at approaching the middle of the range
  • Whether the total effective sentence of seven years with a non-parole period of four years and six months was manifestly excessive, having regard to the applicant's subjective circumstances

Decision

On the first ground, the Court of Criminal Appeal rejected the submission that the sentencing judge had misjudged objective seriousness. Campbell J, with whom Macfarlan JA and Latham J agreed, found that the applicant was the principal point of contact for B4L in recovering the bag, knew of the bag's contents and their value (believed to be around $150,000), and made very considerable efforts over an extended period. The fact that the bag was ultimately intercepted by police before recovery did not materially reduce culpability.

The Court also rejected the applicant's argument that the attempted nature of the offences, or the absence of financial gain, placed the conduct near the bottom of the range. The involvement of a large criminal organisation, the quantity of drugs (almost 1,000 times the large commercial threshold), and the presence of multiple prohibited weapons all supported the sentencing judge's finding that the offences approached the midpoint of seriousness.

On the second ground, the Court found the sentence was not manifestly excessive. The applicant's subjective case, including his background as a refugee, remorse, relative youth, limited criminal history, and prospects for rehabilitation, had all been considered by the sentencing judge. The Court noted that the applicant, aged 27 at the time of the offending, was past the age of maturity, and that his fear of reprisals from B4L was properly treated as an inevitable consequence of his voluntary association with a lawless gang rather than as a genuine mitigating factor.

The Court confirmed that, while those subjective matters were relevant, they could not be permitted to displace the objective gravity of the offending. No error in the sentencing discretion was established, and the total effective sentence could not be characterised as plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an applicant who acts as the central operative for a criminal organisation in recovering contraband can properly be sentenced at close to the midpoint of objective seriousness, even where the attempt ultimately fails.
  • A claimed fear of reprisals from a criminal gang does not constitute a meaningful mitigating factor where the offender voluntarily associated with that gang and actively carried out its directions.
  • The attempted nature of the relevant drug and firearm offences did not automatically place the conduct at the lower end of the sentencing range, particularly given the scale of the operation and the quantities involved.
  • Subjective circumstances, including refugee background, remorse, limited criminal history, and rehabilitation prospects, must be weighed against objective seriousness and cannot be allowed to swamp it.
  • An offender aged 27 at the time of offending is not entitled to the leniency ordinarily available to very young offenders, and a prior record that is not aggravating in itself does not necessarily attract the same degree of mitigation as a wholly unblemished history.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), s 3(1)
- Firearms Act 1995 (NSW), s 7(1), s 51CA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(d)

Cases:
- 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
- Collier v R [2012] NSWCCA 213
- D A C v Regina [2006] NSWCCA 265
- Dinsdale v The Queen (2000) 202 CLR 321
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Mulato v R [2006] NSWCCA 282
- R v Dodd (1991) 57 A Crim R 349
- R v Lachlan [2015] NSWCCA 178
- R v Nassif [2005] NSWCCA 38
- Salafia v R [2015] NSWCCA 141
- Veen v The Queen (No 2) (1988) 164 CLR 465