Citation: Behjani-Zadeh v R [2018] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 23 May 2018
Judges: Basten JA (with Button J and Fagan J agreeing)
Background
The appellant was arrested in April 2015 carrying a loaded .22 calibre pistol and a large sum of drug proceeds in a satchel. A search of his apartment uncovered small quantities of drugs, drug supply equipment, and additional ammunition. CCTV footage from the premises separately revealed an incident from seven months earlier in which the appellant had pointed the same pistol at a woman he shared the unit with, told her he would kill her, and caused her obvious fear.
These facts gave rise to four charges: possessing an unauthorised prohibited firearm (count 4, arising from the April 2015 arrest); possessing a loaded firearm so as to endanger life (count 2, from the September 2014 incident); intimidation with intent to cause fear of harm (count 3, from the same September 2014 incident); and organising or conducting drug premises. Following guilty pleas, the appellant was sentenced in the District Court to an aggregate sentence of 8 years and 6 months, with a non-parole period of 5 years and 6 months.
The appellant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had impermissibly double-counted his culpability by treating overlapping elements of counts 2, 3, and 4 as aggravating features of one another, and that all three principal counts being assessed above the mid-range of objective seriousness was evidence of that error.
Legal Issues
- Whether the sentencing judge double-counted the appellant's culpability by relying on conduct or elements common to counts 2, 3, and 4 when assessing their individual seriousness.
- Whether the fact that counts 2 and 3 both involved the same pistol and the same incident meant the judge erred in assessing count 3 as aggravated by the use of a loaded firearm.
- Whether counts 2 and 3 could both validly stand as separate charges, given that they arose from the same facts.
- Whether placing all three principal counts above the mid-range of objective seriousness was itself indicative of duplication.
- Whether, if no error in grounds 1 to 4 was established, the aggregate sentence was manifestly excessive.
Decision
The Court rejected each ground of appeal. On the double counting argument, Basten JA drew a clear distinction between counts 2 and 4: although both involved the same pistol, they concerned conduct on entirely different dates. Count 4 arose from the April 2015 arrest; counts 2 and 3 arose from the September 2014 incident. No common factual element was shared between those two groups of charges, so no risk of double punishment arose across them.
On the relationship between counts 2 and 3, the Court acknowledged they arose from the same incident, but held the sentencing judge had not double-punished the appellant. The judge had assessed those counts together but separately from count 4, made counts 2 and 3 effectively concurrent, and accumulated a degree of penalty only as between that group and count 4. The Court applied the principle from Pearce v The Queen that where two offences share common elements, a sentencing court must not punish the offender twice for those shared elements, but held that principle was properly observed here.
On the argument that the use of a loaded firearm, the subject of count 2, was improperly used as an aggravating feature of count 3, the Court explained the correct position: the same underlying facts can legitimately inform the assessment of multiple charges. The conduct of pointing a loaded pistol at the victim was a relevant aggravating fact when sentencing for the intimidation offence (count 3), even though the same conduct formed the basis of count 2. That is different from treating one charge as an aggravating feature of another.
Because the appellant himself accepted that ground 5 (manifest excess) depended on establishing one of the earlier errors, the dismissal of grounds 1 to 4 meant the appeal necessarily failed on all grounds.
Orders Made
- Leave to appeal from the sentence imposed by the District Court on 27 March 2017 was granted.
- The appeal was dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that the prohibition in Pearce v The Queen against double punishment for common elements does not prevent a sentencing court from considering the same underlying facts when assessing the objective seriousness of multiple offences, provided the offender is not punished twice for the same elements.
- Where overlapping charges arise from the same incident, the appropriate response in sentencing is to make those sentences concurrent or effectively concurrent, rather than to treat one charge as an aggravating feature of the other.
- A plea in bar cannot succeed where each charge requires proof of at least one fact the other does not, even if both charges arise from the same episode of conduct, as confirmed by reference to Pearce v The Queen at [28].
- The fact that multiple charges are each assessed above the mid-range of objective seriousness is not, of itself, evidence of double counting. It may simply reflect that the underlying conduct for each charge was genuinely serious when assessed independently.
- In dismissing the appeal, the Court emphasised that charges involving the same weapon on different dates raise no double counting concern, because the separateness of the occasions eliminates any shared element.
Legislation and Cases Referenced
Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 (intimidation causing fear)
- Crimes Act 1900 (NSW), s 93G (possessing a loaded firearm so as to endanger life)
- Criminal Procedure Act 1986 (NSW), s 166 (certificate matters)
- Firearms Act 1996 (NSW), s 7 (possession of unauthorised prohibited firearm)
Cases:
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (McHugh, Hayne and Callinan JJ) -- the leading authority on double punishment and plea in bar where offences contain common elements