Al Saadi v The Queen - [2017] NSWCCA 110

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Al Saadi v R [2017] NSWCCA 110
Hearing dates: 17 March 2017
Decision date: 26 May 2017
Before: Macfarlan JA at [1];
Latham J at [2];
Campbell J at [29]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW - appeal against sentence - whether the sentencing judge failed to give an adequate discount for the plea - whether the sentence was disproportionate to the applicant's role in the offence - whether the judge erred in assessing the objective seriousness of the offending - leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW) s 86
Crimes (Sentencing Procedures) Act 1999 (NSW) ss 22, 23
Cases Cited: R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Dib [2003] NSWCCA 117
R v Robert Borkowski [2009] NSWCCA 102; 197 A Crim R 1
R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 580
R v Cartwright (1989) 11 NSWLR 243
R v XX [2017] NSWCCA 90
Category: Principal judgment
Parties: Mohammad Bara Al-Saadi (Applicant)
Regina (Crown)
Representation:
Counsel:
A Radojev (Applicant)
S Hughes (Crown)
Solicitors:
Harb Lawyers (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/189604
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 September 2016

Before:

Culver DCJ

File Number(s):

2014/189604

Judgment

MACFARLAN JA: I agree with Latham J.
LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him on 19 September 2016 with respect to one count of specially aggravated detain for advantage whilst in company and inflicting actual bodily harm, pursuant to s 86(3) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment.
The applicant pleaded guilty on 26 July 2016 and undertook to give evidence against a co-accused. The offer of assistance and the necessity to sentence the applicant before providing that assistance required the sentencing judge to deliver ex tempore remarks on 16 and 19 September 2016. This feature of the sentencing proceedings assumes some significance for the purposes of this appeal.
The applicant was sentenced to 3 years and three months imprisonment, including a non-parole period of one year, seven months and 15 days. This sentence was imposed following the application of a combined discount of 35%, reflecting a 10% discount for the utilitarian value of the guilty plea and 25% for future assistance.

The Offence

The applicant was sentenced on the basis of agreed facts.
On 11 June 2014 the victim, a 16-year-old male, was persuaded to leave his home to meet with the applicant (who was then 20 years of age), his co-accused Jafar (who was also then 20 years of age) and another 16-year-old male. The victim was persuaded to enter a vehicle, driven by Jafar, and taken to an isolated location at the end of the Georges River Road in Lansvale. In the course of the…

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 Al Saadi v The Queen

Details

AGLC: Al Saadi v The Queen [2017] NSWCCA 110
Case: [2017] NSWCCA 110
Decision Date: 26 May 2017

CaseChat Overview and Summary

The appellant, Al Saadi, was convicted of charges related to his involvement in a criminal conspiracy. The nature of the dispute was whether the sentence imposed by the sentencing judge was appropriate, given the circumstances of the case and the plea of guilty. The matter was heard in the High Court of Australia, the highest court in the country.

The legal issues before the court were threefold. Firstly, whether the sentencing judge failed to give an adequate discount for the plea of guilty. Secondly, whether the sentence imposed was disproportionate to the appellant's role in the offence. Lastly, whether the judge erred in assessing the objective seriousness of the offending. The appellant argued that the sentence should have been reduced due to his early guilty plea, that his role in the offence was less significant than that of the co-conspirators, and that the objective seriousness of the offending was not properly assessed.

The court found that the sentencing judge had adequately considered the appellant's plea of guilty and had appropriately balanced the various factors when determining the sentence. The court held that the sentence was proportionate to the appellant's role in the offence, and that the judge had correctly assessed the objective seriousness of the offending. The appeal was dismissed, and leave to appeal was refused. The reasoning and outcome of the court reflect the importance of the principles of proportionality and judicial discretion in the sentencing process.

Orders