R v Dashti [2016] NSWCCA 251

R v Dashti [2016] NSWCCA 251

The sentencing judge erred by using a stepped or two-tiered approach when reducing an aggregate starting point by a stated percentage for subjective features, and the aggregate sentence was manifestly inadequate having regard to the objective seriousness of the very large drug supply offences, the serious Form 1 offences, the limited mitigating circumstances, the excessive departure from the statutory non-parole ratio, and the limited relevance of parity with AB. The finding of special circumstances itself was open, and the 15% guilty plea discount was not erroneous, but the inadequacy of the sentence was so marked that the residual discretion should not be exercised.

Jurisdiction
Australia
Judgment Date
10 November 2016
Procedural Posture
Crown Appeal Against Sentence Under S 5 D of the Criminal Appeal Act 1912 (nsw) / Appeal Against Sentence and Resentencing
Outcome
Appeal allowed; sentence quashed; respondent resentenced to a longer aggregate sentence of imprisonment.
Legal Topics
['crown Appeal Against Sentence' 'manifest Inadequacy' 'instinctive Synthesis' 'standard Non Parole Period' 'special Circumstances' 'aggregate Sentence' 'form 1 Offences' 'supply of Large Commercial Quantity of Prohibited Drugs']
['criminal Law' 'sentencing' 'drug Offences'] ['crown Appeal Against Sentence' 'manifest Inadequacy' 'instinctive Synthesis' 'standard Non Parole Period' 'special Circumstances' 'aggregate Sentence' 'form 1 Offences' 'supply of Large Commercial Quantity of Prohibited Drugs']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence Under S 5 D of the Criminal Appeal Act 1912 (nsw) / Appeal Against Sentence and Resentencing

Legal Issues

  1. 1 ["Whether the sentencing judge's discretion miscarried by engaging in sequential reasoning rather than sentencing by instinctive synthesis." 'Whether the sentencing judge failed to take into account the legislative guideposts of the relevant maximum penalties and standard non-parole periods.' 'Whether the sentencing judge erred by making a finding of special circumstances that was not open on the evidence.' 'Whether the aggregate sentence imposed was manifestly inadequate.']

Ratio Decidendi

The sentencing judge erred by using a stepped or two-tiered approach when reducing an aggregate starting point by a stated percentage for subjective features, and the aggregate sentence was manifestly inadequate having regard to the objective seriousness of the very large drug supply offences, the serious Form 1 offences, the limited mitigating circumstances, the excessive departure from the statutory non-parole ratio, and the limited relevance of parity with AB. The finding of special circumstances itself was open, and the 15% guilty plea discount was not erroneous, but the inadequacy of the sentence was so marked that the residual discretion should not be exercised.

Court Disposition

Appeal allowed; sentence quashed; respondent resentenced to a longer aggregate sentence of imprisonment.

Orders

  • ['Allow the appeal.' 'Quash the sentence imposed on Mr Dashti on 4 December 2015 and in its place impose an aggregate sentence of imprisonment comprising of a non-parole period of 21 years 6 months to commence on 9 February 2012 and to expire on 8 August 2033, with a balance of term of 7 years and 2 months to...