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Badaric v The King

Badaric v The King

Case [2025] NSWCCA 117 6 August 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Badaric v R [2025] NSWCCA 117
Hearing dates: 09 July 2025
Date of orders: 06 August 2025
Decision date: 06 August 2025
Before: Price AJA at [1];
N Adams J at [12];
Sweeney J at [26]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the aggregate sentence imposed in the District Court on 30 August 2024.
(4) Sentence the applicant to 4 years imprisonment with a non-parole period of 2 years and 6 months to date from 4 August 2023. The non-parole period will expire on 3 February 2026.

Catchwords:
CRIME – appeals – appeal against sentence – fraud offences – where the sentencing judge erred in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by committing the offences – whether the error was material – whether the error had the capacity to affect the sentencing exercise – whether the sentencing judge may have taken a more adverse view of the applicant’s offending as a result of the factual error – appeal allowed – applicant resentenced
SENTENCING – where the applicant is to be sentenced for overlapping offences of dealing with the proceeds of his own crime – principles of accumulation and concurrency

Legislation Cited:
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 136(1)
Crimes Act 1914 (Cth), s 16A
Criminal Code Act 1995 (Cth), ss 11.1(1), 372.2(1), 400.6(1), 480.4, 480.5(1)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 22(2)

Cases Cited:
Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
Clarke v R [2019] NTCCA 2
GP (a pseudonym) v R [2021] NSWCCA 180
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R [2014] NSWCCA 235
Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
Newman (a pseudonym) v R [2019] NSWCCA 157
R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068
R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Schembri v R [2010] NSWCCA 149
Standen v DPP (Cth) [2011] NSWCCA 187; (2011) 254 FLR 467
Subramaniam v R [2013] NSWCCA 159
Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135

Category: Principal judgment
Parties: Alexandru Vasile Badaric (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Francis (Applicant)
A Chhabra / M Rabsch / T Gooley (Respondent)
Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Office of the Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2023/00248384
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 August 2024

Before:

Turner DCJ

File Number(s):

2023/00248384

HEADNOTE

[This headnote is not to be read as part of the judgment]

Alexandru Badaric, the applicant, pleaded guilty in the Local Court to various fraud related offences. On 30 August 2024, the sentencing judge, her Honour…

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 Badaric v The King

Details

AGLC: Badaric v The King [2025] NSWCCA 117
Case: [2025] NSWCCA 117
Decision Date: 06 August 2025

CaseChat Overview and Summary

In this case, the applicant, Badaric, appealed against his sentence for fraud offences. The sentencing judge had made an error in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by committing the offences. The court was required to decide whether this error was material, whether it had the capacity to affect the sentencing exercise, and whether the sentencing judge may have taken a more adverse view of the applicant's offending as a result of the factual error. The court also needed to consider the principles of accumulation and concurrency in sentencing the applicant for overlapping offences of dealing with the proceeds of his own crime.

The court found that the sentencing judge's error in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by committing the offences was material, and had the capacity to affect the sentencing exercise. The court also found that the sentencing judge may have taken a more adverse view of the applicant's offending as a result of the factual error. The court held that the sentencing judge should have considered the quantum of the debt the applicant intended to extinguish by committing the offences, and that this consideration may have led to a different sentence being imposed. The court allowed the appeal and ordered the applicant to be resentenced.

The court considered the principles of accumulation and concurrency in sentencing the applicant for overlapping offences of dealing with the proceeds of his own crime. The court found that the applicant's offences were not concurrent, but rather were separate and distinct offences that were committed in furtherance of the same criminal enterprise. The court held that the applicant should be sentenced for each offence separately, but that the sentences should be cumulative, reflecting the seriousness of the applicant's offending. The court ordered the applicant to be resentenced in accordance with these principles.

Orders