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Court of Criminal Appeal 13 February 2019

Nasiri v R

[2019] NSWCCA 16

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL OFFENDER SPECIFIC COMPLAINT THAT CO EXISTING SENTENCE THAN APPLICANT APPEAL DISMISSED

Citation: Nasiri v R [2019] NSWCCA 16
Court: Court of Criminal Appeal, New South Wales
Date: 13 February 2019
Judge(s): Gleeson JA, Schmidt J, Button J (Button J delivered the principal judgment)

Background

The applicant pleaded guilty in the District Court to attempting to break and enter premises in circumstances of special aggravation, namely being armed with a firearm. The offence arose from a gang-directed home invasion attempt in August 2013 carried out by members of the "Brothers For Life" criminal group. A related firearm offence was taken into account on a Form 1 (a procedure allowing additional offences to be acknowledged at sentencing without conviction). The sentencing judge, Judge North, imposed a head sentence of 4 years 8 months, commencing on 21 December 2016.

Critically, the applicant was already serving a pre-existing sentence at the time Judge North sentenced him. Judge North allowed the new sentence to commence six months before the expiry of the non-parole period of that pre-existing sentence, a form of partial concurrence commonly referred to as a "backdate." The applicant's co-offender, sentenced separately for the same incident, had received a backdate of one year and three months on his new sentence relative to his own pre-existing non-parole period.

The applicant sought leave to appeal on the ground that this nine-month difference in backdating constituted erroneous sentencing disparity, producing a justifiable sense of grievance in comparison with the co-offender's outcome.

  • Whether the difference in the degree of partial concurrence (backdate) granted to the applicant and his co-offender amounted to an erroneous sentencing disparity.
  • Whether the applicant could demonstrate a justifiable sense of grievance when comparing his sentence, including its backdate, to that of the co-offender.

Decision

Button J (with whom Gleeson JA and Schmidt J agreed) identified nine considerations that collectively defeated the disparity ground. First, the two offenders were not sentenced for identical matters: the co-offender faced an additional offence (being an accessory after the fact to a separate shooting) that formed part of his aggregate sentence. Second, the agreed facts placed more serious conduct directly on the applicant's co-offender, notably his possession and discharge of the firearm after the group fled, but those same facts were not reflected in the co-offender's own agreed facts.

Third, the pre-existing sentences differed materially between the two men. Judge Zahra had imposed a longer head sentence and non-parole period on the applicant than on the co-offender, by four months and six months respectively. Fourth, the applicant's criminal history was substantially worse, including five convictions for robbery in company. Fifth, the sentencing judges made different findings about rehabilitation prospects, with the co-offender attracting more favourable findings partly because the applicant had committed numerous prison discipline offences.

Taking a global view of both sentences, Button J was not persuaded that a comparative injustice had been suffered. The degree of backdate granted by way of partial concurrence is a matter within the sentencing judge's discretion, and an offender cannot insist on a backdate identical to a co-offender's. Both men received some backdate; the discrepancy of nine months did not, in all the circumstances, generate a justifiable sense of grievance. Leave to appeal was granted given the merit of the argument, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A disparity ground of appeal requires an applicant to demonstrate a justifiable sense of grievance arising from a comparison of sentences, not merely a measurable difference in one component such as the backdate period.
  • The degree of partial concurrence granted between a new sentence and a pre-existing non-parole period lies within the sentencing judge's discretion and is not reducible to precise mathematical parity with a co-offender's outcome.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that global comparison is required: differences in the underlying offences, criminal histories, pre-existing sentence lengths, rehabilitation prospects, and sentencing discounts all bear on whether disparity is truly unjustifiable.
  • Where both offenders receive some backdate and the gap between them is not extreme, the disparity ground faces a high threshold, particularly where individual sentencing factors differ significantly between the two offenders.
  • The fact that a co-offender's pre-existing non-parole period was shorter (meaning the backdate overlapped more) does not automatically translate into error in the applicant's sentence if the sentencing judge's findings otherwise support the outcome reached.

Legislation and Cases Referenced

Cases:
- Akbari v R; Nasiri v R [2015] NSWCCA 240
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Legislation: No specific legislation was identified in the provided text.