Yarmohammadi v R

1. [1]

   MITCHELMORE JA: I agree with Chen J.

2. [2]

   IERACE J: I also agree with Chen J.

3. [3]

   CHEN J: Following pleas of guilty entered in the Central Local Court, Hamed Yarmohammadi (‘the applicant’) was committed to the District Court to be sentenced for two offences of attempting to import a commercial quantity of a border controlled drug (methamphetamine) between about 19 December 2020 and 8 January 2021, contrary to s 11.2A (with ss 307.1(1) and 11.1(1)) of the Criminal Code Act 1995 (Cth) (sequences 4 and 8).

4. [4]

   The combined quantity of methamphetamine referable to these sequences was approximately 44kg, comprising 24.33kg for sequence 4 and 19.72kg for sequence 8. The maximum penalty for each offence is imprisonment for life.

5. [5]

   The applicant was also charged with a third offence, namely, possessing a commercial quantity (1.28kg) of a border controlled drug (methamphetamine) on or about 8 January 2021, contrary to s 307.5(1) of the Criminal Code (sequence 9). That offence, which also has a maximum penalty of imprisonment for life, was taken into account when the applicant was sentenced for sequence 4, pursuant to s 16BA of the Crimes Act 1914 (Cth).

6. [6]

   On 24 June 2022, the applicant was sentenced by his Honour, Acting Judge Blackmore SC (‘the sentencing judge’) to an aggregate sentence of imprisonment for ten years and six months, with a non-parole period of six years and four months, commencing from 8 January 2021 (being the date when the applicant was arrested and taken into custody) and expiring on 7 July 2031. The applicant is eligible for parole on 7 May 2027.

7. [7]

   The indicative sentences were imprisonment for eight years and six months (for sequence 4, taking into account sequence 9 on the Form pursuant to s 16BA) and imprisonment for seven years (for sequence 8).

8. [8]

   Subsequently, on 15 September 2022 and 31 January 2024, two co-offenders were sentenced. Given no issue about parity is raised on appeal, it is unnecessary to refer to the nature of their offending, nor the sentences imposed upon them.

9. [9]

   By Notice of Appeal filed 27 June 2025, the applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed, raising two grounds:

   1. (1)

      that “the sentencing judge failed to take into account the subjective value of the applicant’s plea of guilty in the sense contemplated by s 16A(2)(f)” of the Crimes Act; and

   2. (2)

      that “the sentencing judge failed to take into account the applicant’s mental condition in accordance with established principles”.

10. [10]

    On 19 September 2025, however, the applicant filed a Notice of Abandonment in respect of ground 1 and an Amended Grounds of Appeal reflecting this. The applicant’s sole ground of appeal was, therefore, ground 2.

The extension of time

1. [11]

   The applicant was required to file a notice of intention to apply for leave to appeal by 22 July 2022: s 10(1)(a) of the Criminal Appeal Act. As the applicant did not file such a notice, the “applicable period” for him to file a notice of appeal against the sentence imposed was “the period of 3 months after the…sentence”: r 3.5(2)(b) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. [12]

   The applicant’s notice of appeal is, thus, significantly out of time – by around two years and nine months.

3. [13]

   The Court has the power to extend time: s 10(1)(b) of the Criminal Appeal Act. The discretion conferred by this power is “wide” and is “to be exercised by consideration of what the interests of justice require in the particular case”: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30].

4. [14]

   The applicant relied upon the explanation given through his present solicitor, in an affidavit he affirmed on 26 June 2025.

5. [15]

   The applicant contacted his present solicitor on or around 22 August 2024, apparently against the background of the sentences imposed upon his co-offenders and the applicant’s indication that “he was unhappy with the perceived disparity”. From that time, I accept that the applicant’s solicitor acted with reasonable diligence in securing the material to investigate an appeal, including seeking a grant of legal aid.

6. [16]

   Ordinarily, when an extension of time is needed, it is necessary to explain “both ends” of the delay; that is, the explanation should address “why it is only now that the action is sought to be taken but also, and perhaps more importantly, why it was not taken when it should have been”: Capic v Ford Motor Company of Australia Limited (Late Evidence) [2020] FCA 1117 at [22].

7. [17]

   Here, the explanation only goes so far: it explains what occurred after the applicant gave instructions to his solicitor in August 2024, but says next to nothing about what occurred before then. For example, although the applicant was apparently “unhappy with the perceived disparity” with the sentence imposed upon one co-offender on 15 September 2022, the affidavit omits any explanation for why steps were not taken at that time to investigate an appeal against his sentence. It should be emphasised that the applicant was legally represented when he was sentenced and there is no suggestion in the solicitor’s affidavit that the applicant was unaware of his right to seek leave to appeal from the sentence imposed upon him, nor any suggestion of some other impediment to exercising that right if he saw fit.

8. [18]

   The applicant’s counsel fairly conceded that “the explanation for the delay may not be compelling” (applicant’s written submissions at [16]) and provided “little [by] way of enlightenment or justification” (T2.27-28) but nevertheless submitted that the Court “might consider that the delay was relatively insubstantial” (applicant’s written submissions at [16]). During submissions in this Court, the matter was put a little differently: the applicant argued that, given the application for an extension of time to file his Notice of Appeal was inextricably linked to the merits of the ground of appeal, the Court should nevertheless determine that ground and, having done so, determine whether an extension of time should be granted. In the particular circumstances, it is appropriate to proceed in this way, notwithstanding the somewhat incomplete, and therefore unsatisfactory, explanation for the delay.

Background

1. [19]

   The applicant was sentenced in accordance with a Statement of Facts (the ‘agreed facts’). What follows is drawn from those agreed facts and the sentencing judgment. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

2. [20]

   In relation to sequence 4, this offending involved a consignment of three resin bench tops that arrived in Australia on 19 December 2020 (consignment 60787204972) (‘consignment #972’). On examination, it was discovered that the bench tops had been impregnated with 24.223kg of pure methamphetamine (J2).

3. [21]

   Following its arrival, the applicant made numerous telephone calls to facilitate the delivery of these bench tops. On 7 January 2021, the bench tops were delivered to a warehouse in Lakemba which the applicant had rented. The applicant, and others, were present when the bench tops were delivered that day. The bench tops were deconstructed, and the applicant and the others remained in the warehouse for a significant part of the day.

4. [22]

   In relation to sequence 8, this offending involved the delivery of three separate consignments containing methamphetamine that arrived in Australia on 17 December 2020 (consignment 60787204552) (‘consignment #552’); 23 December 2020 (consignment 60787205285) (‘consignment #285’); and 24 December 2020 (consignment 60787205274) (‘consignment #274’) respectively (J2-3).

5. [23]

   In relation to consignment #552, the methamphetamine was concealed within two plastic pallets. The consignment could not be fully deconstructed and examined, but forensic analysis estimated the pallets to contain 13.212kg of pure methamphetamine (J2). The applicant and others contacted the freight forwarders to organise payment and customs release for the consignment and to provide delivery instructions. On 23 December 2020, the applicant received delivery of the consignment in Victoria. He assisted with unloading the consignment from a truck and then reloading it onto another before it was then scheduled for delivery to another location (J2).

6. [24]

   In relation to consignment #285, the methamphetamine was concealed within a plastic pallet. Following the arrival of that consignment, the applicant and another co-offender made frequent contact with several freight forwarders, customs brokers and logistic companies, organising for payment, customs release and delivery of the consignment. The exact quantity of the pure drug is not known, but forensic analysis estimated it as 6.532kg (J3).

7. [25]

   In relation to consignment #274, the methamphetamine was concealed within a plastic pallet. Following the arrival of that consignment, the applicant and another person made contact with a freight forwarder, organising payments and customs release to enable delivery of the consignment. This consignment was delivered to the Lakemba warehouse on 7 January 2021 where it was received by the applicant and others. The consignment was deconstructed inside the warehouse over the course of the day, where the applicant and others remained (J3). The exact quantity of methamphetamine in relation to this consignment is unknown albeit that, based upon “similarly constructed pallets and methamphetamine impregnations”, it was also estimated to contain about 6.532kg of the pure drug (J3).

8. [26]

   On 8 January 2021, the Australian Federal Police (‘AFP’) executed a search warrant at the Lakemba warehouse where consignment #972 (sequence 4) and consignment #274 (one consignment referable to sequence 8) had been delivered. The AFP seized 1.288kg of pure methamphetamine (sequence 9, contained on the Form pursuant to s 16BA) as well as mobile telephones being used by the applicant (J4). During the search, the AFP also discovered evidence that the warehouse had been used by the applicant to store and deconstruct consignments. Additionally, they discovered that the premises had operated as a clandestine drug laboratory used to extract, dilute and manufacture methamphetamine.

9. [27]

   An examination of the applicant’s mobile telephones identified a significant number of emails, photographs, videos, documents and messages relating to the ongoing importation of border controlled drugs and the manufacture of methamphetamine (J4).

10. [28]

    The sentencing judge considered, based upon the agreed facts, that the applicant “was the senior member of the group of co-offenders that was involved in these importations” and that he had “a high degree of involvement with the logistics of the enterprise to enable the importation to be carried out and thus must bear a high level of responsibility for those importations” (J5). His Honour was in “no doubt” that the applicant “was aware that he was dealing with contraband” and described the operation as a “professional one, utilising sophisticated methods to conceal the importations” (J5).

11. [29]

    In terms of the applicant’s role within the operation, the sentencing judge found that his role as a “receiver and a facilitator was a crucial one” and that the enterprise “was capable of importing large quantities of drugs over a relatively short period of time” (J5).

12. [30]

    The sentencing judge found that, given the “nature of the operation, together with the quantities of drugs being imported … these were offences that [fell] at least into the middle range of seriousness for such offending” (J5). Later, his Honour remarked that the “seriousness of the offending is frankly obvious” and that, had the matter gone to trial, “a sentence of at least 14 year[s] imprisonment would have been imposed” – observing that, on the applicant’s behalf, it was submitted that “a starting sentence of between 14 and 17 years prior to discount would be appropriate” (J7).

13. [31]

    In relation to the Form offence (sequence 9), the sentencing judge noted that the finding of more than 1kg of methamphetamine at the warehouse “must enhance the sentence to be imposed” for the principal offence (sequence 4) – particularly given the “quantity of drug is itself sufficient to trigger a maximum penalty of life imprisonment, which merely demonstrates the seriousness of the offending undertaken” by the applicant (J6).

14. [32]

    The applicant was afforded a 25% discount on “the sentence that might otherwise have been imposed”, although the sentencing judge noted that this plea “was in the face of a very strong Crown case” (J7).

15. [33]

    The sentencing judge accepted that the applicant had “no prior convictions” and was entitled to some leniency as a result, but nevertheless found that, given the serious nature of the drug importation, “the weight to be given to prior good character as a mitigating factor must inevitably be reduced” (J6). The sentencing judge accepted the applicant’s expression of remorse (J7).

16. [34]

    The applicant was accepted to have had “a difficult background” engaging the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (J6); a “long history of drug use” that started “at a relatively young age, in Iran”; and that he has “been diagnosed now with PTSD” (J6). The sentencing judge also accepted the applicant would “benefit from a longer period on parole”, with such supervision to “focus on provision of a long term drug rehabilitation course … together with assistance with post-custody housing” (J7-8).

Ground 2: failure to deal with the applicant’s “mental condition in accordance with established principles”

1. [35]

   By this ground of appeal, the applicant argues that the sentencing judge failed to take into account the applicant’s “mental condition in accordance with established principles” when sentencing him.

2. [36]

   The applicant’s argument in support of this ground of appeal has two interwoven parts: first, he argues that whilst his “mental condition” was not relied on to reduce his “moral culpability”, it nevertheless remained relevant to “deterrence, as well as the onerousness of incarceration for the applicant”; and, secondly, despite their suggested relevance, neither matter featured at all in the sentencing judgment (applicant’s written submissions at [59]). The applicant argued that a “pithy” but nonetheless direct submission was made during the sentence hearing, such that it was incumbent upon the sentencing judge to address the impact of his “mental condition” on deterrence and whether the applicant’s time in custody was more onerous than might otherwise be the case (T6.19-32).

3. [37]

   The Crown did not dispute that the sentencing judge omitted reference to these matters but submitted there was a simple explanation for why that was so: the sentencing judge was not favoured with any submissions by the applicant’s (then) counsel about them. Accordingly, the Crown argued that, given those circumstances, no error occurred in the exercise of the sentencing discretion and the applicant should not only be refused leave to appeal but refused the extension of time he required to bring this appeal.

4. [38]

   Given the respective arguments, it is necessary to examine the way in which the applicant’s then counsel addressed the issue of the applicant’s “mental condition” before the sentencing judge. Before doing so, however, it is appropriate to note the following three matters that contextualise and frame these arguments.

5. [39]

   First, the well-established principles that apply to sentencing an offender who suffers from, relevantly here, a mental illness or condition were authoritatively summarised in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (‘De La Rosa’).

6. [40]

   Drawing upon that decision, it is apparent that the existence of such an illness or condition may be taken into account in favour of an offender in one, or all, of three ways. First, where that illness or disorder “contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence”: De La Rosa at [177]. Secondly, it may have the consequence “that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed” and it “may reduce or eliminate the significance of specific deterrence”: De La Rosa at [177]. Thirdly, the existence of the illness or condition “may mean that a custodial sentence may weigh more heavily” on the offender: De La Rosa at [177]. A further consideration, which is not directly relevant to this appeal, is that the existence of that illness or condition may mean that the person presents “more of a danger to the community” and considerations of specific deterrence may operate to increase the sentence: De La Rosa at [177].

7. [41]

   The applicant’s argument is that the sentencing judge failed to address the second and third of these principles, thereby falling into error.

8. [42]

   Secondly, the statutory scheme applicable to the sentencing of an offender following conviction of a crime against federal law should be outlined. In that situation, the sentencing court must “give effect” to Part 1B of the Crimes Act: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [71]. In doing so, the sentencing court “must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”: s 16A(1) of the Crimes Act. To the extent that the matters in s 16A(2) “are relevant and known to the court”, they must be taken into account. One such matter for consideration is “the … mental condition of the person” who is to be sentenced: s 16A(2)(m) of the Crimes Act.

9. [43]

   Thirdly, the nature of the appeal to this Court warrants emphasis. This Court “is a court of error” and the “jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law”: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79] (‘Zreika’). As Zreika at [81] also emphasised, the Court, in a sentence appeal, “is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below”.

10. [44]

    A critical, and threshold, issue here is whether the submissions underpinning the ground of appeal were “presented below”. The resolution of that issue involves a consideration of the arguments raised during the sentencing hearing. It is to that issue that I next turn.

11. [45]

    Before the sentencing judge, and relevant to this ground of appeal, the applicant relied upon a report from a consultant psychologist, Sam Borenstein, dated 5 February 2022, as well as an affidavit he affirmed on 26 May 2022.

12. [46]

    In relation to the report from Mr Borenstein, he observed that the applicant had been diagnosed with “chronic and severe post-traumatic stress disorder (PTSD)” in 2018 and that the symptoms of that disorder were “confirmed by way of psychometric test results”.

13. [47]

    In relation to the applicant's affidavit, he referred to being diagnosed with PTSD in 2018 which arose out of “trauma” due to the death of his brother, as well as the effects of a sexual abuse perpetrated upon him when he was a child. He also described that he was “still dealing with these issues and [is] on medication to help with it”.

14. [48]

    The applicant’s counsel prepared written submissions on his behalf, and they were placed before the sentencing judge. The written submissions, when dealing with what was described as “mental health”, referred to the report from Mr Borenstein and noted that there was “evidence before the court of symptoms consistent with an underlying and ongoing mental health condition [of] [PTSD]”. It was further submitted:

15. [49]

    During the sentence hearing, the applicant’s counsel indicated to the sentencing judge that he relied “primarily on [his] written submissions”. The applicant’s counsel also advised the sentencing judge that the applicant’s “subjective case is set out in some detail in his affidavit and Sam Borenstein’s report” and that it was “not [his] intention to take [the sentencing judge] through that chapter and verse” as it was “summarised” in his written submissions.

16. [50]

    As was accepted in this Court, no further submissions were made to the sentencing judge about the applicant’s “mental health”, even though the Crown had accepted that, on its face, the evidence of Mr Borenstein as to the applicant’s PTSD and deprived childhood was a “live issue”.

17. [51]

    It is important to recognise that the “fact that an offender does have a mental disorder does not necessarily result in a lesser sentence for that reason”: R v Henry [2007] NSWCCA 90 at [28]. Put slightly differently but to the same end, the principles summarised in De La Rosa do not presumptively, nor mandatorily, operate in favour of a reduction in the sentence; whether they do operate in that way is necessarily fact sensitive and case specific: Blake v R [2021] NSWCCA 258 at [42].

18. [52]

    Accordingly, to secure a more lenient sentence, it is incumbent upon those appearing for an offender to engage with those principles and squarely address them by reference to the evidence adduced. The requirement, in this situation, was explained in Edwards v R [2009] NSWCCA 199 at [11] in these terms:

19. [53]

    In Zreika, this requirement was described as a “practical expectation” that submissions will be made to the sentencing judge “by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand”: at [80].

20. [54]

    Consistent with these authorities, the ground of appeal was advanced on the footing that the matters argued were only required to be considered by the sentencing judge if raised before him.

21. [55]

    In my view, the arguments raised in this Court relating to the decision in De La Rosa were not advanced below in the manner required. They were not, therefore, “relevant and known to the court” for the purposes of s 16A(2) of the Crimes Act and, thus, required to be considered in the exercise of the sentencing discretion. My reasons for so concluding are as follows.

22. [56]

    First, I do not accept, as the applicant argued, that the bare reference to De La Rosa, unaided by any submissions about the particular matters now called in aid, was in any way sufficient to raise them as issues at the sentence hearing. The sentencing judge was simply not asked to make any factual findings about the particular De La Rosa arguments now sought to be agitated on appeal.

23. [57]

    Secondly, and contrary to what the applicant’s submission (at least implicitly) sought to suggest, it is not ordinarily the function of a sentencing judge to address all possible sentencing considerations without the assistance and submissions of the parties; rather, a sentencing judge is required to consider and “decide issues that arise in the proceedings before them”: Meoli v R [2021] NSWCCA 213 at [42].

24. [58]

    Thirdly, in my view, the “practical expectation” placed upon a party seeking to engage any of the principles in De La Rosa is reinforced by the permissive terms with which they were expressed: they are neither mandatory in their application, nor presumptively applied. Given the principles summarised in De La Rosa do not all pull in the same direction – they may, for instance, call for greater weight being placed upon specific deterrence – it would be surprising if the position were otherwise.

25. [59]

    Further, in relation to the applicant’s argument that his time in custody was more onerous given the existence of his PTSD and, thus, that this should operate in favour of mitigating his sentence, the following two matters should be noted. The first is, putting to one side the fact that the sentencing judge was not favoured with any submissions on this issue (as the applicant accepted: T4.45-46), the applicant did not address this matter in his affidavit, nor was he asked any questions about that topic when he was called to give evidence. The second is that, whilst it was open for him to do so, Mr Borenstein did not address this matter at all in his report. Thus, passing over (for the moment) the other difficulties confronting the applicant's De La Rosa arguments, there is simply no basis in the evidence to make a finding favourable to him on this particular issue.

26. [60]

    For completeness, I add the following. As I have already outlined (see [36] above), the applicant’s written submissions expressly conceded that it was not submitted before the sentencing judge that the applicant’s “moral culpability was reduced by virtue of his mental condition” (applicant’s written submissions at [59]). Despite this, however, the applicant’s submissions in this Court tended to stray into this area and suggest that there had been some error on the part of the sentencing judge in failing to address, and make findings about, that particular topic. In my view, these submissions should be rejected, essentially for the reasons addressing the applicant’s other arguments.

27. [61]

    In these circumstances, the discretionary nature of the sentencing exercise and the failure to advance and develop any submissions on whether – and, if so, in what way – the applicant’s PTSD should be considered mitigatory are, in my view, fatal to this ground of appeal: Zreika at [75]-[83]. The circumstances are not of an exceptional kind (nor are they argued to be), as described in Zreika at [81], which might warrant the intervention of this Court and the consideration of the revised sentencing case now advanced by the applicant. Given that conclusion, and the matters raised in [18] above, I consider that an extension of time should be refused.

Orders

1. [62]

   For the above reasons, I propose the following order:

   1. (1)

      Refuse the applicant an extension of time to file his Notice of Appeal dated 27 June 2025.