Hashemi v R

THE COURT: The applicant, Mr Hashemi, pleaded guilty before a magistrate to one count of discharge a firearm at a dwelling house contrary to s 93GA(1) of the Crimes Act 1900 (NSW).

He was sentenced upon that plea of guilty in the District Court of New South Wales on 1 May 2013 to a term of imprisonment of 21 months suspended pursuant to s 12 of the Crimes (Sentencing and Procedure) Act 1999 (NSW).

In sentencing Mr Hashemi, his Honour took into account two matters on a Form 1: possession of ammunition (one cartridge) and possession of four tablets of MDMA (ecstasy).

The sentencing judge accepted that the plea was entered by Mr Hashemi on the basis that he was part of a joint criminal enterprise. He did not actually discharge the shots in question.

By notice filed 29 January 2016, Mr Hashemi seeks to appeal against his conviction on the ground that there was no evidence from which it could be found that he had the requisite intent to be convicted of the subject offence.

The Crown conceded that ground of appeal. Although it submitted that there was arguably evidence of the requisite intent, in the form of the plea of guilty which represented an admission to the essential elements of the offence (R v SL [2004] NSWCCA 397 at [51]), the Crown accepted that the circumstances suggested that the plea of guilty was not attributable to a genuine consciousness of guilt as it was based on incorrect legal advice and that a miscarriage of justice may therefore have resulted.

In particular, the Crown accepted that the agreed facts, which were summarised in the sentencing judge’s remarks on sentence, themselves raised a suggestion that liability was framed on unsound basis, namely that:

The Crown accepts that the second sentence in the passage extracted above from the agreed facts would suggest that liability was contemplated as accessory after the fact, which would have carried a lesser and different penalty. The Crown had accepted at the sentencing hearing that Mr Hashemi did not have the requisite mens rea and did not have the knowledge of what was happening.

The Crown also accepts that it is apparent from the transcript of the proceedings that Mr Hashemi’s legal representative was labouring under the misapprehension that liability for the principal offence would be founded on the basis that Mr Hashemi was an accessory after the fact.

The Crown notes that the appellant was ultimately sentenced on the basis that he was not aware what was going to occur when he embarked upon the journey to the premises. Accordingly, the Crown concedes that the evidence did not establish the offences particularised in the Court Attendance Notice and that the plea to the charge on the Court Attendance Notice should not have been accepted.

This Court, having reviewed the appeal papers, considered that the Crown’s concession was well-founded and made orders remitting the matter to the District Court. These are the Court’s reasons for so doing.

In the circumstances referred to above, the question arose as to what orders the Court should make.

Mr Hashemi conceded before this Court that he should probably have been convicted of being an accessory after the fact. However, s 347 of the Crimes Act, which would thus have been applicable, is not a statutory alternative count to s 93GA(1) and the offence could not therefore be substituted by this Court for the s 93GA(1) offence to which Mr Hashemi had pleaded guilty (Tweeddale v Regina [2012] NSWCCA 99 at [24]). Section 7(2) of the Criminal Appeal Act 1912 (NSW) does not apply in the present case as Mr Hashemi pleaded guilty rather than having been convicted (R v Wilkes [2001] NSWCCA 383).

The Crown submitted that the proper approach in the circumstances was for the Court to make an order, under s 8A of the Criminal Appeal Act, that the proceedings before the magistrate before whom the appellant pleaded guilty be continued. That was the course taken in Wilkes, where the Crown sought leave to amend the Court Attendance Notice.

This Court, however, took the view that it was preferable for the matter to be remitted, pursuant to s 12(2) of the Criminal Appeal Act, to the District Court for a hearing de novo in light of the acknowledgment by Mr Hashemi that he was an accessory after the fact. Although the only initiating process in existence is the Court Attendance Notice, it was accepted by Counsel for Mr Hashemi that the Court Attendance Notice could be withdrawn and the matter proceed on an ex officio filing in the District Court for the charge of being an accessory after the fact.

Having regard to the fact that the matter would in any event have to be dealt with in the District Court for the further plea, the Court took the view that it was preferable to remit the matter pursuant to s 12(2) of the Criminal Appeal Act to the District Court on that basis. The order was made accordingly.