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Court of Criminal Appeal 14 February 2025

Khajehtaheri v R

[2025] NSWCCA 6

Drugs

Citation: Khajehehtaheri v R [2025] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 14 February 2025
Judges: Payne JA; Fagan J; Coleman J

Background

The applicant was sentenced in the District Court in September 2024 for two offences: aiding and abetting the importation of a marketable quantity of cocaine, and aiding and abetting an attempt to possess a marketable quantity of cocaine. The offending involved five separate consignments of cocaine originating from the United States, totalling over 534 grams of pure cocaine, with the applicant playing a supporting role by providing false identities and registering parcel lockers to receive the shipments.

The sentencing judge imposed an effective total term of 3 years and 9 months imprisonment, with a non-parole period of 1 year and 11 months. Her Honour applied a 25% discount to reflect the utilitarian value of the guilty pleas and the applicant's commitment to facilitating the administration of justice, referencing only s 16A(2)(g) of the Crimes Act 1914 (Cth) when doing so.

The applicant sought leave to appeal against sentence, contending the sentence was manifestly excessive and that the sentencing judge had erred in her treatment of the guilty pleas.

  • Whether the sentences imposed were manifestly excessive
  • Whether the sentencing judge erred by failing to treat the guilty pleas as evidence of contrition under s 16A(2)(f) of the Crimes Act 1914 (Cth), in circumstances where the pleas demonstrated a willingness to facilitate the course of justice
  • Whether any lesser sentence was warranted in law, given any error identified

Decision

Manifest excess: The Court of Criminal Appeal found the sentences were not manifestly excessive. Comparing the applicant's sentence against a range of comparable cases, the Court concluded that the sentence in fact displayed a significant degree of leniency, both in the effective head sentence and the non-parole period. The applicant failed to establish that the outcome was unreasonable or plainly unjust.

Error in sentencing approach: The Court accepted that the sentencing judge had erred on a narrower point. Although the judge took the facilitation of the course of justice into account under s 16A(2)(g), she did not address it under s 16A(2)(f) when dealing with contrition and remorse. The two subsections often overlap, but the Court confirmed that facilitation of the administration of justice, as a reflection of contrition, must be separately considered under s 16A(2)(f) in addition to the utilitarian value of the plea under s 16A(2)(g). That omission constituted a legal error.

Re-sentencing: The identification of that error required the Court to re-sentence the applicant. However, applying s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court concluded that no lesser sentence than that imposed at first instance was warranted. The Court took into account the objective seriousness of the offending, the applicable maximum penalties of 25 years imprisonment, the need for general deterrence, the applicant's strong subjective case (including the impact of incarceration on his family), and the extensive delay of nearly four years between offending and sentencing. Despite those mitigating factors, the effective sentence remained appropriate in all the circumstances.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Under the Crimes Act 1914 (Cth), facilitation of the administration of justice as a sign of contrition and remorse must be considered separately under s 16A(2)(f), and cannot be subsumed entirely within the treatment of a guilty plea under s 16A(2)(g), even though the two considerations frequently overlap.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying a sentencing error does not automatically produce a lesser sentence: where re-sentencing is required but all relevant factors still support the original outcome, s 6(3) of the Criminal Appeal Act 1912 (NSW) permits the appellate court to dismiss the appeal without reducing the penalty.

  • A sentence is not manifestly excessive merely because a different result might have been available. The applicant must establish the sentence was unreasonable or plainly unjust, a threshold the Court found was not met here given the overall leniency of the sentence imposed.

  • Significant pre-sentence delay, here nearly four years, is a relevant mitigating factor in federal criminal sentencing, treated as a form of additional punishment on the offender.

  • Adverse effects of incarceration on an offender's family, supported by evidence before the Court, formed part of the re-sentencing exercise, though they were insufficient to reduce the sentence below the original term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), Part IB, ss 16A, 19AB
- Criminal Code Act 1995 (Cth) s 307
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases
- Adams v The Queen (2008) 234 CLR 143
- Baden v R [2020] NSWCCA 23
- Bae v R [2020] NSWCCA 35
- Cheng v The Queen (2000) 203 CLR 248
- DL v The Queen (2018) 265 CLR 215
- El-Ghourani v R [2009] NSWCCA 140
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Kentwell v The Queen (2014) 252 CLR 601
- Obeid v R (2017) 96 NSWLR 155
- Okafor v R [2007] NSWCCA 147
- Onuorah v R (2009) 76 NSWLR 1
- R v Barrientos [1999] NSWCCA 1
- R v Chen [2002] NSWCCA 174
- R v De Leeuw [2015] NSWCCA 183
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Glynatsis [2013] NSWCCA 131
- R v Kaldor [2004] NSWCCA 425
- R v Knight [2004] NSWCCA 145
- R v Lee [2007] NSWCCA 234
- R v Nguyen [2005] NSWCCA 362