AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 20 October 2023

R v Rostami

[2023] NSWDC 437

Drugs
CRIME

Citation: R v Rostami [2023] NSWDC 437
Court: District Court of New South Wales
Date: 20 October 2023
Judge(s): Mahony SC DCJ

Background

The offender, a woman born in 1996, was sentenced for manufacturing a prohibited drug in a quantity greater than the large commercial threshold, contrary to section 24(2) of the Drug Misuse and Trafficking Act 1985. The offending took place between January and June 2020 and involved the extraction of 1,793 grams of methylamphetamine, well above the 0.5 kilogram large commercial quantity threshold. The maximum penalty for the offence is life imprisonment, with a standard non-parole period of 15 years.

The offender participated in the criminal enterprise alongside her then-partner Saeidi and two other co-offenders. The operation involved importing furniture concealing methylamphetamine from overseas, renting storage units and an apartment to conduct the extraction process, and purchasing chemicals and equipment. The Crown accepted that the offender acted at all times under the direction of Saeidi and may not have known the precise quantity of drugs being produced.

Three co-offenders had already been sentenced: Saeidi received 8 years imprisonment with a non-parole period of 5 years; Heidari and Fapuiaki each received 2-year Intensive Corrections Orders. The principle of sentencing parity was therefore directly relevant to the determination of the offender's sentence.

Legal Issues

  • What was the appropriate assessment of the objective seriousness of the offender's role in the manufacturing enterprise?
  • Whether the offender's mental health diagnoses (PTSD, anxiety, ADHD, and probable BPD) reduced her moral culpability or diminished the weight to be given to general and specific deterrence.
  • Whether a causal connection existed between the offender's mental health and her offending conduct.
  • Whether special circumstances existed warranting a departure from the standard ratio between head sentence and non-parole period.
  • How the principle of sentencing parity applied given the sentences imposed on the three co-offenders.
  • What utilitarian discount applied for the offender's late plea of guilty.

Decision

Objective Seriousness

The court assessed the offender's conduct across a five-month period involving multiple premises, chemical purchases, hands-on participation in extraction, and awareness of the financial and operational dimensions of the enterprise. Although the Crown accepted she acted under Saeidi's direction and may not have known the exact quantity produced, the court found she was aware she was participating in a significant and sophisticated criminal enterprise. The court assessed the objective seriousness as falling below mid-range and in the middle of the low range for an offence under section 24(2) of the Act, while emphasising it still constituted very serious criminal offending (at [93]).

Mental Health and Moral Culpability

The offender had been diagnosed with PTSD, anxiety, and ADHD, and had a history of childhood domestic violence, family dislocation, and sexual assault at age 16 (at [40]-[46]). The court found no causal connection between those mental health issues and the offending conduct, noting the offender was working and studying at the time (at [99]). However, the court accepted that her mental health history and background of deprivation provided context for her participation in the enterprise under Saeidi's direction. Her moral culpability was found to be reduced by reason of her subjugation to Saeidi and her mental health issues, and the significance of general and specific deterrence was described as somewhat diminished (at [101]).

Remorse, Rehabilitation, and Special Circumstances

The court accepted the offender's letter of apology as genuine and found she had reasonable prospects of rehabilitation, supported by her completion of programs in custody and her motivation to regain custody of her daughter (at [102]). Special circumstances were established because this was the offender's first period of custody, she had experienced onerous conditions during COVID-19 lockdowns while on remand, and she required extended supervision upon release (at [103]). The court varied the standard ratio between head sentence and non-parole period accordingly.

Parity and Sentence

Applying the parity principle by reference to the sentences imposed on the co-offenders, and allowing a 10 percent utilitarian discount for the late plea of guilty, the court imposed a total sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years, commencing on 6 February 2021 (at [109]-[110]). The court noted that the offender pleaded guilty to the same offence as Saeidi but received a lesser sentence, reflecting her lower role, greater subjective factors, and the different circumstances of the two co-offenders sentenced to Intensive Corrections Orders (who faced a different, lesser offence with no standard non-parole period and received higher utilitarian discounts) (at [109]).

Orders Made

  • The offender was convicted of manufacturing a prohibited drug greater than large commercial quantity contrary to section 24(2) of the Drug Misuse and Trafficking Act 1985.
  • A non-parole period of 3 years imprisonment was imposed, commencing 6 February 2021 and terminating 5 February 2024.
  • A balance of term of 2 years and 6 months was imposed, commencing 6 February 2024 and terminating 5 August 2026.
  • The total sentence imposed was 5 years and 6 months imprisonment.
  • Parole eligibility date: 5 February 2024 (release to parole is not automatic and is subject to a State Parole Authority hearing).

Key Takeaways

  • Under section 24(2) of the Drug Misuse and Trafficking Act 1985, a participant who acts under the direction of a more dominant co-offender and may not have known the precise quantity of drugs produced may still attract a finding that they were aware of a significant and sophisticated criminal enterprise, particularly where their involvement was active and sustained over months (at [93]).

  • A court may find that an offender's mental health issues and history of deprivation reduce moral culpability and diminish the weight to be given to general and specific deterrence, even where no direct causal connection between those issues and the offending is established (at [99]-[101]).

  • The District Court confirmed that the principle of parity requires close attention to differences between co-offenders, including differences in the offence charged, the applicable maximum penalty, utilitarian discount received, and subjective circumstances, before drawing comparisons across sentences (at [105]-[109]).

  • Special circumstances were found to exist where the offender was serving her first period of full-time custody, had endured particularly onerous remand conditions during the COVID-19 pandemic, and required extended post-release supervision to support rehabilitation (at [103]).

  • Where an offender in a large commercial drug manufacture case has pleaded guilty late, after proceedings were listed for trial, a 10 percent utilitarian discount is available, though the court may decline to treat the plea as independently demonstrating remorse where a strong Crown case was assembled against the offender (at [97], [104]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hoskins v R [2021] NSWCCA 169
- Parente v R (2017) 270 A Crim R 412; [2017] NSWCCA 284
- Perrin v R [2021] NSWDC 408
- R v Drever [2022] NSWDC 563
- R v Millwood [2012] NSWCCA 2