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Court of Criminal Appeal 4 April 2025

R v Danishyar

[2025] NSWCCA 46

Assault & violenceDrugsTheft & propertyPublic order & justice offences
SENTENCE THE RESPONDENT

Citation: R v Danishyar [2025] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 4 April 2025
Judges: N Adams J, Ierace J (with whom N Adams J agreed), Chen J

Background

The respondent was serving three pre-existing sentences at the time he appeared for sentence in the District Court in June 2024. Those pre-existing sentences carried an effective overall non-parole period expiring 27 August 2035, arising from serious offending including being an accessory to murder.

On 28 June 2024, Judge Whitford SC sentenced the respondent on six further offences, to which he had pleaded guilty. These included supply of a large commercial quantity of methylamphetamine, participating in a criminal group, taking and driving a vehicle without consent, supply of a prohibited drug, and two counts of threatening a public justice official. The sentencing judge imposed an aggregate sentence of 8 years with a 6-year non-parole period, commencing 28 August 2028. Because the non-parole period of the new sentence ran wholly concurrently with the existing overall non-parole period, the respondent did not incur any discrete additional custodial punishment for the new offences.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate. The Crown's core complaint was the absence of any accumulation on the overall non-parole period.

  • Whether the sentencing judge erred by imposing a wholly concurrent non-parole period, resulting in no discrete custodial punishment for the additional offending
  • Whether undue weight was placed on the non-parole period ratio (the proportion of the total sentence represented by the non-parole period) at the expense of other sentencing factors, including general deterrence and denunciation
  • Whether the need to maintain public confidence in the administration of justice required some accumulation to the overall non-parole period
  • Whether, if error was established, the Court should exercise its residual discretion to decline to re-sentence
  • What the appropriate sentence was on re-sentence, having regard to the principle of totality

Decision

The Court of Criminal Appeal upheld the appeal, finding that the sentencing judge had placed undue weight on maintaining the non-parole period ratio at or below 75 per cent, while giving insufficient weight to other sentencing factors. The result was that the respondent faced no additional custodial consequence for a further series of offences, some of which, particularly the threatening of public justice officials, were qualitatively different from his earlier offending and called for expressions of general deterrence and denunciation.

Ierace J, with whom N Adams J and Chen J agreed, held that public confidence in the administration of justice required at least some period of accumulation to the overall non-parole period. The principle articulated in R v MAK; R v MSK (2006) 167 A Crim R 159 was applied: where additional offending occurs, it must receive some formal reflection in the overall custodial term. The fact that accumulation would push the overall non-parole period ratio above 75 per cent did not, of itself, preclude a modest increase. Whether such an increase is warranted, and to what extent, must be assessed in the particular circumstances of each case.

The Court declined to exercise its residual discretion to refrain from re-sentencing. On re-sentence, it imposed the same aggregate term of 8 years with a non-parole period of 6 years and the same indicative sentences. However, the commencement date was shifted forward by one year, to 28 August 2029, producing an overall non-parole period expiring 27 August 2035, which added six months to the existing overall non-parole period. The resulting overall non-parole period ratio of approximately 78.9 per cent was accepted as appropriate in the circumstances. A remaining parole period of 5 years was considered sufficient to address the significant rehabilitation concerns arising from the respondent's prolonged institutionalisation since age 23.

Orders Made

  • Appeal upheld
  • Respondent re-sentenced to an aggregate term of imprisonment of 8 years, commencing 28 August 2029 and expiring 27 August 2037
  • Aggregate non-parole period of 6 years, expiring 27 August 2035 (extending the overall non-parole period by six months)
  • Overall period of parole: 5 years
  • Indicative sentences otherwise unchanged

Key Takeaways

  • Public confidence in the administration of justice requires that additional offending receives some formal reflection in the overall non-parole period; a wholly concurrent result that yields no discrete custodial consequence for further offences may constitute error.
  • Whether the principle of totality requires an increase to the overall non-parole period, including where that increase would push the ratio above 75 per cent of the total sentence, must be assessed in the particular circumstances of each case. No rigid ceiling applies.
  • Undue focus on maintaining the non-parole period ratio at or below 75 per cent, at the expense of deterrence, denunciation and the nature of the specific offending, can constitute a sentencing error warranting appellate intervention.
  • The qualitative character of additional offending is relevant: the threatening of public justice officials was treated as materially different from the respondent's other criminality and independently warranted general deterrence and denunciation.
  • In exercising the sentencing discretion afresh, the Court of Criminal Appeal factored in the significant risk of institutionalisation facing the respondent, calibrating the extent of accumulation so as to preserve a meaningful parole period.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 10A, Pt 4 Div 1A
- Crimes Act 1900 (NSW), ss 18(1)(a), 93T(1), 154A(1)(a), 326(1)(c), 346, 347, 349(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Danishyar v R; R v Danishyar [2023] NSWCCA 300
- R v Danishyar (No 2) [2024] NSWSC 353
- R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654
- Postglione v R (1997) 189 CLR 295; [1997] HCA 26
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- GP v Regina [2017] NSWCCA 200