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Court of Criminal Appeal 10 October 2025

Yarmohammadi v R

[2025] NSWCCA 161

Drugs

Citation: Yarmohammadi v R [2025] NSWCCA 161
Court: Court of Criminal Appeal (NSW)
Date: 10 October 2025
Judges: Mitchelmore JA, Ierace J, Chen J (Chen J delivered the principal judgment, with the others agreeing)

Background

The applicant had pleaded guilty in the District Court to two offences of attempting to import a commercial quantity of methamphetamine (approximately 44kg in total) between December 2020 and January 2021, under the Criminal Code Act 1995 (Cth). On 24 June 2022, Acting Judge Blackmore SC sentenced him to an aggregate term of ten years and six months' imprisonment, with a non-parole period of six years and four months.

The applicant filed a Notice of Appeal on 27 June 2025, roughly two years and nine months after the deadline had passed. He also abandoned one of his two original grounds of appeal before the hearing. The sole remaining ground was that the sentencing judge had failed to take into account his post-traumatic stress disorder (PTSD) in accordance with established sentencing principles.

Because the appeal was filed so far out of time, the applicant first needed the Court of Criminal Appeal to grant an extension of time before the appeal could proceed at all.

  • Whether the applicant should be granted an extension of time to file his Notice of Appeal, given a delay of approximately two years and nine months beyond the prescribed period.
  • Whether the sentencing judge erred by failing to take into account the applicant's PTSD as a mitigating factor, including its bearing on: (a) the onerousness of custody; and (b) the applicant's moral culpability.
  • Whether, even if relevant arguments about PTSD had not been advanced at the sentencing hearing, the Court of Criminal Appeal should intervene to allow a revised sentencing case to be advanced on appeal.

Decision

On the question of delay, the Court found the explanation for the late filing was substantially incomplete. The applicant's solicitor had explained what steps were taken after August 2024, when the applicant first gave instructions about a possible appeal, but the affidavit said almost nothing about why no steps were taken in the preceding two years. The Court noted that the applicant had been legally represented at sentencing, was not shown to have been unaware of his right to appeal, and had apparently been aware of a potential disparity issue as early as September 2022 when a co-offender was sentenced. Counsel for the applicant fairly conceded the explanation was not compelling.

On the substantive ground, Chen J held that the sentencing judge had not erred because the relevant arguments about PTSD had simply not been advanced at the sentencing hearing in the manner required. For a factor to be required to be taken into account under s 16A(2) of the Crimes Act 1914 (Cth), it must be "relevant and known to the court." Arguments that PTSD made custody more onerous, or that it reduced moral culpability, were not put to the sentencing judge. The applicant did not address the onerousness issue in his own affidavit or evidence, and the expert report filed at sentencing did not address it either. There was therefore no evidentiary basis on which the sentencing judge could have made any favourable finding on those issues.

The Court also rejected the suggestion that the sentencing judge should have addressed moral culpability in connection with PTSD of his own motion, given the applicant had expressly conceded this argument had not been advanced below. Chen J concluded that the failure to develop and advance submissions on how PTSD should be treated as mitigatory was fatal to the ground of appeal, applying the principles from Zreika v R. The circumstances were not of the exceptional kind that might justify the Court receiving a revised sentencing case on appeal.

Because the substantive ground of appeal was found to lack merit, and because the explanation for the delay was inadequate, the Court refused the extension of time.

Orders Made

  • The application for an extension of time to file the Notice of Appeal dated 27 June 2025 was refused.

Key Takeaways

  • Under s 16A(2) of the Crimes Act 1914 (Cth), a sentencing factor must be "relevant and known to the court" before the sentencing judge is required to consider it; arguments not properly advanced at the hearing cannot be relied upon to establish error on appeal.
  • The Court of Criminal Appeal confirmed that where an offender seeks to argue on appeal that a mental condition mitigated the sentence, the failure to put that argument to the sentencing judge, or to adduce supporting evidence, will generally be fatal to the ground.
  • A late notice of appeal requires explanation of both ends of the delay: why the appeal was not brought when it should have been, as well as what steps were taken once proceedings were commenced. An explanation that addresses only the latter period will ordinarily be insufficient.
  • In dismissing the appeal at the extension-of-time stage, the Court applied Zreika v R, confirming that the discretion to allow a revised sentencing case to be advanced on appeal is reserved for exceptional circumstances, which were not present here.
  • No error was established merely because an expert report addressed a mental health condition in general terms; absent evidence or submissions specifically linking that condition to onerousness of custody or reduced moral culpability, there is no foundation for the sentencing court to make favourable findings on those issues.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including s 16A(2) and s 16BA
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.5(1), 11.1(1), 11.2A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(b)

Cases:
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Blake v R [2021] NSWCCA 258
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Meoli v R [2021] NSWCCA 213
- Edwards v R [2009] NSWCCA 199
- R v Henry [2007] NSWCCA 90
- Capic v Ford Motor Company of Australia Limited (Late Evidence) [2020] FCA 1117