Danishyar v R; R v Danishyar [2023] NSWCCA 300

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Danishyar v R; R v Danishyar [2023] NSWCCA 300 Hearing dates: 21 April 2023 Date of orders: 29 November 2023 Decision date: 29 November 2023 Before: Simpson AJA at [1] Dhanji J at [2] McNaughton J at [68] Decision: The applicant's proposed appeal against conviction: (1) Leave to appeal against conviction is granted; and (2) The appeal against conviction is dismissed. The applicant's proposed appeal against sentence: (1) Leave to appeal against sentence is granted; and (2) The appeal against sentence is dismissed. The Crown's appeal against sentence: (1) Allow the Crown appeal in part. (2) In respect of Count 1 of the indictment dated 1 March 2021, that Mirwais Danishyar did murder Pasquale Barbaro at Earlwood on 14 November 2016, quash the sentence imposed on Mirwais Danishyar in the Supreme Court on 17 December 2021, and in lieu thereof, sentence Mirwais Danishyar to a non-parole period of 15 years commencing on 29 November 2016 and expiring on 28 November 2031 and a balance of term of 5 years commencing on 29 November 2031 and expiring on 28 November 2036. (3) In respect of Count 2 on the indictment dated 1 March 2021, being that Mirwais Danishyar did assist any one or more of Abuzar Sultani, Joshua Baines and Siar Munshizada, knowing that any one or more of them had committed the murder of Pasquale Barbaro at Earlwood on 14 November 2016, dismiss the Crown appeal, with the effect that Mirwais Danishyar's sentence of imprisonment for a fixed term of 2 years commencing on 29 November 2016 and expiring on 28 November 2018 is affirmed. (4) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), Mirwais Danishyar is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him. Catchwords: CRIME – Appeals – Appeal against conviction – accessorial liability – applicant convicted of accessory before the fact to murder by shooting – whether impermissible reliance by the Crown on an alternative path to guilt on the basis of knowledge of an unidentified act committed with the intention of causing grievous bodily harm of an unidentified kind – whether trial judge's instructions gave rise to error of law – whether knowledge of the type of offence in accessorial liability includes knowledge of the manner in which it will be brought about – crown submissions and directions read in proper context–leave granted – appeal against conviction dismissed CRIME – appeals – appeal against sentence – murder – accessorial liability – whether the sentencing judge failed to engage with a critical submission advanced on the applicant's behalf about the applicant's knowledge of the principals' intention – leave to appeal granted – appeal dismissed CRIME – appeals – Crown appeal against sentence – murder – accessorial liability – whether the sentence imposed for murder is manifestly inadequate – whether the sentencing judge erred in failing to accumulate the sentence imposed in relation to the accessory after the fact of murder count to any extent – sentence imposed for murder was manifestly inadequate – respondent resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 19A, 346, 349, 351, 351B Criminal Appeal Act 1912 (NSW) s 5(1) Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A Cases Cited: Aoun v R [2007] NSWCCA 292 Blundell v R (2019) 279 A Crim R 302; [2019] NSWCCA 3 Bruce v Williams (1989) 46 A Crim R 122 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Cliff v R [2023] NSWCCA 15 CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 Day v SAS Trustee Corporation [2021] NSWCA 71 Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaghbir v R [2023] NSWCCA 175 Johnson v Youden [1950] 1 KB 544 R v Ancutta (1990) 49 A Crim R 307 R v Batak (No 5) [2022] NSWSC 1217 R v FF [2023] NSWCCA 186 R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 R v Lembke [2020] NSWCCA 293 R v Russell [1933] VLR 59 R v Spiteri-Ahern (No 11) [2017] NSWSC 1820 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 The Queen v Chai (2002) 76 ALJR 628; [2002] HCA 12 Texts Cited: JW Cecil Turner, Russell on Crime (12th ed, 1964) Category: Principal judgment Parties: Mirwais Danishyar (Applicant on conviction appeal and his sentence appeal/Respondent on Crown sentence appeal)