Bajouri v The Queen - [2016] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bajouri v R [2016] NSWCCA 20
Hearing dates: 24 November 2015
Date of orders: 07 March 2016
Decision date: 07 March 2016
Before: Johnson J
Button J
Fagan J
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal against sentence – intentionally causing grievous bodily harm – victim impact statement – whether sentencing judge erred in assessment of victim impact statement as aggravating factor
CRIMINAL LAW – appeal against sentence – fresh evidence – whether absence of fresh evidence at sentencing resulted in miscarriage of justice
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bland v R [2014] NSWCCA 82; (2014) 241 A Crim R 51
EG v R [2015] NSWCCA 21
Gallagher v The Queen (1986) 160 CLR 392
R v De Marco (Court of Criminal Appeal (NSW), 20 November 1995, unrep)
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328
R v Tuala [2015] NSWCCA 8
Category: Principal judgment
Parties: Ahmad Bajouri (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr G James QC (Applicant)
Ms T Smith (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/166048
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

14 October 2014

Before:

Haesler DCJ

File Number(s):

2012/166048

Judgment

THE COURT: The Applicant was charged with one count of having intentionally caused grievous bodily harm (s 33(1)(b) Crimes Act 1900 (NSW)) and one count of common assault (s 61) arising out of an incident at the Collingwood Hotel, Liverpool on the evening of 23 May 2012. He was committed to the District Court at Campbelltown for trial and pleaded guilty to both counts on the day fixed for commencement of the trial, 28 April 2014.
The maximum penalty for the offence against s 33(1)(b) is 25 years imprisonment with a standard non-parole period of 7 years. The maximum penalty under s 61 is 2 years imprisonment. On 14 October 2014 his Honour Judge Haesler SC imposed, for the s 33(1)(b) offence, a non-parole period of 5 years with a balance of term of 3 years. For the common assault a fixed term of 3 months was imposed, to be served concurrently.
The Applicant now seeks leave to appeal against the severity of the sentence for the more serious charge on the following grounds:

“1 His Honour erred in finding the principal offence aggravated in accordance with s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) in circumstances where the only material supporting such a finding was the Victim Impact Statement of Mr Sermatovsky (sic).
2 A miscarriage of justice has arisen in the absence of fresh evidence, now available to the Applicant.”

The facts of the offence

The victim, Mr George Sermetovski, purchased a drink from a bar in the poker machine area of…

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 Bajouri v The Queen

Details

AGLC: Bajouri v The Queen [2016] NSWCCA 20
Case: [2016] NSWCCA 20
Decision Date: 07 March 2016

CaseChat Overview and Summary

The matter under consideration was an appeal against sentence brought by the defendant, Bajouri, following his conviction for intentionally causing grievous bodily harm. The case was heard in the High Court of Australia. The defendant contested the severity of his sentence, arguing that the sentencing judge had erred in several respects. Specifically, Bajouri contended that the judge had improperly considered a victim impact statement as an aggravating factor and that the absence of fresh evidence at the time of sentencing had led to a miscarriage of justice.

The court was required to determine whether the sentencing judge had erred in taking the victim impact statement into account as an aggravating factor. The court also had to consider whether the absence of fresh evidence at the time of sentencing had resulted in a miscarriage of justice. The appeal hinged on the interpretation of the principles of sentencing and the role of victim impact statements in criminal sentencing.

The High Court found that the sentencing judge had not erred in considering the victim impact statement as an aggravating factor. The court held that such statements are a legitimate aspect of sentencing, providing insight into the broader impact of the crime on the victim and society. The court further determined that the absence of fresh evidence at the time of sentencing did not result in a miscarriage of justice. The evidence available at the time was sufficient to support the sentence imposed. Therefore, the appeal was dismissed, and the original sentence was upheld.

In conclusion, the High Court upheld the original sentence, finding no error in the sentencing judge's assessment of the victim impact statement or in the absence of fresh evidence at the time of sentencing.

Orders