Hosseini v R [2009] NSWCCA 52

Reported Decision: 193 A Crim R 444

New South Wales Court of Criminal Appeal

CITATION: Hosseini v R [2009] NSWCCA 52

HEARING DATE(S): 4 December 2008

JUDGMENT DATE: 5 March 2009

JUDGMENT OF: Hodgson J at 1; James J at 2; Price J at 3

DECISION: Conviction Appeal 1. Grant leave to Mostafa Hosseini to appeal against his conviction on count 2 on the indictment being an offence contrary to s 193C(1) of the Crimes Act. 2. Allow the appeal. 3. Quash the conviction and sentence on count 2. Crown Appeal 1. The Crown appeal against sentence be upheld. 2.The sentence imposed in the District Court for count 1 being an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act be quashed. 3.The conviction is confirmed.4.The respondent in respect of count 1 (taking into account the matters on the Form 1) is sentenced to a term of imprisonment of 9 years consisting of a non-parole period of 5 years 6 months commencing on 29 September 2006 and expiring on 28 March 2012 with a balance of term of 3 years 6 months commencing on 29 March 2012 and expiring on 28 September 2015. The earliest date on which the respondent will be eligible for release to parole is 28 March 2012.

CATCHWORDS: Criminal law - conviction appeal - summary offence included on indictment - conviction quashed - Crown appeal - particular offence - knowingly take part in the manufacture of a prohibited drug - whether standard non-parole period applies - consideration of assessment of utilitarian discount for plea - departure from standard non-parole period - offences on Form 1 - considerations of parity - sentence manifestly inadequate

Crimes Act 1900 s 98, s 193C(1), s 203E, s 302 Criminal Procedure Act 1986 s 6(1)(c) Crimes (Sentencing Procedure) Act 1999 s 3A, LEGISLATION CITED: s 54A(1) Drug Misuse and Trafficking Act 1985 s 24(2), s 25(1), s 29, s 29(1) Firearms Act 1996 s 7A(1), s 39(1)(a)