Akbari v R; Nasiri v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by R A Hulme J and with his Honour’s reasons.

2. [2]

   R A HULME J: On 27 June 2014, his Honour Judge Zahra SC in the District Court at Sydney sentenced Nazir Ahmad Akbari and Mohammed Nasiri ("the applicants") as follows:

3. [3]

   The indicative sentences in the case of each of the applicants were reduced from what they otherwise would have been on account of the utilitarian value of their pleas of guilty. In Akbari's case, there was a 25 per cent reduction for counts 1 and 2 and 15 per cent for count 3. In Nasiri's case there was a 25 per cent reduction for both counts.

4. [4]

   Mr Akbari seeks leave to appeal against sentence upon the following grounds:

5. [5]

   Mr Nasiri seeks leave to appeal against sentence upon the following grounds:

Facts

1. [6]

   The victim of this offence was an Afghan man who was the owner/operator of a smash repair business at Hornsby. On the evening of 13 July 2013 he received a call from a man who demanded $40,000 be paid within a week. The man said that he knew that the victim had a wife and children and threatened to blow up his shop. He warned the victim not to contact police as there would be consequences. He said "they" had 4000 foot soldiers; "no one on the face of the earth" could save him; "they" would hurt the victim; and they would blow up his shop. This call was made from a telephone service subscribed using a false name and address.

2. [7]

   Late on the night of 16 July 2013 the victim received a call from another phone subscribed with false identification details. The victim described the voice as the same as in the earlier call. He told the caller that he could not pay any money. He was told that if he wanted to know who "they" were, he should attend a meeting the following evening at North Granville. The victim agreed to do so in order to appease the caller. He had not reported the threats to police at this point because he feared reprisals.

3. [8]

   The victim attended the carpark of a fast food restaurant at North Granville on the evening of 17 July 2013 where he saw four males standing together. The victim was directed to approach them. The ensuing conversation included the men claiming that they were from the Brothers for Life criminal gang. Reference was made to the demand for $40,000. The victim protested that he could not afford to pay. He was told to go, but warned that "we'll deal with you later". He was told that he would be hurt; his shop would be blown up with him in it.

4. [9]

   One of the four males (“X”) was later identified and was charged. The victim said that he recognised his voice from the earlier phone calls.

5. [10]

   The victim received a call from X the following day (again from a phone subscribed with false information). He was asked whether he intended to pay the money. The victim terminated the call. He received a call from the same number two minutes later but he did not answer it.

6. [11]

   A third party reported the essence of these communications with the victim to the police and an investigation by the Middle Eastern Organised Crime Squad commenced. The victim was contacted but he said he did not wish to report the matter because he was fearful of reprisals.

7. [12]

   Almost six weeks later, on 26 August 2013, the applicants came to the victim’s workshop. They were wearing clothing with Brothers for Life insignia. The following exchange took place:

8. [13]

   After the applicants left the victim contacted a solicitor and arrangements were made for him to report the matter to police.

9. [14]

   The following day, 27 August, the applicants returned to the victim’s workshop. Nasiri, but not Akbari, was again wearing clothing with Brothers for Life insignia. Police surveillance was in place. Nasiri demanded that the victim pay $10,000 as a “donation”. When the victim told him he operated a small business and could not afford to pay, Nasiri told him to obtain a loan. He also told the victim that he had stopped “other people” from coming to the workshop. The victim repeated that he could not afford to pay and asked what would happen if he did not. Nasiri told him that this was “not going to end good”. Akbari said, “If I go to tell that to the big guy … I swear to the Koran it is not going to end good”. Nasiri told the victim that they would leave and go and speak to their leader. He also said that there were 300 of “them”.

10. [15]

    In a subsequent photographic identification procedure the victim identified the applicants as the persons involved in the events of 26 and 27 August. There was no evidence that they were involved in the earlier events.

11. [16]

    The victim was told by X in the phone calls on 13 and 16 July 2013 and at the meeting at North Granville on 17 July that there were a number of people acting together to obtain money. X was in the company of three males when he met with the victim on 17 July. X was acting in concert as part of a criminal group with those males on 17 July and with the applicants on 26 and 27 August 2013 for the purpose of extorting money from the victim. The applicants and X all claimed to be part of the Brothers for Life gang and told the victim that people would be sent to either assault him or to damage his business premises unless he paid the money that was demanded.

12. [17]

    Akbari was arrested when he reported to a police station on 11 September 2013 as part of bail conditions in respect of another matter.

13. [18]

    Nasiri was arrested at his home on 21 September 2013.

14. [19]

    This offence occurred at an earlier time; on 21 June 2012. The victim, in the company of his girlfriend, was engaged in the supply of a relatively small quantity of cannabis in the vicinity of a shopping area at Cherrybrook when the "purchaser" assaulted him and stole $90 worth of the substance and $10 from his wallet. Akbari was present when this occurred but the Crown accepted that he had no forewarning of the robbery. However, immediately after the principal offender had left, the following exchange occurred:

15. [20]

    The statement of facts included that Akbari said this to deter the victim from reporting the incident to police and to hinder the apprehension of the principal offender.

16. [21]

    These offences relate to the intimidation of the victim and his girlfriend in relation to the robbery matter.

17. [22]

    Nasiri’s driver’s licence was suspended on 30 July 2013. He was seen driving on 27 August 2013.

Personal circumstances – Akbari

1. [23]

   Akbari was born in Afghanistan in 1986, when the country was at war. Members of his family were killed in the conflict and he was exposed to violence from an early age. When he was 8 or 9 he was sexually assaulted by a stranger and claims to have experienced ongoing nightmares as a result of these assaults. He came to Australia at the age of 16 in 2003 with his mother and four siblings. (His father had disappeared when he was 10 or 11.) He had problems adjusting to life in Australia because of his poor English skills. At school he was sometimes called a “terrorist”. He was expelled from school at the end of Year 11 for fighting.

2. [24]

   Akbari has a criminal record, although, prior to the present offences he had not been sentenced to a term of imprisonment. In 2007 he appeared in the Local Court for driving offences. He has been convicted of resist police, drug offences, offences of dishonestly obtaining property by deception, larceny and shoplifting. He was on bail for the robbery matter at the time of committing the demand money with menaces offence.

3. [25]

   A report of Dr Tom Jones, psychologist, was tendered at the sentence hearing. Akbari told Dr Jones that he started using marijuana at the age of 17 or 18 because he found that it helped him escape from painful feelings. On weekends he would binge on alcohol. In 2010 he started using the drug known as “ice” and occasionally cocaine. Over time, he became increasingly dependent upon ice and alcohol and would go to any lengths to obtain money to buy drugs.

4. [26]

   Akbari gave evidence in the sentence proceedings. He said that at the time of the present offending he became involved with Brothers for Life. He involved himself in some of their activities and they in turn supplied him with drugs. He told Dr Jones that he was willing to do whatever was asked of him in order to be accepted.

5. [27]

   Dr Jones diagnosed Akbari with post-traumatic stress disorder attributable to sexual abuse, wartime exposure and family disruption. He also found that in his mid to late teens Akbari developed a major depressive disorder and anxiety and that he met the criteria for a diagnosis of substance abuse.

6. [28]

   Akbari's brother-in-law, Mirwais Siddiqui, gave evidence that, while he had known Akbari for some years and had seen a lot of him, he had no idea he was using drugs or was associated with the Brothers for Life. He said that Akbari was the only member of the family to have been in trouble but that he had seen positive changes since he had been in custody and confirmed that the family was supportive of him.

Personal circumstances – Nasiri

1. [29]

   Nasiri was born in Afghanistan but fled to Pakistan with his parents and four siblings at a young age. The family settled in Australia in 2003 when Nasiri was 12 years old. He was enrolled in a mainstream high school but left in Year 10 to commence an apprenticeship as a panel beater which he did not complete.

2. [30]

   Nasiri has a criminal record, first appearing in the Children’s Court in 2007 for an offence of robbery in company. He was put on probation. In September 2011 he was sentenced to a term of imprisonment for 3 years with a non-parole period of 18 months for two counts of robbery in company. The present offences were committed when Nasiri was on parole. His parole was revoked and he served the balance of the term from 21 September 2013 until 15 March 2014.

3. [31]

   At the time of the offending Nasiri lived with his family. His father is in poor health after suffering a stroke. His father also suffers from Parkinson’s disease and depression.

4. [32]

   Nasiri told a probation and parole officer that he does not consider himself a member of Brothers for Life and that he does not have ongoing contact with any of its members.

The applicant Akbari

1. [33]

   Submissions on behalf of the applicant Akbari drew attention to the following passage from the judge's sentencing remarks where his Honour was discussing the applicant's conduct in relation Count 1:

2. [34]

   The applicant accepted that his Honour's statement that drug taking did not, of itself, reduce moral culpability was in accordance with well-established sentencing principle. Reference was made to Dr Jones’ findings that Akbari suffered from post-traumatic stress disorder and had developed a major depressive disorder with associated anxiety in his mid to late teenage years.

3. [35]

   It was contended that these mental health issues led the applicant to turn to drug use which in turn led to him committing the present offences. The applicant submitted that this established a causal link between the applicant’s mental health issues and his offending which might make him a less suitable vehicle for general deterrence, or might indicate that a custodial term may weigh more heavily upon him. It was submitted that his Honour’s failure to give consideration to the applicant’s mental illness in those respects led his Honour into error.

4. [36]

   In the course of oral submissions, it was accepted by counsel for the applicant that these matters were not put to the sentencing judge. Nonetheless, the applicant maintained the submission on the basis that the applicant’s mental health issues were “front and centre” in the material before his Honour.

5. [37]

   The Crown submitted that the sentencing judge’s consideration of the applicant’s mental health issues was entirely appropriate in light of the submissions made to him. Special circumstances were found on account of, inter alia, the applicant’s mental health issues and drug use. The Crown pointed out that the applicant’s submissions in this Court regarding the unsuitability of general deterrence and the potentially onerous nature of custody had not been put to the sentencing judge. The Crown highlighted the sentencing judge’s remark during the submissions on sentence that “general deterrence needs to be reflected in [the sentences]”. No issue with that remark was raised in the subsequent submissions by senior counsel then appearing for the applicant.

6. [38]

   Akbari had mental health issues which, in part, led to his drug use. His drug use, in part, contributed to his association with the Brothers for Life gang. His association with that gang contributed to his commission of the offence in Count 1. In these circumstances, to say that his mental health issues were causally related to his offending is such a tenuous proposition that it is little wonder that such a submission was not advanced in the court below.

7. [39]

   There was no error in the judge not finding that there was such a link and, as a result, not reducing the weight to be given to general deterrence in the assessment of sentence. There is no merit in this ground.

8. [40]

   The applicant submitted that for the following reasons his Honour erred in characterising the offending in count 1 as “offending of an extremely serious kind”:

9. [41]

   It was submitted for the Crown that appropriate regard was had to these matters in determining the objective criminality of the offending. The Crown submitted that the sentencing judge clearly indicated to counsel that he considered the present offending to be a serious form of the offence. It was highly relevant that counsel did not seek to dissuade his Honour from that view.

10. [42]

    The statement by the learned judge that "the offending is of an extremely serious kind" needs to be understood in the context in which it was made. It appears in the transcript of the sentencing remarks under the heading, "Assessment of the Objective Gravity of the Offending" and the sub-heading, "Demand money with menaces: Akbari and Nasiri". His Honour referred to the maximum penalty prescribed by Parliament for the offence as being 14 years. He referred to the applicants both being on conditional liberty (but he noted a short time later that this was not relevant to objective seriousness). He then made the impugned statement. It was immediately followed by a detailed explanation as to why extortion of business owners is a very serious matter. He concluded under this sub-heading by referring to the importance of general deterrence and denunciation.

11. [43]

    His Honour proceeded under a new sub-heading, "The particular conduct of the offender Akbari". In this context he referred to there being no evidence that the offender was aware of the earlier threats associated with the demand for $40,000. He noted that the offender was to be sentenced for his role in the demands made on 26 and 27 August 2013 for $10,000. He accepted that there was merit in a submission that Akbari played a lesser role than Nasiri; the latter having done most of the speaking when the conversation on 27 August was recorded by the police. He said that some adjustment to the sentence was necessary to reflect this, although it should not be substantial, noting that the offenders were in company with the common aim to create substantial fear in the victim and that Akbari's presence was designed to achieve that purpose. It was at this point that his Honour referred to the differences in the applicants' criminal histories and noted that this was not relevant to the assessment of objective seriousness. His Honour concluded with comments about the relevance of Akbari's illicit drug use: see above (at [33]).

12. [44]

    The applicant is only critical of a single statement in the course of his Honour's review that I have just summarised.

13. [45]

    The offence of demanding property with menaces with intent to steal (whether or not in company) is most usually encountered in incidents which are spontaneous, where there is some brief physical assault, or a threat of same, and a demand for property of relatively modest value that is in the immediate possession of the victim, for example, money, a wallet, a mobile phone or the like: see, for example Newman v R [2012] NSWCCA 69; McMenemy v R [2009] NSWCCA 50; R v Cage [2006] NSWCCA 304; R v Smith [2004] NSWCCA 95; 144 A Crim R 577; Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398; R v Wilson [2002] NSWCCA 65.

14. [46]

    Where the offence is committed in its aggravated form ("in company") and is a premeditated attempt to extort a substantial amount of money from a legitimate business owner under threat of harm to be inflicted by a substantial number of members of a criminal gang, the description of the offence by the sentencing judge, broadly speaking, as being "of an extremely serious kind" cannot, in my view, be gainsaid.

15. [47]

    Having regard to the judge having then proceeded from that overall observation to make an assessment of the specific case at hand as it related to the particular offender, I cannot discern error.

16. [48]

    I would not uphold this ground.

17. [49]

    The applicant referred to the findings regarding the objective seriousness of counts 2 and 3 to support this ground. It was argued that the additional criminality in count 2 was very slight and accordingly the indicative sentence for count 2 should have been minimally accumulated or entirely concurrent with the sentence in respect of count 1. A similar submission was made in relation to count 3. It was also submitted that in relation to count 3, any upward pressure because of the need to take into account the two offences on the Form 1 should have been minimal. It was conceded in oral submissions that partial (notional) accumulation of the indicative sentences was appropriate but submitted that accumulation of around 10 months was outside his Honour’s discretion.

18. [50]

    A complaint was made that the judge did not take into account that the offence in count 1 is capable of being disposed of in the Local Court. It was suggested that this may have been influenced by his Honour's assessment of the seriousness of the offending.

19. [51]

    The applicant also relied upon the matters argued in support of Grounds 1 and 2 as well as referring to statistics from the Judicial Commission in support of his overall submission of manifest excess.

20. [52]

    The Crown simply submitted that the indicative sentences for counts 2 and 3 were within range; that careful consideration was given regarding partial accumulation which disclosed no error; and that the applicant’s reliance on statistics in these circumstances is unhelpful.

21. [53]

    I have previously indicated that there was no error in relation to the applicant's mental health issues as asserted under Ground 1. It is appropriate at this point to note that in the context of discussing Akbari's rehabilitation prospects, the judge accepted his "mental health issues required treatment as they are likely to have a causal relationship with his illicit drug use". He considered that a lengthy period of parole supervision would assist "to ensure he pursues treatment upon release". Special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found, justifying a shortening of the non-parole period of the sentence and enlargement of the parole period because "he will require intensive supervision upon his release". I note that the non-parole component is 60 per cent of the head sentence compared with the usual 75 per cent.

22. [54]

    The applicant's complaint that the judge did not take into account the availability of summary disposal in relation to count 1 cannot be upheld. No such submission was made to his Honour, although such a submission was made in relation to the Form 1 offences taken into account in relation to count 3. The offence in count 1 was simply too serious to contemplate disposition in the Local Court and it is unsurprising that senior counsel did not suggest it.

23. [55]

    The submissions based upon the Judicial Commission's sentencing statistics are unpersuasive. I accept that the indicative sentence for the offence in count 1 is high when compared with other sentences that have been imposed for offences against s 99(2) of the Crimes Act. The facts and circumstances of those other offences are unknown (and no attempt seems to have been made to identify them, even though some details of the cases and any published judgments are linked to the statistical display). Having regard to the significant level of seriousness of the offence and the maximum penalty prescribed by Parliament of 14 years, a starting point of 5½ years before reduction on account of the applicant's plea of guilty is not beyond the bounds of the judge's sentencing discretion.

24. [56]

    The complaint about the level of notional accumulation of the indicative sentences must also fail. The sentence for count 1 was indicated as 4 years 2 months and the aggregate sentence is 10 months higher. An argument that accepts some degree of accumulation but contends that it should have been something less than 10 months does not pay sufficient heed to the discretionary nature of the sentencing task.

25. [57]

    I am not persuaded that the aggregate sentence passed upon Mr Akbari is manifestly excessive in the sense that it is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]. I would reject this ground.

Conclusion in relation to the applicant Akbari

1. [58]

   I would grant leave to appeal but would dismiss the appeal.

The applicant Nasiri

1. [59]

   Senior counsel for Nasiri submitted that it was not open to the sentencing judge to materially distinguish between the roles of the applicants. It was submitted that their roles were identical and were simply carried out in different ways. The objective criminality was the same for both applicants. The applicant Nasiri relied on the following facts:

2. [60]

   It was accepted by senior counsel for Nasiri that in relation to the last of these points Nasiri said “some more words” (T9.2) than Akbari but it was contended that the effect of their presence and behaviour at the victim’s premises was ultimately the same. For these reasons, it was submitted that his Honour erred in failing to take into account principles of sentencing which apply to participants in a joint criminal enterprise.

3. [61]

   The Crown submitted that the assertion of a material distinction between the two offenders overstated the actual finding of the sentencing judge. In written submissions, the Crown referred to the fact that his Honour found that any difference in sentence “should not be substantial”.

4. [62]

   The Crown pointed out that during the sentence proceedings counsel for Akbari submitted that Nasiri played a more “domineering role”. Counsel for Nasiri did not challenge this submission. In oral submissions, senior counsel for Nasiri contended that there was no authority to support the proposition that the applicant Nasiri should be bound by the submissions made by counsel for Akbari in Akbari’s favour.

5. [63]

   The Crown also submitted that in differentiating between the head sentences for count 1 his Honour appropriately considered the differences in the respective subjective cases and the fact that Nasiri committed the offence whilst on parole (whereas Akbari committed the offence whilst on bail).

6. [64]

   This ground requires attention to a particular passage of the judge's sentencing remarks. His Honour indicated that he accepted a submission made by senior counsel for Akbari that he played a lesser role than Nasiri when they attended the victim's workshop. He said the transcript of the recorded conversation on 27 August 2013 indicated that Nasiri played "a more dominant role in the demands and threats". He continued:

7. [65]

   It was necessary for the judge to consider the comparative criminality of each offender. It would have been wrong for him to have ignored this on the simplistic basis that they were both participants in the one joint criminal enterprise. In Lowe v The Queen (1984) 154 CLR 606 at 609, Gibbs CJ said:

8. [66]

   This was cited with approval most recently in the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [31] (French CJ, Crennan and Kiefel JJ). See also the very useful discussion of sentencing participants in a joint criminal enterprise in A Dyer and H Donnelly, “Sentencing in complicity cases — Part 1: Joint criminal enterprise”, Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, 2009.

9. [67]

   The indicative sentence for count 1 for Nasiri was 4 years 10 months and for Akbari it was 4 years 2 months. The starting points before the reduction on account of the pleas of guilty were 6½ years as compared to 5½ years. It is clear, however, that this differentiation was not based solely upon the assessment of their respective roles. After making the statement I quoted above (at [64]) his Honour continued:

10. [68]

    A comparison of the criminal histories of the applicants can be based on the trite observation that Akbari had previously received penalties by way of fines, community service and a bond whilst Nasiri had been placed on probation in the Children's Court for an offence of robbery in company and had been imprisoned for 3 years in the District Court for two further robberies in company with his guilt for another such offence taken into account. It would have been wrong for the judge to make no distinction between them on this account. Further, it was clearly open to the judge to find it was a more serious aggravating feature of Nasiri's case that he committed the offence in count 1 whilst on parole for serious robbery offences.

11. [69]

    Having regard to those matters, the differentiation made as to the roles played by each of the applicants must have been quite minimal. The difference between this, and the contention by senior counsel for Nasiri that the roles were "identical" does not bear further consideration.

12. [70]

    In written submissions counsel for the applicant submitted that the sentencing judge fell into error in three ways leading to a marked disparity having regard to the sentence imposed on Akbari: by finding a material difference in the offending; by failing to take into account that Akbari had a history of violence associated with robbery and by not sentencing in accordance with the findings that the applicant had a greater level of remorse and insight into his offending than Akbari. It was also submitted that his Honour erred in altering the ratio between the head sentence and the non-parole period to a lesser extent in the applicant's case than for Akbari.

13. [71]

    In oral submissions, it was contended on behalf of the applicant that there was in fact very little difference between the applicant’s offending while on parole and Akbari’s offending whilst on bail. Ms Wass SC described the circumstances of the applicant’s offending as “unusual” (T11.49) having regard to his associations with Brothers For Life (developed while he had been in custody) and the fact that he was working, living with his parents and caring for his father at the time of the present offending.

14. [72]

    The Crown submitted that the applicant was unable to establish a justifiable sense of grievance or marked disparity for the following reasons: there was no real difference between the two offenders in relation to remorse; his Honour was guarded regarding the applicant’s prospects of rehabilitation; the difference in the ratio between the head sentence and the non-parole period was justified having regard to Akbari’s drug and mental health issues and the recommendation of supervision in the Pre-Sentence Report (in the applicant’s case, the Pre-Sentence report indicated that limited intervention would be offered).

15. [73]

    I have previously indicated that it was open to the judge to differentiate between the offences based upon role (minimally), criminal record and the nature of the conditional liberty of which they were in breach.

16. [74]

    In Akbari's case, the judge also took into account in his favour that he was remorseful and that, with continuing treatment, he had good prospects of rehabilitation. In Nasiri's case he also accepted that there was remorse but he was less confident about his rehabilitation prospects.

17. [75]

    In Green v The Queen; Quinn v The Queen French CJ, Crennan and Kiefel JJ, after quoting passage of the judgment of Gibbs CJ in Lowe v The Queen set out above (at [66]), continued (at [32]):

18. [76]

    There were differences in the cases of the two applicants. The distinctions his Honour made were open to him. Any disparity that might be discerned upon a minute analysis of the differing features is certainly not, in my view, one that can be characterised as "marked", "glaring" or the like: HL v Regina; YG v Regina [2014] NSWCCA 43 at [39] (Hoeben CJ at CL, Bathurst CJ and Bellew J agreeing).

19. [77]

    I would not uphold this ground.

20. [78]

    In relation to these grounds, the applicant adopted the submissions made on behalf of Akbari (being grounds 2 and 3 in Akbari’s application for leave). I have previously indicated my rejection of them.

Conclusion in relation to the applicant Nasiri

1. [79]

   I would grant leave to appeal but would dismiss the appeal.

Orders

1. [80]

   In the case of each of the applicants I propose the following orders:

2. [81]

   GARLING J: I agree with the orders proposed by R A Hulme J, and with his reasons.