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Baghdadi v R

Baghdadi v R

Case [2012] NSWCCA 212 30 November 2012

Sentencing

Criminal Liability

Principle of Totality

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Baghdadi v R [2012] NSWCCA 212
Hearing dates: 18 September 2012
Decision date: 30 November 2012
Before: Macfarlan JA at [1]
Johnson J at [2]
Davies J at [3]
Decision:
(1) Extend the time for the Applicant to appeal against the sentence imposed by Judge Armitage to 14 September 2012.
(2) Grant leave to appeal.
(3) Allow the appeal.
(4) In lieu of the sentence imposed by Judge Armitage in respect of Count 3 sentence the Appellant to a non-parole period of 5 years commencing 9 March 2011 and expiring 8 March 2016 with a balance of term of 3 years expiring 8 March 2019
(5) Grant leave to appeal from the sentences imposed by Judge Finnane.
(6) Appeal allowed.
(a) In lieu of the sentence for Count 1 sentence the Appellant to a non-parole period of 5 years to commence 9 March 2012 and expiring 8 March 2017 with a balance of term of 3 years to expire 8 March 2020;
(b) In lieu of the sentence for Count 2 sentence the Appellant to a fixed term of 2 years imprisonment to commence 9 March 2012 and expiring 8 March 2014;
(c) In lieu of the sentence for Count 3 sentence the Appellant to a non-parole period of 5 years to commence 9 March 2014 and expiring 8 March 2019 with a balance of term of 3 years expiring 8 March 2022;
(d) In lieu of the sentence for Count 4 sentence the Appellant to a fixed term of 2 years imprisonment to commence 9 March 2014 and expiring 8 March 2016;
(e) In lieu of the sentence for Count 5 sentence the Appellant to a non-parole period of 4 years to commence 9 March 2016 and expiring 8 March 2020 with a balance of term of 4 years expiring 8 March 2024.

Catchwords: CRIMINAL LAW - sentence - carjacking offences - applicant incarcerated for similar offences at time of sentence for present offences - finding of special circumstances - effect of accumulation on ratio between non-parole period and total sentence - principle of totality - relevance of all sentences to totality principle and effect on statutory ratio - supervision on parole of serious offender
Legislation Cited: Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Criminal Appeal Rules
Cases Cited: Arnold v R [2011] NSWCCA 150
Baghdadi v R [2011] NSWCCA 234
Baghdadi v R (No. 2) [2012] NSWCCA 77
Connelly v R [2012] NSWCCA 144
Jinnette v R [2012] NSWCCA 217
R v Baghdadi [2008] NSWCCA 239
R v MAK (2006) 167 A Crim R 159
Wakefield v R [2010] NSWCCA 12
Category: Principal judgment
Parties: Abdul Baghdadi (Applicant)
Crown
Representation: Counsel:
S Odgers SC & K Edwards (Applicant)
S Dowling (Crown)
Solicitors:
Elie Rahme & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/9151
Decision under appeal

Date of Decision:

2010-06-29 00:00:00

Before:

Armitage DCJ
Finnane DCJ

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 Baghdadi v R

Details

AGLC: Baghdadi v R [2012] NSWCCA 212
Case: [2012] NSWCCA 212
Decision Date: 30 November 2012

CaseChat Overview and Summary

The case of Baghdadi v R dealt with the sentencing of an individual convicted of multiple carjacking offences. The appellant was sentenced in the High Court of Australia, which was asked to consider the appropriateness of the sentence, particularly the non-parole period, given the appellant's history of incarceration for similar offences. The central legal issue before the court was whether the trial judge had appropriately considered the principle of totality when determining the non-parole period for the appellant's sentences, and whether the accumulation of sentences impacted the statutory ratio in a manner consistent with the principle of totality.

The court held that the trial judge had failed to adequately consider the principle of totality, which requires that the totality of a sentence, including any concurrent sentences, be considered when determining the appropriate non-parole period. The court noted that the accumulation of sentences for serious offenders should be taken into account in a way that ensures the statutory ratio is not unduly affected. In this case, the trial judge did not sufficiently account for the fact that the appellant was already serving sentences for similar offences, which should have influenced the length of the non-parole period for the new sentences. The court also stressed the importance of considering all sentences relevant to the principle of totality and their impact on the statutory ratio.

Consequently, the High Court found that the non-parole period was too long and ordered a reduction. The court emphasised that the principle of totality and the statutory ratio must be balanced to ensure that the total sentence reflects the overall punishment for all relevant offences. The final orders of the court required a reassessment of the non-parole period in accordance with the principles discussed, leading to a revised sentence that appropriately reflected the totality of the appellant's offending and the need for deterrence and rehabilitation.

Orders