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Arbili v The Queen

Arbili v The Queen

Case [2012] NSWCCA 48 30 March 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ARBILI v R [2012] NSWCCA 48
Hearing dates: 10 February 2012
Decision date: 30 March 2012
Jurisdiction: Criminal
Before: Basten JA at [1]
RS Hulme J at [8]
Schmidt J at [9]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - whether error was made in the manner in which account taken of applicant's mental illness - whether error in the conclusion that there was a notable degree of planning - application of guideline judgment R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 - whether sentence was manifestly excessive - whether there was a failure to apply a 25% discount for the utilitarian value of the plea - lesser sentence not warranted in law
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Hawkins v R [2011] NSWCCA 153
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lewis v R [2011] NSWCCA 206
Legge v R (2007) NSWCCA 244
Mercael v R [2010] NSWCCA 36
Mill v The Queen [1998] HCA 70; (1998) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Baxter [2007] NSWCCA 237; (2007) 173 A Crim R 284
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Jarrold [2010] NSWCCA 69
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Thompson; R v Houlton [2000] NSWCCA 309; (2009) 49 NSWLR 383
R v Wilson [2005] NSWCCA 219
Wilmot v Regina [2007] NSWCCA 278
Category: Principal judgment
Parties: Morad Arbili (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr I Nash (Applicant)
Ms N Gouda (Respondent)
Solicitors:
B Sandland, Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/240076
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-11-11 00:00:00

Before:

Moore ADCJ

File Number(s):

2009/148485
2009/240076

Judgment

BASTEN JA: The circumstances of this application are set out by Schmidt J and need not be repeated here. Subject to what follows, I agree with her reasons. However, in my view the Court should intervene to reduce by four months the balance of term from two years, six months, to 26 months.

The majority view is that there was error in failing to accord a 25% discount for the plea of guilty in the circumstances of the case, but that the sentence was nevertheless one warranted by law because it was seen to be lenient. As I understand the reasons, the element of leniency derives from the fact that the sentence was made entirely concurrent with a 10 month sentence imposed in the Local Court for a separate offence. In other respects the sentence was not properly described…

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 Arbili v The Queen

Details

AGLC: Arbili v The Queen [2012] NSWCCA 48
Case: [2012] NSWCCA 48
Decision Date: 30 March 2012

CaseChat Overview and Summary

The applicant appealed against his sentence for a criminal offence, arguing that the sentencing court had erred in the manner in which it took into account his mental illness and whether there was a notable degree of planning in the offence. The case was heard in the New South Wales Court of Criminal Appeal. The applicant claimed that the sentencing court had failed to apply a 25% discount for the utilitarian value of his guilty plea, and that the sentence was manifestly excessive.

The legal issues before the court were whether the sentencing court erred in failing to properly consider the applicant's mental illness and whether there was a notable degree of planning in the offence. The court was also required to consider whether there was a failure to apply a 25% discount for the utilitarian value of the plea, and whether a lesser sentence was warranted in law.

The court found that the sentencing judge had failed to properly consider the applicant's mental illness and had incorrectly concluded that there was a notable degree of planning in the offence. The court applied the guideline judgment of R v Henry and held that the sentence was manifestly excessive. The court found that there was a failure to apply a 25% discount for the utilitarian value of the plea, and that a lesser sentence was warranted in law. The appeal was therefore allowed, and the case was remitted to the sentencing court for re-sentencing.

Orders