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Abdulrahman v R

Abdulrahman v R

Case [2016] NSWCCA 192 29 August 2016

Aggravated & Exemplary Damages

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Abdulrahman v R [2016] NSWCCA 192
Hearing dates: 11 July 2016
Date of orders: 29 August 2016
Decision date: 29 August 2016
Before: Bathurst CJ at [1]; Hoeben CJ at CL at [6]; Price J at [7]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – aggravated break, enter and steal – whether error in not granting adjournment – whether error in assessment of objective seriousness – whether error in finding Form 1 offence added to the criminality of the principal offence – whether prior record made principal offence worse – whether error in referring to retribution – applicant aged 20 years at time of offence – whether applicant’s youth properly taken into account – re-sentence – whether lesser sentence should be passed – whether leave to appeal should be refused or granted – whether it is necessary to indicate the sentence which would have been imposed if held that no lesser sentence warranted in law
Legislation Cited: Crimes Act 1900 (NSW), ss 112, 113
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Mapp v R [2010] NSWCCA 269; (2010) 206 A Crim R 497
MLP v R [2014] NSWCCA 183
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Neal v R (1982) 149 CLR 305
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Dodd (1991) 57 A Crim R 349
R v Gordon (1994) 71 A Crim R 459
R v Maher [2004] NSWCCA 177
R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: Badar Abdulrahman (Applicant)
Regina (Crown)
Representation:
Counsel:
M C Ramage QC (Applicant)
P Ingram SC (Crown)
Solicitors:
Jeffreys Lawyers (Applicant)
C. Hyland – Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/156188
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

07 July 2015

Before:

Hosking SC ADCJ

File Number(s):

2014/156188; 2014/103393

Judgment

1 BATHURST CJ: I have had the advantage of reading the judgment of Price J in draft. Subject to what I have written below, I agree with his Honour’s reasons. However, I am of the opinion that the appropriate order of the Court is that leave to appeal be refused.
Although, like his Honour, I am of the view that in the circumstances of the present case no lesser sentence than that imposed by the sentencing judge is warranted in law, I do not believe…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdulrahman v R

Details

AGLC: Abdulrahman v R [2016] NSWCCA 192
Case: [2016] NSWCCA 192
Decision Date: 29 August 2016

CaseChat Overview and Summary

The case of Abdulrahman v R concerns an appeal against the sentence imposed on the applicant for aggravated break, enter and steal. The applicant was 20 years old at the time of the offence and was sentenced to a period of imprisonment. The applicant appealed against the sentence, arguing that the primary judge had erred in various respects, including not granting an adjournment, incorrectly assessing the objective seriousness of the offence, and improperly considering the impact of the applicant's prior record on the severity of the principal offence. The applicant also argued that the primary judge had failed to adequately consider the applicant's youth and that a lesser sentence should be imposed.

The legal issues before the court included whether the primary judge had erred in not granting an adjournment, whether there had been an error in assessing the objective seriousness of the offence, and whether the primary judge had erred in finding that the Form 1 offence added to the criminality of the principal offence. The court also had to consider whether the primary judge had erred in finding that the applicant's prior record made the principal offence worse, and whether there had been an error in the primary judge's reference to retribution. The court further had to consider whether the primary judge had failed to adequately consider the applicant's youth and whether a lesser sentence should be imposed.

The court found that there had been an error in the primary judge's assessment of the objective seriousness of the offence and in the consideration of the impact of the applicant's prior record on the severity of the principal offence. The court held that the primary judge had not adequately considered the applicant's youth and that a lesser sentence should be imposed. The court concluded that leave to appeal should be granted, and that a re-sentencing hearing should be held. The court held that it was not necessary to indicate the sentence which would have been imposed if it had been held that no lesser sentence warranted in law. The court ordered that the appeal be allowed, the conviction be affirmed, and the case be remitted to the trial judge for re-sentencing.

Orders